## Facts

- Roland E. Wernke and John and Karen Halas were next-door neighbors with abutting side yards; James R. and Geraldine Peacock owned the other adjacent lot.
- After neighborhood disputes over a boundary tree and property upkeep, Wernke built a privacy fence on his property along the boundary with the Halases.
- The fence consisted of vertical boards and was no more than six feet tall; Wernke added vinyl strips, a license plate over gaps, and an orange plastic construction mesh section on the side facing the Halases.
- Wernke set fence support posts in concrete along the fence line; while the concrete was wet, unknown vandals scratched obscenities into a support post’s concrete.
- None of the fence, posts, or concrete encroached onto any neighbor’s property.
- After the Peacocks previously displayed a toilet seat facing Wernke’s yard (later removed), Wernke erected a toilet-seat display on his land, including a painted brown spot alleged to suggest human excrement.
- The Halases and related plaintiffs alleged the fence, the toilet-seat display, and the obscenities constituted a private nuisance.

## Issues

1. Whether a lawful fence and other displays located entirely on the defendant’s property, alleged to be vulgar or offensive in appearance, constituted a private nuisance under Indiana law.
2. Whether displeasing aesthetics, insults, or offensive expression—without a showing of substantial, unreasonable interference—are sufficient for private nuisance liability.

## Decision

- The Indiana Court of Appeals reversed the trial court’s summary judgment for the plaintiffs.
- The court held that the fence, toilet-seat display, and obscenities did not constitute an actionable private nuisance on the record presented.
- Because nuisance liability failed, the awards of compensatory damages, punitive damages, and attorney’s fees were reversed.

## Legal Principles

- Private nuisance requires a substantial and unreasonable interference with another’s use and enjoyment of land.
- A structure or condition is not a nuisance merely because it is unattractive, displeasing, or offensive in appearance.
- A lawful use of land is not a nuisance per se; at most, it may be a nuisance in fact depending on circumstances, but aesthetics and insults alone do not satisfy the interference requirement.
- The absence of physical encroachment and the lawful character of a typical residential privacy fence weigh against finding a nuisance.

## Conclusion

The court concluded that neighborhood hostility, vulgar displays, and unattractive or offensive aesthetics on a landowner’s own property do not, without proof of substantial and unreasonable interference with neighbors’ property use and enjoyment, establish a private nuisance.


Wernke v. Halas, 600 N.E.2d 117 (Ind. Ct. App. 1992)