Question: What can I do if my neighbor is doing something on their property that hinders the enjoyment of my property?
Answer: you can bring a civil action and have the opportunity to show that your neighbor’s actions have created a private nuisance and a loss of enjoyment of your property.
In the case of Yate v. Kemp, 979 N.E.2d 678 (Ind.App. 2012), neighbors on Thorn Road in rural Marshall County were fighting about gun noise. The Yateses and Tibbses own contiguous properties on the west side of Thorn Road, and Kemp owns land across the road from them. In 1962, Kemp built an earthen berm at the back of his property for use as a shooting range. At that time, there were no county ordinances, zoning restrictions, or statewide laws in effect governing shooting ranges. Kemp expanded the range in 1968, 1985, and 2006. At the time of the 2006 expansion, Marshall County had enacted a comprehensive zoning ordinance. In 2008, Kemp obtained approval to continue to operate the shooting range, subject to certain conditions. Kemp allows family, friends and police officers from nearby departments to use the range. The Yateses purchased their property in 1995, and the Tibbses purchased their property in 2006. They object to the manner in which Kemp operates his shooting range, claiming that it hinders their enjoyment of their properties. Consequently, they filed suit against Kemp, claiming nuisance, negligence, infliction of emotional distress, and strict liability.
The trial court reviewed the nuisance claims by reviewing Indiana law which states a nuisance is defined as: [w]hatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property….Ind.Code § 32–30–6–6 (2002). Nuisances may be either public or private. A public nuisance is one which affects an entire neighborhood or community, while a private nuisance affects only [a] single person or a determinate number of people. The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another’s property. Both public and private nuisances are further subdivided into nuisances per se, or nuisances at law, and nuisances per accidens, or nuisances in fact. A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist. Thus, for example, a house of prostitution and an obstruction that encroaches on the right-of-way of a public highway are nuisances per se. On the other hand, an otherwise lawful use may become a nuisance per accidens by virtue of the circumstances surrounding the use. To recover in a nuisance action the complaining party need show only inconvenience, annoyance, or discomfort. Noise may be a nuisance if it is unreasonable in its degree, and reasonableness is a question of fact. Therefore, they are alleging a private nuisance. Thus, a hearing must be set to determine if the Yateses and the Tibbses have established a dispute of material fact as to whether Kemp has caused them to experience inconvenience, annoyance, or discomfort.