Chapter 1 NUISANCES IN GENERAL

Sec.

§ 52-101. Nuisance defined.

Anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

History.

I.C.,§ 52-101, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

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 C.L.,§§ 3656-3661, 4529; 1919, ch. 97, p. 361; C.S.,§§ 6420-6429, 6956; I.C.A.,§§ 51-101 — 51-111, was repealed by S.L. 1976, ch. 82, § 1.

CASE NOTES

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).

Cited

Carpenter v. Double R Cattle Co., 105 Idaho 320, 669 P.2d 643 (Ct. App. 1983); Moon v. N. Idaho Farmers Ass’n, 140 Idaho 536, 96 P.3d 637 (2004).

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).

RESEARCH REFERENCES

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.

§ 52-102. Public nuisance.

A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.

History.

I.C.,§ 52-102, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

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.

CASE NOTES

Cited

Carpenter v. Double R Cattle Co., 105 Idaho 320, 669 P.2d 643 (Ct. App. 1983).

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).

§ 52-103. Moral nuisances — Definitions.

As used in title 52, Idaho Code, relating to moral nuisances.

  1. which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
  2. which depicts or describes patently offensive representations or descriptions of:
    1. ultimate sexual acts, normal or perverted, actual or simulated; or
    2. masturbation, excretory functions, or lewd exhibition of the genitals or genital area.
      1. film or plate negative;
      2. film or plate positive;
      3. film designed to be projected on a screen for exhibition;
      4. films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen.[;]
      5. video tape or any other medium used to electronically reproduce images on a screen.
        1. Any and every place in the state where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition;
        2. Any and every place in the state where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition;
        3. Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a moral nuisance under this section;
        4. Any and every place of business in the state in which lewd publications constitute a principal part of the stock in trade;
        5. Any and every lewd publication possessed at a place which is a moral nuisance under this section; and
        6. Every place which, as a regular course of business, is used for the purposes of lewdness, assignation, or prostitution, and every such place in or upon which acts of lewdness, assignation, or prostitution, are held or occur.

Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value.

History.

I.C.,§ 52-103, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

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.

CASE NOTES

Cited

Carpenter v. Double R Cattle Co., 105 Idaho 320, 669 P.2d 643 (Ct. App. 1983).

§ 52-104. Moral nuisances — Types.

The following are declared to be moral nuisances:

History.

I.C.,§ 52-104, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-105. Moral nuisances — Personal property — Knowledge of nuisance.

The following are also declared to be moral nuisances, as personal property used in conducting and maintaining a moral nuisance:

(A) All monies paid as admission price to the exhibition of any lewd film found to be a moral nuisance.

(B) All valuable consideration received for the sale of any lewd publication which is found to be a moral nuisance.

(C) The furniture and movable contents of a place which is a moral nuisance.

From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in section 52-405, Idaho Code, upon the place, or its manager, or acting manager, or person then in charge, all such parties are deemed to have knowledge of the acts, conditions or things which make such place a moral nuisance. Where the circumstantial proof warrants a determination that a person had knowledge of the moral nuisance prior to such service of process, the court shall make such finding.

History.

I.C.,§ 52-105, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-106. Moral nuisances — Building where gambling is carried on.

Any building, place, or the ground itself, wherein or whereon gambling or any game of chance for money, checks, credit or other representatives of value is carried on or takes place, or gambling paraphernalia is kept, or any notice, sign or device advertising or indicating the existence or presence of such gambling or any game of chance is displayed or exposed to view, is declared a moral nuisance and shall be enjoined and abated as provided by law.

History.

I.C.,§ 52-106, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Cross References.

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

Prior Laws.

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

CASE NOTES

Cited

Rossi v. United States, 49 F.2d 1 (9th Cir. 1931).

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).

§ 52-107. Private nuisance.

Every nuisance not defined by law as a public nuisance or a moral nuisance, is private.

History.

I.C.,§ 52-107, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Cross References.

Private nuisances in general,§ 52-301.

Prior Laws.

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

CASE NOTES

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).

§ 52-108. When not a nuisance.

Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.

History.

I.C.,§ 52-108, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Prior Laws.

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

CASE NOTES

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).

§ 52-109. Liability of successive owners for continuing nuisance.

Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property, created by a former owner, is liable therefor in the same manner as the one who first created it.

History.

I.C.,§ 52-109, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Prior Laws.

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

CASE NOTES

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).

§ 52-110. Abatement does not preclude action.

The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.

History.

I.C.,§ 52-110, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-111. Actions for nuisance.

Anything which is injurious to health or morals, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action. In the case of a moral nuisance, the action may be brought by any resident citizen of the county; in all other cases the action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.

History.

I.C.,§ 52-111, as added by 1976, ch. 82, § 2, p. 270.

STATUTORY NOTES

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.

CASE NOTES

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).

Cited

Carpenter v. Double R Cattle Co., 105 Idaho 320, 669 P.2d 643 (Ct. App. 1983).

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).

RESEARCH REFERENCES

ALR.

§ 52-201. Not legalized by prescription.

No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.

History.

R.S., § 3630; reen. R.C. & C.L., § 3662; C.S., § 6430; I.C.A.,§ 51-201.

STATUTORY NOTES

Cross References.

Public nuisance defined,§ 52-102.

CASE NOTES

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).

§ 52-202. Remedies.

The remedies against a public nuisance are:

  1. Indictment or information;
  2. A civil action; or,
  3. Abatement.
History.

R.S., § 3631; compiled R.C. & C.L., § 3663; C.S., § 6431; I.C.A.,§ 51-202.

CASE NOTES

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).

§ 52-203. Indictment or information.

The remedy by indictment or information is regulated by the Penal Code.

History.

R.S., § 3632; reen. R.C. & C.L., § 3664; C.S., § 6432; I.C.A.,§ 51-203.

STATUTORY NOTES

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.

§ 52-204. Action by private person.

A private person may maintain an action:

  1. For a moral nuisance, if he be a resident citizen of the county, whether the nuisance complained of is specially injurious to him or not.
  2. For any other public nuisance, if it is specially injurious to himself.
History.

R.S., § 3633; reen. R.C., § 3665; am. 1915, ch. 43, § 4, p. 125; reen. C.L., § 3665; C.S., § 6433; I.C.A.,§ 51-204.

CASE NOTES

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).

§ 52-205. Abatement by public body or officer.

A public nuisance may be abated by any public body or officer authorized thereto by law.

History.

R.S., § 3634; reen. R.C. & C.L., § 3666; C.S., § 6434; I.C.A.,§ 51-205.

STATUTORY NOTES

Cross References.

Liquor nuisance, abatement,§ 23-705.

CASE NOTES

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).

§ 52-206. Abatement by private person.

Any person may abate a public nuisance which is specially injurious to him, by removing, or if necessary, destroying, the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.

History.

R.S., § 3635; reen. R.C. & C.L., § 3667; C.S., § 6435; I.C.A.,§ 51-206.

Chapter 3 PRIVATE NUISANCES

Sec.

§ 52-301. Remedies for private nuisances.

The remedies against a private nuisance are:

  1. A civil action; or,
  2. Abatement.
History.

R.S., § 3640; reen. R.C. & C.L., § 3668; C.S., § 6436; I.C.A.,§ 51-301.

STATUTORY NOTES

Cross References.

Actions for nuisance,§ 52-111.

Private nuisance defined,§ 52-107.

RESEARCH REFERENCES

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.

§ 52-302. Abatement — When allowed.

A person injured by a private nuisance may abate it by removing, or, if necessary, destroying, the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury.

History.

R.S., § 3641; reen. R.C. & C.L., § 3669; C.S., § 6437; I.C.A.,§ 51-302.

CASE NOTES

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).

§ 52-303. Abatement — When notice is required.

Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it.

History.

R.S., § 3642; reen. R.C. & C.L., § 3670; C.S., § 6438; I.C.A.,§ 51-303.

Chapter 4 MORAL NUISANCES — ACTIONS FOR INJUNCTION AND ABATEMENT

Sec.

§ 52-401. Cumulative remedy.

In addition to any other remedy provided by law, any act, occupation, structure or thing which is a moral nuisance, may be abated, and the person doing such act or engaged in such occupation, and the owner and agent of the owner of any such structure or thing may be enjoined, as in this chapter provided.

History.

I.C.,§ 52-401, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

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.

CASE NOTES

Cited

State ex rel. Kidwell v. United States Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981); United States Mktg., Inc. v. Leroy, 524 F. Supp. 1277 (D. Idaho 1981).

Decisions Under Prior Law
Constitutionality.

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

RESEARCH REFERENCES

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.

§ 52-402. Who may maintain action.

The attorney general, prosecuting attorney, or any private resident citizen of the county may maintain an action of an equitable nature, as relator, in the name of the state of Idaho, to abate a moral nuisance, perpetually to enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a moral nuisance.

If such action is instituted by a private person, the complainant shall execute a bond prior to the issuance of a restraining order or a temporary injunction, with good and sufficient surety to be approved by the court or clerk thereof, in the sum of not less than five hundred dollars ($500), to secure to the party enjoined the damages he may sustain if such action is wrongfully brought, not prosecuted to final judgment, or is dismissed, or is not maintained, or if it is finally decided that the restraining order or temporary injunction ought not to have been granted. The party enjoined shall have recourse against said bond for all damages suffered, including damages to his property, person, or character and including reasonable attorney’s fees incurred by him in making defense to said action. No bond shall be required of the prosecuting attorney or the attorney general, and no action shall be maintained against the public official for his official action when brought in good faith.

History.

I.C.,§ 52-402, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

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.

CASE NOTES

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).

§ 52-403. Pleadings — Jurisdiction — Venue — Application for temporary injunction.

The action, provided for in this chapter, shall be brought in any court of competent jurisdiction in the county in which the property is located. Such action shall be commenced by the filing of a verified complaint alleging the facts constituting the nuisance. After the filing of said complaint, application for a temporary injunction may be made to the court in which the action is filed, or to a judge thereof, who shall grant a hearing within ten (10) days after the filing.

History.

I.C.,§ 52-403, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-404. Order restraining removal of personal property from premises — Service — Punishment.

Where such application for a temporary injunction is made, the court may, on application of the complainant showing good cause, issue an ex parte restraining order, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist, until the decision of the court or judge granting or refusing such temporary injunction and until the further order of the court thereon, except that, pending such decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions thereafter may be required.

The restraining order may be served by handing to and leaving a copy of such order with any person in charge of such place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by both such delivery and posting. The officer serving such restraining order shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance.

Any violation of such restraining order is a contempt of court, and where such order is posted, mutilation or removal thereof, while the same remains in force, is a contempt of court, provided such posted order contains therein a notice to that effect.

History.

I.C.,§ 52-404, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Cross References.

Contempt of court,§ 7-601 et seq.

Prior Laws.

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

§ 52-405. Notice of hearing on temporary injunction — Consolidation.

A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendant at least five (5) days before such hearing. The place may also be served by posting such papers in the same manner as is provided for in section 52-404, Idaho Code, in the case of a restraining order. If the hearing is then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course.

Before or after the commencement of the hearing of an application for a temporary injunction, the court, on application of either of the parties or on its own motion, may order the trial of the action on the merits to be advanced and consolidated with the hearing on the application for the temporary injunction. Any evidence received upon an application for a temporary injunction which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated as to such parties at the trial on the merits.

History.

I.C.,§ 52-405, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-406. Right to possession of real property and personal property after hearing on the temporary injunction — Conditions for avoidance of temporary forfeiture.

If upon hearing, the allegations of the complaint are sustained by clear and convincing evidence that a moral nuisance exists and is likely to continue in the absence of injunctive relief, the court shall issue a temporary injunction, without additional bond, restraining the defendant and any other person from continuing the nuisance.

If at the time the temporary injunction is granted, it further appears that the person owning, in control, or in charge of the nuisance so enjoined had received five (5) days’ notice of the hearing, then the court shall declare a temporary forfeiture of the use of the real property upon which such public nuisance is located and the personal property located therein and shall forthwith issue an order closing such place against its use for any purpose until final decision is rendered on the application for a permanent injunction, unless:

  1. the nuisance complained of has been abated by such person, or
  2. the owner of such property, as a “good faith” lessor, has taken action to void said lease as is authorized by section 52-414, Idaho Code.

Such order shall also continue in effect for such further period the order, authorized in section 52-404, Idaho Code, restraining the removal of personal property or, if not so issued, shall include such an order restraining for such period the removal or interference with the personal property and contents located therein. Such restraining order shall be served and the inventory of such property shall be made and filed as provided for in section 52-404, Idaho Code.

Such order shall also require such persons to show cause within thirty (30) days why such closing order should not be made permanent, as provided for in section 52-412, Idaho Code.

History.

I.C.,§ 52-406, as added by 1976, ch. 82, § 4, p. 270; am. 1982, ch. 271, § 1, p. 702.

STATUTORY NOTES

Prior Laws.

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

CASE NOTES

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).

§ 52-407. Right to possession of real property and personal property after finding of public nuisance — Conditions for reentry and repossession.

The owner of any real or personal property to be closed or restrained, or which has been closed or restrained, may appear between the filing of the complaint and the hearing on the application for a permanent injunction, and upon payment of all cost incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept, until the decision of the court is rendered on the application for a permanent injunction, then the court, if satisfied of the good faith of the owner of the real property and of the innocence on the part of any owner of the personal property of any knowledge of the use of such personal property as a nuisance and that, with reasonable care and diligence, such owner could not have known thereof shall, at the time of the hearing on the application for the temporary injunction, refrain from issuing any order closing such real property or restraining the removal or interference with such personal property, and, if such temporary injunction has already been issued, shall discharge said order and shall deliver such real or personal property, or both, to the respective owners thereof. The release of any real or personal property, under this section, shall not release it from any judgment, lien, penalty, or liability to which it may be subjected.

History.

I.C.,§ 52-407, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-408. Priority of action.

The action provided for in this chapter shall be set down for trial within ninety (90) days and shall have precedence over all other cases except crimes, election contests, or injunctions.

History.

I.C.,§ 52-408, as added by 1976, ch. 82, § 4, p. 270; am. 1982, ch. 271, § 2, p. 702.

STATUTORY NOTES

Prior Laws.

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

§ 52-409. Evidence.

In such action, an admission or finding of guilty of any person under the criminal laws against lewdness, prostitution, or assignation at any such place, is admissible for the purpose of proving the existence of said nuisance, and is prima facie evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining said nuisance.

History.

I.C.,§ 52-409, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-410. Evidence of reputation admissible.

At all hearings upon the merits, evidence of the general reputation of the building or place constituting the alleged nuisance, of the inmates thereof, and of those resorting thereto, is admissible for the purpose of proving the existence of such nuisance.

History.

I.C.,§ 52-410, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Prior Laws.

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

§ 52-411. Costs.

If the action is brought by a private person and the court finds that there were no reasonable grounds or probable cause for bringing said action, and the case is dismissed for that reason before trial, or if the action is dismissed for want of prosecution, the costs may be taxed to such person.

If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere, and the entire expenses of such abatement, including attorney’s fees, shall be recoverable by plaintiff as a part of his costs of the lawsuit.

If the complaint is filed by a private person, it shall not be voluntarily dismissed except upon a sworn statement by the complainant and his attorney, setting forth the reason why the action should be dismissed and the dismissal approved by the prosecuting attorney in writing or in open court. If the judge is of the opinion that the action ought not to be dismissed, he may direct the prosecuting attorney to prosecute said action to judgment at the expense of the county, and if the action is continued more than one (1) term of court, any person who is a citizen of the county, or has an office therein, or the attorney general or the prosecuting attorney, may be substituted for the complainant and prosecute said action to judgment.

History.

I.C.,§ 52-411, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 52-412. Content of final judgment and order.

If the existence of a nuisance is admitted or established in an action as provided for in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance, and not already released under authority of the court, as provided for in sections 52-406 and 52-407, Idaho Code, and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution. Lewd matter shall be destroyed and not be sold.

Such order shall also require the renewal for one (1) year of any bond furnished by the owner of the real property, as provided in section 52-407, Idaho Code, or, if not so furnished, shall continue for one (1) year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose, and keeping it closed for a period of one (1) year unless sooner released.

The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided in section 52-407, Idaho Code.

Owners of unsold personal property and contents so seized must appear and claim the same within ten (10) days after such order of abatement is made, and prove innocence, to the satisfaction of the court, of any knowledge of said use thereof, and that with reasonable care and diligence they could not have known thereof. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section. For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the court.

History.

I.C.,§ 52-412, as added by 1976, ch. 82, § 4, p. 270.

CASE NOTES

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).

§ 52-413. Court shall punish offender for violation of injunction or order.

In case of the violation of any injunction or closing order, granted under this chapter, or of a restraining order or the commission of any contempt of court in proceedings under this chapter, the court may summarily try and punish the offender. The trial may be had upon affidavits or either party may demand the production and oral examination of the witnesses.

History.

I.C.,§ 52-413, as added by 1976, ch. 82, § 4, p. 270.

§ 52-414. Lease void if building used for lewd purposes.

If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of lewdness, assignation, or prostitution, such use makes void the lease or other title under which he holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert and vest in such owner, who may without process of law make immediate entry upon the premises.

History.

I.C.,§ 52-414, as added by 1976, ch. 82, § 4, p. 270.

§ 52-415. Civil penalty — Forfeiture — Accounting — Lien as to expenses of abatement.

Lewd matter is contraband, and there are no property rights therein. All personal property declared to be a moral nuisance in section 52-104, Idaho Code, and all monies and other considerations declared to be a moral nuisance under section 52-105, Idaho Code, are the subject of forfeiture to the local government and are recoverable as damages in the county wherein such matter is sold, exhibited or otherwise used. Such monies may be traced to and shall be recoverable from persons who, under section 52-405, Idaho Code, have knowledge of the nuisance at the time such monies are received by them.

Upon judgment against the defendants in legal proceedings brought pursuant to this chapter, an accounting shall be made by such defendant or defendants of all monies received by them which have been declared to be a public nuisance under this section. An amount equal to the sum of all monies estimated to have been taken in as gross income from such unlawful commercial activity shall be forfeited to the general funds of the city and county governments wherein such matter is sold or exhibited, to be shared equally, as a forfeiture of the fruits of an unlawful enterprise, and as partial restitution for damages done to the public welfare, public health and public morals.

Where the action is brought pursuant to this chapter, special injury need not be proven, and the costs of abatement are a lien on both the real and personal property used in maintaining the nuisance. Costs of abatement include, but are not limited to the following:

  1. investigative costs.
  2. court costs.
  3. reasonable attorney’s fees arising out of the preparation for, and trial of the cause, and appeals therefrom, and other costs allowed on appeal.
  4. printing costs of trial and appellate briefs, and all other papers filed in such proceedings.
History.

I.C.,§ 52-415, as added by 1976, ch. 82, § 4, p. 270.

CASE NOTES

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).

Cited

United States Mktg., Inc. v. Leroy, 524 F. Supp. 1277 (D. Idaho 1981); DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

§ 52-416. Immunity.

The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment, provided that such projectionist, usher, or ticket taker: (1) has no financial interest in the place wherein he is so employed, and (2) freely and willingly gives testimony regarding such employment in any judicial proceedings brought under this chapter, including pre-trial discovery proceedings incident thereto, when and if such is requested, and upon being granted immunity by the trial judge sitting in such matters.

History.

I.C.,§ 52-416, as added by 1976, ch. 82, § 4, p. 270.

§ 52-417. Severability.

If any section, subsection, sentence, or clause of this act is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portion of this act. It is hereby declared that this act would have been passed, and each section, sentence, or clause thereof, irrespective of the fact that any one or more sections, subsections, sentences or clauses might be adjudged to be unconstitutional, or for any other reason invalid.

History.

I.C.,§ 52-417, as added by 1976, ch. 82, § 4, p. 270.

STATUTORY NOTES

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.