South-Western Legal Studies in Business

Nuisance Caused by New Home Justifies Removal of Home
Description New Hampshire high court held that a nuisance had been created when construction of a new home caused water to be diverted to a neighboring house causing damage to it. This situation could only be remedied by removal of the new home and the fill that had been dumped on the property when the home was built.
Topic Real and Personal Property
Key Words Nuisance; Wetlands; Construction
C A S E   S U M M A R Y
Facts For decades, the Cook family has owned two houses on Lake Winnipesaukee. In 1996 the Sullivans bought the adjacent property, dumped fill on it, and placed a modular house on the property. The Cooks then experienced water problems, including standing water in their garage and water under one of their houses. They attributed the water problems to the fill put on the Sullivan property. The Sullivans tried to solve the problem by digging a drainage ditch and moving a wall, but the water problems were not solved. The Cooks sued the Sullivans for nuisance and complained to the New Hampshire wetlands bureau. The bureau advised the Sullivans on more work to do to try to alleviate the problems, but the remedies did not solve the problem. The trial court found that the Sullivans’ construction constituted a nuisance and that they must remove their house and the fill that had been dumped on their property. They appealed.
Decision

Affirmed. The Sullivans contend that because they complied with the recommendations of the wetlands bureau that their work on the property to attempt to resolve the problem should have been adequate. The wetlands bureau was not acting in a judicial capacity to protect the Cooks’ interests; it was only enforcing wetlands regulations when it advised the Sullivans. The Cooks played no role in that process. The filling and grading of the Sullivans’ property caused subsurface waters to divert to the Cooks’ property, and therefore was the cause of the water problems suffered. Injunctive relief, requiring removal of the home and the fill, was an appropriate remedy for the nuisance created since its consequences to the Cooks was severe.

Citation Cook v. Sullivan, 829 A.2d 1059 (Sup. Ct., N.H., 2003)

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