Opinion
No. 81-038
Decided April 2, 1982
1. Evidence — Burden of Proof — Generally In a civil action the burden of proof is generally on the plaintiff to establish its case by a preponderance of the evidence.
2. Nuisance — Evidence — Burden of Proof The existence of a nuisance must be proved by a preponderance of the evidence, and the trial court erred in requiring property owners seeking to enjoin an adjoining property owner from operating his kennel, to prove by clear and convincing evidence that the kennel constituted a nuisance.
3. Nuisance — Elements A private nuisance exists when an activity substantially and unreasonably interferes with the use and enjoyment of another's property.
4. Nuisance — Elements To constitute a nuisance, activity must cause harm that exceeds the customary interferences a land user suffers in an organized society and be an appreciable and tangible interference with a property interest.
5. Nuisance — Conduct Causing Nuisance In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it constituted a nuisance, where the evidence showed that the kennel interfered substantially with the plaintiffs' use of their property, in that they were unable to rent a cottage on their property because the thirty-eight dogs in the kennel were within forty-eight inches of the cottage, rendering it uninhabitable, and the evidence also showed that the kennel detracted from the appearance of the plaintiffs' premises, on which they sold modular and mobile homes, that customers had left because of the noise and odor, and been offended by the barking and howling emanating from the kennel, and that the sales manager closed business early two times because of the odor, the evidence amply supported a finding that the kennel substantially and unreasonably interfered with the plaintiffs' use and enjoyment of their property, and a contrary conclusion was not warranted.
6. Nuisance — Elements When a property owner could take reasonable steps to reduce or eliminate inconvenience to an adjoining owner and still carry on his business, he is more likely to be found liable for causing a nuisance.
7. Nuisance — Evidence In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it constituted a nuisance, where the record showed that the kennel owner located the kennel as far away as possible from his own tire business and residence, and as close as possible to the plaintiffs' property, in order to protect his own business, he was more likely to be found liable for causing a nuisance where he could have taken reasonable steps to reduce or eliminate inconvenience to the plaintiff but did not do so.
8. Nuisance — Evidence Although a kennel owner's twenty thousand dollar investment in his kennel was a substantial one, he should not have been allowed to continue operating his kennel at his neighbors' expense simply because the kennel produced expensive odors and noises.
9. Nuisance — Conduct Causing Nuisance In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it constituted a nuisance, where defendant's twenty-thousand dollar dog kennel was located forty-eight inches from plaintiffs' rental cottage and was shown to have discouraged potential renters and to have offended both plaintiffs and the customers of their mobile home business, and the defendant testified that he set the dogs as far back on his property as he could put them in order to protect his retail business from noise, when the utility of defendant's operation of his kennel was balanced against the harm caused to plaintiffs, the defendant should have been enjoined from maintaining his kennel where it was located.
10. Equity — Relief Available — Discretion of Court The trial court has broad and flexible equitable powers which allow it to shape and adjust the precise relief to the requirements of the particular situation.
11. Injunction — Standards for Granting — Discretion of Trial Court In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it constituted a nuisance, where the supreme court concluded that the kennel owner should be enjoined from maintaining his kennel where it was presently located, the trial court, on remand, should receive and consider evidence pertaining to improvement of the current conditions, and fashion a remedy accordingly, and if the kennel activity could be carried on without causing unreasonable interference to the plaintiffs, then the defendant should not be enjoined completely from operating his kennel.
12. Nuisance — Damages — Temporary Nuisance Damages for past harm are recoverable in a private nuisance action when the nuisance is temporary or abatable.
13. Nuisance — Damages — Generally The measure of damages in a private nuisance action is the value of that which the plaintiff has lost as a result of the defendant's activity.
14. Evidence — Opinions — Admissibility Under New Hampshire's liberal rule, opinion evidence is admissible if it aids the fact-finder in the search for the truth.
15. Evidence — Opinions — Admissibility The trial court has a large measure of discretion whether opinion testimony should be admitted.
16. Damages — Lost Profits — Burden of Proof The law in New Hampshire is that damages need not be proven with an absolute certainty; however, the plaintiff must produce sufficient data to demonstrate that profits are reasonably certain to result.
17. Evidence — Opinions — Admissibility In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it constituted a nuisance, the master's ruling on testimony offered by the plaintiffs to establish loss of business sales due to the noise and odor of the kennel, in which the plaintiffs' sales manager in offering an opinion on the number of lost sales said that "it could go as high as six," striking the testimony was proper since the trial court has a large measure of discretion whether opinion testimony should be admitted.
18. Nuisance — Damages — Temporary Nuisance In an action brought by property owners to enjoin an adjoining property owner from operating a kennel, claiming it was a nuisance, and where the supreme court found that evidence amply supported a finding that the kennel owner should be enjoined from operating the kennel where it was presently located, the trial court erred in denying the plaintiffs' claim for damages and the damages consisted of the loss of rental value of the plaintiffs' cottage during the duration of the temporary nuisance, the cottage having been rendered uninhabitable by the nuisance.
Wescott, Millham Dyer, of Laconia (Roger G. Burlingame on the brief and orally), for the plaintiffs.
Normandin, Cheney O'Neil, of Laconia (Robert A. Dietz on the brief and orally), for the defendant.
The issues in this case are whether the trial court erred in concluding that the defendant's thirty-eight-dog kennel did not constitute a private nuisance; whether the court was correct in requiring "clear and convincing" evidence that the kennel was a nuisance; and whether the court properly refused to grant legal and equitable relief to the plaintiffs.
The plaintiffs, John and Lorraine Dunlop, have sold modular and mobile homes on their property since 1976. In the fall of 1978, they began to renovate a small cottage situated at the rear of their property, intending to rent it. They found a tenant in the spring of 1979. The renovations were finished in August 1979, at a cost of about $6,000. In the spring of 1979, however, Daniel Daigle, the plaintiffs' neighbor and the defendant herein, constructed a dog kennel that came within forty-eight inches of the cottage. The plaintiffs brought an action to enjoin Daigle from operating his kennel, claiming it constituted a private nuisance. They also sought damages. The Superior Court (Batchelder, J.) approved the Master's (Robert A. Carignan, Esq.) recommendation to deny the Dunlops' petition. The plaintiffs appealed, and we reverse.
The master required the Dunlops to prove by clear and convincing evidence that the defendant's kennel constituted a nuisance. Although our cases set forth the elements of the nuisance cause of action, none of the cases mentions the plaintiff's burden of proof. See Heston v. Ousler, 119 N.H. 58, 60, 398 A.2d 536, 537 (1979); Piecuch v. Manchester, 114 N.H. 8, 9, 314 A.2d 642, 643 (1974); Robie v. Lillis, 112 N.H. 492, 495-96, 299 A.2d 155, 158-59 (1972); Ferguson v. Keene, 108 N.H. 409, 410, 238 A.2d 1, 2 (1967); True v. McAlpine, 81 N.H. 314, 315, 125 A. 680, 681 (1924).
[1, 2] In a civil action the burden of proof is generally on the plaintiff to establish its case by a preponderance of the evidence. McCORMICK ON EVIDENCE 339, at 793 (E. Cleary ed. 2d ed. 1972). Some jurisdictions specify that the existence of a nuisance must be proved by a preponderance of the evidence. See 58 AM. JUR. 2d 136, at 707 (1971); cf. Arnold v. Williams, 121 N.H. 333, 335, 430 A.2d 155, 156 (1981) (standard of proof for prescriptive right is "balance of probabilities," not "clear and convincing"). We see no reason to deviate from the preponderance standard.
Normally, we would remand for a new trial, directing the master to apply the proper burden of proof standard. In this case, however, we find that the evidence compels the conclusion that a nuisance does exist. A contrary conclusion is not warranted by the evidence. See Heston v. Ousler, 119 N.H. at 60, 398 A.2d at 537; Webb v. Rye, 108 N.H. 147, 150, 230 A.2d 223, 226 (1967).
[3, 4] A private nuisance exists when an activity substantially and unreasonably interferes with the use and enjoyment of another's property. Heston v. Ousler, 119 N.H. at 60, 398 A.2d at 537-38; Robie v. Lillis, 112 N.H. at 495-96, 299 A.2d at 158. To constitute a nuisance, the defendant's activity must cause harm that exceeds "the customary interferences a land user suffers in an organized society," Robie v. Lillis, 112 N.H. at 495, 299 A.2d at 158, and be an "appreciable and tangible interference with a property interest." Id, at 496, 299 A.2d at 158.
The defendant's thirty-eight-dog kennel is located behind the Dunlops' property and comes within forty-eight inches of a cottage which they hoped to rent. The evidence shows that this kennel interferes substantially with the plaintiffs' use of their property. First, they have been unable to rent their cottage because the defendant's thirty-eight dogs are so close to it as to make it uninhabitable. John Dunlop testified that the plaintiffs looked for and found a tenant in the spring of 1979. Although the tenant wanted to live in the cottage and had agreed to rent it for $175 per month, he refused to live there after the defendant had installed a thirty-eight-dog kennel approximately four feet away.
The defendant's kennel also offends the Dunlops personally and interferes with their business. The plaintiffs testified that the kennel detracts from the appearance of the premises and that customers have been offended by the barking, howling, and odor emanating from the kennel. The Dunlops testified that customers have left because of the noise and odor. Their sales manager closed the business early two times during the summer of 1979 because he "couldn't stand the smell." This evidence amply supports a finding that the defendant's activity substantially and unreasonably interferes with the plaintiffs' use and enjoyment of their property. See Heston v. Ousler, 119 N.H. at 60, 398 A.2d at 537-38; Robie v. Lillis, 112 N.H. at 495-96, 299 A.2d at 158. A contrary conclusion is not warranted by the evidence.
[6, 7] The defendant, who has a kennel license, breeds, sells, and races dogs. His tire business and residence are located on the same property as the kennel, but the kennel is located as far away from these structures, and as close to the plaintiffs' property, as possible. The defendant testified that he set the dogs "as far back on [his] property as [he] could put them" in order to protect his retail business from noise. When a defendant could take reasonable steps to reduce or eliminate inconvenience to the plaintiff and still carry on his business, he is more likely to be found liable for causing a nuisance. W. PROSSER, LAW OF TORTS 89, at 599 (1971). The defendant has not taken such reasonable steps. Through his testimony, the defendant acknowledged that his dogs make noise and might interfere with a business.
Another factor to be considered in the balancing process is the defendant's twenty-thousand-dollar investment in the kennel. Although this is a substantial investment, the defendant should not be allowed to continue operating his kennel at his neighbors' expense simply because the kennel produces expensive odors and noises. See Gerrish v. Wishbone Farm, 108 N.H. 237, 239, 231 A.2d 622, 624 (1967).
[9-11] When we balance the utility of the defendant's operation of his kennel against the harm caused to the plaintiffs, we conclude that the defendant should be enjoined from maintaining his kennel where it is presently located. Robie v. Lillis, 112 N.H. at 496, 299 A.2d at 159. The trial court has broad and flexible equitable powers which allow it "to shape and adjust the precise relief to the requirements of the particular situation." Webb v. Rye, 108 N.H. at 153, 230 A.2d at 228. If the defendant's activity can be carried on without causing unreasonable interference to the plaintiffs, then the defendant should not be enjoined completely from operating his kennel. Webb v. Rye, 108 N.H. at 154, 230 A.2d at 228. On remand, the trial court should receive and consider evidence pertaining to improvement of the current conditions and fashion a remedy that is consistent with the standards set forth in this opinion. See id. at 154, 230 A.2d at 228-29.
[12, 13] The master erred in denying the plaintiffs' claim for damages. In Sundell v. Town of New London, 119 N.H. 839, 848, 409 A.2d 1315, 1320 (1979), we held that damages for past harm are recoverable in a private nuisance action when the nuisance is temporary, or abatable, as in this case. The measure of damages is the value of that which the plaintiff has lost as a result of the defendant's activity. W. PROSSER, supra 90, at 602.
[14-17] The plaintiffs claim a loss of profits from their mobile home business. When the plaintiffs' sales manager was asked how many sales the business had lost due to the noise and odor of the kennel, he answered "[i]t could go as high as six." The master granted the defendant's motion to strike the testimony as purely speculative and the plaintiffs excepted. Under New Hampshire's liberal rule, opinion evidence is admissible if it aids the fact-finder in the search for the truth. Suojanen v. Tardif, 121 N.H. 1036, 437 A.2d 310 (1981); Wrobleski v. Constellation Corp., 118 N.H. 532, 533, 388 A.2d 944, 945 (1978); Danos v. Company, 94 N.H. 200, 201, 49 A.2d 926, 926 (1946). The trial court has a "large measure of discretion" whether opinion testimony should be admitted. See M. LOUGHLIN, NEW HAMPSHIRE TRIAL PRACTICE 100-01 (1975). The law in New Hampshire is that damages need not be proven with absolute certainty; however, the plaintiff must produce sufficient data to demonstrate that profits are reasonably certain to result. The master's ruling is consistent with New Hampshire law. See Petrie-Clemons v. Butterfield, 122 N.H. 120, 441 A.2d 1167 (1982).
In this case, damages consist of the loss of rental value of the cottage during the duration of the temporary nuisance. W. PROSSER, supra 90 at 602. We remand for an assessment of the rental income lost during the time the cottage was uninhabited and for other appropriate relief.
Affirmed in part; reversed in part; remanded.
BATCHELDER, J., did not sit.