Hobbs v. Smith

493 P.2d 1352 (1972)

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Nature of the Case

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Facts

Hobbs (D) kept two horses in the backyard of her home, in a residential section of the County. A County Zoning Ordinance permitted the keeping of two horses on D's property. The trial court found that D was exercising all reasonable skill and care in maintaining the property where the animals were kept and that no health regulations were being violated. It also found that flies were attracted to the general area by the horses and that noxious odors therefrom permeated the area. It was found that Smith et al. (P) suffered a substantial interference with the use and enjoyment of their property which adjoined P's property. The trial court ruled that while the keeping of horses did not violate the zoning ordinance, it did constitute a nuisance in fact (per accidens) and therefore, there was a proper basis for granting an injunction prohibiting the keeping of horses on the D's property. It has been held that a lawful use may become a nuisance in fact or per accidens by reason of locality, surroundings, or other circumstances. The Court of Appeals held that even though zoning regulations permit an act to be done, and the act is being done with reasonable care and skill, the courts may grant relief where it is found that the acts complained of constitute a nuisance per accidens, and that to hold otherwise would be to state that the legislative body may license a nuisance. D appealed.