Land use

Question 1

Private nuisance

Answer 1

A private nuisance claim exists if:

(1) A thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land;
(2) The interference is intentional, negligent, reckless, or the result of abnormally dangerous conduct; and
(3) The interference would be offensive, inconvenient, or annoying to a normal, reasonable person.

It is irrelevant whether it is offensive to the plaintiff herself.

Question 2

Private nuisance: unreasonable interference

Answer 2

Courts are vague on what qualifies:

• Hypersensitivity may not sustain a nuisance action, whereas a plaintiff who is not actually bothered may still have a cause of action;
• Courts may also consider the utility of the nuisance relative to the interference.

Question 3

Private nuisance: spite fences

Answer 3

Generally, there is no right to sunlight or a view, unless…

…a person puts up a fence or wall with no purpose except to block a neighbor’s view or sunlight. Courts will sometimes find “spite fences” or “spite walls” to be a nuisance.

Question 4

Private nuisance: defenses

Answer 4

The defenses are not absolute.

(1) Compliance with state or local administrative regulations, which is relevant to reasonableness;
(2) Coming to the nuisance.

Question 5

Public nuisance

Answer 5

An unreasonable interference with a right common to the public.

E.g., blocking a common road or waterway (traditional); pollution, claims in tobacco litigation, or claims in opioid litigation (modern).

Public officials may bring actions on behalf of the public to abate the nuisance.

Question 6

Public nuisance: private plaintiffs

Answer 6

Generally, private plaintiffs cannot recover unless they have suffered a unique or special harm different from that of the general public.

If they establish harm, private plaintiffs can recover economic damages.

Question 7

Private nuisance: injunction standard

Answer 7

A court may enjoin a private nuisance if the utility of the conduct does not outweigh the harm.

Question 8

Attractive nuisance doctrine

Answer 8

A land possessor may be liable under the attractive nuisance doctrine if:

(1) An artificial condition exists in a place the owner knows—or has reason to know—that children are likely to trespass;
(2) The land possessor knows that the artificial condition poses an unreasonable risk of death or serious bodily harm;
(3) The children, because of their age, cannot appreciate or do not discover the danger;
(4) The utility of maintaining the condition is slight compared to the risk of injury; and
(5) The land possessor fails to exercise reasonable care.