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injunctionappealeasementdocket
motiondocketappellantappellee

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Giller v. West, 162 Ind. 17, 69 N.E. 548

Facts

Harriet B. West owned property adjacent to John B. W. Giller's lot. In October 1901, Giller erected a tall fence on the property line, which West claimed obstructed her view and sunlight, negatively impacting her gardening. West filed a complaint against Giller, which included multiple paragraphs, one of which alleged that the fence constituted a nuisance. The court ruled in favor of West on all counts, but Giller appealed specifically regarding the third paragraph.

The appellant was the owner of an adjacent lot, on which he and his family resided, the same being the only property between appellee's lot and Pierce street, a public street of said city of Plymouth; that in October, 1901, the appellant erected on the division line between appellee's premises and his own a tight board fence, 8 feet high by 86 feet long, extending from his shed on the east to his barn on the west, making, with those structures, a barrier more than 8 feet high and 114 feet long immediately adjacent to the south side of appellee's lot.

Issue

Did the court err in overruling Giller's demurrer to the third paragraph of the complaint as amended?

Did the court err in overruling appellant's demurrer to the third paragraph of the complaint as amended?

Rule

The misjoinder of causes of action is not ordinarily sufficient for reversal, but improperly united causes may be separated and docketed as distinct actions. A property owner has the right to build a partition fence, and the motives behind its construction do not impair that right.

While such misjoinder is not ordinarily sufficient ground for a reversal of the judgment, the several causes so improperly united may be separated, on motion, and docketed as distinct actions.

Analysis

The court determined that the third paragraph of the complaint, which alleged the fence was a nuisance, did not provide sufficient grounds for an injunction. It ruled that Giller had the legal right to construct the fence on his property, regardless of its height or appearance, and that West had no easement of light, air, or view that would entitle her to relief.

The fact that the division fence erected by the appellant was close and high, and made of rough and unsightly materials, and that it cut off the view from appellee's lot toward Pierce street, and shaded and thereby injured her garden, did not render the fence a private nuisance, nor entitle the appellee to have it abated.

Conclusion

The appellate court reversed the judgment and instructed the lower court to sustain the demurrer to the third paragraph of the complaint as amended.

Judgment reversed, with instructions to sustain the demurrer to the third paragraph of the complaint as amended, docketed as a separate action, and for further proceedings in conformity to this opinion.

Who won?

John B. W. Giller prevailed in the appeal because the court found that the third paragraph of West's complaint did not state a sufficient legal basis for an injunction.

The appellant had the right to build a partition fence, a house, or any other structure on his premises, and along the entire length of the line dividing them from the real estate owned by the appellee.

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