A Brief Introduction to the Law of Nuisance

A traditional definition of nuisance is an unreasonable interference with public rights (public nuisance), or conduct that interferes with an individual's use and enjoyment of her or his land (private nuisance). Nuisance is a very elastic concept that has been expanded by statutes and city ordinances to include, for example, abatement of sources of pollution, fines and closure actions against businesses and residential locations engaging in the sale of stolen property, prostitution, or drug dealing, or fining property owners for excessive 911 calls from their location. This comment provides a brief overview of the law of nuisance. Always consult an experienced attorney in a specific situation.

Public nuisances (also called "common nuisances") interfere, broadly speaking, with public or collectively shared health, safety, peace, morals, or convenience. They exist as civil violations both at common law and by legislation and may or may not additionally constitute a crime. Private nuisances are uniquely related to specific privately owned land uses and typically do not involve a traditional physical trespass (for example, loud noises may be a nuisance). Nuisances may be further subdivided into temporary, reoccurring (for example, rain drainage), and continuing. Nuisance law tends to focus on the relative rights of the parties and not specifically defined activities. Hence, a nuisance may exist without precisely defined advance information that specific conduct is unlawful as criminal law requires. Courts tend to ignore a legal challenge to a declaration of nuisance when the challenge is based upon an assertion of unconstitutional due process because of a lack of advance notice or vagueness.

As urbanization increased and people "rubbed shoulders" in more physically confined settings, nuisance law expanded. For example, railroads were required to fence train yards to prevent trespassing children from being injured under an "attractive nuisance" doctrine. The same idea is often currently applied to swimming pools. This approach balances the burden on a property owner to secure her or his premises against the grave potential harm to curious, immature children. A countervailing contemporary argument attributes contributory negligence (unreasonable conduct) to parents who fail to supervise their children and prevent them from trespassing. If an ordinance requires that a swimming pool be fenced, then it is negligence per se (automatic negligence) by the property owner not to obey the ordinance. An ancient example of such a mandated safety regulation appears in the Bible in Deuteronomy 22:8: "When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof."

However, community values change over time. For example, the urban agriculture movement has tangled with traditional land use, zoning, and nuisance law. Keeping backyard chickens becomes contentious. The legal issues associated with a desire for urban organic homegrown food are unfolding. Rooftop gardens on new high rises are becoming more common. Traditional rural farming operations were granted legal protection from nuisance claims under "Right to Farm" state legislation starting in the late 1970s. Under these statutes a lawful farming operation could not be shut-down by subsequent-in-time nearby developers asserting that the farm's sounds, smells, etc. constituted a nuisance.

Stopping a nuisance is called abatement. In the urban environment, there are city ordinances and codes that may be utilized such as those addressing trash and tall grass and weeds, dangerous buildings, and challenges to alcohol licensing. A variety of business may be regulated by location ordinances. Fines and closure orders are possible. However, expanded forms of ordinance enforcement, as briefly discussed below, are more controversial.

Domestic violence advocates assert that "chronic nuisance" city ordinances that mandate evictions from rental premises for excessive 911 calls victimize battered women who must choose between safety or housing. A Chronic Nuisance Ordinance may define a broad list of prohibited activities such as uncut grass, loud noises, or the presence of garbage on owned, rented, or commercial premises, and then include a catch-all category of "disorderly conduct." The ordinance may broadly prohibit the conduct from being committed by owners, tenants, guests, or a passerby. Based upon the number of times events occur within a specified period, there may be a sliding scale of fines up to eviction, closure, or even property forfeitures. The rationale for these ordinances is to reduce the demand for police responses at a given location in turn leading to a reduction in problem behaviors, increased neighborhood property values, added tax revenues, and an overall reduction in crime. However, critics assert, these ordinances reduce the private housing supply for the poor and shift financial burdens to the public in the form of emergency services and shelter and at best merely shift problems elsewhere without addressing the underlying causes.

The Texas Supreme Court in a lengthy June 24, 2016, opinion (Crosstex Northern Pipeline, L.P, v. Gardiner) engaged in an extensive review of the law of private nuisance. The opinion began: "This is a nuisance case, but that does not tell you much. As a legal concept, the word nuisance 'has meant all things to all people.'" ... "Taking this opportunity to clarify the law, we hold that the term 'nuisance" refers not to a defendant's conduct or a legal claim or cause of action but to a type of legal injury involving interference with the use and enjoyment of real property. We further clarify that a defendant can be liable for causing a nuisance if the defendant intentionally causes it, negligently causes it, or - in limited circumstances - causes it by engaging in abnormally dangerous or ultra-hazardous activities."

The Texas case involved noise coming from a natural gas compressor station located on a ranch. A trial jury determined that the noise and resulting nuisance was negligently created, was permanent, and caused the ranch's fair market value to decline by some $2 million. The case was remanded to the trial court for additional facts to be determined.

The Texas Supreme Court noted that nuisance law attempts to balance a property owner's right to use her or his property against a duty not to unreasonably injure a neighbor's rights. Context and the importance of the conduct to the community are factors to consider. The Texas Supreme Court affirmed the following definition of nuisance as part of the trial jury's instructions: "A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Furthermore, the Court stated that "nuisance" does not refer to the "wrongful act" or "resulting damages" but to the legal injury that only occurs if the interference is "substantial" and causes "discomfort or annoyance" that is "unreasonable." Not every trivial or petty annoyance of everyday life constitutes a nuisance. "Unreasonable" focuses on the interference and not the conduct, considers an objective standard of persons of ordinary sensibilities and not the subjective feelings of the particular complaining party, and involves a balancing of the specific situational factors.

The Court emphasized that the focus should be on the unreasonable impact and not on whether or not the conduct was unreasonable. The Court listed ten specific non-exclusive factors to consider in determining if interference is unreasonable or substantial:

- "The character and nature of the neighborhood, each party's land usage, and social expectations;
- the location of each party's land and the nature of that locality;
- the extent to which others in the vicinity are engaging in similar conduct in the use and enjoyment of their land;
- the social utility of each property's usage;
- the tendency or likelihood that the defendant's conduct will cause interference with the plaintiff's use and enjoyment of their land;
- the magnitude, extent, degree, frequency, or duration of the interference and resulting harm;
the relative capacity of each party to bear the burden of ceasing or mitigating the usage of the land;
- the timing of each party's conduct or usage that creates the conflict;
- the defendant's motive in causing the interference; and
- the interests of the community and the public at large."

Nuisances may be created intentionally or negligently. A third category is termed "strict-liability nuisance" and involves conduct that is abnormal or out-of-place in its surroundings. This strict-liability approach came from an 1868 English decision, Rylands v. Fletcher, involving the escape of water from a burst reservoir. The conduct must be dangerous and create a significant risk of serious injury. If a nuisance exists, a court may award monetary damages or issue an injunction ordering specified conduct to cease.

Nuisance is a social construct that is very fact, time, and place specific. As virtual reality interacts with physical reality in video games and other applications and even now drones fly above property boundaries, it will be interesting to see the older legal concept of trespass to land (unreasonable interference with possessory rights) give rise to new forms of blended trespass-nuisance actions. Thus, for example, suppose a drone with a camera were consistently flown high enough on adjoining property to look over a privacy fence. It could be considered an invasion of privacy but without physical intrusion might not currently be a trespass. Even without physical intrusion into the neighboring airspace, would the drone constitute a nuisance? Additionally, who owns the electronic spectrum and cyberspace above your land? If a video game in some manner appropriates the cyberspace of your property, or other electronic signals enter your property, is it a trespass or nuisance? What electronic countermeasures should a property owner be allowed to exercise in self-help abatement of nuisance and trespass? Legal rules will be created to address new technologies.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all nuisance situations.