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Is a Toilet Seat on a Flag Pole a Spite Fence?
(by Week of December 3, 2008 - December 03, 2008)
Alberino and Balch were not good neighbors. They feuded over a decade about Alberino’s barking dog, harassing incidents, cutting trees and defamation. Alberino put a red plastic snow fence mostly on the boundary but in part on Balch’s land and in part stapled to Balch’s trees. The Superior Court ordered her to take it down. She did, and then erected a new 448 foot long wooden fence made of unpainted plywood eight feet tall which began to warp and delaminate and was far enough off the ground so dogs could pass it. It did not enclose any area.
Vermont law provides: “A person shall not erect or maintain an unnecessary fence or other structure for the purpose of annoying the owners of adjoining property by obstructing their view or depriving them of light or air.” The trial judge ordered Alberino to take it down, saying that “the fence is an ugly wall” that served no useful purpose.
Alberino appealed claiming the fence was useful in containing dogs, and prevented Balch from spying on her, and reduced noise. Four justices, a majority of the Court, disagreed. They decided that a decade of rancor was proof that the intent of the fence was to annoy Balch, and anyhow it didn’t contain dogs, reduce noise, or enhance privacy so it was unnecessary. Since it was ugly, and served no purpose, Balch’s view was obstructed.
Justice Skoglund dissented. She agreed that the fence may have been erected to annoy Balch, but it didn’t interfere with light or air. As to the view, she disagreed that concluding it was ugly supported a finding that Balch’s view was obstructed. Beauty, she argued, is in the eye of the beholder, is completely subjective, and can’t be determined. She cited an Indiana case in which a landowner erected a ten foot pole on his property, topped with a piece of blue plywood with a toilet seat with a painted brown spot under it. The Indiana court decided “It may be the ugliest bird house in Indiana, or it may merely be a toilet seat on a post,” but the court would not engage in the “incommodious” task of judging what was or wasn’t ugly in a diverse society with many different values and customs.
Almost all human experience is informed by the subjective views and perceptions of the people involved. (That’s why we have juries.) Justice Skoglund’s dissent is conservative in insisting on a strict reading of a statute, but liberal in recognizing that the diversity of human experience shouldn’t be ignored by judges who decide cases based on their own majoritarian perceptions.
Alberino v. Balch 2008 VT 130.
See www.cheneycolumn.com
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