Concrete wall 9 feet high, 800 feet long just may be a spite fence

by Hannah Dankbar and Gary Taylor

Bennett, et al,  v Hill
Montana Supreme Court, February 3, 2015

Lot owners of the Lake Hills Subdivision complained about a wall constructed by Lake Hills Golf Course, LLC. The wall is located within the subdivision and adjacent to the lot owners’ properties.

The “Declaration of Restrictions” for the subdivision was created and approved in 1958. Any lot owner has power to enforce the restrictions. Lake Hills Golf, LLC got their land in the subdivision through a warranty deed in 2009. Part of the deed specified that the golf course be subject to the restrictions and any amendments.

In early 2011 Hill, the owner of the Golf Course applied for a zoning change to multiple lots he owned in Lake Hills Subdivision. Other lot owners in the subdivision opposed the change in zoning, resulting in Hill withdrawing his application. The lot owners said their relationship with Hill was damaged.

Late in 2012, Hill applied for a building permit from the City of Billings. He wanted to build the wall that is the subject of this case. He received the permit and built a $40,000 wall of concrete and rebar. The wall is nine feet tall and is set approximately ten feet from the border between the Golf Course property and the opposed lot owners’ property. The wall runs parallel to the properties and is approximately 800 feet long, with a 2-foot jog perpendicular to its length at 40-foot intervals. The lot owners claimed that the wall violated the Restrictions, the wall constituted a nuisance, and also constituted a spite fence.  The lot owners sued Hill in district court, but lost on all issues on summary judgment.  The property owners appealed the court ruling.

On appeal the Montana Supreme Court considered multiple issues:

1.Did the District Court err by granting summary judgment in favor of Hill on the issue of whether the wall constituted a spite fence?

A “spite fence” is one that provides no benefit to the person erecting the fence (erected solely for spite).   The district court found that the wall benefited the golf course by discouraging trespassers and preventing trash from blowing onto the course. The Supreme Court noted, however, that the lot owners presented affidavits that they had never observed trespassers or trash cross the golf course property from their properties, and they never received complaints of this happening. One of the Plaintiffs also stated that Hill had told him that the wall was built because the Plaintiffs’ properties were unattractive. Viewed in a light most favorable to the property owners, the district court should have allowed the spite fence claim to proceed to trial.

2. Did the District Court err by granting summary judgment in favor of Hill on the issue of whether the wall constituted a nuisance?

The district court found that since there was no issue of the wall serving a “reasonable purpose”(stopping trash and trespassers) there is no legal argument that it constitutes a nuisance. The Supreme Court found this to be an incorrect interpretation of the law. The Court stated:

A beneficial or reasonable purpose will not immunize something that would otherwise constitute a nuisance from being ruled a nuisance. Montana statute states that “[a]nything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” Section 27-30-101(1), MCA (emphasis added). Although there are exceptions for farming operations, activities authorized by statute, and noises from shooting activities at shooting ranges, Montana statute does not otherwise limit this broad definition of what may or may not constitute a nuisance.

The Supreme Court was unwilling to rule that anything that has a beneficial or reasonable use cannot also be a nuisance (at the same time noting that the question of the fence being a reasonable use was still unresolved), and reversed the district court on its grant of summary judgment on the nuisance claim.

3. Did construction of the wall violate the Subdivision Restrictions?

Paragraph 6 of the Restrictions states:

6. No fence or wall shall be erected or maintained on any lot, nor any hedge planted or maintained on any lot until written authority therefore has been secured from the Architectural Control Committee (ACC), which shall have authority to prescribe the location, height, design and materials used.

Hill claimed that the provisions of paragraph 6 of the Restrictions have been waived and are therefore unenforceable against them. To prove waiver of a covenant, it must be demonstrated that the other party knew of and acted inconsistently with the covenant, and that prejudice resulted to the party asserting waiver.  It may be either express or demonstrated by a course of conduct. If demonstrated by a course of conduct, waiver will “depend upon the circumstances of each case and the character and materiality of the permitted breach.”  Despite that fact that the ACC had never met or approved a construction project of any kind, and “the vast majority of the residences and structures within the subdivision were built without approval from the ACC,” such facts do not establish that breaches occurred of the character and materiality necessary to establish waiver.  Indeed, there was no indication that any fences, walls or hedges had ever been constructed (or even exist) in the subdivision.

Finally Hill argued that paragraph 16 is an exception to paragraph 6 and allows them to build the wall. Paragraph 16 reads:

16. If used as a public or private golf course, country club, or park, any structure incidental to such use, including but not limited to clubhouse, swimming pool, tennis courts and other recreational facilities, storage shops, and repair and maintenance facilities and shops, may be maintained and erected on any of the said tracts.

The Supreme Court found that it was a genuine issue of material fact as to whether the wall was “incidental” to the use of the property as a golf course, noting again the lack of evidence that trash or trespassers had ever crossed the property.

The Supreme Court reversed all of the district court’s rulings favoring Hill, and remanded for trial.

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