Rattigan v. Wile
| Decision Date | 25 January 2006 |
| Citation | 841 N.E.2d 680,445 Mass. 850 |
| Parties | John E. RATTIGAN, Jr., trustee,<SMALL><SUP>1</SUP></SMALL> & another,<SMALL><SUP>2</SUP></SMALL> v. Evan WILE, individually & as trustee.<SMALL><SUP>3</SUP></SMALL> |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sander A. Rikleen, Boston (John J. Griffin, Jr., with him) for the defendant.
John Connolly, Jr., Wakefield (Kevin P. Geaney with him) for the plaintiffs.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.
We conclude in this appeal that activities on one's property that create or maintain unreasonable aesthetic conditions for neighbors are actionable as a private nuisance. We need not reach the merits of the defendant's res judicata claim because it was not pleaded below. The judge properly awarded damages and issued an injunction, although we modify both slightly.
Facts. This case comes to us after a long history of litigation between the parties that culminated in a jury-waived trial in the Superior Court. We recite the facts found by the judge, supplemented as necessary by other undisputed evidence.
This matter involves two adjacent, prime oceanfront parcels located off West Street in Beverly Farms, an affluent residential section of the city of Beverly. Both properties directly abut a sandy beach and enjoy commanding views of the water. One plot is owned by the plaintiffs, John Rattigan and Jeffrey Horvitz,4 while the other is owned by the defendant, Evan Wile. The property owned by the plaintiffs is commonly known as Edgewater and contains a luxurious residence, pool, and manicured grounds. The parcel owned by the defendant consists of approximately 2.9 acres of undeveloped land. The defendant's only land access is by right of way to West Street over land owned by the plaintiffs.
The plaintiffs purchased Edgewater at foreclosure auction in 1991. The next year the adjoining vacant property was also sold at foreclosure auction. The defendant outbid Horvitz for the parcel, and purchased with plans to build a home.5 Herewith began the problems.
Rattigan subsequently brought actions on behalf of the Edgewater House Trust in the Land Court in or around 1992, seeking determinations that the defendant did not enjoy a right of way through Edgewater and that the defendant's land was not buildable under Beverly zoning bylaws.6 These suits were ultimately unsuccessful and the defendant apparently regarded them, and other supplications to city officials that met with mixed success, as a form of "harassment." After Rattigan and Horvitz filed a successful challenge to the defendant's building permit,7 the defendant embarked on a campaign of retaliation in August, 1999.
Between August, 1999, and July, 2003, the defendant placed a number of unusual objects at the edge of his lot, immediately adjacent to the boundary with the Edgewater property. The judge found that although the defendant, who is a building contractor, was undoubtedly aware that final resolution of the dispute concerning his building permit was hardly imminent, he dumped construction debris along the boundary line with Edgewater — broken concrete blocks, used pipe, and rusted metal components including a crane bucket. Later, the defendant brought onto the boundary a "gigantic, red, metal ocean container... use[d] to ship freight."
When Horvitz added barriers to shield those on his property from viewing the objects, first a few shrubs and then a six foot trellis fence (the maximum he believed he could build), the defendant "moved the construction debris inexplicably" so that the materials continued to be prominently in view. For example, after Horvitz erected the fence, the defendant responded "almost immediately" by moving "the largest pieces of the debris," including the crane bucket, to the top of the red container so that they would remain visible.8 On a portion of the boundary of his property not protected by visual barriers, the defendant placed the detached bed of a pick-up truck that at one point held a large truck tire, and an unusual "wire frame or rack" from which hung a yellow detergent bottle and several plastic figures including a duck, a goose, and an owl. A judge ordered the rack removed in a contempt proceeding related to this suit, see infra, in April, 2002.
Similarly, soon after Horvitz built a section of fence to shield swimmers at Edgewater's pool from apparent catcalls by individuals on the defendant's lot, the defendant responded by moving to his side of the fence "a trailer, like an office trailer ... on a construction site," and elevating it on cinder blocks "so that the top windows loomed above the trellis fence." In 2001 and 2002, the defendant placed several portable toilets near the pool, so close that a person could not walk between the toilets and the Edgewater fence. The toilets generated an offensive odor that wafted over the pool. In the summer of 2002, the defendant placed a fifteen foot white and yellow striped tent also within a few feet of the Edgewater pool area, "obliterating any view and light from that direction." The city quickly ordered removal of the tent.
The judge found that there was no "logical explanation" for the defendant's failure to locate elsewhere many of the objects that appeared along Edgewater's boundary, except to "annoy, harass or otherwise create an offensive, harmful condition." The defendant's parcel was "a huge lot with multiple" locations where these items could have been placed. The fact that the tent and portable toilets were situated elsewhere during the summer of 2003 reinforced this determination.
Activity on the lot was also disconcerting. On occasions in the summers of 2001 and 2002, the defendant invited 150 to 200 people from a local youth center to a beach party. The defendant himself did not attend. The judge concluded that the invitation was "not born[] of a desire to be a charitable citizen in Beverly but, rather, was part of the campaign that was being waged against the Horvitzes to create a difficult and destructive neighborhood." The defendant intended the outing to be a recurring event but it was discontinued by the city because it was "disturbing the peace."
Between 1999 and 2002, the defendant, who is a licensed commercial helicopter pilot, used his property as a heliport. He posted a sign on the Edgewater fence near the pool deck, some distance away from the takeoff and landing site, that read in bold red lettering, "WARNING HELICOPTER OPERATIONS[;] AUTHORIZED ACCESS ONLY." On "more than one" of the many helicopter touchdowns and liftoffs,9 the helicopter's blades propelled small debris onto the Edgewater property; on one occasion, debris struck Horvitz's stepson, and on another, debris struck Horvitz's youngest daughter. By order of the Superior Court prior to trial, the defendant ceased landing on the plot but continued overflights to "check the property."10
The plaintiffs filed this action on February 14, 2001, and in July, 2001, following a hearing, obtained a preliminary injunction that enjoined the defendant from, among other things, flying his helicopter near Edgewater and "committing ... acts... intended to harass ... Horvitz, his family, his employees or his guests." Prior to trial, the defendant was twice adjudged to be in contempt of the injunction with respect to certain objects that he had placed along the property line.
On July 29, 2003, after a jury-waived trial, a judge of the Superior Court found that the defendant had created an actionable nuisance, and determined that the plaintiffs could recover for costs of abatement and temporary diminishment of the value of Edgewater. The judge credited testimony of an expert appraiser that the potential rental value of Edgewater for the thirteen weeks of the summer rental season declined from $8,000 per week to $2,000 per week as a result of the conditions that were caused by the defendant's activities. The judge awarded damages for each week of the summer rental seasons of 1999, 2000, 2001, 2002, and 2003, an aggregate of sixty-five weeks, totaling $390,000. In addition, the judge awarded damages of $19,200 for costs incurred installing the trellis fence. With interest, total recovery amounted to $532,035.05. The judge also issued a broad injunction, which she read from the bench:
The defendant appealed and we transferred the case to this court on our...
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