Judges: RICHARD P. IEYOUB
Filed Date: 6/25/1998
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Mayor:
You have requested an opinion from this office regarding the authority of the Mayor and Board of Alderpersons of the Town of Livonia to enact an ordinance, or take any other legal action, to control or abate the noise created by certain dogs on the property of a town resident.
The municipal government is granted broad authority by the legislature to "perform any function necessary, requisite, or proper for the management of its affairs not denied by law". La. R.S.
The 1974 Constitution of the State of Louisiana provides that "[E]very person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power." The scope and limitations of these rights of ownership are defined in La. C.C. art.
Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty to enjoying his own, or which may be the cause of damage to him.
Article 668 provides:
Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor's house, because this act occasions only an inconvenience, but not a real damage.
Article 667 prohibits use which causes damage to neighbors or deprives them of the enjoyment of their property whereas article 668 permits uses that only cause inconvenience to neighbors. Article 669 allows suppression of certain inconveniences if excessive under local ordinances or customs. At what point the line between inconvenience and excessive inconvenience (damage) is crossed so as to rise to the level of an actionable nuisance is a question of fact for the courts to decide. The municipal government cannot define what is and what is not a nuisance for purposes of recovery of damages, although local laws may bear on the issue. "In determining whether an activity or work occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion and the effect of the activity on the health and safety of the neighbors." Barrett v. T.L. James Co.,
Dogs are personal property of the citizens that own them and as such are protected by the constitution and laws regarding property and due process rights. La. R.S.
If the activity of raising or keeping dogs on private property is not controlled by any ordinance, their barking may still constitute a nuisance. The question of whether a certain activity is a nuisance is one of fact. In Hobson v. Walker,
It must be conceded that the creation of excessive, unreasonable and disturbing noises, particularly during the night hours, unquestionably constitutes a nuisance, to the abatement of which parties disturbed thereby are entitled. However, it must be borne in mind that noise is not necessarily a nuisance, and a determination of this point can be made only after thorough consideration of all the surrounding circumstances and facts developed in a particular case.
It is impossible to lay down any hard and fast rule inasmuch as numerous factors and elements must be taken into consideration, among which may be briefly noted the character of the locality, the nature of the noises, and the effect thereof upon persons of ordinary sensibilities. The determination of these points rests upon purely factual issues with respect to which the plaintiff in an action of this kind must bear the burden of proof.
In the case of King v. Western Club, Inc.,
In Talbot v. Stiles,
In summary, the condition may be controlled by an ordinance that limits the number of animals that can be kept in one place or within a certain distance of a neighbor, or both. It is interesting to note that the dogs mentioned in the opinion request are two miles from the owners own home but obviously much closer to others. If there are no ordinances addressing this problem, the burden falls on the neighbors to protect their own interests and property by seeking injunction against the continued nuisance. We would note that the number of animals may not necessarily be the critical issue. As stated in Hechelman v.Kindt, 30 Pa.Co.Ct.R. 277, cited by the Court in Talbot v.Stiles, supra, "[I]t has been held that a pack of dogs may create a nuisance, and it follows that a constituent part of a pack, to wit, one dog, if sufficiently persistent, may make as much noise as a dozen barking seriatim" Talbot, at page 471.
We hope this is responsive to your request, however should you have any additional questions or comments, please contact the undersigned at your convenience.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: __________________________ ROBERT B. BARBOR Assistant Attorney General
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