April 9, 2010
Spite fence sparks a five-year legal battle
By ANDREW BERGH
Special to the Journal

"A community working together."

This is how Hebron, a small rural town in northwestern Indiana, touts itself on its Web site. Two neighbors apparently never got the memo, however, as their litigation over the mother of all “spite fences” approaches the five-year mark.

Life was fairly tranquil for Doug and Susan Estes until 2003, which is when David and Nichelle Gertz moved in next door.

Thanks to a festering boundary line dispute, the relationship between the two couples slowly deteriorated. At some point, the Gertzes equipped their house with a public address system, which they occasionally used for “disparaging comments” both to and about the Estes family. On top of that, they installed five surveillance cameras that could view inside their neighbors' home.

But the coup de grace occurred in 2005.

After obtaining a permit for a seven-foot fence, the Gertzes instead erected an eight-foot version that ran the entire length — all 720 feet — of their common property line. All along the three supporting horizontal slats, nail points jutted out between a quarter- and half-inch from the side of the fence. As a result, “thousands of protruding nails” faced the Esteses' property.

For good measure, the words “NO CLIMBING” and “NO TRESPASSING” were painted in orange and black on the middle horizontal slat, while two more surveillance cameras were mounted on top of the fence.

Under Indiana law, a fence is considered a “nuisance” if it unreasonably exceeds six feet in height, and is either erected or maintained for the purpose of annoying the adjoining property owners.

In mid-September 2005, the Estes responded by suing their neighbors in Porter County Superior Court. Their fence violated the “spite fence” statute, the lawsuit claimed, while the Gertzes' use of the public address system and cameras should likewise be abated as a nuisance.

So as part of the Hebron community, did the parties “work together” to settle their differences?

Yeah, right.

Following a bench trial, the trial court ruled that the Gertzes had created a nuisance by maliciously erecting and maintaining their barrier just to annoy their neighbors. Moreover, said the court, the defendants had invaded the Esteses' privacy by using the public address system and cameras.

Given these findings, the Gertzes were ordered to remove everything and pay $2,500 to the plaintiffs. The court also entered a mutual protective order to prevent the families from contacting, harassing or annoying each other.

In their first appeal — yes, there was more than one — the Gertzes argued, among other things, that the spite fence law didn't apply because they had obtained a permit for their fence. But an Indiana appeals court rejected this argument in early 2008 and affirmed the lower court's orders.

The sequel began in mid-September 2008, almost three years to the day the lawsuit was originally filed. In their post-judgment petition, the Esteses alleged that the Gertzes still hadn't removed the fence, public address system or cameras, and were still harassing and threatening them.

Ten days later, the Gertzes filed their own petition. The judgment should be modified, said the defendants, to allow them to remove only the top one foot of the fence instead of the whole structure.

But at the ensuing hearing, the Gertzes testified that they had already removed the top two feet of the fence. Since the structure was now six feet tall and no longer qualified as a “spite fence,” said the Gertzes, they shouldn't be required to remove it.

But the trial court didn't bite.

In reaching its determination that the fence was a “spite fence,” said the court, the height had been only “one component” of its reasoning. So because the barrier “is and remains a nuisance,” the court once more ordered the Gertzes to remove it.

In their second appeal, the defendants again argued that their fence, given its revised height, no longer violated the spite fence statute.

But just last month, an Indiana appeals court rejected this claim. For one thing, the court reiterated how the order to remove the fence wasn't based solely on its height.

The court also denied relief on procedural grounds.

Instead of seeking only a modification, said the court, the Gertzes' petition essentially sought relief from the entire judgment. Since they had failed to show “exceptional circumstances” justifying that type of “extraordinary remedy,” the court ultimately concluded that their petition was properly denied.

So will the mother of all spite fences finally be removed?

Probably, although I wouldn't be surprised if the Esteses are already dreading what might take its place.

It won't be a welcome mat, that's for absolute sure.