Don’t Feed the Birds: It’s a Nuisance

There are many homeowners who enjoy having birds on their properties: watching them, listening to their songs, perhaps feeding them. For their part the birds don’t generally cause much of a problem (Long Island’s issues with geese being a notable exception). Today’s case is the rare example where they did. Up in Saratoga County, Plaintiff homeowner brought a suit alleging private nuisance* and continuing trespass against his neighbor due to the “noise and excrement” of the neighbor’s waterfowl.

The Defendant, who had moved in years after the Plaintiff, had expanded the pond on his property to create a nature preserve for passing waterfowl. Apparently the number and impact of the birds became so pronounced, that when suit was brought the lower court granted a temporary restraining order against defendant enjoining him from feeding any “nonresident fowl” or maintaining a “feeding station for both wild and domesticated” birds on the property,” excluding those being cared for and treated in the defendants capacity as a wildlife rehabilitator.

Whether there was ultimately liability is unclear, as the record focuses on whether the denial of the defendants’ motion for summary judgment was proper (the court found it was). What the court did find was that the plaintiff’s selling their residence does not compel dismissal, as they may still be entitled to temporary nuisance damages. Quite fowl circumstances.

*For those of you who may not be lawyers, private nuisance consists of an act intentionally done (or not done) that substantially and unreasonably interferes with other people’s use and enjoyment of their property. Physical trespass onto the other person’s land is not required.

The case was Schillaci v Sarris, 2014 WL 6475553 (NYAD 3 Dept) and it can be found here:

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