You Be the Judge: Inde-fence-able Neighbors

“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.