The Hales have property one mile southeast of a law enforcement shooting range. Robert Hale brought a civil action claim against Ward County and the City of Minot alleging a private and public nuisance and the shooting range resulted in a government taking because it devalued his property. Hale moved for summary judgment on his nuisance claims and Ward County and Minot cross-motioned arguing that the shooting range was a sport shooting range that could not be deemed a nuisance under N.D.C.C. 42-01-01.1. Hale replied contending that the statute did not preclude a nuisance claim and acknowledged a mistake that his previous affidavit stated that he lived southwest on the range when he actually lived southeast. Hale still contended that he was in danger from the gun range based on where his property was situated. The district court held that there were material issues of fact and denied the summary judgment motions and allowed Hale to amend his claim. In 2010, Hale moved for a temporary restraining order closing the range and for “declaratory judgment.” Ward County and Minot resisted the motions and the district court denied the motions. Ward County and Minot then moved for summary judgment claiming that Hale did not raise an issue of material fact and failed to support the claims with evidence or law. The district court granted the summary judgment in favor of Ward County and Minot. The Hales appealed.
The Court explained that Nuisance is defined by N.D.C.C. 42-01-01 which provides:
“A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission: (1) Annoys, injures, or endangers the comfort, repose, health, or safety or others; (2) offends decency; (3) unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basis, public park, square, street or highway; or (4) in any way renders other persons insecure in life or in the use of property.”
The Court noted that certain common law principles may be considered to determine whether an individual omitted to perform a duty, explaining that 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. Factors relevant to the reasonableness of a defendant’s interference with use of property include: “a balancing of the utility of defendant’s conduct against the harm to the plaintiff; (2) plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action; and (3) plaintiff’s lack of diligence in seeking relief. The court also noted the coming-to-the-nuisance doctrine.
The Court determined that it had to review to see whether the Hales presented competent evidence that the law enforcement range was a nuisance. In regards to the private nuisance claim, the Court held that the Hales failed to present competent evidence because Robert Hale has no expertise on “cones of fire, the range of firearms or chemical weapons;” therefore, only Hale’s testimony supports his assertion that the range poses a danger to his property.
The Court then turned to the public nuisance claim and stated:
“Neither the parties nor the district court addressed the propriety of the Hales bringing an action to abate the law enforcement shooting range under N.D.C.C. ch. 42-02. This issue will have to be addressed on remand, and we express no position on whether the Hales’ use of the county road qualifies them to maintain their public nuisance claim. To the extent the Hales are claiming a public nuisance for injury to their neighbors’ property, the Hales’ failure to establish injury sufficient to sustain their private nuisance action necessarily means the Hales cannot show the required special injury establishing they represent an entire community or neighborhood or any considerable number or persons who are harmed by the alleged public nuisance.”
The Court held that the district court erred by dismissing the Hales’ public nuisance claim because the Hales raised a “genuine issue of material fact whether bullets fired at the law enforcement shooting range exit the range, cross County Road 12 and pose an unlawful danger.”
Finally, the Court turned to the claim that the Hales property has been devalued by the range. The Court held that that the Hales failed to establish any evidence to support their claim and the Court will look no further.
Hale v Ward County, 2012 WL 2849677 (N.D. 7/12/2012)
The opinion can be accessed at: http://www.ndcourts.gov/court/opinions/20110171.htm