Simpkins v. Speck

395 Mont. 509

443 P.3d 428

2019 MT 120

Hunter SIMPKINS and Patrick Gustin, Plaintiffs and Appellees,

v.Sharon J. SPECK, Defendant and Appellant.

DA 18-0504

Supreme Court of Montana.

Submitted on Briefs: March 27, 2019

Decided: May 28, 2019

For Appellant: Burt W. Ward, Jackson, Murdo & Grant, P.C., Helena, Montana

For Appellees: Mark Lancaster, Shenandoah R. Roath, Luxan & Murfitt, PLLP, Helena, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Sharon J. Speck appeals an order of the First Judicial District Court, Lewis and Clark County, affirming the Findings of Fact, Conclusions of Law, Order and Judgment of the Lewis and Clark County Justice Court. The Justice Court’s order enjoined Speck from feeding birds within 100 feet of her shared property line in the city of Helena with Hunter Simpkins and Patrick Gustin (collectively "Plaintiffs") and prohibited her from maintaining open water during winter months. We restate the issues Speck raises on appeal as follows:

1. Did the Justice Court abuse its discretion in granting injunctive relief on the ground that Speck’s feeding of wild birds constituted a nuisance?

2. Was the Justice Court’s injunction overly broad?

We affirm in part and reverse and remand in part.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Speck, a local member of the Audubon Society, grew up in what she described as a bird-feeding family and has fed birds in her yard for most of her life. Speck now lives in Helena, and her home sits on a 25-by-125-foot lot. In her yard, Speck planted specific varieties of trees and shrubs to promote a bird-friendly habitat. To attract multiple species of wild birds, Speck utilized a variety of feeds and feeding methods, such as different hanging bird feeders and ground feeding. The feeding she provided changed with the seasons: during winter months, she provided additional feed and maintained a heated bird bath to ensure that wild birds would have an unfrozen source of water.

¶3 Plaintiffs moved in next door to Speck about four or five years before the trial in this case. From the time Plaintiffs first moved in, Gustin observed Speck feed birds in her yard on a regular basis. The birds feeding in Speck’s yard congregated on a power line running along the property line and landed in the trees in Plaintiffs’ yard. Plaintiffs regularly found bird excrement on their property and on vehicles parked in their driveway, endured bird calls from dawn to dusk, and discovered feathers, dismembered birds, and bird carcasses in their yard. Gustin witnessed pigeons, magpies, and crows coming to and from a large patch of ground along their shared property line where Speck spread feed on the ground.

¶4 Gustin confronted Speck twice in January 2017 about her bird feeding. On or around January 11, 2017, Gustin caught Speck while she was on her way to work to complain about bird carcasses and excrement on his property. Their next encounter about the issue occurred three days later while Speck was spreading bird feed on the ground in her yard. Speck told Gustin that she could not ethically stop feeding the birds at that time because the birds had become habituated to her feedings in winter. After their confrontation, however, Speck attempted to mitigate Gustin’s concerns by moving her ground feeding area to the center of her back yard and then to her side yard and by reducing the amount of feed she provided in summer.

¶5 Plaintiffs filed a complaint against Speck in Justice Court on February 9, 2017, alleging trespass, negligence, and nuisance and seeking injunctive relief to prohibit Speck from feeding wild birds within 150 feet of their property. The Justice Court held a bench trial on May 31, 2017. Speck and Gustin testified and provided photographic and video evidence. After the bench trial, the Justice Court determined that Speck had not trespassed onto Plaintiffs’ property. It found, however, that Speck was negligent in her bird feeding and caused a nuisance. The court ordered Speck to pay the costs of having Plaintiffs’ cars professionally cleaned and enjoined her from feeding birds within 100 feet of Plaintiffs’ property and from maintaining open water during winter months. Speck appealed to the District Court, which affirmed the Justice Court’s judgment.

STANDARDS OF REVIEW

¶6 We review an appeal from a justice court as if the appeal originally had been filed in this Court. Stanley v. Lemire , 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643.

¶7 We review a finding of fact for clear error. Stanley , ¶ 26. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. In re Eldorado Coop Canal Co. , 2016 MT 94, ¶ 17, 383 Mont. 205, 369 P.3d 1034.

¶8 We review the granting of a permanent injunction for a manifest abuse of discretion. Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912.

DISCUSSION

¶9 1. Did the Justice Court abuse its discretion in granting injunctive relief on the ground that Speck’s feeding of wild birds constituted a nuisance?

¶10 Speck first challenges four of the Justice Court’s factual findings as clearly erroneous. Specifically, Speck challenges the Justice Court’s findings that she "provided food for several birds, including pigeons, crows, and magpies, in her back yard for a significant amount of time," that she "has stated ... she will not stop feeding the birds in her customary manner," that her feeding damaged Plaintiffs’ soil, and that her feedings caused an "uncommonly large amount of bird droppings" to accumulate on Plaintiffs’ property.

¶11 Our review of a Justice Court’s factual findings is limited to determining whether the Justice Court committed clear error. Stanley , ¶ 26. Speck testified that she uses hanging bird feeders and spreads bird feed on the ground to attract multiple species of wild birds. She does not strive to feed pigeons, but does like Eurasian collared doves. She testified that the different feeding methods attract different species of birds. Speck testified that on or around January 11, 2017, was the first time Gustin approached her about dead birds, bird parts, and excessive droppings on his property. Gustin filmed their next interaction three days later, and the Justice Court admitted the video into evidence. In the video, Speck tells Gustin that she cannot stop feeding the birds in winter, because it would be unethical to do so. She testified, however, that after Gustin confronted her she adjusted her bird feedings by moving her ground feeding to the center of her backyard and her side yard, rather than along the back of her property line under the caragana bushes and ash tree. She further testified that she substantially decreased the amount of feed she provides in summer.

¶12 Gustin testified that he sees Speck feed the birds a couple of times a day using bird feeders and spreading feed on the ground. He testified that because of Speck’s feedings there are bird droppings on his property, driveway, and vehicles, that there is noise from dawn to dusk, and that there are feathers, dead birds, and dismembered birds in his yard. Gustin provided photographs and videos that the Justice Court admitted into evidence showing the number of birds congregating on the power line along the shared property line after Speck fed birds on the ground in her backyard and showing the bird droppings and feathers on his vehicles and property.

¶13 Based on the testimony and evidence presented to the court, we do not find clear error in the Justice Court’s findings that Speck fed birds, causing droppings and feathers to accumulate on Plaintiffs’ property. Further, in the videotaped interaction between Speck and Gustin, Speck said she would not stop feeding the birds because it would be unethical to do so in winter, supporting the Justice Court’s finding that "Speck has stated ... she will not stop feeding the birds in her customary manner." Her testimony, nonetheless, established that she attempted to adjust her feedings to address the issues Gustin raised with her. Although the Justice Court’s finding took Speck’s statements out of context, Gustin’s testimony and video evidence, including evidence filmed three months after their January confrontations, show that Speck’s efforts largely were ineffective at reducing the number of unwanted bird species congregating on and near Plaintiffs’ property. We do agree with Speck, however, that substantial evidence did not support the finding that Plaintiffs’ soil was damaged.

¶14 Speck argues that the evidence presented to the court did not support its ruling that she acted negligently and created a nuisance. Speck maintains that bird feeding is a lawful activity and that Plaintiffs did not provide evidence that she fed birds negligently. Rather, the evidence showed that she used commercially available bird feeders and feed and engaged in bird feeding practices similar to those employed by other similarly situated persons in the local bird feeding community.

¶15 We review conclusions of law for correctness. Stanley , ¶ 26. Section 27-30-101(1), MCA, defines nuisance as "[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." When considering what constitutes interference with a property owner’s comfortable enjoyment of his or her property, "it is the ordinary and reasonable person’s complaint that should serve as a basis for what is a nuisance." Kasala v. Kalispell Pee Wee Baseball League , 151 Mont. 109, 114, 439 P.2d 65, 68 (1968). "A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous." Barnes v. City of Thompson Falls , 1999 MT 77, ¶ 16, 294 Mont. 76, 979 P.2d 1275. An action may "become[ ] a nuisance by virtue...