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Recovery of Damages

A person injured by a nuisance can recover damages in an action at law for tort.  Even in cases where a plaintiff is not entitled for injunctive relief, or where a nuisance is not abatable, a plaintiff can recover damages for the injury suffered[i].  Damages can also be recovered for injury resulting from the legal use of a property, if such use substantially damages the property of another[ii].

Damages are granted for all sorts of injuries resulting from nuisance such as real, personal, temporary or permanent.  When damages are recoverable for an injury to a property from a nuisance, the proper measure of recovery to be applied depends upon whether the nuisance is permanent or temporary.

Generally, the measure of damages for a nuisance is compensation for the loss or injury sustained.  However, in a temporary nuisance case, the measurement of damages is the diminution in rental value of the land involved plus any resultant special damages[iii].  Special damages are generally granted for the reasonable cost that will be incurred for removing the offensive nuisance deposits.  Sometimes, special damages are allowed for loss of business or profits, or for personal discomfort, inconvenience, annoyance, and for sickness, injury to health, and mental distress[iv].

In order to recover damages in an action for nuisance, the damage must be the proximate result of the wrong on which the complaint is based.  Accordingly, in an action for nuisance, damages for both the depreciation of market value and of rental value will not be allowed because to allow this would be to award double recovery[v].

However, some courts have observed that damages for the depreciation in value of land and for the physical discomfort resulting from a nuisance can be recovered in the same action[vi].  Because personal inconvenience, annoyance, and discomfort caused to the occupant of real estate by a nuisance is a separate and distinct element of damages from that of the depreciation of the usable or rental value of such real estate[vii].

Generally, exemplary or punitive damages are allowed in cases where nuisances are created or maintained intentionally, willfully, or maliciously.  Hence, to impose punitive damages there must be a willful, intentional, or reckless disregard of the rights of others, or there must be a gross negligence from the side of an intruder.  An award of exemplary damages are never made as a matter of right, but depending upon the facts peculiar to each case, exemplary damages might be granted if it is appropriate to punish an offending party or discourage others from similar wrongful conduct[viii].  However in the absence of statutory authority, exemplary or punitive damages are not allowed in an action based in nuisance against a municipal corporation.

[i] Fairfax Oil Co. v. Bolinger, 186 Okla. 20 (Okla. 1939).

[ii] Lyons v. McKay, 1957 OK 180 (Okla. 1957).

[iii] Gorman v. Sabo, 210 Md. 155 (Md. 1956).

[iv] Phillips Petroleum Co. v. Ruble, 191 Okla. 37 (Okla. 1942).

[v] Richards v. Lesaffre Yeast Corp., 2009 U.S. Dist. LEXIS 70401 (M.D. Ala. Aug. 11, 2009).

[vi] Oklahoma City v. Eylar, 177 Okla. 616 (Okla. 1936).

[vii] Holdenville v. Kiser, 179 Okla. 216 (Okla. 1937).

[viii] McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362 (Iowa 1972).

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