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sensors and seven flood lights. The flood lights intermittently come on when the
the neighborhood and because the Clines had allegedly harassed him. Berg
also introduced testimony from a real estate appraiser who opined the Clines'
fence has caused a “nine percent diminution in [the] value” of Berg's property.
But, the appraiser admitted the market value of Berg's property would increase
by nine percent if the Clines remove the fence.
100 watts and “double-checked” to insure that the illuminated area is within the
boundary of his property.
When Berg failed to comply with the request to redirect the lights, the Clines'
attorney again wrote to Berg, informing him to
accept this letter as notice on behalf of the Clines that they plan to build a solid
undisturbed use of their home and property are worth the expense and
inconvenience.
Plans will be to start this project in five days. If you do not want this built, simply
leave the Cline family alone, and turn off your light display. If you continue with
your antics, they will have no other recourse than to proceed.
neighbors. Mr. Cline testified the fence blocks the lights and other devices Berg
installed to watch the Cline family and then explained why he erected the fence:
The reason is because Mr. Berg was stalking us. He basically used the lights as
an intimidation factor. Every time me or my wife would walk out to let the dog
out, he would sit there and play with the lights on and off to let us know that he
removed. Berg stated in his letter, “I hate to burst [the Clines'] bubble but I am
from the city with apartment buildings that are 20 and 30 stories high, and no
view of anything but walls, and trash cans. I will just install higher perimeter
lights that will light, track, and record movement around my property.”
Notably, none of these residents testified on Berg's behalf at the trial in
the Clines proved beyond any question that Berg's surveillance system allowed
Berg to watch on his television anything going on at the Cline residence,
provided it took place in front of an open window.”
Continuing, the circuit court expressed the “firm ... opinion that Berg [was]
primarily responsible for what is an intolerable situation” and stated it was
refused to apply the doctrine because it believed the fence is “an ugly scar on a
beautiful area” and should be removed. The circuit court concluded that,
although the fence does provide some protection to the Clines from Berg's lights
and is not a “spite fence,” it is nonetheless a private nuisance.
The term “spite fence” is defined as “[a] fence erected solely to annoy a
in granting injunctive relief to Berg because it failed to apply the “clean hands”
doctrine. With regard to that issue, the Clines argue that Berg, as the party
seeking an equitable remedy, must have “clean hands” in order to prevail.
Continuing, the Clines point out that the circuit court found “Berg [was] primarily
responsible for what is an intolerable situation” and that it could dismiss the bill of
clean hands,’ ... the complainant seeking *234 equitable relief must not himself
have been guilty of any inequitable or wrongful conduct with respect to the
transaction or subject matter sued on. Equity will not give relief to one seeking
to restrain or enjoin a tortious act where he has himself been guilty of fraud,
illegality, tortious conduct or the like in respect of the same matter in litigation.”
discretion of the fact finder. .
Applying these principles, we conclude the circuit court abused its discretion by
failing to apply the “clean hands” doctrine. At the outset, we note that Berg did
not assign cross-error to the circuit court's factual findings that he was the party
primarily responsible for the “intolerable situation” at issue and that the Clines
inequitable result and violate public policy because the fence is a private
nuisance.
It is true that the doctrine is not absolute and should not be applied when the
result would be inequitable or violate public policy. ; . We do not, however,
agree with Berg's position that such a result would ensue in this case. Berg
from reproach in his conduct,” and that conduct was “in respect of the same
matter in litigation.” (citation omitted).
CONCLUSION
In light of the unchallenged factual findings regarding Berg's conduct, we
conclude the circuit court abused its discretion in failing to apply the “clean
fence has caused a “nine percent diminution in [the] value” of Berg's property.
But, the appraiser admitted the market value of Berg's property would increase
by nine percent if the Clines remove the fence.
100 watts and “double-checked” to insure that the illuminated area is within the
boundary of his property.
When Berg failed to comply with the request to redirect the lights, the Clines'
attorney again wrote to Berg, informing him to
accept this letter as notice on behalf of the Clines that they plan to build a solid
undisturbed use of their home and property are worth the expense and
inconvenience.
Plans will be to start this project in five days. If you do not want this built, simply
leave the Cline family alone, and turn off your light display. If you continue with
your antics, they will have no other recourse than to proceed.
neighbors. Mr. Cline testified the fence blocks the lights and other devices Berg
installed to watch the Cline family and then explained why he erected the fence:
The reason is because Mr. Berg was stalking us. He basically used the lights as
an intimidation factor. Every time me or my wife would walk out to let the dog
out, he would sit there and play with the lights on and off to let us know that he
removed. Berg stated in his letter, “I hate to burst [the Clines'] bubble but I am
from the city with apartment buildings that are 20 and 30 stories high, and no
view of anything but walls, and trash cans. I will just install higher perimeter
lights that will light, track, and record movement around my property.”
Notably, none of these residents testified on Berg's behalf at the trial in
the Clines proved beyond any question that Berg's surveillance system allowed
Berg to watch on his television anything going on at the Cline residence,
provided it took place in front of an open window.”
Continuing, the circuit court expressed the “firm ... opinion that Berg [was]
primarily responsible for what is an intolerable situation” and stated it was
refused to apply the doctrine because it believed the fence is “an ugly scar on a
beautiful area” and should be removed. The circuit court concluded that,
although the fence does provide some protection to the Clines from Berg's lights
and is not a “spite fence,” it is nonetheless a private nuisance.
The term “spite fence” is defined as “[a] fence erected solely to annoy a
in granting injunctive relief to Berg because it failed to apply the “clean hands”
doctrine. With regard to that issue, the Clines argue that Berg, as the party
seeking an equitable remedy, must have “clean hands” in order to prevail.
Continuing, the Clines point out that the circuit court found “Berg [was] primarily
responsible for what is an intolerable situation” and that it could dismiss the bill of
clean hands,’ ... the complainant seeking *234 equitable relief must not himself
have been guilty of any inequitable or wrongful conduct with respect to the
transaction or subject matter sued on. Equity will not give relief to one seeking
to restrain or enjoin a tortious act where he has himself been guilty of fraud,
illegality, tortious conduct or the like in respect of the same matter in litigation.”
discretion of the fact finder. .
Applying these principles, we conclude the circuit court abused its discretion by
failing to apply the “clean hands” doctrine. At the outset, we note that Berg did
not assign cross-error to the circuit court's factual findings that he was the party
primarily responsible for the “intolerable situation” at issue and that the Clines
inequitable result and violate public policy because the fence is a private
nuisance.
It is true that the doctrine is not absolute and should not be applied when the
result would be inequitable or violate public policy. ; . We do not, however,
agree with Berg's position that such a result would ensue in this case. Berg
from reproach in his conduct,” and that conduct was “in respect of the same
matter in litigation.” (citation omitted).
CONCLUSION
In light of the unchallenged factual findings regarding Berg's conduct, we
conclude the circuit court abused its discretion in failing to apply the “clean
