Nuisance

Nuisance is a common law tort. It is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the right of quiet enjoyment is being disrupted to such a degree that a tort is being committed.  Traditionally, nuisance is divided into public nuisance, interference with the reasonable expectations and rights of the general public (ie, society), and private nuisance, the interference with the right of specific people.

Right to Quiet Enjoyment

Under the common law, persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a l neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.  To be a nuisance, the level of interference must rise above the merely aesthetic. For example, if your neighbour paints their house purple, it may offend you, but it does not rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.

Public vs. Private Nuisance

A public nuisance is an unreasonable interference with the public's right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute or by the nature of the act, including how long and how bad the effects of the activity.  Conversely, a private nuisance is simply a violation of one's use of quiet enjoyment of land. It does not include trespass.

Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits.

Remedies

Under the common law, the only remedy for a nuisance was the payment of damages. However, with the development of the courts of equity, the remedy of an injunction became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt if the defendant is in breach of such an injunction.

The law and economics movement has been involved in analyzing the most efficient choice of remedies given the circumstances of the nuisance. In Boomer v. Atlantic Cement Co. a cement plant interfered with a number of neighbors, yet the cost of complying with a full injunction would have been far more than a fair value of the cost to the plaintiffs of continuation. The New York court allowed the cement plant owner to 'purchase' the injunction for a specified amount--the permanent damages. In theory, the permanent damage amount should be the net present value of all future damages suffered by the plaintiff.

Current State of the Law

Many states have limited instances where a claim of nuisance may be brought. Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. For example, many states and provinces have "right to farm" provisions that allow any agricultural use of land zoned or historically used for agriculture.

There are two classes of nuisance under the American law: a nuisance in fact or "nuisance per accidens" and a nuisance per se. The classification determines whether the claim goes to the jury or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing or act in question created a nuisance by examining its location and surroundings, the manner of its conduct, and other circumstances. A determination that something is a nuisance in fact also requires proof of the act and its consequences.

By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings."  Liability for a nuisance per se is absolute and injury to the public is presumed; if its existence is alleged and established by proof, it is also established as a matter of law. Therefore a judge would decide a nuisance per se while a jury would decide a nuisance in fact.

Most nuisance claims allege a nuisance in fact for the simple reason that not many actions or structures have been deemed to be nuisances per se. In general, if an act or use of property is lawful or authorized by competent authority, it cannot be a nuisance per se. Rather, the act in question must either be declared by public statute or by case law to be a nuisance per se. There are not many state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Nor are many activities or structures in and of themselves and under any and all circumstances a nuisance, which is how courts determine whether or not an action or structure is a nuisance per se.