Nuisance

Question 1

Define:

Public Nuisance

Answer 1

Activity that interferes with the rights of the public, usually by threatening public health, safety or morals

Question 2

Define:

Private Nuisance

Answer 2

When one uses his land in a manner that injures a private owner or occupant in the use or enjoyment of that person’s land.

Question 3

What is the threshold test to establish a private nuisance?

Answer 3

The defendant must create a substantial interference with the use and enjoyment of another’s property, and must act either:

• intentionally and unreasonably
• unintentionally, but in a negligent, reckless, or abnormally dangerous manner.

Unintentional actions can be a nuisance if they’re negligent, reckless, or ultrahazardous.

Question 4

What remedies are available if the court finds a private nuisance?

Answer 4

Historically, the appropriate approach was to issue an injunction. Today, some jurisdictions balance equities to determine the appropriate remedy.

Question 5

What is the restatement test for unreasonable interference?

Answer 5

The defendant’s actions are a nuisance if:

1. The gravity of the harm outweighs the utility of the defendant’s conduct.
2. The harm is serious, but considering the impracticability of the defendant preventing the harm, the defendant can compensate the plaintiff without shutting down.

Factors in considering gravity of the harm include (a) the degree and duration of the harm involved; (b) the character of the harm involved; (c) the social value of the plaintiff’s use or enjoyment invaded; (d) the suitability of the use or enjoyment to the locality; and (e) the burden that the plaintiff would face in avoiding the harm. Factors in considering the utility of the conduct include (a) the social value of the primary purpose of the defendant’s conduct; the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion.

Question 6

In the context of remedies for a private injunction, what factors do courts consider when balancing the equities to determine whether to issue an injunction or award damages?

Answer 6

1. The relative economic impact on the parties
2. Whether the harm to the plaintiff is difficult to quantify
3. Whether all potential plaintiffs are known or present to the court
4. Whether damages to the plaintiff will be less than the defendant’s damages for abatement
5. Whether the defendant intended to cause harm and/or acted unreasonably
6. The social value of the conduct

Question 7

What is the traditional “threshold test” for private nuisance?

Answer 7

A defendant’s intentional actions are a nuisance if they unreasonably interfere with the plaintiff’s use and enjoyment of land given the circumstances, regardless of whether the defendant intends to harm the plaintiff or acts with substantial certainty that the harm to plaintiff will occur.

Question 8

Summarize the holding of:

Morgan v. High Penn Oil Co.

Answer 8

(N.C. 1953) Under the threshold test, a landowner may recover for private nuisance when another’s intentional and unreasonable conduct interferes with the use and enjoyment of their property.

In Morgan v. High Penn Oil Co., Morgan owned property next to an oil refinery that released nauseating gases and odors several days a week. Morgan sued for private nuisance.

The court applied the threshold test and held that the refinery’s emissions were both intentional and unreasonable, constituting a private nuisance that substantially interfered with Morgan’s property rights.

Note that, because the Court used the threshold test, the court did not consider the social utility of High Penn’s action.

Question 9

Summarize the holding of:

Boomer v. Atlantic Cement Company

Answer 9

(N.Y. 1970) Where a nuisance is found, equitable considerations can justify awarding damages instead of injunctive relief.

In Boomer v. Atlantic Cement Company, Boomer owned property near a cement plant that emitted dust and vibrations. The court found the plant’s operations constituted a nuisance under the Restatement test.

However, due to the significant economic value of the plant and the impact an injunction would have, the court chose to award permanent damages rather than order the plant to shut down.

Question 10

Summarize the holding of:

Spur v. Del Webb

Answer 10

(Ariz. 1972) A lawful business may be enjoined as a public nuisance, but a party who “comes to the nuisance” may be required to indemnify the business for relocation costs.

In Spur v. Del Webb, Spur Industries operated a feedlot near land later developed into a retirement community by Del Webb. As the feedlot expanded, odors and flies began disturbing the residents. The Arizona Supreme Court held that Spur’s feedlot constituted a public nuisance and could be enjoined.

However, applying the “coming to the nuisance” doctrine, the court ruled that Del Webb, having knowingly developed near an existing business, must indemnify Spur for the cost of moving or shutting down.

Note that Spur did not know that Del Webb’s community would expand to the point at which it would be impacted by the feedlot. This type of injunction is known as a “compensated injunction.”