dissenting.
I respectfully dissent. The remedy applied is still not proportional to the problem.
For years, the City of Minot has tried to compel an obstinate, 73-year-old woman to clean her lifelong home and empty it of cats and garbage. We agreed with the City in Freelander I that, without opera*561tive plumbing facilities, the unsanitary, filthy, and odorous condition of her house made it a public health hazard and, thus, a nuisance. We considered that great care had been taken to accord opportunity for alteration and repair before ordering destruction. We left it to the trial court on remand to consider a late showing of post-judgment efforts by “a number of plumbers, electricians, carpenters and other people [who] ... donated their time, labor, and materials to repair her house and save it from destruction.” 368 N.W.2d at 518.
The trial court refused, on remand, to consider anything except destruction of Freelander’s home despite the extensive, volunteer community effort that brought about substantial repair and restoration of her home: “... placing columns in the basement, fixing the roof, installing new plumbing and wiring, and providing a new bathroom, a new porch, a new washer, and various items of furniture.” 380 N.W.2d at 323. In Freelander II, we reversed that severe sanction, agreeing that the trial court should fashion a less drastic remedy than destruction, “in view of the significant structural improvements ... promoting better sanitary conditions, ...” 380 N.W. 2d at 325. Thus, we directed a change in remedy because of a change in conditions: substantial partial correction of the nuisance.
After the second remand, a newly assigned trial judge did not examine the extent of the improvements nor assess the scope of the nuisance remaining. There was no analysis of the extent of the repairs and restoration. Rather, when the City sought relief on remand, the trial court assumed the nuisance was the same and initially entered an interim order on March 11, 1986 requiring Freelander to cooperate with the local Health Unit in inspections and to correct sanitary violations specified by the Health Unit. Foreshadowing its “final solution,” the trial court “specifically admonished” Freelander that it reserved “the right to reinstate the provisions” of the initial judgment “whereby the [City was] authorized to demolish the residence ... [if Freelander did] not meaningfully cooperate_”
Shortly thereafter, on April 24, 1986 the trial court entered a judgment on remand enjoining Freelander from keeping any cats (even her favorite one), authorizing the animal warden to inspect her home and remove “any cats,” and requiring Freelander to cooperate in inspections. Inexplicably, Freelander was not required to do anything else to remedy conditions except get rid of her cats.
Over a year later, in August 1987, the City moved for a supplemental judgment to authorize the razing of Freelander’s home and to bury her personal property in a landfill. The affidavit with the motion asserted that the animal warden and Health Unit were unable to keep the premises “free and clear of cats and the accumulated body waste of these cats” “without great risk to the health of [] personnel.” The affidavit declared:
“Mrs. Freelander has proven to be entirely intractable and recalcitrant during the entire course of this litigation with regard to changing her behavior_ Consequently the only adequate and appropriate relief ... is an order allowing the City of Minot to raze [her] house and to cart away and destroy the personal property therein to the extent [it] is contaminated with cat feces or cat urine or both.”
After the motion and before the initially scheduled time for hearing, the collapse of much of one of the basement walls from flooding rainwater, along with court-approved withdrawal of her counsel, compounded Freelander’s adversities.
At the rescheduled hearing in early September 1987 on the motion for a supplementary judgment, the trial court brushed aside Freelander’s plea that her health had not permitted her time to obtain new counsel in the two weeks since withdrawal of her initial counsel had been allowed. The trial court also ignored her plea that she was destitute, apparently because she had an expectancy of inheritance from her recently deceased sister’s estate. Unguided by any truly adversarial presentation, the trial court again did not undertake either to measure the extent of improvements or to assess the extent of the nuisance remaining after those earlier improvements. *562Freelander’s sister was gone, so filth in the home now apparently affected Freelander alone. No evidence was offered about the reach of continuing odors in the neighborhood, after the extensive effort to repair and renovate her home. No evidence was offered that the recently collapsed basement wall was irreparable. The trial court did not deliberate on alternatives to destruction. Only the “bulldozer” remedy, demolition of Freelander’s lifelong home, was invoked.
Long ago, in considering another kind of “unclean” house as a nuisance, this court declared:
“There is no higher property right known to the law than the right of the individual to the possession of his home, and the deprivation of this right, even temporarily, is not to be sanctioned unless ample legal cause be first shown to exist.” State ex rel. Herigstad v. McCray [48 N.D. 625], 186 N.W. 280, 282 (1921).
Today’s decision recites that “it was not the trial court’s obligation or function to order repairs to be made and paid for, that Freelander was unwilling to make and pay for.” This conclusion mistakes the record and misconceives settled law on abating a nuisance. Because the conditions of the nuisance had changed, the trial court was in no position to fashion a remedy without measuring what was left to be done.
After remand in Freelander II, no judgment was entered directing Freelander to make repairs or to improve sanitary conditions. She was only ordered to get rid of her cats and to cooperate in inspections. When she did not completely rid her home of cats, the trial court opted only for “bulldozing” it. The trial court did not specifically order repairs or cleanup, nor did it set deadlines for doing so. Other traditional remedies of contempt, damages, or receivership were not apparently considered, either.
On this appeal, the City acknowledges that “it always has been the sanitation and odor problem involving the cats which has been the predominant concern of the city.” Asserting that “poverty and squalor are not invariably yokemates,” the City argues that “stench and filth ... by themselves alone justify the judgment appealed from,
But, the City has misinterpreted the law of abating a nuisance. The remedy for a nuisance should not be punitive but should be shaped to correspond to the nature and extent of the nuisance. 58 Am.Jur.2d Nuisances § 142 and § 162; 42 Am.Jur.2d Injunctions § 56 and § 6. See also Annot., Modem Status of Rules as to Balance of Convenience or Social Utility as Affecting Relief from Nuisance, 40 A.L.R.3d 601. Correcting a nuisance, not burying it, is the foremost remedial object. If stench alone compels demolition, without remedial latitude, many municipal sewage lagoons would have to be shut down in some seasons, if not destroyed. A proper remedy is surely as important for a lonely old lady as any municipality. The trial court should have granted relief commensurate with the scope of the remaining problem.
I would remand with directions to the trial court to carefully determine the extent of the improvements and assess the remaining scope of the nuisance. The trial court should specify necessary steps for abatement and correction of remaining problems and fix a reasonable time for compliance. Only after determining the remaining scope of the problems and giving Freelander express opportunity to remedy them can a trial court fairly conclude that there is no practicable alternative to demolition of a home, no matter how shabby.
It may be, yet, that the collapsing condition of the house will be determined irreparable and, if continuing filthy and unsanitary conditions threaten the health and welfare of others than Freelander, its destruction as not habitable would be warranted. If so, the choice should then be clearly given to Freelander: either fix it by a date certain, or suffer its destruction. If that was what was intended here on remand, it is not what was done.
Therefore, I respectfully dissent.