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Case 7.3
COOK V. SULLIVAN
Supreme Court of New Hampshire
149 N. H. 774; 829 A.2d 1059; 2003 N.H. LEXIS 123 [August 22, 2003]
FACTS:
Since 1946, the Plaintiffs, the Cooks, have owned property on Lake Winnipesaukee in Moultonboro,
New Hampshire.
Over the years they have built various structures on the property, including a main house, a garage
and a guest house/chalet.
In 1956, the Defendants purchased an abutting parcel of property.
In 1996, the Defendants had a 3 bedroom modular home placed on their property.
In the course of construction, the Defendants used large quantities of fill in the area where they
built the home.
In 1997, the Plaintiffs began experiencing increased wetness that persisted each summer from
1997-2001.
In 1999, the Plaintiffs attempted to remedy the situation by removing some fill along the parties’
common boundary line, digging a drainage ditch and moving a wall. However, Plaintiffs claimed
that the condition of their land did not change.
The Plaintiffs sued based on private nuisance due to the diversion of water and result of standing
water on their property.
PROCEDURE: The Superior Court held for plaintiffs based on nuisance and order removal of the
defendant’s home. The defendants appealed.
ISSUE: Did the defendant’s construction activities constitute a private nuisance that caused damage to
the plaintiff’s property?
RULE: “A private nuisance exists when an activity substantially and unreasonably interferes with the
use and enjoyment of another’s property. To constitute a nuisance, the defendants’ activities must
cause harm that exceeds the customary interferences with land that a land user suffers in an organized
society and be an appreciable and tangible interference with a property interest.”
REASONING:
1. Although the plaintiffs’ property had some water before the defendant’s construction, the
plaintiff’s expert witness testified that the defendant’s activities had caused subsurface waters to
divert to the plaintiff’s property.
ADDITIONAL INFORMATION:
It is the plaintiff’s burden to prove the existence of a nuisance by a preponderance of the evidence.
