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Nuisances Per Se

Nuisance is a distinct civil wrong, consisting of anything wrongfully done or permitted that interferes with or annoys another in the enjoyment of his/her legal rights.  Similarly, a 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].

Nuisances may be classified as nuisances per se or at law and as nuisances per accidens or in fact.  Any act, erection, or use of property that is unlawful or unauthorized by a competent authority can be a nuisance per se[ii].  A nuisance per se is also defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings[iii].

Therefore, a lawful business is never a nuisance per se.  However, it can become a nuisance by reason of circumstances.  A person who conducts a business lawfully and in the best manner practicable with a sound operation can still commit a nuisance if such operation interferes unreasonably with another persons’ use and enjoyment of their property[iv].

It is to be noted that nuisance per se exists when the conduct creating the nuisance is also specifically prohibited by statute.  Therefore, mere violation of the public nuisance statute does not constitute nuisance per se.  Rather, the doctrine requires that the conduct creating the nuisance also be specifically prohibited[v].

The traditional test for determining what is a nuisance per se is that the nuisance has become dangerous at all times and under all circumstances to life, health, or property[vi].  All activities that imminently and dangerously threaten the public health constitute nuisance per se[vii].  The following circumstances attending a business or property that give rise to a nuisance per se are offensive or noxious odors or smells, undue noise of crowds, music, motors, gambling, improper construction of buildings, and the like that are injurious to morals, life, health, and property[viii].

It is to be noted that the difference between a nuisance per se and a nuisance per accidens lies in the proof and 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[ix].  In nuisance per se, injury in some form is certain to be inflicted, whereas in nuisance in accidens, the injury is uncertain or contingent until it actually occurs[x].

It is to be noted that an injunction is not granted unless the act or thing threatened is a nuisance per se[xi].  It was observed in Wilson v. Evans Hotel Co., 188 Ga. 498 (Ga. 1939) that the business of conducting an automobile garage, or a supply station for automobiles, even in a residential district, is not generally regarded by courts as a nuisance per se and considered as a legitimate and necessary industry.

Similarly, the nuisance per se rule is not applicable to buildings devoted to storage purposes in business sections of cities of the larger size, or those sections in such cities largely commercial yet partly residential, and to residential districts composed of apartments consisting of hotels, clubs, schools and other buildings[xii].

[i] Martin v. Williams, 141 W. Va. 595 (W. Va. 1956).

[ii] Chicago v. Cecola, 56 Ill. App. 3d 143 (Ill. App. Ct. 1st Dist. 1977).

[iii] Moore v. Wallis, 191 Ark. 551 (Ark. 1935).

[iv] Tiegs v. Watts, 135 Wn.2d 1 (Wash. 1998).

[v] Erickson v. Sorensen, 877 P.2d 144 (Utah Ct. App. 1994).

[vi] Lucas v. Rawl Family, Ltd. P’shp, 359 S.C. 505 (S.C. 2004).

[vii] Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107 (7th Cir. Ind. 1975).

[viii] Pennsylvania Co. for Ins. on Lives, etc. v. Sun Co., 290 Pa. 404 (Pa. 1927).

[ix] Bryson v. Ellsworth, 211 Ark. 313 (Ark. 1947).

[x] State ex rel. Cunningham v. Feezell, 218 Tenn. 17 (Tenn. 1966).

[xi] Moore v. Wallis, 191 Ark. 551 (Ark. 1935).

[xii] Nesbit v. Riesenman, 298 Pa. 475 (Pa. 1930).

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