## Facts

- Several neighboring landowners in Barry County, Missouri, sued adjacent owners who operated a dog kennel.
- Plaintiffs alleged the kennel housed numerous dogs and produced frequent barking during the day and sometimes at night.
- Plaintiffs testified the barking was persistent and disturbed sleep, daily activities, and their enjoyment of their homes and property.
- Defendants disputed that the barking substantially interfered with plaintiffs’ property use, emphasizing the area’s semi-rural character, the kennel’s construction, the distance from plaintiffs’ homes, and testimony from some neighbors who were not significantly bothered.
- After a bench trial, the court entered a permanent injunction prohibiting operation of a dog kennel on defendants’ property and limiting defendants to no more than two dogs.
- Defendants appealed, arguing the judgment was against the weight of the evidence because the barking did not substantially interfere with plaintiffs’ property rights.

## Issues

1. Whether substantial evidence supported the trial court’s finding that the kennel’s barking constituted a substantial and unreasonable interference with plaintiffs’ use and enjoyment of their property (a private nuisance).
2. Whether the trial court’s permanent injunction—prohibiting a kennel and limiting defendants to two dogs—was an erroneous application of law or against the weight of the evidence in a court-tried case.

## Decision

- The Missouri Court of Appeals affirmed.
- The court held the record contained substantial evidence supporting the trial court’s finding of a private nuisance based on excessive and unreasonable barking.
- The court deferred to the trial court’s resolution of conflicting testimony and credibility determinations.
- The court upheld the permanent injunction limiting defendants to no more than two dogs as an appropriate remedy for an ongoing nuisance.

## Legal Principles

- In a court-tried case, an appellate court sustains the judgment unless it lacks substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.
- Substantial evidence is evidence with probative force from which the fact-finder can reasonably decide the case; “weight of the evidence” concerns probative value, not quantity.
- Noise is not a nuisance per se, but may constitute a private nuisance when it is excessive and unreasonably interferes with neighboring owners’ use and enjoyment of land, considering locality and the character of the neighborhood.
- Appellate courts defer to trial courts on disputed facts and credibility choices when evidence conflicts.
- Injunctive relief may be granted to abate a continuing private nuisance and may include limits on the number of animals kept when supported by the evidence.

## Conclusion

The court affirmed a permanent injunction restricting defendants to two dogs because credible testimony supported the trial court’s finding that frequent barking from the kennel substantially and unreasonably interfered with neighboring owners’ use and enjoyment of their property, and appellate review required deference to the trial court’s factual and credibility determinations.


Tichenor v. Vore, 953 S.W.2d 171 (Mo. Ct. App. 1997)