Present:    All the Justices

THOMAS SCOTT CLINE, ET AL.

v.   Record No. 060237   OPINION BY JUSTICE CYNTHIA D. KINSER
                                     January 12, 2007
ROY C. BERG, JR.

            FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                      Thomas H. Wood, Judge

      Roy C. Berg, Jr. (Berg), filed a bill of complaint

against Thomas S. Cline and Teresa B. Cline (the Clines),

seeking an injunction requiring the Clines to dismantle and

remove a 32-foot high, 200-foot long fence constructed of

utility poles and plastic wrap because it unreasonably

interfered with Berg’s use and enjoyment of his real

property.   After hearing evidence ore tenus, the circuit

court held the fence was a private nuisance and ordered the

Clines to remove it.     We, however, conclude the circuit

court abused its discretion in granting injunctive relief

to Berg because it failed to apply the “clean hands”

doctrine.   For that reason, we will reverse the circuit

court’s judgment.

                          RELEVANT FACTS

      Berg and the Clines are adjacent landowners in Augusta

County and previously lived next door to one another.

After several disagreements between the parties, the Clines

decided to move from their residence adjoining Berg.    They
built a home on a 76-acre parcel of real estate that also

joins Berg’s property.   The Clines’ new home is still in

view of Berg’s residence although it is situated

approximately 1800 feet away on top of a hill.

     Soon after moving into their new home in January 2005,

the Clines discovered that Berg had constructed a tripod

about 11 feet tall and equipped with motion sensors and

seven flood lights.   The flood lights intermittently come

on when the Clines turn on certain lights in their home.     A

neighbor, who had been to the Clines’ home on several

occasions, testified that Berg’s lights are obviously

directed at the Clines’ home and illuminate their property.

The neighbor likened the lights to “someone having their

high beams on their car shining them towards the house.”

     The Clines learned Berg had also installed

surveillance cameras on his property.   The cameras tracked

some of the Clines’ movements while on their property.

When asked at trial if any of the cameras had the Clines’

house in view, Berg answered, “Not really. . . . If [the

cameras] track across – the camera that sits there on

camera three on the tracker . . . might catch the very top

of [the Clines’] roof [b]ut [t]hey are not aimed at his

home or his house.”   The Clines’ evidence, however,

contradicted Berg’s testimony.    Because Berg’s surveillance


                              2
system uses “wireless . . . cameras” that operate on an

“open frequency,” the Clines were able to pick up the

wireless signal from Berg’s cameras.      When the Clines began

receiving interference on their television, they unplugged

the wireless transmitter they use with their television,

and, in Mr. Cline’s words, “low and behold there’s our

house on the TV.”

     Berg testified he installed the lights because rabid

raccoons had been spotted in 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.

     In a letter to Berg, the Clines’ attorney warned that

“[t]he intensity and direction of [the] lights make them

very noticeable in the Cline[s’] house and are disrupting

their use and enjoyment of their home.”      He requested Berg

to “redirect these lights so that they do not illuminate or

shine in the direction of the Cline[s’] property, or just

. . . leave them turned off.”       Berg testified that, in

response to the letter, he changed the wattage of the bulbs


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in the flood lights from 125 watts to 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 fence
     between your property and theirs. This will be
     high enough to block their view of your property,
     and to address your stated concerns. They would
     prefer not to incur this expense, but your
     actions leave them no choice. Unfortunately, to
     be effective, this fence will have to be 35 feet
     high and over 200 feet long and will run close to
     your rear property line. Frankly, it will be an
     eyesore and probably affect not only their
     property value, but yours as well. However,
     their 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.

     A few months later, the Clines built the fence at

issue.   It is constructed with approximately 20 utility

poles spaced 10 feet apart.   A type of plastic wrap used to

cover silage is attached to the poles.   The fence is 32

feet high and runs approximately 200 feet along the border

between the Cline property and the Berg property.   The

Clines initially considered building a 50-foot high, indoor



                              4
horse-riding arena but settled for the fence as a

compromise to their other 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
     was watching us. If we would drive up and down
     our own driveway, he would take the lights and
     track us with it. If my son was down in the
     field taking care of the neighbor’s horses and
     coming back up, then he would be waiting with the
     lights.

     When Berg filed his bill of complaint against the

Clines, he circulated a letter to nine other nearby

residents, seeking their support in having the Clines’

fence removed.1   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.”

     After considering the evidence introduced by both

parties, the circuit court, in a letter opinion, rejected


     1
       Notably, none of these residents testified on Berg’s
behalf at the trial in this case.

                                5
Berg’s explanation for installing his surveillance system.

The court explained that, when “compar[ing] the testimony

of Berg against the evidence introduced by the Clines

. . . , it becomes apparent that Berg was not truthful with

the [c]ourt.”   In the circuit court’s view, “[t]he evidence

introduced by 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

“satisfied beyond question that the Clines would never have

even thought about such a fence had they been left alone.”

Addressing the Clines’ argument that the “clean hands”

doctrine barred the equitable relief sought by Berg, the

circuit court indicated it “could, in good conscience,

dismiss the [b]ill of [c]omplaint on that doctrine.”    The

circuit court even stated the “clean hands” doctrine would

be the “[f]irst and foremost” way to rule in favor of the

Clines.   But, the circuit court 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


                              6
protection to the Clines from Berg’s lights and is not a

“spite fence,” it is nonetheless a private nuisance.2

     For the reasons stated in its letter opinion, the

circuit court entered an order directing the Clines to

remove the fence from their property.    The Clines appeal

from that judgment.

                            ANALYSIS

     The dispositive issue on appeal is whether the circuit

court abused its discretion 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 complaint on the

“clean hands” doctrine.   Given these findings, the Clines

contend the circuit court then abused its discretion by

ignoring Berg’s “unclean hands” and granting him injunctive

relief.

     “The doctrine of ‘unclean hands’ is an ancient maxim

of equity courts,” Richards v. Musselman, 221 Va. 181, 185,

     2
       The term “spite fence” is defined as “[a] fence
erected solely to annoy a neighbor.” Black’s Law
Dictionary 1437 (8th ed. 2004).

                              7
267 S.E.2d 164, 166 (1980), and is generally expressed in

these terms:

     “Pursuant to the equitable maxim that ‘He who
     comes into equity must come with clean hands,’
     . . . the complainant seeking 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.”

Id. at n.1 (quoting W. deFuniak, Handbook of Modern Equity

§ 24 (2d ed. 1956)); accord Butler v. Hayes, 254 Va. 38,

43, 487 S.E.2d 229, 232 (1997) (“a litigant who seeks to

invoke an equitable remedy must have clean hands”);

Firebaugh v. Hanback, 247 Va. 519, 526, 443 S.E.2d 134, 138

(1994) (“[h]e who asks equity must do equity, and he who

comes into equity must come with clean hands”); McNeir v.

McNeir, 178 Va. 285, 290, 16 S.E.2d 632, 633 (1941) (“a

plaintiff must come in with clean hands, that is, he must

be free from reproach in his conduct”); Walker v.

Henderson, 151 Va. 913, 927-928, 145 S.E. 311, 315 (1928)

(same).   Application of the doctrine turns upon the facts

of each particular case and is therefore left to the sound

discretion of the fact finder.    Wiglesworth v. Taylor, 239

Va. 603, 608, 391 S.E.2d 299, 303 (1990).




                              8
     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 would

never have constructed the fence if Berg had merely left

them alone.   Thus, those factual findings are binding on

appeal.   Chesapeake Hosp. Auth. v. Commonwealth, 262 Va.

551, 565, 554 S.E.2d 55, 62 (2001).

     Berg, nevertheless, maintains the circuit court was

correct in refusing to apply the “clean hands” doctrine.

Characterizing the circuit court’s factual and credibility

findings as “a severe ad hominem attack” upon his character

and testimony, Berg argues the application of the “clean

hands” doctrine in this case would create an 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.   Richards, 221 Va. at 185, 267

S.E.2d at 167; Harrell v. Allen, 183 Va. 722, 732, 33

S.E.2d 222, 226 (1945); Waller v. Eanes, 156 Va. 389, 398,

157 S.E. 721, 725 (1931).   We do not, however, agree with


                               9
Berg’s position that such a result would ensue in this

case.       Berg ignores the circuit court’s finding that the

Clines would never have erected the fence if he had left

them alone as requested in their attorney’s letter to Berg.

The circuit court further opined “the fence would disappear

if the surveillance equipment, including the lights,

disappeared.”      A court of equity “will not relieve against

conditions brought about by the improper conduct of the

party seeking relief.”      Wilson v. Wall, 99 Va. 353, 356, 38

S.E. 181, 182 (1901).      Irrespective whether the fence is a

private nuisance, Berg was not “free from reproach in his

conduct,” McNeir, 178 Va. at 290, 16 S.E.2d at 633, and

that conduct was “in respect of the same matter in

litigation.”      Musselmann, 221 Va. at 185 n.1, 267 S.E.2d at

166 n.1 (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 hands”

doctrine and deny the injunctive relief requested by Berg.

We will therefore reverse the judgment of the circuit court

and enter final judgment here in favor of the Clines.3


        3
       In light of our decision, it is not necessary to
address the Clines’ remaining assignments of error.

                                  10
 Reversed and final judgment.




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