The Nuisance
Lecture Series 2
John Keller – Plan 752 Planning
Law
The Ancient Law of Nuisances
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With the title to all real property is passed
an implied covenant of enjoyment and
quietude, therefore let each use their own
so as not to injure others
Concept
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The law of nuisance is traditionally concerned with
the protection of property rights. In this sense it is
concerned with the enjoyment of land by the owner
or occupant. However, it is distinguishable from
trespass to land in that, first, it is not necessarily an
intentional act; and second, a nuisance may occur
even without any physical incursion onto the
plaintiff's land. The right protected is more the right
to enjoyment of the land than exclusive possession.
The events giving rise to a nuisance can be a physical
interference with the plaintiff's land, but it may also
be an interference with what is frequently described
as the plaintiff's right to enjoy the "amenities" of the
land, eg, the enjoyment of one's land or domicile
without excessive interference by noise or smell.
Two Types of Nuisances
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Public Nuisance – Unreasonable
interference with a property right common
to the public – local government
establishes a sewer plant
Private Nuisance – Impact only one or a
small group of property owners – your
neighbor plays bagpipes at 4 in the
morning
Nuisance Classification
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Nuisance by accident (per accidens) is a
nuisance only by reason of its location,
surroundings, or method of operation
Nuisance per se – A use of the land or an
activity which is generally considered to be
a nuisance at all times
The Big Picture
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One cannot come to the nuisance and
expect relief!!! The converse is that when
a person move to a quiet residential are
there is a reasonable expectation of quiet
living
This large ticket item is at the core of the
nuisance concept – it will be discussed at
length at a later time
Factual Considerations
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Harm v annoyance
Triviality
Give and take
Locality
Abnormal sensitivity
Time, duration and frequency
Intrinsic nature of the activity
Malice but not always necessary to show reckless or
negligent use
Precautions
Public benefit – utility of the activity
Is This A
Nuisance?
CAR FARM
More Concepts
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Each nuisance case is unique and turns on
factual situations and thresholds. Court
must consider all relevant factors and
balance the gravity of harm to the plaintiff
versus the utility of the defendants’
conduct.
Some Local Color
More Color
Mrs. Bove Gets the Shaft
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Mrs. Bove purchases property in an
established manufacturing area.
She runs a small convenience in her home
and also rents out upper rooms
She claims nuisance based on the
allegation that nearby uses have rendered
her property, home and livelihood nearby
untenable.
Bove Site
Gasoline
Storage
Abby Street
Bove
Railroad
Lines
Coke Ovens
Donner
Hanna
Copr
Only Know Picture of Mrs. Bove
Taken in 1937
Findings
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The law will not allow a person to be put
in positive distress and be driven from
their home
When a nuisance conflict arises the object
is to balance the rights of both parties, so
far as possible, and preserve to each their
just claim and rights
Findings 2
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One living in a large urbanized and
industrial area cannot expect the quiet
benefits of the country.
Donner Hanna is not a nuisance per se
Mrs Bove caused her own distress by
coming to this well established industrial
area. She is not entitled to relief
Powell v Tayor or No Funerals
Here Only Dead Bodies
The Facts
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The defendant had purchased a property known as the
Taylor place and had intended to remodel the property into
a combined residence and undertaking parlor. The planned
parlor was to be used strictly as a preparatory facility for
the deceased, without performing funeral services.
The plaintiffs were residents located within the sixteen Cityblock Square surrounding the proposed parlor. After the
intent for the property was announced, the plaintiffs
objected and offered to reimburse the defendant for any
incurred expenses. The defendant rejected the offer
First Hearing
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The plaintiffs filed suit with the local
District Court, seeking an injunction
against the development of the Taylor
property under the premise that properties
surrounding the parlor would suffer loss of
value due to impact to the aesthetic
quality of the residential neighborhood.
The court denied relief to the plaintiffs on
the grounds that the area in question was
not strictly residential
The Appeal
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Until the end of the nineteenth century, limitations on
property use were designed strictly to prevent injury to the
physical senses of neighbors in residential districts. Types
of businesses banned in residential districts included
slaughterhouses, livery stables, blasting operations
Modern law has expanded to include actions that would
affect equity in regards to aesthetics and mental health.
Inhabitants of a neighborhood may take prompt action to
bar the establishment of funeral parlors and cemeteries in
residential districts under the premise that such
establishments create continual reminders of death and
dead bodies. This can affect the mental balance of
inhabitants as well as equity in surrounding properties
Mental Balance
Mentally Unbalanced
The Neighborhood
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The majority opinion for the court
found for the plaintiff, as the
neighborhood in question is “so
essentially residential in character”
as to entitle the appellants to the
relief asked
The Dissent
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Come on people, the neighborhood is not
just 4 blocks. The overall neighborhood
contains many commercial uses
The Real Neighborhood
The Anticipatory Nuisance
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Justice Millwee noted “The rule is well settled
that no injunction should be issued in advance of
the construction of a legal structure, or in
advance of the operation of a legal business,
unless it be certain that the same will constitute a
nuisance
The proper action of the plaintiffs would to have
been to allow the parlor to begin operation. If
after operation the parlor was demonstrated to
produce a nuisance to the neighborhood, the
plaintiffs could then have followed established
avenues of complaint to abate the nuisance or
remove the parlor from operation.
Seen Outside the Funeral Parlor
Dissent’s Conclusion
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The parlor in question does not constitute a
nuisance as it will not be performing the functions
of a funeral home that create public nuisances;
those being the holding of actual funerals and the
movement of ambulances to and from the parlor.
The physical form of the parlor would remain that
of a residence and would not affect property
equity or the aesthetic nature of the district in
question. Additionally, the presence of other such
in-home businesses precludes the argument of
the district’s residential nature
The Drive-Thru Funeral Home
and the Funeral Web Cam
Spur Industries v Del Webb
Background
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Youngstown AZ is founded in 1954 as a
retirement community. Located about 15 miles
west of the Phoenix Area. It is now part of the
Phoenix Metropolitan Area
Welborn opens a cattle feeding area several
miles south of Youngstown in 1956. He begins
by feeding about 7000 head of cattle
Webb Comes to Town
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In 1959 Del Webb acquires about 20,000
acres next to Youngstown for and
retirement community
At first the odor was not detected in the
Webb community but as he began to
expand south the odor became so bad in
1963 that some of the lots could not be
sold
Webb Files Suit
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In 1969 Webb filed suit against for an injunction
against Spur because he could not sell 1,500 of
his lots
Spur is now feeding about 20,000 – 30,000 head
of cattle at his operation site or, put in another
way, about 1.05 pounds of wet cow shit per day
Many of the residents at the wrinkle ranch
complain about odor and flies – they can’t even
go outdoors
The Trial
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The trial court finds that Spur constitutes
both a public and a private nuisance.
Webb is allowed to sue alone since he was
also injured in loss of lot sales
The appeals courts affirms but also notes
that Webb encroached on what is
otherwise a lawful business
The Conclusion
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Del Webb, on the other hand, is entitled to the relief
prayed for (a permanent injunction), not because Webb
is blameless, but because of the damage to the people
who have been encouraged to purchase homes in Sun
City. It does not equitably or legally follow, however, that
Webb, being entitled to the injunction, is then free of
any liability to Spur if Webb has in fact been the cause of
the damage Spur has sustained.
Spur must move and Webb must pay for the cost of
closing and relocating
The Great “When Junk is Not
Junk Case”
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Roell owns a vacant lot in Boise that contains
scrap materials, junk, litter, wrecked autos and
so forth
Roell and Roell’s son are given notice by the City
for a litter and nuisance violation
Roell ignores and Boise sends a city clean up
crew to remove some materials
Roell, Wife and Son
The Clean Up
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City crews and inspectors separate what
they believe is the valuable scrap for the
junk and the liter
Roell mysteriously returns and claims that
some of the material hauled off by the city
was not litter or debris but of valuable to
him
The Law Suit
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Roell sues asking for restitution and claims
the city did not have the authority to (1)
enter his property and (2) the right to
distinguish between what is litter and
debris and what is of value
The trial court grants summary judgment
for the city
The Appeal
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The appeals court rules that Roell is right
– the City did not have the legal authority,
under the nuisance statute, to enter and
clean up or discard materials. If the city
were to have used its litter ordinance
there would have been no problem.
However, the proper remedy for a
nuisance is abatement, injunction, or fine
(or all three)
The Outcome
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What is one person’s junk is another's
treasure.
Anticipatory Nuisance?
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Nicholson v Conn. Halfway House
Anticipatory Nuisance
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A parole half-way house is established in a
small urban neighborhood
The parole house does not house those
convicted of violent crimes, sex crimes,
drug sales.
The Site Map
The Case
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One of the residents files suit and requests and
injunction against the operation of the house.
The claim is based on the fear that this will
introduce criminal activity in the neighborhood.
The house will constitute a nuisance because it
is an unreasonable use of the land and will
reduce property values
The district courts rules for the residents of the
neighborhood
The Conclusion
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The plaintiff did not produce facts – only
fears of what might happen. They are
speculative and are insufficient for
granting an injunction
Some of the New Neighbors