Nuisance

  • Private Land Use: Nuisance

  • N.D. Statute on Nuisance: Consists in unlawfully doing an act or omitting to perform a duty, which act or omission.

    • Annoys, injures or endangers the comfort, repose, health or safety of others.

    • Offends decency

    • Unlawfully interferes with, obstructs or tend to obstruct or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basin, public park, square, street, or highway or

    • In any way renders other persons insecure in life or in the use of property.

      • Tort in Property Context:

      • Ancient Maxim: Use our property in a way that

    • Private Nuisance Elements:

      • Intentional Acts (can also be negligent acts)

      • Those are unreasonable and

      • Substantially interfere (objectively) with another LO’s use and enjoyment.

        • Nature & frequency of impact

        • Key Q: significant decrease in FMV?

    • Public Nuisance: Land use that unacceptably interferes w/ public’s health, welfare or morals (e.g. pollution, aesthetic blight, adult theatres)

    • Is it acceptable for interference to be caused by a nuisance. It may be annoying, but it does not rise to the level where people are going to stop.

  • Nuisance Remedies:

  • Unreasonableness of Defendant’s Acts:

  • Traditional: Unreasonable if defendants actions inappropriate under circumstances

  • Restatement: Unreasonable if gravity of plaintiff’s harm outweigh utility of defendant’s actions.

  • Alternative Restatement: Unreasonable if defendant can afford to pay for plaintiff’s injuries.

    • N.D. STATUTE;

  • Private Nuisance: A private nuisance is one which affects a single individual or a determinate number of persons in teh enjoyment of some private right not common to the public.

    • Private Nuisance Remedies: The remedies are

      • A civil action or

      • Abatement.

      • Injunction

  • Public Nuisance: A public nuisance is one which at the same time affects an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.

  • Civil Action- When maintainable by a private person: A private person may maintain an action for a public nuisance if it is specifically injurious to that person or that person’s property but not otherwise.

    • Meaning that a private citizen can bring a civil action against another party that the government should have brought before that nuisance instead if there is an especially injurious affect by public nuisance upon that person’s property.

  • Possible Nuisance Defenses

    • Coming to the nuisance: Traditionally absolute bar to nuisance claims; now treated as a factor in determining either liability or remedy.

    • Statutory exclusion: “Right to Farm” laws.

Nuisance Committed: What remedy?:

  • Traditional Rule: Automatically enjoin wrongful actions (even where injury was slight & hardship to D was significant), otherwise court “licenses a continuing wrong.”

  • Modern approach balances equities to determine remedy: compare harm to defendant & public of injunction against harm to plaintiff of allowing offending use.

  • Factors: Anything relevant

    • Location: Appropriate for this use?

    • Amount invested in D’s use: disproportionate to P’s injury?

    • Public benefit of D’s use: employment, tax revenue, goods of services?

    • Feasibility of minimizing P’s injury: would less instrusive injunction address harm?

    • Ease of converting D’s use: could D recoup value by converting to non-harmful use?

    • Nature of P’s harm: risk to human health, or annoying smell/noise/blight, etc.?

Different ways a nuisance case can be introduced.