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Brief Fact Summary.
The Halases sued Wernke claiming that obscenities engraved into concrete by vandals, a six-foot fence, and a toilet seat built in to the fence, constituted nuisance.
Synopsis of Rule of Law.
A structure with displeasing aesthetics is not a nuisance.
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
View Full Point of Law
The Halases lived next door to Wernke, who built a six-foot fence. Wernke attached vinyl strips, a license plate, and orange-plastic construction fencing on the Halases side to cover holes in the fence. Wernke also set up a toilet seat along a post on the fence. Neither the fence, concrete surrounding the fence, or the toilet seat encroached upon the Halases property. The Halases sued Wernke claiming that obscenities engraved into concrete by vandals, a six-foot fence, and a toilet seat built in to the fence, constituted nuisance. The trial court granted summary judgment to the Halases.
Issue.
Whether a structure with displeasing aesthetics can be considered a nuisance?
Held.
No. The judgment of the trial court is reversed. The fence is not a nuisance because the fence was under six feet tall and did not encroach upon the Halases property. Additionally, aesthetic complaints are not enough to make property an illegal nuisance.
Discussion.
A structure with displeasing aesthetics is not a nuisance. A nuisance occurs when someone uses property in violation of the use and enjoyment of another’s property. Nuisances per se are automatically considered illegal nuisances, whereas nuisances per accidens are lawful uses of property that become illegal nuisances. The alleged nuisances in this case would be considered nuisances per accidens.