Rassier v. Houim
1992 WL 197836, 488 N.W. 2d 635, 1992 N.D. LEXIS 180 (1992)
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Rule of Law:
In a private nuisance action, the fact that a plaintiff moved into an area after the alleged nuisance-creating activity was already established ('coming to the nuisance') is a significant factor in determining the reasonableness of the defendant's conduct and places a heavy burden on the plaintiff to establish liability.
Facts:
- In 1986, Garry Houim erected a tower and installed a wind generator on his residential lot in a housing development in Mandan.
- In October 1988, Janet Rassier and her family purchased the lot adjoining Houim's property.
- After purchasing the lot, Rassier moved a mobile home onto it.
- Rassier complained that the generator, located approximately 40 feet from her house, created noise measured between 50 and 69 decibels, which disrupted conversations and interfered with sleep.
- Rassier also expressed safety concerns, citing an instance where she found a large ice chunk in her yard she believed was thrown from the generator.
- No neighbors other than Rassier complained about noise from the wind generator.
- Houim offered to teach the Rassiers how to turn the generator off when the noise bothered them, but they did not attempt this accommodation.
- The housing development was subject to restrictive covenants, but evidence showed that Houim, Rassier, and other residents had built on their lots without seeking required approvals, suggesting abandonment of the covenants.
Procedural Posture:
- Janet Rassier sued Garry Houim in a North Dakota district court (trial court), alleging his wind generator was a private nuisance.
- Following a bench trial, the district court entered a judgment dismissing Rassier's lawsuit.
- Rassier (appellant) appealed the district court's judgment to the Supreme Court of North Dakota, with Houim as the appellee.
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Issue:
Does maintaining a wind generator in a residential area constitute a private nuisance when the adjoining landowner purchased their property and moved in two years after the generator was erected?
Opinions:
Majority - Vande Walle, Justice.
No, maintaining the wind generator does not constitute a private nuisance under these circumstances. To establish a nuisance, a plaintiff must show the defendant's conduct unreasonably interferes with the plaintiff's use and enjoyment of their property. Here, Rassier 'came to the nuisance' by moving in two years after the generator was already operating, which places a heavy burden on her to prove liability. The trial court properly weighed factors such as Rassier's arrival after the fact, the lack of complaints from other neighbors, Rassier's failure to accept an offer of accommodation, and Houim's evidence regarding the generator's safety. The trial court's finding that the generator did not constitute an unreasonable interference was not clearly erroneous.
Concurring-in-part-and-dissenting-in-part - Meschke, Justice,
Yes, the case should be remanded because the trial court applied the wrong legal standard. While the majority correctly clarifies that a nuisance does not require the violation of a specific statute, it wrongly affirms a decision based on flawed reasoning. The trial court gave inappropriate and controlling weight to the 'coming to the nuisance' doctrine. This doctrine should not be strictly applied when a commercial-type activity, like this wind turbine, is introduced into an area zoned and covenanted for residential use. The character of the locality is a critical factor, and Houim knew a home would eventually be built on the adjacent lot. The case should be sent back for a proper weighing of all relevant factors under the correct legal framework.
Analysis:
This decision clarifies North Dakota's statutory private nuisance law by integrating the common law doctrine of 'coming to the nuisance' as a critical factor in the reasonableness analysis. It establishes that plaintiffs who knowingly move into the vicinity of a pre-existing, otherwise lawful activity face a significantly higher burden of proof to sustain a nuisance claim. This precedent protects established land uses from subsequent residential encroachment and reinforces the deference appellate courts give to a trial court's factual findings in balancing the equities of a nuisance claim. Future cases will likely use this balancing test, with 'coming to the nuisance' being a powerful, though not necessarily dispositive, defense.
