THOMSEN V. GREVE 550 N.W.2d 49 (1996) CASE BRIEF

THOMSEN V. GREVE

550 N.W.2d 49 (1996)

NATURE OF THE CASE: Both Thomsen (P) and Greve (D) appealed a decree in favor of P that awarded no damages and ordered D to use clean wood in their wood burning stove and raise the chimney height to abate the nuisance that P sued upon.

FACTS: The parties own and live in adjacent homes. P filed a petition for relief from a nuisance in that the Greves (D) have used a wood-burning stove to heat their home, that it has produced intolerable odors and caused the P's home to smell, that the P asked D to stop burning wood but they refused, and that D knew of the effect of their stove on P. Ps requested general damages and that D be enjoined from using their stove. D filed a motion for summary judgment. The motion was overruled. D testified that they have an 'Earth Stove,' and there is a buildup of creosote in the chimney from burning wood. D has to clean the chimney once a month because of this buildup. D increased the height of the chimney by 30 inches in 1987, but to no avail. D testified that they burn nothing but clean, dry wood, usually ash, in their stove. P testified that during the previous 4 years, the smoke entered her house about 140 times in total and that the smoke entered under certain weather conditions. P described the smoke as 'unbearable.' They claimed that it was a creosote smell, which was a 'rotten smell.' When the weather was right, the smoke would surround P's house and creep inside. The smell made Ps physically ill. The smoke gets in her throat and nose, causing a burning and scratchy sensation. The odor is so bad that P would be forced to leave her home to escape it, and at times it causes Ps to not be able to sleep at night. The smoke and odor have prevented Ps from having family get-togethers and visitors over to their home; even their clothes dryer fills with the smoky odor. The court found the smoke to be a nuisance and ordered D to raise the height of the chimney by 3 feet and to burn only 'clean dry firewood.' The court also found that P failed to prove with specificity the actual monetary loss or damage, and thus awarded no damages. Everybody appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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