Lichtman v. Nadler

74 A.D.2d 66, 426 N.Y.S.2d 628, 1980 N.Y. App. Div. LEXIS 10082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1980
• Status: Published

Opinions

OPINION OF THE COURT

Hancock, Jr., J.

Plaintiffs’ appeal presents a well-defined legal issue: whether owners of residential property in an urban area have a cause of action for private nuisance based on harmful consequences to their property due to mosquitoes and unpleasant odors coming from the natural accumulation of stagnant water on adjoining land. In our opinion, Special Term properly granted summary judgment and dismissed the plaintiffs’ complaint invoking the established common-law rule that a landowner is under no affirmative duty to remedy conditions of purely natural origin upon his land even though they are dangerous or inconvenient to his neighbors (see Prosser, Torts [4th ed], § 57, p 354; Restatement, Torts 2d, § 840, subd [1]; 66 CJS, Nuisances, § 8; Merriam v McConnell, 31 Ill App 2d 241).¹ We find nothing in the case law or in the texts supporting the dissenters’ view that the traditional rule has been altered or that any exception has been made in this jurisdiction as to its application in urban or suburban areas.² Moreover, there is no evidence in the record from which it could be concluded that defendant’s conduct was either negligent or intentional, a necessary predicate for the common-law action in private nuisance (see Copart Inds. v Consolidated Edison Co. of N. Y., 41 NY2d 564; see, e.g., Merriam v McConnell, supra, p 245).

The dissenters find, alternatively, that the conditions on defendant’s property could constitute a public nuisance "per se” by reason of subdivision 2 of section 1500 of the Public Health Law and that because those conditions allegedly cause "special injury” to plaintiffs’ land, plaintiffs have an action in law or in equity based on private nuisance.

We do not agree that the Public Health Law may be construed so as to give rise to a cause of action for private nuisance upon the allegation that an accumulation of water on defendant’s land is a breeding place for mosquitoes which, by operation of the statute, constitutes a nuisance "per se”. The declaration in subdivision 2 of section 1500 of the Public Health Law that any "accumulation of water in which mosquitoes are breeding, or are likely to breed, is hereby declared to be a nuisance” is contained in title I of article 15 of the Public Health Law, entitled "Municipal Insect Control”, the purpose of which is to vest municipal authorities with power to remove or suppress breeding places for mosquitoes. Title I provides that whenever "the board of health of a municipality shall determine that any accumulation of water wherein mosquito larvae breed, constitutes a nuisance or a danger or injury to life or health, the owner or owners of the premises on which the breeding place is located shall bear the expense of its suppression or removal, or so much thereof as the local board of health shall determine to be equitable” (Public Health Law, § 1501, subd 1; emphasis added). Section 1501 establishes procedures for the equitable apportionment between the property owner and the municipality of the cost of abating the declared breeding grounds (Public Health Law, § 1501, subds 1, 2, 3), and also provides that if the property owner does not proceed to suppress or remove the condition the board of health may do so and charge such portion of the expense thereof to the owner as the board of health shall determine to be fair (Public Health Law, § 1501, subd 4). It is evident that title I of article 15 neither makes it incumbent upon the property owner to eliminate the mosquito breeding grounds nor gives the local board of health the right to do so at the owner’s expense unless the board of health has first determined under subdivision 1 of section 1501 that the condition constitutes "a nuisance or a danger or injury to life or health”.

That the declaration in subdivision 2 of section 1500 of the Public Health Law can be interpreted as giving private citizens a right to sue at law or in equity to compel the defendant to remove or suppress the objected-to condition when no determination of nuisance required for action by the public health authorities has been made is, in our view, a reading of the statute which results in an anomaly and which is inconsistent with the legislative scheme of article 15. Such construction is to be avoided (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 94, 97, 98, 141). Moreover, the dissenters’ interpretation of section 1500 as creating a cause of action for private nuisance where none exists at common law is, to say the least, an expansive reading of the statute and contrary to the accepted rule that a statute in derogation of the common law must be strictly construed (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 301; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414).

In our opinion, the prevailing case law mandates summary judgment and dismissal of the complaint which would not, of course, be a bar to a new action based on affirmative conduct of defendant.

The order should be affirmed.

1 . In Merriam v McConnell (31 Ill App 2d 241, 246), the court quoted from 1 Wood, Nuisances [3d ed, 1893], pp 148-149): " 'In order to create a legal nuisance, the act of man must have contributed to its existence. Ill results, however extensive or serious, that flow from natural causes, cannot become a nuisance, even though the person upon whose premises the cause exists could remove it with little trouble and expense. * * * Thus it will be seen that a nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.’ ”

2 . On the contrary, in Vanderwiele v Taylor (65 NY 341, 346), the Court of Appeals stated that: "even in a city there is no principle of the common law which requires one lot owner to improve or drain his lot for the benefit of another. So long as he leaves it in its natural condition, his neighbors cannot complain of the flow of the surface water. * * * If the surface water on any lot is a real nuisance, there is ample power in the city authorities, for the purposes of health or public convenience, to abate it.”

The dissenters cite the statement by Professor Prosser that "[t]here are indications that a different rule is developing as to urban centers.” (Prosser, Torts [4th ed], § 57, p 355.) The only illustrations given, however, are cases of dangerous trees where the danger from trees falling into streets or upon neighbor’s yards or structures is obviously greater in more densely populated urban areas. The Restatement (Second) of Torts recognizes this exception (see Restatement, Torts 2d, § 840, subd [2]) and notes that the exception to the common-law rule "has developed for trees in an urban area falling on a public highway and causing physical harm to travelers on the highway”. (Restatement, Torts 2d, § 840, subd [2], Comment c.) It would seem that the conditions complained of by plaintiff, i.e., mosquitoes, foul odors, noxious plants, and water flowage, do not approach the degree of danger to passersby or nearby structures posed by dead or decayed trees which are ready to fall.