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Davoust v. Mitchell - 146 Ind. App. 536, 257 N.E.2d 332 (1970)


An element to be taken into consideration in determining what shall constitute a nuisance is the nature and characteristics of the person claimed to have been annoyed, as well as the nature of the instrumentality causing the annoyance. In all such cases, the question is, whether the nuisance complained of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant.


Defendants Mr. and Mrs. Davoust had several children, one of whom was D.D., an eight-year-old boy. D.D. owned a dog; the dog was kept in a dog pen constructed on the Davousts' property and was situated about 10 feet from the home of plaintiffs Mr. and Mrs. Mitchell. Shortly after the pen was built, the Mitchells filed a lawsuit in Indiana state court alleging that the pen was a nuisance under Ind. Stat. Ann. § 2-505 and also seeking money damages and injunctive relief for alleged property damage caused to their basement as a result of seepage of water. After a bench trial, the trial court entered judgment for the Mitchells on the nuisance claim. The Davousts were ordered to abate and remove the dog pen and to pay the Mitchells $ 350 in damages. The trial court entered a take-nothing judgment on the Mitchells' property damage claim. The Davousts appealed.


Did the amount of annoyance under all the facts and circumstances constitute a nuisance within the provisions of the applicable state statute?




On appeal, the court affirmed the decision of the trial court on the condition that the damage award be stricken. The court held that a nuisance was defined under Ind. Stat. Ann. § 2-505, and it was for the trial court to determine whether the amount of annoyance under all the facts and circumstances did or did not constitute a nuisance within the provisions of the statute. The court found that that Mr. Mitchell was often awakened by the dog, that the dog barked frequently, and that the dog pen was not cleaned of stool. These characteristics were offensive to the senses so as to essentially interfere with the comfortable enjoyment of life or property. The court held that because the trial court ordered that the nuisance be abated, the measure of damages was the injury to the use of the property, the depreciation in rental value, and no such proof was submitted.

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