PRIVATE NUISANCE ON THE LAND: THE LAW AND
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
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.)
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,
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
Although most cases involve a
continuing series of acts or conduct, even a single act can constitute a
What type of activity are we
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
Sinking oil wells that obstruct access to the street.
Deposit of materials or pollution (pile of material washed down in
rain onto your land.)
Noxious odors, smoke or noise from adjoining property.
Obnoxious dust from adjacent activity.
Sound from adjoining private airport.
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
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
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
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.)
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.
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.
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.
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.
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.)
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.
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
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.
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.
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.
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.
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!