Nuisance is anything that annoys or disturbs the free use of one’s property or that renders its ordinary use or physical occupation uncomfortable[i]. Under different jurisdictions, nuisances are divided into different subheadings, namely:
- Nuisances Per Se;
- Nuisances Per Accidens;
- Absolute Nuisances;
- Qualified Nuisances;
- Permanent, Continuing, Recurring, or Temporary Nuisances;
- Public or Common Nuisances; and
- Private Nuisances.
A nuisance per se is defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings[ii]. However, mere violation of the public nuisance statute will not constitute nuisance per se. Rather, the doctrine requires that the conduct creating the nuisance also be specifically prohibited[iii]. It is to be noted that an injunction is not granted unless the act or thing threatened is a nuisance per se[iv].
Whereas, nuisances per accidens or in fact are those which become nuisances by reason of circumstances and surroundings, and if an act creates any danger and inflict injury on a person or property[v]. If a nuisance is not a nuisance per se, then it is a nuisance per accidens depending upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is needed[vi].
An absolute nuisance is defined as a nuisance that is intentional that its creator intended to bring about the conditions found to constitute a nuisance[vii]. The creator of an absolute nuisance is strictly liable[viii]. It is to be noted that an absolute nuisance consists of either a culpable and intentional act resulting in harm, or an act involving culpable and unlawful conduct causing unintentional harm, or a non culpable act resulting in accidental harm, for which absolute liability attaches notwithstanding the absence of fault[ix].
It is to be noted that a qualified nuisance is premised upon negligence[x]. A qualified nuisance is any lawful act so negligently or carelessly done or permitted in order to create a potential and unreasonable risk of harm which in due course results in injury to another. It is to be noted that a civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition that creates an unreasonable risk of harm, resulting in injury[xi].
Sometimes, nuisances can be divided as permanent, continuing, recurring, or temporary nuisances. Permanent nuisances are nuisances caused by a single act resulting in permanent injury and damages are assessed once for the entire injury[xii]. Whereas, the impact of a continuing nuisance may vary over time[xiii]. A temporary nuisance is a nuisance where there is temporary interference with the use and enjoyment of property. It is to be noted that a nuisance is temporary if it can be abated and permanent if abatement is impracticable or impossible.
In order to constitute a public nuisance, it is not necessary that it affects the whole community. Therefore, a public nuisance involves an unreasonable interference with a right common to the general public[xiv]. It is to be noted that a public nuisance can constitute either a crime or may be the subject of a civil action by public officials or private individuals.
Whereas, a private nuisance is a nuisance that affects an individual or a definite number of persons in the enjoyment of some private right which is not common to the general public[xv]. It is to be noted that the origin of private nuisance liability is purely tortious in character and the tort is developed to protect the use and enjoyment of land against non-trespass interference.
[i] Martin v. Williams, 141 W. Va. 595 (W. Va. 1956).
[ii] Moore v. Wallis, 191 Ark. 551 (Ark. 1935).
[iii] Erickson v. Sorensen, 877 P.2d 144 (Utah Ct. App. 1994).
[iv] Moore v. Wallis, 191 Ark. 551 (Ark. 1935).
[v] Hadfield v. Oakland County Drain Comm’r, 430 Mich. 139 (Mich. 1988).
[vii] Bentley v. City of New Haven, 2001 Conn. Super. LEXIS 2505 (Conn. Super. Ct. Sept. 4, 2001).
[viii] Donaghy v. City of Bristol, 2009 Conn. Super. LEXIS 313 (Conn. Super. Ct. Jan. 20, 2009).
[ix] Belt v. Buckeye Lake State Park, 2005 Ohio 3074 (Ohio Ct. Cl. May 24, 2005).
[x] Brown v. County Comm’Rs, 87 Ohio App. 3d 704 (Ohio Ct. App., Scioto County 1993).
[xi] Rothfuss v. Hamilton Masonic Temple Co., 34 Ohio St. 2d 176 (Ohio 1973).
[xii] Santa Fe P’ship v. Arco Prods. Co., 46 Cal. App. 4th 967 (Cal. App. 2d Dist. 1996).
[xiv] Cox v. City of Dallas, 256 F.3d 281 (5th Cir. Tex. 2001).
[xv] Armory Park Neighborhood Ass’n v. Episcopal Community Servs., 148 Ariz. 1 (Ariz. 1985).