In General.

There is no requirement under North Dakota law that the nuisance be under the control of the defendant. Hebron Public School Dist. v. U.S. Gypsum, 690 F. Supp. 866, 1988 U.S. Dist. LEXIS 7160 (D.N.D. 1988).

N.D.C.C. § 42-01-01(1) is not void for vagueness, as it did not require incorporation of city’s municipal ordinances on nuisance to derive its legal meaning; the terms used in the statute have commonly understood meanings and are not so ambiguous that persons of common intelligence would have to guess at their meanings or differ as to their application. City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123, 2009 N.D. LEXIS 14 (N.D. 2009).

“Coming to the Nuisance” Doctrine.

Any individual, corporation or partnership that comes to an alleged nuisance has a heavy burden to establish liability. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

Where automobile dealership alleged that feed plant’s discharge of dust, chaff, and grindings into the atmosphere and onto the dealership’s inventory of cars and trucks parked on its sale lot constituted a private nuisance, and the feed plant was in existence before the dealership was established in the proximity of the feed plant, the trial court should have applied the “coming to the nuisance” doctrine to the case. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

The doctrine of “coming to the nuisance” is a factor considered in determining whether a nuisance exists, along with all other evidence respecting reasonableness of use. Rassier v. Houim, 488 N.W.2d 635, 1992 N.D. LEXIS 180 (N.D. 1992).

Anyone who comes to a nuisance has a heavy burden to establish liability. Rassier v. Houim, 488 N.W.2d 635, 1992 N.D. LEXIS 180 (N.D. 1992).

Common Law.

The common-law nuisance concept does not apply because the legislature has enacted a statute defining a nuisance. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

Conclusion of Law.

While the various factual circumstances of each case must be resolved before the rules of law may be applied to those circumstances to determine whether or not a nuisance exists, the ultimate resolution of whether or not a nuisance exists, based on the facts and circumstances of each case, is a conclusion of law. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

Duty.

Although this section defines nuisance in part as “omitting to perform a duty”, the type of “duty” which gives rise to a claim of nuisance may differ from the “duty” implicated in a negligence action. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

The duty whose breach gives rise to a nuisance claim is the absolute duty not to act in a way which unreasonably interferes with other persons’ use and enjoyment of their property. Rassier v. Houim, 488 N.W.2d 635, 1992 N.D. LEXIS 180 (N.D. 1992).

Injured party could not recover under a theory that an obstruction on the land owner’s property presented a nuisance because the landowner was immune from liability under the North Dakota Recreational Use Statute, N.D.C.C. § 53-08-02, and the landowner thus did not owe the injured party any duty. Cudworth v. Midcontinent Communs., 2003 U.S. Dist. LEXIS 6242 (D.N.D. Apr. 11, 2003).

Tort of nuisance is defined by statute, and the duty which gives rise to a nuisance claim is the absolute duty not to act in a way which unreasonably interferes with other persons’ use and enjoyment of their property; an injured snowmobile rider and his wife did not state an actionable nuisance claim because they failed to allege or show that a barrier, which defendants had erected and which had caused the rider to become injured, was unlawfully on defendants’ land. Cudworth v. Midcontinent Communs., 380 F.3d 375, 2004 U.S. App. LEXIS 17859 (8th Cir. N.D. 2004).

Nuisance action under N.D.C.C. § 42-01-01 against a township arising from a wrongful death should not have been dismissed because the township might have had a duty to warn about the condition of the section line. Kappenman v. Klipfel, 2009 ND 89, 765 N.W.2d 716, 2009 N.D. LEXIS 96 (N.D. 2009).

Mineral lessee had no liability for nuisance under N.D.C.C. § 38-11.1-06 regarding its use of a flare because such use was required by N.D. Admin. Code § 43-02-03-45 and therefore, pursuant to N.D.C.C. § 42-01-12, did not constitute a nuisance under N.D.C.C. § 42-01-01. Noise, litter, and storage of equipment were not nuisances as a matter of law because they were not excessive; however, limited discovery was appropriate as to whether soil and water contamination had occurred. Kartch v. EOG Res., Inc., 845 F. Supp. 2d 995, 2012 U.S. Dist. LEXIS 25851 (D.N.D. 2012).

Erroneously Admitted Evidence.

It was error to admit evidence of the general reputation and good deeds of a landowner who allegedly caused a nuisance because (1) this was irrelevant to the required inquiry into the utility of the nuisance, (2) the evidence was inadmissible as character evidence, and (3) neighbors did not “open the door” to such evidence. Flynn v. Hurley Enters., Inc., 2015 ND 58, 860 N.W.2d 450, 2015 N.D. LEXIS 56 (N.D. 2015).

Improper Jury Submission.

Plaintiff school district’s nuisance theory was improperly submitted to the jury and it might have been the theory on which the jury returned its verdict for plaintiff who sought to recover costs of removing acoustical plaster which contained asbestos and was manufactured by defendant; hence the judgment of the trial court was set aside and the case remanded for a new trial. Tioga Public School Dist. #15 v. United States Gypsum Co., 984 F.2d 915, 1993 U.S. App. LEXIS 1258 (8th Cir. N.D. 1993).

Negligence.

A nuisance may be created wholly without negligence. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

Proof of absence of negligence is not a defense to an action grounded in nuisance, because the focus is upon the condition created and not upon the exercise of care or skill by the defendant. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

Nuisance Per Se.

A privy is not a nuisance per se but it may become so, depending on the circumstances. Teinen v. Lally, 10 N.D. 153, 86 N.W. 356, 1901 N.D. LEXIS 14 (N.D. 1901).

A baseball game is not a nuisance per se. Riffey v. Rush, 51 N.D. 188, 199 N.W. 523, 1924 N.D. LEXIS 160 (N.D. 1924).

An undertaking establishment is not a nuisance per se. Meldahl v. Holberg, 55 N.D. 523, 214 N.W. 802, 1927 N.D. LEXIS 123 (N.D. 1927).

Obscene Materials.

As applied to specific materials, this state’s nuisance laws may be used to make a determination of obscenity and to enjoin the distribution of materials adjudged obscene. City of Minot v. Central Ave. News, 308 N.W.2d 851, 1981 N.D. LEXIS 340 (N.D. 1981).

Private Nuisance.

City which maintained sanitary landfill in location such as to permit rains to send down onto plaintiffs’ property surface waters laden with silt and other material rendered plaintiffs insecure in use of their property and created a private nuisance, entitling plaintiffs to bring civil action for damages. Thorson v. Minot, 153 N.W.2d 764, 1967 N.D. LEXIS 104 (N.D. 1967).

In order for something to be a private nuisance it must first come within the statutory definition of a nuisance as set out in this section. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

The basic criterion in the whole law of private nuisance is reasonableness of conduct. Rassier v. Houim, 488 N.W.2d 635, 1992 N.D. LEXIS 180 (N.D. 1992).

Because the landowners failed to present competent evidence supporting their claim that the law enforcement shooting range posed a danger to their property, the district court did not err by granting summary judgment on the landowners’ private nuisance claim; the landowner admitted he had no expertise about the weapons used at the shooting range and his speculation was not competent evidence. Hale v. Ward County, 2012 ND 144, 818 N.W.2d 697, 2012 N.D. LEXIS 133 (N.D. 2012).

District court misapplied the case law by too narrowly defining what may have constituted a private nuisance under N.D.C.C. § 42-01-01 where the instant case involved the existence and continued use of a private water line servicing an adjacent property owner’s home that undisputedly ran across a portion of the landowner’s property, and the landowner’s private nuisance claim went beyond simply whether the water line posed an actual danger to its property. G&D Enters. v. Liebelt, 2020 ND 213, 949 N.W.2d 853, 2020 N.D. LEXIS 222 (N.D. 2020).

Public Nuisance.

Permitting noxious weeds to grow on one’s land is not a public nuisance. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

Engaging in barbering without having procured a certificate of registration prescribed by law does not constitute a public nuisance. Richmond v. Miller, 70 N.D. 157, 292 N.W. 633, 1940 N.D. LEXIS 155 (N.D. 1940).

A usurious small loan business is a public nuisance. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).

Question of Fact.

The manner and place of conducting a business may cause it to become a nuisance, depending on the facts. Meldahl v. Holberg, 55 N.D. 523, 214 N.W. 802, 1927 N.D. LEXIS 123 (N.D. 1927).

Reasonableness of Interference.

Factors relevant to the reasonableness of a defendant’s interference with the plaintiff’s use of property include a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief. Rassier v. Houim, 488 N.W.2d 635, 1992 N.D. LEXIS 180 (N.D. 1992).

District court did not err in granting summary judgment dismissing plaintiffs' statutory nuisance claim. Because plaintiffs had no cognizable right to an unobstructed view from their property, defendant's construction of a pool house as a matter of law did not unreasonably interfere with plaintiffs' use and enjoyment of their property. Ceynar v. Barth, 2017 ND 286, 904 N.W.2d 469, 2017 N.D. LEXIS 291 (N.D. 2017).

Street Obstruction.

A person contracting with a drainage board is liable in tort and not on contract for placing an obstruction in the street. Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 30 L.R.A. (n.s.) 1111 (1910), decided prior to the enactment of N.D.C.C. ch. 24-03.

Collateral References.

Nuisance 1-10, 59-70.

58 Am. Jur. 2d, Nuisances, §§ 1 et seq.

66 C.J.S. Nuisances, §§ 1-104.

Attracting people in such numbers as to obstruct access to the neighboring premises, as nuisance, 2 A.L.R.2d 437.

Coalyard as nuisance, 8 A.L.R.2d 419.

Stockyard as a nuisance, 18 A.L.R.2d 1033, 1039.

Dust as nuisance, 24 A.L.R.2d 194.

Tourist or trailer camp, motor court, or motel, as nuisance, 24 A.L.R.2d 571.

Private school as nuisance, 27 A.L.R.2d 1249.

Sewage disposal plant as nuisance, 40 A.L.R.2d 1177.

Public dances or dance halls as nuisances, 44 A.L.R.2d 2381.

Quarries, gravel pits, and the like as nuisances, 47 A.L.R.2d 490.

Cemetery or burial ground as nuisance, 50 A.L.R.2d 1324.

Public dump as nuisance, 52 A.L.R.2d 1134.

Golf course or driving range as a nuisance, 68 A.L.R.2d 1331.

Water sports, amusements, or exhibitions as nuisance, 80 A.L.R.2d 1124.

Parking lot or place as nuisance, 82 A.L.R.2d 413.

Automobile wrecking yard or place of business as nuisance, 84 A.L.R.2d 653.

Oil refinery as a nuisance, 86 A.L.R.2d 1322.

Drive-in restaurant or cafe as nuisance, 91 A.L.R.2d 572.

Dairy, creamery, or milk distributing plant, as nuisance, 92 A.L.R.2d 974.

Drive-in theater or other outdoor dramatic or musical entertainment as nuisance, 93 A.L.R.2d 1171.

Keeping pigs as a nuisance, 2 A.L.R.3d 931.

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

Motorbus or truck terminal as nuisance, 2 A.L.R.3d 1372.

Electric generating plant or transformer station as a 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.

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.

Operation of incinerator as nuisance, 41 A.L.R.3d 1009.

Laundry or drycleaning establishment as nuisance, 41 A.L.R.3d 1236.

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

Residential swimming pool as nuisance, 49 A.L.R.3d 545.

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.

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

Pornoshop 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.

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.

Keeping bees as nuisance, 88 A.L.R.3d 992.

Bells, carillons, and the like as nuisance, 95 A.L.R.3d 1268.

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

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

Windmill as nuisance, 36 A.L.R.4th 1159.

Computer as nuisance, 45 A.L.R.4th 1212.

Business interruption, without physical damage, as actionable, 65 A.L.R.4th 1126.

Nuisance as entitling owner or occupant of real estate to recover damages for personal inconvenience, discomfort, annoyance, anguish, or sickness, distinct from, or in addition to, damages for depreciation in value of property or its use, 25 A.L.R.5th 568.

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.

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

Private Nuisance.

City which maintained sanitary landfill in location such as to permit rains to send down onto plaintiffs’ property surface waters laden with silt and other material rendered plaintiffs insecure in use of their property and created a private nuisance, entitling plaintiffs to bring civil action for damages. Thorson v. Minot, 153 N.W.2d 764, 1967 N.D. LEXIS 104 (N.D. 1967).

Because the landowners failed to present competent evidence supporting their claim that the law enforcement shooting range posed a danger to their property, the district court did not err by granting summary judgment on the landowners’ private nuisance claim; the landowner admitted he had no expertise about the weapons used at the shooting range and his speculation was not competent evidence. Hale v. Ward County, 2012 ND 144, 818 N.W.2d 697, 2012 N.D. LEXIS 133 (N.D. 2012).

Collateral References.

Nuisances 1-3.

58 Am. Jur. 2d, Nuisances, §§ 42-47.

66 C.J.S. Nuisances, §§ 7-9.

Nonencroaching vegetation as a private nuisance, 83 A.L.R.2d 936.

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

Telephone calls as nuisance, 53 A.L.R.4th 1153.

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

Private Nuisance.

City which maintained sanitary landfill in location such as to permit rains to send down onto plaintiffs’ property surface waters laden with silt and other material rendered plaintiffs insecure in use of their property and created a private nuisance, entitling plaintiffs to bring civil action for damages. Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967). This decision also disposed of suits by other landowners.

Collateral References.

58 Am. Jur. 2d, Nuisances, §§ 256, 257.

Evidence Sufficient.

In an action brought by a city against a property owner, the district court did not err in ordering the owner to immediately abate a nuisance on his property by removing and disposing of all trash, rubbish, junk and junk automobiles and permanently enjoining the owner from maintaining a nuisance on the property; the city presented sufficient evidence to establish a nuisance on the owner’s land. City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123, 2009 N.D. LEXIS 14 (N.D. 2009).

When viewed in the light most favorable to the landowners, the maps, photographs and additional evidence raised a genuine issue whether the terrain surrounding the shooting range prevented bullets from exiting the shooting range; because the landowners raised a genuine issue of material fact whether bullets fired at the law enforcement shooting range exited the range, crossed County Road 12 and posed an unlawful danger, the district court erred by dismissing their public nuisance claim. Hale v. Ward County, 2012 ND 144, 818 N.W.2d 697, 2012 N.D. LEXIS 133 (N.D. 2012).

Noxious Weeds.

Permitting noxious weeds to grow on landowner’s property does not constitute a public nuisance. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

Unlicensed Profession.

Practicing the profession of barbering without a certificate of registration does not constitute a public nuisance. Richmond v. Miller, 70 N.D. 157, 292 N.W. 633, 1940 N.D. LEXIS 155 (N.D. 1940).

What Constitutes Public Nuisance.

A nuisance may be public even if it does not inflict injury to all of the public. It is sufficient if it injures any considerable number of people who may have to come in contact with it. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).

Collateral References.

Nuisance 59.

58 Am. Jur. 2d, Nuisances, §§ 34-41.

66 C.J.S. Nuisances, §§ 7-9.

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

Action by Municipality.

The municipality may bring a civil action to require the removal of a house which obstructs an area dedicated for a public use. City of Jamestown v. Miemietz, 95 N.W.2d 897, 1959 N.D. LEXIS 78 (N.D. 1959).

Remedies Not Exclusive.

N.D.C.C. § 42-01-07 is a list of remedies available against a public nuisance and does not limit the remedies that may be sought against the same individual for the same nuisance to only one of the listed remedies; the phrases separated by the word “or” in N.D.C.C. § 42-01-07 do not have separate and independent significance, interpreting “or” as indicating mutually exclusive alternatives is unreasonable, and the word “remedies” is plural, which indicates more than one remedy may be pursued against a public nuisance. Therefore, a trial court did not err by refusing to dismiss a criminal nuisance action based on the fact that a civil nuisance action had also been filed against defendant. State v. Martin, 2011 ND 6, 793 N.W.2d 188, 2011 N.D. LEXIS 5 (N.D. 2011).

Collateral References.

Nuisances 77 et seq.

58 Am. Jur. 2d, Nuisances, §§ 246 et seq.

66 C.J.S. Nuisances, §§ 138, 139, 149.

Injury from nuisance maintained by insured as within coverage of public liability policy, 98 A.L.R.2d 1047.

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

Evidence Sufficient.

When viewed in the light most favorable to the landowners, the maps, photographs and additional evidence raised a genuine issue whether the terrain surrounding the shooting range prevented bullets from exiting the shooting range; because the landowners raised a genuine issue of material fact whether bullets fired at the law enforcement shooting range exited the range, crossed County Road 12 and posed an unlawful danger, the district court erred by dismissing their public nuisance claim. Hale v. Ward County, 2012 ND 144, 818 N.W.2d 697, 2012 N.D. LEXIS 133 (N.D. 2012).

Necessity for Injury from Nuisance.

In absence of evidence that landowners suffered any injury to themselves or to their property as result of commercial sign located on adjacent property, they could not maintain action for public nuisance. Frandsen v. Mayer, 155 N.W.2d 294, 1967 N.D. LEXIS 122 (N.D. 1967).

Necessity that Nuisance Be Specially Injurious.

Plaintiffs, as private persons, were not entitled to maintain a claim for a public nuisance because they did not show that the alleged public nuisance of the law enforcement shooting range was specially injurious to them as plaintiff husband’s use of the county road adjacent to the shooting range once or twice a month to visit friends and the evidence of bullet holes in signs near the road did not demonstrate the range was specially injurious to him in a manner different from other members of the public. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

Any citizen of a county where a claimed nuisance exists is permitted to bring an action in the name of the state to abate and perpetually enjoin the nuisance; however, private persons may maintain a public nuisance claim in their own right or in the name of the state only if the claimed public nuisance is specially injurious to them, or their property, but not otherwise. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

“Specially Injurious.”

“Specially injurious” language in this statute is construed to authorize a private person to maintain a public nuisance claim if the private person suffers harm of a kind different from that suffered by other members of the public and the injury was suffered while exercising a right common to the general public. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

Collateral References.

Nuisances 71-75.

58 Am. Jur. 2d, Nuisances, § 420.

66 C.J.S. Nuisances, §§ 109-111.

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

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 A.L.R.5th 438.

Necessity that Nuisance Be Specially Injurious.

Plaintiffs, as private persons, were not entitled to maintain a claim for a public nuisance because they did not show that the alleged public nuisance of the law enforcement shooting range was specially injurious to them as plaintiff husband's use of the county road adjacent to the shooting range once or twice a month to visit friends and the evidence of bullet holes in signs near the road did not demonstrate the range was specially injurious to him in a manner different from other members of the public. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

Any citizen of a county where a claimed nuisance exists is permitted to bring an action in the name of the state to abate and perpetually enjoin the nuisance; however, private persons may maintain a public nuisance claim in their own right or in the name of the state only if the claimed public nuisance is specially injurious to them, or their property, but not otherwise. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

Permitted Uses.

Although a property owner argued that the use of his property was protected by N.D.C.C. § 42-01-12, any permitted uses given the owner under a city’s zoning ordinances were exercised in an unreasonable and improper manner, and consequently, the owner lost the protection afforded by N.D.C.C. § 42-01-12. City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123, 2009 N.D. LEXIS 14 (N.D. 2009).

It was error to instruct a jury on nuisance immunity for statutorily authorized acts because a county's zoning authority gave no such immunity, nor did refusing to abandon a road between the parties' properties, so no evidence supported giving the instruction. Flynn v. Hurley Enters., Inc., 2015 ND 58, 860 N.W.2d 450, 2015 N.D. LEXIS 56 (N.D. 2015).

Required Uses.

Mineral lessee had no liability for nuisance under N.D.C.C. § 38-11.1-06 regarding its use of a flare because such use was required by N.D. Admin. Code § 43-02-03-45 and therefore, pursuant to N.D.C.C. § 42-01-12, did not constitute a nuisance under N.D.C.C. § 42-01-01. Noise, litter, and storage of equipment were not nuisances as a matter of law because they were not excessive; however, limited discovery was appropriate as to whether soil and water contamination had occurred. Kartch v. EOG Res., Inc., 845 F. Supp. 2d 995, 2012 U.S. Dist. LEXIS 25851 (D.N.D. 2012).

Sewage Disposal.

The legislative immunity conferred upon cities by authorizing them to empty sewage into rivers did not sanction or legalize acts of a municipality in depositing an excessive amount of improperly or insufficiently treated sewage in a stream which decreased rental value of property affected by such nuisance. Messer v. Dickinson, 71 N.D. 568, 3 N.W.2d 241, 1942 N.D. LEXIS 92 (N.D. 1942).

Collateral References.

Nuisance 5, 65.

58 Am. Jur. 2d, Nuisances, §§ 450 et seq.

66 C.J.S. Nuisances, §§ 16, 17.

“Punishment for Which is Not Otherwise Prescribed”.

The fact that the defendant could have been charged with a violation of N.D.C.C. § 42-11-01 did not negate the right of the state to charge him with a violation of this section and to seek the punishment prescribed under this statute. State v. Hafner, 1998 ND 220, 587 N.W.2d 177, 1998 N.D. LEXIS 230 (N.D. 1998).

Remedies Not Exclusive.

N.D.C.C. § 42-01-07 is a list of remedies available against a public nuisance and does not limit the remedies that may be sought against the same individual for the same nuisance to only one of the listed remedies; the phrases separated by the word “or” in N.D.C.C. § 42-01-07 do not have separate and independent significance, interpreting “or” as indicating mutually exclusive alternatives is unreasonable, and the word “remedies” is plural, which indicates more than one remedy may be pursued against a public nuisance. Therefore, a trial court did not err by refusing to dismiss a criminal nuisance action based on the fact that a civil nuisance action had also been filed against defendant. State v. Martin, 2011 ND 6, 793 N.W.2d 188, 2011 N.D. LEXIS 5 (N.D. 2011).

Collateral References.

Nuisance 89-96.

66 C.J.S. Nuisances, §§ 251-262.

Authority to Bring Action.

City had the authority to bring a nuisance abatement action against a property owner, as N.D.C.C. § 42-02-01 does not give exclusive authority to the individuals listed to bring a nuisance abatement action but gives only those individuals the authority to bring the action in the name of the state; under N.D.C.C. § 42-01-09, any public body or officer authorized by law may abate a public nuisance. City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123, 2009 N.D. LEXIS 14 (N.D. 2009).

Plaintiffs, as private persons, were not entitled to maintain a claim for a public nuisance because they did not show that the alleged public nuisance of the law enforcement shooting range was specially injurious to them as plaintiff husband’s use of the county road adjacent to the shooting range once or twice a month to visit friends and the evidence of bullet holes in signs near the road did not demonstrate the range was specially injurious to him in a manner different from other members of the public. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

Any citizen of a county where a claimed nuisance exists is permitted to bring an action in the name of the state to abate and perpetually enjoin the nuisance; however, private persons may maintain a public nuisance claim in their own right or in the name of the state only if the claimed public nuisance is specially injurious to them, or their property, but not otherwise. Hale v. Ward County, 2014 ND 126, 848 N.W.2d 245, 2014 N.D. LEXIS 129 (N.D. 2014).

State As Plaintiff.

When an action is brought in the name of the state ex rel. the state’s attorney of a county, to restrain a nuisance, the state, as the real party in interest, is the plaintiff. The state’s attorney is an officer of the state and has no personal interest in such lawsuit. If, during the action, his term expires, his successor takes his place as the prosecutor of the action for the state. There is no change of parties. State ex rel. Nedrud v. Govan, 86 N.W.2d 755, 1957 N.D. LEXIS 177 (N.D. 1957).

Constitutionality.

Provision of this statute for the granting of a temporary injunction at the commencement of an action to abate a bawdyhouse nuisance is not unconstitutional as depriving a person of life, liberty, or property without due process of law. State ex rel. Herigstad v. McCray, 48 N.D. 625, 186 N.W. 280, 1921 N.D. LEXIS 138 (N.D. 1921).

Elements of Offense.

The offense of maintaining a nuisance consists in keeping the place where the forbidden acts are committed. State v. Thoemke, 11 N.D. 386, 92 N.W. 480, 1902 N.D. LEXIS 229 (N.D. 1902).

Illegal Sale of Liquor.

The place where liquor is sold in violation of law may be abated as a nuisance. State ex rel. Bartlett v. Fraser, 1 N.D. 425, 48 N.W. 343 (1891), distinguished, State ex rel. Heffron v. Bleth, 21 N.D. 27, 127 N.W. 1043 (1910); State v. Dellaire, 4 N.D. 312, 60 N.W. 988, 1894 N.D. LEXIS 40 (N.D. 1894); State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897); State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910); State ex rel. McClory v. McGruer, 9 N.D. 566, 84 N.W. 363, 1900 N.D. LEXIS 264 (N.D. 1900); State ex rel. McClory v. Donovan, 10 N.D. 610, 88 N.W. 717, 1901 N.D. LEXIS 81 (N.D. 1901).

In an action to abate a liquor nuisance, it was held that the finding of liquor in defendant’s possession was not presumptive evidence that the same was to be unlawfully sold. State ex rel. Kelly v. Nelson, 13 N.D. 122, 99 N.W. 1077, 1904 N.D. LEXIS 22 (N.D. 1904).

Jurisdiction.

A court of equity has power to issue an injunction pendente lite in an action to abate a nuisance under this chapter, upon obtaining jurisdiction of the subject matter. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Obscene Materials.

As applied to specific materials, this state’s nuisance laws may be used to make a determination of obscenity and to enjoin the distribution of materials adjudged obscene. City of Minot v. Central Ave. News, 308 N.W.2d 851, 1981 N.D. LEXIS 340 (N.D. 1981).

Sufficiency of Affidavit.

An affidavit for a search warrant made by the state’s attorney upon information and belief is insufficient to authorize search of premises believed to be used for sale of intoxicating liquors. State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1904 N.D. LEXIS 1 (N.D. 1904).

Sufficiency of Complaint.

When it is charged that intoxicating liquors were sold on premises, it is not necessary to state the names of the parties to whom such sales were made. State v. Dellaire, 4 N.D. 312, 60 N.W. 988, 1894 N.D. LEXIS 40 (N.D. 1894).

Under the prohibitory law, in an action for the abatement of a liquor nuisance, an injunction might issue at the commencement of the action upon a complaint alone, when made by the state’s attorney and verified by him upon information and belief. State ex rel. Register v. Patterson, 13 N.D. 70, 99 N.W. 67 (N.D. 1904).

The court is not authorized to direct the abatement of a liquor nuisance where the indictment or information fails to particularly describe the place where such nuisance is maintained. State v. Ildvedson, 20 N.D. 62, 126 N.W. 489, 1910 N.D. LEXIS 63 (N.D. 1910).

Collateral References.

58 Am. Jur. 2d, Nuisances, §§ 309 et seq.

66 C.J.S. Nuisances, §§ 188-191.

Joinder, in injunction action to restrain or abate nuisance, of persons contributing thereto through separate and independent acts, 45 A.L.R.2d 1284.

Practice of extracting usury as a nuisance or ground for injunction, 83 A.L.R.2d 848.

Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance, 40 A.L.R.3d 601.

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

Constitutionality.

The statute which directs the seizure and retention of property alleged to be used as a bawdyhouse, if the seizure is without notice and without a hearing to determine whether such place is a nuisance in fact, is unconstitutional as the taking of property without due process, the violation of the security of persons in their own houses, and as an unreasonable seizure. State ex rel. Herigstad v. McCray, 48 N.D. 625, 186 N.W. 280, 1921 N.D. LEXIS 138 (N.D. 1921); Simpson v. District Court, 77 N.D. 189, 42 N.W.2d 213, 1950 N.D. LEXIS 118 (N.D. 1950).

Death of Defendant.

The death of the person charged with maintaining a common nuisance abates the nuisance and the cause of action does not survive. State ex rel. Kelly v. McMaster, 13 N.D. 58, 99 N.W. 58, 1904 N.D. LEXIS 15 (N.D. 1904).

Destruction of Personal Property.

In an action for the discontinuance of a bawdyhouse as a common nuisance, the court has no inherent authority to order the destruction of personal property kept and used in connection with its operation and maintenance. State ex rel. McCurdy v. Bennett, 37 N.D. 465, 163 N.W. 1063, 1917 N.D. LEXIS 101 (N.D. 1917).

To seize and destroy personal property found in a disorderly house also used as the home of the defendant there must be evidence to show what personal property was used in the keeping and maintaining of the nuisance and a judicial determination thereon. State ex rel. Halvorson v. Simpson, 78 N.D. 440, 49 N.W.2d 790, 1951 N.D. LEXIS 103 (N.D. 1951).

Where less drastic means are available to correct or alleviate the problem, destruction of private property deemed a nuisance is an arbitrary act that is prohibited as a matter of law. City of Minot v. Freelander, 380 N.W.2d 321, 1986 N.D. LEXIS 236 (N.D. 1986).

Destruction of nuisance property is a drastic remedy, and it must necessarily be a remedy of last resort unless the property is of such nature that its use or possession cannot be other than for evil. City of Minot v. Freelander, 380 N.W.2d 321, 1986 N.D. LEXIS 236 (N.D. 1986).

Dwelling House.

The provisions of this section and N.D.C.C § 42-02-03 for the abatement of a bawdyhouse nuisance do not authorize the taking possession of and closing a dwelling house used in keeping and maintaining such nuisance until it is found upon the judgment of a jury, court, or judge having jurisdiction to be a common nuisance. Simpson v. District Court, 77 N.D. 189, 42 N.W.2d 213, 1950 N.D. LEXIS 118 (N.D. 1950).

Obscene Materials.

While, as applied to specific materials, this state’s nuisance laws may be used to make a determination of obscenity and to enjoin the distribution of specific materials adjudged obscene, such a determination will not constitutionally support the closing for one year of the establishment from which the materials were dispensed unless other circumstances justifying a one year closing exist. City of Minot v. Central Ave. News, 308 N.W.2d 851, 1981 N.D. LEXIS 340 (N.D. 1981).

Collateral References.

58 Am. Jur. 2d, Nuisances, §§ 398 et seq.

66 C.J.S. Nuisances, § 141.

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

Discretion of Court.

It is discretionary with the trial court whether the building in which a nuisance was maintained by selling liquors therein, of which the owner had knowledge, shall be released to the owner after it is closed by appropriate proceedings. State ex rel. Heffron v. Bleth, 21 N.D. 27, 127 N.W. 1043, 1910 N.D. LEXIS 134 (N.D. 1910).

Lien for Fines and Costs.

A lien for fines and costs is enforceable on premises on which a nuisance is unlawfully maintained, where the use is knowingly permitted by the owner. Larson v. Christiansen, 14 N.D. 476, 106 N.W. 51, 1905 N.D. LEXIS 96 (N.D. 1905).

Protection of Owner’s Rights.

If, after a judgment is rendered against the defendant tenant on the issue of maintaining a nuisance, the owner of the premises can show that he is without fault, his rights are protected. State ex rel. Halvorson v. Simpson, 78 N.D. 440, 49 N.W.2d 790, 1951 N.D. LEXIS 103 (N.D. 1951).

Absence of Defendant.

The fact that the proprietress of the house was not actually present in the room when the lewd conversation was carried on does not render such testimony incompetent to show the character of the house. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Circumstantial Evidence.

If the facts and circumstances in the evidence are such that the clear inference therefrom is that intercourse was practiced on the premises, that is sufficient even if no particular act is shown. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Conviction of Inmates.

Evidence of conviction of inmates of a bawdyhouse on moral charges is admissible in proceedings for the abatement of the nuisance as bearing on the character of the house. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

General Reputation.

To prove the character of a house alleged to be a disorderly house, the general reputation of such house is admissible. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Collateral References.

58 Am. Jur. 2d, Nuisances, §§ 380-384.

Admissibility, in prosecution for maintaining liquor nuisance, of evidence of general reputation of premises, 68 A.L.R.2d 1300.

In General.

The violation of an injunction abating a liquor nuisance is punishable by a contempt proceeding. State v. Markuson, 5 N.D. 147, 64 N.W. 934, 1895 N.D. LEXIS 22 (N.D. 1895).

Sufficiency of Affidavit.

An affidavit upon information and belief is insufficient for constructive contempt proceedings. State ex rel. Harvey v. Newton, 16 N.D. 151, 112 N.W. 52, 1907 N.D. LEXIS 25 (N.D. 1907).

Nuisance Shield.

Nuisance shield under N.D.C.C. § 42-04-02 extends to corporations and limited liability companies meeting the definition of agricultural operation in N.D.C.C. § 42-04-01, not just those that qualify under the limitations in N.D.C.C. ch. 10-06.1. Tibert v. Slominski, 2005 ND 34, 692 N.W.2d 133, 2005 N.D. LEXIS 36 (N.D. 2005).

Preparation and Marketing of Agricultural Products.

The preparation and marketing of agricultural products fall within the definition of “agricultural operation” only insofar as they are encompassed within “the science and art of production of plants and animals” by a proprietorship, a partnership, or a corporation which meets the requirements of former N.D.C.C ch. 10-06. Thus, a corporation which did not qualify under former N.D.C.C ch. 10-06 was not entitled to invoke the protections of N.D.C.C § 42-04-02. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

It was not the intent of the legislature, when it created protections for “agricultural operations”, to encompass the remote preparation and marketing of such products by large national corporations. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

Collateral References.

Windmill as nuisance, 36 A.L.R.4th 1159.

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

Application.

This statute is not retroactive in its application. Jerry Harmon Motors v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 1983 N.D. LEXIS 378 (N.D. 1983).

Nuisance shield under N.D.C.C. § 42-04-02 extends to corporations and limited liability companies meeting the definition of agricultural operation in N.D.C.C. § 42-04-01, not just those that qualify under the limitations in N.D.C.C. ch. 10-06.1. Tibert v. Slominski, 2005 ND 34, 692 N.W.2d 133, 2005 N.D. LEXIS 36 (N.D. 2005).

Not Applicable.

The agricultural operation defense is inapplicable if the nuisance was a result of negligent or improper operation. Therefore, hog farmer whose hogs ran loose on twenty separate occasions and who was charged with willful creation of a public nuisance in violation of N.D.C.C. § 42-01-15 was not entitled to a jury instruction on the agricultural operation defense under this section. State v. Hafner, 1998 ND 220, 587 N.W.2d 177, 1998 N.D. LEXIS 230 (N.D. 1998).

Preparation and Marketing of Agricultural Products.

The preparation and marketing of agricultural products fall within the definition of “agricultural operation” only insofar as they are encompassed within “the science and art of production of plants and animals” by a proprietorship, a partnership, or a corporation which meets the requirements of former N.D.C.C ch. 10-06. Thus, a corporation which did not qualify under former N.D.C.C ch. 10-06 was not entitled to invoke the protections of this section. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

It was not the intent of the legislature when it created protections for “agricultural operations” to encompass the remote preparation and marketing of such products by large national corporations. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 1986 N.D. LEXIS 235 (N.D. 1986).

Collateral References.

Windmill as nuisance, 36 A.L.R.4th 1159.

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