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Schwippert v. Walters

A-4029-96T2 (N.J. Super. App. Div. 1998) (Unpublished)

FENCES; NUISANCE—A lawfully erected border fence may constitute a private nuisance.

A homeowner constructed a ten to twelve foot high fence along its property line in full compliance with then-existing zoning and construction code requirements. A neighbor filed a complaint alleging that the offending fence denied her the right to quiet and peaceful enjoyment of her land because it interfered with her ability to view a nearby lake and effectively and efficiently eliminated all air flow from the lake through her house. Not only did this allegedly cause a diminution of her property’s value, but it made her fearful of her safety because of the potential fire and wind hazard. The lower court defined the critical issue as whether the fence erected by the neighbor constituted a private nuisance. To constitute such a nuisance, an aggrieved party must demonstrate that a fence substantially and unreasonably interferes with use and enjoyment of the property and that the severity of the injury outweighs the utility of the neighbor’s conduct. After an on-site inspection by the lower court judge, an order was issued requiring that two sections of the offending fence be removed. The Appellate Division upheld the lower court’s judgment and endorsed the lower court judge’s visit to inspect the site because it helped the judge to better understand the evidence. Because each of the party’s attorneys had the opportunity to make comments and correct the judge’s finding and conclusions before a final order was entered, there was no basis for an objection that the visit had taken place in the absence of counsel.


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