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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals reversed the denial of a preliminary injunction sought by a couple, finding they could stop neighbors from using an outside wood boiler during their legal action.
Christopher and Shelley Nicholson purchased property adjacent to and to the south of Gary and Mable Bowling in 2004. In 2010, the Nicholsons installed an outside wood boiler to heat their home. The Bowlings claimed the smoke from the heater invades their property and significantly interferes with their enjoyment of it. They have found it difficult to work in the yard, and Mable Bowling said she needed to have breathing treatments and was suffering other health issues because of the smoke.
On Oct. 29, 2013, the Bowlings filed their verified complaint for preliminary and permanent injunctive relief against the Nicholsons, and later filed their motion for preliminary injunction, seeking to enjoin the use of the boiler during the pendency of the litigation. On Oct. 14, 2014, the trial court denied the Bowlings’ motion for preliminary injunction, which they appealed.
The COA said the trial court erred in saying the Bowlings had not established irreparable harm as it related to property loss or physical damage to their property. The Bowlings’ motion was not about damage to their property, but to themselves and the enjoyment of their property, and the trial court did not take this evidence into account.
Because the trial court did not apply the proper standard, the COA said the trial court also did not accurately judge if the Bowlings could win their case if it went to trial.
The COA said the trial court also did not apply the balance of harms factor properly, saying again that the Bowlings’ motion was not about property damage, but the use of their property, which the trial court did not take into account.
Finally, the COA said the fact that the Nicholsons did not violate any laws when operating their wood boiler did not matter when determining whether the injunction would be in public interest. If that were the only criteria, the COA said, no injunctions would ever be filed.
The case is Gary Bowling and Mable Bowling v Christopher Nicholson and Shelley Nicholson, 70A05-1502-CT-72.
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