I. Plaintiffs Have Failed to Demonstrate, on the Undisputed Facts in the Stipulation Herein

xmkwd.doc Marking Exercise

(Assume that the writer has preceded the following with a discussion of the standard for summary judgment: that the movant has established the lack of a genuine issue of material fact and entitlement to judgment as a matter of law. The writer is now proceeding to establish why Defendant should receive summary judgment on one of two claims asserted by Plaintiffs, i.e., the nuisance claim.)

I. Plaintiffs have failed to demonstrate, on the undisputed facts in the stipulation herein, that Mr. Kelley has created a nuisuance under Minnesota law.

Minnesota’s law on nuisance, Minn. Stat. Ann. Section

561.01, was enacted over 150 years ago. The Minnesota Supreme

Court interpreted it in Heller v. American Range Corporation, 234

N.W.2d 316 (1931), a case involving facts that seem similar at first but prove to be distinguishable from the instant case upon close examination.

The law and the case alike indicate that a nuisance is anything that is “…injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to iterfere with the comfortable enjoyment of life or property.” The Garnders' can’t show an injury to health or indecency or offensiveness. Their claim is based on the dust impinging on their enjoyment of property.

This is one reason that the instant case is distinguishable from Heller, id. In Heller, not only was grass and other vegetables impacted, but also the plaintiffs therein syffered health problems and great discomfort.

Another difference is that American Range Corporation clearly cause the lead oxide to come onto the Heller’s property and that that caused the harm to the Hellers. In the instant case, it is not at all clear what has caused the alleged problem with the Plaintiff’s flowers, dust from Mr. Kelley’s land or something else (like too little water, car fumes or insect infestation). The evidence at hand suggests that the wind would not blow onto the Plaintiff’s land. Even if the wind did carry some dust there, it would be the wind—not Mr. Kelley—doing the action.

Another way in which the two cases, Heller and the instant case, differ is that there their was evidence that other factories had equipment that kept the lead oxide dust from blowing, whereas here there is evidence that other farmers do what Mr. Kelly does. And that his farming practices, including the use of 11-38 the way he uses it, is in comformance with state and federal farming regulatiosn.

The Court in Heller, id., concludes with an important point: “At any rate, the plaintiff’s right of habitation is superior to the right of the defendant to pollute the air with dust of the kind here involved”. That was true in Heller, but the opposite point can be made about the instant case. Mr. Kelly is not a factory polluting a residence, he is a farmer living on his farmland. So he has the right of habitation too.

For these various reasons, the instant case is unlike the

Heller case, and so the result here should differ two. Mr.

Kelley should be granted summary judgement on the claim of nuisance.