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Rose v. Chaikin

Citation. 22 Ill.187 N.J. Super. 210, 453 A.2d 1378 (Super. Ct. Ch. Div. 1982)
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Brief Fact Summary.

Plaintiffs are landowners who are seeking to permanently enjoin the use of Defendants’ windmill, because they allege that the windmill is a nuisance.

Synopsis of Rule of Law.

A private nuisance is an unreasonable interference with the use and enjoyment of one’s land.


The parties are all residents of a neighborhood, which has single-family homes. In June of 1981, the Defendants, in an effort to save money on energy bills, had a windmill constructed on their property, which is ten feet from the home of one of the Plaintiffs. The windmill began making loud noises, which were offensive to the neighbors. The Plaintiffs suffered various stress-related symptoms, together with an inability to peacefully enjoy their homes. The Plaintiffs initially sought relief through the local city council due to the zoning laws. The council issued an order limiting the time the windmill could operate, but the problem continued until Plaintiffs brought this action. Following an initial hearing, a temporary restraining order was issued, which restricted the windmill’s operation to two hours per day, which was the time claimed by Defendants as necessary for maintenance. The restraints continued through the trial in this court. Measurements of the noise levels of th
e windmill reveal that the decibel level is 56 to 61, and the noise is constant because the windmill is next to the Atlantic Ocean, which provides a constant supply of wind. The city ordinance on noise limits noise to 50 decibels. The sounds of the windmill are like a large motor with blades cutting through the air. The sounds are difficult to ignore and impossible to escape. The Defendants raised a counterclaim against the Roses for their heat pump, which was found to operate at above 50 decibels.


Is the Defendants’ windmill a nuisance?


Yes. The windmill must be shut down, but the counterclaim against the Roses cannot stand as an actionable nuisance.
To determine a private nuisance, the court will consider the cases on a case-by-case basis, balancing the competing interests in property as required by law. A nuisance must be proven by clear and convincing evidence.
The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The utility of Defendant’s conduct must be weighed against the quantum of harm to Plaintiff. The question is not simply whether someone is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor’s land. Sans v. Ramsey Golf, 149 A.2nd 599 (N.J. 1959).
Unreasonableness is judged not according to exceptionally refined, uncommon or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people. Stevens v. Rockport Granite Co., 104 N.E. 371 (Mass. 1914).
Noise, standing alone, may justify a finding of nuisance is two elements are present: 1) injury to the health and comfort of ordinary people in the vicinity; and 2) unreasonableness of that injury under all the circumstances. The court found that the Defendants’ windmill was a nuisance due to the noise level. However, the counterclaim against the Roses’ heat pump must fail because the heat pump was not operated as frequently or as long in duration as the windmill.
The zoning laws were found to be an alternate rationale for the court’s finding.


This court found that the utility of the Defendants (conserving energy/ saving money) was outweighed by the quantum of harm done to the Plaintiffs’ health and enjoyment of their homes. Thus, the windmill was found to be a nuisance. Note, however, that if the Defendants were not using their land in an unreasonable manner, the nuisance would not have been found.

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