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It has been suggested that Locally unwanted land use be merged into this article or section. (Discuss) |
For the 1921 film, see The Nuisance.
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| Tort law |
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| Part of the common law series |
| Intentional torts |
| Assault · Battery · False imprisonment |
| Intentional infliction of emotional distress (IIED) |
| Consent · Necessity · Self defense |
| Property torts |
| Trespass · Conversion |
| Detinue · Replevin · Trover |
| Dignitary torts |
| Defamation · Invasion of privacy |
| Breach of confidence · Abuse of process |
| Malicious prosecution |
| Alienation of affections |
| Economic torts |
| Fraud · Tortious interference |
| Conspiracy · Restraint of trade |
| Nuisance |
| Public nuisance · Rylands v. Fletcher |
| Negligence |
| Duty of care · Standard of care |
| Proximate cause · Res ipsa loquitur |
| Calculus of negligence |
| Rescue doctrine · Duty to rescue |
| Specific kinds of negligence |
| Negligent infliction of emotional distress (NIED) |
| In employment · Entrustment |
| Malpractice |
| Duty to visitors |
| Trespassers · Licensees · Invitees |
| Attractive nuisance |
| Strict liability torts |
| Product liability · Ultrahazardous activity |
| Liability, defences, remedies |
| Comparative and contributory negligence |
| Last clear chance · Eggshell skull |
| Vicarious liability · Volenti non fit injuria |
| Ex turpi causa non oritur actio |
| Damages · Injunction |
| Common law |
| Contract law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
Nuisance is a common law tort. It is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the right of quiet enjoyment is being disrupted to such a degree that a tort is being committed.
Traditionally, nuisance is divided into public nuisance, interference with the reasonable expectations and rights of the general public (ie, society), and private nuisance, the interference with the right of specific people.
Contents |
Under the common law, persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.
To be a nuisance, the level of interference must rise above the merely aesthetic. For example, if your neighbour paints their house purple, it may offend you, but it does not rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.
Nuisances come in two forms: private and public.
A public nuisance is an unreasonable interference with the public\'s right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute or by the nature of the act, including how long and how bad the effects of the activity may be.Restatement (Second) of Torts § 821B
A private nuisance is simply a violation of one\'s use of quiet enjoyment of land. It does not include trespass.Restatement (Second) of Torts § 821D
Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits.
In the late 19th and early 20th centuries, the law of nuisance became difficult to administer as competing property uses often posed a nuisance to each other and the cost of litigation to settle the issue grew prohibitive. As such, most jurisdictions now have a system of land use planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning generally overrules nuisance. For example, if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone cannot make a claim in nuisance. Jurisdictions without zoning laws, essentially leave land use to be determined by the laws concerning nuisance.
Similarly modern environmental laws are an adaptation of the doctrine of nuisance to modern complex societies in which a person\'s use of his property may harmfully affect another\'s property or person far from the nuisance activity and from causes not easily integrated into historic understandings of nuisance law.
Under the common law, the only remedy for a nuisance was the payment of damages. However, with the development of the courts of equity, the remedy of an injunction became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt if the defendant is in breach of such an injunction.
The law and economics movement has been involved in analyzing the most efficient choice of remedies given the circumstances of the nuisance. In Boomer v. Atlantic Cement Co. a cement plant interfered with a number of neighbors, yet the cost of complying with a full injunction would have been far more than a fair value of the cost to the plaintiffs of continuation. The New York court allowed the cement plant owner to \'purchase\' the injunction for a specified amount--the permanent damages. In theory, the permanent damage amount should be the net present value of all future damages suffered by the plaintiff.
The boundaries of the tort are potentially unclear due to the public/private nuisance divide and existence of the rule in Rylands v Fletcher. Writers such as John Murphy of the University of Manchester have popularised the idea that Rylands forms a separate, though related tort. This is still an issue for debate and is rejected by others (the primary distinction in Rylands concerns \'escapes onto land\', and so it may be argued the only difference is the nature of the nuisance, not the nature of the civil wrong.)
Under English law the situation is different: the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour.
Many states have limited instances where a claim of nuisance may be brought. Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. For example, many states and provinces have "right to farm" provisions that allow any agricultural use of land zoned or historically used for agriculture.
There are two classes of nuisance under the American law: a nuisance in fact or "nuisance per accidens" and a nuisance per se. The classification determines whether the claim goes to the jury or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing or act in question created a nuisance by examining its location and surroundings, the manner of its conduct, and other circumstances.City of Sunland Park v. Harris News, Inc., 2005-NMCA-128, 45, 124 P.3d 566, 138 N.M. 58 (citing 58 AM.JUR.2D NUISANCES § 21) A determination that something is a nuisance in fact also requires proof of the act and its consequences.
By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings." Id. 40 (citing State ex rel. Village of Los Ranchos v. City of Albuquerque, 119 N.M. 150, 164, 889 P.2d 185, 199 (1994)) Liability for a nuisance per se is absolute and injury to the public is presumed; if its existence is alleged and established by proof, it is also established as a matter of law.See 58 AM.JUR.2D NUISANCES § 21 Therefore a judge would decide a nuisance per se while a jury would decide a nuisance in fact.
Most nuisance claims allege a nuisance in fact for the simple reason that not many actions or structures have been deemed to be nuisances per se. In general, if an act or use of property is lawful or authorized by competent authority, it cannot be a nuisance per se.See 58 AM.JUR.2D NUISANCES § 20 Rather, the act in question must either be declared by public statute or by case law to be a nuisance per se.State v. Davis, 65 N.M. 128, 132, 333 P.2d 613, 616 (1958); See also Sunland Park, 2005-NMCA-128, 47 There are not many state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Nor are many activities or structures in and of themselves and under any and all circumstances a nuisance, which is how courts determine whether or not an action or structure is a nuisance per se.Koeber, 72 N.M. at 5, 380 P.2d at 16.
Note: the term is also used less formally in the United States to describe the non-meritorious nature of frivolous litigation. A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant pays money to the plaintiff to drop the case primarily to spare the cost of litigation, not because the suit would have a significant likelihood of winning.
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