Land Use Controls: Nuisance

R2d Torts §812D. Public Nuisance.

(1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

Nuisance

- an interference with the owner's use and enjoyment of land - a *substantial interference* with use and enjoyment is required - an intentional nuisance considers the reasonableness of the harm - can be intentional or unintentional

Trespass

- involves a physical invasion of land; an invasion of a landowner's interest in exclusive possession (invasion of vibrations, noise or light, smells) - may be easier to prove because an intentional trespass is actionable even if no substantial interference results - can be intentional or unintentional

Lateral Support (support from adjacent land)

A landowner is strictly liable for changes to her land which withdraw lateral support from her neighbor and causes her neighbor's land to slip or fall in. This includes a duty to maintain a retaining wall once constructed. BUT strict liability does not extend to subsidence caused by withdrawal of fluids (i.e. groundwater) or their release and does not extend to a house (so if your house moved because your neighbor has been digging); negligence would have to be shown. Only get damages as a remedy because you can repair it.

R2d Torts: §821D. Private Nuisance Defined.

A private nuisance is a nontrespassory invasion [typically an intangible invasion] of another's interest in the private use and enjoyment of land.

R2d Torts §826. Private Nuisance; Unreasonableness.

An intentional invasion of another's interest in the use of land is *unreasonable* if (a) the *gravity of the harm* outweighs the *utility* of the actor's conduct, OR (b) the harm caused by the conduct is serious and the financial burden of the compensating for this and similar harm to others would not make the continuation of the conduct not feasible

Common Law Public Nuisance

Came to cover a large group of minor criminal offenses, all of which involved some interference with the interests of the community at large. Public nuisances included interference with the public health, as in the case of keeping diseased animals or the maintenance of a pond breeding malarial mosquitoes.

Estancias Dalls Corp v. Schultz (old couples lives next to apartment complex with a huge new air conditioner that is really loud)

Damages. Factors: 1) Is it a substantial interference (see #2)? 2) Is it an intentional (did D know it would bother people) private nuisance and was it unreasonable (utility balancing test)? YES to all of the above. Remedies: Court wouldn't make an injunction because the cost of reducing the noise is between 100-200 thousand, which is more than the cost of P's property.

Morgan v High Penn Oil (Morgans owned 9 acres of land and operated a restaurant and rented 32 trailer homes on the property. High Penn emitted nauseating gases for a few hours 2-3 days a week)

For Morgan - $2,500 in damages and enjoined High Penn from continuing the nuisance. The evidence shows that High Penn *intentionally* and *unreasonably* caused noxious odors that *substantially impaired* the Morgan's use of their land. Because there was evidence High Penn intended to continue the same conduct, an injunction was appropriate. (1) A nuisance is "any substantial nontrespassory invasion of another's interest in the use of his land." (2) If intentional, there is liability if the conduct is unreasonable. It is intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. (3) If unintentional, there is liability if the conduct is (a) negligent; (b) reckless; or (c) ultra hazardous.

R2d Torts §828. Private Nuisance; Utility of Defendant's Conduct which harms Plaintiff.

In determining the *utility* of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) the social value of the primary purposes of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing the invasion

R2d Torts §827. Private Nuisance; Gravity of Harm to Plaintiff's Use and Enjoyment.

In determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) the extent of the harm; (b) the character of the harm; (c) the social value of the type of use invaded; (d) the suitability of the use invaded to the character of the locality; and (e) the burden on the person harmed of avoiding the harm

R2d Torts §821C. Who Can Recover for a Public Nuisance.

In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

Boomer v. Atlantic Cement Co (cement plant is a nuisance to homeowners living near it due to the sound and dust)

Injunction. - No damages because it is hard to give damages of perpetuity (the plant may close down tomorrow) - The court does something weird: grants an injunction, but places it 5 years down the road - D must improve its technical abilities to make less sound and dust. Dissent: now D has no economic incentive to put in scrubbers and other things because they are essentially buying the right to be a nuisance.

Spur Industries v. Del E Webb Development ("Coming to the nuisance" case - AZ statute says "any condition or place in populous areas which constitutes a breeding place for flies, rodents, mosquitoes, and other insects which are capable of carrying and transmitting disease-causing organisms to any person or persons")

Inunction. Indemnification: where a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction for a nuisance against a lawful business without adequate legal relief, it should indemnify the defendant for the rinsable costs of moving or shutting down. P got screwed, basically.

Is pesticide drift over an organic farmer's farm a trespass or nuisance?

NOT trespass because pesticide drift does not interfere with the exclusive right of possession BUT it may constitute as a nuisance if plaintiff could show damages

Are light and air nuisances?

No - blocking light from one's property is not typically classified as a nuisance (except where solar panels are affected). Excessive light may constitute a nuisance but not if the interference depends on the plaintiff's abnormal sensitivity.

Do stigma damages constitute nuisances?

No - i.e. fall in property damages through untrue rumors about contaminated groundwater from nearby toxic waste dump or apprehension about criminal activity from neighborhood Detox facility DO NOT constitute as nuisances even if causing depressed property values. INSTEAD, the general rule is that some kind of *actual physical injury* to property's use must have been sustained to constitute a nuisance.

Spite Fences

Nuisance liability will be found where a landowner builds a structure for no use whatsoever other than to vex a neighbor - no social utility.

R2d Torts §822. Private Nuisance; General Rule.

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and negligent or reckless or for abnormally dangerous conditions or activities THUS to be actionable, the invasion must be *substantial* and the conduct causing it must be either (a) intentional and unreasonable; or (b) the unintentional result of negligent, reckless, or abnormally dangerous activities

Subjacent Support (support from underlying strata - usually involves one owner of mineral interest and another of the surface)

STRICT LIABILITY for removing subjacent support to land and buildings (here you can sue for the movement of your house) BUT no strict liability for damages to springs and wells, which is when negligence would have to be shown. SD owns all mineral rights.

Aesthetic Nuisance

Tasteless decoration is merely an aesthetic annoyance i.e. where neighbors mounted toilet seats in their yard. Unsightliness alone is not a nuisance.

Difference between nuisance and trespass

The law of nuisance deals with indirect or intangible interference with an owner's use and enjoyment of land, while trespass deals with direct and tangible interferences with the right to exclusive possession of land. - offer different statutes of limitations and remedies

History of Public Nuisance

Was originally an infringement of the rights of the Crown. The remedy remained exclusively a criminal one in the hands of the Crown until the sixteenth century, when it was first held that a private individual who had suffered particular damage differing from that sustained by the public at large might have a tort action to recover damages for the invasion of the public right.

Modern-day Private Nuisances

interferences in the use/enjoyment of land from air/water pollution, noise, odors, vibrations, flooding, excessive light - these are all intentional so the question becomes whether the conduct giving rise to the invasion was *unreasonable*