NUISANCE: The Law’s Garbage Can.

NUISANCE: The Law’s Garbage Can.

Over 75 years ago, the infamous law school dean William L. Prosser declared the legal theory of “nuisance” to be a legal garbage can full of vagueness, uncertainty and confusion. “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, ¶ 24 (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 86, at 616 (5th ed. Lawyers ed.1984). Despite these critiques, nuisance law remains a powerful tool to protect the right to use and enjoy property in Wisconsin because each nuisance claim is based upon the particular facts and circumstances of the case and, unlike other areas of the law, nuisance law does not apply a generic, one-size-fits-all legal test.

If the reasonable use and enjoyment of your property is being adversely affected by the activities or condition of another property, you may be able to stop the activity and recover damages under nuisance law.

A claim for nuisance generally arises from a condition or activity that unduly interferes with a private land owner’s use of his or her land or the interference with the public’s use of a public place. A successful nuisance claim may result in an injunction permanently ending the nuisance, money damages caused by the nuisance or both.

A “private nuisance” is a claim where a particular property owner is adversely affected by the nuisance. A “public nuisance” is where the general community is adversely affected by the nuisance and is not tied to the adverse impact upon a specific private property. Sometimes a nuisance gives rise to both public and private nuisance claims caused by the same activity.

In resolving nuisance claims, Wisconsin courts generally apply a balancing test, weighing the rights of one property owner to reasonably use their land with the rights of neighboring property owners to reasonably use and enjoy their land. Nuisance claims can be based upon odor, light, noise, dirt/dust, water runoff or even traffic congestion. Whether something constitutes a nuisance will generally come down to one property owner’s right to reasonably use his or her property compared with the neighboring property owner’s right to reasonably enjoy their property.

If an activity on one property causes a physical change to another property, a nuisance is more likely to be found. If the alleged nuisance only causes an annoyance (e.g. noise or odor), factors that a court may consider in deciding whether there is an actionable nuisance include the nature of the community (residential, agricultural, industrial), the social value of the alleged nuisance, the social value of the activity being interfered with, the cost to avoid the nuisance compared with the impact on the other property, the duration of the nuisance, the reasonable expectations in the community and any other factor the court deems important under the facts and circumstance of the particular claim.

The location, character and habits of the area or community will be an important factor on any nuisance claim. For example, odor from a chicken coop, which could be highly objectionable in a residential area of a city, may be acceptable and regarded as harmless and inoffensive in a rural or agricultural district. See Restatement (Second) of Torts, § 821F, Comment E. Some nuisances are obvious, such as operating a tannery or a slaughter house in a residential area. See, Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 2d 575 (1929). However, not everything that annoys a neighbor constitutes an actionable nuisance.

For example, church bells that disturbed the church’s neighbors have been found to not constitute a nuisance even where the neighbors claimed to have been very much bothered by the hourly ringing of loud bells between 8:00 a.m. and 8:00 p.m. See Langan v. Bellinger, 611 N.Y.S. 2d 59 (1994). On the other hand, a tavern that plays loud music or attracts unruly patrons or excessive traffic at all hours of the night, disturbing neighboring property owners’ sleep, may present an actionable claim for nuisance.

In most cases, the court will not put much emphasis on who was there first (i.e. whether the complaining property owner “came to the nuisance”). Courts generally recognize that a community or area is likely to change over time. Therefore, a factory put on the outskirts of a city 100 years ago may become a nuisance over time as the city expands and the nature of the area evolves. Just because an activity was not a nuisance when it started does not mean the activity is still permissible at the current time.

If a party brings a successful claim on an on-going nuisance, the court can issue an order to abate and stop the nuisance. The adversely affected property owner may also recover monetary damages based upon the effect of the nuisance and the interference with the use and enjoyment of the affected property.

If the use and enjoyment of your property is being impacted by the activity on another property and you do not know what to do about it, you may want to consult with one of Hale Skemp’s experienced attorney about whether you have a potential nuisance claim. Sometimes garbage cans are useful in the law.