Rohn K. Robbins
Vail Law
Vail, CO Colorado

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March 26, 2013
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Vail Daily column: Coming to the nuisance

Let me tell you a fairy tale in two different versions to illustrate a point.

Once upon a time, in a Happy Valley along the I-70 corridor in a land not so far away, laid a lovely little cottage in a place where eagles plied skies so blue, it hurt your eyes.

A young couple - newly married with a baby on the way - knew that they should buy a home before real estate prices fully recovered. There they would raise their baby, buy a puppy, and eat beer and pizza on the weekends. They would fly a Broncos flag at the end of their driveway beside a tidy little yard.

In this land, there were no zoning regulations and the neighborhood association had no restrictive covenants.

To the east and west of them, there were neighbors who raised their handsome children, fed their puppies Eukanuba, mowed their lawns and ate beer and pizza on the weekends.

One day, something changed.

The happy couple in the Happy Valley along the I-70 corridor woke to a strange and frightening sound. It was the sound of tractors tearing up the fertile earth in a green patch just behind their cozy little cottage. The happy couple kicked on their muluks, kissed the baby, fed the puppy, and went out to investigate.

What they saw, besides John Deeres ripping at the earth, was a big truck full of squealing pigs, their inquisitive pink snouts probing through small portals in the side panels of the big truck.

What they learned was that a pig farm would become their neighbor. Just behind the little cottage would soon be a million-million-million squealing, smelly pigs. One day soon, the pig farm would make the little cottage in the Happy Valley along the I-70 corridor unlivable. The puppy would bark from dawn till dusk and the baby would never sleep. The beer and pizza they ate on the weekends would be befouled by the stench of pig. Their ears would be assaulted with the squeal of a million-million-million pigs.

So, what was the happy couple to do?

First, they called the mayor, all knowing and all powerful, but the mayor could do nothing. And so, they hired an attorney and they went to court.

Before the judge, high on his mighty bench, the happy couple pled their case. The pigs, they said, were making their lives miserable.

The judge thought, and then he thought some more. He considered and he ruminated. He weighed, and balanced, and deliberated. He consulted the wise texts of the law.

And then, he leaned upon his elbows on the high bench where he sat and awarded the happy couple damages. They were, he said, after a deep, meaningful, and all-knowing breath, entitled to be compensated for the losses the pig farm had inflicted upon them. He ordered the pig farm disassembled and peace restored to the land.

And there was joy throughout the realm, except, of course, for the pig farmer who gathered his pigs into thick burlap pokes and shuffled away never to be heard of again.

OK. Now, the same story now, with one little twist.

The happy couple, being so blinded by love for one another, failed to notice there was a pig farm behind the little cottage when they bought the place where they would raise their puppy and their baby. They failed to notice the million-million-million squealing pigs a stone's throw from their bedroom window. So consumed with their love for one another and the bliss of Eukanuba for their puppy, Martha Stewart nursery furnishings for the baby, and beer and pizza on the weekends, they somehow missed, the teaming pig farm, just beyond the tidy white pickets of their well-kept little yard.

One day, however, they suddenly noticed. The husband woke up to the sound of squealing pigs, stirred his lovely bride, and said, "Dear, methinks there is a pig farm just beyond our yard."

Together, they peered through the curtains. They were aghast.

"What are we to do?" the man's bride, standing in her mukluks, asked.

They first went to the mayor, all knowing and all powerful, but he could, he said, be of no assistance.

And so, they hired an attorney and they went to court.

Before the judge, high on his mighty bench, the happy couple pled their case. They woke up, they said, just a morn or two before, only to notice a pig farm just beyond their well-kept yard. So as not to offend the judge, high on his mighty bench, they whispered, "Your honor, you would not believe the stench!"

The judge thought, and then he thought some more. He considered and he ruminated. He weighed, and balanced, and deliberated. He consulted the wise texts of the law.

And then, he leaned forward on his elbows on the high bench where he sat and said, "What fools you are, happy couple. The pig farm was already there when you bought the little cottage. The nuisance," he said, wagging a knowing finger, "was already there. You, and not the pig farmer, came to the nuisance. This," he said, "has been known since time immemorial."

And so, no damages were awarded and there was sadness throughout the land.

The moral to the story?

It is this:

"If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue." - Blackstone, 1766.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, robbins@slblaw.com or robbins@colorado.net.


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The VailDaily Updated Mar 26, 2013 11:21PM Published Mar 26, 2013 11:18PM Copyright 2013 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.