McEvers, Justice.
[¶ 1] David and Virginia Ceynar appeal from a summary judgment dismissing their breach of contract/covenant and nuisance action against Lonnie Barth and The Ridge at Hawktree Homeowners' Association. Because the district court did not err in ruling that the Association's restrictive
[¶ 2] The Ceynars and Barth are neighbors at The Ridge at Hawktree, a Bismarck subdivision near a golf course, and are members of the Association. Before the Ceynars purchased their home, Barth approached the Association with plans to build what the parties refer to as a "pool house" on his property. Based on the Association's restrictive covenants, the Association's Architectural Committee informed Barth that detached buildings were not permitted. Barth then proposed construction of a breezeway connecting the pool house to Barth's home. The Committee approved the final plans in January 2014. The plans for the addition were then submitted to the City of Bismarck, which approved the plans and issued a building permit.
[¶ 3] The Ceynars bought the house next door to Barth's property from their daughter in June 2014. Actual construction of the pool house began in February 2015, and the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club. Members of the Association came to the Ceynars' home to observe how the pool house affected their property, but the Association took no action to stop construction.
[¶ 4] In July 2015, the Ceynars brought this action against Barth and the Association alleging breach of contract/covenant and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. After Barth remedied a setback violation, he and the Association moved for summary judgment dismissing the action. In October 2016, the district court denied the motion, concluding there were "a number of genuine issues of material fact" precluding summary judgment. The court also informed the parties that he would recuse himself from the case if any of the parties objected because he knew the Association's secretary. Barth moved for reconsideration, and Barth and the Association requested the judge recuse himself. A different judge was assigned to the case.
[¶ 5] In December 2016, Barth and the Association filed another summary judgment motion seeking dismissal of the action. The district court granted the motion, concluding the pool house did not violate any of the Association's restrictive covenants. The court also dismissed the nuisance claim because under N.D.C.C. § 42-01-01 "[a] nuisance consists in unlawfully doing an act or omitting to perform a duty," and the "Ceynars have provided nothing to the Court to suggest Barth's construction of the pool house was unlawful."
[¶ 6] The Ceynars argue the district court erred in granting the second motion for summary judgment because it was an impermissible collateral attack on the first judge's order denying summary judgment. The Ceynars argue the second motion for summary judgment should have been treated as a N.D.R.Civ.P. 60(b) motion because it asked the district court to reconsider the same question.
[¶ 7] Ceynar's reliance on N.D.R.Civ.P. 60(b) is misplaced. Rule 60(b) does not apply to interlocutory judgments and orders. Thompson v. Goetz, 455 N.W.2d 580, 585 (N.D. 1990). "Interlocutory orders of any kind are ordinarily subject to reconsideration and change without
[¶ 8] The district court's consideration of the second motion for summary judgment was not the result of an improper collateral attack.
[¶ 9] The Ceynars argue the district court erred in granting summary judgment dismissing their breach of contract/covenant and nuisance claims.
[¶ 10] In Hokanson v. Zeigler, 2017 ND 197, 900 N.W.2d 48, we explained:
Id. at ¶ 14 (quoting Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, ¶ 8, 816 N.W.2d 31).
[¶ 11] The Ceynars argue the district court erred in granting summary judgment because there are genuine issues of material fact whether the Association's restrictive covenants prohibited Barth's construction of the pool house and whether the Association breached its duty to enforce those covenants.
[¶ 12] In Hill v. Lindner, 2009 ND 132, ¶ 8, 769 N.W.2d 427, we explained:
See also Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, ¶ 8, 821 N.W.2d 746 (comparing restrictive covenants to zoning ordinances as tools to restrict the use of real property).
[¶ 13] The Ceynars argue Barth's pool house violated Article VIII, Section 4 of the Association's restrictive covenants, which provides:
[¶ 14] We agree with the district court that this covenant relates to construction activities rather than the finished product. The covenant addresses "rubbish or debris" and "odors or loud noises" as a "nuisance," but exempts "[n]ormal construction activities." Even if the "[n]o other nuisance" language could be construed to encompass matters other than rubbish, debris, odors, or loud noises, the Committee is given the authority to decide in its "sole discretion" whether a nuisance exists for purposes of this covenant. The Association approved Barth's construction plans and found no nuisance exists. There is no genuine issue of material fact whether this covenant was violated.
[¶ 15] The Ceynars' primary argument regarding the restrictive covenants is that
[¶ 16] This Court has not addressed implied restrictive covenants, but they are not favored by the courts. See, e.g., Hill v. Cmty. of Damien of Molokai, 121 N.M. 353, 911 P.2d 861, 865-66 (N.M. 1996) ("we will not read restrictions on the use and enjoyment of the land into the covenant by implication"); Stevens v. Elk Run Homeowners' Ass'n, Inc., 90 P.3d 1162, 1166 (Wyo. 2004) ("In general, restrictions upon the use of land are not favored and, accordingly, such restrictions will not be extended by implication."). Even if we were to recognize implied restrictive covenants, the Nebraska Supreme Court in Skyline Woods Homeowners Ass'n, Inc. v. Broekemeier, 276 Neb. 792, 758 N.W.2d 376, 387 (2008) (footnotes omitted), explained:
[¶ 17] The Ceynars point to no evidence that these vague statements have anything to do with the plans of the grantor of the land, and they do not allege that Barth had any type of knowledge of the "open prairie look" and the "overall theme of the community." Furthermore, the concept of implied restrictive covenants, particularly involving the ambiguous standards alleged by the Ceynars here, runs counter to our caselaw stating covenants will be given effect only "`when clearly established.'" Wheeler, 2012 ND 201, ¶ 13, 821 N.W.2d 746 (quoting Hill v. Lindner, 2009 ND 132, ¶ 8, 769 N.W.2d 427). The district court did not err in refusing to imply restrictive covenants in this case.
[¶ 18] We conclude the district court did not err in granting summary judgment dismissing the Ceynars' claims based on the restrictive covenants. Consequently, it is not necessary to address the breach of any contractual obligation the Association allegedly owed to the Ceynars to enforce the covenants.
[¶ 19] The Ceynars argue the district court erred in granting summary judgment dismissing their statutory private nuisance claim against Barth.
[¶ 20] Section 42-01-01, N.D.C.C., defines a nuisance for purposes relevant to this case as follows:
"A private nuisance is one which affects a single individual or a determinative number of persons in the enjoyment of some private right not common to the public." N.D.C.C. § 42-01-02. Whether a statutory nuisance exists is a mixed question of fact and law. See, e.g., Kappenman v. Klipfel, 2009 ND 89, ¶ 36, 765 N.W.2d 716; City of Fargo v. Salsman, 2009 ND 15, ¶ 9, 760 N.W.2d 123.
[¶ 21] In opposition to the motion for summary judgment, Virginia Ceynar submitted an affidavit stating in part:
The Ceynars presented an appraisal of their property indicating the obstructed view caused by the pool house lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house demonstrating their obstructed view.
[¶ 22] The district court dismissed the statutory nuisance claim, reasoning:
[¶ 23] The Ceynars argue the district court erred in granting summary judgment because it failed to engage in the balancing test set forth in Rassier v. Houim, 488 N.W.2d 635 (N.D. 1992). In Rassier, we said in assessing a statutory nuisance claim the court must determine "whether the defendant created a condition which unreasonably interfered with plaintiff's use of property." Id. at 638. The coming-to-the-nuisance doctrine is one of the factors considered in determining whether the nuisance exists. Id. We also said:
Id. See also Jerry Harmon Motors, Inc., v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 431-32 (N.D. 1983) (recognizing the applicability of the coming to the nuisance doctrine to a nuisance claim under N.D.C.C. § 42-01-01). The Ceynars argue there are genuine issues of material fact regarding these various factors.
[¶ 24] We agree that the court improperly focused solely on the absence of evidence that construction of the pool house was "unlawful." We have rejected the proposition that "only a violation of a statute or regulation will constitute breach of a duty which gives rise to an action based upon nuisance." Knoff v. Am. Crystal Sugar Co., 380 N.W.2d 313, 318 (N.D. 1986); see also Kappenman, 2009 ND 89, ¶ 38, 765 N.W.2d 716; Rassier, 488 N.W.2d at 638. Nevertheless, we will not set aside a district court's decision simply because the court applied an incorrect reason, if the result is the same under the correct law and reasoning. See Myers v. State, 2017 ND 66, ¶ 10, 891 N.W.2d 724; Trosen v. Trosen, 2014 ND 7, ¶ 28, 841 N.W.3d 687.
[¶ 25] The essence of the Ceynars' nuisance claim is that Barth's pool house obstructs their view of the "open prairie look" in the subdivision. This Court "has allowed landowners compensation for loss of the right of view from their property" in a condemnation action. Filler v. City of Minot, 281 N.W.2d 237, 244 (N.D. 1979); see also City of Fargo v. Fahrlander, 199 N.W.2d 30, 34 (N.D. 1972); Kenner v. City of Minot, 98 N.W.2d 901, 907 (N.D. 1959); Cummings v. City of Minot, 67 N.D. 214, 220-21, 271 N.W. 421, 423-24 (1937); N.D.C.C. § 24-01-32. However, we have not addressed whether landowners' views from their property are protected under nuisance principles.
[¶ 26] In J. Hand & J. Smith, Neighboring Property Owners § 5:6 (November 2017), the authors describe the general rule and discuss nuisance cases in California from which our nuisance statute was derived:
(Footnotes omitted.) See also Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357, 359 (Fla. Ct. App. 1959) ("it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action ... even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state"); Mohr v. Midas Realty Corp., 431 N.W.2d 380, 383 (Iowa 1988) ("we find no compelling reason to recognize an enforceable right of view over private property"); 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 578 (Mo. Ct. App. 1992) ("absent a statute or contract to the contrary, the obstruction of a landowner's view is not actionable"); Kruger v. Shramek, 5 Neb.App. 802, 565 N.W.2d 742, 747 (1997) ("a lawful building or structure cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property"); 4 R. Powell & M. Wolf, Powell on Real Property § 34.11[5] (2000) ("In all jurisdictions, easements of light, air, and view may be created by express grant."); 1 Am. Jur.2d Adjoining Landowners § 100 (2016) ("A useful building or other structure... is not to be deemed a nuisance merely for the reason that it may injure adjoining property by cutting off the view from it.") (footnote omitted); 2 C.J.S. Adjoining Landowners § 26 (2013) ("a landowner has no natural right to an unobstructed view regardless of the extent to which this may contribute to the enjoyment of the estate") (footnote omitted).
[¶ 27] The practical necessity for the general rule was cogently explained in Mohr, 431 N.W.2d at 382-83:
[¶ 28] We adopt the general rule. We have concluded that the district court did not err in ruling the Association's restrictive covenants were not violated by Barth's construction of the pool house. The Association approved Barth's construction plans, and Barth received a building permit from the relevant local governmental authorities. The Ceynars point to nothing in the record establishing a contractual easement for an unobstructed view from their property. Because the Ceynars have no cognizable right to an unobstructed view from their property, Barth's construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars' use and enjoyment of their property. Therefore, the district court was not required to engage in balancing the Rassier factors.
[¶ 29] We conclude the district court did not err in granting summary judgment dismissing the Ceynars' statutory nuisance claim.
[¶ 30] We do not address other arguments raised because they either are unnecessary to the decision or are without merit. The summary judgment is affirmed.
[¶ 31] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
