Cross References.

Aviation hazard as public nuisance,§ 21-502.

Booms or weirs so constructed as to prevent passage of logs or lumber a public nuisance,§ 38-807.

Forest or range fire, burning without adequate precautions against spreading, a public nuisance,§ 38-107.

Liquor nuisances,§ 23-701 et seq.

Similar provision in criminal law,§ 18-5901 et seq.

Violation of retail liquor license law a moral nuisance,§ 23-937.

Prior Laws.

A former chapter 1 of title 52, which comprised C.C.P. 1881, § 471, R.S.,§§ 3620-3625, 4529; reen. R.C., §§ 3656, 3657; R.C., §§ 3657a-3657c, as added by 1915, ch. 43, § 2, p. 125; reen. R.C.,§§ 3658-3661; R.C., § 4529; am. 1915, ch. 43, §§ 1, 3, 5, p. 125; reen. C.L.,§§ 3656-3661, 4529; 1919, ch. 97, p. 361; C.S.,§§ 6420-6429, 6956; I.C.A.,§§ 51-101 — 51-111, was repealed by S.L. 1976, ch. 82, § 1.

Damages.

Hog Raising Facility.

Damages may be recovered in addition to an injunction or abatement, but are not a prerequisite to such equitable relief, and the failure to recover damages does not necessarily mean there can be no injunction or abatement, if that equitable relief is otherwise appropriate. Payne v. Skaar, 127 Idaho 341, 900 P.2d 1352 (1995). Hog Raising Facility.

Given the abundant testimony in the record as to presence of offensive odors at the hog-farm residence, as well as the copious number of flies, it was clear that the district court’s nuisance determination was supported by substantial and competent evidence. Crea v. Crea, 135 Idaho 246, 16 P.3d 922 (2000).

Pleading Requirements.

Where the homeowner alleged that her home was flooded as the result of a road reconstruction project performed by the city, her complaint was not separated into multiple causes of action; the only theory of recovery identified was negligence; because the complaint failed to include a short and plain statement of her claim for nuisance under this section, the district court properly granted summary judgment for the city. Brown v. City of Pocatello, 148 Idaho 802, 229 P.3d 1164 (2010).

Unsightly Structures.

Property owners do not have the right to prohibit, upon adjoining land, the erection of structures that they did not find to be aesthetically pleasing, unless the structure has no useful purpose and was erected only to injure them. McVicars v. Christensen, 156 Idaho 58, 320 P.3d 948 (2014).

Decisions Under Prior Law

Burden of Proof.

In order to obtain an injunction against or the abatement of an alleged nuisance, the complaining party must show a clear case supporting his right to relief. Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964).

Channel of Natural Streams.

The current of a river cannot be appropriated by a riparian proprietor in Idaho, even assuming the possible persistence in the state of the doctrine of riparian rights, in view of statutes declaring the right of appropriators of water for irrigation or other lawful purpose to use the channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Where defendant built a series of dams that increased the flow of a river to such an extent that plaintiff’s access to his farm land, which was across the river from his place of residence and which situation made it necessary for plaintiff to ford the river in order to reach his farm land, was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Ditch Across Road or Street.

When one constructs ditch across public street in such way as to render street unsafe or inconvenient for travel and maintains the same without a bridge, he is guilty of maintaining a nuisance. Lewiston v. Booth, 3 Idaho 692, 34 P. 809 (1893).

To complete highway across canal, bridge must be built; and, until bridge is built, highway, not being complete, is not capable of being lawfully obstructed at that point; canal, therefore, is not nuisance because of its unlawfully obstructing the free passage or use of highway. MacCammelly v. Pioneer Irrigation Dist., 17 Idaho 415, 105 P. 1076 (1909).

Where canal has been constructed and operated in accordance with law, it is not a nuisance and can become nuisance only by reason of manner in which it is maintained or method of its operation, and mere fact that municipality subsequently extends street across canal which has been lawfully constructed and operated does not convert canal into nuisance at place where street crosses canal. Boise City v. Boise City Canal Co., 19 Idaho 717, 115 P. 505 (1911).

Gambling Devices.

Instruments and devices with which gambling is carried on are nuisances. Mullen v. Moseley, 13 Idaho 457, 90 P. 986 (1907).

Herding Sheep Near Homes.

Herding of large band of sheep near homes of settlers, thereby creating offensive smell, is a nuisance. Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995 (1902).

Instructions.

Miner’s Excavation.

The giving of instructions to the jury on the issue of nuisance was not erroneous as raising an issue not pleaded in the complaint where the complaint charged the defendant with acts and conditions which would constitute a nuisance under this section. Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967). Miner’s Excavation.

An excavation, pit or shaft made by a miner in the prosecution of his work is not of itself a nuisance. Strong v. Brown, 26 Idaho 1, 140 P. 773 (1914).

Motive in Erection.

Where erection of improvement is, in itself, lawful and not per se nuisance, fact that erection is from spite will not subject party to restraint from courts. White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925).

In actions to abate nuisance before question of motive can be gone into or at least before it can have any bearing on result, unlawful character of act complained of must be established. White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925).

“Nuisances Per Se.”

Anything which does not amount to or constitute a substantial obstruction or an inherent interference with the free or comfortable enjoyment of life or property, within the meaning of the statute, is not a public “nuisance per se.” Rief v. Mountain States Tel. & Tel. Co., 63 Idaho 418, 120 P.2d 823 (1942).

Obstruction of Navigable Estuary.

Where the construction of a fish farm obstructed free passage of a navigable estuary, such fish farm constituted a nuisance as defined by this section. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977).

Obstruction of Nonnavigable Stream.

Because this section specifically provides that obstruction of navigable stream is nuisance, it does not follow that obstruction of nonnavigable stream is not. Carey Lake Reservoir Co. v. Strunk, 39 Idaho 332, 227 P. 591 (1924).

Obstruction of stream which prevents ordinary flow of water for formerly appropriated irrigation purposes is nuisance and may be abated. Carey Lake Reservoir Co. v. Strunk, 39 Idaho 332, 227 P. 591 (1924).

Defendant, upstream owner, a junior appropriator of water rights, had no right to damages from plaintiffs, a downstream owner, a prior appropriator, and users of water in his ditch, for removal of dam which was constructed by upstream owner, since the dam constituted a private nuisance and it was plaintiff’s right to abate it. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Where plaintiff was entitled to water and dam constituted a private nuisance it was plaintiff’s right to abate it and defendant was not entitled to damages resulting from removal of the obstruction by plaintiffs. The equipment plaintiffs took to the site crossed over sagebrush land causing no injury and they had a right to reasonable access to the channel to secure and safeguard their water right. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Preparation of Meat Products.

The smoking of meats, rendering lard and manufacturing of sausages and other meat products is not per se a nuisance. Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490 (1911).

Railroad.

Railroad and the work necessary and incident to its maintenance is not a nuisance and cannot be abated as such. Boise Valley Constr. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909).

Sewage Disposal Facilities.

A sewage disposal facility, legal in its inception, is not a nuisance per se, and its location and the manner of its operation will determine whether it is a nuisance in fact. Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964).

In proceedings for injunction against lagoon-type sewage disposal plant, evidence was insufficient to show that the lagoons, if constructed as proposed, would be located or operated so as to constitute a nuisance. Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964).

Softball Field Lights.

A church softball field lighted by high-intensity lights was not a nuisance where use was restricted to the hours between 7:00 a.m. and 10:00 p.m. Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Ashton, 92 Idaho 571, 448 P.2d 185 (1968).

Streets and Sidewalks.

It is not every obstruction in a street or highway that constitutes a “nuisance per se,” since the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations, and to such incidental, temporary, or partial obstructions as manifest necessity may require. Rief v. Mountain States Tel. & Tel. Co., 63 Idaho 418, 120 P.2d 823 (1942).

A pedestrian, who was struck by a screen door which opened outwardly immediately in front of him when walking on a sidewalk in the business district of the city, could not recover for his injury from the owner and tenant of the building, since the maintenance and use of the screen door did not, in and of itself, constitute a substantial “obstruction” and was not a “nuisance per se.” Rief v. Mountain States Tel. & Tel. Co., 63 Idaho 418, 120 P.2d 823 (1942).

The maintenance of a street with its terminus upon the bank of a river with a barrier erected thereat was not a nuisance for there was no defect which obstructed free passage or use of the street in the customary manner. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Tourist Court Encroachments.

Sellers’ contention that purchasers were not bound to remove encroachments of tourist site and equipment sold to them upon demand by the city inasmuch as the city has permitted the existence of such encroachments for a considerable time was not well taken, and it became the duty of the purchasers to remove such encroachments, as failure to do so would result in both civil and criminal liability. Such encroachments were a public nuisance and subject to abatement. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

Trees.

Unsightly Buildings.

Where defendant’s predecessors in interest planted on the common boundary two poplar trees which have now matured to four or five feet in diameter at the base and thereafter plaintiff built approximately six feet from the boundary line and such mature trees now extend over and onto the building, one of the trees pushing to and against the foundation of plaintiff’s house and exerting sufficient pressure against the basement to crack and push the wall of the house inward, also damaging the surface, the court authorized, upon the plaintiff bringing this action on the ground that the condition constituted a nuisance, the destruction of one tree but the other tree being healthy and not damaging the foundation and walls of the house it would not be necessary to be removed. Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Unsightly Buildings.

Fact that building is unsightly or out of harmony in construction with adjoining buildings, and therefore not pleasing to sight, does not make it offensive to the senses within meaning of this section. White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925).

Warehouses.

Warehouse and platform obstructing city street was a public nuisance, even though city had allowed construction of same pursuant to a motion passed by city council and permit duly issued. Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (1952).

What Constitutes Nuisance.

Former statutes regarding nuisances meant something more than the usual, ordinary and lawful use of one’s own property in order to constitute an act or acts a nuisance within the definitions they contain. Bellevue v. Daly, 14 Idaho 545, 94 P. 1036 (1908).

In order to create nuisance it is not enough that it diminish value of surrounding property, or reduce rental value. It must be such tangible injury as renders enjoyment of property essentially uncomfortable or inconvenient. White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925).

Former similar section includes that which is a nuisance at all times and under all circumstances, and that which is not inherently a nuisance, or one per se, but which may become such by reason of surrounding circumstances, or the manner in which conducted. Rowe v. city of Pocatello, 70 Idaho 343, 218 P.2d 695 (1950).

ALR.

Keeping poultry as nuisance. 2 A.L.R.3d 965.

Motor bus or truck terminal as nuisance. 2 A.L.R.3d 1372.

Electric generating plant or transformer station as nuisance. 4 A.L.R.3d 902.

Saloons or taverns as nuisance. 5 A.L.R.3d 989.

Keeping of dogs as enjoinable nuisance. 11 A.L.R.3d 1399.

Institution for the punishment or rehabilitation of criminals, delinquents, or alcoholics as enjoinable nuisance. 21 A.L.R.3d 1058.

Gun club, or shooting gallery or range, as nuisance. 26 A.L.R.3d 661.

Keeping horses as nuisance. 27 A.L.R.3d 627.

Punitive damages in actions based on nuisance. 31 A.L.R.3d 1346.

Children’s playground as nuisance. 32 A.L.R.3d 1127.

Billboards and other outdoor advertising signs as civil nuisance. 38 A.L.R.3d 647.

Modern status of rules as to balance of convenience or social utility as affecting relief for nuisance. 40 A.L.R.3d 601. Operation of incinerator as nuisance. 41 A.L.R.3d 1009.

Laundry or dry cleaning establishment as nuisance. 41 A.L.R.3d 1236.

Automobile racetrack or drag strip as nuisance. 41 A.L.R.3d 1273.

Public swimming pool as nuisance. 49 A.L.R.3d 652.

Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.

Exhibition of obscene motion pictures as nuisance. 50 A.L.R.3d 969.

Right of one compelled to discontinue business or activity constituting nuisance to indemnity from successful plaintiff. 53 A.L.R.3d 873.

Zoo as nuisance. 58 A.L.R.3d 1126.

Porno shops or similar places disseminating obscene materials as nuisance. 58 A.L.R.3d 1134.

Interference with radio or television reception as nuisance. 58 A.L.R.3d 1142.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

Airport operations or flight of aircraft as nuisance. 79 A.L.R.3d 253.

Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment. 79 A.L.R.3d 320.

Fence as nuisance. 80 A.L.R.3d 962.

Massage parlor as nuisance. 80 A.L.R.3d 1020.

Operation of cement plant as nuisance. 82 A.L.R.3d 1004.

Carwash as nuisance. 4 A.L.R.4th 1308.

Funeral home as private nuisance. 8 A.L.R.4th 324.

Liability for wrongful autopsy. 18 A.L.R.4th 858.

Tort immunity of nongovernmental charities — Modern status. 25 A.L.R.4th 517.

Tower or antenna as constituting nuisance. 88 A.L.R.5th 641.

Keeping of domestic animal as constituting public or private nuisance. 90 A.L.R.5th 619.

Sewage treatment plant as constituting nuisance. 92 A.L.R.5th 517.

Nudity as constituting nuisance. 92 A.L.R.5th 593.

Hog breeding, confining, or processing facility as constituting nuisance. 93 A.L.R.5th 621.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Vibrations not accompanied by blasting or explosion as constituting nuisance. 103 A.L.R.5th 157.

Cross References.

Dilapidated buildings in cities or villages,§ 50-335.

Maintenance of a public nuisance, a misdemeanor,§ 18-5903.

Prior Laws.

Former§ 52-102 was repealed. See Prior Laws,§ 52-101.

Decisions Under Prior Law

Gambling Machines and Devices.

Operation of gambling machines and devices constitutes a moral public nuisance. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953).

Tourist Court Encroachments.

Sellers’ contention that purchasers were not bound to remove encroachments of tourist site and equipment sold to them upon demand by the city inasmuch as the city has permitted the existence of such encroachments for a considerable time was not well taken, and it became the duty of the purchasers to remove such encroachments, as failure to do so would result in both civil and criminal liability. Such encroachments were a public nuisance and subject to abatement. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

Warehouses.

Warehouse and platform obstructing city street was a public nuisance, even though city had allowed construction of same pursuant to a motion passed by city council and permit duly issued. Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (1952).

Cross References.

Abatement of moral nuisances,§ 52-401 et seq.

Health officers to cooperate in suppression of prostitution,§ 39-603.

Liquor nuisances,§ 23-701 et seq.

Prior Laws.

Former§ 52-103 was repealed. See Prior Laws,§ 52-101.

Compiler’s Notes.

The bracketed semicolon at the end of paragraph (F)(4) was inserted by the compiler to correct the enacting legislation.

Prior Laws.

Former§ 52-104 was repealed. See Prior Laws,§ 52-101.

Prior Laws.

Former§ 52-105 was repealed. See Prior Laws,§ 52-101.

Cross References.

Abatement of moral nuisances,§ 52-401 et seq.

Prior Laws.

Former§ 52-106 was repealed. See Prior Laws,§ 52-101.

Decisions Under Prior Law

Gambling Machines and Devices.

Operation of gambling machines and devices constitutes a moral public nuisance. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953).

Cross References.

Private nuisances in general,§ 52-301.

Prior Laws.

Former§ 52-107 was repealed. See Prior Laws,§ 52-101.

Unsightly Structures.

Property owners do not have the right to prohibit, upon adjoining land, the erection of structures that they did not find to be aesthetically pleasing, unless the structure has no useful purpose and was erected only to injure them. McVicars v. Christensen, 156 Idaho 58, 320 P.3d 948 (2014).

Prior Laws.

Former§ 52-108 was repealed. See Prior Laws,§ 52-101.

Express Authority.

This section only exempts a party from a nuisance action when the activity is done under the express authority of a statute; where, in a nuisance action by the state against current mine owners for water pollution, although the defendants were in compliance with rules and regulations of the department of health and welfare, the defendants had not established that their activities, or historical mining activities of prior owners, were done or maintained under the express authority of a statute, a material question of fact existed, precluding summary judgment. Idaho v. Hanna Mining Co., 699 F. Supp. 827 (D. Idaho 1987), aff’d, 882 F.2d 392 (9th Cir. 1989).

Decisions Under Prior Law

Application.

This section refers only to statutes, but if this section were applicable to a permit granted by a city, not even an ordinance, it did not authorize an unlawful, wrongful or negligent act, and afforded no defense to the city. Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999 (1950).

Channel of Natural Streams, Using.

The current of a river cannot be appropriated by a riparian proprietor in Idaho, even assuming the possible persistence in that state of the doctrine of riparian rights, in view of statutes declaring the right of appropriators of water for irrigation or other lawful purpose to use the channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Fluctuating River Flow.

Where defendant built a series of dams that increased the flow of a river to such extent that plaintiff’s access to his farm land, which was across the river from his place of residence and which situation made it necessary for plaintiff to ford the river in order to reach his farm land, was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954). Fluctuating River Flow.

An easement which granted a power company the right to fluctuate the flow of a river would be construed as granting something in addition to the right of the power company to fill completely the natural channel of the river, since the power company had the latter right without the aid of an easement. Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir. 1955).

Section Applied.

A ditch or canal constructed and maintained under express authority of statute cannot be deemed a nuisance. MacCammelly v. Pioneer Irrigation Dist., 17 Idaho 415, 105 P. 1076 (1909); Boise City v. Boise City Canal Co., 19 Idaho 717, 115 P. 505 (1911); City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915).

Cellar-way and doors in sidewalk maintained by authority of law cannot be deemed a nuisance. Lewiston v. Isaman, 19 Idaho 653, 115 P. 494 (1911).

Running of licensed saloon in regular and lawful manner was not a nuisance (decided when local option law was in effect). Village of Am. Falls v. West, 26 Idaho 301, 142 P. 42 (1914).

Prior Laws.

Former§ 52-109 was repealed. See Prior Laws,§ 52-101.

Decisions Under Prior Law

Construction.

The purchaser of property containing a nuisance may not defend an action for damages or abatement on the ground that he did not create it, but he is not liable for damages incurred previous to his purchase. Brose v. Twin Falls Land & Water Co., 24 Idaho 266, 133 P. 673 (1913); Partridge v. Twin Falls Land & Water Co., 24 Idaho 275, 133 P. 677 (1913).

Tourist Court.

Even though plaintiffs, purchasers, did not create the encroachments contained in the tourist site, they would be liable as successive owners of the property. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

Prior Laws.

Former§ 52-110 was repealed. See Prior Laws,§ 52-101.

Cross References.

Abatement of moral nuisance,§ 52-401 et seq.

Moral nuisance defined,§ 52-103.

Nuisance defined,§ 52-101.

Private person may sue for public nuisance specially injurious,§ 52-206.

Prior Laws.

Former§ 52-111 was repealed. See Prior Laws,§ 52-101.

Applicability.

Summary judgment in favor of the bar on the resident’s negligence claim was proper because the resident failed to provide sufficient evidence to establish that the bar owed a duty to the resident or created a public nuisance under this section. The assault on the resident occurred outside of the bar, was by an unknown assailant, and was not foreseeable. Jones v. Starnes, 150 Idaho 257, 245 P.3d 1009 (2011).

Damages.

Damages may be recovered in addition to an injunction or abatement, but are not a prerequisite to such equitable relief, and the failure to recover damages does not necessarily mean there can be no injunction or abatement, if that equitable relief is otherwise appropriate. Payne v. Skaar, 127 Idaho 341, 900 P.2d 1352 (1995). Even though landowners had prevailed in their claim for a nuisance caused by the neighbors’ interference with their use of a driveway easement, the district court properly denied the landowners’ monetary damages, where the nuisance had stopped, the driveway was no longer obstructed, and there was no diminished property value. Benninger v. Derifield, 142 Idaho 486, 129 P.3d 1235 (2006).

Injunctions.

While a structure that is a nuisance in fact may be enjoined, injunctions are disfavored where the structure serves a useful purpose and the nuisance arises out of a legitimate business or activity’s particular manner of operation. McVicars v. Christensen, 156 Idaho 58, 320 P.3d 948 (2014).

Where something constitutes a nuisance because of particular objectionable features associated with it, a court should not enjoin the entire activity, but rather should only attempt to eliminate the objectionable features. McVicars v. Christensen, 156 Idaho 58, 320 P.3d 948 (2014).

Unsightly Structures.

Property owners do not have the right to prohibit, upon adjoining land, the erection of structures that they did not find to be aesthetically pleasing, unless the structure has no useful purpose and was erected only to injure them. McVicars v. Christensen, 156 Idaho 58, 320 P.3d 948 (2014).

Decisions Under Prior Law

Instructions.

The giving of instructions to the jury on issue of nuisance was not erroneous as raising an issue not pleaded in the complaint where the complaint charged the defendant with acts and conditions which would constitute a nuisance under this section. Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967).

Special Injury.

This section does not change the general rule that a private party to maintain an action to abate a public nuisance must show special injury to himself. Redway v. Moore, 3 Idaho 312, 29 P. 104 (1892).

Trees Causing Damage.

Where defendant’s predecessors in interest planted on the common boundary two poplar trees which have now matured to four or five feet in diameter at the base and thereafter plaintiff built approximately six feet from the boundary line and such mature trees now extend over and onto the building, one of the trees pushing to and against the foundation of plaintiff’s house and exerting sufficient pressure against the basement to crack and push the wall of the house inward also damaging the surface, the court authorized, upon the plaintiff bringing this action on the ground that the condition constituted a nuisance, the destruction of one tree but the other tree being healthy and not damaging the foundation and walls of the house it would not be necessary to be removed. Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957).

ALR.

Cross References.

Public nuisance defined,§ 52-102.

Prescriptive Right Not Acquired.

No lapse of time can give a prescriptive right to maintain a nuisance. Lewiston v. Booth, 3 Idaho 692, 34 P. 809 (1893).

Abatement.

This section makes no distinction as to the remedy to abate nuisances which are a crime per se and those which are not such a crime. Redway v. Moore, 3 Idaho 312, 29 P. 104 (1892).

Sellers’ contention that purchasers were not bound to remove encroachments of tourist site and equipment sold to them upon demand by the city inasmuch as the city has permitted the existence of such encroachments for a considerable time was not well taken, and it became the duty of the purchasers to remove such encroachments, as failure to do so would result in both civil and criminal liability. Such encroachments were a public nuisance and subject to abatement. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

Cross References.

Penalty for maintenance of public nuisance,§ 18-5903.

Compiler’s Notes.

The reference to the “Penal Code” at the end of the section is a reference to an archaic division of the Idaho Code, now codified as titles 18 through 20, Idaho Code.

Pleading.

Private person who sues to abate public nuisance must allege by positive averment in his complaint sufficient facts to show special injury to himself. Redway v. Moore, 3 Idaho 312, 29 P. 104 (1892).

Private Actions.

Private person may sue to abate or restrain continuance of public nuisance, provided he alleges and shows that such nuisance is especially injurious to himself. Thus, a person whose property is rendered undesirable as a residence and thereby depreciated in value because of the maintenance of a house of prostitution in the neighborhood may sue to enjoin the continued maintenance of the same as a nuisance. Redway v. Moore, 3 Idaho 312, 29 P. 104 (1892).

A private person who is especially injured by the maintenance of obstructions in a navigable river may sue to abate the same. Small v. Harrington, 10 Idaho 499, 79 P. 461 (1904).

A reasonable obstruction in a navigable stream, which merely impairs navigation but does not destroy it, cannot be enjoined at the suit of a private person. Small v. Harrington, 10 Idaho 499, 79 P. 461 (1904).

To authorize a private person to bring an action to abate a public nuisance, the plaintiff must allege and show that he will be specially injured in a different way from the public generally or deprived of the free use of his own private property. Stricker v. Hillis, 15 Idaho 709, 99 P. 831 (1909).

To have suffered in a different manner or extent than the public at large is to have received a special and peculiar damage for which a recovery may be had. Stricker v. Hillis, 17 Idaho 646, 106 P. 1128 (1910).

Res Judicata.

Where the construction of a fish farm in an estuary deprived a riparian landowner of ingress and egress to her property via the estuary, she was entitled to bring an action for abatement of the nuisance. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977). Res Judicata.

Trial and acquittal of a party charged in criminal proceedings with construction of a nuisance in a navigable stream is not a bar to civil action to enjoin nuisance. Small v. Harrington, 10 Idaho 499, 79 P. 461 (1904).

Suing in Name of State.

Citizens of county are entitled to maintain action in name of state to enjoin operation of gambling machines and devices on the ground that operation of same constituted a lottery. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953).

Cross References.

Liquor nuisance, abatement,§ 23-705.

Road Overseer.

Road overseer is the proper party to bring action to abate a nuisance when such nuisance consists of obstruction to public highway within his district. Meservey v. Gulliford, 14 Idaho 133, 93 P. 780 (1908).

Tourist Court.

Sellers’ contention that purchasers were not bound to remove encroachments of tourist site and equipment sold to them upon demand by the city inasmuch as the city has permitted the existence of such encroachments for a considerable time was not well taken, and it became the duty of the purchasers to remove such encroachments, as failure to do so would result in both civil and criminal liability. Such encroachments were a public nuisance and subject to abatement. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

Cross References.

Actions for nuisance,§ 52-111.

Private nuisance defined,§ 52-107.

ALR.

“Coming to nuisance” as a defense or estoppel. 42 A.L.R.3d 344.

Interference with radio or television reception as nuisance. 58 A.L.R.3d 1142.

Casting of light on another’s premises as constituting nuisance. 79 A.L.R.3d 253.

Obstruction of Estuary.

Where the construction of a fish farm in an estuary deprived a riparian landowner of the right of ingress to and egress from her property via the estuary, she was entitled to bring an action for abatement of the nuisance. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977).

Obstruction of Nonnavigable Streams.

Obstruction of stream which prevents ordinary flow of water for formerly appropriated irrigation purposes is nuisance and may be abated. Carey Lake Reservoir Co. v. Strunk, 39 Idaho 332, 227 P. 591 (1924).

Defendant upstream owner, a junior appropriator of water rights, had no right to damages from plaintiffs, a downstream owner, a prior appropriator, and users of water in his ditch, for removal of dam which was constructed by upstream owner, since the dam constituted a private nuisance and it was plaintiffs’ right to abate it. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Where plaintiff was entitled to water, and dam constituted private nuisance, it was plaintiff’s right to abate it and defendant was not entitled to damages resulting from removal of the obstruction by plaintiffs. The equipment plaintiffs took to the site crossed over sagebrush land causing no injury and they had a right to reasonable access to the channel to secure and safeguard their water right. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Cross References.

Indecency and obscenity,§ 18-4101 et seq.

Moral nuisance defined,§ 52-103.

Prostitution,§ 18-5601 et seq.

Suppression of prostitution under health laws,§ 39-603.

Prior Laws.

A former chapter 4 of title 52, which comprised R.C., §§ 4628a-4628j, as added by 1915, ch. 43, § 6, p. 125; reen. C.L., §§ 4628a-4628j; C.S.,§§ 7042-7051; I.C.A.,§§ 51-401 — 51-410, was repealed by S.L. 1976, ch. 82, § 3.

Decisions Under Prior Law

Constitutionality.

Similar act relating to intoxicating liquors was held constitutional. State v. Kasiska, 27 Idaho 548, 150 P. 17 (1915).

ALR.

Porno shops or similar places disseminating obscene materials as nuisance. 58 A.L.R.3d 1134.

Massage parlor as nuisance. 80 A.L.R.3d 1020.

Cross References.

Attorney general,§ 67-1401 et seq.

Private person may maintain action,§§ 52-111, 52-204.

Prior Laws.

Former§ 52-402 was repealed. See Prior Laws,§ 52-401.

Decisions Under Prior Law

Citizens of County.

Citizens of county are entitled to maintain action in name of state to enjoin operation of gambling machines and devices on the ground that operation of same constituted a lottery. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953).

Prior Laws.

Former§ 52-403 was repealed. See Prior Laws,§ 52-401.

Cross References.

Contempt of court,§ 7-601 et seq.

Prior Laws.

Former§ 52-404 was repealed. See Prior Laws,§ 52-401.

Prior Laws.

Former§ 52-405 was repealed. See Prior Laws,§ 52-401.

Prior Laws.

Former§ 52-406 was repealed. See Prior Laws,§ 52-401.

No Prior Restraint.

Purpose.

Where the state filed suit against two adult bookstores asking injunctive relief abating the alleged nuisance and for forfeiture of the use of the real property in question, the one-year closure or forfeiture order did not by itself constitute an unlawful prior restraint upon the exercise of free speech; such finding was based upon (1) the extensive power of the state to impose a forfeiture on neutral and innocent property used in the commission of forbidden acts, (2) the power of the state to impose sanctions of its choice upon those who disseminate unprotected obscenity, (3) the fact that the forfeiture or closure order was not directed at any speech or publication, but was instead aimed at the real property apart from the content of expression contained therein, and (4) the fact that the defendants remained free to disseminate any materials, except those already determined to be obscene, at any other location, subject to further penal actions by the state should the defendants again violate laws regulating obscenity. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982). Purpose.

The manifest purpose of Idaho’s one-year closing provision is not to prevent future expression, but to punish past illegal conduct by depriving the violator of economic gain; this is a permissible state objective implemented by permissible means. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982).

Prior Laws.

Former§ 52-407 was repealed. See Prior Laws,§ 52-401.

Prior Laws.

Former§ 52-408 was repealed. See Prior Laws,§ 52-401.

Prior Laws.

Former§ 52-409 was repealed. See Prior Laws,§ 52-401.

Prior Laws.

Former§ 52-410 was repealed. See Prior Laws,§ 52-401.

Cross References.

Attorney general,§ 67-1401 et seq.

No Prior Restraint.

Purpose.

Where the state filed a suit against two adult bookstores asking injunctive relief abating the alleged nuisance and for forfeiture of the use of the real property in question, the one-year closure or forfeiture order did not by itself constitute an unlawful prior restraint upon the exercise of free speech; such finding was based upon (1) the extensive power of the state to impose a forfeiture on neutral and innocent property used in the commission of forbidden acts, (2) the power of the state to impose sanctions of its choice upon those who disseminate unprotected obscenity, (3) the fact that the forfeiture or closure order was not directed at any speech or publication, but was instead aimed at the real property apart from the content of expression contained therein, and (4) the fact that the defendants remain free to disseminate any materials, except those already determined to be obscene, at any other location, subject to further penal actions by the state should the defendants again violate laws regulating obscenity. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982). Purpose.

The manifest purpose of Idaho’s one-year closing provision is not to prevent future expression, but to punish past illegal conduct by depriving the violator of economic gain and this is a permissible state objective implemented by permissible means. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982).

Award of Costs.

The portion of this section relating to recovery of abatement costs is clearly remedial in nature and should be liberally construed to effect its manifest objectives. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982).

Constitutionality.

In an action to abate two adult bookstores as moral nuisances, where the trial court awarded only nominal attorney fees to the state, on the ground that the state had failed to keep hourly time sheets, and denied the state all other abatement costs, such award was not in keeping with the legislative policy of this section and was insufficient. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982). Constitutionality.

This section, which awards abatement costs only to a prevailing plaintiff, does not violate the equal protection clause of the United States Constitution where the award furthers a legitimate governmental objective. State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S. Ct. 1649, 71 L. Ed. 2d 878 (1982).

Compiler’s Notes.

The term “this act” throughout this section refers to S.L. 1976, Chapter 82, which is compiled as§§ 52-101 to 52-111 and 52-401 to 52-417.