## Facts

- Garry V. Houim erected a tower and installed a wind generator on his residential lot in Mandan, North Dakota, in 1986.
- Janet K. Rassier bought the adjoining residential lot in 1988 and placed a mobile home about 40 feet from the wind generator.
- In 1990, Rassier sued, alleging (1) the wind generator was a private nuisance due to noise and safety concerns, and (2) it violated subdivision restrictive covenants.
- Rassier claimed the generator produced irritating noise (about 50–69 decibels) and posed a danger after an incident in which ice was allegedly thrown into her yard.
- Houim asserted no other neighbors complained; neighbors testified the noise and risk were not unreasonable, and Houim described safety measures and an offer to show the Rassiers how to shut the unit off.
- After a bench trial, the district court dismissed the nuisance and covenant claims, finding no nuisance and that the restrictive covenants had been abandoned.

## Issues

1. Whether operation of a residential wind generator constituted a private nuisance under North Dakota’s statutory nuisance provisions based on alleged noise and safety effects, including consideration of “coming to the nuisance.”
2. Whether the wind generator violated enforceable restrictive covenants, or whether the covenants were unenforceable due to abandonment.

## Decision

- The North Dakota Supreme Court affirmed the judgment for Houim.
- The court held the wind generator did not constitute a statutory private nuisance because the interference shown was not unreasonable and was not tied to unlawful conduct.
- The court held the restrictive covenants were unenforceable due to abandonment (and, in any event, were not proven to restrict Houim’s use under the circumstances).

## Legal Principles

- North Dakota nuisance claims are governed by statute; common-law nuisance does not control where the legislature has enacted nuisance provisions.
- A statutory nuisance requires proof of conduct that is “unlawful” in the statutory sense and that causes an unreasonable interference with another’s use and enjoyment of property.
- “Coming to the nuisance” is not an absolute bar in North Dakota but is a factor bearing on whether the interference is unreasonable, particularly where the complained-of condition preexisted the plaintiff’s occupancy.
- Appellate review of factual findings after a bench trial applies the clearly erroneous standard, including deference to credibility determinations.
- Restrictive covenants may be treated as abandoned and thus unenforceable when owners and developers consistently fail to enforce them and allow inconsistent uses.

## Conclusion

The court affirmed dismissal of the neighbor’s claims, concluding that the wind generator’s noise and alleged safety risks did not amount to an unreasonable statutory private nuisance and that the subdivision’s restrictive covenants could not be enforced because they had been abandoned.


Rassier v. Houim, 488 N.W.2d 635 (N.D. 1992)