To establish error for failure to give an instruction, it must be shown at a minimum that: the instruction was not argued against by the appellant; the instruction is a correct statement of law; and, the failure to instruct is assigned as error on appeal.
Defendant petitioned to review the order of the Court of Appeals of the State of Idaho reversing and remanding a prior finding that defendant's feedlot did not constitute a nuisance. Appellants assigned as error the jury instructions which instructed the jury that in the determination of whether a nuisance exists consideration should be given to such factors as community interest, utility of conduct, business standards and practices, gravity of harm caused, and the circumstances surrounding the parties' movement to their locations. On appeal, appellants chose not to provide an evidentiary record, but merely claimed that the instructions misstated the law in Idaho. The Court of Appeals reversed and remanded for a new trial because the trial court did not give a jury instruction based upon subsection (b) of Section 826 of the Restatement (Second) of Torts, which allows for a finding of a nuisance even though the gravity of harm is outweighed by the utility of the conduct if the harm is "serious" and the payment of damages is "feasible" without forcing the business to discontinue.
Is the failure to give a particular instruction which was never requested grounds for reversal?
The court vacated the decision of the court of appeals, and affirmed the judgment of the district court that defendant's feedlot did not constitute a nuisance; jury instructions were not erroneous; appellate court erred in reversing on record before the court. The plaintiffs did not make an affirmative showing of error on appeal; therefore, the court presumed that substantial, competent evidence existed to support the district judge's finding that no nuisance existed. Any error in jury instructions would be immaterial since, as a court of equity, there was an advisory jury, and the judge, not the jury, was ultimately responsible for making the findings and decision in the matter. Appellants also failed to address the adequacy of the district judge's findings in the memorandum opinion.