nuisance

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Nuisance

A legal action to redress harm arising from the use of one's property.

The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual Trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.

Public Nuisance

The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community. Violators may be punished by a criminal sentence, a fine, or both. A defendant may also be required to remove a nuisance or to pay the costs of removal. For example, a manufacturer who has polluted a stream might be fined and might also be ordered to pay the cost of cleanup. Public nuisances may interfere with public health, such as in the keeping of diseased animals or a malarial pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, or harboring a vicious dog. Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prizefights are examples of nuisances that interfere with public morals. Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience.

A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others; a criminal prosecution is the exclusive remedy. However, if the individual suffers harm that is different from that suffered by the general public, the individual may maintain a tort action for damages. For example, if dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may bring a tort action for personal injuries.

Some nuisances can be both public and private in certain circumstances where the public nuisance substantially interferes with the use of an individual's adjoining land. For example, Pollution of a river might constitute both a public and a private nuisance. This is known as a mixed nuisance.

Private Nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.

Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

An attractive nuisance is a danger likely to lure children onto a person's land. For example, an individual who has a pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.

Trespass is sometimes confused with nuisance, but the two are distinct. A trespass action protects against an invasion of one's right to exclusive possession of land. If a landowner drops a tree across her neighbor's boundary line she has committed a trespass; if her dog barks all night keeping the neighbor awake, she may be liable for nuisance.

Legal Responsibility

A private nuisance is a tort, that is, a civil wrong. To determine accountability for an alleged nuisance, a court will examine three factors: the defendant's fault, whether there has been a substantial interference with the plaintiff's interest, and the reasonableness of the defendant's conduct.

Fault Fault means that the defendant intentionally, negligently, or recklessly interfered with the plaintiff's use and enjoyment of the land or that the defendant continued her conduct after learning of actual harm or substantial risk of future harm to the plaintiff's interest. For example, a defendant who continues to spray chemicals into the air after learning that they are blowing onto the plaintiff's land is deemed to be intending that result. Where it is alleged that a defendant has violated a statute, proving the elements of the statute will establish fault.

Substantial Interference The law is not intended to remedy trifles or redress petty annoyances. To establish liability under a nuisance theory, interference with the plaintiff's interest must be substantial. Determining substantial interference in cases where the physical condition of the property is affected will often be fairly straightforward. More challenging are those cases predicated on personal inconvenience, discomfort, or annoyance. To determine whether an interference is substantial, courts apply the standard of an ordinary member of the community with normal sensitivity and temperament. A plaintiff cannot, by putting his or her land to an unusually sensitive use, make a nuisance out of the defendant's conduct that would otherwise be relatively harmless.

Reasonableness of Defendant's Conduct If the interference with the plaintiff's interest is substantial, a determination must then be made that it is unreasonable for the plaintiff to bear it or to bear it without compensation. This is a Balancing process weighing the respective interests of both parties. The law recognizes that the activities of others must be accommodated to a certain extent, particularly in matters of industry, commerce, or trade. The nature and gravity of the harm is balanced against the burden of preventing the harm and the usefulness of the conduct.

The following are factors to be considered:

  • Extent and duration of the disturbance;
  • Nature of the harm;
  • Social value of the plaintiff's use of his or her property or other interest;
  • Burden to the plaintiff in preventing the harm;
  • Value of the defendant's conduct, in general and to the particular community;
  • Motivation of the defendant;
  • Feasibility of the defendant's mitigating or preventing the harm;
  • Locality and suitability of the uses of the land by both parties.

Zoning boards use these factors to enact restrictions of property uses in specific locations. In this way, zoning laws work to prohibit public nuisances and to maintain the quality of a neighborhood.

Defenses

In an attempt to escape liability, a defendant may argue that legislation (such as zoning laws or licenses) authorizes a particular activity. Legislative authority will not excuse a defendant from liability if the conduct is unreasonable.

A defendant may not escape liability by arguing that others are also contributing to the harm; damages will be apportioned according to a defendant's share of the blame. Moreover, a defendant is liable even where his or her actions without the actions of others would not have constituted a nuisance.

Defendants sometimes argue that a plaintiff "came to a nuisance" by moving onto land next to an already operating source of interference. A new owner is entitled to the reasonable use and enjoyment of his or her land the same as anyone else, but the argument may be considered in determining the reasonableness of the defendant's conduct. It may also have an impact in determining damages because the purchase price may have reflected the existence of the nuisance.

Remedies

Redress for nuisance is commonly monetary damages. An Injunction or abatement may also be proper under certain circumstances. An injunction orders a defendant to stop, remove, restrain, or restrict a nuisance or abandon plans for a threatened nuisance. In public nuisance cases, a fine or sentence may be imposed, in addition to abatement or injunctive relief.

Injunction is a drastic remedy, used only when damage or the threat of damage is irreparable and not satisfactorily compensable only by monetary damages. The court examines the economic hardships to the parties and the interest of the public in allowing the continuation of the enterprise.

A Self-Help remedy, abatement by the plaintiff, is available under limited circumstances. This privilege must be exercised within a reasonable time after learning of the nuisance and usually requires notice to the defendant and the defendant's failure to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbor's house may be removed by the neighbor in danger, after notifying the offending landowner of the nuisance. In cases where an immediate danger to health, property, or life exists, no notification is necessary.

Further readings

Cleary, Joseph W. 2002. "Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work." University of Baltimore Law Review 31 (spring).

Dodson, Robert D. 2002. "Rethinking Private Nuisance Law: Recognizing Esthetic Nuisances in the New Millennium." South Carolina Environmental Law Journal 10 (summer).

Fischel, William A. 1985. The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls. Baltimore, Md.: Johns Hopkins Univ. Press.

Paul, Ellen Frankel, and Howard Dickman, eds. 1990. Liberty, Property, and the Future of Constitutional Development. Albany: State Univ. of New York Press.

Scott, Michael S. 2001. Loud Car Stereos. Washington, D.C.: U.S. Dept. of Justice, Office of Community Oriented Policing Services.

Wade, John W., et al. 1994. Prosser, Wade, and Schwartz's Cases and Materials on Torts. 9th ed. Westbury, N.Y.: Foundation Press.

Cross-references

Land-Use Control; Tort Law.

nuisance

n. the unreasonable, unwarranted and/or unlawful use of property, which causes inconvenience or damage to others, either to individuals and/or to the general public. Nuisances can include noxious smells, noise, burning, misdirection of water on to other property, illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on businesses, and a host of bothersome activities. Where illegal they can be abated (changed, repaired, or improved) by criminal or quasi-criminal charges. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to desist (stop) or limit the activity (such as closing down an activity in the evening). (See: public nuisance, private nuisance)

nuisance

noun affliction, aggravation, annoyance, anxiety, bedevilment, bother, burden, cause of distress, devilment, difficult situation, difficulty, discomfort, disturbance, grievance, handicap, harassment, hardship, hindrance, imposition, inconvenience, infliction, infringement, injurious interference, interference, intrusion, irritation, molestation, obstacle, ordeal, pain, pest, plague, problem, scourge, trial, trouble, unlawful obbtruction, unwarrantable intrusion, vexation, worry
Associated concepts: abatement of a nuisance, attractive nuisance, common nuisance, continuing nuisance, nuiiance at law, nuisance in fact, nuisance per se, public nuisance
Foreign phrases: Aedificare in tuo proprio solo non licet quod alteri noceat.It is not lawful to build upon one's own land what may injure another.
See also: aggravation, disadvantage, mischief, molestation

nuisance

the tort or delict of wrongful conduct by the defendant - usually of the defendant's own land - which affects the claimant's use of his (the claimant's) land. In England a public nuisance may be a crime. The core concept involves a continuing interference or harm but single instances have been held enough to prevent repetition.

It is largely a matter of fact and degree, depending upon the circumstances of the case, whether or not a nuisance has been or is being committed: ‘Things which are forbidden in a crowded urban community may be permitted in the country. What is prohibited in an enclosed land maybe tolerated in the open’. Injunction in England or interdict in Scotland will be granted to prevent a nuisance being continued or repeated and damages will be granted in respect of loss caused by it. Here the laws of England and Scotland diverge.

The law of England distinguishes between public and private nuisance. A public nuisance is one that affects a particular class or group of citizens. The conduct must be such as materially affects the complainer. No one can complain of a public nuisance if he is not himself able to allege and prove some special or particular damage over and above that of the ordinary public. Thus, a hole in the road would not be actionable under this head but it would become so if someone fell into it and broke a leg. Private nuisance, in its pure form, happens when someone interferes with another's use or enjoyment of land. This is a simple matter of balance, depending on the locality. In modern times, planning legislation has had a tremendous impact on such cases, preventing as it does certain excesses. In English law, nuisance provides the remedy for infringement of a land law servitude. A plaintiff must own or have an interest in the land in question, thus depriving the visitor of a right in private nuisance for personal injury. Generally, in England, it is thought that the standard of care is strict. However, it may well be the case that different considerations apply where the remedy is for injunction as opposed to when it is for damages. When restraining conduct, the court is more likely to take the view that if a plaintiff is suffering more than it is reasonable that he should suffer, that he be entitled to injunction. When seeking damages the courts may want to look for some blameworthy conduct, but the English law has not made this distinction firm, and it is probably still the case that liability is strict. The significance of this is that a plaintiff in England is better served by trying to make out a claim in nuisance instead of negligence, assuming the conduct is of a kind that constitutes a nuisance. In particular, the harm must usually be a continuing one.

In Scotland there is no distinction between public and private nuisance. In Scotland there will be no liability for damages without proof of fault although in most cases that would be called nuisance there will be an almost irresistible inference of fault. Scots law remains very similar to the English law where the remedy sought is interdict (the Scots equivalent of injunction), the courts will restrain any use of land that results in unreasonable inconvenience to another.

NUISANCE, crim. law, torts. This word means literally annoyance; in law, it signifies, according to Blackstone, "anything that worketh hurt, inconvenience, or damage." 3 Comm. 216.
     2. Nuisances are either public or common, or private nuisances.
     3.-1. A public or common nuisance is such an inconvenience or troublesome offence, as annoys the whole community in general, and not merely some particular person. 1 Hawk. P. C. 197; 4 Bl. Com. 166-7. To constitute a Public nuisance, there must be such 'a number of persons annoyed, that the offence can no longer be considered a private nuisance: this is a fact, generally, to be judged of by the jury. 1 Burr. 337; 4 Esp. C. 200; 1 Str. 686, 704; 2 Chit. Cr. Law, 607, n. It is difficult to define what degree of annoyance is necessary to constitute a nuisance. In relation to offensive trades, it seems that when such a trade renders the enjoyment of life and property uncomfortable, it is a nuisance; 1 Burr. 333; 4 Rog. Rec. 87; 5 Esp. C. 217; for the neighborhood have a right to pure and fresh air. 2 Car. & P. 485; S. C. 12 E. C. L. R. 226; 6 Rogers' Rec. 61.
     4. A thing may be a nuisance in one place, which is not so in another; therefore the situation or locality of the nuisance must be considered. A tallow chandler seeing up his baseness among other tallow chandlers, and increasing the noxious smells of the neighborhood, is not guilty of setting up a nuisance, unless the annoyance is much increased by the new manufactory. Peake's Cas. 91. Such an establishment might be a nuisance in a thickly populated town of merchants and mechanics, where Do such business was carried on.
     5. Public nuisances arise in consequence of following particular trades, by which the air is rendered offensive and noxious. Cro. Car. 510; Hawk. B. 1, c. 755 s. 10; 2 Ld. Raym. 1163; 1 Burr. 333; 1 Str. 686. From acts of public indecency; as bathing in a public river, in sight of the neighboring houses; 1 Russ. Cr. 302; 2 Campb. R. 89; Sid. 168; or for acts tending to a breach of the public peace, as for drawing a number of persons into a field for the purpose of pigeon-shooting, to the disturbance of the neighborhood; 3 B. & A. 184; S. C. 23 Eng. C. L. R. 52; or keeping a disorderly house; 1 Russ. Cr. 298; or a gaming house; 1 Russ. Cr. 299; Hawk. b. 1, c. 7 5, s. 6; or a bawdy house; Hawk. b. 1, c. 74, s. 1; Bac. Ab. Nuisance, A; 9 Conn. R. 350; or a dangerous animal, known to be such, and suffering him to go at large, as a large bull-dog accustomed to bite people; 4 Burn's, Just. 678; or exposing a person having a contagious disease, as the small-pox, in public; 4 M. & S. 73, 272; and the like.
     6.-2. A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. Com. 1215; Finch, L. 188.
     7. These are such as are injurious to corporeal inheritance's; as, for example, if a man should build his house so as to throw the rain water which fell on it, on my land; F. N. B. 184; or erect his. building, without right, so as to obstruct my ancient lights; 9 Co. 58; keep hogs or other animals so as to incommode his neighbor and render the air unwholesome. 9 Co. 58.
     8. Private nuisances may also be injurious to incorporeal hereditaments. If, for example, I have a way annexed to my estate, across another man's land, and he obstruct me in the use of it, by plowing it up, or laying logs across it, and the like. F. N. B. 183; 2 Roll. Ab. 140.
     9. The remedies for a public nuisance are by indicting the party. Vide, generally, Com. Dig. Action on the case for a nuisance; Bac. Ab. h.t.; Vin. Ab. h.t.; Nels. Ab. h.t.; Selw. N. P. h.t.; 3 Bl. Com. c. 13 Russ. Cr. b. 2, c. 30; 1 0 Mass. R. 72 7 Pick. R. 76; 1 Root's Rep. 129; 1 John. R. 78; 1 S. & R. 219; 3 Yeates' R. 447; 3 Amer. Jurist, 85; 3 Harr. & McH. 441; Rose. Cr. Ev. h.t.; Chit. Cr. L. Index, b. t.; Chit. Pr. Index, b. t., and vol. 1, p. 383; Bouv. Inst. Index, h.t.