Hatfields and McCoys, meet Huss and Price

by Victoria Heldt

Apple Hill Farms Development LLP, Jon Huss Construction Corp. v. Daryl Price, Nicole Palmer v. Berhoff Homes LLC
(Wisconsin Court of Appeals May 15, 2012)

Jon Huss Construction Corp., a homebuilder, frequently builds speculation homes intended for resale. Huss built one such home on a lot adjacent to Daryl Price’s lot within the Apple Hill Farms Development. Price received approval from Apple Hill to build his house at a specific elevation, which required his lot to slope towards Huss’s and to be no more than four feet higher than Huss’s lot at the border. Price built his lot two feet higher than approved and chose not to slope his lot. Alternatively, he built a 32-foot long, 12-foot high concrete retaining wall near the property line. John Hofferber, who built the wall, stated he built it in a way that allowed it to later be faced with brick or stone. Numerous potential homeowners told Huss they would not purchase the speculation home unless something was done to make the bordering wall more aesthetically pleasing. The wall also blocked the view from Huss’s property, blocked sunlight, and caused increased water, mud, and stones to come onto the property from Price’s property.

The relationship between Huss and Price was contentious from the start. Huss testified that when Price started construction of his home, Huss walked over to introduce himself as the builder next-door. Huss allegedly responded “what the f*** do I need you for?” Hofferber testified that when he would question Price about the concrete wall he would say that “he’ll put stone or brick on it when a judge tells him he has to put stone or brick on.” Matthew Hurteau, a worker on Price’s home, testified that he heard Price say the “big ugly wall can face the ugly house next-door.” Furthermore, Huss claimed someone wrote “a** h***” on his lawn with grass killer.

Apple Hill initially sued Price on the grounds that the wall and site grading violated several restrictions and named Huss as an involuntary plaintiff. Subsequently, Huss filed his own claim, alleging the wall was a private nuisance. It also claimed that the wall prevented Huss from selling the property and decreased the fair market value of the property. It further purported that the wall was built to intentionally cause economic loss and damage to Huss. Prior to trial, the parties reached a partial agreement with Price agreeing to cut off the four feet of wall that extended above ground level and to face the remaining portion of the wall with natural stone. The district court declared the wall an intentional nuisance under common law and under Wis Stat. § 844.10. It concluded Huss suffered approximately $148,000 in damages. Price appealed.

Price argued that Huss’s complaint should have been dismissed on summary judgment because he did not prove an “interference with the use of the property as a family residence.” He argued that a private nuisance claim cannot be made based only on physical appearance. The Court quickly dismissed this argument, first noting that Price failed to cite any legal authority. The court cited Prah v. Maretti in which the Court declared a spite fence to be an actionable private nuisance. Within that ruling, it also declared that a private nuisance could exist in the form of blocked sunlight. It referred to the current definition of a nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Clearly, nuisance claims can arise from any disturbance of the enjoyment of property regardless of physical interference.

Price next argued that Huss failed to file a claim under the appropriate statute (Wis. Stat. § 844.10) and that the wall did not constitute a public nuisance under the statute. The Court declined to discuss this argument since it did not affect the circuit court’s determination that the wall constituted a nuisance under common law. It did, however, state that Huss’s complaint was sufficiently filed because Wisconsin statute only requires an individual to set forth basic facts in order to make a claim. Price’s last claim argued that the $148,000 awarded was speculative since it relied primarily on one real estate agent’s estimate. The Court rejected this argument since it was not supported by legal authority. It affirmed the district court’s opinion.

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