## Facts

- Elmer and Phyllis Thomsen and Ron and Nancy Greve were next-door neighbors in Pender, Nebraska, with homes about 15 feet apart.
- After the Thomsens moved in (1990), the parties’ relationship deteriorated due to unrelated neighbor disputes.
- The Greves used a wood-burning stove as a primary heat source.
- The Thomsens experienced recurring smoke infiltration into their home over several years, causing strong smoke odor, sleep disruption, inability to use parts of the home normally, and interference with hosting visitors.
- The Thomsens reported physical discomfort associated with smoke exposure, including throat irritation, coughing, and headaches.
- The Greves denied burning creosote-treated materials and claimed they used only clean, dry wood.
- Neutral local witnesses detected a strong smoke odor around and inside the Thomsens’ home and identified no apparent alternative smoke source.

## Issues

1. Whether smoke from a residential wood-burning stove constituted a private nuisance as a substantial, intentional, and unreasonable interference with neighboring land use and enjoyment.
2. Whether damages may be awarded for discomfort, annoyance, and inconvenience despite the absence of itemized monetary loss.
3. Whether the evidentiary record supported the specific abatement measures ordered (raising the chimney three feet and limiting fuel to clean, dry firewood), or whether further proceedings were required to fashion appropriate injunctive relief.

## Decision

- The court affirmed the finding that the smoke constituted a private nuisance.
- The court modified the judgment to award the Thomsens $4,000 in damages for recurring interference, discomfort, and loss of ordinary residential enjoyment.
- The court reversed the specific abatement provisions and remanded for further proceedings because the record did not support a determination that the ordered measures would effectively abate the nuisance.

## Legal Principles

- A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.
- Liability for private nuisance requires that the defendant’s conduct legally caused an intentional and unreasonable invasion of the plaintiff’s use and enjoyment.
- For equitable relief, the interference need only be substantial; the relevant standard is the effect on a person of ordinary sensibilities.
- A plaintiff in a nuisance action is presumed to have ordinary sensibilities; actionable annoyance must cause actual physical discomfort to such a person.
- In an equitable nuisance action, damages may include not only property-value effects but also discomfort, annoyance, and inconvenience, even without precisely quantified economic loss.
- Injunctive abatement must be supported by an adequate factual basis to ensure the remedy is effective and not unnecessarily burdensome.

## Conclusion

The court held that recurring residential smoke infiltration causing physical discomfort and substantial interference with ordinary home use was a private nuisance, awarded general damages for annoyance and inconvenience, and required further evidentiary development before imposing specific abatement measures.


Thomsen v. Greve, 550 N.W.2d 49 (Neb. Ct. App. 1996)