UPDATE 7:30AM: We have a slow-motion version showing KSTP videographer assaulted by MPD officer last night http://www.youtube.com/watch?v=s2uDcMI71rs as well as unedited version http://www.youtube.com/watch?v=r_iOXECa1Rw
For more info - http://occupyminneapolis.mn - http://facebook.com/occupymn
****************
We have word from downtown Minneapolis right now that the Minneapolis police are using something akin to a bomb scare to shut down the space around the relaunching Occupy Minneapolis space at Peavey Plaza. As usual the pseudo-war on terror lets those Constitutional rights get carved away one space at a time.
At this time many have gathered in Loring Park after Minneapolis PD issued an order to clear away from Peavey Plaza. According to pieces of paper distributed by people collecting government paychecks, PICTURE: Ow.ly - image uploaded by @OccupyMN -
609.74 PUBLIC NUISANCE.
I don't think this has been used before (such as the RNC) - and of course at this very moment it is being used here illegally to regulate the content of speech in an unconstitutional fashion. In this emergency circumstance, we have just received the full Westlaw analysis of MN Statute 609.74 PUBLIC NUISANCE and have attached it. We have a more interestingly extreme level of government operations going on -- the exact type of conduct which bills before the legislature seek to conceal under permanent secrecy.
As these things become more extreme, less and less transparency will happen. Basically because they are shoehorning their actions into statutes like 609.74.
DOWNLOAD: Westlaw_Document_19_49_25.doc
Obviously this statute is being applied right now to abrogate a lot of Constitutional rights, and the state government in this statute, and local police, on the streets, do not have the standing to remove & detain people for asserting their Consitutional rights tonight using this statute in a 24-hr access public park, yet here we are. The misplacing of priorities here -- rather than say, focusing their resources on fraud, etc -- is a major part of the reason our civilization is in dire straits.
Or as they say in Monty Python, "Now we see the violence inherent in the System!"
a few links tonite ---
http://twitter.com/uneditedcamera - & ustream!
#occupympls
#reoccupympls
**********
Minnesota Statutes Annotated CurrentnessCrimes, Criminals (Ch. 609-624) Chapter 609. Criminal Code (Refs & Annos) Public Misconduct or Nuisance 609.74. Public nuisance
Whoever by an act or failure to perform a legal duty intentionally does any of the following is guilty of maintaining a public nuisance, which is a misdemeanor:
(1) maintains or permits a condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public; or
(2) interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public; or
(3) is guilty of any other act or omission declared by law to be a public nuisance and for which no sentence is spe-cifically provided.
CREDIT(S)
Laws 1963, c. 753. Amended by Laws 1971, c. 23, § 74, eff. March 5, 1971; Laws 1986, c. 444.
RULES OF CRIMINAL PROCEDURE
<Section 480.059, subd. 7, provides in part that statutes which relate to substantive criminal law found in chapter 609, except for sections 609.115 and 609.145, remain in full force and effect notwithstanding the Rules of Criminal Procedure.>
ADVISORY COMMITTEE COMMENT [1963]
2009 Main Volume
The present Minnesota statute on the subject of public nuisance is § 616.01, which reads:
“A public nuisance is a crime against the order and economy of the state and consists in unlawfully doing an act or omitting to perform a duty, which act or omission shall:
“(1) Annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of per-sons;
“(2) Offend public decency;
“(3) Unlawfully interfere with, obstruct, or tend to obstruct or render dangerous for passage, a lake, naviga-ble river, bay, stream, canal, or basin, or a public park, square, street, alley, or highway; or
“(4) In any way render a considerable number of persons insecure in life or the use of property.”
Minn.St. § 616.02 makes violation a misdemeanor and makes persons who permit a building to be used for such nuisance also liable.
The two sections will be superseded by the above recommended section. These sections were adopted in 1886 from the New York Penal Code of 1881. They have been interpreted by the New York courts as merely stating the common law on the subject.
Minnesota cases appearing on these sections are confined almost entirely to civil suits in actions for dam-ages. The New York cases construing these sections attach no material significance to terms used in these sections in reaching decisions on what constitutes a public nuisance. Common-law principles have been on the whole pursued and read into the sections.
The cases tend to involve several classes of cases:
(1) Where gambling or bawdy houses are maintained, and this has been extended to include places where drinking occurs and to which the public may go, and to establishments where abortions are performed.
It was this class of cases to which the second clause of Minn.St. § 616.01 is directed.
(2) Cases where the question is whether a particular industry is, or is conducted in such manner that it is, a public nuisance. This usually involves weighing of relative values.
This class of cases is covered by Clause 1 of § 616.01.
(3) Interference with the public use of highways, waterways, etc.
This is covered by Clause 3 of § 616.01.
No case was found which turned on the provisions of Clause 4 of § 616.01. The cases cited by the New York revision commissioners, relating to noise and offensive odors, can easily be brought under Clause 1.
A number of states do not make the maintenance of a public nuisance a crime. They rely instead on the power of prosecuting officials to bring abatement or injunction proceedings. This includes Wisconsin and Louisiana.
At the present time the power of the state or local authority to bring an injunction proceeding to abate a public nuisance is well recognized. See State ex rel. Goff v. O'Neil, 1939, 205 Minn. 366, 286 N.W. 316.
There is probably still a place for the crime of public nuisance but it is believed it should be restricted to those instances which come within the purposes of the criminal law.
This will require (1) some criminal intent and (2) limitation of the statute to such specific terms as the na-ture of the problem permits.
Clause (1): Changes from the present statutes made by Clause (1) are:
(1) The word “intentionally” has been added. This will eliminate those cases where there is a good faith claim on the part of the defendant that he has a right to continue with the activity in which he is engaged. This claim he should be entitled to make without the possibility of a criminal penalty hanging over him.
(2) The word “unreasonably” has been added. Reasonable use of one's own property is not a nuisance. This is the present law.
(3) The words “unlawfully doing an act” have been omitted. Many, if not most, nuisance cases involve conduct on one's own premises. It is not illegal unless it is a nuisance.
(4) The word “morals” has been inserted and the present Clause 2 of Minn.St. § 616.01 has been removed.
(5) “Members of the public” has been substituted for “persons.” The distinguishing aspect of a public nui-sance is that it is the public that is affected. There may be “a considerable number of persons” affected and the public still not be involved as interpreted by judicial decisions.
(6) “Creates a condition” is new. The purpose is to emphasize the characteristic feature of a nuisance; namely, that it is something which is more than a single act but is a state of affairs or situation or condition, harmful to the public. The present statute is deficient in this respect. “A certain degree of permanence ... is usually a part of the conception of a nuisance.” Holmes, in Commonwealth v. Patterson, 1885, 138 Mass. 498.
If single specific acts are sought to be prohibited, they should be the subject of a separate statute defining the act as a crime.
Clause (2): This restates Subd. 3 of § 616.01 with some addition and rewording. This is a well recognized basis for a public nuisance.
It might well be made a specific crime quite aside from the crime of nuisance, but it was believed better to continue to treat it as a nuisance and retain the remedies that go with it, such as the right of public authori-ties to bring an action for an injunction.
This will duplicate Minn.St. § 160.27, Subd. 5, Clause (1), in a measure but the duplication is not deemed objectionable.
Public parks are not specifically mentioned in this clause since a public nuisance in a public park is deemed sufficiently covered by Clause (1).
Clause (3): This covers the provision in Minn.St. § 616.02 to the same effect.
There are a number of statutes declaring certain acts public nuisances. These include:
§ 18.331:
This makes certain grain-rust producing plants and bushes public nuisances.
§ 37.21:
This makes the sale of intoxicating liquor near the state fair grounds a public nuisance.
§ 169.07:
This makes obstructing the view to highway traffic signs a public nuisance.
§ 360.032:
This makes trees and other obstructions to airport approaches public nuisances.
§ 411.40:
This empowers cities of the first class to declare public nuisances.
§ 411.45:
This preserves legal actions to abate nuisances.
§ 437.09:
This makes itinerant carnivals, street shows, etc., public nuisances.
§ 461.07:
This authorizes ordinances making dense smoke a nuisance. See also Minn.St. § 461.09 giving similar authority to cities of the third class.
§ 462.17:
This makes buildings not conforming to city ordinances public nuisances.
§ 471.92:
This makes open wells, cesspools, cisterns, etc., public nuisances.
§ 614.01:
This section is superseded by recommended §§ 609.75 to 609.76. No provision has been included in this revision making a lottery a public nuisance. However, places where lotteries are conducted contribute to injury of public morals and would thus fall within the meaning of Clause (1) of the recommended section.
§ 616.39:
This makes itinerant carnivals public nuisances.
§ 617.33:
This makes houses of prostitution public nuisances. Subsequent sections empower the county attorney to bring an action to abate the nuisance.
§ 618.14:
This makes drug addict resorts a common nuisance.
No provision has been included that is equivalent to Clause 4 of § 616.01. This was regarded as too broad and sweeping to include in a criminal statute. It adds nothing to what falls within Clause (1) of the recom-mended section.
HISTORICAL AND STATUTORY NOTES
2009 Main Volume
Derivation:
St.1961, §§ 616.01, 616.02, 616.16.
St.1927, §§ 10241, 10245.
Gen.St.1923, §§ 10241, 10245.
Gen.St.1913, §§ 8759, 8760.
Rev.Laws 1905, §§ 4987, 4988.
Gen.St.1894, §§ 6613, 6615, 6616.
Pen.Code, §§ 319, 321, 322.
Gen.St.1878, c. 98, §§ 8, 9.
Laws 1876, c. 54, §§ 1, 2.
The 1971 amendatory act substituted the specified penalty of misdemeanor for a former penalty of imprisonment for not more than 90 days or a fine of not more than $100.
Laws 1986, c. 444, authorized the removal of nonsubstantive gender specific references.
CROSS REFERENCES
Abatement, powers and duties of the board of health, see §§ 145A.04, 145A.05.Abortion, obscenity, public nuisances, see § 617.80 et seq.Buildings declared a nuisance, see § 462.17.Misdemeanor, penalty when not otherwise provided, see § 609.03.Noxious bushes and weeds, see § 18.75 et seq.Nuisance; acts constituting, see § 617.81.Nuisance defined, see § 561.01.Nuisance liability of agricultural operations, see § 561.19.Offensive trades and employments, see § 145A.05.Unauthorized signs on highways, abatement, see § 169.07.Uses of right-of-way, misdemeanors, see §§ 160.27, 160.2715.
LAW REVIEW AND JOURNAL COMMENTARIES
Animal feedlot regulation in Minnesota. Marcia R. Gelpe, 1981, 7 Wm. Mitchell L.Rev. 399.
Environmental rights act. 1972, 56 Minn.L.Rev. 575.
Governmental tort liability. Orville C. Peterson. 26 Minn.L.Rev. 613 (1942).
Jet noise in airport areas. May 1967, 51 Minn.L.Rev. 1087.
Liability of municipality and abutting property owner for injuries resulting from ice and snow. 21 Minn.L.Rev. 703 (1937).
Need for a principled expansion of the role of local government in environmental enforcement. Beverly Conerton and LeRoy Paddock, 16 Wm.Mitchell L.Rev. 949 (1990).
Obscenity and the law: Curious bed-fellows. Ronald I. Meshbesher. Feb. 1970, 38 Hennepin Law. 4.
Public water rights. William G. Peterson. 31 Bench & B.Minn. 3 (Sept. 1974).
LIBRARY REFERENCES
Nuisance 61, 95.Westlaw Topic No. 279.C.J.S. Nuisances §§ 4, 10, 34 to 39, 41 to 46, 48 to 57, 59 to 60, 62, 157.
RESEARCH REFERENCES
Treatises and Practice Aids
10 Minnesota Practice Series CRIMJIG 13.122, Public Nuisance--Defined.
25 Minnesota Practice Series § 10:12, Pre-Condemnation Procedures.
9A Minnesota Practice Series § 58.7, Nuisances.
NOTES OF DECISIONS
In general 1Animals 6Burden of proof 14Businesses 4Jury questions 15Obstruction of public right of way 9Pollution 5Private nuisance 3Probable cause 13Purpose 2Road signs 10Sidewalks 11Sirens 7Trespass 8Waters 12
1. In general
While the Legislature cannot prevent a lawful use of property by declaring a certain use to be a nuisance, which is not in fact a nuisance, and prohibiting such use, yet acts or conditions which are detrimental to the comfort and health of the community may be effectively declared nuisances by the Legislature, though not so determined at common law. State v. Chicago, M. & St. P. Ry. Co., 1911, 114 Minn. 122, 130 N.W. 545, Am.Ann.Cas. 1912B,1030. Nuisance 60
2. Purpose
Section 616.01 (repealed; see, now, this section) relating to public nuisances, was designed to protect against either intentional or negligent misconduct. Kelsey v. Chicago, R.I. & P.R. Co., 1962, 264 Minn. 49, 117 N.W.2d 559. Nuisance 60
The purpose of the provision declaring it a public nuisance to obstruct or render dangerous the exercise of the pub-lic right of passage on a highway is to secure to every one an enjoyment of a public right. Hanson v. Hall, 1938, 202 Minn. 381, 279 N.W. 227. Highways 153
The purpose of § 616.01 (repealed; see, now, this section) relating to public nuisances, was to secure to everyone an enjoyment of a public right. Op.Atty.Gen., 377-B-10-j, Apr. 10, 1951.
3. Private nuisance
Position of railroad's trestle did not constitute a public nuisance under this section even though its static physical location obstructed street intersection; this section contemplated actual obstructions caused by affirmative acts or omissions. Olmscheid v. Paterson, App.1989, 440 N.W.2d 124, review denied. Municipal Corporations 693
A public nuisance must be redressed by prosecution in name of state, while a private nuisance is redressed by pri-vate action. Hill v. Stokely-Van Camp, Inc., 1961, 260 Minn. 315, 109 N.W.2d 749. Nuisance 44; Nuisance 82
The violation of the provision of § 616.01 (repealed; see, now, this section) making it a public nuisance to obstruct or render dangerous exercise of public right of passage on highway, did not give private individual cause of action if only wrong he suffered, was wrong common to all members of public in that only his exercise of his right to travel was impeded. Hanson v. Hall, 1938, 202 Minn. 381, 279 N.W. 227. Highways 155
Where passenger elevator, installed in building under construction was fully completed except for glass in the doors and plaintiff stuck his forehead into elevator shaft through an opening in door left to receive glass and was severely injured by movement of elevator, § 616.01 (repealed; see, now, this section) relating to public nuisances, was inap-plicable. Gibbons v. Gooding, 1922, 153 Minn. 225, 190 N.W. 256. Workers' Compensation 2089
4. Businesses
Where liquor and gambling statutes were continuously and persistently violated at a public tavern which ostensibly was operated as a private club, and repeated convictions had failed to stop the offenses, the remedies at law, that of prosecution under the gambling and liquor laws, prosecution for violation of § 616.01 (repealed; see, now, this sec-tion) and of abatement of the tavern after judgment were inadequate, authorizing injunction to abate the tavern as a public nuisance. State v. Sportsmen's Country Club, 1943, 214 Minn. 151, 7 N.W.2d 495. Intoxicating Liquors 261; Nuisance 80
A complaint alleging that a small loan business, catering to a large class of poor and necessitous wage-earners, was so conducted that in every loan made the usury statute was flagrantly and intentionally violated, and that there was no adequate or effective remedy which the borrowers were willing or able to use to obtain redress for violation, stated a cause of action for injunctive relief against the maintenance of a public nuisance. State ex rel. Goff v. O'Neil, 1939, 205 Minn. 366, 286 N.W. 316. Nuisance 84
A trapdoor in floor of lavatory in restaurant in village was not a nuisance. Lyman v. Hermann, 1938, 203 Minn. 225, 280 N.W. 862.
Maintenance of truck warehouse and depot in district, at best but semiresidential, was not nuisance, either public or private, notwithstanding noise caused during nighttime by necessary pulling of endgate chains, running of motors, loading of cans, moving of loading platforms, and glare of truck lights. Village of Wadena v. Folkestad, 1935, 194 Minn. 146, 260 N.W. 221. Automobiles 109
“Nuisance” is sufficiently comprehensive to include unlawful business which necessarily works harm, injury and prejudice to the individual and is prejudicial to public welfare. State v. Guilford, 1928, 174 Minn. 457, 219 N.W. 770.
Bawdyhouses were a public nuisance under § 616.01 (repealed; see, now, this section). State v. Gilbert, 1914, 126 Minn. 95, 147 N.W. 953.
5. Pollution
Action of taconite mining and processing company in discharging taconite tailings into waters of Lake Superior in such manner as to release into air and water large quantities of minute asbestos-like amphibole fibers known to be directly associated with occurrence of cancer in humans constituted both violation of Federal Water Pollution Con-trol Act (33 U.S.C.A. § 1151 et seq., superceded by 33 U.S.C.A. § 1251 et seq.) and common-law nuisance in inter-state and intrastate waters of Lake Superior and in ambient air of surrounding communities. U. S. v. Reserve Min. Co., D.C.Minn.1974, 380 F.Supp. 11, remanded 498 F.2d 1073, application denied 94 S.Ct. 3203, 418 U.S. 911, 41 L.Ed.2d 1156, application denied 95 S.Ct. 287, 419 U.S. 802, 42 L.Ed.2d 33, application denied 95 S.Ct. 1441, 420 U.S. 1000, 43 L.Ed.2d 758, modified and remanded 514 F.2d 492, modified 529 F.2d 181, on remand 408 F.Supp. 1212, on remand 412 F.Supp. 705, on remand 417 F.Supp. 789. Environmental Law 206; Environmental Law 284; Nuisance 62
Dense smoke is not a nuisance per se, but only becomes such when it permeates the air surrounding people, and in-vades their residences and places of occupation. State v. Chicago, M. & St. P. Ry. Co., 1911, 114 Minn. 122, 130 N.W. 545, Am.Ann.Cas. 1912B,1030. Nuisance 62
6. Animals
That civil remedies were available for arrestee's allowing her animals to escape and damage property did not render pursuit of matter in criminal court objectively unreasonable for purposes of qualified immunity analysis in arrestee's § 1983 action. Myers v. Becker County, D.Minn.1993, 833 F.Supp. 1424. Civil Rights 1376(2)
Sheriff's officer who swore out summons and complaint had objectively reasonable belief that probable cause ex-isted to charge arrestee with misdemeanor public nuisance, so that he was entitled to qualified immunity in arrestee's § 1983 action; officer had information indicating that arrestee knew that her animals were escaping from her farm and allegedly causing damages to other property and that inadequate fencing was allowing animals to escape, arres-tee ignored warning about fences and took no action to abate problem, sheriff's office was contacted repeatedly by arrestee's neighbors over period of two years about animals escaping, and animals escaped onto public road adjacent to her farm. Myers v. Becker County, D.Minn.1993, 833 F.Supp. 1424. Civil Rights 1376(6)
Sheep and other domestic animals were not within the purview of § 616.01 (repealed; see, now, this section) relating to public nuisances. Op.Atty.Gen., 146f, Feb. 6, 1961.
Question whether the keeping of horses or other animals in a residential district constitutes a nuisance depends on the facts and circumstances involved, and unquestionably such keeping may be held a nuisance by reason of the location, manner of keeping, or other pertinent circumstances. Op.Atty.Gen., 441-H, Oct. 17, 1956.
7. Sirens
The blowing of village fire siren every night at eight o'clock in the evening for a curfew, was not a public nuisance within § 616.01 (repealed; see, now, this section). Op.Atty.Gen., 913, Sept. 26, 1949.
8. Trespass
Allegations by taxpayers that actions of protestors, who were arrested for criminal trespass, § 609.605, constituted a private or public nuisance did not state a cause of action for private or public nuisance, where taxpayers did not allege any interest in the affected property and did not assert any special or peculiar damage not common to the gen-eral public. North Star Legal Foundation v. Honeywell Project, App.1984, 355 N.W.2d 186, review denied. Nuisance 48; Nuisance 76
9. Obstruction of public right of way
Conducting construction operations on a portion of highway not intended to be open for public use was not “public nuisance” within this section, although done negligently. Dornack v. Barton Const. Co., 1965, 272 Minn. 307, 137 N.W.2d 536. Nuisance 62
The provisions of § 219.383, prohibiting railroad from stopping a train across a street for more than 10 minutes, modified provisions of § 616.01 (repealed; see, now, this section) relating to public nuisances and § 160.34 (re-pealed; see, now, § 160.27) and legalized any obstruction of public highway incident to a stop for not longer than 10 minutes, and there could be no violation of the latter sections by stopping a train across public highway unless the stop exceeded 10 minutes in violation of § 219.383, but where the 10 minutes was exceeded all three statutes were violated. Mlenek v. Fleming, 1947, 224 Minn. 38, 27 N.W.2d 800. Railroads 246
Section 616.01 (repealed; see, now, this section) relating to public nuisances, and § 160.34 (repealed; see, now, § 160.27), and § 219.383 which had as their common subject matter the prohibition of obstruction or closing of public highways, were in pari materia, and were to be construed together. Mlenek v. Fleming, 1947, 224 Minn. 38, 27 N.W.2d 800. Statutes 223.2(14)
If defendant had removed large quantities of rock filling from embankment of roadway within limits of highway and had removed a substantial part of support of roadway and if defendant had used explosives endangering lives and property of highway travelers, defendant was guilty of maintaining a public nuisance, but defendant's criminal con-duct would not bar injunctive relief. State v. Nelson, 1933, 189 Minn. 87, 248 N.W. 751.
Construction and maintenance of logging railroad across highway by fee owner was not incompatible with travel thereon and did not constitute a nuisance under § 616.01 (repealed; see, now, this section). Town of Kinghurst v. International Lumber Co., 1928, 174 Minn. 305, 219 N.W. 172. Highways 86
An abutting owner owns to the center of the street, subject to the easement of the public, and may use it for a pur-pose compatible with the free use by the public, and whether a use by an abutter is consistent with the free enjoy-ment of the easement by the public depends on the nature of his use and the needs and character of the occupation by the public and his use may be an obstruction inconsistent with the public easement. Kelty v. City of Minneapolis, 1923, 157 Minn. 430, 196 N.W. 487. Municipal Corporations 663(1)
Where abutting owner constructs or maintains fences within the right of way limits, impairing the usefulness of the highway to the traveling public or rendering such use dangerous, the construction and maintenance of the fences constitute a public nuisance. Op.Atty.Gen., 377-B-10-j, Apr. 10, 1951.
10. Road signs
An advertising sign in the form of crosses similar to railroad crossing signs bearing the words “Stop, Look and Lis-ten” adjacent to trunk highway was contrary to law and constituted a public nuisance, subjecting owner thereof to action to compel removal thereof or for injunction. Op.Atty.Gen.1934, No. 485, p. 739.
11. Sidewalks
Where defect in public sidewalk resulted from roots of a tree growing along front of their premises adjacent to the sidewalk and where it was the duty of the city to keep the sidewalk in a reasonably safe condition for travel, no nui-sance was committed by abutting property owners by merely permitting the roots of the tree to grow. Sand v. City of Little Falls, 1952, 237 Minn. 233, 55 N.W.2d 49. Municipal Corporations 808(1)
In action against occupant of premises abutting sidewalk for injuries sustained in fall in icy driveway over sidewalk, condition of driveway over sidewalk was not nuisance which occupant was in duty bound to abate, where its surface was not different from that of any other part of sidewalk. Abar v. Ramsey Motor Service, 1935, 195 Minn. 597, 263 N.W. 917. Municipal Corporations 808(5)
Accumulation of ice on public sidewalk, resulting when fresh snow on cornice of building melted and water dripped to sidewalk, was not public nuisance, within St.1927, § 10241 (repealed; see, now, this section) as basis for impos-ing liability on owner of building. Mesberg v. City of Duluth, 1934, 191 Minn. 393, 254 N.W. 597. Municipal Cor-porations 808(5)
Lot owner's driveway, built from street across sidewalk, wrongly obstructed sidewalk and constituted nuisance, sub-ject to abatement. City of Marshall v. Cook, 1926, 169 Minn. 248, 211 N.W. 328. Municipal Corporations 667
12. Waters
While village had authority under § 412.19 (repealed) to change natural outlet within its corporate limits of mean-dered and navigable lake, such power was subject to requirements and limitations of §§ 616.01 and 616.02 (re-pealed; see, now, this section) that new outlet should not become a nuisance by obstructing free and appropriate use of one's own property. Greenwood v. Evergreen Mines Co., 1945, 220 Minn. 296, 19 N.W.2d 726. Municipal Cor-porations 834
The erection and maintenance of a dam across a natural water course to utilize water power was not a nuisance. City Water Power Co. v. City of Fergus Falls, 1910, 113 Minn. 33, 128 N.W. 817, Am.Ann.Cas. 1912A,108. Nuisance 61
An unreasonable and unnecessary obstruction of a navigable stream may be a public nuisance in its general effect upon the public, and at the same time a private nuisance as to those individuals who suffer a special and particular damage therefrom, distinct and apart from the common injury. Page v. Mille Lacs Lumber Co., 1893, 53 Minn. 492, 55 N.W. 608, opinion vacated on rehearing 53 Minn. 492, 55 N.W. 1119. Water Law 2600
The owner of premises bounded by a navigable stream has the right to make a pier for his own use, or that of the public; but such structure must not obstruct the navigation thereof. Rippe v. Chicago, D. & M. R. Co., 1876, 23 Minn. 18. Water Law 2620
Where a frozen stream to which the public lawfully has access is not so minor as to be beyond reason, it would be doubtful that the snowmobiling public could be fenced off. Op.Atty.Gen., 1003, April 17, 1968.
Normally a riparian owner could build a fence extending into the water to the normal low-water mark if the fence did not interfere with the public use of the lake. Op.Atty.Gen., 273c-6, Oct. 26, 1960.
Whether a fence extending from the shore about four feet into a lake would constitute a public nuisance was a ques-tion of fact determinable by examination of the particular circumstances. Op.Atty.Gen., 273c-6, Oct. 26, 1960.
If operation of boats and racing hulls on the Mississippi River should result in annoying, injuring or endangering the safety, health, comfort, or repose of any considerable number of persons, the offender or offenders can be prose-cuted by city. Op.Atty.Gen., 273-D-2, Aug. 12, 1952.
Operation of speed boat so as to endanger safety of others is unlawful. Op.Atty.Gen., 273-D-2, Aug. 23, 1951.
If offense against state law was committed by placing of buoys on waters of Lake Minnetonka outside boundaries of village of Deephaven, village justice of the peace could receive complaint for such violation and issue warrant for arrest of alleged offender and try cause as a misdemeanor or, in case of charge more serious than misdemeanor, hold a preliminary hearing. Op.Atty.Gen., 273-A-14, Aug. 20, 1946.
Public nuisance constituted by a beaver dam, if a crime at all, was a misdemeanor, and whether a prosecution lay depended on facts of case. Op.Atty.Gen., 211-D-7, June 4, 1946.
Construction of an artificial point by extending a natural point at various distances commencing with 97 feet from the original natural point back to about 387 feet when finally completed, might under certain circumstances institute basis for criminal prosecution under § 616.01 (repealed; see, now, this section) as public nuisance for unlawful inter-ference with or obstruction or tending to obstruct or render dangerous for passage a lake, navigable river, bay, stream or other water. Op.Atty.Gen.1932, No. 163, p. 189.
Where maintenance of artificial channel between meandered lake and non-meandered lake injuriously affected me-andered lake with respect to interests of public in navigation, fishing, propagation, or otherwise, it could be abated as a public nuisance and owner might also be subject to criminal prosecution and would also be liable to riparian owners of meandered lake for any damage to property resulting from diversion of waters in excess of such reason-able amount as he might lawfully take within his riparian rights. Op.Atty.Gen.1930, No. 266, p. 242.
13. Probable cause
Police officers, who arrested homeowners and their guests after neighbor complained about loud party, were pro-tected by qualified immunity from claim that officers violated Fourth Amendment by arresting partygoers outside house after police had ordered them to disperse; police could have thought there was probable cause for arrests, as officers were on second call for loud party at almost 2:00 a.m. and themselves heard loud talking, giving them prob-able cause to arrest homeowners for maintaining public nuisance, and guests were resisting dispersal order. Greiner v. City of Champlin, C.A.8 (Minn.)1994, 27 F.3d 1346. Civil Rights 1376(6)
14. Burden of proof
To maintain a conviction under the public nuisance statute for endangering the safety of the public, the state must prove through testimony and evidence that the public was in fact endangered. State v. Otterstad, 2007, 734 N.W.2d 642. Nuisance 62
In a prosecution under state public nuisance statute, the state did not meet its burden of proving that defendants maintained a condition that endangered the safety of a considerable number of members of the public when they displayed political signs on bridge over state highway containing text and graphic picture of aborted fetus; there was no evidence of an accident involving motorists who could actually see signs, testimony from drivers whose ability to control their vehicle was impaired by signs, or police officer's observation of traffic disturbances involving drivers distracted by signs. State v. Otterstad, 2007, 734 N.W.2d 642. Nuisance 92
15. Jury questions
Whether property owner's rock garden was “obstruction” to public right-of-way within meaning of public nuisance statute [M.S.A. § 609.74(2)] was jury issue. State v. Davis, App.1985, 375 N.W.2d 599. Nuisance 93
M. S. A. § 609.74, MN ST § 609.74
Current with laws of the 2012 Regular Session through Chapter 131
(C) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT