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

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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