841 N.E.2d 680 (Mass. 2006)
The plaintiffs, John Rattigan and Jeffrey Horvitz, purchased the Edgewater oceanfront property in Beverly Farms at a foreclosure auction in 1991.1
The following year, defendant Evan Wile purchased the adjacent undeveloped 2.9-acre parcel at foreclosure auction, outbidding Horvitz with plans to build a home on it.2 Wile's only access to his land is by right of way over the plaintiffs' property.3
Beginning in or around 1992, Rattigan brought actions in the Land Court seeking to determine that Wile lacked a right of way and that his land was not buildable under zoning bylaws.4 These actions were unsuccessful.5 After the plaintiffs successfully challenged Wile's building permit, Wile began a campaign of retaliation in August 1999.6
Between August 1999 and July 2003, Wile placed construction debris, a gigantic red metal ocean container, a detached pickup truck bed, a wire frame with plastic figures, an elevated office trailer, portable toilets, and a fifteen-foot tent along or near the boundary with Edgewater.7 Wile also used his property as a heliport, posting a warning sign and conducting landings that propelled debris onto the plaintiffs' property, and invited 150 to 200 people to beach parties on the lot.8
The plaintiffs filed this action on February 14, 2001, and obtained a preliminary injunction in July 2001.9 Wile was twice adjudged in contempt of the injunction.10 After a jury-waived trial, on July 29, 2003, the Superior Court judge found a nuisance, awarded $390,000 in rental value damages for sixty-five weeks plus $19,200 for the trellis fence, and issued a broad injunction.11 The defendant appealed, and the Supreme Judicial Court transferred the case on its own motion.12
Whether activities on one's property that create or maintain unreasonable aesthetic conditions for neighbors are actionable as a private nuisance?13
A trier of fact may find an intentional invasion of another's interest in the use and enjoyment of land to be unreasonable if the gravity of the harm caused thereby outweighs the utility of the actor's conduct.14 Where the sole purpose is to annoy and harm a neighbor the law recognizes no utility.15 Aesthetic conditions may legitimately generate private concern and support a nuisance claim when part of a composite invasion including odors, sounds, and visual conditions that substantially interfere with ordinary comfort or reasonable use and value of property.16
Yes. The defendant placed construction debris, a gigantic red metal ocean container, a detached pickup truck bed with a wire frame holding plastic figures, an elevated office trailer, portable toilets generating offensive odor, and a fifteen-foot tent along the boundary with Edgewater, and used the property as a heliport propelling debris onto the plaintiffs' land while inviting large beach parties, all with the intent to harass as found by the trial judge after the plaintiffs successfully challenged his building permit.17
These actions continued from August 1999 through July 2003 on a large lot where alternative locations were available, substantially diminishing the rental value of Edgewater from $8,000 to $2,000 per week according to expert testimony credited by the judge, and the interferences were composite in nature rather than mere unsightliness.18
The defendant's activities on his property created an actionable private nuisance.19
Whether the res judicata claim was waived because it was not pleaded below?20
Yes. The defendant asserted the res judicata defense on appeal based on two prior contempt adjudications.24 He raised the defense below only in conclusory fashion in his pretrial memorandum.25 That memorandum does not qualify as a pleading under Mass. R. Civ. P. 7(a).26 The failure to plead the defense properly waived it for purposes of appeal.27
The res judicata claim was waived because it was not pleaded below.28
Whether the judge properly awarded damages for the nuisance including the measure and periods of rental value diminution?29
Diminution in rental value is an appropriate measure of damages for temporary interference with property use and enjoyment where the occupant may recover for the period of interference.30 The cost of abatement measures such as a trellis fence is recoverable if a reasonable response even if the defendant thwarted its effectiveness.31 However the award must be limited to periods when the nuisance actually existed.32
Yes. The judge properly measured damages by the decline in Edgewater's summer rental value from $8,000 to $2,000 per week based on unrebutted expert testimony and awarded the $19,200 cost of the trellis fence as a reasonable response to the campaign of interference.33
The periods must be adjusted because damages were assessed for all thirteen weeks of the 1999 summer season although the campaign began only in August and for all of August 2003 although removal was ordered within ten days of the July 29 judgment, requiring reduction from sixty-five weeks to fifty-three weeks and from $390,000 to $318,000 in rental damages.34
The judge properly awarded damages for the nuisance with modification to the periods of rental value diminution.35
Whether the trial court's injunction was overly broad and required modification?36
An injunction in a nuisance case must be tailored to prevent unreasonable interference with the use and enjoyment of neighboring property.37 It must avoid unduly restricting legitimate uses of the defendant's land.38 It must not chill actions based on subjective effects given the history between the parties.39
Yes. The trial judge's broad injunction prohibited any act causing substantial worry or annoyance to the plaintiffs.40 It required clearance of objects within twenty feet and nothing taller than six feet within forty feet of the boundary.41 This risked chilling wholly legitimate uses of the almost three-acre property in light of the parties' contentious history.42
The Supreme Judicial Court therefore modified the injunction to prohibit unreasonable interference, unattended objects more than six feet in height within forty feet of the boundary, and helicopter operations while expressly permitting attended gatherings and future building upon obtaining lawful authority.43
The trial court's injunction was overly broad and required modification.44