The times. [volume] (Washington [D.C.]) 1897-1901, 1900-08-07
HEIGHT OF PARTY FENCE.
The Attorneys Opiuion on Division
of Enclosed LoSts.


The acting Attorney for the District,
Clarence a. BrandenbuFg. yesterday sub
mitted to the Commissioners an opinion
upon the application of Edgar speiden. jr.,
for permission to erect a division fence be-
tween lots 81 and 50. in square 1925
The facts in the case as Stated by Cap
tain Gaillard. acting Engineer Commission
err are these: The District raised the
grade OF the public alley in square 1928
about two feet. The owner of lot so.
abutting the public alley, thereupon filed
in his lot to conform with the new grade
of said alley, Mr.. Speiden, the owner of
lot 81. then raised the grade of his lot
presumably to conform with the grade OF
lot so and the public alley, and erected
between lot 81. belonging to his, and lot
81 belonging to William Musser wooden
retaining wall about three feet in height
to keep his fill from encroaching upon lot
so. He now desires permit TO erect
fence seven feet high on the top of this
retaining wall, being the present grade OF
his lot. Mr. Musser claims that in deter
mining the height Of the fence the meas
urement should be taken from, the grade
of his lot, being the original grade, in
stead of from the grade of the lot belong
ing to Mr.. S. Speiden. as It now exists.
In his opinion the attorney says: THE
question at issue is whether such fence
should be measured as claimed by Mr.
Speiden from the surface of his fill of lot
81 or should be measured from the surface
of lot so, as claimed by Mr.. Musser. Sec
ton 166 of the Building Regulations, which
relates to division or party fences, pro-
vides that no fence erected under the au-
thority of the Building Regulations shall
be less than five feet or more than seven
feet in height.
This regulation evidently contemplates
division fences between the lots of adjoin-
ing proprietors irrespective of the grade
between them, while undoubtedly the
obstruction of light and ventilation, as sug
gested, were considered in connection with
the regulation in determining the height
Of the fence, the purpose of its enactment
was TO limit the height of fences erected
at the joint expense OF contiguous prop
erty owners to mark the boundary line be-
tween the lots and to separate them, thus
enabling each owner to enclose his prop
erty. This is further apparent from the
fact that subject only TO reasonable build
ing regulations a man may erect on his
own lard at his own expense up to the
division line as high fence as he pleases.
This right to enclose property by erect
ing a fence on the division line to be main
tanned at the Joint expense of adjoining
owners did not exist at common law, but
exists by virtue of the regulation quoted
and made pursuant to authority Of law.
This right exists in every case, and If
the position asserted by Mr. Musser was
the correct one no division fence at all
could be erected under the regulation
quoted. if it so happened that there was a
difference of more than seven feet between
the grade of one lot and the grade of the
lot adjoining. uo5 =.
In my opinion. therefore, in determin-
ing the height of the stenue 1t is to be
measured from the present grade OF the
land on the division line between the lots
81 and 81. and as lot 81 has, been filled to
the division line the measurement should
be from the top Of such fillun such hne.'