Bob is mad because his neighbor Jill constantly burns big bonfires. The bonfires are on her property but are very close to his house. Bob doesn't feel endangered by the fires but is tired of everything he owns smelling like smoke. Does he have any grounds to make her stop? There isn't an HOA or any local ordinances that prohibit the bonfires.
So what is the legal issue? A rookie might jump in and try to natural-language search “bonfire smoke is annoying” on Westlaw or Lexis, but you’re way too savvy for that and know you need to identify the issue and not the facts. This is the research step that relies on your general knowledge of the law. You may remember learning in Torts about people not being able to use their property in a way that irritates their neighbors, and that it was called a nuisance.
To brush up on your knowledge, go to a secondary source. Because nuisance is a narrow, well-known topic, an encyclopedia is probably a better resource to use than a treatise or a nutshell (although you certainly can). As you know, there are national encyclopedias (C.J.S. and Am. Jur.) and a state-specific encyclopedia for North Carolina, called Strong’s North Carolina Index. Since this case is in North Carolina, look up “nuisance” in the index to Strong's. There is a long entry on the topic, with a nice summary of the black-letter law, as well as citations to relevant cases. Make sure to check the pocket part to see if there have been any recent changes (either more cases or new statutes or amendments).
While reading the entry on nuisance in Strong’s, look for any special terminology. There isn’t any that seems to apply, except the phrase “pollution.” Not a unique word, but make a note that that’s how “smoke” is likely to be described in the area of nuisance law.
You already know the jurisdiction (North Carolina) from the fact pattern. Strong’s makes no mention of federal law or any statutes particular to the specific issue. That suggests that this is a state, common law issue.
Because Strong’s did not mention a relevant statute, you can be pretty confident there isn’t one. However, just to be safe, take a quick skim of the general statutes. The index contains “nuisance” - it has one entry on fires, but it’s about prescribed fires and deals with public nuisances (from the encyclopedia entry, we know our issue deals with a private nuisance claim). So there’s probably not a statute that deals with the nuisance of a neighbor’s bonfire, and you can move on.
The encyclopedia is a huge help because you can use the cases it supplied in order to find the relevant topic and key number. You can then use that topic and keynumber to find all the relevant cases.
First, choose a couple of cases that look particularly on point. Broadbent v. Allison, 626 S.E.2d 758 (2006) talks about the requirements of a nuisance generally. Causeby v. High Penn Oil Co., 93 S.E.2d 79 (1956), while an older case, deals specifically with air pollution. Pull the cases in a West reporter or on Westlaw and skim their headnotes to find the one that best addresses the issue (what the requirements are for something to qualify as a nuisance, especially in the case of air pollution). In Broadbent, a relevant headnote states this: “Nuisance 4: In order to establish a claim for private nuisance, a plaintiff must show the existence of a substantial and unreasonable interference with the use and enjoyment of its property.” This key number will likely lead you to cases that state the elements of a nuisance claim in North Carolina.
After next looking at Causeby, it unfortunately appears to be a dead end, as it does not lead to a headnote specifically with the requirements of an air pollution nuisance. But hold on to this case, since the facts seem like they sort of fit.
Now use the digest (either online or in print) to pull up the topic and key number from Broadbent and note the relevant cases. The goal here is to find cases that best fit the fact pattern. It’d be ideal, obviously, if you found a case with a stinky-bonfire-having-neighbor (though the answer is rarely that simple). Doing this search on Westlaw is helpful because you can do a keyword search within all the cases in a keynumber. So you could pull up all the North Carolina nuisance cases, then search within them for keywords “(fire or smoke) and pollution” and see if you can find any that deal with a similar issue. It’s a long shot, but it takes about five seconds, so why not? As predicted - nothing.
The next thing to do is look at the key number outline to see if there are any others that might cover the issue. The outline is located at the beginning of the Nuisance section in the print digest or on Westlaw. Browse it for other applicable keynumbers. For example, Nuisance 1 “Nature and elements of private nuisance in general” looks likely, as do Nuisance 3 “What constitutes a nuisance in general,” and Nuisance 3(3) “Noise and pollution of atmosphere in general.” Check those sections in the digest and scan all the cases, noting any that look particularly applicable and set them aside.
After browsing all these cases, it seems that the general rule in NC is “To recover from nuisance, plaintiffs must show an unreasonable interference with the use and enjoyment of their property,” Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 553 S.E.2d 431. Reading this, you could tentatively conclude that Bob may have a nuisance claim - Jill’s constantly burning fires on the property line such that Bob’s house stinks of smoke may be seen as an unreasonable interference in Bob’s enjoyment of his property. Of course, you would want to back this up by actually listing examples of cases that were the most similar. You would especially want to focus on what the courts have considered to be reasonable or unreasonable interference with a neighbor’s property, and what tests they use to determine “reasonableness” in this context.
When you settle on the cases you want to use in your memo/brief/paper, you then want to update them using KeyCite or Shepards, to ensure that they are still good law (this might also point you to some other helpful cases you missed, since the results list related cases). Then you draft up your memo, and you’re done!
