California - Remedies against a private nuisance

[z8pilot]

I understand what a nuisance is, but I never heard of this part of the California code. Here it is:

CIVIL CODE
SECTION 3501-3503

3501. The remedies against a private nuisance are:
1. A civil action; or,
2. Abatement.

3502. A person injured by a private nuisance may abate it by
removing, or, if necessary, destroying the thing which constitutes
the nuisance, without committing a breach of the peace, or doing
unnecessary injury.

3503. Where a private nuisance results from a mere omission of the
wrongdoer, and cannot be abated without entering upon his land,
reasonable notice must be given to him before entering to abate it.

At what point would "destroying the thing which constitutes the nuisance" without a breach of the peace or injury cross the line and become a criminal act or result in civil damages?

For example, let's say a neighbor's tree roots are lifting the foundation of my house. I believe I can cut the roots without concern of any damages caused to the tree.

But let's say the neighbor has a rooster that is a nuisance. I believe I might be crossing that unknown line if I destroyed the rooster. What if I just hosed the rooster down every time it crowed? No permanent damage to the rooster so I don't think it crosses the line.

Is anyone aware of any use of this section of the CA civil code?

Thanks,

fa

 

[Eekamouse]

Spraying a neighbor's rooster would not stop him from crowing but definitely would infuriate your neighbor. You could expect a visit from Animal Control. I doubt they'll be sympathetic to your pain.

 

[sandyclaus]

I understand what a nuisance is, but I never heard of this part of the California code. Here it is:

CIVIL CODE
SECTION 3501-3503

3501. The remedies against a private nuisance are:
1. A civil action; or,
2. Abatement.

3502. A person injured by a private nuisance may abate it by
removing, or, if necessary, destroying the thing which constitutes
the nuisance, without committing a breach of the peace, or doing
unnecessary injury.

3503. Where a private nuisance results from a mere omission of the
wrongdoer, and cannot be abated without entering upon his land,
reasonable notice must be given to him before entering to abate it.

At what point would "destroying the thing which constitutes the nuisance" without a breach of the peace or injury cross the line and become a criminal act or result in civil damages?

For example, let's say a neighbor's tree roots are lifting the foundation of my house. I believe I can cut the roots without concern of any damages caused to the tree.

But let's say the neighbor has a rooster that is a nuisance. I believe I might be crossing that unknown line if I destroyed the rooster. What if I just hosed the rooster down every time it crowed? No permanent damage to the rooster so I don't think it crosses the line.

Is anyone aware of any use of this section of the CA civil code?

Thanks,

fa

Instead of playing at hypotheticals, perhaps if you gave us some actual details, we can be of more help to you.

 

[CdwJava]

And your interpretation of the Civil Code may well run afoul (or, afowl ) of other laws - laws that carry criminal penalties.

I wouldn't hose the neighbor's animal down. If it's a nuisance, call the appropriate authority.

 

[z8pilot]

Thanks for the replies.

CdwJava: Thanks for telling me what you'd do. I was looking for something more of a legal thread not personal thoughts.

sandyclaus: I understand. Preparing to alienate 90% of everyone who bumps into my post, the rooster is actually a dog. It is a nuisance. It sits 6' from my house. They leave it out all day long when nobody is home. It barks at everything that moves; people on the sidewalk even across the street, mail carrier, meter reader, squirrels, birds, delivery trucks, on, and on, and on..., all day long. I don't own a dog, but this dog barks loudly inside of my house all day long. (And of course, more alienation coming, some dog owners are completely oblivious to the noise. If I had a $ for every time I hear "It's just a dog!" I'd buy the house.)

Eekamouse: Thanks for the personal thoughts, but again not the direction I'm looking. Except one comment. Your doubt is incorrect. Animal Control is very sympathetic and supportive, as are the police. There is a dog barking law, but it's barking for a 10 minute period. The dog doesn't violate that. There is a noise law and the dog does clearly violate that. Unfortunately, the police will not (and really cannot) enforce that law. The reason is it results in a citation. The citation can be argued before a judge, just like a speeding ticket. The city attorney would have to prosecute and have the police officer stand as a witness. The judge would have to be sympathetic to the citation. And the police are not willing to enforce a law that the city attorney is not willing to prosecute where there is an extremely high likelihood the judge will toss it out either because there aren't enough resources to deal with the citation or the judge isn't sympathetic to the noise. This has all been explained to me by the very sympathetic police and animal control officers, who by the way, have gotten involved and have done all they can do to the limits described above.

Again, thanks for the replies. But PLEASE consider my original post. I am only interested in what this part of the California code means, and how it might be used (or used in the past).

Thanks,

fa

 

[CdwJava]

Thanks for the replies.

CdwJava: Thanks for telling me what you'd do. I was looking for something more of a legal thread not personal thoughts.

Actually, that WAS the law. YOU do not have a legal right to take action against someone else's property be it rooster, dog, cat, car, generator, etc. if there is a nuisance you can either go to court and sue them or contact the authorities. If you start hosing down the rooster next door you might be charged with a crime - perhaps a violation of the Penal Code for animal cruelty, or a violation of some local municipal code that prohibits such things.

The CIVIL CODE does NOT permit you to take unilateral action.

Eekamouse: Thanks for the personal thoughts, but again not the direction I'm looking. Except one comment. Your doubt is incorrect. Animal Control is very sympathetic and supportive, as are the police. There is a dog barking law, but it's barking for a 10 minute period. The dog doesn't violate that. There is a noise law and the dog does clearly violate that. Unfortunately, the police will not (and really cannot) enforce that law. The reason is it results in a citation. The citation can be argued before a judge, just like a speeding ticket. The city attorney would have to prosecute and have the police officer stand as a witness. The judge would have to be sympathetic to the citation. And the police are not willing to enforce a law that the city attorney is not willing to prosecute where there is an extremely high likelihood the judge will toss it out either because there aren't enough resources to deal with the citation or the judge isn't sympathetic to the noise.

Actually, YOU would have to attend as a complaining witness because the officer's peace cannot be disturbed. So, if they were to issue a citation for PC 415 (disturbing the peace) based upon the dog's constant barking and the owner's refusal to take action, YOU would have to attend the hearings. The officer may or may not even be called.

But, you are right, the city attorney or District Attorney (whoever handles them in your area) is not likely to have the resources to address it.

That leaves you with suing them in civil court if you can ... not hosing down or otherwise assaulting the animal. And, since Small Claims Court deals with actual loss, you might have to pursue it in Superior Court. Now, there are laws that allow you to take actions against nuisance properties meeting certain criteria, but you can look those up.

 

[tranquility]

For example, let's say a neighbor's tree roots are lifting the foundation of my house. I believe I can cut the roots without concern of any damages caused to the tree.

Um...no. There is ample case law out there that shows this is wrong. Maybe that is because what constitutes the nuisance is not the tree but the infringing roots.

 

[OHRoadwarrior]

Buy an ultrasonic dog barking deterrent device. If dog is on a leash, advise the owner you are installing it and if they leash their dog within annoyance range of your personal space they will intentionally be hurting their dog.

 

[z8pilot]

Thanks to all for the feedback.

fa