Dobbs v. Wiggins
| Decision Date | 15 April 2010 |
| Docket Number | No. 5-09-0416.,5-09-0416. |
| Citation | 929 N.E.2d 30,401 Ill.App.3d 367,340 Ill.Dec. 726 |
| Parties | Larry DOBBS, Frances Dobbs, Wayne Richard, and Lorena Richard, Plaintiffs-Appellees,v.Donald WIGGINS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
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Terry Sharp, The Sharp Law Firm, P.C., Mt. Vernon, for Appellant.
Douglas R. Hoffman, Campbell, Black, Carnine, Hedin, Ballard & McDonald, Mt. Vernon, for Appellees.
The plaintiffs-Larry Dobbs, Frances Dobbs, Wayne Richard, and Lorena Richard-filed a complaint against their neighbor, Donald Wiggins, to enjoin a private nuisance caused by numerous dogs kenneled on Wiggins's property. On July 21, 2009, the circuit court of Jefferson County, Illinois, entered a judgment against Wiggins that ordered him to decrease the number of dogs in his possession to no more than six and to take all the steps necessary to adequately suppress any noise caused by any barking dogs. Wiggins filed a timely notice of appeal of the circuit court's judgment. On appeal, Wiggins argues as follows: (1) that the circuit court's finding that his dogs constituted a nuisance was against the manifest weight of the evidence presented at the trial, (2) that an injunction permanently limiting him to no more than six dogs was unjust and unreasonable, and (3) that the circuit court improperly admitted audio recordings of his barking dogs. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
The plaintiffs and the defendant all reside on a dead-end road, Triton Lane, in rural Jefferson County, Illinois. Larry and Frances Dobbs live on a parcel of property that is directly north of Wiggins's property, and Wayne and Lorena Richard lived on a parcel of property that lies north of the Dobbs property. The Dobbses and the Richards have lived on their property for approximately 30 years. Wiggins purchased his property on Triton Lane in 1995, built a home and dog kennels on the property, and began raising, training, and kenneling bird dogs.
On November 19, 2007, the Dobbses and the Richards filed a complaint against Wiggins that alleged that barking dogs on the Wiggins property constituted a private nuisance. They requested the circuit court to enjoin Wiggins from kenneling dogs on his property or, alternatively, to order him to reduce the number of dogs to a reasonable number and take the steps necessary to adequately suppress the noise caused by any barking dogs.
The circuit court began a two-day bench trial on the plaintiffs' complaint on April 15, 2009. At the trial, Larry Dobbs testified that he had lived on his property on Triton Lane for 30 years and that his wife, Frances, had lived there with him for 16 years. Wiggins's property was directly south of his property line. Larry testified that he enjoyed working outside in his garden, in his flower bed, and around his fish pond, sitting outside on his deck, and hosting cookouts for family members. Wiggins's land used to be farmland, and after Wiggins purchased it in 1995, he began keeping dogs on the property. According to Larry, at first Wiggins “didn't have that many” dogs, and the dogs did not bark much. However, the noise from barking dogs kenneled on Wiggins's property grew worse over time. In an attempt to alleviate some of the noise, Larry planted a row of cedar trees on his property.
Larry told the court that his house was approximately 200 to 250 yards from a barn where Wiggins kenneled many of his dogs. Larry testified that the barking was constant, day and night. The dogs might bark for two straight hours, take a break, and start barking again, but there was never any extended period of time in which they completely quit barking. According to Larry, there was rarely a complete hour in which the dogs did not bark. The dogs barked more when they were being fed or when they thought they were going to be taken out of their kennels. In addition, deer and other wildlife running across the property and coyotes howling at night tended to stir up the dogs.
Larry stated that in 2007 the barking was at its worst. When he went outside to do chores, he did not spend any time outside enjoying his property like he had in the past. He used to enjoy having his windows at his home open, but he now keeps them shut because of the barking noise. According to Larry, the noise was worse during the summer months as compared to the winter months. Larry approached Wiggins sometime in August of 2007 to complain about the noise. During the conversation, Wiggins never said he would do anything about the noise; therefore, Larry called the animal control office. Larry told the court that the animal control office forced Wiggins to comply with kennel licensing requirements but did not do anything about the noise. He admitted that since he had filed his lawsuit, he noticed a decrease in the volume of the barking.
Larry could not say which year's noise level was the worst, but he testified that he reached his “breaking point” in July of 2007. He testified that the noise was less at the time of the trial than in July of 2007 because there were fewer dogs on Wiggins's property; however, the barking noise was still a problem that made it hard for him to enjoy his property. He testified that he could hear the barking from inside his house. Wiggins testified that on February 16, 2009, the parties inspected Wiggins's kennels in preparation for the trial, and at that time, he counted a total of 69 dogs on Wiggins's property. During the inspection, whenever someone arrived, the dogs barked for 20 to 30 minutes before quieting down. After the dogs quieted down, they could carry on a normal conversation in front of the kennels.
Frances testified that she had been married to Larry for 16 years and had lived on their property on Triton Lane since that time. Frances noticed the noise from Wiggins's barking dogs sometime after Wiggins purchased his property. Frances described the barking as “[e]xcessive, continuous, chronic barking.” Frances testified: Prior to Wiggins kenneling dogs on his property, Frances liked to open the windows to her home in the springtime and let fresh air in. Now she no longer liked to open her windows because of Wiggins's barking dogs. Frances claimed that the barking could be heard inside and that she had to turn on a radio or television to drown out the noise. She testified that a lot of nights, she could not go to sleep because of the noise.
She told the circuit court that she was an outdoor person who liked to garden, host barbecues in her yard for friends and family, read outside on her deck, and walk for exercise. However, the barking noise had caused her stress and restricted her and Larry from enjoying any outside activities in their yard. She testified that the dogs barked all day. In describing the extent of the barking, she testified that there were one or two “chronic barkers” that set off the other dogs. There were periods when all the dogs barked, and there were periods when one or two dogs barked, which caused the other dogs to bark or howl. In addition, she heard “a lot of whimpering, whining.” From the end of 2007 to the date of the trial, she had not noticed any change in the level or frequency of the barking. She believed that the barking dogs adversely affected the value of their property.
Wayne Richard testified that he had lived on Triton Lane with his wife for 30 years. Wayne testified that his house was 200 to 250 yards north of the Dobbs house. He estimated that his house was approximately 500 yards northwest of Wiggins's property. His house and the Dobbs house were the houses closest to Wiggins's property. Wayne testified that he liked to garden, mow, and race lawnmowers with his grandson in his yard. In the evenings, he liked to sit outside on his patio and listen to the sounds of nearby wildlife, including coyotes, turkeys, geese, and occasionally, nearby cattle. He testified that the coyotes howling would cause Wiggins's dogs to start barking.
According to Wayne, Wiggins purchased his property on Triton Lane approximately 15 years ago, and the noise from the dogs on Wiggins's property gradually increased over time. He stated that it was noticeable in 2007 and became a “real nuisance” to him in 2007. He described the noise as constant barking, at least one dog all the time. At times, the barking was “substantial” and sounded like thousands of dogs. He testified, “[W]e can't do anything outside without hearing the dogs.” Wayne used to like having his windows open, but with the windows open, he could hear the dogs barking from everywhere in the house. He had to close his windows, and he usually turned on his television or his radio so he could not hear the barking. Wayne had been to the Dobbses' property and heard the dogs barking inside and outside of their house as well.
Wayne testified that he had two conversations about the dogs with Wiggins. According to Wayne, Wiggins stated that he wanted to be a good neighbor and had bought some device to quiet the dogs but that he was “within his rights” regardless of how many dogs were barking. Wiggins told Wayne that he moved to the country so he could raise the dogs, and Wayne responded that he moved to the country to get away from noise.
Wayne's wife, Lorena (Lori), testified that she enjoyed various activities outside, including gardening, reading, playing with kids, and cooking...
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