Spring 2008 - #2. A Legal Fence.

Author:-Judge Hoyt Wheeler, Keenan v. Cavanaugh (1872)(fn1)

Vermont Bar Journal


Spring 2008 - #2.

A Legal Fence

THE VERMONT BAR JOURNAL #173, Volume 34, No. 4 SPRING 2008


A Legal Fence Cattle by nature are wont to stray abroad. -Judge Hoyt Wheeler, Keenan v. Cavanaugh (1872)(fn1)

A brindle steer and a red steer belonging to Thomas Mooney strayed into Edward Maynard's close in the Town of St. Albans in 1829. Maynard refused to return them, claiming damages. After a trial and an appeal, the Vermont Supreme Court freed the cows. Maynard had no right to distrain them because of how they reached the Maynard field.(fn2) They had passed through a fence that separated these adjoining landowners-- a fence that had once been maintained by Mooney's predecessor in title, but was not a legal fence, in the sense that it did not fit the standards of the Vermont fence law, nor had it been the subject of any formal or informal agreement or division by the St. Albans fence viewers.(fn3) It was just a fence, and it failed to prevent Mooney's cows from entering Maynard's enclosure.

Maynard claimed the common law gave him rights to recovery. In England, if animals break your close, the owner is responsible for the damage. Mooney pointed to Maynard's defective fences, and asserted the Vermont fence law. Although Mooney had not restrained his cattle, Mooney's point was that Maynard had not prevented them from entering his field.(fn4) That was the foundation of the Vermont fence law, that unless and until there is some understanding about whose duty it is to maintain a fence, the obligation falls on each landowner to keep whatever beasts might roam on the public highway or through the woods adjoining a farm off the land.

Loose animals were the rule, rather than the exception, in early Vermont. The law recognized and expected it, with some exceptions, such as stallions or sheep.(fn5) Judge Titus Hutchinson's decision in Mooney v. Maynard explained, "The cattle of many persons, especially the cows of poor persons, in all parts of the state, have always been permitted to run upon the highways and commons; no man presuming to take them up damage feasant, unless his own fences would stand the test of the law."(fn6)

As long as they stayed on the highway, or in unenclosed lands, cattle and horses roamed free.(fn7) Only when fences were established, and violated, would liability follow, and even then, a process designed to be local and to "settle a dispute before it got to the lawing stage," as Plainfield Fence Viewer John Gould described it in a February 1942 column in the New York Times, still produced dozens of lawsuits and a jurisprudence of Vermont fence law.(fn8)

This freedom to roam the highways, beyond your own land, was first limited in 1819 when the legislature prohibited certain animals from running at large within villages.(fn9) This included horses, mules, asses, cattle, sheep, swine, and geese. Neat cattle could run at large between the first of May and the first of November, even within the village. The village would have to be laid out and established first, and contain ten dwelling houses, to qualify for this protection. This was the original reason for village organization. Then, in 1839, the rest of the roaming hoard was legally restrained from towns.(fn10) That date may mark the beginning of the modern world. Under the laws of 1839, the voters would have to decide at town meeting to allow swine to run at large on the public highways.(fn11) The law provided that anyone finding geese running at large in villages could just sweep them up and keep them, without any formal process at all, as they were regarded as forfeited.(fn12) The world was changing. The old ways were giving way to a new order.

Fences Matter

You can appreciate the importance of fences by how they were treated in official documents and by the settlers and their enemies. The Massachusetts charter to Westminster, Vermont, issued in 1735, required settlers to fence in or break up for plowing at least five acres within three years or risk loss of title to the land.(fn13) In 1773, Philip Nichols was a New York proprietor living in Socialborough (present day Pittsford and Rutland) when he was attacked by Silvinas Brown and William Post, who ordered him to pull down his fences and soon after began to remove them.(fn14)

Experience Davis improved land in Randolph in 1775 as a squatter. He claimed the right to all the land he could fence in three days. When he was done, he had enclosed 1,533 acres. Daniel Pierce Thompson, who wrote the early history of Randolph, inferred that Davis fenced according to law, "so brush would touch."(fn15) That suggests Davis's fence was made of the branches from the trees he cut down. Those early fences were not acceptable a few years later.

At a town meeting in 1777, Guilford voters ordered those landowners who had run a "Bush Fence Round Lots" to hold their cattle in, to quit the land or at least "not proceed in that manner any more."(fn16)

When St. Francis Indians attacked Swanton in 1788, they burned the settlers' fences.(fn17) This was intended to discourage further settlement, and it may well have. Who can fathom the amount of work it took not only to clear the land but to build good fences surrounding the pasture, meadow, and croplands of the settlers?

Who would think there would come a time when fences were not as respected?

Partly Unconstitutional

In 1989, in Choquette v. Perrault, the Vermont Supreme Court declared the fence viewer law unconstitutional, as a violation of Article 7 of the Vermont Constitution, as applied to adjoiners who do not farm.(fn18) It did not wipe out the entire law of fences, although that is not what most remember about it. The decision does not even eliminate the office of fence viewer. The case reveals our changing landscape. It reminds us Vermont is not a land of farmers anymore.(fn19)

The Choquette case made two trips to the Vermont Supreme Court. The first time the plaintiffs were sent back to the select board to ask for a waiver, as the statute allowed. Plaintiffs claimed that was a "futile gesture," but the Court stood firm on the need to exhaust administrative remedies.(fn20) A waiver is available, after what the statute calls "reasonable notice" to everyone interested, although the law is silent on standards for releasing landowners from the presumptive duty to fence.(fn21)

The trial court attempted to save the fence law by enumerating the benefits to non-farmers. These included: freedom from unwanted intrusions by a neighbor's cattle and from trespassing neighbors (increasing privacy); elimination of "devil's lanes," those spaces between parallel fences where cattle could become trapped; diminution of litigation from damages by straying cows and from disputes over boundaries; and the increase in vitality in Vermont agriculture.(fn22) But the Supreme Court, in Justice Ernest Gibson's decision, felt compelled to state the simple truth that the law was enacted to benefit landowners with livestock, and was no longer enforceable.(fn23) The law, as applied to landowners without livestock, was "burdensome, arbitrary and confiscatory," and no longer "reasonably related to the promotion of a public purpose."(fn24)

Some days it seems that the course of government leads inexorably toward expansion of public power into private domains--as seen in land use controls, for instance, or anti-smoking regulation--all under the cover of the police power. The diminution of the fence law represents what Justice Gibson called the "converse of the axiom": times change; what was once constitutional is no longer so; the police power no longer justifies the regulation; the non-farmer need not erect fences.(fn25)

Choquette is a small victory for suburbia, and not such a loss for the farmers. The fence law was never intended to settle all disputes. There are other remedies.

Vocabulary Lesson

There are two sources of the law of fences: common law and statute law. Vermont adopted its first trespass and fence law in 1779.(fn26) It adopted the common law on March 8, 1787.(fn27) Weighing which law predominates, particularly in the reported decisions, sometimes defies prediction.

Trespass is a common law action to recover damages for a direct physical interference with person or property.(fn28)

When that interference involves fences, a lawsuit is brought as trespass quare clausum freget. Blackstone explained:

Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close: the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbor's: and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man's land adjoins to another's in the same field.(fn29)

Precision was critical in common law pleading; using the right words made the difference between proceeding with an action and dismissal.(fn30)

The Latin words mean why he broke the close.(fn31) If the plaintiff could show the close was broken, the defendant would have to show an excuse to escape liability. The best excuse from 1779 forward, in Vermont, was plaintiff's failure to maintain the fence.

The neighbor might distrain animals, and refuse to release them until impounding fees or damages for destruction of a fence were paid.(fn32) A law...

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