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Law School Case Brief

Bonewitz v. Parker - 912 N.E.2d 378 (Ind. Ct. App. 2009)


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. In so doing courts use a common sense approach. Mere annoyance or inconvenience will not support an action for a nuisance because the damages resulting therefrom are deemed damnum absque injuria in recognition of the fact life is not perfect. Thus, reasonable use of one's property may be a defense to a nuisance action where the use merely causes incidental injury to another. Where, however, one uses his property for his profit so as to practically confiscate or destroy his neighbor's property he should be compelled to respond in damages, for it can hardly be said such use is reasonable. Whether one's use of property is reasonable is determined by the effect such use has on neighboring property. Liability is imposed in those cases where the harm or risk thereto is greater than the owner of such property should be required to bear under the circumstances. 


Bonewitz and Dellinger bought an old farm house on approximately one-half acre in North Manchester, Indiana. Parker, their neighbor, started a new business called Parker By-Products, a business that dries wet mycelium to be sold for use in animal feed. When Parker started the business, he obtained a variance from agricultural use to business/commercial use, over the objections of Bonewitz and Dellinger. When the business became operational, it ran 24/7. Bonewitz and Dellinger's enjoyment of their home was substantially affected by Parker's business operation in numerous ways: emissions of smoke and/or steam surround the house; a "rotten, sour" smell permeates the house and clings to fabrics,; a "nauseating" odor comes from the drying process, similar to that of "a rendering plant when they're burning dead animals;" sawdust everywhere and strong vibrations that cause the house to shake. Because of the foul odor and sawdust, Bonewitz and Dellinger avoided going outside, kept their windows closed, and did not have the unrestricted use of their yard or swimming pool. Bonewitz and Dellinger filed a complaint alleging that Parker's mycelium-drying operation constitutes a nuisance and sought a permanent injunction or, in the alternative, damages. The trial court declined to enter a total permanent injunction, but ordered that Parker be permanently enjoined from unloading sawdust outside of the pole building. The trial court did not award damages. The case was appealed.


Was it proper for he trial court not to grant damages?




The appellate court found that the evidence showed that the homeowners had suffered a number of unreasonable infringements on the use and enjoyment of their property as a result of the neighbor's business. The harm to the homeowners continued and was greater than they should be required to bear under the circumstances. While the nuisance was partially ameliorated, it had not been abated. While the evidence showed that the neighbor had taken steps to reduce the effects of noise and dust emanating from his business, the noise and offensive odors continued to infringe upon and obstruct the free use of the homeowners' property. The homeowners lived with the regular onslaught of noise, dust, and odors, which offended the senses, obstructed the free use of their property, and interfered with their comfortable enjoyment of life and property. Thus, the trial court's judgment was reversed and remanded with instructions. The trial court was ordered to determine whether the homeowners could be made whole with a money judgment. If so, the trial court had to consider the evidence of the homeowners' damages. The evidence showed that the home's value had been greatly diminished by its close proximity to the neighbor's business.


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