Woodsmall v. Lost Creek Township Conservation Club, Inc.

Citations: 933 N.E.2d 899; 2010 Ind. App. LEXIS 1691Docket: No. 84A01-1001-PL-33

Court: Indiana Court of Appeals; September 15, 2010; Indiana; State Appellate Court

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Phyllis Woodsmall and other Homeowners appeal a negative judgment against Lost Creek Township Conservation Club, Inc. regarding their nuisance claim. The court affirms the lower court's decision. The central issue is whether the judgment contradicts the law. Lost Creek operates a shooting range in Vigo County, Indiana, which has been active since 1984. A 1972 court decree limited shooting activities at Lost Creek to specific times and prohibited shooting past 10:00 p.m. Increased shooting activities began after September 11, 2001, when local law enforcement began using the range. The Homeowners filed for injunctive relief on July 17, 2007, seeking to ban rifle and pistol shooting or restrict activities until safety recommendations were met. Following a bench trial in December 2009, the court denied their request on January 25, 2010. 

The appellate review follows Indiana Trial Rule 52, which states that findings by the trial court should not be overturned unless clearly erroneous, emphasizing the credibility of witnesses. The court applies a two-tiered review: first assessing if evidence supports the findings, then if those findings support the judgment. The Homeowners argue that the evidence showed that Lost Creek's activities interfered with their enjoyment of their properties and posed potential harm. Lost Creek counters that the evidence was not one-sided and that the Homeowners did not meet their burden of proof.

Indiana statutes define nuisances, with Indiana Code Section 32-30-6-6 categorizing an actionable nuisance as anything that is injurious to health, indecent, offensive to the senses, or obstructive to property use, thereby interfering with the comfortable enjoyment of life or property. Nuisances are classified as public, affecting a community, or private, impacting individuals. A private nuisance occurs when one party's property use negatively affects another's enjoyment. Nuisances may be categorized as per se (inherently unlawful) or per accidens (lawful use becoming a nuisance due to circumstances). In this case, the Homeowners alleged a private, per accidens nuisance, focusing on excessive noise and the unsafe travel of bullets.

Evidence presented included reports of anxiety from gunfire sounds and logs of rapid-fire incidents, but conflicting evidence existed regarding the actual discomfort caused. The trial court noted that a videotape showed a duck swimming undisturbed near the Woodsmall home, suggesting minimal disturbance. Testimonies indicated that gunfire could stem from areas outside Lost Creek, with one homeowner noting sounds from a different location. Expert testimony suggested that if bullets escaped the shooting range, their trajectory would not pose danger upon falling. The Homeowners did not demonstrate property damage or physical injury related to the alleged nuisance, as one homeowner only suspected a bullet strike without finding evidence, while another found a spent bullet without determining its source.

A landowner's constant fear for their safety or property can constitute a nuisance, but such fear must be grounded in more than mere speculation. In the case discussed, Steven Hose, a firearms expert, found the Lost Creek shooting ranges safe, stating that while it was "possible" for bullets to stray and hit nearby properties, the energy of such bullets would not cause serious injury. The Homeowners argued that their expert's credibility surpassed that of Lost Creek's, but the court noted that evaluating credibility and reweighing evidence is outside its purview. The Homeowners' own expert, David Wanninger, acknowledged potential risks from ricocheting bullets but did not label the range as dangerous, nor did he recommend its closure. Instead, he suggested measures to enhance safety and reduce noise. The evidence presented did not solely favor the Homeowners, leading to the conclusion that they failed to prove their case. As a result, the court affirmed the judgment against the Homeowners, who could not challenge the findings based on insufficient evidence after suffering a negative judgment. The Homeowners also proposed restrictions on shooting activities, citing concerns about the inadequacy of spoil banks to contain stray bullets.