In a somewhat surprising but ultimately understandable case, the Montana Supreme Court held that bird feeding could constitute a nuisance that causes substantial and unreasonable harm to a neighboring owner. Simpkins v. Speck, 443 P.3d 428 (Mont. 2019).
In this case, the defendant planted trees and shrubs designed to attract birds and hung multiple bird feeders and also seeded the ground. The birds often congregated on a power line running along the boundary with the plaintiff’s land as well as trees on plaintiff’s property. “Plaintiffs regularly found bird excrement on their property and on vehicles parked in their driveway, endured bird calls from dawn to dusk, and discovered feathers, dismembered birds, and bird carcasses in their yard.” While defendant tried to avoid or mitigate the harm by putting the bird feeders in the center of her land, this was not sufficient to avoid the harms.
The Montana Supreme Court affirmed the trial court’s findings that the bird feeding in this case did amount to a nuisance because the harm suffered by plaintiff was not something an owner should have to bear despite the lawful nature of the defendant’s activity.
The state supreme court did find the injunction awarded by trial court to be overly broad since most of the harm could have been avoided by stopping the ground feeding. The court remanded for the trial court to do a better job of defining what bird feeding activities could be undertaken without causing undue harm to the plaintiff’s use and enjoyment of the plaintiff’s property.