Nebraska Court Case:
(Cite as: 4 Neb.App.742, 550 N.W. 2nd 49)
Corp. © West 1997
To obtain a full copy of this decision you
must go through WEST legal database.
Elmer THOMSEN and Phyllis Thomsen, husband and wife, Appellants and Cross-Appellees,
v.
Ron GREVE and Nancy Greve, husband and wife, Appellees and Cross-Appellants
No. A-95-191
Court of Appeals of Nebraska
June 11, 1996
Neighbors brought nuisance action against owners
of wood-burning stove. The District Court, Thurston County, Darvid
D. Quist, J.k held that smoke from stove created nuisance, ordered
abatement, and denied award of damages. Neighbors appealed and
owners cross-appealed. The Court of Appeals, Hannon, J.k held
that: (1) smoke constituted a private nuisance; (2) neighbors
were entitled to award of damages from appellate court; and (3
abatement order would be modified to require effective abatement.
A few sections in part read:" (3) Nuisance 3(3)
279k1
"Private nuisance" is nontrespassory invasion of another's interest in private use and enjoyment of land.
279k3(3) To have use and enjoyment of one's
home interfered with by smoke, odor and similar attacks upon one's
senses is a serious harm, and one should not be required to close
windows to avoid such harm.
279k2
Intentional invasion of another's interest
in land exists when actor purposefully causes invasion, knows
that invasion is resulting from actor's conduct, or knows that
invasion is substantially certain to result from actor's conduct.
Nuisance 279k33
Evidence established that owners of wood-burning stove created private nuisance; neighbors testified that smoke from stove entered home approximately 140 times in four years, making house smell of creosote and causing neighbors physical discomfort, and stove users were told by neighbors of smoke problem, testimony of witnesses supported neighbor's claim that neighbors had significant smoke odor in their house and that source of odor had to be outside, and whether smoke odor was not determinative of whether nuisance existed.
Restatement (Second) of Torts ss 822, 826,
827.
[6} Nuisance 50(7)
279k50(7)
In nuisance action for injuries from smoke
from wood-burning stove, neighbors were entitled to $4,000 in
damages where evidence established that they had suffered significant
physical discomfort.
550 N.W.2d 49
(Cite as 4 Neb. App. 742, *749, 550 N.W.2d 49, **54)
{3] …On the other hand, aside form the simple right to use their property as they wish, it is difficult to assign any particular social value to the Greves' wood-burning stove. This method of heating does save on fossil fuels, but assuming that the stove used by the Greves emits foul smelling smoke, society is certainly blessed if only a few people avail themselves of the opportunity to save fuel by using such stoves. The Greves could avoid invading the Thomsens' property by using other means of heating.