Ray and Marie Powers v. Wesley and Mary Tincher

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Year Case Filed:  1999 Jurisdiction Level:  Ohio Case File Num:  99 CV 181 Defense Attorney:  Charles M. Rowland, II (Xenia) Drafting Attorney:  Lanny R. Holbrook (Cinncinnati)
Summary:

While plaintiff’s complaint and demand focus on the threats and alleged actions of trespass by defendants, the Common Pleas Court’s decision focuses instead on the defendant’s request for injunctive relief based on a nuisance violation. Specifically, defendants apparently alleged that plaintiff’s keeping of over one hundred roosters constituted a private nuisance. Relying on a case of similar facts, the court held that plaintiffs’ keeping of over one hundred roosters for the purpose of cockfighting constituted a private nuisance.

Documents:  pbusohpowerscomplaint.pdf pbusohpowersjdgmt.pdf pbusohpowerspbrief.pdf pbusohpowersdbrief.pdf

This case raised three causes of action:   loss of quiet enjoyment, trespass, and intentional infliction of emotional distress.   While plaintiff’s complaint and demand focus on the threats and alleged actions of trespass by defendants, the Common Pleas Court’s decision focuses instead on the defendant’s request for injunctive relief based on a nuisance violation.   Specifically, defendants apparently alleged that plaintiff’s keeping of over one hundred roosters constituted a private nuisance.   Relying on a case of similar facts, the court held that plaintiffs’ keeping of over one hundred roosters for the purpose of cockfighting constituted a private nuisance.   In order to abate the nuisance, the court limited the plaintiffs’ ownership of roosters to only six on their property.

On appeal, the plaintiffs argued that the trial court abused its discretion in holding that the chickens constituted a private nuisance.   Plaintiff-Appellants took specific issue with the court’s characterization of the roosters as kept for cockfighting.   Instead, the Powers allege the birds are kept for breeding as show birds and thus had great economic importance.   Thus, plaintiff-appellants contended that the court’s action to abate the nuisance (limiting ownership to only six roosters) was excessive.

In response, defendant-appellees suggested that plaintiff-appellants actions fell under the “inherently injurious” standard so that a strict liability analysis must be employed.   In essence, since plaintiff-appellants were raising roosters for the purpose of cockfighting, illegal in Ohio, their actions should fall within the definition of an absolute nuisance and should be enjoined.  

 

 

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