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 inflicts injury upon a person or property[i]. The nuisance is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance[ii].
In other words, a nuisance per accidens is not a nuisance as such, but becomes a nuisance in the manner in which it is operated[iii]. The number of nuisances per se is limited when compared to nuisances per accidens. Nuisance per accidens is divided into two further subclasses of nuisance: intentional and negligent[iv]. Intentional private nuisances per accidens are those which become nuisances by reason of their location or by reason of the manner in which they are constructed, maintained, or operated[v].
It is to be noted that the difference between a nuisance per se and a nuisance in fact lies in the proof, not in the remedy. In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality and the right to relief is established by averment and proof of the mere act[vi].
However, if a nuisance is not a nuisance per se, then it is a nuisance per accidens or in fact 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 necessary[vii]. The question as to what constitutes a nuisance is one of law for the court. However, it is the jury that decides whether a particular act or structure or use of property that is not a nuisance per se is a nuisance in fact[viii].
It is to be noted that the location of a particular business is an important factor in determining whether the operation of such business, in which dust, dirt, and similar substances are thrown out, constitutes a nuisance in fact[ix]. Similarly, noise and vibrations emanating from the operation of a lawful enterprise can constitute a private nuisance per accidens[x].
[i] Hadfield v. Oakland County Drain Comm’r, 430 Mich. 139 (Mich. 1988).
[ii] Freedman v. Oak Park, 170 Mich. App. 349 (Mich. Ct. App. 1988).
[iii] Hutchens v. MP Realty Group, 654 N.E.2d 35 (Ind. Ct. App. 1995).
[iv] Hadfield v. Oakland County Drain Comm’r, 430 Mich. 139 (Mich. 1988).
[v] Watts v. Pama Mfg. Co., 256 N.C. 611 (N.C. 1962).
[vi] Frederick v. Brown Funeral Homes, Inc., 222 La. 57 (La. 1952).
[viii] Buddy V. Department Of Natural Resources, 59 Mich. App. 598 (Mich. Ct. App. 1975).
[ix] Harless v. Workman, 145 W. Va. 266 (W. Va. 1960).
[x] Watts v. Pama Mfg. Co., 256 N.C. 611 (N.C. 1962).