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Peter H. Lanpher, et al v. Jay T. Nygard

April 22, 2013

PETER H. LANPHER, ET AL., RESPONDENTS,
v.
JAY T. NYGARD, APPELLANT,
KENDALL M. NYGARD, DEFENDANT.



Hennepin County District Court File No. 27-CV-11-25386

SYLLABUS BY THE COURT

SYLLABUS The partition fence statute, Minn. Stat. §§ 344.01--.20 (2012), does not provide a unilateral right to repair a fence located at or near a property line unless the fence is a "partition fence" as defined under the statute and the procedural requirements of the statute have been satisfied.

The opinion of the court was delivered by: Hooten, Judge

Affirmed

Considered and decided by Hooten, Presiding Judge; Cleary, Judge; and Smith, Judge.

OPINION

HOOTEN, Judge

Appellant argues that the district court erred by holding that a fence that is located on respondents' property but that runs along the property line with appellant's property, is not a partition fence. Appellant further argues that, because the fence is a partition fence, applicable law affords him the legal right to unilaterally paint and repair the fence without respondents' consent or knowledge. Because appellant failed to show that the fence at issue is a partition fence or that he complied with the requirements of the partition fence statute, we affirm.

FACTS

The parties own adjoining properties in Orono, Minnesota. A fence separates the properties and is located entirely on property owned by respondents Peter H. Lanpher and Penny A. Rogers, although, at one point it is located only three inches from the property line. The fence is made out of natural cedar, but appellant Jay T. Nygard testified that the fence was in disrepair, was "a rotted gray color," and had mold growing on it. Appellant's wife testified that she experienced allergic reactions to mold on the fence.

Appellant testified that he attempted to contact "fence viewers"*fn1 from the city of Orono, but was told that the city "didn't know what they were." In July 2011, after appellant was unable to obtain assistance from the city regarding his complaints about respondents' fence, he hired a friend to paint the fence, put in screws in several spots, and reinforce a post so that it would not fall over. Appellant never advised, or sought permission from, respondents about these activities. When respondents learned that their fence had been painted and repaired, they sent appellant a letter stating that they believed he trespassed on their property and that it would cost $5,071.86 to return the fence to its unpainted state. In addition, respondents advised appellant that they did not want any "verbal, physical[,] or written contact" with him or his wife. Despite the letter, appellant had the fence painted again in September 2011. Appellant testified that he believed this second painting was permissible because respondents had not properly maintained the fence under city code, and because the painting was done "in order to keep the fence from falling on to my property, in order to keep my wife from getting sick from the mold, [and] to basically improve the value of both of our properties."

Respondents filed a conciliation court claim for $5,071.86, plus costs, for their claimed damages to restore the fence to its natural condition. In response, appellant filed a counterclaim for $920, plus costs, for his expenses in painting and repairing the fence. The conciliation court awarded respondents $2,000, plus costs of $70, but that judgment was vacated when appellant filed a demand for removal and appeal to the district court. Following a bench trial, the district court found that appellant "decided to remedy what [he] believed to be disrepair and mold by painting a fence that did not belong to [him]." The district court concluded that the fence is not a partition or common fence and that the partition fence statute does not apply because the fence is entirely on respondents' property. As a result, the district court ordered judgment for respondents for $5,071.86, plus costs, which was the full amount of respondents' claimed damages.

ISSUE

Does the partition fence statute, Minn. Stat. ยงยง 344.01--.20, provide a legal basis for appellant to unilaterally paint and repair ...


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