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Keywords

defendantequityinjunctionburden of proofeasementzoningobjectionzoning variance
plaintiffequitytrialeasement

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Tenn v. 889 Associates, Ltd., 127 N.H. 321, 500 A.2d 366

Facts

Sylvia Tenn owns the Pickering Building in Manchester, which has a south wall with windows that provide light to the building. The defendant, 889 Associates, Ltd., planned to demolish a neighboring four-story building and construct a new six-story structure that would block some of Tenn's windows. Tenn objected to the plans, claiming they would create a private nuisance and sought an injunction against the construction. Despite her objections, the construction proceeded, leading to Tenn filing a bill in equity after demolition had begun.

The plaintiff, Sylvia Tenn, owns a six-story office building constructed in 1891 at 907-913 Elm Street in Manchester, known as the Pickering Building.

Issue

The main legal issues were whether the planned construction constituted a private nuisance, whether Tenn had a prescriptive easement for her air conditioners, and whether the lack of written notice regarding a zoning variance invalidated that variance.

The four principal issues before us are whether the court erred in denying the continuance, whether the bill in equity stated a claim sounding in private nuisance, whether the court erred in finding on the evidence submitted that there would be no private nuisance and whether the court erred in finding that the plaintiff had acquired no prescriptive easement to maintain the air conditioners.

Rule

The law of private nuisance provides a standard for evaluating claims of unreasonable and substantial interference with a property owner's use and enjoyment of their property, including interests in light and air.

We therefore hold that the law of private nuisance as expressed in Robie provides the appropriate standard for passing on a property owner's claims of interference with interests in light and air.

Analysis

The court applied the law of private nuisance to determine that the construction would not result in unreasonable or substantial interference with Tenn's property. It found that most affected windows were already covered and that the new building's construction was consistent with the historical use of the property. The court also ruled that Tenn did not meet the burden of proof for establishing a prescriptive easement for her air conditioners, as there was insufficient evidence of adverse use.

The court found, first, that the threatened interference would not be unreasonable. It based this conclusion on findings that nearly all the affected office windows had previously been covered with translucent but not transparent plastic sheets or were blocked by heavy drapes.

Conclusion

The court affirmed the dismissal of Tenn's bill in equity, concluding that the construction would not constitute a private nuisance and that she had no prescriptive easement for her air conditioners.

The trial court did not err in dismissing the bill in equity.

Who won?

889 Associates, Ltd. prevailed in the case because the court found that their construction did not constitute a private nuisance and that Tenn's claims lacked sufficient legal basis.

The court specifically found that the construction would not result in an unreasonable or substantial interference with the plaintiff's use and enjoyment of her property; it specifically found that no easement for the air conditioners had arisen by prescription.

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