Thomsen v. Greve

Elmer and Phyllis Thomsen (plaintiffs) owned land adjacent to Ron and Nancy Greve (defendants). The Greves installed a wood-burning stove on their property and used it as their primary heat source. The Thomsens complained about odor and smoke from the stove and sued for an injunction and damages, alleging the stove was a nuisance. At trial, the Thomsens testified smoke entered their house 140 times over four years, had a noxious smell that they believed was from burning creosote, and made them physically ill. The Thomsens further testified the smoke sometimes prevented them from sleeping, forced them to leave their home, infiltrated their home to such a degree that the clothes dryer was filled with it, and prevented them from having visitors. The Greves testified the smoke was not malodorous, because they only burned wood and never burned anything containing creosote. The Greves and the Thomsens presented witnesses to collaborate their testimony. Three witnesses, the police chief and two village board members, testified they did not smell creosote but did smell a strong odor of smoke in and around the Thomsens’ house. There was no source of smoke other than the stove. The trial court found the smoke a nuisance and ordered the Greves to raise the height of the chimney by three feet and burn only clean, dry firewood. The trial court further found the Thomsens had failed to prove damages. The Thomsens appealed, and the Greves cross-appealed. The Greves argued the wood-burning stove was not a nuisance as a matter of both law and fact. The Thomsens argued the stove was a nuisance that merited an award of damages.