Nuisance
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| Tort law II |
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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 decisions.
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.
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 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.
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.[1]
A private nuisance is simply a violation of one's use of quiet enjoyment of land. It does not include trespass.[2]
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.
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Damages
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 an injunction would have exceeded the cost borne by the plaintiffs. 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.
English Nuisance Law
- For the English criminal law, see public nuisance.
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 and issue for debate and is rejected by others (the primary distinction is 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.
Nuisance Law in the U.S.
In the U.S., the principle of coming to the nuisance states that existing uses of a property are generally not considered a nuisance if a new neighbor finds them objectionable. For example, if you move next door to a pig farm, you cannot claim that the normal operation of the pig farm constitutes a nuisance. However, if a pig farmer moves into a property that was formerly held by a flower nursery, their activities may constitute a nuisance.
Many states have limited the use of the law of nuisance. This often became necessary as the sensibilities of urban dwellers were offended by smells and 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, even if it poses a nuisance.
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