Nuisance
Encyclopedia
Nuisance is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") or private. A public nuisance
Public nuisance
In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...

 was defined by English scholar Sir J. F. Stephen as,

"an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects".


Private nuisance is the interference with the right of specific people. Nuisance 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
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

. Nuisance signifies that the "right of quiet enjoyment" is being disrupted to such a degree that a tort is being committed.

Definition

Under the common law, persons in possession of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...

 (land owners, lease holders etc.) are entitled to the quiet enjoyment of their lands. However this doesn't include visitors or those who aren't considered to have an interest in the land. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution
Pollution
Pollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living organisms. Pollution can take the form of chemical substances or energy, such as noise, heat or light...

 or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.

Legally, the term nuisance is traditionally used in three ways:
  1. to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney)
  2. to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors)
  3. to describe a legal liability that arises from the combination of the two. However, the "interference" was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person's land that affected the enjoyment of that land.


The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance
Public nuisance
In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...

)

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.

A private nuisance is simply a violation of one's use of quiet enjoyment of land. It doesn't include trespass.

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; however, it doesn't 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.

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.

History and legal development of 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 land use planning
Land use planning
Land-use planning is the term used for a branch of public policy encompassing various disciplines which seek to order and regulate land use in an efficient and ethical way, thus preventing land-use conflicts. Governments use land-use planning to manage the development of land within their...

 (e.g. zoning
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...

) 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 can't 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 that 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.

Remedies

Under the common law, the only remedy
Legal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....

 for a nuisance was the payment of damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...

. However, with the development of the courts of equity, the remedy of an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

 became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt
Contempt
Contempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...

 if the defendant is in breach of such an injunction.

The law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

 movement has been involved in analyzing the most efficient choice of remedies given the circumstances of the nuisance. In Boomer v. Atlantic Cement Co.
Boomer v. Atlantic Cement Co.
Boomer v. Atlantic Cement Co., was a New York court case in which New York's highest court considered whether permanent damages were an appropriate remedy in lieu of a permanent injunction. The case was one of the first and most influential instances of a court applying permanent damages...

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
Net present value
In finance, the net present value or net present worth of a time series of cash flows, both incoming and outgoing, is defined as the sum of the present values of the individual cash flows of the same entity...

 of all future damages suffered by the plaintiff.

Inspector of Nuisance

An Inspector of Nuisance is, or was, the title of an office in several English-speaking jurisdictions. In many jurisdictions this term is now archaic, the position and/or term having been replaced by others. For example, in the United Kingdom, this office was generally associated with public health and sanitation. Both the 1847 Nuisances Removal and Diseases Prevention Act and the Metropolis Management Act 1855
Metropolis Management Act 1855
The Metropolis Management Act 1855 was an Act of the Parliament of the United Kingdom that created the Metropolitan Board of Works, a London-wide body to co-ordinate the construction of the city's infrastructure. The Act also created a second tier of local government consisting of parish vestries...

 defined such an office. Similar offices were established across the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...

. The nearest modern equivalent of this position in the UK is an Environmental health officer
Environmental health officer
Environmental health officers are usually employed by local government or state health authorities to advise on and enforce public health standards...

. In the United States, a modern example is found in Section 3767 of the Ohio Revised Code
Ohio Revised Code
The Ohio Revised Code contains all acts passed by the Ohio General Assembly and signed by the governor. The Ohio Revised Code replaced the Ohio General Code in 1953. However the current organization and form of the Ohio Revised Code Title 29 was completely re-written and issued into law by the...

 which defines such a position to investigate nuisances, where this term broadly covers establishments in which lewdness and alcohol are found.

UK

The boundaries of the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 are potentially unclear, due to the public/private nuisance divide, and existence of the rule in Rylands v Fletcher
Rylands v Fletcher
Rylands v Fletcher [1868] was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris,...

. Writers such as John Murphy
John Murphy
-In politics:*John Murphy , American Democratic Governor and Congressman from Alabama*John Murphy , Member of the UK Parliament for East Kerry, 1900–1910*John W...

 of the University of Manchester
University of Manchester
The University of Manchester is a public research university located in Manchester, United Kingdom. It is a "red brick" university and a member of the Russell Group of research-intensive British universities and the N8 Group...

 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 that the only difference is the nature of the nuisance, not the nature of the civil wrong.)

Under English law, unlike in the USA, it is no defence that the claimant "came to the nuisance": the 1879 case of Sturges v Bridgman
Sturges v Bridgman
Sturges v Bridgman LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality...

 is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour.

USA

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, which allow any agricultural use of land zoned or historically used for agriculture
Agriculture
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...

.

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. 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." 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. 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 can't be a nuisance per se. Rather, the act in question must either be declared by public statute, or by case law, to be a nuisance per se. There aren't 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.

Over the last thousand years, public nuisance has been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure someone in the general public. Donald Gifford argues that civil liability has always been an "incidental aspect of public nuisance". Traditionally, actionable conduct involved the blocking of a public roadway, the dumping of sewage into a public river or the blasting of a stereo in a public park. To stop this type of conduct, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.

In recent decades, however, governments blurred the lines between public and private nuisance causes of action. William Prosser
William Prosser
William Lloyd Prosser was the Dean of the College of Law at UC Berkeley from 1948 to 1961. Prosser authored several editions of Prosser on Torts, universally recognized as the leading work on the subject of tort law for a generation. It is still widely used today, now known as Prosser and Keeton...

 noted this in 1966 and warned courts and scholars against confusing and merging the substantive laws of the two torts. In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida's Supreme Court has held that a public nuisance is any thing that causes "annoyance to the community or harm to public health."

A contemporary example of a nuisance law in the United States is the Article 40 Bylaw of Amherst, Massachusetts known as the Nuisance House Bylaw. The law is voted on by members of the town at town meetings. The stated purpose of such a law is "In accordance with the Town of Amherst’s Home Rule Authority, and to protect the health, safety, and welfare of the inhabitants of the Town, this bylaw shall permit the Town to impose liability on owners and other responsible persons for the nuisances and harm caused by loud and unruly gatherings on private property and shall discourage the consumption of alcoholic beverages by underage persons at such gatherings." In practice, the law works so that if one member of the neighborhood feels, under his or her own judgement, that a neighbor's noise level is annoying or excessively loud, that neighbor is instructed to inform the town police so they can respond to the location of the noise. "The responding officer has some discretion in how to deal with the noise complaint....When determining the appropriate response, the officer may take many factors into consideration, such as the severity of the noise, the time of day, whether the residents have been warned before, the cooperation of the residents to address the problem."
Note: the term is also used less formally in the United States to describe the non-meritorious nature of frivolous litigation
Frivolous litigation
In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...

. A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

 pays money to the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 to drop the case primarily to spare the cost of litigation, rather than because the suit would have a significant likelihood of winning.

Environmental nuisance

In the field of environmental science, there are a number of phenomena which are considered nuisances under the law, including most notably noise and light pollution. Moreover there are some issues that are not necessarily legal matters that are termed environmental nuisance; for example, an excess population of insects or other vectors may be termed a "nuisance population" in an ecological sense.

From Britannica 1911

A common nuisance is punishable as a misdemeanour at common law, where no special provision is made by statute. In modern times, many of the old common law nuisances have been the subject of legislation. It's no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are within the scope of their employment, even though such acts are done without his knowledge, and contrary to his orders. Nor is it a defence that the nuisance has been in existence for a great length of time, for no lapse of time will legitimate a public nuisance.

A private nuisance is an act, or omission, which causes inconvenience or damage to a private person, and is left to be redressed by action. There must be some sensible diminution of these rights affecting the value or convenience of the property. "The real question in all the cases is the question of fact, whether the annoyance is such as materially to interfere with the ordinary comfort of human existence" (Lord Romilly in Crump v. Lambert (1867) L.R. 3 Eq. 409). A private nuisance, differing in this respect from a public nuisance, may be legalized by uninterrupted use for twenty years. It used to be thought that, if a man knew there was a nuisance and went and lived near it, he couldn't recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. But this has long ceased to be law, as regards both the remedy by damages, and the remedy by injunction.

The remedy for a public nuisance is by information, indictment, summary procedure or abatement. An information lies in cases of great public importance, such as the obstruction of a navigable river by piers. In some matters, the law allows the party to take the remedy into his own hands, and to "abate" the nuisance. Thus; if a gate be placed across a highway, any person lawfully using the highway may remove the obstruction, provided that no breach of the peace is caused thereby. The remedy for a private nuisance is by injunction, action for damages or abatement. An action lies in every case for a private nuisance; it also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury. In such a case, the civil is in addition to the criminal remedy. In abating a private nuisance, care must be taken not to do more damage than is necessary for the removal of the nuisance.

In Scotland, there's no recognized distinction between public and private nuisances. The law as to what constitutes a nuisance is substantially the same as in England. A list of statutory nuisances will be found in the Public Health (Scotland) Act 1867, and amending acts. The remedy for nuisance is by interdict, or action.

See also

  • Aldred's Case
    Aldred's Case
    Aldred's Case 9 Co Rep 57b; 77 ER 816, is an often-cited seventeenth century case dealing with nuisance in English common law...

  • Haslem v. Lockwood
    Haslem v. Lockwood
    Thomas Haslem v. William A. Lockwood, Connecticut, is an important United States case in property, tort, conversion, trover and nuisance law....

  • Law
    Law
    Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

  • Public nuisance
    Public nuisance
    In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...

  • Robinson v Kilvert
    Robinson v Kilvert
    Robinson v Kilvert LR 41 ChD 88 is an English tort law case concerning nuisance. It deals with what is sometimes called the issue of a "sensitive claimant".-Facts:...

  • Rylands v. Fletcher
  • Tort law
  • William L. Prosser
  • Loud music
    Loud music
    The term loud music is often used to refer to music that is played at a volume that disturbs others, such as neighbors or bystanders, who do not wish to hear the music, or that is otherwise viewed as a nuisance to the public...


External links

  • "Public Nuisance Law": Essays and articles written by legal experts in the subject of public nuisance law.
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