Posted by: Patricia Salkin | December 4, 2014

NY Appellate Court Denies Dismissal of Private Nuisance Claim due to Waterfowl on Neighbor’s Property

Plaintiffs and defendants each owned property located on Woodside Drive in the Town of Clifton Park, Saratoga County; plaintiffs purchased their property in 1991, and defendants purchased the property next door to plaintiffs in 1999. According to plaintiffs, defendants thereafter expanded an existing pond located on their property in order to create a nature preserve for passing waterfowl. Defendants’ efforts in this regard were found to be in violation of the local zoning code, and defendant George Sarris was fined accordingly. Plaintiffs commenced this action alleging that the large number of waterfowl attracted to defendants’ property constituted a private nuisance and, further, that the resulting noise and excrement amounted to a continuing trespass. The trial court issued a temporary restraining order precluding defendants from feeding any nonresident fowl on their property and granted plaintiffs’ request for a preliminary injunction contingent upon the posting of a $10,000 undertaking. The Court also enjoined defendants from “maintaining a feeding station for both wild and domesticated waterfowl and poultry on their property”, except as to those waterfowl under George Sarris’s care and treatment in his capacity as a wildlife rehabilitator, and directed defendants to remove “all domestic or wild fowl or poultry” from their property. Defendants now contend that the Court erred in denying their motions for summary judgment dismissing plaintiffs’ first and second causes of action sounding in private nuisance and trespass.

Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property. As a private nuisance claim involves the right to use and enjoy the land in question, no actual intrusion onto the plaintiff’s property is required; trespass, involves an intentional entry onto the land of another without justification or permission. The fact that plaintiffs sold their residence did not compel dismissal of their claims, as they still potentially are entitled to either temporary nuisance damages, as measured by the reduction in the usable value of their property. Because the record as a whole contained conflicting proof as to the substantiality and unreasonableness of defendants’ alleged interference with plaintiffs’ use and enjoyment of their property and/or defendants’ actual intrusion thereon, the court found that the lower court properly denied defendants’ motions for summary judgment dismissing plaintiffs’ first and second causes of action.

Schillaci v Sarris, 2014 WL 6475553 (NYAD 3 Dept. 11/20/2014)

The opinion can be accessed at:


  1. While the defendants have violated a zoning regulation by expanding their pond, the nuisance claim should have been dismissed. The defendants expanded their pond in the efforts to attract more wild waterfowl to the property. When wild animals are physically present on a person’s private property, that property owner is in constructive possession (Ratione Soli) of the wild animal. However, as soon as the wild animal leaves that persons property they no longer have possession of that animal. This is a classic issue from Keeble v. Hickeringill, in which the Queens Bench held, that a neighboring property owner could not discharge is gun in effort to disrupt wild animals on a neighbor’s property. The court found within the bundle of property rights, a property owner had the ability to do as he pleased with wild animals that were physically present on his property. This case is directly analogous to this current issue because the property owner, within his bundle of property rights, has the right to attract wild animals to his property and feed them once they are present on the property. Further, once the animals leave the property, the owner no longer had possession of the animals. Thus, he could not be held responsible for the nuisance they caused once they were no longer physically present on his property.

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