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title-52•Title 52 — Nuisances
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
Anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.
[52-101, added 1976, ch. 82, sec. 2, p. 271.]
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
[52-102, added 1976, ch. 82, sec. 2, p. 271.]
As used in title 52, Idaho Code, relating to moral nuisances.
(A) "Knowledge" or "knowledge of such nuisance" means having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter, or knowledge of the acts of lewdness, assignation, or prostitution which occur on the premises.
(B) "Lewd matter" is synonymous with "obscene matter" and means any matter:
(1) which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
(2) which depicts or describes patently offensive representations or descriptions of:
(a) ultimate sexual acts, normal or perverted, actual or simulated; or
(b) masturbation, excretory functions, or lewd exhibition of the genitals or genital area.
Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, possesses serious literary, artistic, political or scientific value.
(C) "Lewdness" shall have and include all those meanings which are assigned to it under the common law.
(D) "Matter" means a motion picture film or a publication or both.
(E) "Moral Nuisance" means a nuisance which is injurious to public morals.
(F) "Motion picture film" shall include any:
(1) film or plate negative;
(2) film or plate positive;
(3) film designed to be projected on a screen for exhibition;
(4) films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen.
(5) video tape or any other medium used to electronically reproduce images on a screen.
(G) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.
(H) "Place" includes, but is not limited to, any building, structure or places, or any separate part or portion thereof, whether permanent or not, or the ground itself.
(I) "Publication" shall include any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a coin-operated machine.
(J) "Sale" means a passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer or possession of, lewd matter.
[52-103, added 1976, ch. 82, sec. 2, p. 272.; am. 2026, ch. 262, sec. 2, p. 1113.]
The following are declared to be moral nuisances:
(A) Any and every place in the state where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition;
(B) Any and every place in the state where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition;
(C) Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a moral nuisance under this section;
(D) Any and every place of business in the state in which lewd publications constitute a principal part of the stock in trade;
(E) Any and every lewd publication possessed at a place which is a moral nuisance under this section; and
(F) Every place which, as a regular course of business, is used for the purposes of lewdness, assignation, or prostitution, and every such place in or upon which acts of lewdness, assignation, or prostitution, are held or occur.
[52-104, added 1976, ch. 82, sec. 2, p. 273.]
The following are also declared to be moral nuisances, as personal property used in conducting and maintaining a moral nuisance:
(A) All monies paid as admission price to the exhibition of any lewd film found to be a moral nuisance.
(B) All valuable consideration received for the sale of any lewd publication which is found to be a moral nuisance.
(C) The furniture and movable contents of a place which is a moral nuisance.
From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in section 52-405, Idaho Code, upon the place, or its manager, or acting manager, or person then in charge, all such parties are deemed to have knowledge of the acts, conditions or things which make such place a moral nuisance. Where the circumstantial proof warrants a determination that a person had knowledge of the moral nuisance prior to such service of process, the court shall make such finding.
[52-105, added 1976, ch. 82, sec. 2, p. 273.]
Any building, place, or the ground itself, wherein or whereon gambling or any game of chance for money, checks, credit or other representatives of value is carried on or takes place, or gambling paraphernalia is kept, or any notice, sign or device advertising or indicating the existence or presence of such gambling or any game of chance is displayed or exposed to view, is declared a moral nuisance and shall be enjoined and abated as provided by law.
[52-106, added 1976, ch. 82, sec. 2, p. 274.]
Every nuisance not defined by law as a public nuisance or a moral nuisance, is private.
[52-107, added 1976, ch. 82, sec. 2, p. 274.]
Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.
[52-108, added 1976, ch. 82, sec. 2, p. 274.]
Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property, created by a former owner, is liable therefor in the same manner as the one who first created it.
[52-109, added 1976, ch.82, sec. 2, p. 274.]
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.
[52-110, added 1976, ch. 82, sec. 2, p. 274.]
Anything which is injurious to health or morals, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action. In the case of a moral nuisance, the action may be brought by any resident citizen of the county; in all other cases the action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.
[52-111, added 1976, ch. 82, sec. 2, p. 274.]
No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.
[(52-201) R.S., sec. 3630; reen. R.C. & C.L., sec. 3662; C.S., sec. 6430; I.C.A., sec. 51-201.]
The remedies against a public nuisance are:
Indictment or information;
A civil action; or,
Abatement.
[(52-202) R.S., sec. 3631; compiled R.C. & C.L., sec. 3663; C.S., sec. 6431; I.C.A., sec. 51-202.]
The remedy by indictment or information is regulated by the Penal Code.
[(52-203) R.S., sec. 3632; reen. R.C. & C.L., sec. 3664; C.S., sec. 6432; I.C.A., sec. 51-203.]
A private person may maintain an action:
For a moral nuisance, if he be a resident citizen of the county, whether the nuisance complained of is specially injurious to him or not.
For any other public nuisance, if it is specially injurious to himself.
[(52-204) R.S., sec. 3633; reen. R.C., sec. 3665; am. 1915, ch. 43, sec. 4, p. 125; reen. C.L., sec. 3665; C.S., sec. 6433; I.C.A., sec. 51-204.]
A public nuisance may be abated by any public body or officer authorized thereto by law.
[(52-205) R.S., sec. 3634; reen. R.C. & C.L., sec. 3666; C.S., sec. 6434; I.C.A., sec. 51-205.]
Any person may abate a public nuisance which is specially injurious to him, by removing, or if necessary, destroying, the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.
[(52-206) R.S., sec. 3635; reen. R.C. & C.L., sec. 3667; C.S., sec. 6435; I.C.A., sec. 51-206.]
The remedies against a private nuisance are:
A civil action; or,
Abatement.
[(52-301) R.S., sec. 3640; reen. R.C. & C.L., sec. 3668; C.S., sec. 6436; I.C.A., sec. 51-301.]
A person injured by a private nuisance may abate it by removing, or, if necessary, destroying, the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury.
[(52-302) R.S., sec. 3641; reen. R.C. & C.L., sec. 3669; C.S., sec. 6437; I.C.A., sec. 51-302.]
Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it.
[(52-303) R.S., sec. 3642; reen. R.C. & C.L., sec. 3670; C.S., sec. 6438; I.C.A., sec. 51-303.]
In addition to any other remedy provided by law, any act, occupation, structure or thing which is a moral nuisance, may be abated, and the person doing such act or engaged in such occupation, and the owner and agent of the owner of any such structure or thing may be enjoined, as in this chapter provided.
[(52-401) 1976, ch. 82, sec. 4, p. 275.]
The attorney general, prosecuting attorney, or any private resident citizen of the county may maintain an action of an equitable nature, as relator, in the name of the state of Idaho, to abate a moral nuisance, perpetually to enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a moral nuisance.
If such action is instituted by a private person, the complainant shall execute a bond prior to the issuance of a restraining order or a temporary injunction, with good and sufficient surety to be approved by the court or clerk thereof, in the sum of not less than five hundred dollars ($500), to secure to the party enjoined the damages he may sustain if such action is wrongfully brought, not prosecuted to final judgment, or is dismissed, or is not maintained, or if it is finally decided that the restraining order or temporary injunction ought not to have been granted. The party enjoined shall have recourse against said bond for all damages suffered, including damages to his property, person, or character and including reasonable attorney’s fees incurred by him in making defense to said action. No bond shall be required of the prosecuting attorney or the attorney general, and no action shall be maintained against the public official for his official action when brought in good faith.
[52-402, added 1976, ch. 82, sec. 4, p. 275.]
The action, provided for in this chapter, shall be brought in any court of competent jurisdiction in the county in which the property is located. Such action shall be commenced by the filing of a verified complaint alleging the facts constituting the nuisance. After the filing of said complaint, application for a temporary injunction may be made to the court in which the action is filed, or to a judge thereof, who shall grant a hearing within ten (10) days after the filing.
[52-403, added 1976, ch. 82, sec. 4, p. 275.]
Where such application for a temporary injunction is made, the court may, on application of the complainant showing good cause, issue an ex parte restraining order, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist, until the decision of the court or judge granting or refusing such temporary injunction and until the further order of the court thereon, except that, pending such decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions thereafter may be required.
The restraining order may be served by handing to and leaving a copy of such order with any person in charge of such place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by both such delivery and posting. The officer serving such restraining order shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance.
Any violation of such restraining order is a contempt of court, and where such order is posted, mutilation or removal thereof, while the same remains in force, is a contempt of court, provided such posted order contains therein a notice to that effect.
[52-404, added 1976, ch. 82, sec. 4, p. 276.]
A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendant at least five (5) days before such hearing. The place may also be served by posting such papers in the same manner as is provided for in section 52-404, Idaho Code, in the case of a restraining order. If the hearing is then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course.
Before or after the commencement of the hearing of an application for a temporary injunction, the court, on application of either of the parties or on its own motion, may order the trial of the action on the merits to be advanced and consolidated with the hearing on the application for the temporary injunction. Any evidence received upon an application for a temporary injunction which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated as to such parties at the trial on the merits.
[52-405, added 1976, ch. 82, sec. 4, p. 276.]
If upon hearing, the allegations of the complaint are sustained by clear and convincing evidence that a moral nuisance exists and is likely to continue in the absence of injunctive relief, the court shall issue a temporary injunction, without additional bond, restraining the defendant and any other person from continuing the nuisance.
If at the time the temporary injunction is granted, it further appears that the person owning, in control, or in charge of the nuisance so enjoined had received five (5) days’ notice of the hearing, then the court shall declare a temporary forfeiture of the use of the real property upon which such public nuisance is located and the personal property located therein and shall forthwith issue an order closing such place against its use for any purpose until final decision is rendered on the application for a permanent injunction, unless:
(1) the nuisance complained of has been abated by such person, or
(2) the owner of such property, as a "good faith" lessor, has taken action to void said lease as is authorized by section 52-414, Idaho Code.
Such order shall also continue in effect for such further period the order, authorized in section 52-404, Idaho Code, restraining the removal of personal property or, if not so issued, shall include such an order restraining for such period the removal or interference with the personal property and contents located therein. Such restraining order shall be served and the inventory of such property shall be made and filed as provided for in section 52-404, Idaho Code.
Such order shall also require such persons to show cause within thirty (30) days why such closing order should not be made permanent, as provided for in section 52-412, Idaho Code.
[52-406, added 1976, ch. 82, sec. 4, p. 277; am. 1982, ch. 271, sec. 1, p. 702.]
The owner of any real or personal property to be closed or restrained, or which has been closed or restrained, may appear between the filing of the complaint and the hearing on the application for a permanent injunction, and upon payment of all cost incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept, until the decision of the court is rendered on the application for a permanent injunction, then the court, if satisfied of the good faith of the owner of the real property and of the innocence on the part of any owner of the personal property of any knowledge of the use of such personal property as a nuisance and that, with reasonable care and diligence, such owner could not have known thereof shall, at the time of the hearing on the application for the temporary injunction, refrain from issuing any order closing such real property or restraining the removal or interference with such personal property, and, if such temporary injunction has already been issued, shall discharge said order and shall deliver such real or personal property, or both, to the respective owners thereof. The release of any real or personal property, under this section, shall not release it from any judgment, lien, penalty, or liability to which it may be subjected.
[52-407, added 1976, ch. 82, sec. 4, p. 277.]
The action provided for in this chapter shall be set down for trial within ninety (90) days and shall have precedence over all other cases except crimes, election contests, or injunctions.
[52-408, added 1976, ch. 82, sec. 4, p. 278; am. 1982, ch. 271, sec. 2, p. 703.]
In such action, an admission or finding of guilty of any person under the criminal laws against lewdness, prostitution, or assignation at any such place, is admissible for the purpose of proving the existence of said nuisance, and is prima facie evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining said nuisance.
[52-409, added 1976, ch. 82, sec. 4, p. 278.]
At all hearings upon the merits, evidence of the general reputation of the building or place constituting the alleged nuisance, of the inmates thereof, and of those resorting thereto, is admissible for the purpose of proving the existence of such nuisance.
[52-410, added 1976, ch. 82, sec. 4, p. 278.]
If the action is brought by a private person and the court finds that there were no reasonable grounds or probable cause for bringing said action, and the case is dismissed for that reason before trial, or if the action is dismissed for want of prosecution, the costs may be taxed to such person.
If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere, and the entire expenses of such abatement, including attorney’s fees, shall be recoverable by plaintiff as a part of his costs of the lawsuit.
If the complaint is filed by a private person, it shall not be voluntarily dismissed except upon a sworn statement by the complainant and his attorney, setting forth the reason why the action should be dismissed and the dismissal approved by the prosecuting attorney in writing or in open court. If the judge is of the opinion that the action ought not to be dismissed, he may direct the prosecuting attorney to prosecute said action to judgment at the expense of the county, and if the action is continued more than one (1) term of court, any person who is a citizen of the county, or has an office therein, or the attorney general or the prosecuting attorney, may be substituted for the complainant and prosecute said action to judgment.
[52-411, added 1976, ch. 82, sec. 4, p. 279.]
If the existence of a nuisance is admitted or established in an action as provided for in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance, and not already released under authority of the court, as provided for in sections 52-406 and 52-407, Idaho Code, and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution. Lewd matter shall be destroyed and not be sold.
Such order shall also require the renewal for one (1) year of any bond furnished by the owner of the real property, as provided in section 52-407, Idaho Code, or, if not so furnished, shall continue for one (1) year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose, and keeping it closed for a period of one (1) year unless sooner released.
The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided in section 52-407, Idaho Code.
Owners of unsold personal property and contents so seized must appear and claim the same within ten (10) days after such order of abatement is made, and prove innocence, to the satisfaction of the court, of any knowledge of said use thereof, and that with reasonable care and diligence they could not have known thereof. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section. For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the court.
[52-412, added 1976, ch. 82, sec. 4, p. 279.]
In case of the violation of any injunction or closing order, granted under this chapter, or of a restraining order or the commission of any contempt of court in proceedings under this chapter, the court may summarily try and punish the offender. The trial may be had upon affidavits or either party may demand the production and oral examination of the witnesses.
[52-413, added 1976, ch. 82, sec. 4, p. 280.]
If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of lewdness, assignation, or prostitution, such use makes void the lease or other title under which he holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert and vest in such owner, who may without process of law make immediate entry upon the premises.
[52-414, added 1976, ch. 82, sec. 4, p. 280.]
Lewd matter is contraband, and there are no property rights therein. All personal property declared to be a moral nuisance in section 52-104, Idaho Code, and all monies and other considerations declared to be a moral nuisance under section 52-105, Idaho Code, are the subject of forfeiture to the local government and are recoverable as damages in the county wherein such matter is sold, exhibited or otherwise used. Such monies may be traced to and shall be recoverable from persons who, under section 52-405, Idaho Code, have knowledge of the nuisance at the time such monies are received by them.
Upon judgment against the defendants in legal proceedings brought pursuant to this chapter, an accounting shall be made by such defendant or defendants of all monies received by them which have been declared to be a public nuisance under this section. An amount equal to the sum of all monies estimated to have been taken in as gross income from such unlawful commercial activity shall be forfeited to the general funds of the city and county governments wherein such matter is sold or exhibited, to be shared equally, as a forfeiture of the fruits of an unlawful enterprise, and as partial restitution for damages done to the public welfare, public health and public morals.
Where the action is brought pursuant to this chapter, special injury need not be proven, and the costs of abatement are a lien on both the real and personal property used in maintaining the nuisance. Costs of abatement include, but are not limited to the following:
(1) investigative costs.
(2) court costs.
(3) reasonable attorney’s fees arising out of the preparation for, and trial of the cause, and appeals therefrom, and other costs allowed on appeal.
(4) printing costs of trial and appellate briefs, and all other papers filed in such proceedings.
[52-415, added 1976, ch. 82, sec. 4, p. 280.]
The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment, provided that such projectionist, usher, or ticket taker: (1) has no financial interest in the place wherein he is so employed, and (2) freely and willingly gives testimony regarding such employment in any judicial proceedings brought under this chapter, including pre-trial discovery proceedings incident thereto, when and if such is requested, and upon being granted immunity by the trial judge sitting in such matters.
[52-416, added 1976, ch. 82, sec. 4, p. 281.]
If any section, subsection, sentence, or clause of this act is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portion of this act. It is hereby declared that this act would have been passed, and each section, sentence, or clause thereof, irrespective of the fact that any one or more sections, subsections, sentences or clauses might be adjudged to be unconstitutional, or for any other reason invalid.
[52-417, added 1976, ch. 82, sec. 4, p. 281.]
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