Wernke v. Halas

• Decision Date: 28 September 1992
• Docket Number: No. 32A01-9112-CV-369,32A01-9112-CV-369
• Citation: 600 N.E.2d 117
• Parties: Roland E. WERNKE, Appellant-Defendant, v. John HALAS and Karen Halas and James R. Peacock and Geraldine Peacock, d/b/a Roger's Landscape & Gift Shop, Appellee-Plaintiffs.
• Court: Indiana Appellate Court

Page 117

600 N.E.2d 117

Roland E. WERNKE, Appellant-Defendant, v.John HALAS and Karen Halas and James R. Peacock and Geraldine Peacock, d/b/a Roger's Landscape & Gift Shop, Appellee-Plaintiffs.

No. 32A01-9112-CV-369.

Court of Appeals of Indiana First District.

Sept. 28, 1992.

Jeffrey K. Baldwin, Baldwin & Baldwin, Danville, for Roland E. Wernke.

Robert A. Wood, Kendall, Wood, Lowry & Kessinger, Danville, for John Halas and Karen Halas.

BAKER, Judge.

America's wise and thoughtful poet laureate, Robert Frost, once wrote that "good fences make good neighbors."¹Lamentably, not everyone has read Frost.

In this private nuisance action, defendant-appellantRoland Wernke challenges the trial court's grant of summary judgment in favor of Wernke's neighbors, plaintiff-appellees John and Karen Halas.Wernke also appeals the trial court's subsequent award of compensatory damages, punitive damages, and attorney fees.

FACTS

The facts taken in the light most favorable to the non-movant, Wernke, reveal he and the Halases are next door neighbors, with abutting side yards.The Peacock family owns the other lot abutting Wernke's property.In 1990, after a period of mounting neighborhood tension over the fate of a tree growing astride the common Wernke-Halas-Peacock boundary, and during which the parties complained about the appearance and maintenance of each other's land, Wernke built a privacy fence facing the Halas property.The fence is constructed of vertically placed boards, and the parties agree it is no more than six feet tall.On the side of the fence facing the Halases, Wernke placed some vinyl strips and a license plate over some of the cracks between the boards.He also attached a section of orange plastic construction fencing to the Halas side of the fence.The orange fencing ran almost the length of the board fence and was approximately five feet tall.

Wernke placed support posts sunken in concrete at regular intervals along the fence line.One day, as Wernke's work on the fence was progressing, vandals scrawled "Fuck J.H.,""Fuck R.P.," and "D.Head" into the wet concrete of a support post.No part of the concrete, the post, or the fence as a whole encroached upon any of Wernke's neighbors' property.

Prior to Wernke's erection of the fence, the Peacocks nailed a toilet seat to a tree facing Wernke's yard.The Peacocks removed the seat after several months, and Wernke, in a display of equal taste, set up his own toilet seat, mounting the seat and its lid on a piece of plywood placed atop a post overlooking his neighbors' land.A brown spot, alleged by the Halases to represent human excrement, was painted on the plywood within the ring inscribed by the seat.Like the fence, the toilet rested entirely on Wernke's property.

The Halases filed suit in September 1990, alleging the toilet and the fence with all its accoutrements, including the graffiti, constituted nuisances.On the advice of his attorney, Wernke removed the license plate from the fence, and the toilet and graffiti prior to the hearing on the Halases' motion for summary judgment.After the summary judgment hearing, the judge found as a matter of law that the toilet, the graffiti, and the fence constituted a nuisance.He therefore ordered the orange fencing and the vinyl strips removed, and Wernke complied.

Several weeks after summary judgment was entered, the court held a damages hearing.The Halases were awarded $5,600 for the loss in the rental value of their property during the period the graffiti, the toilet and the objectionable portions of the fence were visible, $2,400 for the discomfort and annoyance they suffered, $5,000 in punitive damages, and $3,937.50 in attorney fees.Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

ISTANDARD OF REVIEW

In reviewing a trial court's decision on a motion for summary judgment, we apply the same standards as the trial court and review all the pleadings, depositions, answers to interrogatories, affidavits, and admissions in the light most favorable to the non-movant.Tucher v. Brothers Auto Salvage Yard, Inc. (1991), Ind.App., 564 N.E.2d 560, 562, trans. denied.Summary judgment is appropriate only if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.Id.;Hupp v. Hill (1991), Ind.App., 576 N.E.2d 1320, 1323.Summary judgment proceedings are not to be used as an abbreviated trial.Young v. City of Franklin (1986), Ind., 494 N.E.2d 316.Moreover, they are not the proper forum to weigh disputed evidence relating to material factual issues.Jarrell v. Monsanto Co. (1988), Ind.App., 528 N.E.2d 1158, 1161, trans. denied.If, however, there are no disputed material facts, our task on review is to determine whether the trial court correctly applied the law.Fox v. Hawkins (1992), Ind.App., 594 N.E.2d 493, 495.

IIEXISTENCE OF NUISANCE

In Indiana, nuisances are defined by statute.IND. CODE 34-1-52-1 provides:

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.

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'."W. Prosser and W. Keeton, Prosser and Keeton on Torts, Sec. 86, p. 616 (5th ed. 3rd printing 1989).Our statutory language is therefore necessarily broad, ² but the general tenets of nuisance law are clear.

Nuisances may be either public or private.A public nuisance is one which affects an entire 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 detriment of the use and enjoyment of another's property.Cox v. Schlachter(1970), 147 Ind.App. 530, 534, 262 N.E.2d 550, 553.

Both public and private nuisances are further subdivided into nuisances per se, or nuisances at law, and nuisances per accidens, or nuisances in fact."A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist."The Windfall Manufacturing Co. v. Patterson(1897), 148 Ind. 414, 420, 47 N.E. 2, 4.Thus, for example, a house of prostitution and an obstruction that encroaches on the right-of-way of a public highway are nuisances per se.Id.See alsoTown of Rome City v. King (1983), Ind.App., 450 N.E.2d 72(blocked highway).On the other hand, an otherwise lawful use may become a nuisance per accidens by virtue of the circumstances surrounding the use.SeeYeager and Sullivan, Inc. v. O'Neill.(1975), 163 Ind.App. 466, 474, 324 N.E.2d 846, 852 and cases cited therein;Dammeyer v. Vorhis(1916), 63 Ind.App. 427, 431, 113 N.E. 764, 766.

Logically, therefore, the determination that something is a nuisance per se is a question of law for the court, 66 C.J.S.NuisancesSec. 153(1950), and the determination of "whether that which is not in itself a nuisance is a nuisance in fact" is a question for the jury or the judge as trier of fact.Shatto v. McNulty (1987), Ind.App., 509 N.E.2d 897, 899.The latter determination is to be made by the trier of fact in light of all the surrounding facts and circumstances.Yeager and Sullivan, Inc., supra;Davoust v. Mitchell(1970), 146 Ind.App 536, 540, 257 N.E.2d 332, 335;Meeks v. Wood(1918), 66 Ind.App. 594, 597, 118 N.E. 591, 592.The dispositive question "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."Wendt, supra, 594 N.E.2d at 797.

The essence of these holdings is unmistakable and straightforward.The conclusion that something is a per accidens nuisance is a conclusion to be reached only after a full review of the material facts.Summary judgment, which by definition is meant to resolve only with those cases lacking material factual disputes, is therefore rarely appropriate in per accidens nuisance cases.Bearing this proposition in mind, we turn to the alleged nuisances here.

The Fence³

In Indiana, at common law, a landowner had no nuisance claim against an adjacent landowner for erection of a fence that did not encroach on the landowner's property.Giller v. West(1904), 162 Ind. 17, 20-21, 69 N.E. 548, 549-50.The rule applied regardless of the adjacent landowner's motive in erecting the fence and regardless of the ugliness of the fence.Id."The law does not require that ... fences shall be constructed of fine materials, or that they shall be attractive in appearance."Id. at 21, 69 N.E. at 549.

Five years after Giller, in 1909, the legislature modified the common law.IND. CODE 32-10-10-1⁴ provides "[a]ny fence or other structure in the nature of a fence unnecessarily exceeding six feet (6') in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a nuisance."IND. CODE 32-10-10-2 provides affected landowners with a cause of action for damages and abatement as for any other nuisance.

Although these statutes provide a landowner aggrieved by an alleged spite fence with the full range of nuisance actions and remedies, they are in derogation of the common law, and must therefore be strictly construed.SeeFox, supra.Accordingly, the first predicate to a nuisance action for an alleged spite fence is that the fence exceed six feet in height.If the fence is above six feet in height, the inquiry proceeds to the questions of the necessity for the fence's height, and the defendant's intent in erecting the fence.Because the legislature framed the...