Robie v. Lillis

• Decision Date: 29 December 1972
• Docket Number: No. 6393,6393
• Citation: 112 N.H. 492,299 A.2d 155
• Parties: Richard S. ROBIE, Sr. et al. v. Glenna M. LILLIS et al.
• Court: New Hampshire Supreme Court

Page 155

299 A.2d 155

112 N.H. 492

Richard S. ROBIE, Sr. et al. v. Glenna M. LILLIS et al.

No. 6393.

Supreme Court of New Hampshire.

Dec. 29, 1972.

James J. Kalled, Wolfboro, by brief and orally, for plaintiffs.

Devine, Millimet, Stahl & Branch, Matthias J. Reynolds and Richard E. Galway, Manchester (Reynolds orally), for defendants.

KENISON, Chief Justice.

Appeal from a denial of a petition for abatement of an alleged nuisance in which the plaintiffs seek a permanent injunction restraining the defendants from maintaining a boat storage shed on a four-acre tract of land belonging to the defendants in the town of Tuftonboro, New Hampshire, near the shore of Lake Winnipesaukee.

Plaintiffs obtained a temporary injunction preventing further construction in December 1968 which was amended on two occasions before the full hearing. Prior to the hearing on the merits, the Judicial Referee (John H. Leahy), appointed pursuant to RSA 491:23 and RSA 493-A:1 (Supp.), viewed the boat shed, several of plaintiffs' properties and the surrounding area. A full hearing was held before the referee who thereafter issued a decree denying the petition upon a ruling that no nuisance existed since the premises were being used for a reasonable purpose and in a reasonable manner. Plaintiffs seasonably excepted to the decree, to the denial of certain requests for findings and rulings, and to certain findings and rulings made by the referee. All questions of law raised by these exceptions were reserved and transferred to this court without ruling by the Superior Court (Keller, c.j.), pursuant to RSA 493-A:3.

Defendants operate a boat repair, rental and storage business about two miles from the boat storage shed in question which was constructed in 1968 to accommodate an increasing number of boats serviced by the defendants which required winter storage. During three months each spring the boats are from time to time taken out of storage and trucked out along a narrow road, and the reverse process occurs over a three-month period in the fall. Plaintiffs claim that the existence and operation of the boathouse constitute a nuisance because the shed is the first and only commercial structure in what is otherwise a quiet, rural and residential area and that it is a blight upon the otherwise unscarred landscape. In particular, plaintiffs allege that the 'heavy' trucking in and out of the boats in the spring and fall will cause unreasonable noise and dust and hazards to playing and bicycling children and other persons traveling along the narrow access road. Plaintiffs further contend that the value of their properties will depreciate if the boathouse is allowed to remain and its operation is allowed to continue. Finally, it is claimed that the presence of oil and gasoline in the boats and elsewhere on the premises will create an unreasonable fire hazard to the surrounding properties.

The report of the judicial referee included the following findings and rulings: 'The Town of Tuftonboro has no zoning laws or ordinances and the defendants are not in violation of any statutory law or ordinance, The referee finds that the trucking of boats to the boathouse in the fall and to the corporation marina in the spring does not of itself constitute an abatable nuisance; that hazard of children playing in the road does not constitute a nuisance in this case. Evidence concerning noise and dust was at a minimum, and it is found that noise and dust, if any, does not exist to a point where it is a nuisance.

'Evidence as to affect on surrounding land values was very scarce. (One witness) bought land in 1971 on Tuftonboro Neck and expects to develop it and 'make a profit.'

'There was evidence from the plaintiffs that the boat storage house constituted a fire hazard because there was always some gasoline around or in the boats, as it was hard to get it all out when storing a boat.

'It is found that the land values near the boathouse have not deteriorated by reason of the boathouse being where it is. The fire hazard complained of appears to be no greater than exists in any storage place where gasoline is present. It is noted that there is a fire department located within one mile of the boat building.

'Upon consideration of all the evidence, it is found that the boat storage building . . . does not constitute a public or private nuisance by being where it is or because of its use to store boats. It is further found that the defendants are using the premises involved for a reasonable purpose and in a reasonable manner. It is recommended that the temporary injunction be terminated and the request for a permanent injunction be denied.'

Plaintiffs have alleged that the boathouse constitutes both a public and a private nuisance. Prior decisions of this court make it clear that a private nuisance may be defined as an activity which results in an unreasonable interference with the use and enjoyment of another's property. See Webb v. Rye, 108 N.H. 147, 230 A.2d 223 (1967); Urie v. Franconia Paper Co., 107 N.H. 131, 218 A.2d 360 (1966); Proulx v. Keene, 102 N.H. 427, 158 A.2d 455 (1960); Lane v. Concord, 70 N.H. 485, 49 A. 687 (1900). See generally 6-A American Law of Property s. 28.22 (A.J. Casner ed. 1954); Prosser, Torts s. 89 (4th ed. 1971); Restatement (Second) of Torts s. 822, at 22 (Tent.Draft No. 17, 1971). A public nuisance, on the other hand, is 'an unreasonable interference with a right common to the general public.' Restatement (Second) of Torts, supra s. 821B(1), at 3. It is behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community. 6-A American Law of Property, supra s. 28.23, at 68; Restatement (Second) of Torts, supra s. 821B(2)(a); See Urie v. Franconia Paper Co., 107 N.H. 131, 218 A.2d 360 (1966); McKinney v. Riley, 105 N.H. 249, 197 A.2d 218 (1964); White v. Suncook Mills, 91 N.H. 92, 13 A.2d 729 (1940). Conduct which unreasonably interferes with the rights of others may be both a public and a private nuisance (Urie v. Franconia Paper Co. supra (Restatement (Second) of Torts, supra s. 821B, Comment h at 9-10), and both actions involve an analysis of similar considerations. Restatement (Second) of Torts, supra s. 821B, Comment e at 6.

Essential to a finding of either a public or a private nuisance is a determination that the interference complained of is substantial. Proulx v Keene, 102 N.H. 427, 158 A.2d 455 (1960); Page v. Brooks, 79 N.H. 70, 104 A. 786 (1918); Lane v. Concord, supra; Prosser, supra s. 87, at 577; Restatement (Second) of Torts, supra s. 821B(2)(c), s. 821(F) at 54 (Tent.Draft No. 16, 1970), and s. 829A at 4 (Tent.Draft No. 18, 1972). 'Substantial harm is that in excess of the customary interferences a land user suffers in an organized society. It denotes an appreciable and tangible interference with a property interest.' 6-A American Law of Property, supra s. 28.25, at 73. However, '(n)ot every intentional and substantial invasion of a person's interest in the use and enjoyment of land is actionable . . . Life in organized society . . . involves an unavoidable clash of individual interests. Practically all human activities . . . interfere to some extent with others or involve some risk of interference . . .. (E)ach individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together. . . . (T)he law of torts does not attempt to impose liability . . . in every case where one person's conduct has some detrimental effect on another. Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances. . . . (T)he law has developed a . . . rule of liability for intentional invasions . . . (which) requires that an intentional invasion be unreasonable before one is liable for causing it.' Restatement (Second) of Torts, s. 822, Comment g at 27-28 (Tent.Draft No. 17, 1971). This requirement of a finding of unreasonableness is the crux of the law of nuisance. Webb v. Rye, 108 N.H. 147, 230 A.2d 223 (1967); Lane v. Concord, supra; Ladd v. Brick Co., 68 N.H. 185, 37 A. 1041 (1894); Prosser, supra s. 89, at 596.

The proper consideration of all the relevant circumstances involves a balancing of the gravity of the harm to the plaintiff against the utility of the defendant's conduct, both to himself and to the community. Proulx v. Keene, 102 N.H. 427, 158 A.2d 455 (1960); 6-A American Law of Property, supra s. 28.26, at 75-76; Restatement of Torts ss. 826-31 (1939). See also Webb v. Rye, supra. 'In general, conduct will be unreasonable only when its utility to the actor and to the public is outweighed by the gravity of the harm that results.' 6-A American Law of Property, supra s. 28.22, at 66. This same weighing process is involved in determining the appropriateness of injunctive relief once a nuisance has been found to exist (Crocker v. College of Advance Science (Caanan College), 110 N.H. 384, 388, 268 A.2d 844, 847 (1970); Webb v. Rye, supra; 6-A American Law of Property, supra s. 28.35, at 97; Restatement of Torts, supra s. 941), although the scales must weigh more heavily in the plaintiff's favor because of the extraordinary nature of this form of relief. See Ferguson v. Keene, 111 N.H. 222, 225, 279 A.2d 605, 607-608 (1971); Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 82 N.W.2d 151 (1957); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970); Restatement of Torts, supra s. 941, at 711-12. See generally Annot., 40 A.L.R.3d 601 (1971).

It is clear in this case that the judicial referee correctly applied these tests in determining that the defendants' use of the boat shed was reasonable. The record fully supports the conclusion that the harm, if any, inflicted upon the plaintiffs from the existence and operation of the boathouse is neither...