Wernke v. Halas

600 N.E.2d 117



Standing alone, unsightliness, or lack of aesthetic virtue, does not constitute a private nuisance.


The plaintiff and defendant were neighbors with abutting side yards. Separating their properties and facing the plaintiff’s yard, the defendant had constructed a privacy fence that was less than six feet. The defendant placed some vinyl strips and a license plat over some of the cracks between the boards on the fence and also attached a section of orange plastic construction fencing. Vandals had also scribbled profanity into the wet concrete of the support post, but that was only visible up close. In addition, the defendant mounted a toilet seat to one of the tree trunks on his property and painted a brown spot in the middle of the ring to represent human excrement. This display was also facing the plaintiff’s yard. The plaintiff sued the defendant, claiming that the fence and the toilet seat display prevented his use and enjoyment of his property.


Does unsightliness or lack of aesthetic value constitute a private nuisance?




Whatever is injurious to health, or indecent, or offensive to the sense, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance. A public nuisance is one that affects an entire neighborhood or community, while a private nuisance affects only a single person or a determinate number of people. Because aesthetic values are inherently subjective, the courts cannot be available to enjoin an activity solely because it causes some aesthetic discomfort or annoyance. In Indiana, at common law, a landowner had no nuisance claim against an adjacent landowner for erection of a “spite fence” that was less than six feet and did not encroach on the landowner’s property. Regardless of how unsightly the fence may be in this case, it cannot be a nuisance as a “spite fence” because it was less than six feet. Even though the profanity on the fence could be considered unattractive and vulgar, it is also not a nuisance because it is not visible from the plaintiff’s yard so only the knowledge of its presence causes annoyance. Last, with respect to the toilet display, it is also merely an aesthetic annoyance and does not constitute a nuisance.

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