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In this case, the El Hogar may be classified as a public nuisance, if left unattended.
Although common law nuisance and statutory supplementation of the doctrine vary from state to state, the doctrine of nuisance remains a viable option for those who are harmed by the agricultural activities taking place on neighboring properties.
The application of nuisance doctrine to sources of deleterious odors is nothing new.
(14) According to the plaintiff, "the air was impregnated with noisome and offensive stinks and smells." (15) In determining that the defendants' operations constituted a nuisance, the court explained, "it is not necessary that the smell should be unwholesome: it is enough, if it renders the enjoyment of life and property uncomfortable." (16) Again, it is unclear from the court's opinion whether it thought air that is free of "offensive stinks and smells" is considered a necessity, or if the court was attempting to expand the general application of nuisance to what the court in Aldred's Case would have considered a mere delight.
He said his town has on two occasions removed roosters under the nuisance law.
Westboro Director of Public Health Paul McNulty said the town hasn't had any complaints about roosters, which may be kept in town, but any complaints could be dealt with under the state nuisance law.
The modern formulation of public nuisance is found in Section 821B of the Restatement (Second) of Torts.
But some members of the American Law Institute ("ALI") "who saw Prosser's proffered language as a way to restrict the use of public nuisance in the environmental cases then emerging sought to have it reconsidered." (27) In 1971, ALI adopted a version of Section 821B "that unmoored the tort of public nuisance from the decades of law that generally had required a violation of criminal law." (28) As adopted, Section 821B defines a public nuisance as "an unreasonable interference with a right common to the general public." (29) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(148) It is apparent that the City of Cleveland cited a number of the specifically named houses as public nuisances before the sheriff's deed was issued to the purchasing bank.
This use of public nuisance actions to obtain a court order for abatement of the nuisance condition, however, needs to anticipate that the owners will attempt to elude the jurisdiction of the court by any means possible to evade the cost of abating the nuisances.
Courts generally utilize a balancing test when evaluating a case alleging a nuisance. (41) Although the articulation of the test varies somewhat by state, (42) it generally involves weighing the seriousness of the harm caused to a neighbor against the social utility of the activity causing the harm.
If a plaintiff successfully shows that the harm caused by the activity outweighs the social utility of the activity, he or she will have established a nuisance. (47) The defendant, however, can raise one of several defenses.