As old as the concept of ownership of land is the concept of defending it from the trespass of others. Indeed, one can perhaps define “owning” land as the right to enjoy exclusive possession to it.
A related concept which developed almost as long ago as the right to protect your land against trespass is the concept of “nuisance.” Put in its simplest sense, a nuisance for a property owner is action or condition of other property owners which interfere unreasonably with one’s use of one’s own property.
Over the centuries the types of activities that have constituted nuisance have radically altered and the invention and spread of zoning restrictions on use of land have made suits on nuisance less common: instead, parties claim a violation of the zoning requirements.
Thus, in 1880 one would sue a neighboring pig farm based on nuisance for the offensive smell which makes it impossible for your family to remain living in your home. In 1980 that same litigation might allege nuisance, but would also claim a violation of the zoning restrictions for your neighborhood and, indeed, before you filed suit you would probably go to the local city or county authority and ask them, at their expense, to cite a zoning violation which might eliminate your need to sue at all.
But there remain numerous uses which could be nuisances without being zoning restrictions and this article shall briefly describe both the law of nuisances and the remedies that can be available to those claiming they are injured by said nuisance.
(Public nuisance is an entirely different area of law and relates to the right of public authorities or large groups of people to bring an action protecting the public or that group. Most such actions are brought by governmental entities and are not discussed at length in this article.)
DEFINITIONS:
Anything which is injurious to health, or is indecent or offensive to senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street or highway, is a nuisance. (C.C. 3479; see Neuber v. Royal Realty Co. (1948) 86 C.A.2d 596, 623, 195 P.2d 501;People v. Projection Room Theater (1976) 17 C.3d 42, 49, 130 C.R. 328, 550 P.2d 600, infra, § 132; Leslie Salt Co. v. San Francisco Bay Conservation & Dev. Com. (1984) 153 C.A.3d 605, 619, 200 C.R. 575, footnote 16, infra, § 129;Lussier v. San Lorenzo Valley Water Dist. (1988) 206 C.A.3d 92, 99, 253 C.R. 470, infra, § 129; 59 So. Cal. <<* p.803>> L. Rev. 1101; 21 Stanf. L. Rev. 293 [economic factors]; Rest.2d, Torts § 821A et seq., infra, § 122; Prosser & Keeton § 86 et seq.; 1 Harper, James & Gray § 1.23; 58 Am.Jur.2d, Nuisances § 1 et seq.; 8 P. of F., Nuisances, Proof 1; on distinction between nuisance and liability without fault, see 65 Harv. L. Rev. 985;Torts, § 1229; on distinction between nuisance and trespass, see infra, § 125; on statute of limitations applicable to nuisances, see 3 Cal. Proc., 3d, Actions, § 425.)
Public nuisance is one that affects any considerable number of persons. (CC 3480.) Any other nuisance is a private nuisance. (CC 3481).
Certain types of conduct are classed as nuisances by statute. Others have long been held as nuisance by the courts. Any activity not falling within those categories is determined on a case by case basis by a trier of fact (usually the judge.)
Although most cases involve a continuing series of acts or conduct, even a single act can constitute a nuisance.
What type of activity are we speaking of?
Unreasonable noise or smell. Pollution which defaces property. Unusual or inappropriate use of property that makes your use impractical. Activity that makes use of property unreasonably difficult. It need not involve entry onto the land or even intentional activity.
Nuisance is distinguishable from trespass in that the mere intentional entry on land may constitute trespass in that it violates the right of exclusive possession and creates a right to sue. Conduct or activity creating a nuisance cannot amount to actionable activity unless it SUBSTATIALLY INERFERES WITH THE USE AND ENJOYMENT OF THE LAND.
Nevertheless, most nuisances involve actual encroachment on one’s land. Examples:
1. Building a structure that blocks an easement of plaintiff. (See article on Prescriptive Easements.)
2. Sinking oil wells that obstruct access to the street.
3. Deposit of materials or pollution (pile of material washed down in rain onto your land.)
4. Noxious odors, smoke or noise from adjoining property.
5. Obnoxious dust from adjacent activity.
6. Sound from adjoining private airport.
7. Erection of signage that blocks signage of plaintiff.
8. Vegetation that blocks use of your land or signage.
And hundreds more.
Liability can attach for failure to act. If a nuisance is created, the perpetrator is required to take action to stop it. Thus a possessor of land is liable for a nuisance caused by an abatable artificial condition that is otherwise abatable if (a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, (b) he knows or should know that the condition exists without the consent of those affected by it, and (c) he has failed after reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons.
THE CENTRAL IDEA OF NUISANCE IS THE UNREASONABLE INVASION OF A PLAINTIFF’S INTEREST IN THE FREE USE AND ENJOYMENT OF HIS OR HER PROPERTY AND NOT THE PARTICULAR TYPE OF CONDUCT SUBJECTING THE ACTOR TO LIABILITY. “In California, it is settled that where negligent conduct (i.e. conduct that violates the duty of care towards another) also interferes with another’s free use and enjoyment of his property, nuisance liability arises.” (206 CA 3d 100).
The cases have held, however, that fear of a future nuisance which has yet to occur cannot justify an immediate filing of suit.
The more controversial cases involving nuisance relate directly to free speech and obscenity, namely whether stores or movie houses which exhibit obscene materials may constitute nuisances which are actionable by the city (public nuisance) or adjoining land owners (private.) Each jurisdiction has its own interpretation of how far the city or land owners can go in seeking to close down such entities and, of course, the United States Constitution prohibits restriction on free speech.
The Courts have routinely upheld some restriction by the public on such entities and usually conduct a balancing act of free speech and the effect on adjoining land owners and schools of the existence of such businesses. Zoning restrictions have also been used with some success to curtail such entities. Again, it is usually a question of fact for the trier of fact and most private plaintiffs seeking to bar such activity elect to go to the city to seek redress rather than attempt to “change a neighborhood” by nuisance actions.
Some nuisances are “per se,” which means that the Courts have held that if they exist, they are automatically a nuisance. Maintaining a location for the illegal sale of liquor; a house of prostitution; nonconforming advertising (in violation of zoning); obstructing free passage of a public street; dangerous pollution with hazardous materials are all examples of per se nuisances.
REMEDIES:
A private nuisance may be abated (eliminated) by the party injured but at his own risk (e.g. if you are wrong and the court determines it was not a nuisance, YOU may be liable for trespass!) OR the party claiming a private nuisance may bring a civil action for an injunction or damages or both. (C.C. 3501; CCP 731.)
Most sufferers from nuisance do not want to risk the danger of being a defendant in a trespass suit and commence legal action to abate the nuisance and, if the public is affected, seek to have the city or county bring their own action or join in the private action.
Damages, if no injunction is sought, are the diminution in value of your property. Thus, if a pig farm next to yours with obnoxious odors makes development impossible, you could seek the diminution of fair market value of your land based on the presumption that you can not develop it.
DEFENCES
1. Statutory Authority. Various laws have passed to prohibit actions based on nuisance for various activities the state determines are worth while. Typical in this category is CC 3482.5 which provides that “…agricultural activity, operation or facility…conducted or maintained for commercial purposes and in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations…shall (not)…be or become a nuisance private or public due to any changed condition in or about the locality after the same has been in operation for more than three years…” This law was passed to stop housing developments effectively destroying surrounding agriculture as they expanded and should be kept in mind by real estate developers.
Essentially, if a permit has been granted for the activity by the local authority, that will act as a bar to action brought against the holder of the permit so long as the permit allowed the specific activity challenged.
BUT the fact that zoning allows such activity does NOT necessarily stop such activity from being considered a nuisance. Too much noise or pollution from an entity can still allow action for nuisance even if the area is zoned industrial. (Fendley V Anaheim, 1930, 110 CA 731.)
2. Balancing Conveniences (Relative Hardship). In the initial determination of what constitutes a nuisance, there is consideration of conflicting interests leading to a conclusion as to whether the harm suffered outweighs the utility of the conduct. The courts will often “balance the conveniences” or consider the relative hardship to the respective parties should a injunction be granted.
However, such balancing will usually not be allowed if there is a serious or substantial encroachment or willful creation of the nuisance. If the encroachment is slight and the cost of eliminating it great, often the courts will not grant the plaintiff relief. (In a famous case, the nuisance consisted of a slight encroachment of a building on an adjoining property by error…the cost of removal would have been almost the entire cost of construction and the damage to the plaintiff of the tiny encroachment was nil. The court did not grant the injunction, instead giving small monetary damages to plaintiff.)
PRACTICALITIES
The reader should review our article on American Litigation before leaping into court as to a neighbor’s nuisance. As with so much in our courts, the trouble and expense of legal action must be considered carefully and a cost benefit analysis undertaken before the lawyer is allowed to commence action.
But it must be noted that failing to object to a nuisance can lead to waiver of the right to object at a later time. Under the doctrine of “laches” which is the equity court’s equivalent to statute of limitations, a court can conclude that delay in bringing the action bars the right to injunctive relief…or even damages.
Thus, if you feel a nuisance has occurred that is serious enough to take to court, move quickly after a careful consideration of the costs and benefits to be obtained.
The unique thing about land is that the effect on it lasts forever. Thus, if your land’s value is significantly damaged by encroachment, blocking of access, noise or pollution, this will last for years, perhaps decades, perhaps forever, and if you are to protect it you must act now.
And if you are the one accused of nuisance and the cost of stopping is prohibitive, think about purchasing an easement from your neighbor to allow you to continue your activities; in the long run that may be less expensive than the inevitable law suit!