Obolensky v. Trombley

• Decision Date: 06 February 2015
• Docket Number: No. 13–418.,13–418.
• Citation: 2015 VT 34,115 A.3d 1016
• Court: Vermont Supreme Court
• Parties: Michael OBOLENSKY and Jirina Obolensky v. Robert TROMBLEY and Sandra Trombley.

115 A.3d 1016

2015 VT 34

Michael OBOLENSKY and Jirina Obolensky

v.Robert TROMBLEY and Sandra Trombley.

No. 13–418.

Supreme Court of Vermont.

Feb. 6, 2015.

Michael N. Obolensky and Jirina C. Obolensky, Pro Se, Brentwood, New York, Plaintiffs–Appellants.

Sandra L. Trombley and Robert A. Trombley, Pro Se, Brandon, Defendants–Appellees.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

Opinion

ROBINSON, J.

¶ 1. Property owners appeal from the superior court's order requiring them to alter what the court deemed to be a “spite fence” located near adjoining property owners' land, and challenge the court's judgment concerning two instances of trespass. We affirm.

I. Facts

¶ 2. The trial court made the following factual findings in connection with several post-judgment motions in this case. The parties are adjoining property owners in the Town of Brandon. Michael and Jirina Obolensky own forty acres of land, which they purchased in 1995. The Obolenskys operate a bed-and-breakfast in a large Victorian house located at the lower eastern end of the property. Although not directly visible from their house, there is a beautiful view of the mountains from the highest part of the land, accessible by walking from the house uphill through a field. The adjoining property owners are Robert and Sandra Trombley, who purchased 3.7 acres of land in 2004 and built a home on the lot two years later. The Trombleys' lot is at the top of the rise, adjacent to the Obolenskys' field; the Trombleys have a direct view of the mountains. The exterior wall of their house is thirty-seven feet from the common boundary with the Obolenskys at its nearest point.

¶ 3. Soon after the Trombleys built their home, the Obolenskys commissioned a surveyor to conduct a boundary survey. In fall 2007, Mrs. Obolensky placed “no trespassing” signs on a location that she believed (based on the Obolenskys' boundary survey) was within her lot. The signs were placed at a location eight feet within an area also claimed by the Trombleys, who had mowed the lawn in the area. An acrimonious dispute followed, culminating in a call to the police. The police permitted Mr. Trombley to remove the signs that the Obolenskys had placed on the lawn. The

Obolenskys subsequently filed suit to determine the boundary, and also raised claims of trespass.

¶ 4. A criminal charge was filed against Mrs. Obolensky in the fall of 2009 following an incident in which she and guests walked onto the mowed area claimed by the Trombleys, Mrs. Obolensky exposed her backside toward the Trombleys, and a man in her group urinated on the lawn. The charge was dismissed after Mrs. Obolensky successfully completed a diversion program.

¶ 5. On June 30, 2011, the superior court issued an order resolving the underlying case based on the parties' stipulation. Among other things, the stipulated order (1) established an agreed-upon boundary line based on a survey done by the Trombleys' surveyor; (2) called for an independent surveyor to mark the boundary corners; and (3) provided that the parties “shall each be entitled to erect and maintain any fence allowed by law.”

¶ 6. The current appeal relates to the trial court's rulings on a host of post-judgment motions arising from subsequent events. We summarize the court's findings concerning those events here, discussing in more detail the findings related to the Obolenskys' claims of error.

¶ 7. First, at 5:30 a.m. a few days after the parties signed the stipulation, a contractor hired by the Obolenskys began the process of building a wooden stockade fence along most of the eastern boundary of the Trombleys' property. That fence stands six feet, one inch tall—the maximum height allowed by the local town ordinance without a permit—and consists of solid narrow wooden pieces fitted snugly together and flush with the ground. It was located on the Obolenskys' property, between three inches and one foot east of the boundary line. The Obolenskys put signs on the fence facing the Trombleys' property reading: “NO TRESPASSING, POLICE TAKE NOTICE” and “POSTED, PRIVATE PROPERTY.” The settlement agreement between the parties allowed for the erection of such signs at designated locations, but two of the signs were placed directly next to each other, in violation of the agreement.

¶ 8. The Obolenskys also had the fencing company place a single-strand barbed wire fence along what they considered to be the common boundary to the north of the Trombleys' property. Mr. Trombley did not believe that the strand correctly marked the line, and in July 2011 the Trombleys' surveyor determined that

the Obolenskys had encroached on the Trombleys' property at their northern boundary line at five points. Mr. Trombley ran a straight string along his northern boundary from the established northwest to the established northeast corners of the property. Mr. Trombley contended that the wire fence placed by the Obolenskys encroached on his land, and the Obolenskys, in turn, claimed that Mr. Trombley cut saplings and brush on their side of the divide.

¶ 9. In the meantime, the Obolenskys planted twenty-two evergreen trees on their property, arrayed from twenty to eighty feet from the Trombley boundary line. The trees range in height from twelve to fifteen feet, and are arranged in roughly three to four rows in a staggered, asymmetric formation. The trees were planted on the high part of their field, in front of the Trombleys' house, obstructing the Trombleys' mountain view. The Trombleys originally objected to the trees, although they later dropped their objection. By May or June 2012, some of the trees were dying or showing damage. The Obolenskys suspected that Mr. Trombley had poisoned the trees.

¶ 10. Finally, because the stockade fence is set back from the boundary line, there is a small strip of the Obolenskys' property on the side of the fence facing the Trombleys' property. The Obolenskys do not mow this narrow strip (and cannot do so without trespassing on the Trombleys' property), and the field grass has grown between three-and-one-half to four inches high in the area. The overgrown grass sometimes flops onto the Trombleys' property.¹ In the summer of 2012, Mr. Trombley, whose property is otherwise highly groomed, cut the grass.

¶ 11. As a result of these activities, the Trombleys filed a post-judgment motion, seeking a declaration that Obolenskys' stockade fence was an unlawful spite fence erected in violation of the underlying order, and an injunction ordering its removal. They also sought damages and injunctive relief for trespass in connection with the wire fence encroaching on the northern boundary of their property, and for damages for trespass by Mrs. Obolensky while she was overseeing the construction of the stockade fence. For their part, the Obolenskys filed multiple motions for contempt

and an amended complaint seeking damages for trespass on account of Mr. Trombley's mowing of the thin strip of tall grass between the fence and his property, for allegedly cutting vegetation and leaving debris on their property to the north of the Trombleys' property, and for allegedly poisoning their newly planted evergreen trees.

¶ 12. The court conducted a site visit, and a hearing was held over multiple days. The court found that the stockade fence, as constructed, was a spite fence, noting that the fence significantly impairs the Trombleys' ability to see the mountains and creates “a sense of confinement and isolation” because it is tall, is made of solid wood, is close to the Trombleys' home, and stands flush to the ground. The court noted that while a fence of identical appearance and height “might provide welcome privacy in an urban environment,” in the context of the surrounding open lands and fields it conveys a “feeling of entrapment” on the Trombley side. The stockade fence's placement also allowed grass to grow along the narrow strip between the fence and the boundary, causing an “unsightly” effect. Moreover, because the fence is “flush with the ground where field grass grows,” the fence and grass together block water from draining downhill, resulting in water pooling on the Trombleys' lawn during wet periods.

¶ 13. The court discussed the utility of the fence to the Obolenskys, finding it to be limited. The court noted that the fence does block all but the top of the Trombley house from the Obolenskys' view, thereby enhancing privacy. The court also noted, however, that the evergreen trees planted by the Obolenskys on their property serve the same purpose, and will do so more effectively as they grow. The court acknowledged that the stipulated order specifically permitted the Obolenskys to erect a fence, that “everyone knew they planned to do so,” and that “[w]hile the trees they planted provide screening, they do not serve the function of marking separation of the two parcels.” The court found, however, that “the stockade fence as erected —a six-foot high solid barrier that boxed the Trombleys in and created an unsightly obstruction”—was both “much higher than necessary for the purpose of marking the division between the properties” and motivated predominantly by the Obolenskys' purpose of annoying the Trombleys.

¶ 14. In support of the court's conclusion that the predominant purpose of the fence was to annoy, the court considered a number

of factors: (1) the history of hostility between the parties (e.g., the incident in which Mrs. Obolensky exposed her backside to the Trombleys and her guest urinated on the Trombleys' property); (2) the fact that the first act of erecting the fence consisted of noisy weedwhacking at 5:30 a.m. shortly after the stipulation was signed; (3) the placement of the signs on the fence in violation of the terms of the parties' agreement, showing a “deliberate attempt to be provocative”; (4) Mrs. Obolensky's visible presence throughout the erection of the fence, including trespassing on the Trombleys' property despite the terms of the stipulation that had just...