Intangible objects such as noise, odor, or light can contribute to nuisance[i]. A nuisance resulting from intangible objects has the same legal effect as that arising from property usage or business performance in a particular manner. For nuisance arising from intangible objects, the remedy lies in an action for nuisance, based on interference with the right to use and enjoy the land[ii]. However, if such intangible invasion causes substantial damage to a plaintiff’s property, this damage will be considered an infringement on a plaintiff’s right to exclusive possession, and an action for trespass can be initiated[iii].
In order to recover under trespass for an indirect invasion, a plaintiff must show that[iv]:
- there was an invasion affecting his/her interest in the exclusive property possession;
- there was an intentional doing of an act that resulted in invasion;
- there was a reasonable foreseeability that the act done would result in an invasion of plaintiff’s possessory interest; and
- there was an actual and substantial damage to the property.
On proof of an intangible intrusion, a plaintiff can obtain injunctive relief in the form of a permanent injunction. Generally an injunctive relief is given in cases where the court is of a view that withholding of such relief will endanger a plaintiff’s health and safety. In all other cases, compensation is granted to plaintiffs in the form of money damages.
In Harris v. Paine, 1993 R.I. Super. Lexis 34 (R.I. Super. Ct. 1993), plaintiff landowners brought an action against defendant town for injunctive relief and compensatory damages. Here plaintiff alleged that they were experiencing significant problems of odor, noise, and vibrations from the town’s operation of the pumping station and a diesel generator which was used as a back-up power source. Defendant town disputed plaintiff’s argument and contented that if there was a nuisance, plaintiff were entitled only for money damages. The court after perusing the evidence observed that, activities which unreasonably interfere with a person’s use and enjoyment of property will amount to nuisance. Since pumping station’s location and operation amounted to private nuisance, the plaintiff was granted both injunctive relief and money damages.
A violation of law, criminal conduct, or acts and businesses that add to pollution of air and water also amount to nuisance. Activities that disturb a public food supply or which cause an interference with the well-recognized property right of people can be challenged in court as a nuisance.
However, violation of a criminal statute or a state regulation does not constitute a nuisance in itself. But some courts have held that violation of a valid statute enacted to preserve public health, safety, and welfare is a nuisance. Similarly, a repeated criminal statute violation is a public nuisance per se[v]. Criminal conduct resulting in a nuisance will also draw liability for a public nuisance[vi].
[i] Mock v. Potlatch Corp., 786 F. Supp. 1545 (D. Idaho 1992).
[ii] Klumper v. Vogelgesang, 16 Ohio Dec. 56 (Ohio Cincinnati Super. Ct. 1905).
[iii] Gill v. LDI, 19 F. Supp. 2d 1188 (W.D. Wash. 1998).
[iv] In re WorldCom, Inc., 320 B.R. 772 (Bankr. S.D.N.Y. 2005).
[v] Morgan County Concrete Co. v. Tanner, 374 So. 2d 1344 (Ala. 1979).
[vi] Melton v. Boustred, 183 Cal. App. 4th 521 (Cal. App. 6th Dist. 2010).