In nuisance law, there are two classifications that determine the remedies available to injured parties and the applicable statute of limitations. The two primary classifications are permanent and continuing nuisances[i]. Nuisances are also divided into recurring and temporary nuisances.
Permanent nuisances are nuisances caused by a single act resulting in permanent injury and damages are assessed once for all injury[ii]. In the case of a permanent nuisance, the damages are complete when the nuisance comes into existence and the plaintiff is required to bring one action for all past, present, and future damages within three years after the permanent nuisance has occurred[iii].
Some jurisdictions articulate the basic distinction between permanent and continuing nuisances. The continuing nature of the nuisance refers to the continuing but abatable damage caused by the offensive condition, not to the acts causing the offensive condition to occur. The salient feature of a continuing trespass or nuisance is that its impact may vary over time[iv].
It is to be noted that the two primary characteristics of a continuing nuisance are:
- the nuisance is abatable, and/or
- the damages from the nuisance may vary over time.
If an encroachment is abatable, the law does not presume that such an encroachment will be permanently maintained. The maintenance of such an encroachment is a continuing trespass or nuisance. Examples of a continuing nuisance include an ongoing or repeated disturbance where damages may vary over time[v].
It is to be noted that if a private citizen sues for damage from a permanent nuisance, the statute of limitations begins to run upon creation of the nuisance. Whereas, if a continuing nuisance is alleged, then every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance[vi].
A temporary nuisance is a nuisance where there is temporary interference with the use and enjoyment of property. It is to be noted that whether a nuisance is temporary or permanent is ordinarily a question of fact[vii]. It was observed in Fletcher v. Independence, 708 S.W.2d 158 (Mo. Ct. App. 1986) that the occupants of a home who suffer interference with the enjoyment of premises from a temporary nuisance can recover for any actual inconvenience and physical discomfort which materially affects their comfort or health.
It is to be noted that the distinguishing feature between a permanent and a temporary nuisance is the abatability of the nuisance. A nuisance is temporary if it is abated and it is permanent if abatement is impracticable or impossible. It is the character of the source of the injury rather than the character of the injury that distinguishes a temporary nuisance from a permanent one.
A permanent nuisance must result from a permanent construction which is necessarily injurious as installed and not from one which becomes injurious through its use[viii]. But if the source of the injury is a structure that is not inherently injurious but only becomes harmful through its use, then the nuisance is characterized as a temporary one[ix].
It was observed in May v. George, 53 Ind. App. 259 (Ind. Ct. App. 1913) that if a nuisance is of permanent nature, it may be fairly said that the entire damage accrues in the first instance, the statute of limitations begins to run from that time. However, if the nuisance continues from day to day and creates a fresh injury each day, still there can be a right of action for the injuries created within the last six years, though the original right of action is lost.
[i] Spar v. Pac. Bell, 235 Cal. App. 3d 1480 (Cal. App. 2d Dist. 1991).
[ii] Santa Fe P’ship v. Arco Prods. Co., 46 Cal. App. 4th 967 (Cal. App. 2d Dist. 1996).
[iii] Capogeannis v. Superior Court, 12 Cal. App. 4th 668 (Cal. App. 6th Dist. 1993).
[v] Spar v. Pac. Bell, 235 Cal. App. 3d 1480 (Cal. App. 2d Dist. 1991).
[vi] Mangini v. Aerojet-General Corp., 12 Cal. 4th 1087 (Cal. 1996).
[vii] Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33 (Conn. 1978).
[viii] Hanes v. Continental Grain Co., 58 S.W.3d 1 (Mo. Ct. App. 2001).
[ix] Cook v. De Soto Fuels, Inc., 169 S.W.3d 94 (Mo. Ct. App. 2005).