RSA 249:1, 2, supra. These considerations however are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character. Kardulas v. Dover, 99 N.H. 359; Shea v. Portsmouth, 98 N.H. 22, 26. See Krzysztalowski v. Fortin, 108 N.H. 187.
"A nuisance arises from the use of property, either actively or passively, in an unreasonable manner." Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953). "Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances."
See id.Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953).State of New Hampshire v. Charpentier, 126 N.H. 56, 62 (1985) (emphasis omitted).
See id.Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953).State of New Hampshire v. Charpentier, 126 N.H. 56, 62 (1985) (emphasis omitted).
But liability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise. See Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902, 906 (1953) ("a nuisance arises from the use of property, either actively or passively, in an unreasonable manner"); Town of Hooksett School District v. W.R. Grace Co., 617 F. Supp. at 133. If the defendants exercised no control over the instrumentality, then a remedy directed against them is of little use. The instrumentality which created the nuisance, in this case, has been in the possession and control of the plaintiff, the City of Manchester, since the time it purchased the products containing asbestos materials.
The creator of the nuisance is responsible in his capacity as a property owner if a nuisance arises from the use of property in an unreasonable manner. Shea v. City of Portsmouth, 98 N.H. 22, 94 A.2d 902 (1953). But, in the instant case, Plaintiff seeks to recover from Defendant not in its capacity as a property owner, but in its capacity as a manufacturer.
Since such uses are commonly privately owned and operated, no purpose to authorize the regulation of governmental activities and uses is reasonably to be implied therefrom. It is established in this jurisdiction that the control of fires is a governmental function (Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194 (1943); Shea v. Portsmouth, 98 N.H. 22, 94 A.2d 902 (1953)), as is the operation and maintenance of public parks and recreational areas. Piasecny v. Manchester, 82 N.H. 458, 136 A. 357 (1926); Harkinson v. Manchester, 90 N.H. 554, 5 A.2d 721 (1939).
See Annot. 40 A.L.R. 2d 1177, 1182. Because of their necessity, indispensability, and contribution to the public welfare and health of the public in general, public dumps do not constitute a nuisance per se (Myers v. Hagerstown, 214 Md. 312, 315), but they may become a nuisance in fact as a result of their location, the manner in which they are operated, or because of other circumstances. Shea v. Portsmouth, 98 N.H. 22, 27; Chicago v. Fritz, 36 Ill. App.2d 457, 467; In re Petition of St. George, 125 Vt. 408, 412; Annot. 52 A.L.R. 2d 1134, 1136. It follows, therefore, that even though the defendant was exercising a public right in performance of a public duty imposed upon it, if its use of its property was unreasonable as against adjoining owners the plaintiffs would be entitled to relief. O'Brien v. Derry, supra; Proulx v. Keene, 102 N.H. 427, 431; Annot. 52 A.L.R. 2d 1134, 1140.
The plaintiff concedes that applying existing law in this jurisdiction the defendant would be entitled to prevail. Reynolds v. Nashua, 93 N.H. 28; Shea v. Portsmouth, 98 N.H. 22; Opinion of the Justices, 101 N.H. 546, 548; Hermer v. Dover, 106 N.H. 534. We are here urged to re-examine existing law and throw off the ancient shackles of governmental immunity prospectively and retrospectively as to the plaintiffs at bar.
One of the questions transferred without ruling is whether the defendant municipality has a valid defense by reason of governmental or municipal immunity for tort. Such immunity has existed heretofore in this jurisdiction. Reynolds v. Nashua, 93 N.H. 28; Shea v. Portsmouth, 98 N.H. 22; Opinion of the Justices, 101 N.H. 546, 548. We are aware, of course, that municipal immunity is on the wane elsewhere, has been subjected to a barrage of criticism and has been abolished in some jurisdictions by judicial decisions having prospective effect.