concurring and dissenting.
I agree with much of what Justice VandeWalle writes for the majority to dispel confusion and to clarify the law of private nuisance. The majority correctly states that, under NDCC 42-01-01, there is an absolute duty not to act in a way that unreasonably interferes with the use and enjoyment of the property of other persons.
That absolute duty is not dependent on violation of any other express law, ordinance, or regulation. Justice VandeWalle’s analysis thus demonstrates that the trial court’s conclusion, that “[njothing in [the] operation (noise) [of Houim’s wind turbine] is in violation of any law, statute, ordinance or regulation since there are no such legal restrictions on noise or wind turbines,” was unsound. The trial court employed a mistaken view of the law of private nuisance in making its findings.
Yet the majority opinion “construe[s]” the decision of the trial court “as complying” with a correct view of the law. Too generously, this construction is given in spite of the trial court’s contorted conclusion that “there exists no duty cognizable at law upon which [Rassier] can rest her case as to” a breach of duty. The majority opinion goes on to “indicate[]” that the trial court properly “engaged in a weighing of the circumstances,” and to conclude that the trial court made “the necessary finding that Houim did not unreasonably interfere with Rassier’s use of her property.” The majority opinion also approves the trial court’s “basis for denying Rassier’s claim [in] the fact that she ‘came to the nuisance.’ ”
I believe that the trial court did not properly weigh the relevant factors, did not make necessary findings, and inappropriately applied “coming to the nuisance” as a controlling factor. Therefore, I respectfully dissent.
Excessive noise can annoy, disturb, and unreasonably interfere with other persons in the use and enjoyment of their homes. Consider some illustrative decisions. Parker v. Reaves, 505 So.2d 323 (Ala.1987) (Noise and odors of dogs that interfered with neighbors’ enjoyment of their homes enjoined as private nuisance); Anne Arundel County Fish & Game Conservation Ass’n v. Carlucci, 83 Md.App. 121, 573 A.2d 847 (1990) (Trap and skeet shooting club required to implement noise abatement for adjoining homeowners in adjacent residential zone); Wade v. Fuller, 12 Utah 2d 299, 365 P.2d 802 (1961) (Noise from drive-in cafe enjoined as nuisance to nearby residences); Kolstad v. Rankin, 179 Ill.App.3d 1022, 128 Ill.Dec. 768, 534 N.E.2d 1373 (1989) (Gunsmith’s private firing range enjoined as nuisance to neighboring homes in rural agricultural area); McQuade v. Tucson Tiller Apartments, Ltd., 25 Ariz.App. 312, 543 P.2d 150 (1975) (Music concerts at shopping center enjoined as private nuisance to adjacent apartment dwellers); Rose v. Chaikin, 187 N.J.Super. 210, 453 A.2d 1378 (1982) (Windmill that produced noise levels to 61 decibels enjoined as unreasonable interference with neighbors’ use and enjoyment of their *640homes). Excessive noise is a classic breach of duty, and it is a private nuisance to a neighbor in a residential area.
There are good reasons for this. “The ability to look to one’s home as a refuge from the noise and stress associated with the outside world is a right to be jealously guarded. Before that right can be eroded in the name of social progress, the benefit to society must be clear and the intrusion must be warranted under all of the circumstances.” Rose, 453 A.2d at 1383. See also NDCC 12.1-31-01(2) (Crime of disorderly conduct includes annoyance by “unreasonable noise.”) “The gravity of the harm from noises that disturb a person’s sleep, for example, is ordinarily much greater when the noises occur at night than it is when the noises occur in the daytime.” Restatement (Second) of Torts § 827 cmt. b, p. 125 (1979). See also 58 Am.Jur.2d Nuisances § 136 (1989): “In general, all tangible intrusions, such as noise, ... fall within the realm of nuisance, .... ”
When Houim installed his wind generator, his lot and all other lots (including the adjacent vacant lot later purchased by Ras-sier) in Ventures First Addition were subdivided for residential purposes, zoned for residential use, and protected by recorded covenants “for residential purposes only.” All uses for “commercial purposes” were prohibited.
The character of the locality at the time that the interfering activity is begun is one of the most important factors to be weighed. The Restatement explains:
Even between socially desirable and valuable uses of land there is a degree of incompatibility that, in some cases, is so great that they cannot be carried on in the same locality. A slaughterhouse, for example, may be indispensable to the community, but it usually renders other land in its immediate vicinity unfit for residential use and enjoyment. This incompatibility between the various beneficial uses to which land may be put has, in nearly all communities, resulted in a segregation of certain uses in certain localities in order to avoid unnecessary conflict between those that are highly incompatible. Thus some localities come to be devoted primarily to residential purposes, others to industrial purposes, others to agricultural purposes and so on. Sound public policy demands that the land in each locality be used for purposes suited to the character of that locality and that persons desiring to make a particular use of land should make it in a suitable locality-
Restatement (Second) of Torts § 827 cmt. on Clause (d), p. 127. See also Annotation, “Coming to Nuisance” As A Defense or Estoppel, 42 ALR3d 344, 357 § 5 (“Location of Nuisance”) (1972): “[T]he nature of the area where the nuisance is carried on— whether, for example, the area is primarily residential, industrial, or commercial — may affect the weight to be given to the defense that the complainant moved into the area after the defendant had done so.” In this case, all the adjacent lots were intended for residential purposes at the time that Houim installed his wind turbine.
When a commercial nuisance comes to a residential area, application of the “coming-to-the-nuisance” factor to a residence built there later is inappropriate. The noise potential of Houim’s wind turbine was unreasonable to an adjacent home and was thus incompatible with a residential neighborhood.
We have recognized the “coming-to-the-nuisance” factor in the context of an earlier agricultural industry (grain elevator) affecting an automobile dealership later located in an adjacent commercial district. Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass’n., 337 N.W.2d 427 (N.D.1983). While that factor is no doubt important to protecting an agricultural industry in an agricultural state, it should not be applied to an inappropriate activity that interferes with the use of property planned, zoned, and dedicated to residential purposes.
Most courts hold that, in itself and without other significant factors, the “coming-to-the-nuisance” factor will not bar a plaintiff’s nuisance claim. Powell explains:
*641The rationale for the prevailing rule rejecting “coming to the nuisance” as a sufficient defense is that otherwise those who settled in an area would acquire complete control over the future of adjoining and nearby land, and the fluidity of land use — a basic aspect of the American economy — would be reduced.
5 Richard R. Powell & Patrick J. Rohan, Powell on Real Property ¶ 704[3], at 64-48 to 64-49 (1991). Here, residential development was planned, not unpredictable. Houim knew that the adjacent lot in this residential area was intended for a home. In my opinion, therefore, the trial court’s conclusion, that “this action fails ... because of the application of the principle of coming to a nuisance,” was mistaken.
Houim’s wind turbine on part of his lot was not well suited to this residential locale. On the other hand, Rassier’s use of her property for a residence is well suited to the character of the locale. Restatement (Second) of Torts § 831. See also 58 Am.Jur.2d Nuisances § 149. Because I would reverse and remand for necessary findings and for a decision properly weighing relevant factors with a correct view of the law of private nuisance, I respectfully dissent.
LEVINE, J., concurs.