[Music] hello and welcome to prof tales property video number 51 i'm your host dale whitman in this video we're going to cover the law of nuisance now nuisance is actually a tort and you might be surprised to find it in a series on property but nuisance cases always involve parcels of real estate and that's why it's usually covered in the property course rather than in torts so what is a nuisance anyway there are actually two kinds of nuisances public and private we're mainly going to focus on private nuisances but the definition is actually the same for both so what is the nuisance well it involves a property owner who makes a use of his or her property that unreasonably interferes with the use or enjoyment of somebody else's neighboring property if you want to think of an egregious example imagine that you have a neighbor who burns rubber tires consistently in the backyard of his or her house that produces a lot of smoke dust and soot that drifts over onto your neighboring property that would almost certainly be a nuisance so in a nuisance suit there are typically two parties there's the defendant that's the party who's alleged to be using his or her property in an unreasonable way such as your neighbor who might be burning rubber tires in his backyard and the second is the plaintiff the party who claims to be harmed by that use what are the remedies that the plaintiff can obtain well classically there are two remedies first damages to compensate the plaintiff for the harm that the defendant's activity has caused and second an injunction a court order to force the defendant to cease sometimes the plaintiff will seek both remedies that is damages for the past harm that the plaintiff has done and second an injunction against the future harm that the defendant's activity might cause but the injunction is usually the main remedy the plaintiff wants the activity to stop determining whether a nuisance exists is not a mechanistic process instead the courts tend to look at a number of factors and we're going to list some of the important factors here the first one is the distance between the plaintiffs and the defendant's properties obviously the closer they are together the more likely the court is to find a nuisance second what's the character of the neighborhood is the activity that the defendant is engaged in typical of the neighborhood is this the sort of thing that many other property owners in this area are similarly engaged in if it is the court is much less likely to find that there's a nuisance there third what's the social value of the nuisance is the activity that's being engaged in something that's worthwhile to society something that people value something that helps society at large if so the court is much less likely to find a nuisance next what's the type of interference odor dust smoke and sound are typical types of interference is it the sort of thing that people such as the plaintiff can be expected to simply put up with and really shouldn't be heard to complain much about next what's the frequency of the intrusion by the nuisance is it something that's happening every day or on an ongoing basis or is it something that only happens once in a while or perhaps once a week or twice a week if it's not very often the court is less and less likely to find a nuisance is the nuisance being operated negligently or illegally and there are several aspects to this question for example are there technological innovations that could be put in place that would minimize or eliminate the nuisance for example scrubbers and smokestacks or other technical devices that would reduce or eliminate the effluent that the nuisance is producing similarly we could ask whether the nuisance is operating illegally for example is the the nuisance violating the local zoning ordinance some courts would even go so far as to say if it's illegal under the zoning ordinance it must be a nuisance almost per se and on the other hand if it's legal under the zoning ordinance how could it possibly be a nuisance next who got there first if the nuisance was already operating when the plaintiff moved there so that the we could say the plaintiff moved to the nuisance many courts would go so far as to say that can't possibly be a nuisance to the plaintiff the plaintiff moved to the nuisance the plaintiff knew what the plaintiff was getting into and therefore cannot possibly convince the court that it's a nuisance on the other hand if the plaintiff moved there and then the nuisance started up there's a much higher degree of probability that the court will find a nuisance finally what's the severity of the impact of the nuisance on the plaintiff's enjoyment of life health and property is this merely a minor inconvenience to the plaintiff or is it something that is basically ruining the plaintiff's life destroying the plaintiff's enjoyment now when we look at all of those factors on the previous slide bear in mind that no one factor is dispositive the courts will examine potentially all of them also bear in mind that some courts will say if the plaintiff came to the alleged nuisance the nuisance was already there when the plaintiff moved there some courts will say the plaintiff is simply disqualified from a finding of nuisance also some courts will say that if the alleged nuisance complies with the local zoning ordinance it's very unlikely that the court will find a nuisance courts often say that in nuisance cases they have to balance the equities between the plaintiff and the defendant particularly if an injunction is being sought on the plaintiff's side for example they have to look at the hardship on the plaintiffs if no injunction is being issued what's the impact of the nuisance on the plaintiffs is it very severe are their lives being made miserable by the nuisance is the value of their property largely being ruined on the defendant's side they have to look at the hardship on the defendants if an injunction is issued will their property's value be greatly reduced will its usefulness be destroyed or impaired now that sounds perfectly plausible but in reality it's questionable whether these things can actually be balanced in a way they're like apples and oranges and the reason is that the hardship on the plaintiffs is often personal it deals with their actual lives on the other hand the hardship on the defendants is largely economic in most cases it can be measured in dollars and cents and really isn't a personal matter at all and so balancing the hardships is usually quite an illusory process now every nuisance case is unique there's no such thing as a typical nuisance case but i'm going to tell you about a couple of famous and important nuisance cases to give you a feel for the way courts handle nuisance issues the first case is bove versus donna hanna coke company decided by the new york court of appeals back in 1931. donner hannah was a coke company and what that meant is that it was in the business of turning coal into coke the way that works is this coke ovens such as the one you see in the tiny photograph there on the screen were filled with coal and then the coal was baked for several days at a high temperature then the coal was quenched with water and the coal which had been turned into coke was discharged horizontally into railroad cars the coke was sent to blast furnaces and was used as a fuel for smelting iron ore it was a very desirable fuel it worked very well in the iron process but it produced a fine gritty substance which was called coke breeze and breeze was a very appropriate term because air currents would carry it away from the plant in this case just immediately across the street to a house where mr and mrs bove lived and so everything on the outside of their house windowsills thresholds windows themselves the doors would be covered with this fine black gritty substance from the coke making process they claimed that that was a nuisance in fact if they opened their windows or doors it would get inside their house as well so they brought a nuisance suit against the donner hannah coke company the court began its analysis by talking about one of the issues that we've previously discussed namely who arrived first the bose who were the plaintiffs in the case or donna hannah which was operating the alleged nuisance well the answer was a little more complex than we've previously discussed the plaintiffs the bows had literally bought their house several years before donna hanna opened its coke plant however when the bose bought their house there were already a number of other coke plants in the buffalo area and many many other industrial facilities so the bose knew full well that they were buying a house in a heavily industrialized area that was good enough for the court second the court asked what uses the area was naturally best suited for and to the court that was an easy question it was best suited for industrial facilities it was located where lake erie and lake ontario come together so it provided excellent water transportation resources for industrial plants in addition it was close to the iron and steel making plants that would use the coke produced by coke plants it was also close to coal mines which would provide the coal that was used in the coke making operations so it was really a perfect place for coke plants then the court went through a number of the other factors that we've already talked about how was the area presently zoned well of course it was zoned industrial and therefore the donner hannah plant was operating perfectly legally and the bows were in a residence in an industrial zone nothing wrong with that but they must have realized that they were in a bit of a precarious situation how severe was the harm well the court tended to minimize that they said okay there are some black gritty particles falling on their house doesn't make it impossible for them to live there it's just an inconvenience to them what's the social value of the alleged nuisance well you can't operate an iron or steel plant without having coke to fire the furnaces and therefore it's extremely valuable to have coke plants in operation the court didn't mention this but the case comes to the court in 1931 the great depression has been in operation for a couple of years this is one of the few plants that is still fully employing a number of people probably a couple of thousand employees and the court must have seen that as incredibly valuable in social terms and almost inconceivable that the court is going to be willing to shut down an ongoing factory in these conditions is the nuisance operating negligently no the court says there really isn't any technical innovation that we can demand that don or hannah put into effect that will reduce the pollution it causes it's not operating illegally it's not operating negligently there really isn't anything we can do to minimize the pollution could the harm be mitigated without closing down the nuisance we can't see any way that it can be the question of how costly mitigation would be really doesn't come up because there isn't any mitigation i think a fair overall evaluation of the case is that the court tends to minimize the factors that favor finding a nuisance the court tends to emphasize the factors that disfavor finding a nuisance and of course the bottom line is that the court finds no nuisance and allows the plant to continue in operation the threat of closing down a plant and putting several thousand people out of work is just more than the court can contemplate the second case i want to tell you about is spur industries versus dell e webb development company decided by the arizona supreme court in 1972. spur industries operated cattle's feedlots and del e webb was the developer of the famous sun city development for retirees in the arizona sunshine the history of the conflict between these two parties is extremely interesting spur began as cattle feeding operations here about 20 miles west of downtown phoenix in 1956 and at that time the area was extremely well suited for cattle feeding operation many many other cattle feedlots were in operation in the same area del webb began planting and building sun city in 1959. the first del webb units were sold about two and a half miles north of spur enterprises cattle feedlot in 1960 both of the operations were successful and they began to grow and they were growing toward one another by 1967 they were separated by only 500 feet you can imagine the consequence of that spur had 30 000 head of cattle by that time and each one of them was producing between 35 and 40 pounds of manure every day del webb sun city buyers complained about the flies and the odor and it became very hard for del webb to sell those houses in sun city so del webb brought a nuisance suit against spur enterprises when the case reached the arizona supreme court the court held for that to the residents of sun city spurs feedlot was both a public and a private nuisance and the court was obviously concerned about the health implications of the flies and the odor generated by the feedlot sun city's developer was entitled the court said to an injunction forcing spur to either move the feedlot or to close it down however sun city came to the nuisance spur enterprises was there first now as we've said before some courts treat that as a disqualification of the point of suit they would say that if the nuisance was there first the plaintiffs simply could not get an injunction but the arizona supreme court did not take that view instead they created a much more flexible and innovative remedy they said well that fact will not deny the plaintiff say an injunction however because del webb came to the nuisance del webb must pay the cost of shutting down or relocating the feedlot a very imaginative approach to the remedy of an injunction the spur case illustrates that nuisance remedies are flexible and that courts have a lot of discretion in deciding what remedies to issue when a nuisance case comes before them for example a court might give a partial injunction not everything that the plaintiff wanted but an injunction that's carefully tailored to the facts a court might order implementation of technical changes such as installing scrubbers or screens so as to reduce the amount of pollution that the defendant is discharging a court might order an injunction but with the cost of moving paid for by the plaintiff such as in the spur case a court might order damages paid to the plaintiff the defendant would then get to continue the nuisance-like activity but would have to pay the plaintiff money is this like giving the defendant a power of eminent domain well perhaps so but there may be other plaintiffs who haven't yet received money and who might still be in a position to bring a nuisance action in the future so the defendant still has to worry about getting everybody paid off whereas in an eminent domain action they'd only have to pay once it's a tricky position to put the defendant in nuisance law has become considerably more important since the decision of the u.s supreme court in 1992 in lucas versus south carolina coastal commission in that case the court decided that a government regulation can't be considered a taking which would require the government to compensate the landowner if the activity that the landowner was engaged in would have been considered a common law nuisance so often the government if it's being charged with compensation will try to prove that it doesn't owe any compensation because the activity that it's regulating would have been a common law nuisance so it becomes increasingly important to determine what a common law nuisance amounts to it can be considered quite an important determination we mentioned at the beginning of this video that there are two kinds of nuisances public nuisances and private distances the basic definition of the two is the same but public nuisances affect broad groups of people or society at large whereas private nuisances affect only one landowner or a small group public nuisances for example would be pollution of public waterways harm to public parks public roads or other public facilities enforcement of a public nuisance normally has to be by a public officer such as the attorney general or a government agency which is charged with supervision of that particular type of public land or public facility however a private party can sue for enforcement of a public nuisance if they are directly and uniquely harmed public nuisances these days are often dealt with by environmental statutes for example statutes dealing with air quality water quality coastal erosion or wetlands preservation usually we have statutes that deal with those and specific agencies that are charged with preserving and caring for them to summarize what we've learned about nuisance news's cases are not very predictable they depend on what a court views as reasonable there are many factors for a court away and courts have a lot of discretion in weighing them and in determining what remedies to grant what this means is that if you're given a nuisance case on an examination there usually isn't a single correct answer instead what you need to do is to identify the relevant factors and consider what a court might most probably consider to be reasonable that concludes prop tales property video number 51 on the doctrine of nuisance if you have questions or comments email proftale01 gmail.com thanks for watching