Restat 2d of Torts, § 821D

• Restatement of the Law, Second, Torts
• Division 10- Invasions of Interests in Land Other Than by Trespass
• Chapter 40-
• Topic 1- Types of Nuisance
• § 821D Private Nuisance

A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.

Comment:

a.  Nature of interest invaded.  The action for private nuisance originated in the assize of nuisance, which dates back to as early as the twelfth century. This action was complementary to the assize of novel disseisin. While the assize of novel disseisin was an action for redressing interferences with the seisin of land, the assize of nuisance provided redress when the injury was not a disseisin, as when there was no entry on the plaintiff's land, but was an indirect damage to the land or an interference with its use and enjoyment. The assize of novel disseisin was directed to secure an undisturbed possession; the assize of nuisance to secure its free enjoyment. This assize of nuisance also extended to interferences with easements and profits. Early in the fifteenth century, the assize of nuisance was replaced by an action on the case for nuisance that became the sole common law remedy. This action on the case lay only for damages and not for abatement as did the older remedy, thus making it necessary for the successful plaintiff to resort to equity if he wished to secure abatement by judicial process.

It is obvious from the history of the action for private nuisance that the interests originally protected were interests in the use and enjoyment of land, including interests in the use and enjoyment of easements and profits. These interests continue to be the interests that are protected by actions for private nuisance. When there is an invasion of these interests, the plaintiff may recover not only for harm arising from acts that affect the land itself and the comfortable enjoyment of it, but also for harm to members of his family and to his chattels.

b.  Interest in use and enjoyment of land.  The term "interest" is defined in § 1. The phrase "interest in the use and enjoyment of land" is used in this Restatement in a broad sense. It comprehends not only the interests that a person may have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the present use value of the land unimpaired by changes in its physical condition. Thus the destruction of trees on vacant land is as much an invasion of the owner's interest in its use and enjoyment as is the destruction of crops or flowers that he is growing on the land for his present use. "Interest in use and enjoyment" also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself. This interest in freedom from annoyance and discomfort in the use of land is to be distinguished from the interest in freedom from emotional distress. (See § 46). The latter is purely an interest of personality and receives limited legal protection, whereas the former is essentially an interest in the usability of land and, although it involves an element of personal tastes and sensibilities, it receives much greater legal protection.

c.  Private use and enjoyment.  Uses of land are either private or public. The uses that members of the public are privileged to make of public highways, parks, rivers and lakes, are "public" as distinguished from "private." By private use is meant a use of land that a person is privileged to make as an individual, and not as a member of the public. This and succeeding Sections do not deal with invasions of interests in public uses of land, and the phrase "use and enjoyment" is always used here in the sense of "private use and enjoyment." On public nuisance, see §§ 821B and 821C.

d.  Trespass distinguished.  A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it. (See §§ 157-166). A nuisance is an interference with the interest in the private use and enjoyment of the land, and does not require interference with the possession. A trespass was remediable at common law by an action of trespass; the private nuisance was remediable by an action on the case. 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 trespass an intentional invasion of the plaintiff's possession is of itself a tort, and liability follows unless the defendant can show a privilege. 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.

e.  Both trespass and nuisance.  There may, however, be some overlapping of the causes of action for trespass and private nuisance. An invasion of the possession of land normally involves some degree of interference with its use and enjoyment and this is true particularly when some harm is inflicted upon the land itself. The cause of action for trespass has traditionally included liability for incidental harms of this nature. If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both. Thus the flooding of the plaintiff's land, which is a trespass, is also a nuisance if it is repeated or of long duration; and when the defendant's dog howls under the plaintiff's window night after night and deprives him of sleep, there is a nuisance whether the dog is outside the plaintiff's land or has entered upon it, and the defendant's negligence in looking after the dog would make him liable either for trespass if there was an entry or for nuisance whether there was entry or not.

The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both.

This Section is new. The Comments replace a part of the original Scope and Introductory Note to this Chapter and a part of the original § 822.

Examples of private nuisance are: Hoare & Co. v. McAlpin & Sons, [1928] 1 Ch. 167 (vibration making building unsafe); Transcontinental Gas Pipe Line Co. v. Gault, 198 F.2d 196 (4th Cir. 1952) (vibration); United Verde Extension Mining Co. v. Ralston, 37 Ariz. 554, 296 P. 262 (1931) (destruction of crops); Stevens v. Moon, 54 Cal.App. 737, 202 P. 961 (1921) (damage to trees); Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (1917) (raising water table); William Tackaberry Co. v. Sioux City Serv. Co., 154 Iowa 358, 132 N.W. 945 (1911) (flooding); Sam Warren & Son Stone Co. v. Gruesser, 307 Ky. 98, 209 S.W.2d 817 (1948) (vibration); Schmidt v. Village of Mapleview, 293 Minn. 106, 196 N.W.2d 626 (1972) (hydrant partially blocks driveway); Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969) (trees on defendant's property cause harm to plaintiff's property); Laurel Equipment Co. v. Matthews, 218 Miss. 718, 67 So.2d 258 (1953) (paint spray); Schmidt v. Paul, 554 S.W.2d 496 (Mo.App.1977) (mud and debris washed on property); Rindge v. Sargent, 64 N.H. 294, 9 A. 723 (1886) (flooding); Crocker v. College of Advanced Science, 110 N.H. 384, 268 A.2d 844 (1970) (sewer easement surcharged); Heeg v. Licht, 80 N.Y. 579, 36 Am.Rep. 654 (1880) (building damaged by explosion); Campbell v. Seaman, 63 N.Y. 568, 20 Am.Rep. 567 (1876) (trees and plants killed); Edwards v. Talent Irrigation Dist., 280 Or. 307, 570 P.2d 1169 (1977) (water from irrigation ditch); Beecher v. Dull, 294 Pa. 17, 143 A. 498 (1928) (blasting damage); Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251 (1936) (pollution); Conestee Mills v. City of Greenville, 160 S.C. 10, 258 S.E. 113 (1931) (same); Severt v. Beckley Coal, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969) (dust from coal mine).

Personal discomfort, annoyance, inconvenience: Aldred's Case, 9 Co.Rep. 57, 77 Eng.Rep. 816 (1610) (odors from hog sty); Sanders-Clark v. Grosvenor Mansions Co., [1900] 2 Ch. 373 (heat); Soap Corp. of America v. Reynolds, 178 F.2d 503 (5th Cir. 1949) (odors); Transcontinental Gas Pipe Line Corp. v. Gault, 198 F.2d 196 (4th Cir. 1952) (noise, smoke, odors); Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629 (1934) (noise); McClung v. Louisville & N. R. Co., 255 Ala. 302, 51 So.2d 371 (1951) (dust, noise, odors); Sierra Screw Prods. v. Azusa Greens Inc., 88 Cal.App.3d 358, 151 Cal.Rptr. 799 (1979) (golf balls from golf courses); Oberst v. Mays, 148 Colo. 285, 365 P.2d 902 (1961) (dust); Phelps v. Winch, 309 Ill. 158, 140 N.E. 847 (1923) (noise); Menolaschino v. Superior Felt & Bedding Co., 313 Ill.App. 557, 40 N.E.2d 813 (1942); Davoust v. Mitchell, 146 Ind.App. 536, 257 N.E.2d 332 (1970) (dogpen odors & noise); Shannon v. Missouri Valley Limestone Co., 225 Iowa 528, 122 N.W.2d 278 (1963) (dust); Steifer v. City of Kansas City, 175 Kan. 794, 267 P.2d 474 (1954) (smoke, odors); Jefferson Lbr. & Concrete Prods., Inc. v. Jimco, Inc., 217 So.2d 721 (La.App.1969) (cement factory dust); Gorman v. Sabo, 210 Md. 155, 122 A.2d 475 (1956) (noise); Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (1914) (noise); Lamoine v. Doyle, 338 Mass. 793, 155 N.E.2d 782 (1959) (dust); Norton Shores v. Carr, 81 Mich.App. 715, 265 N.W.2d 802 (1978) (dust); Cochran v. Consumers' Wirebound Box Co., 246 Miss. 398, 149 So.2d 844 (1963) (soot); Sarraillon v. Stevenson, 153 Neb. 182, 43 N.W.2d 509 (1950) (odors); Protokowicz v. Lesofski, 69 N.J.Super. 436, 174 A.2d 385 (1961) (noise and fumes); Bohan v. Port Jervis Gaslight Co., 122 N.Y. 18, 25 N.E. 246 (1890) (odors); Cogswell v. New York, N. H. & H. R. Co., 103 N.Y. 10, 8 N.E. 537 (1886) (smoke); Town of Mount Pleasant v. Van Tassell, 7 Misc.2d 643, 166 N.Y.S.2d 458, (1957), aff'd, 6 A.D.2d 880, 177 N.Y.S.2d 1010 (1958) (rats, flies, odors); Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953) (gases, odors); Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923 (1949) (airport noise); Jones v. Queen City Speedways, Inc., 276 N.C. 231, 172 S.E.2d 42 (1970) (drag strip noise); Macca v. General Tel. of Nw., Inc., 262 Or. 414, 495 P.2d 1193 (1972) (negligent listing of plaintiff's telephone number as after-hours number for florist); Firth v. Scherzberg, 366 Pa. 443, 77 A.2d 443 (1951) (noise); Carter v. Lake City Baseball Club, 218 S.C. 255, 62 S.E.2d 470 (1950) (baseballs batted onto land); Johnson v. Drysdale, 66 S.D. 436, 285 N.W. 301 (1939) (odors); Caldwell v. Knox Concrete Products, Inc., 54 Tenn.App. 393, 391 S.W.2d 5 (1964) (noise); Herring v. Wilton, 106 Va. 171, 55 S.E. 546 (1906) (noise); Riblet v. Spokane Portland Cement Co., 41 Wash.2d 249, 248 P.2d 380 (1952) (dust).

Disturbance of peace of mind: Florida East Coast Properties, Inc. v. Metropolitan Dade County, 572 F.2d 1108 (5th Cir. 1978) (jail/work release facility); Tedescki v. Berger, 150 Ala. 649, 43 So. 960 (1907) (bawdy house); Bader v. Iowa Metro. Sewer Co., 178 N.W.2d 305 (Iowa 1970) (sewer plant); Stotler v. Rochelle, 83 Kan. 86, 109 P. 788 (1910) (fear of contagion); Cumberland Torpedo Co. v. Gaines, 201 Ky. 88, 255 S.W. 1046 (1923) (fear of explosion); Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1971), appeal after remand, 280 So.2d 845 (La.App. 1973), writ denied 282 So.2d 519 (La.1973) (fire hazard from storage tank); City of Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 A. 1081 (1898) (fear of contagion); Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202 (1924) (undertaking establishment); Heston v. Ousler, 119 N.H. 58, 398 A.2d 536 (1979) (out buildings and dock immediately adjacent to plaintiff's shoreline); Crawford v. Tyrrell, 128 N.Y. 341, 28 N.E. 514 (1891) (bawdy house); Puritan Holding Co. v. Holloschitz, 82 Misc.2d 905, 372 N.Y.S.2d 500 (1975) (dilapidated house across street); Cherry v. Williams, 147 N.C. 452, 61 S.E. 267 (1908) (fear of contagion); Everett v. Paschall, 61 Wash. 47, 111 P. 879 (1910) (funeral home); cf. Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923 (1949) (airport noise and danger).

Interference with health: Sullivan v. American Mfg. Co., 33 F.2d 690 (4th Cir. 1929); Richards v. Daugherty, 133 Ala. 569, 31 So. 934 (1902); Yaffe v. Fort Smith, 178 Ark. 406, 10 S.E.2d 886 (1928); Savannah, F. & W. R. Co. v. Parish, 117 Ga. 893, 45 S.W. 280 (1903); Hunnicutt v. Eaton, 184 Ga. 485, 191 S.E. 919 (1937); Mills v. Hall & Richards, 9 Wend. (N.Y.) 315, 24 Am.Dec. 160 (1832); Bowlin v. George, 239 S.C. 429, 123 S.E.2d 528 (1962).

Comment e:  Trespass distinguished. See Borland v. Sanders Lead Co., Inc., 369 So.2d 523 (Ala.1979); Ryan v. City of Emmetsburg, 232 Iowa 660, 4 N.W.2d 435 (1942); Fairlawn Cemetery Ass'n v. First Presbyterian Church, 496 P.2d 1185 (Okl. 1972); Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 19 A.2d 362 (1941).

Comment f:  Both trespass and nuisance. See Miller v. Carnation Co., 39 Colo.App. 1, 564 P.2d 127 (1977) (poultry ranch); Graham v. Lowden, 137 Me. 48, 15 A.2d 69 (1940) (building erected on plaintiff's land); Whitehall Constr. Co. v. Washington Suburban San. Comm'rs, 165 F.Supp. 730 (D.Md.1958) (collapse of paving); Codman v. Evans, 89 (7 Allen) Mass. 431 (1863) (projecting building); Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447, 162 N.E. 895 (1928) (encroachment); Brill v. Flagler, 23 Wend. (N.Y.) 354 (1840) (dog under windows); Barnes v. Hagar, 148 N.Y.S. 395 (Sup.Ct. 1913), aff'd, 166 App.Div. 952, 151 N.Y.S. 1103 (cattle in fields); Renken v. Harvey Aluminum, Inc., 226 F.Supp. 169 (D.Or.1963) (deposit of fluorides).

Also compare Beecher v. Dull, 294 Pa. 17, 143 A. 498 (1928) (blasting nuisance), with Mulchanoch v. Whitehall Cement Mfg. Co., 253 Pa. 262, 98 A. 554 (1916) (trespass); and Groover v. Hightower, 59 Ga.App. 491, 1 S.E.2d 446 (1939) (flooding, trespass and nuisance), with Town of Rindge v. Sargent, 64 N.H. 294, 9 A. 723 (1886) (nuisance), and Mueller v. Fruen, 36 Minn. 273, 30 N.W. 886 (1886) (both), and Irvine v. City of Oelwein, 170 Iowa 653, 150 N.W. 674 (1915) (both).

ALR Annotations:

Funeral home as private nuisance. 8 A.L.R.4th 324.
Landlord and tenant. Constructive eviction by another tenant's conduct. 1 A.L.R.4th 849.

Digest System Key Numbers:

C.J.S. Nuisances §§ 1 et seq., 10, 15, 16, 20-25, 35 et seq., 161.
West's Key No. Digests, Nuisance 1 et seq.