Court: West Virginia Supreme Court; June 12, 2012; West Virginia; State Supreme Court
Petitioners Robert P. and Rickie Bansbach appeal the Circuit Court of Marion County's January 28, 2011, order that denied their motion for a permanent injunction and dissolved a temporary injunction against Respondents Daniel Harbin and Mary Fanok. The Bansbachs allege that the Respondents engaged in nuisance and harassment, including creating a second junkyard visible from their property, posting provocative signs, yelling insults, stalking one of their daughters, and obstructing their ATV. Initially, a temporary injunction was granted on May 21, 2010, prohibiting further signs and harassment. However, after reviewing the evidence, the trial court ruled that the Respondents' actions did not constitute a private nuisance, their speech was protected under the First Amendment, and their conduct did not warrant injunctive relief. Consequently, the Bansbachs filed for interlocutory appeal challenging the trial court's decision regarding the legal standards applied to nuisance law and free speech protections.
A three-pronged deferential standard of review is established for evaluating objections to the findings supporting the granting or denial of temporary or preliminary injunctions. This standard includes: (1) reviewing the final order under an abuse of discretion standard, (2) assessing the factual findings of the circuit court under a clearly erroneous standard, and (3) examining questions of law de novo. The discussion references the court's decision in Hendricks v. Stalnaker, which defined private nuisance law, emphasizing that "nuisance" lacks a precise definition due to the unique facts of each case. In Hendricks, the court addressed whether drilling a water well that hindered a neighbor's septic system constituted a private nuisance. The court clarified that private nuisance involves substantial and unreasonable interference with land use and enjoyment, requiring an assessment of whether the conduct was intentional and unreasonable. Intentional conduct is defined as that which the actor knows or should know causes substantial interference. The concept of unreasonableness is evaluated through a balancing test, where the gravity of harm must outweigh the social value of the activity causing the interference. Ultimately, in Hendricks, the court found that the landowners failed to prove that the water well's use was unreasonable, favoring the well's social value.
The trial court's analysis began by assessing the rural location of the property in question, noting that it is situated six to eight miles outside Mannington amidst primarily farmland. The court emphasized that rural residents must tolerate typical farm and livestock conditions, indicating that what constitutes a nuisance can vary by locality. At the heart of the Petitioners’ nuisance claim is the assertion that Respondents have turned a previously pleasant area into an eyesore. Citing precedent from Barrack, the court noted that equity courts typically refrain from intervening solely based on visual offensiveness.
In Burch v. Nedpower Mount Storm, the court acknowledged the homeowners’ rights under private nuisance law but clarified that unsightliness alone rarely justifies legal intervention unless accompanied by other forms of nuisance, particularly in residential areas. The Petitioners argued that their area qualifies as residential, but the court upheld the trial court's determination of its rural character. It reiterated that unsightliness alone does not constitute a sufficient basis for abatement under nuisance law and emphasized the necessity for plaintiffs to demonstrate significant harm to property rights.
The court referenced Karpiak v. Russo, where a nuisance claim was dismissed due to a lack of serious annoyance or intolerability. It also noted that not every interference with property use is actionable, as highlighted in Mohr v. Midas Realty Corp. Ultimately, the court affirmed the trial court's ruling that the Respondents' storage of farm equipment and materials on their property did not constitute a nuisance warranting abatement, as their usage did not meet the established criteria under nuisance law.
The case does not support a finding of private nuisance. Notably, the non-agricultural items and offensive signs previously present on the Fanok property have been removed. The court draws parallels to Booker v. Foose, where various actions—including false abuse reports, photography of the appellants, and aggressive sign posting—were deemed insufficient to constitute a private nuisance, as they did not substantially impair the appellants' enjoyment of their property. Although the Petitioners found the Respondents' actions—like name-calling and sign posting—unpleasant, the Respondents similarly objected to being photographed by Mrs. Bansbach. Such conduct does not fall within the scope of nuisance laws. The Circuit Court of Marion County's decision is affirmed, noting that Respondents failed to appear for oral argument despite proper notification. This disregard for court rules and professional courtesy is criticized. The hearings occurred on three dates in 2010. A third parcel of land, owned by Mr. Harbin's parents and leased to him, borders the Petitioners' property. The dispute allegedly arose from Daniel Harbin's unauthorized removal of items from the Petitioners' property to the Fanok property, which became visible from the Petitioners’ residence. Items moved included various junk and debris. Mrs. Bansbach documented these actions, and a brief incident involving her being blocked from returning home was noted.
Respondents placed a provocative sign on Petitioners' property, which stated 'Lazy Man Salvage. Call 1-800-KISSMY__ww.Lazy-Man.com.' Additionally, Respondents dumped pig manure near the Bansbach residence, following their announcement of a pig farm. The court reviews temporary injunctions using a three-pronged standard: abuse of discretion for final orders, clearly erroneous for factual findings, and de novo for legal questions. Petitioners argue that the trial court erred by not granting injunctive relief due to the intentional nature of Respondents’ actions. However, the court clarified that both intentional and unreasonable conduct is necessary for a nuisance claim. While both parties needed water systems, the well required a 100-foot non-interference zone, and the septic system posed a greater risk of drainage issues. The trial court dismissed the case based on the pleadings. In a related case, noise and property value diminution were cited as nuisances, but liability hinges on whether the interference exceeds what is reasonable to bear. Mr. Harbin testified that he cleared the Fanok property of non-farm items and removed the complained-of signs by April 28, 2010. Petitioners contended the trial court incorrectly applied Cohen v. California regarding speech allegations; however, the court found no error in determining that the speech was not actionable under nuisance law and that the profanity did not breach the peace or rise to an intolerable level.
