Thomsen v. Greve

4 Neb. App. 742, 550 N.W.2d 49 (1996)

 

RULE:

In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, when credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge hears and observes the witnesses and accepts one version of the facts rather than another. An appellate court has an obligation to reach its own independent conclusions as to questions of law. 

FACTS:

Property owners filed a nuisance action against their neighbors to enjoin them from using a wood burning stove to heat their home and sought damages. It was established at trial that smoke from the stove penetrated the property owners' house. To support their claim for damages, the property owners did not prove any depreciation in the market or rental value of their home but complained of being subjected to foul odors, headaches, sore throat, and coughing from the smoke. The District Court for Thurston County (Nebraska) found that a nuisance existed and entered a decree in favor of the property owners, awarded no damages, and ordered the neighbors to use clean wood in the stove and raise the chimney height to abate the nuisance. The case was appealed to the Nebraska Court of Appeals.

ISSUE:

Did a nuisance exist?

ANSWER:

Yes

CONCLUSION:

The court held that the neighbors' use of the stove was a private nuisance. The court, however, declared that the trial court erred in not awarding general damages to the property owners. On the damage issue, the court conducted a trial de novo on the record and awarded $ 4,000.00 to the property owners. The case was remanded to hold further proceedings regarding a reasonable abatement plan.

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