John Avery et al. v. Luis Medina et al. (2013)

MEMORANDUM OF DECISION

The plaintiffs, John Avery, Elisabeth Avery and Shelley Harms, sued the defendants, Luis Medina and Amanda Medina, to enforce restrictive covenants contained in the deed to the defendants' land on Winchester Road in Norfolk, Connecticut.   The matter was tried over multiple days ending on May 22, 2013.   The parties filed post-trial briefs, the last of which was received August 23, 2013.   The court has weighed the credible evidence and makes the following findings and conclusions of law.

I. Facts

The plaintiff, Shelley Harms, and her husband, David Torrey, have since at least 2003 owned and resided in a home at the intersection of Schoolhouse Road and Winchester Road in Norfolk (“Harms property”).   Adjoining their property to the south on Winchester Road is property owned by the plaintiffs, John Avery and Elisabeth Avery (“Avery property”).   Sometime in late 2002, the plaintiffs became aware that a 55.72–acre parcel of wooded undeveloped land adjoining the Avery property was on the market for sale.   The plaintiffs and Mr. Torrey decided that they would like to prevent this property from being heavily developed and to preserve a significant part of it as open space.   They agreed that they would attempt to buy the 55.72 acres but that they would need another investor to join them.

In February 2003, David Torrey approached his law partner, Luis Medina, about investing money in the project and receiving a building lot in return.   After looking at the property, the defendants, Luis Medina and Amanda Medina, agreed to invest in the project and receive a building lot.   Although Ms. Harms, Mr. Torrey, Ms. Medina and Mr. Medina are all attorneys, the parties were surprisingly lax about legal representation for this project.   By default, the co-owners left it to Shelly Harms to work with the law firm of Ackerly Brown to represent them in the project.   There was no evidence that the parties contemplated that they would have conflicting interests during the project, although this is clear in retrospect.

A satisfactory purchase price was negotiated for purchase of the property but Ackerly Brown already represented the seller and referred the parties to Attorney William Manasse.   Attorney Manasse prepared a Co-ownership agreement for the parties although he believed that he was only representing Shelley Harms.

The three couples purchased the 55.72 acres on April 6, 2003 with each couple receiving an undivided one-third interest.   It does not appear that the six parties were represented by anyone in that purchase.   The seller was represented by Ackerly Brown and, for reasons that are not clear, Attorney Manasse did not represent the six parties in the purchase.   Thereafter, the six co-owners agreed that the 47 acres would be conveyed to the Norfolk Land Trust, Inc. subject to a conservation easement granted to the Winchester Land Trust.   The three couples signed a Co-ownership agreement on April 11, 2003 in which all parties expressed their intent to subdivide the 55.72 acres into three lots:  two 4–acre building lots and 47+/- acres of undivided land would be sold or donated with the three couples sharing equally in the tax benefits obtained.   The parties expressed their intent that John Avery and Elizabeth Avery would receive the 4–acre lot adjoining the Avery property (“Avery lot”) and that Luis Medina and Amanda Medina would receive the other 4–acre lot (“Medina lot”).

Once the parties had purchased the 55.72 acres and had signed the co-partnership agreement, Shelly Harms consulted with Attorney Michael Sconyers of Ackerly Brown about preparing draft deeds to John and Elizabeth Avery, Luis and Amanda Medina, and the two land trusts.   Attorney Sconyers believed that Ms. Harms was acting as a spokesperson for all the co-owners.   As a result of advice from the Attorney Sconyers, the draft deeds to the defendants and the Averys contained different language in two respects than is found in the co-partnership agreement.   The co-ownership agreement stated that the Avery lot and the Medina lot “will contain deed restrictions providing that the lot shall not be further divided, will contain only one single-family dwelling, and not more than two additional outbuildings with a reasonable setback from the road for any structures and will be subject to a right of first refusal for each of the other co-owners ․” The co-ownership was silent as to enforcement of these deed restrictions.   Attorney Sconyers discussed with Ms. Harms that “a reasonable setback” should be made more specific and that there should be persons named to enforce the restrictions.

The deed prepared for the defendants' lot changed the language about “a reasonable setback from the road for any structures” to “any permanent structure erected on the property shall be located at least 100 feet distant from the westerly line of Winchester Road.” The deed to the defendants also provides that the restrictions in the deed “shall be enforceable by Grantors, their heirs and assigns in perpetuity, as an appurtenance to the property of the Grantors.”   The Grantors are the five parties to this case plus Mr. Torrey.   Neither Attorney Sconyers nor Ms. Harms discussed these changes with the defendants.

Although the testimony is conflicting, the credible evidence is that the three couples met in February 2004 to review the draft deeds prepared by Attorney Sconyers.   It does not appear that the defendants took the opportunity to carefully read the draft deed which would convey their lot to them.   The result of that meeting was that all parties approved the draft deeds.

The deeds were signed by the plaintiffs and David Torrey on August 8, 2004 and by the defendants on August 10, 2004.   The defendants had no legal representation in the purchase of their lot although they paid $70,000 for it.   Despite this fact, the defendants, who are both attorneys, did not read the deeds carefully prior to signing them and taking delivery of the deed to their lot.   Thus, they did not see that the “reasonable setback” had been changed to “100 feet distant from the westerly line of Winchester Road” or that the grantors were designated for enforcement.

After the parties purchased their land, Winchester Road became the subject of an application to designate it as a Scenic Road within the Town of Norfolk.   The application describes that Winchester Road is bordered by stone walls along much of its length.

Since 2004 the defendants have built a house with attached garage with dimensions of approximately 86.5' x 28,' a carriage house with dimensions of approximately 56' x 24.5,' and a shed on a cement pad with dimensions of approximately 16.3' x 9.7'.¹

In November 2011, Mr. Medina told Mr. Torrey that he and his wife were going to construct a “pole barn” in an area north of the carriage house.   Mr. Torrey told Mr. Medina that this would be a third “outbuilding” and would be in violation of the restrictive covenant in the deed.   Despite this warning the defendants began construction of a wooden pole barn with dimensions of 28' x 25.'   The plaintiffs call this structure a garage and the defendants call it a pole barn.   For clarity, the court will refer to it as the pole barn as there already is a garage.   The pole barn, which does not have walls, is built on concrete footings which support twelve wooden columns which support rafters and a pitched roof which is approximately 18 feet at its peak.   There is asphalt on the floor of the pole barn and a black tarp or other waterproofing fixed to the roof.   The evidence is that the defendants are using it to store equipment which might be expected to be stored in a garage.   The pictures in evidence show that the pole barn is now being used to store a lawn tractor, some sort of wheeled vehicle with a tarp over it, several trash barrels, tanks which appear to be propane, and assorted wooden forms or sawhorses.   The pictures show that the pole barn and its contents are visible from the road, particularly when the leaves are off the trees.

The plaintiffs notified the defendants that they considered the pole barn to be a third “outbuilding” in violation of the condition in the defendants' deed that there shall be “no more than two (2) outbuildings.”   The defendants, who have not received a building permit for the pole barn and have been issued a cease and desist order by the Town of Norfolk, refused to remove it.   In this suit the plaintiffs seek an injunction prohibiting further construction of the pole barn and an order that it be removed.

After this suit was commenced, the defendants have built a new stone wall along portions of the southerly and easterly borders of their land.   The portion of the wall along the Winchester Road side of the property is on or within a few feet of the border of the defendant's land and about 20 feet from the paved portion of Winchester Road. The wall has an average height of 3 feet with taller pillars on both sides of the driveway.   The wall is topped by a decorative white fence of wood or plastic about 1.5 feet in height.

Surprisingly, there is little credible evidence as to the construction of the wall.   The plaintiffs claim that it has a concrete core but evidence of this is not credible.   There are photographs of the wall at various stages of construction which do not show any concrete.   The credible evidence is that the wall is merely stones placed on top of one another without any fixation to the ground or internal support.   There is credible evidence that the wall is in the same general location as an old stone wall which had fallen down over the years.

The plaintiffs have amended their complaint to add allegations that the wall is a new permanent structure in violation of the restrictive covenant in the defendant's deed which prohibits new permanent structures within 100 feet of the road.

II. Discussion and Conclusions of Law

A. Enforcement Rights

The defendants raise a threshold issue that the plaintiffs do not have the right to enforce the restrictive covenants contained in the deed to their lot.   The defendants argue that the restrictive covenants are appurtenant (“running with the land”) rather than in gross (“personal”) but is unable to explain why this is significant in this case.   The deed language is clear that the restrictions shall be enforceable by the grantors to the defendants' deed “as an appurtenance to the property of the grantors.”   The grantors include the plaintiffs to this case.   Because the plaintiffs are the original grantors, it is unclear why the defendant argues that it matters whether the covenants are appurtenant or in gross.   It is apparent that the covenants are appurtenant and enforceable by the grantors or by subsequent owners of Avery lot and the Torrey property.   Therefore, the defendants have not presented a convincing argument that the plaintiffs do not have the right to enforce the restrictions contained in the defendants' deed.

B. Interpretation of the Language of the Medina Deed

1. Legal Standard

“The determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law ․ The meaning and effect of the [language in the deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in light of the surrounding circumstances.”  (Internal quotation marks omitted.)  Arnold v. Hoffer, 94 Conn.App. 53, 57–58, 891 A.2d 53 (2006).  “The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.”  (Internal quotation marks omitted.)   Contegni v. Payne, 18 Conn.App. 47, 65, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).  “[I]t is not enough that the parties had ․ [a particular] intention in fact [that is, as a unanimous state of mind], unless they have expressed it in some way in ․ [the] deed.   The question is not what did the parties actually mean to say, but what is the meaning of what they have said.”  (Internal quotation marks omitted.)  Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405 (1968).  “A restrictive covenant must be narrowly construed and ought not to be extended by implication ․ Moreover, if the covenant's language is ambiguous, it should be construed against rather than in favor of the covenant.”  (Citation omitted;  internal quotation marks omitted.)  Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d 1078 (2006).

2. The Pole Barn

The plaintiffs' first allegation is that the pole barn is a third outbuilding prohibited by the defendants' deed.   There is no question that the carriage house and the shed constitute outbuildings.   If the pole barn is an outbuilding, it is the third outbuilding on the property.   The plaintiffs argue that the pole barn is an outbuilding despite the fact that it does not have walls.   They point to its size, its roof, its columns attached to concrete footings and its use for storage as evidence that it is an outbuilding.   They refer to the definition of an “accessory building” in Webster's New Universal Unabridged Dictionary, 2nd Edition:  “A detached building, such as a shed, whose use is customary and subordinate to the principal building on the same property ․” They also refer to the definition of a “building” in the Norfolk Zoning Regulations:  “Any structure having a roof supported by columns or walls and intended for the shelter, housing, or enclosure of any person, animal, process, equipment, goods or materials of any kind.”   Both of these definitions focus on the use of the structure rather than the construction.   The defendants point out that the pole barn has no walls but spend almost no time in their brief arguing this point.

The court's function is to try to determine the intent behind the language in the deed.   In performing this function the court should consider all relevant provisions and read the deed in light of the surrounding circumstances.   Here, the language of the deed to the defendants is identical in all material ways to the language of the co-partnership agreement with respect to the restriction on no more than two outbuildings.   The term “outbuildings” is not defined but the court does not consider this word to be ambiguous as applied to the pole barn.

Recently, the Supreme Court had occasion to deal with the definition of “building” in the context of its use in C.G.S. § 8–13a.   That section deals with nonconforming buildings in a zoning context.   The Supreme Court looked to dictionary definitions.  “Webster's Third New International Dictionary (2002) defines building as a constructed edifice designed to stand more or less permanently, covering a space of land [usually] covered by a roof and more or less completely enclosed by walls ․ distinguished from structures not designed for occupancy ․ Black's Law Dictionary (9th Ed.2009) defines building as [a] structure with walls and a roof, [especially] a permanent structure.   Therefore, the dictionary definitions support a construction of the term building as it is used in § 8–13a(a) as an edifice with walls and a roof.”  (Internal quotation marks omitted.)  Tine v. Zoning Board of Appeals of the Town of Lebanon, 308 Conn. 300, 308 (2013).   The Supreme Court stated:  “We therefore conclude that the plain meaning of the term building as it is used in § 8–13a(a) refers to an edifice designed to stand permanently, with a roof and walls.   It is undisputed that the deck in the present case has neither walls nor a roof, and we therefore conclude that the deck, viewed by itself, is not a building under the statute.”  (Internal citations omitted.)   Id., 309.   This is not a surprising result considering that the function of a deck is totally different from the function of a building.   Also, it is unclear if the result would have been different if the deck had a roof.

The plaintiffs argue that their intent has always been to conserve as much of the 55 acres as possible and to keep the two lots as free from development as possible.   The plaintiffs testified that the defendants shared these goals, but it does not appear that this true.   The defendants wanted a residential building lot and to share in the tax benefits from the creation of a 47–acre conservation area.   The massive scale of their house and carriage house are enough to convince the court that the defendants did not entirely share the conservation goals of the plaintiff and Mr. Torrey.   But, there is enough evidence for the court to conclude that the plaintiffs and defendants did share the same intent with regard to the number of buildings to be placed on the site.

The surrounding circumstances in the Tine case are quite different from those in this case.   This case involves the use of the word “outbuilding” in a private deed, not a zoning statute.   Here, three couples were to become neighbors on Winchester Road in a rural area of rather large residential lots and 47 acres of conservation area behind the homes.   It is clear that the outbuilding restriction was designed to limit the intensity of the use of the lot conveyed to the defendants.   Although there was to be no limit on the size of the house to be constructed by the defendants, it is not credible that the parties could have intended that the owner of the defendants' property would be able to construct an unlimited number of large wooden structures attached to the ground with concrete footings.   This would be contrary to the obvious intent of the parties to limit the intensity of the use of the property.

Unlike the situation in the Tine case, the structure in question in not a deck with no roof.   A deck is designed for sitting.   It does not have the same function or use as a building.   The pole barn at issue here has a roof and is designed to store things.   This is the same function or use that a garage would have.   It has a roof which has the obvious intent of providing some protection from precipitation.   The absence of walls presents a bit of a hybrid situation, but not one which changes the essential use of the structure as a building.   For these reasons, the court concludes that the meaning of the word “outbuilding” as used in the defendants' deed includes the pole barn constructed by the defendants on their property.   This interpretation is sufficiently clear that it applies despite the rule of construction that restrictive covenants must be narrowly construed against rather than in favor of the covenant.   For these reasons, the pole barn constitutes the third outbuilding on the defendants' land.

3. The Stone Wall

The defendants' deed provides that:  “Any permanent structure erected on the property shall be located at least 100 feet distant from the westerly line of Winchester Road.” The plaintiffs' second allegation is that the stone wall built by the defendants is a permanent structure which is located within 100 feet from the westerly line of Winchester Road. The plaintiffs argue that the use of the word “structure” rather than “building” in this provision indicates an intent to make this provision as broad as possible.   They argue that the surrounding circumstances support the intent of this provision to preserve the roadside in its natural state.   They argue that it is “geometrically crafted and visually intrusive, giving it a structural presence and scenic dissonance that is out of character with the surrounding land and contrary to the intent of the deed.”

The defendants argue that the stone wall is merely a rebuilding of an old stone wall which had existed before the parties bought the land and that the wall should not be considered a permanent structure.   They also argue that the plaintiffs have unclean hands, that they breached an implied duty of good faith and fair dealing, and a lack of consideration.²

In order to interpret the meaning of word “structure” as used by the parties in the defendants' deed, the court will begin by consulting the same dictionaries used by the Supreme Court in the Tine case.   We find that Webster's Third New International Dictionary (2002) defines a structure as “something constructed or built.”   Black's Law Dictionary (9th Ed.2009) defines a structure as “any construction, production, or piece of work artificially built up or composed of parts purposefully joined together.”   Obviously, these definitions are quite broad and could include a stone wall.

There are cases in which the word “structure” has been interpreted.   For example, in Historic District of Brookfield v. Morenas, 50 Conn.Sup. 398 (2007), a stone wall was found to be a “structure” as that word is used in the statutes regarding historic districts, C.G.S. § 7–147p et seq.   In several cases interpreting C.G.S. § 52–480, a fence has been found to be a “structure” as that word is used in that statute permitting injunctive relief against structures which are intended to annoy or injure the owner of adjacent property.   See, e.g. DeCecco v. Beach, 174 Conn. 29 (1977).   In a case of particular importance, the Appellate Court has found that a large system of playground equipment constructed within an easement area can be a “permanent structure” prohibited under the terms of the easement.   The court discussed at some length the proper interpretation of the words “permanent structure.”   Zirinsky v. Carnegie Hill Capital Asset Management, LLC, 139 Conn.App. 706 (2012).   The court stated:  “In our view, the appropriate analytical approach to the question presented is a fact specific one.   The foregoing definitions persuade us that a court, in considering whether a given structure is permanent in nature [for purposes of interpreting an easement which prohibits ‘construction of any permanent structure’], should evaluate a variety of factors, including—but not limited to—the structures size, weight, durability, stability and mobility.   Only after weighing such factors may a court render a factual finding as to whether the structure is a permanent one.”  Id., 292–93.

As directed by the Appellate Court in the Zirinsky case, the court has considered the necessary factors.   The wall is large in size, is undoubtedly heavy and is immobile.   Its stability and durability are less certain as there was no evidence submitted.   Despite these factors weighing in favor of the plaintiffs, the surrounding circumstances of the defendant's deed, the addition of the modifying word “permanent,” and the rules of construction convince the court that the stone wall should not be considered a permanent structure as that word is used in the deed.

There is nothing about the surrounding circumstances which would lead to the conclusion that a stone wall at or near the boundary line of the property would be contrary to the intent of the parties.   Winchester Road is a rural area with large lots which are bordered by stone walls along much of its length.   There was an old stone wall on at least part of the front boundary line of the lot created for the defendants.   It was in disrepair, but is readily apparent from photographs in evidence.   It and other stone walls in the area are shown on older maps which were introduced into evidence.

The addition of the word “permanent” to modify the word “structure” greatly limits in scope the sorts of structures which are prohibited.   The word “permanent” was added to the deed after discussions between Ms. Harms and Attorney Sconyers.   The co-partnership agreement simply refers to “any structures.”   The addition of the word “permanent” was made without any discussion with the defendants.   The court finds that Ms. Harms was the drafter of the deed without any input from the defendants.   The court will find that the words “permanent structure” are ambiguous and that it is appropriate to apply the rule of contract construction that ambiguities are construed against the drafter.  Southwick at Milford Condominium Assn, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 323 (2009).   This rule of construction is in addition to the rules of construction that a restrictive covenant must be narrowly construed and, if ambiguous, construed against rather than in favor of the covenant.  Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d 1078 (2006).

Whether the stone wall constructed by the defendants is permanent depends in part upon the plaintiff's argument that it was constructed with a concrete core.   A concrete core would provide an internal permanence and an attachment to the ground which one would expect with a permanent structure.   The evidence does not support the claim of a concrete core.   The photographs of the wall under construction do not show any concrete.   The plaintiffs offered no credible evidence of concrete despite having the ability to conduct discovery concerning the methods of construction.   The court has specifically found that the wall is simply one stone placed upon top of another without any fixation.   Without any permanent core and without some fixation to the ground, it is well known here in New England that a stone wall will fall over time.³  The stone wall constructed by the defendants has much more of a rectangular, decorative appearance than typical farm walls but will be subject to the same freeze-thaw forces of nature as any other stone wall not given any means of support other than the force of gravity.   The plaintiffs failed to present any credible evidence that the stone wall constructed by the defendants is permanent although they have the burden to prove their case by a fair preponderance of the evidence.   Coupled with the surrounding circumstances which do not weigh in favor of the interpretation that a stone wall would be out-of-place in front of a residence on Winchester Road in Norfolk, and applying the rules of construction set forth above, the court is unable to conclude that the defendant's wall is a permanent structure.

C. Bad Faith

The plaintiffs seek common-law punitive damages against the defendants for what they allege were the defendants' intentional and malicious violation of their rights.   They claim that the defendants built the pole barn with notice and knowledge that they were violating the terms of their deed by constructing a third outbuilding on the property.   They point to Mr. Torrey's discussion with Mr. Medina prior to the start of construction in which Mr. Torrey told Mr. Medina that the pole barn would be considered a third outbuilding by the plaintiffs.   They also argue that the defendants acted in bad faith during the litigation by delaying the proceedings and trying to build up the plaintiffs' costs.   The defendants deny that they engaged in any intentional or malicious actions or that they sought to delay the litigation.   They argue that their legal position on their right to build the pole barn is correct and that it was the plaintiffs who engaged in bad faith in many different ways.

Common-law punitive damages may be awarded when the evidence show reckless indifference to the rights of others or an intentional and wanton violation of those rights.  Vandersluis v. Weil, 178 Conn. 353, 358 (1978).  “A wilful and malicious injury is one inflicted intentionally without just cause or excuse.   It does not necessarily involve the ill will or malevolence shown in express malice.   Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved.   Not only the action producing the injury but the resulting injury must be intentional.”  Markey v. Santangelo, 195 Conn. 76, 77 (1985).   In Connecticut, punitive damages are limited to the plaintiff's litigation expenses less taxable costs.  Berry v. Loiseau, 223 Conn. 786, 827 (1992).

In this case, the court reaches a mixed result.   The pole barn is found to be a violation of the restrictive covenant but the stone wall is not.   The court does not consider that the positions taken by the parties with respect to either the pole barn or the stone wall constitute intentional, wanton or malicious violations of the rights of the other parties.   Nor does the court find that the construction of the pole barn by the defendants constitutes intentional wanton or malicious violations of the rights of the plaintiffs.   Although the court does not agree with the defendants' position with respect to the pole barn, it is not wanton and malicious.   For these reasons, the court declines to award punitive damages.

D. Mr. DiCara's Bill

Reserved to the time of trial was the issue of the liability for the bill for the services of Mr. John DiCara, a surveyor who was given permission to come onto the defendants' property and take photos and measurements.   The defendants had agreed to pay his bill but now claim that he went beyond the scope of his authority by measuring structures which are not in dispute.   The court will find that Mr. DiCara's services were within his authority and proved to be very helpful to the court.

III. Conclusion

Judgment shall enter in favor of the plaintiffs as follows:

1. Within the next 30 days the defendants shall remove from their property the pole barn identified in this memorandum.

2. The defendants are ordered to pay the entire unpaid balance of Mr. DiCara's bill within 30 days.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The defendants have also built a large wooden children's playscape, a covered gazebo, an arbor covering a patio, and a wishing well.   These are all located behind the house and carriage house and do not appear to be visible from the road.   The plaintiffs do not claim that these are “outbuildings.”.  FN1. The defendants have also built a large wooden children's playscape, a covered gazebo, an arbor covering a patio, and a wishing well.   These are all located behind the house and carriage house and do not appear to be visible from the road.   The plaintiffs do not claim that these are “outbuildings.”

FN2. These arguments relate to the insertion in their deed of a 100–foot setback in place of a “reasonable setback” in the co-partnership agreement.   The defendants argue that the plaintiffs made this change, without approval, and that they did so with the intent to deceive.   It is unclear why the defendants argue that the reasonable setback language of the co-partnership agreement would have produced a different result in this case.   But, because of the way that the court deals with the stone wall issue, it is unnecessary for the court to decide these defenses of the defendants..  FN2. These arguments relate to the insertion in their deed of a 100–foot setback in place of a “reasonable setback” in the co-partnership agreement.   The defendants argue that the plaintiffs made this change, without approval, and that they did so with the intent to deceive.   It is unclear why the defendants argue that the reasonable setback language of the co-partnership agreement would have produced a different result in this case.   But, because of the way that the court deals with the stone wall issue, it is unnecessary for the court to decide these defenses of the defendants.

FN3. The famous first few lines of the poem “Mending Wall” by Robert Frost attest to this fact:  “Something there is that doesn't love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun, and makes gaps even two can pass abreast.   The work of hunters is another thing;  I have come after them and made repair Where they have left not one stone on a stone, But they would have the rabbit out of hiding, To please the yelping dogs.   The gaps I mean, No one has seen them made or heard them made, but at spring mending-time we find them there.”.  FN3. The famous first few lines of the poem “Mending Wall” by Robert Frost attest to this fact:  “Something there is that doesn't love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun, and makes gaps even two can pass abreast.   The work of hunters is another thing;  I have come after them and made repair Where they have left not one stone on a stone, But they would have the rabbit out of hiding, To please the yelping dogs.   The gaps I mean, No one has seen them made or heard them made, but at spring mending-time we find them there.”

Pickard, John W., J.