Chapter 15

NUISANCE

The term “nuisance” refers not to a type of tort, but to a type of injury which P has sustained. There are actually two types of nuisance: “public nuisance” and “private nuisance.”

• Public nuisance:  A “public nuisance” is an interference with a right common to the general public. If D releases noxious odors or harmful chemicals into the air, cuts off the use of a public road, or maintains an unlicensed business, all of these may be public nuisances.
• Private nuisance:  A “private nuisance” is an unreasonable and substantial interference with P’s use and enjoyment of his land.
  • Requirements:  The plaintiff in a private nuisance action must show two things: (1) that he has an interest in land that has been substantially and unreasonably interfered with; and (2) that D behaved in a negligent, abnormally dangerous or intentional manner.

I. NUISANCE GENERALLY

A. Confusion surrounding the term:  Although courts often use the term “nuisance” as if they were talking about a particular tort, the term really refers to a kind of injury which the plaintiff has sustained. In the case of “public nuisance,” this injury is the loss of any right that the plaintiff has by virtue of being a “member of the public.” In cases of private nuisance, the plaintiff’s injury consists of interference with his use or enjoyment of his land. See generally P&K, pp. 616-19.

1. Significance of nuisance:  Therefore, instead of viewing the rules set forth in this chapter as circumstances under which the “tort” of nuisance may be maintained, you should instead think of them as definitions of what constitutes sufficiently great damage to the plaintiff that he is entitled to sue. The suit itself may have as a basis any of the types of culpable defendant behavior we have examined so far: (1) intentional interference with the plaintiff’s rights; (2) negligence; or (3) abnormally dangerous activities or other conduct giving rise to strict liability.

Example:  A gas well being drilled by D explodes, throwing noxious chemicals on P’s property. In order to show the kind of damage required for “private nuisance,” P must show that his use and enjoyment of his property have been substantially impaired (which he will almost certainly be able to do). But he must also show that D’s conduct was either intentional (e.g., D knew that the well was substantially certain to interfere with P’s property), negligent (e.g., D carelessly neglected to take adequate safety precautions) or abnormally dangerous.