Winingder v. Balmer

Dian Winingder (plaintiff) and her family bought and moved into a house in New Orleans in 1982. The house was over 80 years old and had been built within two to four inches of the common property line with the lot next door. Winingder’s house’s electrical utility box, air-conditioning units, and water heaters were located on the encroaching side of the house and could only be accessed via the neighboring lot. Sue Ann Balmer (defendant) lived in a house on the far side of the neighboring lot. Balmer purchased the lot in between her property and the Winingder property in 1988. Balmer tore down the structures that had been on the lot in order to construct a garden and a garage for her home. The Winingders attempted to negotiate with Balmer to reach a mutually acceptable development plan for the lot that would preserve their ability to maintain that side of their home, or alternatively to purchase a three-foot strip down the property line. Balmer refused to make any accommodations with the Winingders and began to construct a six-foot-tall, solid-wood fence directly on the property line. Winingder sued Balmer, seeking a temporary restraining order to stop Balmer from constructing the fence. After the order was dissolved for procedural reasons, Balmer finished building the fence. Winingder then sought injunctive and declaratory relief and a servitude over a strip of Balmer’s property. At trial, the evidence established that Balmer’s fence restricted drainage from Winingder’s property, created a fire hazard to the home, caused moisture damage, and increased the likelihood of pest infestation. The trial court granted Winingder a 2.7-foot servitude along the entire property line and ordered the Winingders to move the fence to that location and pay Balmer $18,000 as compensation. Balmer appealed.