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Cooper v. Chevron U.S.A.6/4/2002
at 968. In this balancing of interests, the particular community in which the nuisance occurs is relevant in three respects. First, the nuisance must "cause significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose." Restatement (Second) of Torts § 821F. "The location, character and habits of the particular community are to be taken into account in determining what is offensive and annoying to a normal individual living in it." Id. cmt. e; accord McCombs v. Joplin 66 Fairgrounds, Inc., 925 S.W.2d 946, 950 (Mo. Ct. App. 1996) ("If normal persons living in the community would regard the invasion as definitely offensive, seriously annoying or intolerable, it is significant. If normal persons in the locality would not be substantially annoyed or disturbed, the invasion is not significant, even though the idiosyncracies of the particular plaintiff may make it unendurable to him [or her].") (quoted authority omitted). Second, the gravity of harm analyzes "the suitability of the particular use or enjoyment invaded to the character of the locality." Restatement (Second) of Torts § 827(d). See generally id. cmt. g ("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."). Third, the utility of the conduct also takes into account "the suitability of the conduct to the character of the locality." Restatement (Second) of Torts § 828(b); accord id. § 831. Thus, considering the importance of local interests and the likelihood that a trial in a nuisance action will hinge on the testimony of local witnesses and involve an examination of the subject property and its past use, there is a strong justification for characterizing a nuisance action as local for purposes of venue. Moreover, as noted below, a continuing nuisance action, such as Plaintiffs', seeks "protection of the realty" and goes beyond a claim for damages for past conduct. Jemez Land Co., 15 N.M. at 322, 107 P. at 685. See generally Restatement (Second) of Torts § 822 cmt. d (" t is unimportant for the purpose of injunction whether the conduct involved is a continuing trespass or a nuisance . . . ."). Based on these considerations, I believe that Plaintiffs' continuing nuisance claim is so significantly founded upon an interest in land, and so locally based, that it falls within the scope of Section 38-3-1(D)(1) and is subject to the venue requirements established by the Legislature in that provision. Venue in the present case is proper only in Lea County.
II. Plaintiffs' Claim for Continuing Nuisance Adequately Invoked Injunctive Relief
The majority acknowledges that Plaintiffs' complaint included a request "for the injunctive relief set forth above" in the demand for judgment. However, the majority concludes that Plaintiffs' failure to "set forth any injunctive relief" in the body of the complaint restricts the relief sought to money damages and precludes the trial court from awarding injunctive relief. I respectfully disagree with this conclusion on three separate bases: (1) it is inconsistent with the rules of pleading in New Mexico; (2) it overlooks language in the complaint; and (3) it conflicts with the trial court's discretion to award proper relief.
First, Rule 1-008(A) NMRA 2002 merely requires "a demand for judgment for the relief to which [the pleader] deems himself [or herself] entitled" following "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 1-008(A) does not require the pleader to set forth the relief in both the bo
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