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Winkelbauer v. Braley - No. 195549, 1997 Mich. App. LEXIS 3435 (Ct. App. Sep. 26, 1997)

Rule:

The elements of a "spite fence" nuisance case are that a defendant: (1) erected a fence or other obstruction; (2) which serves no useful purpose or advantage to himself, and; (3) did so with malicious intent. Where erection of a fence is motivated by both a purpose useful to defendant and by spite, a cause of action cannot be maintained.

Facts:

Plaintiff Tamera M. Winkelbauer filed an action in Michigan sate court against defendants Kevin Braley and Debbie Braley, who were Winkelbauer's neighbors on adjoining land in a subdivision; defendant Presque Isle Harbor Association, Inc. ("Association"), which managed the subdivision; and defendant Steven R. Lang, the Association's president. Winkelbauer alleged that a fence constructed on her residential property line by the Braleys constituted a "spite fence" and violated a restrictive covenant of the Association. In addition to alleging that the fence was a spite fence, Winkelbauer requested the trial court to disqualify the Braleys' counsel due to a conflict of interest. The trial court did not rule on that motion but granted summary disposition to defendants. Winkelbauer appealed.

Issue:

Was summary disposition in favor of defendants proper?

Answer:

Yes.

Conclusion:

The appellate court affirmed the trial court's decision granting summary disposition in favor of defendants. The court held that the elements of a "spite fence" nuisance case were that a defendant erected a fence or other obstruction, which served no useful purpose or advantage to himself, and did so with malicious intent. Where erection of a fence was motivated by both a purpose useful to defendant and by spite, a cause of action could not bn maintained. The court found that Winkelbauer dod not provide any evidence disputing the affidavit filed by the Braleys, which stated that they erected the fence to protect their privacy, for their children's safety, to prevent further thefts from their yard and for aesthetic purposes. As a result, summary disposition was proper. The court held that although there did appear to be a conflict of interest with respect to the Braleys' counsel, remand would have been futile in light of the disposition on the merits.

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