Cheshire Selectmen Handle Fence Dispute
CHESHIRE, Mass. — The Selectmen brought in special legal counsel to help settle a neighborly dispute over fences and wandering cattle.
Attorney Jeffrey Grandchamp issued an opinion Tuesday in an ongoing stalemate between local farmer Edward Clairmont, Cheshire resident Bertram Beisiegal and Fence Viewer Mark Warner.
Clairmont, the owner of Gulf Farm on Savoy Road, originally came before the board in May and stated that the fence viewer overstepped his purview and demanded that he make repairs to his fence when areas of Beisiegal’s fence are also in disrepair.
“He has not built a fence and my cattle have gotten out twice. I have tried to put some cattle up there that were bigger but they still got through,” Clairmont said. “It is July and he hasn’t patched his wire, fixed his fence or pounded in new posts.”
Clairmont said initially the fence viewer visited the properties and divvied up who is responsible for what portion of the fence. Clairmont said when he asked that demands be made on Beisiegal in the fall, the fence viewer told him Beisiegal did not have to do anything until the grazing season.
Warner said the fence viewer set grazing season from May 1 to Dec. 1.
“We aren’t a four season region so there is no grazing in the winter so for us to think someone should really maintain fences in the winter time does not seem right,” Warner said. “They can fix it in May, which is generally early and maintain them until December, which is late.”
Clairmont believes it was illegal for the fence viewers to create a grazing season.
Warner said the fence viewers also decided to not make demands on Beisiegal when Clairmont was not meeting his responsibilities. Also, Beisiegal has no animals.
“He doesn’t have any animals and he was definitely ticked off that he was spending money and Mr. Clairmont wasn’t and he was just harassing him,” Warner said.
When the dispute first began, Clairmont said he went to the fence viewer who told him the decision was already made and any dispute must go to court. But, he said the court told him to go back to the fence viewer so they can resurvey the fence.
Grandchamp agreed that the fence viewer could not set a grazing season, but applauded them for trying to find a practical solution.
He said the law was initially created to help farmers keep abutting farmer’s livestock from wandering onto their property and vice versa.
“To understand it you have to look at when these laws went into effect…which was 300 years ago,” Grandchamp said. “Neighbors that both have cattle that may stray are both responsible for not letting them go on other property.”
He said the fence viewer role came into play in order to help neighbors settle this dispute and help figure out who is responsible for what portion of the shared fence.
He said if one of the neighbors does not have any livestock capable of wandering, there is no need for them to take part in the fence.
“The fence viewers are not required to order someone who does not have cattle to build a fence…Mr. Clairmont has the duty of making sure animals do not trespass on Beisiegal’s or anyone else’s property. It only comes into effect when both are trying to prevent the trespassing,” he said. "If Mr. Clairmont fails to do this then he is responsible for that along with any other law he may violate by letting cattle roam free.”
Warner said the fence viewers were never clear on this element of the law.
Clairmont said he thought if any improvements were made to disrupt natural barriers an abutter has to contribute to a fence, even if they do not have animals.
Grandchamp said that would not be fair.
“It would seem rather unfair to me for someone to go to their neighbor and say ‘I decided to buy a horse now you have to pay for half of my fence’,” he said. “That’s why I think the statute refers to ‘may’ not ‘shall’ unless they are both actively farming the land
He said research for the dispute was quite difficult and said he had to go back more than 150 years to find cases.
“The most recent case Mr. Clairmont’s lawyer found was from 1936. There has actually been two more since then - one in 1950 and another one in 2009,” Grandchamp said. “All of the other cases are from the early part of the 20th century and in the 19th century. It is very old law, and it is a little bit inscrutable.”
Grandchamp said he will conduct further research and said it may be best for the fence viewers to re-inspect the properties with this new understanding and go from there.
He added that the situation, that has turned incendiary at points, may have more to do with feuding neighbors than fence law.
“Having a bad neighbor relationship is worse than having a bad marriage,” he said. “You can divorce your spouse but you can’t divorce your neighbor.”