Nuisance

MBEMax wiki article — paired with the Torts question set on mbemax.com.

One-line summary

A private nuisance is a substantial and unreasonable interference with another's use and enjoyment of land; a public nuisance interferes with a right common to the general public and can be pursued by the state or by private plaintiffs who suffered special injury.

Mnemonic

S-U-R-E — Substantial, Unreasonable, Reaches plaintiff's use/enjoyment, Every land use weighed.

Call it "SURE-fire" because a good nuisance case is the one where all four pieces line up and can be proven.

Private nuisance

Rule. A private nuisance is a substantial and unreasonable interference with a plaintiff's use and enjoyment of land (Restatement (Second) of Torts § 822).

Elements:

1. Plaintiff has interest in land. Possessor or equivalent.
2. Interference with use and enjoyment. Not trespass (physical invasion of possessory interest) — although they can overlap.
3. Substantial. Would disturb a person of normal sensitivities.
4. Unreasonable. Gravity of harm outweighs utility of defendant's conduct (balancing test; Restatement § 826).
5. Causation. Defendant's conduct produced the interference.

What counts as interference

• Noise, light, odor, vibration, smoke, pollution, heat, glare, electrical interference.
• Ongoing nuisance (repeating/continuing).
• Coming to the nuisance — priority of use matters but isn't dispositive.

Utility / reasonableness factors

• Nature of the neighborhood.
• Extent and duration of harm.
• Social utility of defendant's activity.
• Whether harm could be avoided by defendant.
• Cost of avoiding harm vs. cost to plaintiff.

Remedies

• Damages — past and prospective.
• Injunction — balance of equities; hardship balancing may deny even when nuisance established (Boomer v. Atlantic Cement).
• Self-help — abatement may be allowed if reasonable, after notice.

Public nuisance

Rule. Unreasonable interference with a right common to the general public (Restatement (Second) § 821B).

• Government standing — attorney general or local government.
• Private standing — private plaintiff must show special injury different in kind (not merely degree) from that suffered by the public.
• Examples. Blocking a public road, operating an illegal brothel, pollution of a public waterway, maintaining a crack house, opioid distribution (recent litigation).

Nuisance vs. trespass

• Trespass — physical invasion of possessory interest; intentional, no showing of actual harm needed.
• Nuisance — interference with use/enjoyment; substantial + unreasonable required.
• Particles and vibrations have blurred the line — some courts permit both theories for air or microscopic pollutants.

NCBE loves to test

• Substantiality. Judged by a person of normal sensitivities. A plaintiff with a hypersensitive use (a mink farm near a noisy road) may lose because their harm is extraordinary.
• Utility vs. gravity. Even a socially valuable activity (cement plant) can be a nuisance; remedy may be damages rather than injunction (Boomer).
• Coming to the nuisance. Not an absolute defense but relevant to both liability and remedy. In Spur Industries v. Del Webb, the court granted injunction but required developer to pay cost of relocation — the "compensated injunction."
• Zoning compliance. Compliance with zoning doesn't immunize from nuisance claim.
• Public nuisance / private plaintiff special injury. Requires injury different in kind from public at large (not merely greater in degree).
• Nuisance per se vs. per accidens. Per se — unlawful activity always a nuisance. Per accidens — lawful activity becomes a nuisance by location or manner.
• Temporary vs. permanent. Temporary — damages recurring; permanent — one-time damages calculated to fair market value diminution.

Fast hypos

Hypo 1. Factory emits smoke and smell that bothers nearby residents. Factory complies with EPA air standards. Compliance with regulation does not bar nuisance action; court balances utility and harm.

Hypo 2. Resident builds airport. Neighbors already farming move to block noise. Coming-to-the-nuisance factor; *Spur Industries illustrates balanced remedy.*

Hypo 3. Pig farm that has operated for 30 years in rural area near a new subdivision. Compensated injunction or damages-only remedy possible; balancing of equities.

Hypo 4. Defendant's bright floodlight shines into plaintiff's bedroom window every night. Private nuisance — substantial + unreasonable interference with use/enjoyment.

Hypo 5. Private citizen sues corporation for ocean dumping. Public nuisance — private plaintiff must show special injury (e.g., commercial fisherman losing catch) different in kind from general public.

Case anchors

• Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970) — balancing of equities; damages instead of injunction.
• Spur Industries v. Del Webb Development, 494 P.2d 700 (Ariz. 1972) — compensated injunction.
• Morgan v. High Penn Oil Co., 77 S.E.2d 682 (N.C. 1953) — intentional + unreasonable analysis.
• Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982) — solar access protectable through nuisance.
• Carpenter v. The Double R Cattle Co., 701 P.2d 222 (Idaho 1985) — feedlot nuisance analysis.

See also

• Negligence
• Strict Liability
• Trespass
• Products Liability

Sources

Restatement (Second) of Torts §§ 821A–839, 826; Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970); Spur Industries v. Del Webb Development, 494 P.2d 700 (Ariz. 1972); Morgan v. High Penn Oil Co., 77 S.E.2d 682 (N.C. 1953); Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982).