bLAWgazine: Every fence has two sides

Quinn M RossQuinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.


rossfirmfence20130304One hundred and eleven rolling acres of farmland had been in the Pyper family since 1868. Their neighbours, the Crausens, by contrast, only bought their eight acres of land in 1995 … new kids on the block.

That wasn’t the only difference between the Crausens and the Pypers.  The Pypers were farming people.  They had a small cow, calf operation.  Their outbuildings included a very old wooden shed that went roofless for the better part of five years, a large tin shed that sat within easy view of the neighbours, as well as some very old, unused farm machinery that lay scattered about the Pyper farm property.

The Crausens were not farmers.  They sold aluminum and glass doors and windows from a building located on their eight acres. Far from keeping old buildings on their property, they actually tore one down to build their very own dream house.

In some ways you might think the neighbours lived in two different worlds.  The Crausens, for example, did not appreciate the noise of workers that echoed from the Pypers tin shed, or the occasional visit of Pyper cattle that strayed through the Pyper fences onto the Crausen property.

Nor were the Crausens enamoured of the sounds and aromas that the Pyper livestock inevitably produced, which wafted onto the Crausen property.  Finally, the Crausens simply did not like to have to look onto the Pyper property.

Despite the differences however, they were good neighbours.  Mr. Crausen did some work for the Pypers and the Crausen’s bought meat from the Pypers.

It is true, there was a stone wall that grandfather Pyper had started to build back in the day, which had been added to over the years by other Pypers.   In reality the fence was a hodgepodge of stone wall, chain link fencing, wire which was strung along a tree line, as well as a portion of rail fencing.

The Crausens suggested to the Pypers that the neighbours together plant a cedar hedge that would act as a barrier to cattle as well as a blind between the two properties.  The Pypers demurred on the grounds that grandfather Pypers old stone wall had sentimental value, which would be lost to the cedars.

The Crausens then offered that they would be responsible for building up the old stone wall.  The Pypers agreed to that suggestion.

All went well . . . at first.  The Crausens added small stones to the wall, but after a time, the Crausens, perhaps enthused by their progress, introduced a machine into the operation that was able to pick up and deliver, not only smallish rocks, but rocks that were boulder size.

As the wall grew, the stones and boulders started to roll down the ever thickening wall onto Pyper property, as well as causing damage to the wire fencing that remained on the Pyper property.  The Pypers never agreed to that!  The friendship was over.

Mrs. Pyper, whose husband had died during the course of the stone fence saga, brought an action claiming that the Crausens had trespassed by allowing the rocks and boulders not only to roll down onto her property but to damage her wire fence as well.  She asked the court to award her damages for the removal of all the boulders Crausen placed on the stone fence, the installation of a new page wire fence, four feet high, along 450 feet, and the removal of all the debris from the site.  The amount Mrs. Pyper asked the court to award her for the trespass and resulting damage to her property was $25,000.

Was Mrs. Pyper entitled to $25,000?  There was no doubt, rocks and boulders placed on the wall by the Crausens, did roll down onto the Pyper property.  There was no doubt that rocks and boulders had damaged the Pyper wire fencing as well.

The Pypers would have to pay someone to clear the fallen rocks and boulders off of their lands and repair 450 feet of fence.  Shouldn’t it be Crausen?

On the other hand, $25,000 to remove some stones and repair a rickety old fence seemed a bit steep for Crausen to pay the Pyper.

The Judge at the trial found that the stones and boulders on the Pyper property was a trespass.  He also found that 170 feet of fencing had to be replaced, not 450 feet.  The judge reminded the parties that the plaintiff, Pyper, was only entitled to an award in an amount that would put them in the same position as if the damage to their hodgepodge fence had never occurred.

In other words, if you’re driving a beat up old Ford before a crash, you don’t get a new BMW to replace it.

As the Judge said:

“…the wire fence was old and irregular.  It represented a patchwork quilt of different materials used to repair the fence over time.  The replacement of this fence with a new fence would amount to betterment, and Crausen is not required under law to provide that.”

The Judge found that the amount required to fix the fence and remove the stones and boulders was $7,000.  He calculated that Crausen should be responsible for $5,000 of that expense.

Lessons to Be Learned:

1)    Emotional and physical boundaries are important.  Make sure you stay on your side of the fence; and make sure others stay on their side too.

2)    There are always two sides to every story.  You need to find a law firm who believes in telling your side … convincingly.

Written by on March 4, 2013 in Quinn Ross, Uncategorized - No comments

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