Generally, the lawful use of property or the lawful conduct of a business is never a public nuisance per se. It is only the place of business that violated a public statute that is a nuisance per se[i]. Therefore, the erection and maintenance of a building for a lawful trade is not permitted under law if such erection or maintenance will cause an injury to his/her neighbor. Similarly conducting a business on his/her own land in a manner that is injurious and offensive to those residing in the vicinity and rightfully traveling in an adjoining highway is unlawful[ii]. But, operating a factory and discharging waste steam to a public highway will not be a nuisance if it is done in a careful manner without interfering with the traveler’s right of free and safe travel in the highway[iii].
Nuisance arising from a business or business place can be either public or private in nature[iv]. The mere fact that a business is operated in accordance with the rules and regulations will not make the use of property legal, if the performance of such business incurs injury to its neighbor. A business which was lawful and unobjectionable initially can become a nuisance in the future upon changed circumstances[v].
Circumstances that contributes to the change of a lawful business to a nuisance includes:
- the nature of a business;
- the locality in which a business is carried on;
- the illegal or improper manner of conducting a business;
- the interference with another person’s use of his/her own property.
To constitute a nuisance, it is not necessary that the trade or business must endanger the neighborhood’s health and safety. It is sufficient if such trade or businesses is offensive to the senses and renders the enjoyment of life and property uncomfortable. Here the court will determine whether the act or thing complained about is offensive to persons of ordinary feelings and sensibilities[vi].
Any business or trade that is entered in defiance of a law regulating or prohibiting the same is a nuisance per se. However there are two divergent views about the validity of a business or trade that is carried in defiance of the law. According to one view, carrying on a business requiring a license without a valid license or without paying the required license fee is a nuisance[vii]. According to another view, it is not a nuisance and it can be subjected only to a restraint by injunction upon proof that it is a public nuisance[viii].
Determination of the question whether a lawful business is a nuisance depends upon the following factors:
- surrounding facts and circumstances of each case;
- nature of the use of property;
- character of the neighborhood;
- extent and frequency of the injury; and
- effect of such business on the enjoyment of life, health, and property of neighbors.
While determining the question whether any particular act in the business is a nuisance, the court along with the above mentioned factors should consider the nature of the defendant’s business and the manner in which it is conducted.
[i] Kinney v. Koopman, 116 Ala. 310 (Ala. 1896).
[ii] Sheley v. Cross, 680 N.E.2d 10 (Ind. Ct. App. 1997).
[iii] Truex v. South Penn Oil Co., 62 W. Va. 540 (W. Va. 1907).
[iv] Koll-Irvine Center Property Owners Assn. v. County of Orange, 24 Cal. App. 4th 1036 (Cal. App. 4th Dist. 1994).
[v] Grasselli v. Lowden, 11 Ohio St. 349 (Ohio 1860).
[vi] Bragg v. Ives, 149 Va. 482 (Va. 1927).
[vii] Johnson v. Board of Governors of Registered Dentists of Oklahoma, 1996 OK 41 (Okla. 1996).
[viii] McQuade v. Tucson Tiller Apartments, 543 P.2d 150, 153 (Ariz. Ct. App. 1975).