Friendship Farms Camps, Inc. v. Parson

• Decision Date: 03 February 1977
• Docket Number: No. 1--1175A207,1--1175A207
• Citation: 172 Ind.App. 73,359 N.E.2d 280
• Parties: FRIENDSHIP FARMS CAMPS, INC. and Ronald Gabbard, Defendants-Appellants, v. Leo PARSON et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 280

359 N.E.2d 280

172 Ind.App. 73

FRIENDSHIP FARMS CAMPS, INC. and Ronald Gabbard, Defendants-Appellants, v. Leo PARSON et al., Plaintiffs-Appellees.

No. 1--1175A207.

Appellate Court of Indiana.

Feb. 3, 1977.

Rehearing Denied March 10, 1977.

Frank E. Spencer, Indianapolis, for defendants-appellants.

James R. Cotner, Cotner, Mann & Chapman, Bloomington, John O. Moomaw, Bloomfield, for plaintiffs-appellees.

ROBERTSON, Chief Judge.

Defendants-appellants Friendship Farms Camps, Inc. (Friendship) is appealing the awarding of damages to each of the plaintiffs-appellees Parsons and Combs, as well as the trial court's granting of an injunction designed to abate a nuisance.

Friendship raises four issues: Whether the judgment is supported by sufficient evidence; whether the judgment is contrary to law; whether there was error in excluding certain evidence; and whether the damages are excessive and contrary to law.

We affirm the trial court's judgment.

The record shows that Ronald Gabbard, his wife, and parents orally leased their 80 acres of rural property to Friendship Farms Camps, Inc. for use as a campground. Friendship Farms Camps, Inc. was organized and incorporated by Ronald Gabbard, his wife, and another primarily for the purpose of providing camping facilities on the Gabbard property.

Prior to 1972, youth day camps were held on the property, but beginning in 1972, a number of weekly high school marching band camps were held. The bands would arrive on Sunday afternoon and stay until Friday evening during which time they would practice both marching and playing music. During 1973 and 1974, the band camps use increased, and Friendship proposed to extend the 1975 program to include weekend band camps during football season.

The Parsons and the Combs, whose residences were located across the road from Friendship, brought an action against Friendship to abate an alleged nuisance and for damages. The essence of their testimony at trial was that during the summer months loud band music and electronically amplified voices could be heard from 7:00 or 8:00 A.M. until 9:00 or 10:00 P.M. which interfered with their sleep and use of their property during the evening hours. They had complained to Gabbard and asked that the band music be confined to an earlier hour. Gabbard made an effort to enforce quiet hours. However, the evening noise continued for the reason that the cooler period of the day was better for practice time.

The trial court awarded Parsons and Combs $600 each in damages and permanently enjoined Friendship from permitting music or the use of bull horns on its property between 5:00 P.M. and 8:00 A.M. on weekdays and any time during weekends.

Friendship first contends that the judgment is not supported by sufficient evidence in that the evidence fails to show that the Parsons and the Combs were reasonable people of ordinary sensibilities, tastes, and rabits and that no actual injury or sickness resulted from the alleged nuisance.

In determining the sufficiency of the evidence, this Court will look only to that evidence most favorable to the appellee and the reasonable inferences to be drawn therefrom. Cox v. Schlachter (1970), 147 Ind.App. 530, 262 N.E.2d 550. This court may not reweigh the evidence, but may only review the record for the limited purpose of ascertaining if there is any evidence which, if believed by the trier of fact, would sustain the judgment. MacCollum v. American Fletcher National Bank & Trust Co. (1972), 153 Ind.App. 282, 287 N.E.2d 265. If from that perspective, there is evidence of probative value to support the judgment of the trial court, we must affirm. Indiana & Michigan Electric Company v. Schnuck (1973), 260 Ind. 632, 298 N.E.2d 436.

Friendship's contention that actual physical sickness or illness must result before a nuisance may be found is without merit. This court has repeatedly stated that the essence of a private nuisance is the fact that one party is using his property to the detriment of the use and enjoyment of others. Stover v. Fechtman (1966), 140 Ind.App. 62, 222 N.E.2d 281; Cox v. Schlachter, supra. While injury to health is a factor to be considered in determining if one's property is being detrimentally used, it is not the only factor to be considered for our legislature has defined a nuisance as:

'Whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action.' IC 1971, 34--1--52--1 (Burns Code Ed.).

It is settled that noise, in and of itself, may constitute a nuisance if such noise is unreasonable in its degree. Muehlman v. Keilman (1971), 275 Ind. 100, 272 N.E.2d 591. Reasonableness is a question for the trier of fact. Muehlman v. Keilman, supra.

The evidence at trial shows that the proximity of the band music and amplified voices aggravated existing illnesses of Dr. Parsons and Mrs. Combs. Additionally, the noise interfered with sleep, required windows and doors to be kept closed on summer evenings, prohibited hearing television or conversing with another person in the same room, and made sitting outside unpleasant and visiting with others virtually impossible.

We are of the opinion that there was an adequate evidentiary foundation for the trial court's judgment.

Friendship further argues under this issue that the evidence is not sufficient to support the trial court's restrictive time limitations specified in the injunction. Friendship does not argue that the trial court had no authority to enjoin them but that a time limitation set at 8:30 P.M. should have been imposed.

As previously stated, noise as a nuisance is subject to a test of reasonableness, and reasonableness is to be decided by the trier of fact. Muehlman v. Keilman, supra. The record reveals that Parson and Combs complained that the noise interfered with their sleep, prevented them from entertaining friends, and prohibited relaxation.

We are of the opinion that the evidence and reasonable inferences to be drawn therefrom are sufficient to sustain the limited permanent injunction.

Friendship argues that the trial court's decision is contrary to law because there was no finding that its operations produced actual physical discomfort to persons of ordinary sensibilities, tastes, and habits and that the net effect of the injunction was to destroy the operation of a lawful and useful business.

Our previous discussion relating to the sufficiency of the evidence demonstrates that actual physical discomfort is not, necessarily, the sole ingredient of a nuisance. See: IC 1971, 34--1--52--1 (Burns Code Ed.).

As to whether the operation of a lawful and useful business is being destroyed, we agree that curtailment exists, but not its destruction.

It is the law in Indiana that a lawful and useful business is not to be destroyed...