Thursday, October 13, 2005

Weeds as Nuisances

I recently took a look at Collins v. Barker, 668 N.W.2d 548 (S.D. 2003), which involved a private nuisance action for property damage sustained when weeds blew from defendant's property onto plaintiff's property.  The South Dakota Supreme Court repeated what appears to be the general rule that landowners do not have a duty to control the natural spread of weeds, so long as the spread was not aided by human conduct.  Thus, the spread of weeds from land left in its natural state would not be a nuisance, while the spread of weeds caused by human activity (such as the cultivation of land) would be a nuisance.

I suppose this rule makes sense for ordinary weeds -- property owners generally should not be liable for the ecosystem acting in a natural manner.  But what about invasive non-native species like kudzu?  I'd think that the spread of such species might be greatly curtailed if property owners were subject to private nuisance liability for the spread of the plant to a neighbor's land.

Anyone have any thoughts on this?

Ben Barros

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I think that the key to the equitable (in the lay sense) of a private nuisance suit for a "invasive non-native species" would be if there was some public acknowledgement/definition of which species were indeed "invasive non-native species" i.e. you have to have a statute which put everyone on notice (constructive at least) that one has a positive duty to prevent the spread...which then, it seems to me, gets us away from nuisance as a remedy and puts the onus on the authorities to proactively intervene.

1. Spread of "native" weeds --no duty to prevent spread.
2. Spread of "invasive non-native species" -- duty...but only so long as there is some authority which states which species are in that category.

No? I have thought about these concepts in years so maybe I am getting them all mixed up.

Posted by: David Sucher | Oct 13, 2005 4:03:22 PM

Think? I am running around the front yard with Round-Up.

Posted by: Robert Schwartz | Oct 13, 2005 6:01:37 PM

I'm glad I'm not your neighbor.

Posted by: Jean Veness | Oct 14, 2005 6:39:43 AM

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