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Imagine your neighbor erecting an eight foot high tin fence, spray painted with pictures, phrases and other graffiti along the entire length of your property line. Also imagine that this fence has video cameras mounted on top to observe your property and movements. And finally, imagine that a portion of the fence has a one-way mirror installed, again allowing your neighbors to observe you without their being seen. Most people would say that’s pretty strange behavior, maybe even a little creepy. But what can you do?

A recent Missouri State Court case (Highfill vs. Hale), got us to start thinking about what could be done in such a situation. The facts above came from a real case in Gasconade County, but the issues in that case developed along lines which should not be expected to be repeated.

In that case, apparently the bad blood had existed for quite some time, with multiple lawsuits having been filed. The sheriff and his deputies had been out to the property on numerous occasions, but had never told the Highfills to remove the fence.

In September, 2001, Hale called the Sheriff’s office and reported that she might have been shot. Deputies responded, and while one deputy was speaking to Hale, another deputy closely inspected the fence and discovered that one of the Highfills was observing the situation in Hale’s yard through the one-way glass mirror. Although the deputies arrested both of the Highfills for stalking only after discussing the facts with the prosecuting attorney, charges were subsequently dropped. Thereafter, the Highfills sued Hale for false imprisonment, and the above-cited case dealt with those issues, and thus not relevant to our discussion of fences or unneighborly behavior.

But what about that fence? What could be done? And what could be done even if the fence or conduct was not as outrageous as a 270 foot long fence with graffiti, video cameras and a one-way mirror?

The mere ownership of land does not automatically confer the right to do with it whatever one desires. In most, if not all, urban areas, there are zoning restrictions. But even subjected to zoning, and for those areas where there are no zoning laws, the use of property can be restricted or curtailed, or liability imposed, for an unlawful use, commonly called a “nuisance.”

Private nuisance is defined by Missouri courts as the unreasonable, unusual or unnatural use of one’s property which substantially impairs a right of another to enjoy their property. It is important to note that for a nuisance to be found, it requires more than mere inconvenience or annoyance. The action of the landowner must substantially impair the rights of the adjoining landowners. Furthermore, the right that is impaired must be a right that is susceptible to legal protection. A showing of special injury to the property owner is required, an injury that differs in kind, and not just degree, from injury to the general public.

While many states, including Illinois, have adopted the position that the intentional invasion of an adjoining property owner’s property interests in the use and enjoyment of land is unreasonable if the harm is significant and the conduct is either for the sole purpose of causing harm or contrary to common standard of decency, Missouri has not adopted this position. Missouri has rejected the underlying rationale that malice can convert a lawful act into a nuisance. Thus, in Missouri, motive and intention are immaterial for addressing ordinary damages. The only question is one of reasonableness, which is a fact issue for the jury to decide. However, malice or some element of wantonness in maintaining the nuisance does justify an award of punitive damages.

What is or is not reasonable does not depend on exact rules, but rather on the circumstances of each case including the locality and character of the surroundings, the nature and value of the use, and the extent of the harm involved. A property owner is also liable for the physical harm caused to persons off of their property caused by an activity which the property owner realizes, or should have realized, involved an unreasonable risk of physical harm to others.

The courts have distinguished between temporary and permanent nuisances. This distinction is important because it determines the nature of the remedy and the amount of damages. It is not the injury itself that is determinative, but rather the source of the injury that is the deciding factor whether a nuisance is permanent or temporary.

A temporary nuisance may be abated at any time by reasonable effort or order of the court. A permanent nuisance generally results from permanent construction which is injurious as installed, rather than injurious through its use, and where abatement would be impractical or impossible. Hence, the courts have held that a landfill owner whose landfill runoff had leaked into nearby landowners’ land liable for a permanent nuisance whereas an owner of a fence painted in an unattractive and offensive manner was liable only for a temporary nuisance.

The ramifications for a landowner of the classification of a nuisance as temporary or permanent are in the nature and extent of the damages. Damages for a permanent nuisance are measured by the difference in the land’s market value immediately before and after the injury. Damages for a temporary nuisance are the decrease in the rental or useable value of the property as well as any special costs. In addition, because a nuisance action is an equitable action, the court can order the abatement of the temporary nuisance or such other remedy as the court may find reasonable and just, thereby balancing the landowners’ rights.

Thus, Missouri courts have found in a case where a property owner intentionally erected signs to obstruct a view from the highway of a competitor’s business to not constitute a private nuisance. The court recited the common law rule that, absent a statute or contract to the contrary, the obstruction of a landowner’s view is not actionable.

And, not surprisingly, where a gun club’s members’ bullets began to stray onto adjacent property, the court found that use of the property as a gun club constituted a temporary nuisance, because the use could be easily abated.

However, in a case involving construction and use of a parking lot in a residentially-zoned neighborhood, the court held that it was proper for the jury to consider the issuance of a special zoning permit authorizing such use, thus supporting the finding that no nuisance existed.

But back to the 270 foot long fence with video cameras and one-way mirrors! Assuming that the height did not violate local ordinances, and knowing that the prosecutor would not press a criminal charge of stalking against the fence owners, the best course of action might be to bring an action for private nuisance and at a minimum, seek the repainting of the fence in a neutral color, which in what the property subsequently sought and which the Court awarded. Additionally, we recommend that fast-growing evergreens be planted in front of the one-way mirror. And finally, list the property for sale and move!