CHRISTINE FRENCH v. PAUL BRUCE AND JUDY BRUCE
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001984-MR
CHRISTINE FRENCH
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS MCDONALD, JUDGE
ACTION NO. 97-CI-004322
v.
PAUL BRUCE AND
JUDY BRUCE
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Christine French ("French") appeals from an
order of the Jefferson Circuit Court requiring her to remove
concrete ornaments and shrubbery the front yard of her residence.
For the reasons stated herein, we must reverse.
The facts are not in controversy.
French owns a parcel
of residential real property situated in Woodside Acres
subdivision in Jefferson County, Kentucky.
The adjoining parcel
is owned by Paul Bruce and Judy Bruce (the "Bruces").
When
facing the parcels from the street, the Bruces's driveway is on
the right side of their property, with the right edge of their
driveway almost touching the Bruce/French property line.
Prior
to the institution of this action, French had erected a wooden
fence which enclosed her yard.
On August 4, 1997, French filed the instant action
against the Bruces in Jefferson Circuit Court alleging that they
had violated their deed restrictions by building a room addition
and garage which was finished with an unauthorized siding
material, i.e., vinyl.
She further alleged that the Bruces's
driveway encroached onto her property, and that the encroachment
placed a cloud on her title.
Lastly, she maintained that the
Bruces repeatedly drove their vehicle into the wooden fence
described above.
She sought removal of the driveway
encroachment or compensation therefore; removal of the vinyl
siding or damages for its use; and, compensation for damage to
the fence.
On September 14, 1998, the Bruces filed a counterclaim.
They alleged therein that the wooden fence referenced in French's
complaint violated French's deed restriction prohibiting a fence
from extending toward the front property line beyond the wall of
the residence.
They further alleged that the fence constituted a
nuisance under Kentucky statutory law, and they sought a
permanent injunction requiring French to remove the fence.
The matter was referred to mediation, without success.
After the Bruces moved for summary judgment on French's claim,
and French moved for summary judgment as to the Bruces’s
liability, the circuit court rendered an order on February 11,
2000, granting the Bruces’s motion.
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As a basis for the order,
the court noted that the Bruces had removed the driveway
encroachment and had repaired any damage to the fence.
As for
the alleged improper use of vinyl siding, the Bruces obtained a
sufficient number of signatures from the subdivision homeowners
necessary to amend the deed restrictions, thus rendering the
issue moot.
The matter proceeded to a bench trial on the sole issue
of whether French's fence violated the deed restrictions.
Upon
taking proof, the court rendered findings of fact and conclusions
of law on February 17, 2000.
It determined that the fence was
both a violation of the deed restrictions and a private nuisance
as defined by KRS 411.510 through 411.550.
French was ordered to
remove the fence within 45 days of the date of judgment.
Thereafter, French removed the fence.
She then
installed a row of plants and concrete ornaments along the edge
of her property next to the property line.
The row consists of
small shrubs interspaced between concrete planters and concrete
pineapples.
The plants and concrete items were spaced
approximately 24" apart, center to center1, and do not encroach
on the Bruces’s property.
On March 15, 2000, the Bruces moved to have the row of
plants and concrete items removed.
a "defacto fence",
They argued that the row was
and further that it continued to be a
nuisance because it interfered with the Bruces getting out of
1
We have estimated the spacing based on defendant's exhibit
3. That exhibit consists of a photograph of a yardstick next to
the row of plants and concrete items.
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their vehicles.
As such, they argued that the row was violative
of the court's prior order to remove the fence.
A hearing on the matter was conducted.
After taking
proof on the motion, including the submission of photographs, the
circuit court found that the row " . . . not only resembles, but
constitutes a structure on par with a fence and it is in direct
contravention not only of the Deed of Restrictions but in
contravention of the Court's order requiring its removal."
It
went on to find that the row was a nuisance because it interfered
with the Bruces exiting their vehicles.
remove the row within 14 days.
It ordered French to
This appeal followed.
French now argues that the circuit court committed
reversible error in ordering her to remove the shrubs and
concrete items.
She maintains that the plantings do not
constitute fence, nor a private nuisance as defined in KRS
411.550.
She seeks a reversal of the court's August 16, 2000,
order.
Having closely examined the record, the law, and the
arguments of counsel, we find French's argument persuasive and
must reverse the order on appeal.
The deed restriction at issue
states as follows: "8. No fences of any nature may be extended
toward the front of the property line beyond the front wall of
the residence;
. . . ."
Clearly, the primary question now
before us is whether the circuit court properly concluded that
the row of shrubbery and concrete ornaments constitutes a "fence
. . . of any nature" for purposes of application of the deed
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restriction.
We must conclude that the circuit court erred in
finding that it does.
As a general rule, writings should be enforced
according to the plain meaning of the words they contain.
See
generally, Bennett v. Consolidated Realty Company, Ky., 11 S.W.2d
910 (1928).
This rule of construction is applicable to a variety
of writings including constitutions, Todd v. Dunlap, Ky., 36 S.W.
541 (1986), statutes, Camera Center, Inc. v. Revenue Cabinet,
Ky., 34 S.W.3d 39 (2000), and, as in the matter at bar, deed
restrictions, Bennett, supra.
In Bennett, the Court, citing
other authority, stated that, "[I]t is a general rule that where
the words of any written instrument are free from ambiguity in
themselves . . . such instrument is always to be construed
according to the strict, plain, common meaning of the words
themselves . . . ."
Bennett, 11 S.W.2d at 911.
It went on to
state that, "[I]n short, the words of an instrument, unambiguous
in themselves, cannot be controlled by proof that the parties
used them with a definite and limited meaning, for the purpose
of that particular instrument."
Id.
According to Bennett, then, the "strict, plain, common
meaning" of the language at issue is controlling.
The parties
have offered various definitions of what constitutes a fence.
These definitions, which are set forth in the record, are of some
probative value.
In them, the word "fence" is defined in a
number of ways, such as "an enclosing structure or barrier" or a
"structure, or partition, erected for the purpose of enclosing a
piece of land."
Having closely studied these definitions,
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including the supportive case law cited by both French and the
Bruces, we cannot conclude that the circuit court's finding on
the issue at bar is supported by evidence of probative value.
Ultimately, it is our conclusion that a person of reasonable
sensibilities, upon viewing the shrubs and concrete ornaments,
would not describe them as a fence.
The Woodside Acres developers could have, had they so
desired, included specific language relating to shrubs, hedges,
or other structures.
For example, a California developer limited
plantings with the following deed restriction: "No hedge or
hedgerow, or wall or fence or other structure shall be planted,
erected, located or maintained upon any lot in such location or
in such height as to unreasonably obstruct the view from any
other lot or lots on said Tract."
Cal. App. 3d 892 (1981).
See, White v. Dorfman, 116
While every contingency cannot be
anticipated, broad and inclusive language in the deed restriction
at issue could have limited or barred French's plantings.
It is
more likely, though, that the Woodside Acres developers simply
wished to limit only fences and not shrubs or concrete ornaments,
since this is what the express language of the deed restrictions
so states.
We must give great deference to conclusions of the
factfinder on questions of fact if the conclusions are supported
by substantial evidence.
Ky., 805 S.W.2d 116 (1991).
Uninsured Employers' Fund v. Garland,
On questions of law, or mixed
questions of law and fact, we have greater latitude to determine
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if the findings are supported by evidence of probative value.
Id.
The issue at bar is a mixed question of law and fact.
Having found that there is no evidence of probative value
supportive of the conclusion that French's shrubbery and concrete
ornaments constitute a fence, we must reverse on this issue.
French also argues that the circuit court erred in
ruling that her plantings constitute a private nuisance.
She
maintains that KRS 411.550, which defines a public nuisance, is
inapplicable since there must be a physical invasion or touching
of the plaintiff's property.
As such, she seeks to have reversal
on this issue.
KRS 411.550 states:
(1) In determining whether a defendant's use
of property constitutes a private nuisance,
the judge or jury, whichever is the trier of
fact, shall consider all relevant facts and
circumstances including the following:
(a) The lawful nature of the defendant's use
of the property;
(b) The manner in which the defendant has
used the property;
(c) The importance of the defendant's use of
the property to the community;
(d) The influence of the defendant's use of
property to the growth and prosperity of the
community;
(e) The kind, volume, and duration of the
annoyance or interference with the use and
enjoyment of claimant's property caused by
the defendant's use of property;
(f) The respective situations of the
defendant and claimant; and
(g) The character of the area in which the
defendant's property is located, including,
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but not limited to, all applicable statutes,
laws, or regulations.
(2) A defendant's use of property shall be
considered as a substantial annoyance or
interference with the use and enjoyment of a
claimant's property if it would substantially
annoy or interfere with the use and enjoyment
of property by a person of ordinary health
and normal sensitivities.
French argues, and the Bruces attempt to rebut, the
notion that a private nuisance generally requires some sort of
physical touching.
The case law, though, primarily centers on
the whether the source of the complaint is, in the language of
KRS 411.550, a "substantial annoyance or interference".
Examples
of such annoyance or interference include the odor of a chicken
farm, Valley Poultry Farms, Inc. v. Preece, Ky., 406 S.W.2d 413
(1966), the noise of jet aircraft, Louisville & Jefferson County
Air Board v. Porter, Ky., 397 S.W.2d 146 (1965), or contamination
of the plaintiff's land with polychlorinated biphenyls (PCBs),
Fletcher v. Tenneco, Inc., 816 F. Supp. 1186 (E.D. Ky. 1993).
Again, while we are reluctant to tamper with the
circuit court's rulings, we cannot conclude that the presence of
shrubbery and concrete ornaments in French's yard meets the
statutory or common law definition of a private or public
nuisance.
Unlike the odor of chickens, the sound of jet
aircraft, or the contamination of a plaintiff's land with PCBs,
French's shrubbery never leave her property.
To the contrary, if
the Bruces stumble over French's shrubbery, it is because they
have stepped into her yard.
They may avoid the aggravation by
remaining on their property.
Our research has uncovered no
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other statutory or common law nuisance, public or private, which
may be similarly avoided.
We conclude that the lower court improperly found
French's shrubbery and concrete ornaments to be a private
nuisance.
As such, we must reverse on this issue.
For the foregoing reasons, we reverse the order of the
Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven A. Snow
Louisville, KY
Dennis H. Shaw
David A. Black
Middletown KY
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