Wendt v. Kerkhof
| Decision Date | 15 June 1992 |
| Docket Number | No. 30A01-9109-CV-278,30A01-9109-CV-278 |
| Citation | 594 N.E.2d 795 |
| Parties | Robert S. WENDT and Kathleen M. Wendt, Appellants-Plaintiffs, v. Norris KERKHOF and 3-K Farms, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Gregory K. Silver, Sheila Suess Kennedy, Rubin & Levin, P.C., Indianapolis, for appellants-plaintiffs.
Robert G. Bogigian, Dickmann, Reason & Bogigian, Greenfield, for appellees-defendants.
Robert S. Wendt and Kathleen M. Wendt ("Wendts") appeal from a judgment in favor of Norris Kerkhof and 3-K Farms, Inc. ("Farm") in an action seeking a preliminary injunction and damages for the existence of a public nuisance. We affirm.
We restate the issues on appeal as:
1. Was the trial court's judgment contrary to law?
2. Did the trial court err in applying IND.CODE Sec. 34-1-52-4 to the Wendts's nuisance claim?
The Wendts own land adjacent to Farm, with the Wendts's land located northeast of Farm. When this lawsuit was commenced, the Wendts had lived on their land for over six (6) years, while Farm's owners had operated a grain farm for approximately forty (40) years.
On or about May 23, 1988, Farm's owners applied for a building permit authorizing the construction of various buildings for use in a hog farming operation. Both sides agree that significant changes in the use of Farm's land occurred in May of 1988.
The Wendts brought suit alleging a private nuisance on May 17, 1989, requesting a preliminary injunction and asking that Farm's owners move their hog operation or take other ameliorative action to abate the nuisance, specifically, the odor emanating to their property. The Wendts testified that foul and unwholesome odors stemming from Farm's land prevented the enjoyment and use of their property. The trial court found that the majority of the time the prevailing wind in Indiana is southwesterly, making the Wendts's property downwind from Farm's hog operation. Record at 59 and 123.
Experts and lay witnesses from both sides presented conflicting testimony regarding the extent and harmfulness of odors from the hog operation which eventually reached the Wendts's property. One expert stated that the value of the Wendts's property had decreased as a result of the hog operation. Record at 652-653. Farm's owners testified that their hog operation was lawful and met all zoning and regulatory standards. Record at 362.
The trial court denied the Wendts's request for a preliminary injunction on November 10, 1989, and entered a judgment in Farm's favor on June 24, 1991. Record at 58-60 and 123-124. The Wendts appeal. Other relevant facts will be stated in our discussion of the issues.
The Wendts claim that the trial court's judgment is contrary to law in finding that they had presented insufficient evidence to demonstrate a nuisance by Farm. We disagree.
Initially, we note that as the parties with the burden of proof at trial, the Wendts appeal from a negative judgment. See Reiss v. Reiss (1987), Ind., 516 N.E.2d 7, 9. We will not reverse a negative judgment on appeal unless it is contrary to law. Indiana Farm Bureau Co-Op v. Ennis (1991), Ind.App., 574 N.E.2d 322, 323. Furthermore, we will not reweigh the evidence or judge witness credibility as these are functions of the trier of fact. Id. Thus, the Wendts have the burden of proving that the evidence is without conflict and leads unerringly to a conclusion opposite to that reached by the trial court. Id.
The Wendts place great emphasis on the trial court's failure to distinguish between public and private nuisance. As Farm points out, however, this dichotomy is irrelevant in the case at bar because the trial court's judgment that no nuisance exists is well within the evidence presented, whether assessing a claim of public or private nuisance.
Nuisance is defined by IND.CODE Sec. 34-1-52-1, which states:
"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."
In determining what constitutes a nuisance, the relevant inquiry is whether the thing complained of produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits. Meeks v. Wood (1918), 66 Ind.App. 594, 598, 118 N.E. 591, 592. A nuisance is classified as public if it affects an entire community or neighborhood or private if its effect is peculiar to an individual or a limited number of individuals. Yeager and Sullivan, Inc. v. O'Neill (1975), 163 Ind.App. 466, 471, 324 N.E.2d 846, 850, trans. denied. Although the Wendts's complaint does not so specify, it appears to charge that Farm's hog operations were a private nuisance, since no effect on the general public is alleged. See Beresford v. Starkey (1990), Ind.App., 563 N.E.2d 116, 126, aff'd in part, (1991), Ind., 571 N.E.2d 1257; Record at 3-7.
When deciding whether one's use of his property is a nuisance to his neighbors, it is necessary to balance the competing interests of the landowners, using a common sense approach. Sherk v. Indiana Waste Systems, Inc. (1986), Ind.App., 495 N.E.2d 815, 818 trans. denied. The Wendts do not dispute that Farm operates its hog facilities in a lawful manner and in accordance with applicable regulations; however, this is not dispositive. See id. (lawful business may be of such nature, so situated, or so conducted as to constitute or become nuisance). Rather, an examination of both landowners' rights is necessary. See id.
The trial court found that the Wendts had failed to provide sufficient evidence to sustain their claim. We find that the record amply supports the trial court's judgment. On appeal, the Wendts cite their own evidence as showing that Farm's odors from the hog operation are a nuisance. However, much conflicting evidence was presented, both from experts and nearby landowners, as well as from the Wendts and Farm's owners themselves. 2 Where conflicting evidence exists regarding the plaintiffs' claims sounding in nuisance, and on appeal they merely ask us to reweigh the evidence, we must affirm. See Shatto v. McNulty (1987), Ind.App., 509 N.E.2d 897, 899.
Although evidence exists which may have supported a judgment in favor of the Wendts, sufficient evidence also exists to support the trial court's conclusion that no nuisance existed. See Ennis, 574 N.E.2d at 324; see also Yeager, 163 Ind.App. at 474, 324 N.E.2d at 852 (); cf. Sherk, ...
To continue reading
Request your trial
-
Wernke v. Halas
...neighborhood or community, while a private nuisance affects only an single person or a determinate number of people. Wendt v. Kerkhof (1992), Ind.App., 594 N.E.2d 795, 797; Blair v. Anderson (1991), Ind.App., 570 N.E.2d 1337. The essence of a private nuisance is the use of property to the d......
-
Gray v. Westinghouse Elec. Corp.
...the situation would naturally produce physical discomfort to persons of ordinary sensibilities, tastes and habits. Wendt v. Kerkhof, (1992), Ind.App., 594 N.E.2d 795, 797. Taken as true, Griffin's allegations that his property is unmarketable and his health is at risk due to PCB contaminati......
-
TDM Farms, Inc. v. Wilhoite Family Farm, LLC
...at the time the agricultural or industrial operation began on that locality.I.C. § 32–30–6–9 (emphasis added). In Wendt v. Kerkhof, 594 N.E.2d 795, 798 (Ind.Ct.App.1992), trans. denied, this court reviewed the legislative intent underlying the Act. We stated as follows: “The doctrine of ‘co......
-
Hutchens v. MP Realty Group-Sheffield Square Apartments
...of a landowner's use of his property to the detriment of the use and enjoyment of a neighboring landowner. E.g., Wendt v. Kerkhof (1992), Ind.App., 594 N.E.2d 795 (landowner brought nuisance action against neighboring hog farmers seeking damages and injunctive relief for odor emanating from......