§ 29.01 “An Impenetrable Jungle”? [468-469]

 

The common law divided nuisances into two categories: private nuisance and public nuisance.  Most of the law in the field deals primarily with the private nuisance.  The modern law governing private nuisances is both complex and confusing.  The two key issues are: (1) what constitutes a nuisance? and (2) what is the appropriate remedy?

 

§ 29.02 What Is a Private Nuisance? [469-471]

 

The Restatement (Second) of Torts defines a private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”  This definition is overbroad, however, because not all such invasions are private nuisances.  The traditional distinction between nuisance and trespass hinges on the nature of the intrusion.  If there is a physical entry onto the land of another, the case is evaluated as a potential trespass.  However, cases involving fumes, smoke, light or other nontrespassory conduct are governed by nuisance principles.

 

§ 29.03 Evolution of Nuisance Law [471-472]

 

As it evolved in early England, only one key factor was considered to determine if private nuisance liability existed: the gravity of harm to the landowner or occupant.  A nuisance occurred when one person used his land in a nontrespassory manner that caused substantial harm to another’s use and enjoyment of his land.  American courts began moving away from this standard in the nineteenth century, finding that only an unreasonable land use was a nuisance. 

 

§ 29.04 Elements of Private Nuisance [472-477]

 

                        [A]       Intentional Interference

 

As the Restatement (Second) of Torts provides, a person’s harmful conduct is deemed intentional if either (1) he acts for the purpose of causing the harm or (2) he knows that the harm is resulting or substantially certain to result from his conduct.

 

                        [B]       Nontrespassory Interference

 

As noted above, the harmful conduct must be nontrespassory.

 

                        [C]       Unreasonable Interference

 

States vary widely on what constitutes unreasonable interference.  Some equate unreasonableness with serious injury to the plaintiff; others use a multi-factor test including such items as the character of the neighborhood, the nature of the conduct, its proximity to the plaintiff’s land, its frequency and duration, etc.  Under the Restatement (Second) of Torts approach, adopted in about one-third of the states, interference is unreasonable if the gravity of the harm outweighs the utility of the defendant’s conduct.

 

                        [D]       Substantial Interference

 

Slight inconveniences or petty annoyances do not give rise to nuisance liability.  But if a normal person living in the community would regard the interference as strongly offensive or seriously annoying, then the level of interference is substantial.

 

                        [E]       Interference with Use and Enjoyment of Land

 

Nuisance liability arises only from interference with the interests of an owner, tenant, or other land occupant in the use and enjoyment of land (e.g., if fumes from defendant’s factory destroy plaintiff’s apple orchard).

 

§ 29.05 Defenses to Liability for Private Nuisance [477-478]

 

At one time, many courts recognized a defense called coming to the nuisance; plaintiff who moved into the area after the offending conduct began was not entitled to recover. Today almost all courts reject this defense.  However, a number of other defenses (e.g., laches, statute of limitations) may apply.

 

§ 29.06 Remedies for Private Nuisance [478-482]

 

                        [A]       Injunction

 

The traditional remedy in private nuisance cases was an injunction against the offending conduct.  However, in almost all jurisdictions today, the plaintiff no longer has an automatic right to this remedy.  Instead, the court will use a balancing test (called balancing the equities) to determine if an injunction is appropriate on the facts of the particular case.  In general, a court will issue an injunction only if the resulting benefit to the plaintiff is greater that the resulting damage to the defendant.  See, e.g., Boomer v. Atlantic Cement Co., 309 N.Y.S.2d 312 (N.Y. 1970).

 

                        [B]       Damages

 

If the nuisance is deemed permanent, the plaintiff receives damages for past and future harm in one lawsuit.  Damages are measured by the extent to which the nuisance diminishes the fair market value of the affected property.  However, if the nuisance is temporary or continuing, the plaintiff only receives damages to compensate for past harm (usually measured by diminished rental value or use value), and must sue again in the future as additional damages are suffered.

 

§ 29.07 Public Nuisance [482-483]

 

A public nuisance is “an unreasonable interference with a right common to the general public.”  Restatement (Second) of Torts, § 821B(1).  Almost any intentional conduct that unreasonably interferes with the public health, safety, welfare, or morals may constitute a public nuisance.  Examples include keeping diseased cattle, detonating explosives on a residential street, and operating an unlicensed casino.  Usually a public nuisance action is brought by a city or other governmental entity.  A private party may sue only if he has suffered special injury.

 

§ 29.08 Special Problem: Landowner Liability for Hazardous Substance Contamination [483-484]

 

Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675, four categories of persons are strictly liable for the cleanup of hazardous substances on land: (1) the current owner or “operator” of the land; (2) the persons who were owners or operators at time of disposal; (3) persons who arranged for disposal or treatment; and (4) persons who transported the substances to the land.  However, under narrow circumstances an owner may qualify for the innocent buyer or innocent landowner defense.