You Be the Judge: Inde-fence-able Neighbors

The driveway vs. the fence: how would you rule?


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“You Be the Judge” is a feature in The Saturday Evening Post that looks at the details of a legal case where the solution is not always clear-cut. Who’s right? You be the judge!

In 2011, Karen and George Stuck bought a home on a corner lot in Rochester, New York. After moving in, the couple made plans to build a privacy fence around their backyard. They learned that the city of Rochester permitted zero lot line fences, which meant they could put the fence directly on their property line, and they planned to take advantage of it.

Checking their property survey, they discovered that a narrow triangular strip of their neighbor’s driveway — about one-thousandth of an acre — was encroaching on their land. The Stucks informed their neighbor, Tracy Hickmott, about the encroachment and their plans to build a fence and asked her to remove the sliver of asphalt from their property. Hickmott was shocked and determined to hold her ground. She had purchased her home in 1999, and the existing driveway had been in place since the house was built in 1950.

When Hickmott refused to cooperate, George Stuck took matters into his own hands, driving spikes into the blacktop driveway to delineate the property line and make way for a six-foot-tall wooden stockade fence. In response, Hickmott parked her car at the base of her driveway to block the fence’s completion. After a three-day standoff, Stuck called the police, and Hickmott was arrested and charged with second-degree harassment. Stuck also got a restraining order against Hickmott, which allowed him ample time to erect the fence along the driveway.

In November 2012, Hickmott filed a lawsuit against the Stucks, claiming that the driveway had been in place and used by her and previous owners for so long that the disputed land had become hers under the doctrine of adverse possession. Hickmott also complained that she barely had enough room between her house and the fence to pull her car into the driveway. She asked the court for compensation for the damage to her driveway during the installation of the fence and damages for the arrest and legal fees. In addition, she requested that the Stucks move the fence far enough away from her driveway that she could open her car doors when parking next to her house.

The Stucks countersued, asking the court to dismiss Hickmott’s action, to order her to remove the encroaching portion of the driveway, to affirm their ownership of the disputed land, and to grant legal fees and damages.

The Decision

In November 2015, the New York Supreme Court granted Stuck’s motion to dismiss but ordered that Hickmott be allowed a right of continued use of the driveway as situated and that neither party impair the quiet enjoyment nor obstruct the use of the driveway or the fence. In 2016, a further court order permitted the Stucks to enter Hickmott’s property for three hours every two years for the purpose of painting their fence. Hickmott appealed. In February 2018, the court upheld the decision, ruling that common-law property rights allow property owners to access abutting properties in order to make improvements or repairs.

—Stuck v. Hickmott (2018)


This article is featured in the May/June 2018 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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  1. This was a bad decision because it allows the Stucks mandatory use of someone else’s property in order to maintain a fence which they should have known they could not do on their own property, and they knew it when they began to build it. So the fence can stay — although I believe the Stucks had no right to use the neighbor’s property to build it — but in no way should the neighbor be forced to allow them to maintain it.

    She should not be forced to allow anyone on her property when they created the need for it. Abominable day for property rights.

  2. It sounds sketchy and starting out on the wrong foot for the new neighbors to take over her driveway. If they were smart, they would’ve put the fence up 1′ into their property and saved themselves a costly and embarrassing nightmare. Not a good look for the new neighbors. Also, I’m surprised by the judge’s wishy-washy decision. The original neighbor had the right to use her own driveway. Too bad the judge took the easy route to leave the damage as done, leaving the aggrieved neighbor still upset. I wouldn’t be surprised if this isn’t the end of the story.

  3. I am going through something similar to this except my neighbor has been intentionally hitting my house with her car which I have on camera, pounding on the sidewall of my house which I have on camera, ripping my gutters down, stealing my fence from the backyard which police had to go retrieve, she cut the exhaust pipe off to my furnace which she admitted to police, and this past weekend she tried to kill me in my own backyard! I ended up being charged with a felony assault for self-defense!

  4. The New York York Supreme Court’s 3-part decisions on this case between 2015 and ’18 seem like well thought out, compromise solutions to an unfortunate situation between these neighbors that both parties can hopefully tolerate and manage.


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