Daily Development for Tuesday, September 9, 2008
by:
Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of
Law
Of Counsel: Husch Blackwell Sanders
Kansas City,
Missouri
dirt@umkc.edu
NUISANCE; SPITE FENCES: A local permit
granting landowners permission to build a wooden fence parallel to their
property line did not trump the spite fence statute under which the landowners'
construction of an eight-foot high fence was considered a
nuisance.
Gertz v. Estes, 879 N.E.2d 617 (Ind. App.
2008).
In 2003, Defendants bought a neighboring home to Plaintiffs.
Defendants equipped their home with a public address system and surveillance
cameras, and in 2004, the parties disputed the location of the property line.
While this dispute was resolved, enmity remained, and Defendants received a
permit for, and built on their property, an eight-foot wooden fence that ran
parallel to, and eight inches away from, the property line. Thousands of nails
extending between a quarter-inch and a half-inch protruded from the side of the
fence facing Plaintiffs' property.
In 2005, Plaintiffs filed a complaint,
alleging that the fence violated the Indiana "spite fence" statute. Indiana Code
Section 32-26-10-1 provides for a cause of action where a fence is "maliciously
erected . . . for the purpose of annoying the owners or occupants of adjoining
property." In 2007, the trial court ordered Defendants to remove the fence, the
public address system, and the surveillance cameras within thirty
days.
The trial court also ordered Defendants to pay Plaintiffs for
damages amounting to $2,500 and entered protective orders prohibiting each
family from contacting, harassing or annoying the other family. Defendants
appealed, seeking to maintain their fence, but did not challenge the rest of the
trial court's order.
On appeal, Defendants argued that the spite statute
was inapplicable because they had received a local permit for the fence. The
Appeals Court stated that municipal ordinances and regulations are subordinate
to state laws and statutes, and that the spite statute made no reference to any
required conformity with local ordinances. Thus, the fact that Defendants were
issued a permit was irrelevant to the discussion of the applicability of the
statute. The trial court's holding that receipt of a local permit was not a
defense for purposes of the spite fence statute was correct.
Defendants
further argued that the trial court clearly erred in making its findings of
fact, arguing specifically that Plaintiffs did not establish that the fence was
unnecessary or that Defendants used their public address system to make
disparaging comments about Plaintiffs' family. The Court found that the evidence
and reasonable inferences drawn from it supported the trial court's findings
that the fence was unnecessary and not intended for agricultural purposes, as
Defendants had asserted.
Comment: Not exactly “Happy Valley Subdivision,”
eh? Anyway - to the legal issues. Of course state law prevails over
local ordinance, but there still could be a fundamental question as to whether a
fence built consistent with local ordinance ought to be regarded as “maliciously
erected.”
Clearly local law intended that the fence Defendants
erected was a proper fence for that area. The point made in the case is
that even perfectly lawful activities carried out with “malicious intent” are
actionable. This might sound nice, but where does it take us? The
usual rule with respect to claims for tortious interference with contractual
expectation or other “bad faith” torts is that the action in question itself
would be improper. Generally, parties are free to exercise perfectly valid
contract rights even if they do so in order to injure their competitors or their
enemies. That is not the standard in this case. Here, we have a long
history of enmity and perhaps pretty strong evidence of malicious intent.
But isn’t a fence just a fence?
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