Privacy Fence Violates Injunction

A defendant who erected a privacy fence along a concrete alleyway, with a gate, has violated a court injunction against unreasonable interference with plaintiff’s easement in the concrete alleyway, and the Richmond Circuit Court orders the privacy fence removed

The Supreme Court of Virginia in Hartsock v. Powell, 199 Va. 320 (1957), has said that whether a fence or gate may be erected depends on the manner in which the easement has been used and occupied. Here, the parties have brought forth no evidence from which any proof can be derived that, for example, the subject easement was created when the lands, both servient and dominant, were devoted only to residential as opposed to commercial uses.

Plaintiff has been asserting that the easement in his deed is necessary for commercial pursuits in his building construction renovation business. He uses his property as a warehouse and storage facility for construction supplies and equipment. Again, there is no evidence upon which the court can determine the intention of the parties at the time the easement was created.

Here, there is no mention in a creating instrument that stipulates a gate or fence and no evidence that the area, by history, has always been open and ungated. The court does recall that at the first hearing, defendant testified that she had a concern about vagrants on her property and contemplated a fence for security.

It is the judgment of the court that the driveway fence and gate can remain, but that the privacy fence creates an unreasonable and material obstruction to the use and benefit to the dominant landowner, plaintiff, and that it should be eliminated. The privacy fence is required to be taken down within 10 days of entry of the court order. Failure to do so will result in a fine of $500 per day until and upon complete compliance.

Iwaschenko v. Kricorian (Hughes) No. CL 12-4926-01, Aug. 1, 2013; Richmond Cir.Ct.; Bryan K. Streeter for plaintiff; Jean Kricorian, pro se. VLW 013-8-146, 3 pp.