NUISANCE

nuisance. 1. A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways. • Liability might or might not arise from the condition or situation. — Formerly also termed annoyance. [Cases: Nuisance 1–4.

C.J.S. Nuisances §§ 2–8, 10–14, 17–23, 25–45, 47–57, 59–62.]

“A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118 (1926).

“A ‘nuisance’ is a state of affairs. To conduct a nuisance is a tort. In torts, the word ‘nuisance’ has had an extremely elastic meaning; sometimes it is little more than a pejorative term, a weasel word used as a substitute for reasoning …. The general distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not.” Roger A. Cunningham et al., The Law of Property § 7.2, at 417 (2d ed. 1993).

2. Loosely, an act or failure to act resulting in an interference with the use or enjoyment of property. • In this sense, the term denotes the action causing the interference, rather than the resulting condition <the Slocums’ playing electric guitars in their yard constituted a nuisance to their neighbors>. [Cases: Nuisance 3, 61. C.J.S. Nuisances §§ 4, 10–14, 18, 20–21, 25–26, 28, 31–57, 59–62.]“There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” Prosser and Keeton on the Law of Torts § 86, at 616 (W. Page Keeton et al., 5th ed. 1984).
3. The class of torts arising from such conditions, acts, or failures to act when they occur unreasonably. — Also termed actionable nuisance. [Cases: Nuisance 3, 61. C.J.S. Nuisances §§ 4, 10–14, 18, 20–21, 25–26, 28, 31–57, 59–62.]“Nuisance is really a field of tortious liability rather than a single type of tortious conduct: the feature which gives it unity is the interest invaded — that of the use and enjoyment of land. The tort emphasises the harm to the plaintiff rather than the conduct of the defendant.” R.F.V. Heuston, Salmond on the Law of Torts 50–51 (17th ed. 1977).

abatable nuisance. 1. A nuisance so easily removable that the aggrieved party may lawfully cure the problem without notice to the liable party, such as overhanging tree branches. [Cases:

Nuisance 19. C.J.S. Nuisances §§ 92–97, 99.] 2. A nuisance that reasonable persons would regard as being removable by reasonable means.

absolute nuisance. 1. Interference with a property right that a court considers fixed or invariable, such as a riparian owner’s right to use a stream in its natural condition. [Cases: Nuisance 1–7. C.J.S. Nuisances §§ 2–8, 10–15, 17–45, 47–57, 59–62.] 2. See nuisance per se. 3. Interference in a place where it does not reasonably belong, even if the interfering party is careful. 4. Interference for which a defendant is held strictly liable for resulting harm, esp. in the nature of pollution. Cf. qualified nuisance.

Sense (4) has been disapproved: “[T]he use of the term ‘nuisance’ to describe the tort liability that sometimes results from accidental invasions produces too much confusion.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 89, at 637 (5th ed. 1984).

anticipatory nuisance.A condition that, although not yet at the level of a nuisance, is very likely to become one, so that a party may obtain an injunction prohibiting the condition. — Also termed prospective nuisance. [Cases: Nuisance 1. C.J.S. Nuisances §§ 2–8, 10–14, 18–21.]

attractive nuisance.A dangerous condition that may attract children onto land, thereby

causing a risk to their safety. See ATTRACTIVE-NUISANCE DOCTRINE. [Cases: Negligence 1172, 1175. C.J.S. Negligence §§ 399, 476–477, 494–526.]

“[T]he doctrine acquired the unfortunate misnomer ‘attractive nuisance,’ a label which persists to this day. It cannot be taken literally, since the courts have now largely rejected the notion that the child must be attracted by that which injures him, and whether or not the condition is in fact a ‘nuisance’ has nothing at all to do with defendant’s liability to the child.” Edward J.

Kionka, Torts in a Nutshell 89 (2d ed. 1992).

cognate nuisance.Rare. Interference with an easement.

“The term nuisance is applied to torts of two distinct groups, first, acts of wrongful user by an owner or possessor of land resulting in an unreasonable interference with the rights of enjoyment of the owner or possessor of neighboring land, and, second, wrongful interferences with easements or other incorporeal rights.” William F. Walsh, A Treatise on Equity 170 (1930).

“When an easement was interfered with, an action on the case lay as a matter of course…. Such an interference is sometimes called ‘cognate nuisance’ to distinguish it from interferences with the personal enjoyment of the incidents of occupying the land.” J.H. Baker, An Introduction to English Legal History 486 (3d ed. 1990).

common nuisance.See public nuisance.

continuing nuisance.A nuisance that is either uninterrupted or frequently recurring. • It need not be constant or unceasing, but it must occur often enough that it is almost continuous. [Cases:

Nuisance 4, 19. C.J.S. Nuisances §§ 25–27, 92–97, 99.]

legalized nuisance.A nuisance sanctioned by legislative, executive, or other official action

and therefore immune from liability, such as a city park.

mixed nuisance.A condition that is both a private nuisance and a public nuisance, so that it is dangerous to the community at large but also causes particular harm to private individuals. [Cases:

Nuisance 72. C.J.S. Nuisances §§ 65–66.] nuisance at law.See nuisance per se. nuisance dependent on negligence.See qualified nuisance.

nuisance in fact.A nuisance existing because of the circumstances of the use or the particular location. • For example, a machine emitting high-frequency sound may be a nuisance only if a person’s dog lives near enough to the noise to be disturbed by it. — Also termed nuisance per accidens.

nuisance per se (p<<schwa>>r say). Interference so severe that it would constitute a nuisance under any circumstances; a nuisance regardless of location or circumstances of use, such as a leaky nuclear-waste storage facility. — Also termed nuisance at law; absolute nuisance. [Cases:

Nuisance 4. C.J.S. Nuisances §§ 25–27.]

permanent nuisance.A nuisance that cannot readily be abated at reasonable expense. Cf. temporary nuisance. [Cases: Nuisance 1, 4. C.J.S. Nuisances §§ 2–8, 10–14, 18–21, 25–27.]

private nuisance.A condition that interferes with a person’s enjoyment of property; esp., a structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor’s land and amounting to a trespass to it. • The condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction. [Cases: Nuisance 1. C.J.S. Nuisances §§ 2–8, 10–14, 18–21.]

“Trespass and private nuisance are alike in that each is a field of tort liability rather than a single type of tortious conduct. In each, liability may arise from an intentional or an unintentional invasion. For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm…. In private nuisance an intentional interference with the plaintiff’s use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability.” Restatement (Second) of Torts § 821D cmt. d (1979).

“The different ways and combinations of ways in which the interest in the use or enjoyment of land may be invaded are infinitely variable. A private nuisance may consist of an interference with the physical condition of the land itself, as by vibration or blasting which damages a house, the destruction of crops, flooding, raising the water table, or the pollution of a stream or of an underground water supply.” W. Page Keeton et al.,Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed. 1984).

prospective nuisance.See anticipatory nuisance.

public nuisance.An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. • Such a nuisance may lead to a civil injunction or criminal prosecution. — Also termed common nuisance. [Cases: Nuisance 59–96.

C.J.S. Landlord and Tenant § 344; Nuisances§§ 4, 9–10, 14–16, 18, 20–21, 24, 34–39, 41–66,

70–76, 78, 84–86, 88–91, 94–97, 103–115, 117–118, 120–122, 124–133, 149–158.]

“Public and private nuisances are not in reality two species of the same genus at all. There is no generic conception which includes the crime of keeping a common gaming-house and the tort of allowing one’s trees to overhang the land of a neighbour. A public nuisance falls within the law of torts only in so far as it may in the particular case constitute some form of tort also. Thus the obstruction of a highway is a public nuisance; but if it causes any special and peculiar damage to an individual, it is also a tort actionable at his suit.” R.F.V. Heuston, Salmond on the Law of Torts 49–50 (17th ed. 1977).

“[P]ublic nuisance … is an amorphous and unsatisfactory area of the law covering an ill-assorted collection of wrongs, some of which have little or no association with tort and only appear to fill a gap in criminal law. Others cover what could be generally described as ‘noisome trade,’ which could be dealt with under some form of statutory nuisance. Yet a third group deals with what we would generally describe as ‘abuses of the highway’ ….” R.W.M. Dias & B.S. Markesinis, Tort Law 254 (1984).

qualified nuisance.A condition that, though lawful in itself, is so negligently permitted to exist that it creates an unreasonable risk of harm and, in due course, actually results in injury to another. • It involves neither an intentional act nor a hazardous activity. — Also termed nuisance dependent on negligence. Cf. absolute nuisance. [Cases: Nuisance 1, 6, 59. C.J.S. Nuisances §§

2–8, 10–15, 18–21, 24.]

recurrent nuisance.A nuisance that occurs from time to time with distinct intervals between

occurrences, rather than being continuous or only briefly interrupted.

temporary nuisance.A nuisance that can be corrected by a reasonable expenditure of money or labor. Cf. permanent nuisance. [Cases: Nuisance 4, 19. C.J.S. Nuisances §§ 25–27, 92–97, 99.]

[Blacks Law 8th]