Generally, the location and surroundings are considered when determining whether any acts or conduct constitutes a nuisance. An activity that occurs in a particular location may be reasonable, while the same activity in another location may be a nuisance. It is to be noted that conduct, acts, or things which are not nuisances per se can become nuisances in fact by reason of their location and surroundings. Therefore, a legal and proper activity can be a nuisance in fact simply because of its location[i].
However, things recognized as a nuisance in one locality may not be a nuisance in another. Generally, acts or a business may be a nuisance if the locality is a city or populous neighborhood. However, in such places of population and business, not everything that causes discomfort, inconvenience, and annoyance, or that lessens the value of surrounding property, will be condemned and abated as a nuisance.
Similarly, in a purely residential area, very strict rules are enforced and only slight interference with residential rights is tolerated. The interference with the use and enjoyment of land is not actionable unless it is substantial and unreasonable. Whether the annoyance or inconvenience is sufficient to constitute a nuisance depends upon its effect upon a person of ordinary habits and sensibilities[ii].
In determining the existence of a nuisance in a purely residential area, only slight interference with residential rights is tolerated. Thus, many acts, businesses, and occupations which if performed or conducted elsewhere would not be nuisances may be declared to be nuisances if performed or conducted in residential districts.
It is to be noted that each nuisance case must be addressed on its own facts to determine whether under all circumstances such as location, surroundings, nature of the use, extent and frequency of the injury, and the effect on the enjoyment of life, health and property, the use of the property by a person is unreasonable[iii].
It was observed in Rhoads v. Piacitelli, 1948 Pa. Dist. & Cnty. Dec. LEXIS 150 (Pa. C.P. 1948), that an airport is not a nuisance per se. However, it may become a nuisance in fact from the manner of its construction or operation. It was further observed that an airport, landing field, or flying school can be regarded as a nuisance only if located in an unsuitable location or if operated so as to interfere unreasonably with the comfort of adjoining property owners[iv].
The nuisance made by people in a neighborhood will not make the respondents free from liability for their maintenance of a nuisance. However, if the acts by neighbors create the same type of danger of which they are complaining, then such acts may certainly be considered in determining whether respondents’ acts actually constitute a nuisance under all the circumstances[v].
Generally, the determination of the existence of a nuisance necessarily depends upon the circumstances of each case and is a question of fact for the jury or the judge sitting without a jury[vi]. Courts generally consider the priority of location or occupation while determining the existence of a nuisance.
Statutes may specifically prohibit the consideration of the change of locality in determining the existence of a nuisance either with regard to an industrial enterprise, or with regard to farm or agricultural facilities or operations. If a person voluntarily elects to live in an industrial area, s/he cannot complain of noise, noxious odors, or any other unpleasant factors that may arise from the normal operation of businesses in the area merely because they may interfere with his/her personal satisfaction or aesthetic enjoyment[vii].
Some jurisdictions state that no agricultural or farming operation will become a nuisance, either public or private, as a result of changed conditions in or around the locality of such agricultural or farming operation, if such agricultural or farming operation is in operation for one year or more[viii]. However, anyone who comes to a nuisance has a heavy burden to establish liability[ix].
[i] Johnson v. Knox County P’ship, 273 Neb. 123 (Neb. 2007).
[ii] Myer v. Minard, 21 So. 2d 72 (La.App. 2 Cir. 1945).
[iii] State v. Waterloo Stock Car Raceway, Inc., 96 Misc. 2d 350 (N.Y. Sup. Ct. 1978).
[iv] Rhoads v. Piacitelli, 1948 Pa. Dist. & Cnty. Dec. LEXIS 150 (Pa. C.P. 1948).
[v] Carter v. Chotiner, 210 Cal. 288 (Cal. 1930).
[vi] Morgan County Concrete Co. v. Tanner, 374 So. 2d 1344 (Ala. 1979).
[vii] Lee v. Florida Public Utilities Co., 145 So. 2d 299 (Fla. Dist. Ct. App. 1st Dist. 1962).
[viii] Herrin v. Opatut, 248 Ga. 140 (Ga. 1981).
[ix] Rassier v. Houim, 488 N.W.2d 635 (N.D. 1992).