Rassier v. Houim

In 1986, Garry Houim (defendant) installed a wind generator on his property in Mandan, North Dakota. All of the lots in Houim’s development were zoned for residential use. In 1988, Janet Rassier (plaintiff) and her family purchased an adjoining lot and moved into a mobile home on the property. The mobile home was located 40 feet from Houim’s wind generator. In 1990, Rassier sued Houim in North Dakota state court, asserting that Houim’s generator was a private nuisance. One element of a statutory-nuisance claim under North Dakota law was that the defendant must have created a condition that unreasonably interfered with the plaintiff’s use of the plaintiff’s property. Rassier asserted that Houim’s wind generator unreasonably interfered with her use of her property because the wind generator created noise between 50 and 69 decibels, which was an irritating and stressful noise level. Rassier claimed that the wind-generator noise had interfered with her family’s use of their yard. Rassier also asserted that the wind generator posed safety concerns because the generator allegedly had thrown a large chunk of ice into Rassier’s yard. In addition to the nuisance claim, Rassier asserted that Houim had erected the wind generator in violation of restrictive covenants applicable to the housing development. At a bench trial, Houim presented evidence that no other neighbors had complained of wind-generator noise. Houim further asserted that Rassier waited two years after moving in to bring her action and that she only brought the action after conflicts arose between Houim and Rassier’s husband. Houim claimed that he had offered to teach the Rassiers to turn off the wind generator when the noise bothered them and that Houim had safety features in place to alleviate the danger from blades or ice being thrown from the generator. Houim also presented evidence that the developer and residents of the housing development had abandoned the restrictive covenants. Following the bench trial, the court concluded that there was no private nuisance. The court based its conclusion, in part, on the finding that Rassier had come to the nuisance because the wind generator was already in place when Rassier purchased and moved onto her property. The court further found that Houim had not violated the restrictive covenants because the covenants had been abandoned. Rassier appealed.