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Nuisance as a legal concept is not foreign to the oil patch

Posted on: August 12th, 2016
by David Ganje

Nuisance as a legal concept is not foreign to the oil patch as well as farm country in North Dakota. Producers and property owners should be cognizant of a possible nuisance claim concerning production and development issues. Nuisance is an interference with one’s right to own, possess, or enjoy their land. The law maintains two kinds of nuisances: private and public nuisances. A public nuisance is one that affects the community, neighborhood, or a considerable number of people in an area. A private nuisance is one that affects an individual or group of people from enjoying a right not common to the public.

In a recent decision by Texas Supreme Court, a landowner was found to have grounds to bring a civil claim for nuisance against an owner and operator of a natural gas company. The landowner sold small piece of land adjoining their ranch to the natural gas company. The gas company then built a gas compressor station. Shortly after construction, the landowner complained of loud noise and vibrations coming from the gas compressor station. Even though the natural gas company built walls and took steps to muffle the noise, the landowners brought a lawsuit for nuisance against the gas company.

The Supreme Court of Texas found that even though the landowners had legal sufficiency to make their claim, they did not have enough evidence for the court to rule in their favor. The court mentioned that although the landowners claimed that there was other technology available that could further reduce the noise, the landowners did not provide such evidence. Furthermore, no evidence was presented showing that the gas company operated its equipment negligently, that the efforts the gas company did make to reduce the noise took too long, or that enclosing the generator in a building would actually reduce the noise. So, if you think you have a nuisance on your hands, make sure you have more than enough evidence to support your claims before you do battle.

Although that grain elevator that sits next to your land may be kicking up a lot of dust and creating a racket, there may not be much you could do about it. North Dakota protects its agricultural operations from claims of nuisance once they have been in operation for more than one year. The state defines agricultural operations as the “science and art of producing plants and animals useful to people, by a corporation or a limited liability company.”

The one weakness to the agricultural defence is if the operation is run “negligently.” For example, let’s say a self-employed farmer had issues keeping his hogs to stay in their pens. Over a six-month period, there were 20 reports of his hogs leaving their pens. One incident included a hog that wandered onto the highway and was hit by a car causing several hundred dollars in damage. The court determined that the farmer willfully maintained a public nuisance. As Supreme Court Justice Sutherland once said, “A nuisance may be merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard.”

Once a nuisance is identified, there are a few actions that can be taken to resolve the nuisance. The injured party can bring a civil action. The civil action may result in a court order to stop the actions creating the nuisance or an order to take actions to lessen the nuisance. The injured party may also recover monetary damages.

Have you ever seen those turbines spinning peacefully in the distance as you drive by? Well, they may not be so peaceful if you live next to one. A family bought land adjoining a wind turbine and moved a mobile home onto the lot. After two years of living there, the family complained that the wind turbine was a private nuisance because it created loud noise, violated residential covenants, and supposedly threw chunks of ice into their yard. However, the court determined that the wind generator was not a nuisance. No other neighbors complained about the noise, the noise did not violate any noise ordinances, the wind generator was engineered specifically so that it would not throw ice from its blades, and the developer and residents of the subdivision had abandon the supposed covenants.

An interesting intricacy to North Dakota’s nuisance law has to do with how the state interprets the “coming to the nuisance” doctrine. In some states the doctrine prevents a person from bringing a case against a public or private nuisance if that person moved to an area where a nuisance already existed. In other states, such as North Dakota, it does not prevent the person from bringing a nuisance action but it does serve as a factor for consideration. North Dakota will also consider “what role the alleged nuisance activity has with the general business activities of the community and state,” and whether the activity is aligned with the state’s economic goals. Additionally, North Dakota considers whether the activity is regulated by the government or not. Although these factors can make a case for nuisance uncertain, if you are moving to a nuisance, you have heavy burden of proof to overcome.

North Dakota follows a strict statutory application, but when it comes to determining whether or not a nuisance interfered with your right to possess, use, or enjoy your land, a jury of your peers (including your neighbors) make that determination. So, if you have an issue with one of your neighbors, try to work it out peacefully first. You never know when you may need their help to tackle a nuisance.