Wernke v. Halas

600 N.E.2d 117 (1992)

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Nature of the Case

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Facts

P and D are next door neighbors, with abutting side yards. The Peacock family owns the other lot abutting D's property. Tensions rose over the fate of a tree growing astride the common P-D-Peacock boundary. D built a privacy fence facing P's property. It was constructed with orange fencing and vinyl strips. One day, as D'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 encroached upon any of P's property. Prior to D's fence, the Peacocks nailed a toilet seat to a tree facing D's yard. The Peacocks removed the seat after several months, D displayed 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 was painted on the plywood within the ring inscribed by the seat. The toilet rested entirely on D's property. P sued for nuisance. The judge found as a matter of law that the toilet, the graffiti, and the fence constituted a nuisance. He ordered the orange fencing and the vinyl strips removed and eventually entered an award for $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. D appealed.