Nuisance

Constructed pond on mountainous terrain is an abnormally dangerous condition that renders owner strictly liable for damage caused when it ruptured after a storm and flooded the downhill property

/ Easements, Nuisance, Water Rights

The Montana Supreme Court held in Covey v. Brishka, 2019 MT 164, 445 P.3d 785 (Mont. 2019), that it was so obviously unreasonably dangerous to construct a 4.5 million-gallon constructed pond on a mountainous property that the owner was strictly liable for an “abnormally dangerous condition” when a storm caused a cascade of boulders and water onto the property lower down the hill.

Civil law or natural flow rule interpreted to allow artificial drainage of subsurface water

/ Nuisance, Water Rights

While the “free use” rule generally allows an owner to expel surface and subsurface water without liability, the civil law or “natural flow’ rule imposes liability on an owner who artificially captures and expels such waters, especially if done in a direction different from the watercourse or the natural direction of water flow. However, interpreting a state statute codifying the civil law rule, (S.D. Codified Laws §46A-10A-70, the South Dakota Supreme Court allowed an owner to expel subsurface waters through a drainage system as long as the water followed the natural direction of drainage and the water discharged into any established or natural watercourse. In re Drainage Permit 11-81, 922 N.W.2d 263 (S.D. 2019).

North Carolina limits nuisance suits against pig farmers

/ Nuisance

The North Carolina Farm Act of 2018(Senate Bill 711), requires nuisance claims to be brought within a year of the establishment of a farm use or a “fundamental change” in the farm’s operation. N.C. Gen. Stat. §106-701 to –702. It denies punitive damages unless the farm operator has a criminal conviction or has received a regulatory notice that it violated state farm laws. Anne Blythe, Hog farmers win new protections as lawmakers override Roy Cooper’s veto,News&Observer, June 27, 2018.

Place of the injury law applies when conduct in one state causes a nuisance to property in another state

/ Nuisance

In accord with both the traditional and the modern approach to conflict of laws, a federal court held that the law of the place where the property is situated (and where the harm is felt) applies even when the conduct took place in another state. Nnadili v. Chevron USA, Inc., 435 F.Supp.2d 93 (D.D.C. 2006). A gas station owner in Maryland allegedly allowed gasoline to be released from its underground storage tanks which polluted neighboring land in the District of Columbia. The place of injury or the situs of the property are the laws that traditionally apply in this situation whether they help the plaintiff (the landowner) or not. That is likely still true even if the place of conduct finds it to be wrongful since a nuisance only occurs when the land owner suffers substantial and unreasonable interference with the use and enjoyment of the land. In addition, the court …

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Shooting range may be a nuisance unless state statutes say otherwise

/ Nuisance

Construing a state statute, the Supreme Court of Appeals of West Virginia held that a shooting range cannot constitute a nuisance if it complies with local noise ordinances. However, that statute could not be applied retroactively without violating vested property rights so the plaintiffs in the case were entitled to damages but not injunctive relief. Goldstein v. Peacemaker Props., LLC, 2019 W. Va. LEXIS 102 (W.Va. 2019).

Nuisance victim awarded cost of restoration damages without any need to prove diminution in value of the property

/ Nuisance

When an oil tanker overturned in a traffic circle, spilled 9,000 gallons of oil and kerosene into a culvert, property owners who were affected were allowed to sue for the cost of restoring their properties because of the physical harm to them without any need to show that the contamination diminished the market value of their land. West v. Jewett & Noonan Transp., Inc., 189 A.3d 277 (Me. 2018). The Maine Supreme Judicial Court held that a nuisance claim must prove diminution in value of the land when the nuisance only involves physical discomfort or mental annoyance. When the nuisance physically affects the land, restoration damages can be awarded without proof of diminution in the fair market value of the land.

No claim against neighbor for damage caused by overhanging healthy tree

/ Nuisance, Trespass

The Massachusetts Supreme Judicial Court has reaffirmed the “Massachusetts rule” that owners cannot sue their neighbors for any damage caused by an overhanging healthy tree. Shiel v. Rowell, 101 N.E.3d 290 (Mass. 2018). The remedy is for the owner to trim the branches that encroach on his property before they cause damage. In upholding the established rule, the court rejected the “Hawaii rule” which imposes liability on the owner of the tree if it causes harm to neighboring property. See Whitesell v. Houlton, 632 P.2d 1077 (Haw. 1981). Note that the Massachusetts rule does impose an obligation on owners to remove unhealthy trees and imposes liability for any harms to neighbors caused by such trees.

Condo owner may be liable for wrongful death of neighbor when he rented his unit to his brother knowing he was a dangerous sex offender

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Nuisance

A court has held that a landlord may be liable for wrongful death of a neighboring condo owner if he rents his unit to his brother, knowing he is a sex offender who often stops using needed medication and is capable of violent outburst when he did not use his medication, fails to warn the neighbors of his presence, and the landlord’s brother kills a neighboring owner.  Steele v. Kings Way Condominium Trust, 2018 Mass. Super. LEXIS 103 (Mass. Super. Ct. 2018).

Seizure of abandoned real property by municipality is not an unconstitutional taking of property

/ Nuisance, Takings

The Iowa Supreme Court held that the Constitution does not require just compensation when it seizes abandoned property pursuant to a statute giving the city title to such property. City of Eagle Grove v. Cahalan Investments, LLC, 904 N.W.2d 552 (Iowa 2017). Such property is deemed a nuisance and no owner owns the right to commit a nuisance. The court explained that the state has the “power to condition the permanent retention of…property rights on the performance of reasonable conditions that indicate a present intention to retain the interests.” In this case, by “allowing the properties to persist in a condition unfit for human habitation, allowing the premises to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems,” the owner failed to comply with reasonable conditions established by law to retain his ownership interest. Because he did …

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City has a constitutional due process obligation to notify an owner that the owner’s property has been adjudicated to be blighted and subject to condemnation

/ Due Process, Nuisance, Takings

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the statute gives property owners a right to judicial review of the blight determination but without notice of the blight determination owners have no reasonable opportunity to seek such judicial review. M.A.K. Investment Group, LLC v. City of Glendale,889 F.3d 1173 (10th Cir. 2018).

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