Indiana Motorcycle Ass'n v. Hudson

• Decision Date: 29 January 1980
• Docket Number: No. 1-479A121,1-479A121
• Citation: 399 N.E.2d 775
• Parties: INDIANA MOTORCYCLE ASSOCIATION, John Buffaloe and Tony Ford, Defendants- Appellants, v. Joseph E. HUDSON and Emmajane Hudson, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 775

399 N.E.2d 775

INDIANA MOTORCYCLE ASSOCIATION, John Buffaloe and Tony Ford Defendants- Appellants, v. Joseph E. HUDSON and Emmajane Hudson, Plaintiffs-Appellees.

No. 1-479A121.

Court of Appeals of Indiana, First District.

Jan. 29, 1980.

William K. Steger, and William H. Kelley, Bloomington, for defendants-appellants.

Robert D. Mann, N. Kirkpatrick Brown, Bloomington, for plaintiffs-appellees.

NEAL, Judge.

Defendants-appellants Indiana Motorcycle Association (IMA), John Buffaloe (Buffaloe), and Tony Ford (Ford) appeal from a verdict in a bench trial in which plaintiffs- appellees Joseph E. Hudson and Emmajane Hudson (Hudsons), husband and wife, were awarded $5,350 in compensatory damages.

Two issues are raised for our review:

1) Whether the decision of the trial court was contrary to law in granting the Hudsons compensatory relief in the absence of a showing that any of the trespassers on the Hudsons' land were acting within the control or authority of the defendants.

2) Whether the award of $5,350 in damages to the Hudsons was excessive and contrary to law.

We affirm in part and reverse in part.

The evidence most favorable to the judgment is as follows:

The parties owned adjoining tracts of land which were separated by fencing with the exception of one boundary which was identified by a plow ridge. Buffaloe, Ford, and another man purchased their land in 1970 and deeded it to IMA shortly before IMA's incorporation. At that time Buffaloe and Ford were incorporators, directors and officers of IMA, and it appears that they were the leadership of the corporation until it was dissolved in 1976. In March 1978, the land was transferred to Buffaloe and Ford.

Joseph Hudson testified that trespassing motorcyclists made trails on his land forming ruts several inches deep. Signs and paint were placed on plaintiffs' trees as trail markers. Trees planted as part of a forestry program were destroyed. Fences were torn down, and as a result, Hudson lost $1,800 of income since he was unable to rent pasture land or keep cattle of his own. Hudson's son who also lived on the property, testified that on occasion motorcyclists had ridden through his yard. In one instance Hudson photographed trespassing motorcyclists who identified themselves as members of IMA. Also, Buffaloe testified that three IMA members were arrested for trespassing on the Hudsons' property. Nonmembers were arrested on the Hudsons' land as well. When trespassers were discovered by IMA members on IMA land, they were given the option of leaving or joining IMA on the spot by paying the $5.00 membership fee. Also, IMA sent a letter to members and nonmembers encouraging use of the IMA land.

Buffaloe and Ford argue that they cannot be held liable as directors and shareholders for the wrongs of the corporation. However, they failed to raise that issue in their motion to correct errors so we will not address that argument on appeal. Ind. Rules of Procedure, Trial Rule 59(G). ¹

I.

On an appeal from a trial before the court, we will not disturb the judgment of the trial court unless that judgment is shown to be clearly erroneous. Tarrant v. Self, (1979) Ind.App., 387 N.E.2d 1349.

The pertinent part of the trial court's judgment reads as follows:

"6. That the Plaintiffs are entitled to a permanent injunction against the Defendants, individually and jointly, to enjoin them from allowing their real estate, hereinabove described, to be used in a manner by members of the Indiana Motorcycle Association or others so that said Defendants, the members of the Indiana Motorcycle Association, or others trespass upon or damage the Plaintiffs' land by causing waste thereon." (Emphasis added.)

Defendants' main contention is that the trial court's decision was contrary to law since there was no indication that any of the trespassers on the Hudsons' land were under their authority or control. The evidence clearly shows, however, that IMA members trespassed on the Hudsons' land. Thus, the court's finding that IMA is liable in trespass is not clearly erroneous.

Defendants argue that the judgment makes them insurers of plaintiffs' land, but the judgment indicates that defendants are simply required not to allow persons to trespass on plaintiffs' land. Obviously, defendants cannot completely prevent trespassers from coming onto their land. However a reasonable interpretation of the injunction would be that defendants are liable for members and invitees, and defendants need only take reasonable steps such as maintaining fences and posting signs to show that any trespassers on their land are there without their permission. Thus, we cannot say that the decision of the trial court was contrary to law.

Plaintiffs argue that the activities of defendants constituted a nuisance. Defendants contend that plaintiffs cannot shift the theory of their case from trespass to nuisance on appeal. However, this court will affirm the judgment of the trial court on appeal if the decision can be sustained on any theory. See Monarch Indus., etc. v. Model Coverall Service, (1978) Ind.App., 381 N.E.2d 1098.

A nuisance has been defined as follows:

"A nuisance, in contemplation of law, literally is an annoyance, and signifies such a use of property or such a course of conduct as, irrespective of actual trespasses against others, or of malicious or actual criminal intent, transgresses the just restriction on the use of property or the conduct of business due to the limitation which the law imposes on the enjoyment of property, where it interferes with the rightful enjoyment of the property of others. The term 'nuisance' is applied to anything injurious to health, or indecent or offensive to the senses, or which is an obstruction to the free use of property, so as to interfere essentially with the comfortable enjoyment of life or property, . . ." (Footnotes omitted.)

22 I.L.E. Nuisance § 1 (1959), and

". . . as a general rule, every unlawful use by a person of his own property in such a way as to cause material annoyance, discomfort, or hurt to other persons or the public generally, and every enjoyment by one of his own property, which violates the rights of another in an essential degree, constitutes a nuisance, . . ." (Footnote omitted.)

22 I.L.E. Nuisance § 4 (1959)....