[A] Overview
Nuisance arises from an allegation of injury to person or
property. As in other areas of tort, the injury need not be physical, and can
include injury to rights or property enjoyment. The law of nuisance recognizes
two distinct categories of claims: private nuisance and public nuisance.
Defendant's conduct may create an actionable public nuisance when it interferes
with the public health, safety or welfare. It may constitute a private
nuisance when it interferes with another's current possessory or beneficial
interest in the use or quiet enjoyment of land.
The complainant in private nuisance needn’t own the
property; he need only be a lawful occupant or the holder of one or more other
use rights. In contrast, for a suit in public nuisance, the complainant needn’t
have a property interest in any property affected by defendant's conduct. A
defendant may incur liability in both private and public nuisance.
[B] Nuisance and Trespass Distinguished
A claim in trespass ordinarily seeks damages for a physical
intrusion onto property. Where the intrusion is permanent, or if it is serious
or persistent, the suit sounds in trespass. In contrast, when the defendant's
conduct creates conditions of noise, lights, odor or vibration that interfere
with the plaintiff's quiet enjoyment of the property, but do not interrupt the
plaintiff's possessory interests, the claim is more properly brought in private
nuisance.
[1] Continuing Nuisance and Trespass; Permanent Nuisance
and Trespass
The laws of nuisance and of trespass distinguish between
“continuing” and “permanent” nuisance and trespass. A nuisance or trespass is
“continuing” (or “temporary”) if it could be discontinued or abated at any
time, such as an industrial activity that causes airborne pollution. A
“permanent” nuisance or trespass is an interference or an intrusion that has no
ready means of abatement. For a “permanent” condition, a single statute
of limitations will apply, while for a “continuing” condition, the statute of
limitations is tolled anew each day the activity continues.
[C] Private Nuisance
[1] Elements
[a] Unreasonable Interference
A private nuisance is an “unreasonable interference” with
the use or enjoyment of the owner or possessor's use or enjoyment of a property
interest. It might take a wide range of forms, from the pollution of a
residence's well water; or the creation of a sulphurous smell within a downtown
financial district.
[b] Current Possessory Interest
The private nuisance claim can only be brought by one with a
current possessory or beneficial interest in the property.
[c] Intentional or Unintentional Conduct
liability in private nuisance emanates from the “invasion of
another's interest in the private use and enjoyment of land” where the invasion
is “(a) intentional and unreasonable, or (b) unintentional and otherwise
actionable under the rules controlling liability for negligent or reckless
conduct, or for abnormally dangerous conditions or activities.” For a
defendant's act to be “intentional”, he need only have intended the act (i.e.,
discharge of industrial smoke from a facility's smokestack). He need not
have intended or desired that the smoke would alight elsewhere. When the act
is “unintentional”, or accidental, liability only follows a showing that the
defendant's conduct was negligent, reckless, or constituted an abnormally
dangerous activity. In nuisance actions, the intentional character of a
defendant's conduct may be proved circumstantially, for example, by means of
the permissible inference that a manufacturer knows that toxins leaving its
industrial chimney will necessarily land on another's property. [Bradley v.
American Smelting, 709
P.2d 782 (Wash. 1985).]
[2] Nature of the Interest Interfered with
The particular use to which a property is put, and the
sensitivities of the persons using the property, is proper factors in
evaluating if defendant's conduct constitutes an unreasonable interference that
rises to the level of a nuisance.
Some decisions distinguish nuisance per se from
nuisance per accidens. A nuisance per se would be any act that
constitutes a nuisance under any circumstances, such as the permanent chronic
contamination of plaintiff's property, or the maintenance of a house of ill
repute. Nuisance per accidens requires the fact finder's
evaluation of whether, “under all the surrounding circumstances . . . [the
acts] substantially interfere with [plaintiff's] comfortable enjoyment” [Vickridge
v. Catholic Diocese, 510
P.2d 1296 (Kan. 1976).]
A private nuisance action may not be maintained by a remote
vendee against a prior seller of property. [Philadelphia Electric Company v.
Hercules, Inc., 762
F.2d 303 (3d Cir. 1985).] Diminished property values due to public
“stigma” concerning potential contamination will not be the subject of a
nuisance action absent a showing of an actual or a factually predictable
encroachment upon the property. [Adkins v. Thomas Solvent Company, 487
N.W.2d 715 (Mich. 1992).]
[3] Corrective Justice and Utilitarianism
The tort policies of corrective justice and utilitarianism
are in sharp conflict in the law of nuisance. The right to an injunction or to
an order of abatement, under the corrective justice approach, holds true no matter
how great the economic interest of defendant's conduct. The utilitarian
approach, in contrast, invites a comparison of the value of the defendant's
conduct with the injury sustained by the plaintiff, and may lead to a
conclusion that upon payment of damages, the defendant's activity may
continue.
While not expressly relying upon Boomer v. Atlantic
Cement Co., Inc., 257
N.E.2d 870 (N.Y. 1970), the New York Court of Appeals effectively accepted
the invitation to permit
nuisance-creating but beneficial activities to continue their operations upon
the condition that they compensate neighboring landowners for their hardship. Boomer
recognized that to deny the injunction was to depart from the corrective
justice-no balancing approach discussed above, but held nevertheless that it
was “fair to both sides to grant permanent damages to plaintiffs who will
terminate this private litigation.” The grant of permanent damages to the
plaintiffs before the court would not be an invitation for further and future
litigation as the award would be entered as servitude on the land of each plaintiff,
precluding litigation by future occupiers of the land.
[D] Public Nuisance
[1] Generally
Public nuisance is defined widely as “an unreasonable
interference with a right common to the general public.” That section
states that “circumstances” for such evaluation include: “(a) whether the
conduct involves a substantial interference with the public health, the public
safety, the public peace, the public comfort or the public convenience, or (b)
whether the conduct is of a continuing nature or has produced a permanent or
long-lasting effect and, to the actor's knowledge, has a substantial
detrimental effect upon the public right.”
[2] Proper Complainants
A public nuisance suit may be brought by a public official
or a public agency, or it may be brought by a private individual or business
that has “suffered harm of a kind different from that suffered by other members
of the public.” For private party public nuisance claimants, this
predicate showing of injury “different in kind” from that suffered by the
public generally is known as the “special injury” rule.
For a public nuisance suit seeking an injunction or an order
of abatement, plaintiffs may be: (1) a public body or agency bringing suit on
behalf of the public; (2) a private party that, as above, has suffered “special
injury,” i.e., injury “different in kind” from that suffered by other
members of the public; or (3) the class representative(s) of a class action; or
(4) one with standing to bring a “citizen” suit under state or federal law.
For the most part, the public nuisance remedy is enforced by
a government body, such as a town, on behalf of the public. For example, a
municipality might lodge a claim in public nuisance against a manufacturing
facility discharging chemical effluent that is contaminating a nearby lake,
killing aquatic life and precluding recreational sports and swimming.
Defendant's conduct may create a cause of action in public
nuisance even where “neither the plaintiff nor the defendant acts in the
exercise of private property rights.” [Philadelphia Electric Co. v.
Hercules, Inc., 762
F.2d 303 (3d Cir. 1985).] For example, in Burgess v. M/V Tomano,
370
F. Supp. 247 (D. Me. 1973), commercial clam diggers and fishermen were
permitted to pursue a public nuisance claim, premised on an off coast oil
spill, even though it was “uncontroverted” that “the right to fish or to
harvest clams in Maine's coastal waters is not the private right of any
individual, but is a public right held by the State ‘in trust for the common
benefit of the people.’"
[3] Special Injury Rule
While suits in public nuisance are usually brought by public
bodies, such as a state or a political subdivision, under certain circumstances
a private individual may sue in public nuisance. An individual may sue another
in public nuisance where he proves that there is a substantial interference
with a right common to the public, and additionally, that he has suffered
special harm that differs in type or quality from that burdening the public.
To illustrate, in the lake contamination example above, it
would not suffice for a recreational fisherman or a swimming enthusiast to
bring an action in public nuisance claiming that the defendant's conduct
interfered with those pursuits. Such claims would be mere statements that
the complainants suffered the same harm sustained by the community in general,
with no claim that they suffered a harm different in type of quality from that
of the community. On the other hand, what if our potential plaintiff owned the
fishery with the contract to stock the lake with trout fingerlings on a
periodic basis, and if his contract with the town was canceled because the
water became polluted, his injury could be characterized as “special” as it was
qualitatively different from that suffered by the community at large.
Regarding commercial fishing and other maritime harvesting,
one court has stated, “in substantially all of those cases in which commercial
fishermen using public waters have sought [nuisance] damages for the pollution
or other tortuous invasion of those waters, they have been permitted to recover”
in that each can show “he has suffered a damage particular to him - that is,
damage different in kind, rather than simply in degree, from that sustained by
the public generally.” [Burgess v. M/V Tomano, 370
F. Supp. 247 (D. Me. 1973).]
Personal physical injury is ordinarily held to be “special
injury” under public nuisance doctrine. The rational for so holding was stated
by the court in Anderson v. W.R. Grace & Co., 628
F. Supp. 1219, 1233 (D. Mass. 1986), involving a claim by residents that
defendant's introduction of toxic chemicals into groundwater caused severe
personal injuries, including childhood leukemia. Finding plaintiffs could, as
individuals, bring a claim in public nuisance, the court explained: “[W]hen a
plaintiff has sustained ‘special or peculiar damage,’ he or she may maintain an
individual action . . . Injuries to a person's health are by their nature
‘special and particular,’ and cannot properly be said to be common or
public[.]” The court held further that the plaintiffs could recover
compensatory damages for the special injuries suffered, including “(1) the loss
in rental value of their property, if any, (2) compensation for physical
injuries, and (3) upon a showing of independent personal injury, damages for
emotional distress.”
[4] Environmental Harm
Public nuisance is a potentially potent claim for
governmental bodies seeking to interdict generators and disposers of hazardous
waste. Representative is a New York appellate court's decision in New York
v. Schenectady Chemicals, Inc., 459
N.Y.S.2d 971 (App. 1983). In that decision, the chemical firm had
hired an independent contractor to dispose of waste, which contractor simply
dumped raw wastes into lagoons directly above a major aquifer serving thousands
of residents. Bringing suit based in part upon public nuisance theories, the
State asserted that Schenectady created a public nuisance by the manner in
which the wastes were disposed. In holding for the State, the court reasoned
that Schenectady had created the public nuisance, and that further it was
responsible for the actions of its independent contractor, concluding that
“everyone who creates a nuisance or participates in the creation or maintenance
of a nuisance are liable jointly and severally for the wrong and injury done
thereby [.]”
[5] Economic Loss
What of an otherwise actionable nuisance from which
plaintiff suffers economic loss, such as lost use or business down time, but no
personal physical injury or property damage? The leading decision in Louisiana
ex rel. Guste v. M/V Testbank, 752
F.2d 1019 (5th Cir. 1985), involved a collision of the M/V Sea Daniel, an
inbound bulk carrier, with the outbound M/V Testbank in the Gulf outlet of the
Mississippi River. Containers on the Testbank containing PCP's were lost
overboard. Over 40 lawsuits were brought by local fisherman, owners of
seafood restaurants, marina and boat rentals, tackle and bait shops and the
like, claiming loss of business. The defendant moved for summary judgment for
all claims based on economic loss unaccompanied by physical damage to property.
The trial court granted the defendant's motion as to most of the shore-based
businesses, but preserved the claims asserted by commercial oystermen,
shrimpers, crabbers and fishermen who had made commercial use of the waters.
The court found that the commercial fishing interests deserved special
protection. See also Pruitt v. Allied, 523
F. Supp. 975 (E.D. Va. 1981), arising from the damage to marine life
following the defendant's discharge of Kepone into James River and Chesapeake
Bay.
[6] Prospective Nuisance
A court may grant an injunction or an order of abatement to
turn away the risk of future harm where the risk of harm is substantial and the
harm is imminent. In Village of Wilsonville v. SCA Services, Inc., 426
N.E.2d 824 (Ill. 1981), the defendant operated a chemical-waste landfill
above an abandoned mine, and evidence indicated that there was a possibility
that pillar support failure could occur. The state high court concluded
that the plaintiffs had sufficiently established by a preponderance of the
evidence that the chemical-waste disposal site was a nuisance both presently
and prospectively.
[A] Overview
Trespass protects a plaintiff's interest in the surface land
itself, the earth or other material beneath the surface, and “the air space
above it.” Depending upon the seriousness of the contamination of plaintiff's
land or environment, defendant may be liable in trespass where the pollution or
contamination interferes with plaintiff's possessory rights in the land, the
land beneath it, or the ambient air.
One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any legally protected
interest of the other, if he intentionally (a) enters land in the possession of
the other, or causes a thing or a third person to do so, or (b) remains on the
land, or (c) fails to remove from the land a thing which he is under a duty to
remove.
In trespass, the interest protected is the right of
“exclusive possession and physical condition of land.” Accordingly, a plaintiff
pursuing a cause of action based on trespass must satisfy the court that he has
a “possessory interest” in the property.
Unlike claims in nuisance that can only be pursued by one
with a current possessory or beneficial use interest in a property, a claimant
in a trespass suit does not have to be the property's current or immediately
prospective occupant. “Possession” in the trespass context has been defined in
such a way as to include one with a reversionary interest, such as a landlord
or other owner not in current possession of the land or premises, if no other
person is in current possession.
[B] The Requirement of Intent
Trespass is an intentional tort, and plaintiff must prove
that an alleged trespasser had the requisite mental state to commit the tort. The
word “intent” is used in tort law “. . . to denote that the actor desires to
cause the consequences of his act, or that he believes that the consequences
are substantially certain to result from it.” Thus, a hiker's unwitting
intrusion onto the land of another may nonetheless be considered “intentional”
in the sense that the hiker intended that his feet, step by step, advance his
hike, and similarly intended that his steps would take him onto the land.
An actor's awareness of the high degree of likelihood that a
trespass will result from his activities may be proved circumstantially, as it
was in Bradley v. American Smelting, 709
Wash. 2d 782 (Wash. 1985), in which a smelter's tall smokestack alone
evidenced its knowledge that trespassory particulate matter could be dispersed,
but not eliminated, through release high above ground. Accordingly, plaintiff
need not prove that the defendant subjectively desired to trespass on the
property. Plaintiff must only prove that defendant intended the act that
resulted in the trespass, i.e., that defendant's act was volitional, and
done with knowledge to a substantial certainty that the act would result in
introduction of the substance onto plaintiff's property. For this reason
defendant may not defend an action in trespass by proving that he acted with
even a reasonably mistaken belief that his actions were authorized by
plaintiff, or that the property was owned by another who had given apparent
consent to the intrusion.
[C] The Requisite Physical Invasion and Harm
In most jurisdictions, invasions of plaintiff's property
that amount to trespass may also, if they interfere with plaintiff's use and
enjoyment of the property, be actionable in nuisance. In such circumstances,
“plaintiff may have his choice” of a claim in trespass or in nuisance, “or may
proceed upon both.” At common law, an actionable trespass was complete upon the
tangible invasion of another's property. Nuisance, in contrast, requires a
showing that defendant's conduct, invasory or otherwise, constitutes a
“substantial and unreasonable” interference with plaintiff's use and enjoyment.
The requirement that a trespass involve invasion by a “thing” was considered
and rejected by the Oregon Supreme Court in Martin v. Reynolds Metals Co.,
342
P.2d 790 (Or. 1959), a claim involving the settling upon plaintiff's
property of gaseous and particulate fluorides from defendant's aluminum
smelter.
Rejecting defendant's claim that plaintiff's claim should
fail for want of any tangible trespassory “object” or “thing,” the court
answered: “[I]n this atomic age even the uneducated know the great and awful
force contained in the atom and what it can do to a man's property if it is
released” and found that the entry of invisible gases or microscopic particles
may alone constitute a trespass. Several other courts have declined to
follow Martin in this regard.
The invasion of plaintiff's property need not be direct, if
plaintiff can prove that an intentional act of defendant resulted in the harm.
Thus the causal intervention of natural conditions, such as deterioration,
wind, or rain, in initiating or exacerbating the trespass will not absolve
defendant of liability. As in the doctrine of continuing nuisance, a polluter's
failure to remove a pollutant or a contaminant from plaintiff's land may
represent a “continuing” tort, a finding that can operate to relieve some of
the strictures of limitations periods within which the possessor would have to
bring a toxic tort claim.
That the plaintiff may be entitled to an injunction or to
nominal damages for a technical or minimal trespass does not resolve the
question of what level of harm plaintiff must show to receive compensatory
damages. The leading Alabama decision of Borland v. Sanders Lead Co.,
369
So. 2d 523, 529 (Ala. 1979), involving the spilling of piled asphalt onto
the plaintiff's property phrased the requirement in terms of “substantial” harm
to the res.
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