Whatever is offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance[i].

A private nuisance is a civil wrong, based on a disturbance of the rights in land[ii].  A private nuisance threatens one person or a relatively few, an essential feature being an interference with the use or enjoyment of land[iii].  It is actionable by the individual person or persons whose rights have been disturbed.

A public or common nuisance, on the other hand, is an offense against the state and is subject to abatement or prosecution on application of the proper governmental agency.

The crux of a nuisance case is unreasonable land use[iv].  One is subject to liability for a private nuisance if his/her conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is[v]:

• intentional and unreasonable,
• negligent or reckless, or
• actionable under the rules governing liability for abnormally dangerous conditions or activities.

The remedy for a nuisance lies in the hands of the individual whose rights have been disturbed.  A civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof[vi].  A plaintiff may recover damages for personal inconvenience, annoyance, and discomfort caused by the existence of a nuisance[vii].

An award of punitive damages is permitted when the elements of fraud, malice, gross negligence or oppression accompany the wrongful act[viii].  Such damages are awarded to punish the wrongdoer for his/her malicious, vindictive, willful or wanton invasion of the injured person’s rights.  They also serve as an example to restrain and deter others from the commission of such wrongs.

An injunction is the traditional method of abating a nuisance[ix].  A legislatively declared public nuisance constitutes a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury.

The essential element of a nuisance action is that persons have suffered harm or are threatened with injuries that they should not have to bear[x].

Nuisance is a field of tort liability rather than a type of tortious conduct[xi].  The appropriateness of the nuisance label, on a particular set of facts, thus turns on the interests invaded and the harm inflicted, rather than on the nature or quality of the defendant’s acts.

Liability in nuisance is predicated upon unreasonable injury rather than upon unreasonable conduct and thus a plaintiff may recover in nuisance despite the otherwise notorious nature of the conduct creating the injury.

Contributory negligence is not a defense to a nuisance action or to an action based on strict liability[xii].  Thus, a defendant’s negligence, intention, design, or motive is immaterial to his liability for nuisance[xiii].

[i] Schlotfelt v. Vinton Farmers’ Supply Co., 252 Iowa 1102 (Iowa 1961).

[ii] Rosario v. Lansing, 403 Mich. 124 (Mich. 1978).

[iii] Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 (N.Y. 1977).

[iv] Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876 (Mo. 1985).

[v] Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 (N.Y. 1977).

[vi] Schlotfelt v. Vinton Farmers’ Supply Co., 252 Iowa 1102 (Iowa 1961).

[vii] Branch v. Western Petroleum, 657 P.2d 267 (Utah 1982).

[viii] Miller v. Cudahy Co., 592 F. Supp. 976 (D. Kan. 1984).

[ix] People ex rel. Dept. Pub. Wks. v. Adco Advertisers, 35 Cal. App. 3d 507 (Cal. App. 3d Dist. 1973).

[x] Branch v. Western Petroleum, 657 P.2d 267 (Utah 1982).

[xi] Miller v. Cudahy Co., 592 F. Supp. 976 (D. Kan. 1984).

[xii] Branch v. Western Petroleum, 657 P.2d 267 (Utah 1982).

[xiii] Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876 (Mo. 1985).