IN THE KOSCIUSKO CIRCUIT COURT

STATE OF )
INDIANA )

SS:

COUNTY OF )
KOSCIUSKO )

CAUSE NUMBER C-86-375

AL MITTERLING and
--
Plaintiffs

VS.

-- and
--
Defendants

INJUNCTIVE ORDER
AND JUDGEMENT

The above entitled cause was presented in open court upon the 17th day of July, 1987. Now the court, being duly advised in the premises, hereby makes the following rulings:

1. a) That upon Paragraph 1 of the Complaint, the Court finds for the plaintiffs Mitterling and against the defendants, hereby determining that the security light, as now established, constitites a nuisance which defendants shall be required to abate.

b) That upon Paragraph 2 of the Complaint alleging trespass, the Court finds for the defendants.

c) That upon Paragraph 3 of the Complaint seeking damages, the Court finds for the Plaintiffs Mitterling and against the defendants.

d) That upon Paragraph 4 of the Complaint seeking a preliminary injunction, the Court finds that the course of proceedings has mooted the said request.

2. The Court finds that the security light as now established constitutes a private nuisance in that it impacts the usability of plaintiffs' observatory; plaintiffs other complaints about the light's interference with their comfortable enjoyment of their life and property were not shown to constitute an actionable private nuisance.

3. Defendants are now ORDERED to, within 30 days, abate the said nuisance by selecting and implementing one of the following three courses of action;

a) removal of the light, without replacement;

b) taking the two steps of (i) either lowering the existing light (without increasing its intensity) to a level below the eave of the house, or moving the light to the pasture, set to a height below the eave of the house or the barn, all to provide lighting for defendants' horses and (ii) install a less intense outdoor light in the front of the home to illuminate the entryway and driveway, the same to be operated by a remote control device from their approaching vehicles, much in the nature of an automatic garage door opener only upon use of the entryway and driveway; or

c) providing plaintiffs access to a light switch for the existing light or some other mutually tolerable method for its disconnection upon request for purposes of uses of the observatory. (Incidentally, should this mehtod be selected and evidence be later shown that plaintiffs have extinguished defendants' lights for other purposes, such as use of the patio, etc, the Court would be inclined to set aside its nuisance finding and abatement order.)

The Court notes that each of these remedies also requires the defendants to install no other lights or objects to block the use of the observatory.

4. The Court now assesses damages in favor of the plaintiffs and against defendants in the nominal sum of $---- and the costs of the action.

SO ORDERED, ADJUDGED, and DECREED this 23rd day of July, 1987.

Douglas B. Morton, Special Judge
Kosciusko Circuit Court

MEMORANDUM

Nuisance has been defined in Indiana law as follows:

Whatever is injurious to health or indecent, or offensive to the senses or an obstruction to the free use of porperty, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an actions. A private nuisance is complained of where one party is using his property to the detriment and the enjoyment of the property of another.

Recent case law development further guides the Court; see Sherk v. Indiana Waste Systems, Inc. N.E. 2d 615 (1986) where at Page 818 the Court of Appeals through Judge Conover indicates:

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 doing so we 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.

This Court's analysis of the case at hand is that (defendants) were pursuing reasonable goals when they installed the security light. This light, typical of the community, placed where recommended by the REMC, was intended to provide both the security and sense of well-being for the entry way that the name implies and the calming influence for their livestock. The effect that this had upon the plaintiffs was relatively minimal and easily cured as to light in the bedroom (curtains) or solitude on the patio (a privacy fence, well-placed tree, or establishment of a patio on the north side of the house.) These relatively simple accommodations have no effect upon property values, incorporates all of the parties' foibles, and allows reasonably complete use of the property by everyone, reread the quoted language about "life is not perfect."

The existence of the observatory creates an entirely different problem. This asset of some $---- value is rendered useless by the continuous operation of the security light, the equivalent of the confiscation or destruction of plaintiffs' property. Because of its existence and use prior to the light, known to the parties, the placing of the light (a reasonable step under many circumstances) now clearly creates a nuisance. It is even more so because the (defendants) could accomplish their goals without the destruction of the Mitterlings asset. It is the accommodation of all of these goals that shapes the Court's abatement order.

The Court does not believe that the (defendants) motive was damage to Mitterlings. Their motive was relatively straight forward, but without concern for the impact upon Mitterlings; they were aware that their actions would reduce or destroy the value of the observatory although that was not their purpose. While under most circumstances installing the light would have been acceptable, here it produced an actionable nuisance.