Chapter 2
Chapter 3. Tort-Like Limits on the Right to Use:
Nuisance & Related Doctrines
DISCUSSION QUESTIONS
48. What kinds of concerns does the majority opinion in
McCarty recognize as legally relevant in disputes like the one in
the case? What additional concerns does the dissent think the
majority needed to take into account? Are there concerns at neither
opinion mentions that you think should be relevant?
49. Does the result in McCarty seem right to you?
Why or why not?
( ( ( ( ( ( ( ( (
FOUR APPROACHES TO PRIVATE NUISANCE
H>U
U>H (serious)
U>H (trivial)
Balancer
STRICT LIABILITY + INJUNCTION
INJ
INJ
0
0
S/LIAB. + BALANCING EQUITIES
INJ
DMG
0
Judge
1st RESTATEMENT
INJ
0
0
FoF
2d RESTATEMENT
INJ
DMG
0
FoF
H = HARM U = UTILITY
INJ = Injunction
DMG = Damages for Future Harm
FoF = Finder of Fact
CARPENTER v. DOUBLE R CATTLE CO.
669 P.2d 643 (Idaho App. 1983)
BURNETT, Judge. Dean William Prosser once observed, “There is
perhaps no more impenetrable jungle in the entire law than that
which surrounds the word ‘nuisance’.” W. Prosser, Handbook Of The
Law Of Torts, §86, at 571 (4th ed. 1971). Today we review a case
that has thrust us into the jungle of nuisance law. We are asked to
define the legal test for determining whether an intended use of
property, which incidentally produces adverse effects upon
neighboring properties, constitutes a nuisance.
This lawsuit was filed by a group of homeowners who alleged that
expansion of a nearby cattle feedlot had created a nuisance. The
homeowners claimed that operation of the expanded feedlot had
caused noxious odors, air and water pollution, noise and pests in
the area. … The jury returned a verdict simply finding that no
nuisance existed. The court entered judgment for the feedlot
proprietors, denying the homeowners any damages or injunctive
relief. This appeal followed. … The homeowners contend that the
jury received improper instructions on criteria for determining the
existence of a nuisance. The jury was told to weigh the alleged
injury to the homeowners against the “social value” of the feedlot,
and to consider “the interests of the community as a whole,” in
determining whether a nuisance existed. …
II.The concept of nuisance originated in the law of property. At
common law, a distinction was maintained between two encroachments
upon property rights— interference with possession of land, and
interference with the use and enjoyment of land. The first type of
encroachment was subject to an “assize of novel disseisen,” a
remedy for trespass. The latter form of encroachment was subject to
an “assize of nuisance,” a remedy for a variety of invasions which
diminished the owner’s enjoyment of his property without
dispossessing him of it. Thus, nuisance and trespass have common
roots in property law, and occasionally it is difficult to
distinguish between them. But where an invasion of property is
merely incidental to the use of adjoining property, and does not
physically interfere with possession of the property invaded, it
generally has been classified as a nuisance rather than as a
trespass. See cases collected in 58 Am.Jur.2D Nuisances, §2, 556-57
(1971).
The early concepts of nuisance and trespass shared the common
law’s reverence for property rights. Invasions of property were
deemed wrongful per se, and the parties responsible for such
invasions were subject to a form of strict liability. Thus, in the
famous case of Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), aff'd
L.R. 3 H.L. 330 (1868), an English court held that the owner of a
reservoir would be liable to the owner of adjacent property for any
injury caused by escaping water. The court stated:
We think that the true rule of law is, that the person who for
his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at
his peril, and, if he does not do so, is prima facie answerable for
all the damage which is the natural consequence of its escape.
Although a physical intrusion by water might have been viewed as
a trespass, rather than as a nuisance, the court noted that the
result would have been the same regardless of whether the mischief
was caused by “beasts, or water, or filth, or stenches.” Thus, the
English concept of nuisance was broad, and it carried remedies
similar to those available for trespass.
The property-oriented, English concept of a nuisance had its
analogue in early American law. In one illustrative case of the
nineteenth century, an American court held that title to land gave
the owner the right to impregnate the air with odors, dust and
smoke, pollute his own water and make noises, provided that he did
not substantially interfere with the comfort of others or injure
the use or enjoyment of their property. Pennoyer v. Allen, 14 N.W.
609 (Wis. 1883).
This broad description of nuisance was incorporated into Idaho
law. Idaho Code §52-101, which has antecedents dating to 1881,
defines a nuisance as “[a]nything which is injurious to health or
morals, or is indecent, or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property....” The statutory
remedies are similarly broad. Idaho Code §52-111 empowers “any
person whose property is injuriously affected, or whose personal
enjoyment is lessened by the nuisance [to bring an action] ... and
by the judgment the nuisance may be enjoined or abated, as well as
damages recovered.” …
However, as the English concept of nuisance was assimilated into
American law, it underwent a transformation. It ceased to be solely
a creature of property law. As exemplified by the Idaho statutes,
nuisance law came to protect life and health, as well as property.
A nuisance signified not merely an infringement of property rights,
but a wrong against both person and property—a tort.
American tort law in the nineteenth and early twentieth
centuries was founded upon the rock of “fault.” As the notion of
fault burrowed into the concept of nuisance, the strict liability
which had attended nuisance in property law began to deteriorate.
American courts stressed that liability for nuisance would arise
only from “unreasonable” uses of property. In some cases, the
courts began to treat nuisance as a form of conduct rather than as
a condition affecting the enjoyment of property. This position
later fell into disfavor.
However, American emphasis upon the element of reasonableness
persisted. Our courts also underscored the distinction between
conditions which are inherently nuisances (nuisances per se) and
those conditions which may or may not constitute nuisances,
depending upon the surrounding circumstances (nuisances per
accidens). Of cases in the latter category, it became customary for
the courts to say that whether an invasion of another’s enjoyment
of property was unreasonable would depend upon all circumstances in
the case. These circumstances typically would include the location
of the claimed nuisance, the character of the neighborhood, the
nature of the offending activity, the frequency of the intrusion,
and the effect upon the enjoyment of life, health and property.
Moreover, the American transformation resulted in diminished
application of the principle—derived from property law—that where
property rights were substantially impaired by a nuisance, the
complaining party was entitled to an injunction. This principle,
which had complemented the property-based concept of strict
liability, entitled a property owner to block an offensive activity
on neighboring property, regardless of disparate economic
consequences. American courts apparently found this approach
ill-suited to the demands of a developing nation.
There evolved two lines of American response to the problem of
injunctions. One response was to narrow the scope of cases in which
injunctions would be granted, while continuing to recognize an
entitlement to damages for injury to property rights. … Ultimately,
th[is] approach … developed into the “comparative injury” doctrine.
Under this doctrine, the comparative benefits and hardships of
discontinuing one activity for the protection of another would be
weighed in determining whether injunctive relief or damages
represented the more appropriate remedy for a nuisance. The Idaho
Supreme Court adopted the comparative injury doctrine in Koseris v.
J.R. Simplot Co., 352 P.2d 235 (Idaho 1960). As explained later in
this opinion, our Supreme Court in Koseris acknowledged the right
to recover damages for the invasion of one’s property, even where
the comparative injury doctrine might bar injunctive relief.
The second line of American response to the injunction problem
was to narrow the scope of cases in which nuisances were found to
exist. This was achieved by incorporating the social value—the
“utility”—of the offending activity into the litany of
circumstances to be weighed in determining whether a particular use
of property was “unreasonable.” Thus, the utility of an offending
activity militated not merely against the issuance of an
injunction, but also against a determination that the offending
activity was a nuisance at all. This second line of response found
expression in the general (“black letter”) principles set forth by
the Restatement Of Torts (1932) (herein cited as the First
Restatement). Section 826 of the First Restatement declared that an
invasion of another's enjoyment of property would be deemed
unreasonable, and therefore a nuisance, unless the utility of the
actor's conduct outweighed the gravity of the harm.
The Idaho Supreme Court never explicitly adopted the First
Restatement. However, in McNichols v. J.R. Simplot Co., [262 P.2d
1012 (Idaho 1953),] the Court may have intimated a similar
approach. In that case, emissions from a large phosphate plant were
alleged to have adversely affected a small neighboring business.
Both damages and injunctive relief were sought. … [T]he Supreme
Court in McNichols found certain jury instructions to be incomplete
and the Court reversed a judgment for the phosphate plant. However,
the Court also mentioned, without disapproval, [jury] instructions
stating that existence of a nuisance should be determined in light
of “all circumstances,” and outlining the factors to be weighed.
These factors included “inconsequentialness of the relative size of
importance of the respective businesses (relative benefit or loss
is a pertinent factor)....” 262 P.2d at 1014. This ambiguous
language later was deemed to support a pattern jury instruction
stating that “the interests of the community as a whole” should be
considered in determining whether a nuisance exists. See Idaho Jury
Instructions (IDJI) 491 (1st ed. 1974 & 2d ed. 1982).
Thus, when confronted with a choice between the two American
lines of response to the problem of injunctions in nuisance cases,
Idaho appeared to choose both. Koseris adopted the “comparative
injury” doctrine, restricting the cases qualifying for injunctions
without narrowing the scope of nuisance cases in which an aggrieved
party was entitled to be compensated in damages. However, McNichols
and IDJI 491 allowed the offending activity’s value to the
community to be considered in determining whether any nuisance
existed at all.
Idaho’s uncertain direction reflected a national confusion which
led Dean Prosser to deliver his characterization of nuisance law as
a “jungle.” … Dissatisfaction with the First Restatement … was
expressed by the courts. In Boomer v. Atlantic Cement Co., 257
N.E.2d 870 (N.Y. 1970), the New York Court of Appeals held that
parties adversely affected by dust from a cement plant would be
entitled to recover damages for the harm, although the value of the
cement plant to the community was so great that its operation would
not be enjoined. The Oregon Supreme Court also refused to follow
the First Restatement's test for determining existence of a
nuisance. In Furrer v. Talent Irr. Dist., 466 P.2d 605 (Or. 1970),
the Court rejected the contention:
that in every case the jury has the power to exonerate the
defendant from liability because it feels that the social value of
the defendant's conduct outweighs the harm which the defendant has
visited upon the plaintiff. … [I]f the plaintiff's land is harmed
by the conduct of the defendant, the latter cannot escape
compensating the plaintiff for the harm simply by showing that the
defendant's use had a greater social value than the
plaintiff's.
Similarly, Jost v. Dairyland Power Coop., 172 N.W.2d 647 (Wis.
1970), upheld compensation for crop damage caused by sulfur fumes
from an electrical power generating plant. On appeal, the power
company contended that the trial court erred by not allowing it to
prove its economic importance to the region, as a defense against
the damage claim. The Wisconsin Supreme Court replied:
We ... conclude that the court properly excluded all evidence
that tended to show the utility of the [power company's]
enterprise. Whether its economic or social importance dwarfed the
claim of a small farmer is of no consequence in this lawsuit. It
will not be said that, because a great and socially useful
enterprise will be liable in damages, an injury small by comparison
should go unredressed. We know of no acceptable rule of
jurisprudence that permits those who are engaged in important and
desirable enterprises to injure with impunity those who are engaged
in enterprises of lesser economic significance.
Thus, it was clear by 1970 that the First Restatement's black
letter test for existence of a nuisance had ceased to be—if,
indeed, it ever was—an adequate expression of case law. The days
were drawing to a close when an economic activity could escape all
liability under nuisance law for harm caused to its neighbors,
simply because a large measure of social utility was ascribed to
it.
III.The seeds of reform had been sown. They took root in fertile
soil when the American Law Institute (ALI), which had begun to
write a new restatement of the law of torts, turned its attention
to the subject of nuisances in 1970. … Ultimately, the [ALI] …
approved … the private nuisance sections of chapter 40, Restatement
(Second) Of Torts (1977) (herein cited as the Second Restatement).
The Second Restatement, like its predecessor, divides such
nuisances into two groups: (a) “intentional and unreasonable”
invasions of another's interest in the use and enjoyment of
property, and (b) invasions which are “unintentional” but otherwise
actionable under general tort principles. Second Restatement at
§822.
The first category is broader than the term “intentional” at
first glance might suggest. Section 825 of the Second Restatement
explains that an invasion is “intentional” if the actor knows that
the invasion is resulting, or is substantially certain to result,
from his activity. Thus, the purpose of an activity, such as a
feedlot, may not be to invade its neighbors’ interests in the use
and enjoyment of their property; but the invasion is “intentional”
within the meaning of the Second Restatement if the proprietors of
the activity know that such an invasion is resulting—or is
substantially certain to result—from the intended operation of
their business. We focus upon “intentional” invasion, in this
sense, because it is the type of nuisance alleged to exist in the
present case.
The Second Restatement treats such an “intentional” invasion as
a nuisance if it is “unreasonable.” Section 826 of the Second
Restatement now provides two sets of criteria for determining
whether this type of nuisance exists:
An intentional invasion of another's interest in the use and
enjoyment of land is unreasonable if
(a) the gravity of the harm outweighs the utility of the actor's
conduct, or
(b) the harm caused by the conduct is serious and the financial
burden of compensating for this and similar harm to others would
not make the continuation of the conduct not feasible.
The present version of §826, unlike its counterpart in the First
Restatement, recognizes that liability for damages caused by a
nuisance may exist regardless of whether the utility of the
offending activity exceeds the gravity of the harm it has created.
This fundamental proposition now permeates the entire Second
Restatement. The commentary to §822, which distinguishes between
“intentional” and “unintentional” invasions, and which serves as
the gateway for all succeeding sections, emphasizes that the test
for existence of a nuisance no longer depends solely upon the
balance between the gravity of harm and utility of the conduct.
Comment d to §822 states that, for the purpose of determining
liability for damages, an invasion may be regarded as unreasonable
even though the utility of the conduct is great and the amount of
harm is relatively small. Comment g to the same section
reemphasizes that damages are appropriate where the harm from the
invasion is greater than a party should be required to bear, “at
least without compensation.”
The distinction between damages and injunctive relief is carried
over in the commentary to §826. Comment e recognizes that the
utility of an activity may be greatly reduced if it does not
compensate those whom it harms. Comment f stresses that an
intentional invasion, for which damages may be sought, is
unreasonable where the harm can be compensated even if the gravity
of the harm does not outweigh the utility of the conduct.
Evaluation of The Second Restatement. The Second Restatement
clearly has rejected the notion that if an activity’s utility
exceeds the harm it creates, the activity is not a nuisance and
therefore is free from all liability in damages or for injunctive
relief. It discards those earlier authorities which had responded
to the problem of disparate economic consequences of injunctions by
narrowing the concept of nuisance. Thus, the Second Restatement
today is inconsistent with the Idaho Supreme Court’s decision in
McNichols, supra, insofar as that decision is said to support IDJI
491. As noted earlier, this pattern instruction would require a
jury to consider “the interest of the community as a whole” in
determining whether a nuisance exists. IDJI 491 enunciates a single
test for existence of a nuisance—regardless of whether damages or
an injunction are sought—and obliquely incorporates the utility of
the offending activity into the unified test. The pattern
instruction perpetuates a discredited line of authority rejected by
the Second Restatement.
In contrast, the Idaho Supreme Court's decision in Koseris,
supra, is entirely consistent with—and in some respects might be
said to have presaged—the Second Restatement. In that case, a
plaintiff sought injunctive relief, but claimed no damages, from
fumes emitted by the same phosphate plant involved in McNichols.
The phosphate plant offered to prove, among other things, that its
facility was important to the economies and tax bases of certain
counties in southeastern Idaho. The trial court disallowed the
proof. On appeal our Supreme Court said:
We are constrained to hold that the trial court erred in
sustaining objections to those offers of proof, since they were
relevant as bearing upon the issue whether respondents, in seeking
injunctive relief, were pursuing the proper remedy; nevertheless,
on the theory of damages which respondents had waived, the ruling
was correct.
Both the Second Restatement and Koseris recognize that utility
of the activity alleged to be a nuisance is a proper factor to
consider in the context of injunctive relief; but that damages may
be awarded regardless of utility. Evidence of utility does not
constitute a defense against recovery of damages where the harm is
serious and compensation is feasible. Were the law otherwise, a
large enterprise, important to the local economy, would have a
lesser duty to compensate its neighbors for invasion of their
rights than would a smaller business deemed less essential to the
community. In our view, this is not, and should not be, the law in
Idaho.
Koseris and the Second Restatement also share a recognition of
the fundamental difference between making an activity compensate
those whom it harms, and forcing the activity to discontinue or to
modify its operations. The damage question goes to a person's basic
right in tort law to recover for harm inflicted by another. The
injunction question is broader; it brings into play the interest of
other persons who may benefit from the activity. Comparative
benefits and hardships must be weighed in determining whether
injunctive relief is appropriate. Thus, the Second Restatement is
consistent with the “comparative injury” standard adopted in
Koseris.
We believe that Koseris and the Second Restatement furnish
better guidance than IDJI 491 for the future path of nuisance law
in Idaho. The law of nuisance profoundly affects the quality of
life enjoyed by all Idahoans. It should be broad in coverage, as
our statutes provide, and fair in its application. It should not
contain blind spots for large or important enterprises.
However, our view is not based simply upon general notions of
fairness; it is also grounded in economics. The Second Restatement
deals effectively with the problem of “externalities” identified in
the ALI proceedings. Where an enterprise externalizes some burdens
upon its neighbors, without compensation, our market system does
not reflect the true cost of products or services provided by that
enterprise. Externalities distort the price signals essential to
the proper functioning of the market.
This problem affects two fundamental objectives of the economic
system. The first objective, commonly called “efficiency” in
economic theory, is to promote the greatest aggregate surplus of
benefits over the costs of economic activity. The second objective,
usually termed “equity” or “distributive justice,” is to allocate
these benefits and costs in accordance with prevailing societal
values. The market system best serves the goal of efficiency when
prices reflect true costs; and the goal of distributive justice is
best achieved when benefits are explicitly identified to the
correlative costs.
Although the problem of externalities affects both goals of
efficiency and distributive justice, these objectives are
conceptually different and may imply different solutions to a given
problem. In theory, if there were no societal goal other than
efficiency, and if there were no impediments to exchanges of
property or property rights, individuals pursuing their economic
self-interests might reach the most efficient allocation of costs
and benefits by means of exchange, without direction by the courts.
See Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
However, the real world is not free from impediments to exchanges,
and our economic system operates within the constraints of a
society which is also concerned with distributive justice. Thus,
the courts often are the battlegrounds upon which campaigns for
efficiency and distributive justice are waged.
Our historical survey of nuisance law, in Part II of this
opinion, has reflected the differing emphasis upon efficiency and
distributive justice. As noted, the English system of property law
placed a preeminent value upon property rights. It was thus
primarily concerned with distributive justice in accord with those
rights. For that reason the English system favored the injunction
as a remedy for a nuisance, regardless of disparate economic
consequences. However, when the concept of nuisance was
incorporated into American law, it encountered a different value
system. Respect for property rights came to be tempered by the
tort-related concept of fault, and the demands of a developing
nation placed greater emphasis upon the economic objective of
efficiency relative to the objective of distributive justice. The
injunction fell into disfavor. The reaction against the injunction,
as embodied in the First Restatement, so narrowed the concept of
nuisance itself that it rendered the courts impotent to deal with
externalities generated by enterprises of great utility. This
reaction was excessive; neither efficiency nor distributive justice
has been well served.
In order to address the problem of externalities, the remedies
of damages and injunctive relief must be carefully chosen to
accommodate the often competing goals of efficiency and
distributive justice. See generally Polinsky, Resolving Nuisance
Disputes: The Simple Economics of Injunctive and Damage Remedies,
32 Stan.L.Rev. 1075 (1980); Ellickson, Alternatives to Zoning:
Covenants, Nuisance Rules, and Fines as Land Use Controls, 40
U.Chi.L.Rev. 681 (1973). Koseris and the Second Restatement
recognize the complementary functions of injunctions and damages.
Section 826(a) of the Second Restatement allows both injunctions
and damages to be employed where the harm created by an economic
activity exceeds its utility. Section 826(b) allows the more
limited remedy of damages alone to be employed where it would not
be appropriate to enjoin the activity but the activity is imposing
harm upon its neighbors so substantial that they cannot reasonably
be expected to bear it without compensation.
We follow Koseris and adopt §826 of the Second Restatement. To
the extent that IDJI 491 is inconsistent with our decision today,
we urge that it be modified. In any event, IDJI 491 is merely
recommendatory in nature; it is not mandatory.
Implications of the Second Restatement. Each of the parties in
the present case has viewed the Second Restatement with some
apprehension. We now turn to those concerns.
The homeowners, echoing an argument made during the ALI
proceedings, have contended that the test of nuisance set forth in
§826 grants large enterprises a form of private eminent domain.
They evidently fear that if the utility of a large enterprise
exceeds the gravity of the harm it creates—insulating it from an
injunction and subjecting it to liability only in damages—the
enterprise might interfere at will with the enjoyment and use of
neighboring property, upon penalty only of paying compensation from
time to time. Such a result might be consistent with the economic
goal of efficiency, but it may conflict with the goal of
distributive justice insofar as it violates a basic societal value
which opposes forced exchanges of property rights. See Calabresi,
Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale
L.J. 499, 536 (1961).
Even those legal scholars who advocate the most limited role for
injunctions as a remedy against nuisances acknowledge that damages
may be inadequate, and injunctions may be necessary, where the harm
in question relates to personal health and safety, or to one's
fundamental freedom of action within the boundaries of his own
property. Ellickson, supra. Ordinarily, plaintiffs in such cases
would prevail on the test which balances utility against gravity of
the harm. Moreover, in the exceptional cases, the offending
activity might be modified or eliminated through legislative or
administrative controls such as environmental protection laws or
zoning. Therefore, we expect that few cases would remain in need of
a judicial remedy. However, we do not today close the door on the
possibility that an injunction might lie, to protect personal
health and safety or fundamental freedoms, in cases missed by the
balancing test and by non-judicial controls. To this extent, our
adoption of the Second Restatement's test of nuisance stops short
of being absolute.
The Second Restatement also has encountered a host of objections
from the feedlot proprietors and from the amicus curiae. These
objections reflect genuine, legitimate concerns of Idaho business,
particularly the agricultural community. The concerns have been
eloquently presented by able counsel. We recognize that business is
an anchor of our state. We believe that Idaho business will find
that it can operate responsibly and profitably within the contours
of nuisance liability defined by the Second Restatement. Every
business person is someone else’s neighbor. Business people are as
much benefited by protecting our quality of life as are other Idaho
residents. We further note that business enterprises which do not
depend for their viability upon an asserted right to impose serious
harm upon their neighbors will not be threatened by the nuisance
tests articulated in the Second Restatement.
Beyond these general observations, we address several particular
objections to the Second Restatement. First, our attention has been
invited to the Idaho “Right to Farm Act.” This Act recites the
Legislature’s concern that agricultural activities conducted on
farmland in urbanizing areas often are subjected to nuisance
lawsuits. The Act imposes restrictions upon such lawsuits. However,
we find that these restrictions are inapposite to the present case.
The Act does not apply to lawsuits commenced before March 31, 1981.
The homeowners’ complaint in the instant case was filed on March
28, 1978.
More fundamentally, even assuming, without deciding, that a
feedlot constitutes an “agricultural operation” within the meaning
of the Act, the Act precludes a finding of nuisance only with
respect to an activity which would not have been a nuisance but for
a change in surrounding non-agricultural uses more than one year
after the activity began. In contrast, the pleadings in the present
case disclose that the feedlot is alleged to be a nuisance, not
because of changes in surrounding non-agricultural uses, but
because of an expansion of the feedlot itself.
The proprietors and amicus curiae recognize that the Act does
not strictly apply in this case, but they suggest that it is a
legislative statement of policy which should inhibit our adoption
of the Second Restatement. However, the Act in essence represents a
statutory adaptation of the common law doctrine of “coming to the
nuisance.” This doctrine does not conflict with the Second
Restatement.
At early common law, the doctrine of “coming to the nuisance”
was thus expressed:
If my neighbor makes a tan-yard so as to annoy and render less
salubrious the air of my house or gardens, the law will furnish me
with a remedy; but if he is first in possession of the air, and I
fix my habitation near him, the nuisance is of my own seeking, and
may continue.
2 W. Blackstone, Commentaries On The Laws Of England 402 (17th
ed. 1830). This rigid doctrine later was changed to provide that
coming to the nuisance was not an absolute bar to the finding of a
nuisance, but was merely one factor to be considered. This change
stemmed from recognition that an absolute bar to a finding of
nuisance would, in effect, give the offending activity a perpetual
servitude upon the land of its neighbors without the payment of any
compensation.
In keeping with this case law development, the Second
Restatement recites, at §840D, that coming to the nuisance is not a
total bar to relief, but is a factor to be considered. When this
section of the Second Restatement is considered in relation to the
tests of nuisance set forth in §826, we believe that coming to the
nuisance is a factor which a jury may consider in evaluating the
seriousness of the harm later claimed by the plaintiffs. We
conclude that the Act affords no basis to view the Second
Restatement as contrary to legislative policy.
The feedlot proprietors and amicus curiae also contend that the
Second Restatement should be rejected because it assertedly
contains a rule of absolute liability, making an enterprise liable
in damages to anyone adversely affected by its operations. However,
this argument overlooks the requirement in §826(b) that the harm be
“serious.” A plaintiff who fails to demonstrate harm exceeding the
utility of a defendant’s conduct will fail to establish a nuisance
under §826(a). The plaintiff also will fail under §826(b) unless
the trier of fact is persuaded that the harm shown is “serious.”
Long before the Second Restatement, it had been well established by
case law that an activity would not be deemed a nuisance unless the
harm attributed to it was more injurious to the normal use and
enjoyment of land than the harm attributed to other types of
activities customarily encountered in the relevant area. Moreover,
“[a]n interference is not a nuisance unless, among other things, it
substantially interferes with the use and enjoyment of neighboring
land.” Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63
Va.L.Rev. 1299, 1319 (1977) (emphasis in original). In our view,
unless the harm claimed by a plaintiff is substantial, and more
injurious than that caused by other types of activities customary
to the area, it would not be deemed “serious” within the meaning of
§826(b).
In determining seriousness, the factors for evaluating gravity
of harm, as set forth in §827, may be utilized. They include the
extent and character of the harm, the suitability of the particular
use or enjoyment invaded to the character of the locality, the
burden on the injured person to avoid such harm, and the value
which the law attaches to the type of use or enjoyment invaded. The
last factor—the value attached to the type of use or enjoyment
invaded—obviously relates to its intrinsic value when applied under
§826(b); its relative value, in comparison with the utility of the
offending activity, should be considered only when applying
§826(a).
Moreover, comment g to §822 makes it clear that the Second
Restatement does not create a rule of absolute liability. The
comment states, in part, the following:
Not every intentional and significant invasion of a person's
interest in the use and enjoyment of land is actionable.... Life in
organized society and especially in populous communities involves
an unavoidable clash of individual interests. Practically all human
activities unless carried on in a wilderness interfere to some
extent with others or involve some risk of interference, and these
interferences range from mere trifling annoyances to serious
harms.... Liability for damages is imposed in those cases in which
the harm or risk to one is greater than he ought to be required to
bear under the circumstances, at least without compensation.
The feedlot proprietors and amicus curiae also assert that the
Second Restatement will prove uneven in its application, because
damages may be awarded only in those cases where the payment of
such compensation is “feasible.” They contend that the element of
feasibility subjects a profitable enterprise to greater potential
liability than that which would attend a similar activity conducted
by a marginal business. However, we believe this contention
misperceives the thrust of the feasibility requirement.
As used in §826(b), the term “feasible” does not refer to the
financial condition of the business conducting the activity, but
refers to the activity itself. Section 826(b) merely recognizes
that if the burden of paying compensation in damages would make it
unfeasible to continue the activity, the effect of a damage award
would be to discontinue operation of the activity. In those
circumstances, the result would be the same as an injunction. In
order to qualify for injunctive relief under §826(a), a plaintiff
would be required to show that the gravity of the harm exceeded the
utility of the defendant's conduct. Thus, as noted in comment f to
§826, “[i]f imposition of this financial burden would make
continuation of the activity not feasible, the weighing process for
determining unreasonableness is similar to that in a suit for
injunction.” Comment f to the same section further notes that the
feasibility requirement may limit the scope of plaintiffs who can
recover:
[I]n the case of a factory emitting smoke and odors, the
granting of compensation for annoyance and inconvenience to all
persons located in the general vicinity may create a burden so
heavy as to make it not feasible to continue to operate the
factory. Compensation may therefore be granted only to those in
closer vicinity to the plant whose annoyance is more severe, and
not to those farther away whose annoyance is less.... Cases
involving airport noise [also] illustrate this principle.
The element of feasibility illustrates the interrelationship
between §826(a) and §826(b). If a plaintiff suffers serious harm
from an intentional invasion of the use and enjoyment of his
property, he is entitled to injunctive relief or damages—or a mix
of these remedies—if the trier of fact determines that the gravity
of the harm exceeds the utility of the defendant's conduct. If the
harm does not outweigh the utility, but remains serious, the
plaintiff's remedy is limited to damages—subject, however, to the
further limitation that if the nature of the activity (not the
particular enterprise conducting it) is such that payment of
compensation in damages would cause the activity to be
discontinued, then the damage award will be viewed as having the
same impact as an injunction. In those circumstances, full
compensation will not be awarded unless the gravity of the harm has
been found to exceed the utility of the defendant’s conduct.
IV.We now resume our focus upon the instant case. The feeding of
large congregations of animals within the confined area of a
feedlot may create problems that affect the use and enjoyment of
neighboring properties. In general, feedlots are subject to the
same principles of nuisance law which apply to other economic
activities. General nuisance instructions were given to the jury in
this case.
The actual instructions need not be set forth at length. In
summary, the district court instructed the jury on the concept of
an “intentional” invasion, within the meaning discussed earlier in
this opinion. The court then informed the jury that a nuisance
characterized by such an invasion could be found to exist only if
the invasion were found to be unreasonable, and that “gravity of
any harm” and “utility of defendants’ conduct” should be weighed as
factors in determining unreasonableness. The court also instructed
the jury to take into account such factors as “the interests of the
community as a whole,” the “general public good,” and the “social
value” of the defendants’ conduct. In short, the district judge
gave the jury a set of instructions which did not conform precisely
to, but were consistent with, the First Restatement and IDJI 491.
The court took no account of Koseris, nor of the dual criteria for
determining the existence of a nuisance under §826 of the Second
Restatement. The jury was given no instruction on damage liability
comparable to §826(b) of the Second Restatement. We conclude that
the jury was improperly instructed, in light of our adoption today
of the Second Restatement’s criteria for determining existence of a
nuisance. … We conclude that the entire judgment of the district
court, entered upon the verdict of a jury which had been improperly
instructed, must be vacated. The case must be remanded for a new
trial to determine whether a nuisance exists under the full
criteria set forth in §826 of the Second Restatement.
Because a remand is necessary, we will also address an issue,
raised by the homeowners, as to whether the district court should
have instructed the jury that they could consider “standards and
practices in the feedlot business.” Because this case involves an
alleged “intentional” invasion, it would have been inappropriate to
give the jury any “standards and practices” instruction which
suggested that negligence was an issue in the case. The concept of
negligence has no application to “intentional” invasions under the
Second Restatement. An issue of negligence may arise only in
connection with “unintentional” invasions. See Second Restatement
at §822, comment i. The district court safeguarded the instruction
on this point by informing the jury that the plaintiffs were “not
required to show negligence ... in order to establish a
nuisance.”
However, there is a further limitation upon the use of a
“standards and practices” instruction. In Koseris, the phosphate
plant’s offer to prove the utility of its operation had been
coupled with a companion offer to prove its use of modern pollution
control procedures. Our Supreme Court referred to both of these
offers of proof when it said that the evidence could be allowed on
a question of injunctive relief, but would have been improper on an
issue of damages. Similarly, the Second Restatement refers to the
skill or care with which an activity is conducted as a factor to be
considered only in measuring the utility of the conduct. See §828,
comment h. Thus, it falls within the balancing test set forth in
§826(a), but would not apply to a determination of nuisance under
§826(b). We instruct upon remand that if the district court again
elects to give a “standards and practices” instruction, it should
inform the jury that such “standards and practices” are germane
only to a determination under §826(a) and are not to be considered
among the criteria applied to a determination of nuisance under
§826(b).
The judgment of the district court is vacated. The case is
remanded for further proceedings consistent with this opinion.
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CARPENTER v. DOUBLE R CATTLE CO. [II]
701 P.2d 222 (Idaho 1985)
BAKES, Justice. Plaintiffs appealed a district court judgment
based upon a court and jury finding that defendant's feedlot did
not constitute a nuisance. The Court of Appeals reversed and …
adopted subsection (b) of Section 826 of the Restatement Second,
that a defendant can be held liable for a nuisance regardless of
the utility of the conduct if the harm is “serious” and the payment
of damages is “feasible” without jeopardizing the continuance of
the conduct. We disagree that this is the law in Idaho.
At the outset, it is important to … note that appellants neither
requested such an instruction nor assigned as error the failure of
the trial court to give an instruction consistent with the new rule
stated above. … Further, the instructions given were consistent
with both the First Restatement and Section 826(a) of the Second
Restatement, and also our decisions in McNichols v. J.R. Simplot
Co., 262 P.2d 1012 (Idaho 1953) (action for damages and
injunction), and Koseris v. J.R. Simplot Co., 352 P.2d 235 (Idaho
1960) (action for injunction only).
The Court of Appeals, without being requested by appellant,
adopted the new subsection (b) of Section 826 of the Second
Restatement partially because of language in Koseris which
reads:
We are constrained to hold that the trial court erred in
sustaining objections to those offers of proof [evidence of utility
of conduct], since they were relevant as bearing upon the issue
whether respondents, in seeking injunctive relief, were pursuing
the proper remedy; nevertheless, on the theory of damages which
respondents had waived, the ruling was correct.
The last phrase of the quote, relied on by the Court of Appeals,
is clearly dictum, since the question of utility of conduct in a
nuisance action for damages was not at issue in Koseris. It is very
doubtful that this Court’s dictum in Koseris was intended to make
such a substantial change in the nuisance law. When the isolated
statement of dictum was made in 1960, there was no persuasive
authority for such a proposition. Indeed, no citation of authority
was given. The three cases from other jurisdictions which the Court
of Appeals relied on for authority did not exist until 1970. … The
Second Restatement, which proposed the change in the law by adding
subsection (b) to Section 826, was also not in existence until
1970. Therefore, we greatly discount this Court’s dictum in the
1960 Koseris opinion as authority for such a substantial change in
the nuisance law.
… McNichols should be viewed as the law in Idaho that in a
nuisance action seeking damages the interests of the community,
which would include the utility of the conduct, should be
considered in the determination of the existence of a nuisance. The
trial court’s instructions in the present case were entirely
consistent with McNichols. A plethora of other modern cases are in
accord. E.g., Nissan Motor Corp. v. Maryland Shipbuilding &
Drydock Co., 544 F.Supp. 1104 (D.Md.1982) (utility of defendant's
conduct is factor to be considered in determining existence of
nuisance in damages action); Little Joseph Realty, Inc. v. Town of
Babylon, 363 N.E.2d 1163 (N.Y. 1977) (indicating that New York
still adheres to balancing of risk and utility, requiring that harm
to plaintiff must outweigh social usefulness of defendant’s
activity); Pendergrast v. Aiken, 236 S.E.2d 787 (N.C. 1977)
(balancing of harm versus utility retained, despite change of
section 826 Restatement (Second) of Torts); Pate v. City of Martin,
614 S.W.2d 46 (Tenn.1981) (determination of existence of nuisance
in action for damages and injunction cannot be determined by exact
rules, but depends on circumstances of each case, including
locality and character of surroundings, as well as utility and
social value of defendant’s conduct).
The State of Idaho is sparsely populated and its economy depends
largely upon the benefits of agriculture, lumber, mining and
industrial development. To eliminate the utility of conduct and
other factors listed by the trial court from the criteria to be
considered in determining whether a nuisance exists, as the
appellant has argued throughout this appeal, would place an
unreasonable burden upon these industries. We see no policy reasons
which should compel this Court to accept appellant's argument and
depart from our present law. Accordingly, the judgment of the
district court is affirmed and the Court of Appeals decision is set
aside.
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DISCUSSION QUESTIONS
50. Under the Second Restatement definition of “intentional“
nuisance (see S64-65), can a nuisance ever be “unintentional” once
someone has complained of harm to the defendant?
51. Assume that you were trying Carpenter under the balancing
test of the First Restatement (see S63). What are the harms that
are likely to be caused by the defendant’s proposed expansion? What
are likely benefits of the expansion? What facts not given in the
opinions would be helpful to doing this analysis? What arguments
could you make to the jury for each side about whether the utility
of the expansion exceeds the harm?
52. Carpenter I notes two common approaches to considering the
utility of the defendant’s conduct. In the first, after using the
traditional strict liability test to determine whether there’s a
nuisance, the court “balances the equities” to determine whether an
injunction should issue. In the second, the balancing occurs in the
process of deciding whether there’s a nuisance at all. One
important difference between the two approaches is that in the
first, the judge always does the balancing, but in the second, the
jury may do it. Do you think the judge or jury should be
responsible for balancing harms against social utility?
53. §826(b) of the Second Restatement adds a second prong to the
First Restatement’s test for nuisance (see S65). What does this
second prong do? How do you decide if harm is “serious”?
54. The court in Carpenter I says the Second Restatement
effectively deals with the problem of “externalities” (S66). What
does the court mean?
55. The plaintiffs in Carpenter argued that the Second
Restatement is a form of “private eminent domain” (S68). What do
they mean? What is the court’s response?
56. What kind of situation does the Idaho Right to Farm Act (see
S68) address? Why doesn’t the Act apply in Carpenter?
57. The Second Restatement makes “coming to the nuisance” a
factor to consider and not a complete bar to recovery (see 69). Is
this a good approach?
58. What is a “standards and practices” jury instruction (see
S71)? Why do the defendants want one? When does the court say such
an instruction would be relevant?
59. Why does the Idaho Supreme Court in Carpenter II reject the
reasoning of the Court of Appeals?
60. How is the Idaho Supreme Court’s decision in Carpenter II
similar to its decision in Maguire? How are the two decisions
different?
61. Carpenter I describes four approaches to nuisance law: (1)
traditional strict liability; (2) strict liability, but the court
balances the equities before issuing an injunction; (3) the First
Restatement; and (4) the Second Restatement. Which do you think is
preferable and why?
62. The notes suggest that the line between trespass and
nuisance is not always clear. What kinds of cases are best suited
to be addressed solely as trespass cases? What kinds of cases are
best suited to be addressed solely as nuisance cases? For what
kinds of cases, if any, should both theories be available? What is
the best approach for invasive plant species (See Note 8 P66-67)?
Be prepared to discuss this last question with reference to the
facts of Review Problem 3F (S83).
63. Should a nuisance claim ever be available for the following
circumstances described in the notes?
(a) Interference with the Plaintiff’s View? (Note 7 P138)
(b) Interference with Sunlight hitting the Plaintiff’s Land?
(Same)
(c) Spite Fences? (Note 3 P144)
(d) Aesthetic Harms? (Note 4 P144-45)
64. What do the casebook authors see as the relationship between
public nuisance law and pollution control? What do the acronyms
“NIMBY” and “LULU” mean? What do the casebook authors see as the
relationship between these concepts and public nuisance law?
65. Under what circumstances would the court in Spur apply the
“coming to the nuisance” doctrine? Under what circumstances would
it refuse to apply it?
66. What exactly did the court order the parties to do in Spur?
Is the result fair to everyone involved?
67. Suppose you represent the trade association for Arizona
ranch and feedlot owners. What can you do if association members
don’t like the result in Spur?
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ARMORY PARK NEIGHBORHOOD ASS’N v.
EPISCOPAL COMMUNITY SERVICES IN ARIZONA
712 P.2d 914 (Ariz.1985)
FELDMAN, Justice. … Episcopal Community Services in Arizona
(ECS) opened the St. Martin's Center (Center) in Tucson. The
Center's only purpose is to provide one free meal a day to indigent
persons. Plaintiff Armory Park Neighborhood Association (APNA) is a
non-profit corporation organized for the purpose of “improving,
maintaining and insuring the quality of the neighborhood known as
Armory Park Historical Residential District.” The Center is located
on Arizona Avenue, the western boundary of the Armory Park
district. … APNA filed a complaint in Pima County Superior Court,
seeking to enjoin ECS from operating its free food distribution
program. The complaint alleged that the Center's activities
constituted a public nuisance and that the Armory Park residents
had sustained injuries from transient persons attracted to their
neighborhood by the Center.
The superior court held a hearing on APNA's application for
preliminary injunction…. [T]he parties stipulated that
... there is no issue concerning any State, County, or Municipal
zoning ordinance, or health provision, before the Court. And, the
Court may find that defendants are in compliance with the same.
The residents then testified about the changes the Center had
brought to their neighborhood. Before the Center opened, the area
had been primarily residential with a few small businesses. When
the Center began operating…, many transients crossed the area daily
on their way to and from the Center. Although the Center was only
open from 5:00 to 6:00 p.m., patrons lined up well before this hour
and often lingered in the neighborhood long after finishing their
meal. The Center rented an adjacent fenced lot for a waiting area
and organized neighborhood cleaning projects, but the trial judge
apparently felt these efforts were inadequate to control the
activity stemming from the Center. Transients frequently trespassed
onto residents’ yards, sometimes urinating, defecating, drinking
and littering on the residents’ property. A few broke into storage
areas and unoccupied homes, and some asked residents for handouts.
The number of arrests in the area increased dramatically. Many
residents were frightened or annoyed by the transients and altered
their lifestyles to avoid them. …
[T]he trial court granted the preliminary injunction…. A divided
court of appeals reversed the trial court’s order. In the view of
the majority, a criminal violation was a prerequisite to a finding
of public nuisance; because plaintiff had alleged no criminal
violation, the injunction was improperly granted. The majority also
… held that compliance with zoning provisions was a complete
defense. … We granted review in this case because of the importance
of the following questions:
1) When does a voluntary association have standing to bring an
action for public nuisance on behalf of its members?
2) May a lawful business be enjoined for acts committed off its
premises by clients who are not under its control or direction?
3) Is it necessary to plead and prove a zoning or criminal
violation by the defendant, or may a lawful activity be enjoined
because the manner in which it is conducted is unreasonable and
therefore constitutes a public nuisance?
THE CONCEPT OF "NUISANCE". Now considered a tort, a public
nuisance action originated in criminal law. Early scholars defined
public nuisance as “an act or omission ‘which obstructs or causes
inconvenience or damage to the public in the exercise of rights
common to all her Majesty's subjects.’” Prosser, W. And W.P.
Keeton, Handbook On The Law Of Torts, §90, at 643 (5th ed. 1984),
quoting Stephen, General View of the Criminal Law in England 105
(1890). The sole remedy was criminal prosecution.
Historically, the remedy for a private nuisance was an action
“upon the case,” as it was an injury consequential to the act done
and found its roots in civil law. A private nuisance is strictly
limited to an interference with a person's interest in the
enjoyment of real property. The Restatement defines a private
nuisance as “a nontrespassory invasion of another's interest in the
private use and enjoyment of land.” Restatement (Second) Of Torts
§821D. A public nuisance, to the contrary, is not limited to an
interference with the use and enjoyment of the plaintiff's land. It
encompasses any unreasonable interference with a right common to
the general public.
We have previously distinguished public and private nuisances.
In City of Phoenix v. Johnson, 75 P.2d 30 (Ariz. 1938), we noted
that a nuisance is public when it affects rights of “citizens as a
part of the public, while a private nuisance is one which affects a
single individual or a definite number of persons in the enjoyment
of some private right which is not common to the public.” A public
nuisance must also affect a considerable number of people. Id. See
also Spur Industries. The legislature has adopted a similar
requirement for its criminal code, defining a public nuisance as an
interference “with the comfortable enjoyment of life or property by
an entire community or neighborhood, or by a considerable number of
persons ....” A.R.S. §13-2917.
The defendant contends that the trial court erred in finding
both public and private nuisances when the plaintiff had not
asserted a private nuisance claim. The defendant has read the trial
court's minute entry too strictly. While we acknowledge that public
and private nuisances implicate different interests, we recognize
also that the same facts may support claims of both public and
private nuisance. As Dean Prosser explained:
When a public nuisance substantially interferes with the use or
enjoyment of the plaintiff's rights in land, it never has been
disputed that there is a particular kind of damage, for which the
private action will lie. Not only is every plot of land
traditionally unique in the eyes of the law, but in the ordinary
case the class of landowners in the vicinity of the alleged
nuisance will necessarily be a limited one, with an interest
obviously different from that of the general public. The
interference itself is of course a private nuisance; but is none
the less particular damage from a public one, and the action can be
maintained upon either basis, or upon both.
Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997,
1018 (1966).
Thus, a nuisance may be simultaneously public and private when a
considerable number of people suffer an interference with their use
and enjoyment of land. See Spur Industries. The torts are not
mutually exclusive. Some of plaintiff's members in this case have
suffered an injury to the use and enjoyment of their land. Any
reference to both a public and a private nuisance by the trial
court was, we believe, merely a recognition of this well-accepted
rule and not error. However, both because plaintiff did not seek
relief under the theory of private nuisance and because that theory
might raise standing issues not addressed by the parties, we
believe plaintiff's claim must stand or fall on the public nuisance
theory alone.
STANDING TO BRING THE ACTION
1. Do the residents have standing? Defendant argues that the
Association has no standing to sue and that, therefore, the action
should be dismissed. … Two standing questions are before us. The
first pertains to the right of a private person, as distinguished
from a public official, to bring a suit to enjoin the maintenance
of a public nuisance. The original rule at common law was that a
citizen had no standing to sue for abatement or suppression of a
public nuisance since
such inconvenient or troublesome offences [sic], as annoy the
whole community in general, and not merely some particular persons;
and therefore are indictable only, and not actionable; as it would
be unreasonable to multiply suits, by giving every man a separate
right of action, by what damnifies him in common only with the rest
of his fellow subjects.
4 Blackstone Commentaries 167.
It was later held that a private individual might have a tort
action to recover personal damages arising from the invasion of the
public right. However, the individual bringing the action was
required to show that his damage was different in kind or quality
from that suffered by the public in common. The rationale behind
this limitation was two-fold. First, it was meant to relieve
defendants and the courts of the multiple actions that might follow
if every member of the public were allowed to sue for a common
wrong. Second, it was believed that a harm which affected all
members of the public equally should be handled by public
officials.
Considerable disagreement remains over the type of injury which
the plaintiff must suffer in order to have standing to bring an
action to enjoin a public nuisance. However, we have intimated in
the past that an injury to plaintiff's interest in land is
sufficient to distinguish plaintiff's injuries from those
experienced by the general public and to give the
plaintiff-landowner standing to bring the action. See, e.g., Tucson
Community Development and Design Center v. City of Tucson, 131
Ariz. 454, 457, 641 P.2d 1298, 1302 (1981) (plaintiff denied
standing to challenge city's redevelopment plan because they
neither lived nor held property in the area affected by the plan);
Folk v. City of Phoenix, 27 Ariz.App. 146, 551 P.2d 595 (1976)
(plaintiff had standing sufficient to withstand a motion to dismiss
by alleging ownership of a prescriptive right in the land
affected). This seems also to be the general rule accepted in the
United States.
We hold, therefore, that because the acts allegedly committed by
the patrons of the neighborhood center affected the residents’ use
and enjoyment of their real property, a damage special in nature
and different in kind from that experienced by the residents of the
city in general, the residents of the neighborhood could bring an
action to recover damages for or enjoin the maintenance of a public
nuisance.
2. May the Association bring the action on behalf of its
members? We have not previously decided whether an association or
other organization has standing to assert the claims of its members
in a representational capacity. … We have previously determined
that the question of standing in Arizona is not a constitutional
mandate since we have no counterpart to the “case or controversy”
requirement of the federal constitution. In addressing the question
of standing, therefore, we are confronted only with questions of
prudential or judicial restraint. We impose that restraint to
insure that our courts do not issue mere advisory opinions, that
the case is not moot and that the issues will be fully developed by
true adversaries. … [T]hese considerations require at a minimum
that each party possess an interest in the outcome. Thus, the …
issue in Arizona is whether, given all the circumstances in the
case, the association has a legitimate interest in an actual
controversy involving its members and whether judicial economy and
administration will be promoted by allowing representational
appearance.
As indicated earlier, individual residents whose land was
affected by the actions of defendant’s patrons would have had
standing to bring an action in their own name. Testimony was
offered indicating that the purpose of APNA was to promote and
preserve the use and enjoyment of the neighborhood by its
residents. We believe this purpose is sufficiently relevant to the
issues presented in this action so that APNA will adequately and
fairly represent the interests of those of its members who would
have had standing in their individual capacities. Further, APNA
seeks an injunction rather than damages for separate property
owners. Principles of judicial economy are advanced by allowing the
issues to be settled in a single action rather than in a multitude
of individual actions because the relief sought is universal to all
of its members and requires no individual quantification by the
court. We hold, therefore, that APNA has standing to bring the
action as the representative of its members.
DEFENDANT'S DERIVATIVE RESPONSIBILITY. Defendant claims that its
business should not be held responsible for acts committed by its
patrons off the premises of the Center. It argues that since it has
no control over the patrons when they are not on the Center's
premises, it cannot be enjoined because of their acts. We do not
believe this position is supported either by precedent or
theory.
In Shamhart v. Morrison Cafeteria Co., 32 So.2d 727 (Fla. 1947),
the defendant operated a well frequented cafeteria. Each day
customers waiting to enter the business would line up on the
sidewalk, blocking the entrances to the neighboring establishments.
The dissenting justices argued that the defendant had not actually
caused the lines to form and that the duty to prevent the harm to
the plaintiffs should be left to the police through regulation of
the public streets. The majority of the court rejected this
argument, and remanded the case for a determination of the damages.
See also Reid v. Brodsky, 156 A.2d 334 (Pa. 1959) (operation of a
bar enjoined because its patrons were often noisy and intoxicated;
they frequently used the neighboring properties for toilet purposes
and sexual misconduct); Barrett v. Lopez, 262 P.2d 981, 983 (N.M.
1953) (operation of a dance hall enjoined, the court finding that
“mere possibility of relief from another source [police] does not
relieve the courts of their responsibilities”); Wade v. Fuller, 365
P.2d 802 (Utah 1961) (operation of drive-in cafe enjoined where
patrons created disturbances to nearby residents); McQuade v.
Tucson Tiller Apartments, 543 P.2d 150 (Ariz.App. 1975) (music
concerts at mall designed to attract customers enjoined because of
increased crowds and noise in residential area).
Under general tort law, liability for nuisance may be imposed
upon one who sets in motion the forces which eventually cause the
tortious act; liability will arise for a public nuisance when “one
person's acts set in motion a force or chain of events resulting in
the invasion.” Restatement, supra, §824 comment b. We hold,
therefore, that defendant’s activity may be enjoined upon the
showing of a causal connection between that activity and harm to
another.
The testimony at the hearing establishes that it was the
Center's act of offering free meals which “set in motion” the
forces resulting in the injuries to the Armory Park residents.
Several residents testified that they saw many of the same
transients passing through the neighborhood and going in and out of
the Center. We find the testimony sufficient to support the trial
judge’s finding of a causal link between the acts of ECS and the
injuries suffered by the Armory Park residents. The court of
appeals thus erred by holding that there was no evidence from which
the trial court could have concluded that ECS had engaged in
conduct which would render it causally responsible for the
interferences. The question is not whether defendant directly
caused each improper act, but whether defendant’s business
operation frequently attracted patrons whose conduct violated the
rights of residents to peacefully use and enjoy their property.
REASONABLENESS OF THE INTERFERENCES. Since the rules of a
civilized society require us to tolerate our neighbors, the law
requires our neighbors to keep their activities within the limits
of what is tolerable by a reasonable person. However, what is
reasonably tolerable must be tolerated; not all interferences with
public rights are public nuisances. As Dean Prosser explains,
“[t]he law does not concern itself with trifles, or seek to remedy
all of the petty annoyances and disturbances of everyday life in a
civilized community even from conduct committed with knowledge that
annoyance and inconvenience will result.” Prosser, supra, §88, at
626. Thus, to constitute a nuisance, the complained-of interference
must be substantial, intentional and unreasonable under the
circumstances. Restatement, supra, §826 comment c and §821F. Our
courts have generally used a balancing test in deciding the
reasonableness of an interference. The trial court should look at
the utility and reasonableness of the conduct and balance these
factors against the extent of harm inflicted and the nature of the
affected neighborhood. … The trial judge did not ignore the
balancing test and was well aware of the social utility of
defendant's operation. His words are illuminating:
It is distressing to this Court that an activity such as
defendants [sic] should be restrained. Providing for the poor and
the homeless is certainly a worthwhile, praisworthy [sic] activity.
It is particularly distressing to this Court because it [defendant]
has no control over those who are attracted to the kitchen while
they are either coming or leaving the premises. However, the right
to the comfortable enjoyment of one's property is something that
another's activities should not affect, the harm being suffered by
the Armory Park Neighborhood and the residents therein is
irreparable and substantial, for which they have no adequate legal
remedy.
We believe that a determination made by weighing and balancing
conflicting interests or principles is truly one which lies within
the discretion of the trial judge. We defer to that discretion
here. The evidence of the multiple trespasses upon and defacement
of the residents’ property supports the trial court’s conclusion
that the interference caused by defendant’s operation was
unreasonable despite its charitable cause.
The common law has long recognized that the usefulness of a
particular activity may outweigh the inconveniences, discomforts
and changes it causes some persons to suffer. We, too, acknowledge
the social value of the Center. Its charitable purpose, that of
feeding the hungry, is entitled to greater deference than pursuits
of lesser intrinsic value. It appears from the record that ECS
purposes in operating the Center were entirely admirable. However,
even admirable ventures may cause unreasonable interferences. We do
not believe that the law allows the costs of a charitable
enterprise to be visited in their entirety upon the residents of a
single neighborhood. The problems of dealing with the unemployed,
the homeless and the mentally ill are also matters of community or
governmental responsibility.
ZONING. ECS argues that its compliance with City of Tucson
zoning regulations is a conclusive determination of reasonableness.
We agree that compliance with zoning provisions has some bearing in
nuisance cases. We would hesitate to find a public nuisance, if,
for example, the legislature enacted comprehensive and specific
laws concerning the manner in which a particular activity was to be
carried out.
We decline, however, to find that ECS’ compliance with the
applicable zoning provisions precludes a court from enjoining its
activities. The equitable power of the judiciary exists independent
of statute. Although zoning and criminal provisions are binding
with respect to the type of activity, they do not limit the power
of a court acting in equity to enjoin an unreasonable, albeit
permitted, activity as a public nuisance.
The determination of the type of business to be permitted in a
particular neighborhood, therefore, may be left to administrative
agencies or legislative bodies. However, the judgment concerning
the manner in which that business is carried out is within the
province of the judiciary. Zoning provisions may permit one's
neighbor to operate a business. This does not give him license to
use one's yard, nor permit his customers to do so. …
CRIMINAL VIOLATION. Occasionally we have indicated that conduct
which violates a specific criminal statute is an element of public
nuisance for civil tort claims. [However, we have not decided]
whether a tort claim for public nuisance exists independent of
statute. ECS argued that there is no criminal violation and that a
tort claim for nuisance must be based on such a violation. The
trial court did find that the consequences of ECS’ activities fit
within A.R.S. §13-2917, which defines a criminal nuisance as an
interference with the “comfortable enjoyment of life or property.”
We need not reach this issue nor need we rule on the
constitutionality of the statute. We do not find it fatal that the
plaintiff failed to allege a statutory violation. The statute in
question adds little to APNA's claim. It does not proscribe
specific conduct nor define what conduct constitutes a public
nuisance, but only declares, in effect, that a public nuisance is a
crime. We are squarely faced, therefore, with the issue of whether
a public nuisance may be found in the absence of a statute making
specific conduct a crime.
In MacDonald v. Perry, [255 P. 494 (Ariz. 1927)], we indicated
that the inquiry in a nuisance claim is not whether the activity
allegedly constituting the nuisance is lawful but whether it is
reasonable under the circumstances. The Restatement states that a
criminal violation is only one factor among others to be used in
determining reasonableness. That section reads:
(1) A public nuisance is an unreasonable interference with a
right common to the general public.
(2) Circumstances that may sustain a holding that an
interference with a public right is unreasonable include the
following:
(a) Whether the conduct involves a significant interference with
the public health, the public safety, the public peace, the public
comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or
administrative regulation, or
(c) whether the conduct is of a continuing nature or has
produced a permanent or long-lasting effect, and, as the actor
knows or has reason to know, has a significant effect upon the
public right.
Restatement, supra, §821B. Comment d to that section
explains:
It has been stated with some frequency that a public nuisance is
always a criminal offense. This statement is susceptible of two
interpretations. The first is that in order to be treated as a
public nuisance, conduct must have been already proscribed by the
state as criminal. This is too restrictive.... [T]here is clear
recognition that a defendant need not be subject to criminal
responsibility.
Our earlier decisions indicate that a business which is lawful
may nevertheless be a public nuisance. For example, in Spur
Industries, we enjoined the defendant's lawful business. We
explained that “Spur is required to move not because of any
wrongdoing on the part of Spur, but because of a proper and
legitimate regard of the courts for the rights and interests of the
public.” This rule is widely accepted. We hold, therefore, that
conduct which unreasonably and significantly interferes with the
public health, safety, peace, comfort or convenience is a public
nuisance within the concept of tort law, even if that conduct is
not specifically prohibited by the criminal law. …
CONCLUSION. The trial court’s order granting the preliminary
injunction is affirmed. By affirming the trial court's preliminary
orders, we do not require that he close the center permanently. It
is of course, within the equitable discretion of the trial court to
fashion a less severe remedy, if possible. The opinion of the court
of appeals is vacated. The case is remanded for further
proceedings.
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Discussion Questions
68. What test do the Arizona cases appear to use to determine
whether a nuisance has been committed?
69. What test or tests do the Arizona cases use to determine
whether a nuisance is “public”? Why did the facts in Spur meet the
test(s)? Why did the facts in Armory Park?
70. According to Armory Park, what must private plaintiffs show
to have standing to bring a public nuisance action? How did Webb
Industries meet that standard in Spur? Why is there a special
standing requirement for these cases? The Association in Armory
Park owns no property at all. Why does it have standing to sue?
71. Armory Park holds the church liable for the acts of third
parties. Is this a good idea? Of the cases cited in support of this
proposition, which most strongly supports derivative liability?
Which is the weakest?
72. What arguments can you make in support of the trial court’s
finding the gravity of the harm at issue in Armory Park outweighed
the utility of the church’s conduct? What arguments can you make
that the trial court was wrong on this point?
73. Why isn’t it a defense to a public nuisance claim that a
defendant’s activities complied with local zoning ordinances?
Shouldn’t landowners be able to rely on zoning to tell them what
they can and cannot do with their land?
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REVIEW PROBLEMS: NUISANCE
(3A) The state of Conflict uses the First Restatement's test to
resolve both public and private nuisances. Discuss whether the
state could obtain an injunction under a public nuisance theory in
the following scenario: Rincón, Inc. makes contact lenses under a
special patented process that makes them both cheaper and more
comfortable to wear than conventional lenses. However the process
emits into the air small quantities of Silichlor IV, an odorless
chemical to which about 2% of the population is highly
allergic.
(3B) Discuss whether, in the following scenario, Scott could
successfully bring a private nuisance suit in a jurisdiction that
follows the Second Restatement approach: Mary Melody, the famous
movie star, after being acquitted of murdering her third husband,
purchased a big house in a wealthy suburban community far from the
lights of Hollywood. Because she has been busy filming a TV movie
about herself, she has spent little time at the house. When she
does use the house, she makes almost no noise and has few guests.
However, on occasion, journalists hear a rumor that she is about to
appear and many reporters and camera crews congregate in the
neighborhood for a couple of days, sometimes trespassing on
neighbors’ lawns in search of a good camera angle. For many years,
Scott has lived next door to the house Mary purchased. Since she
moved in, he has been trying to sell his house without success.
Potential buyers have expressed dismay at the idea of living next
to a possible murderer and at the presence of the media.
(3C) Discuss what remedies for nuisance, if any, Vera City
residents would have under the Second Restatement in the following
scenario: Dolls-R-Us manufactures its lucrative (sales of $34
million per year) Brussels Sprout doll line in a factory on the
outskirts of Vera City. The manufacturing process needed to give
the Sprout dolls their widely-advertised "feels-like-a-baby's-skin"
texture releases a chemical into the air that causes cancer in
rats. When this information becomes public, Vera City property
values drop.
(3D) Discuss whether, in the following scenario, Ambrose and his
neighbors could enjoin the opening of the treatment center under a
private nuisance theory in a jurisdiction that follows the First
Restatement: Sam purchased a 5-bedroom house in a well-to-do
residential neighborhood to set up a live-in treatment center for
people recovering from drug addictions, a use allowed by the local
zoning. Although the center hasn’t officially opened, negative
publicity about it has reduced by 15% the value of the four closest
neighboring lots (one of which is owned by Ambrose).
(3E) Discuss whether, under a private nuisance theory in a state
that follows the First Restatement, Chris would be liable to the
neighbors he is waking up, given the following scenario: Chris is a
stockbroker who lives in the western United States. He was in a
terrible car accident and was left paralyzed from the waist down.
After extensive rehabilitation, he moved back into his house and
returned to his old job. He bought a used van with a motorized lift
designed for a person in a wheelchair, so he can drive himself to
work. The lift takes about six minutes to raise Chris into the van
and is very noisy while operating. Because Chris has to be at work
at 4:45 a.m. to be ready when the stock exchanges open on the east
coast, he needs to leave the house at 3:55 a.m. The noise of the
van regularly wakes neighbors in seven nearby houses. A new van
with a much quieter lift mechanism would cost $85,000, which would
not be covered by any insurance.
(3F) Discuss whether, in the following scenario, Mike could
succeed in a private nuisance suit against Alissa in a jurisdiction
following the First Restatement. Alissa and Mike own houses on
adjoining lots in a residential suburban neighborhood. They both
spend a lot of time gardening. Alissa returned from a trip to Kenya
with seeds of the camara, a beautiful little plant that, in the
spring, produces large golden flowers and, in the fall, grows
bright red seed pods that open on windy days, scattering the tiny
seeds. Alissa planted the seeds along the side of her house facing
Mike’s lot, where they grew beautifully. Many of the neighbors
commented on how beautiful they looked.
For several years beginning the following spring, camara plants
appeared in Mike’s lot. At first, he let them grow because they
were so pretty, but then he discovered that he was mildly allergic
to them (the pollen and seeds caused sneezing and eye irritation
and handling the plants gave him a mild rash). After a few years,
he discovered that, any place the camara plants grew, his tulips
and daffodils stopped coming up. Research revealed that camara
roots secreted chemicals that killed the bulbs from which plants
like tulips and daffodils grow.
Mike repeatedly asked Alissa to do something to help keep the
camara plants off his lot. However, she was unable to control the
seeds as the seed pods were bursting. She refused to pull out the
plants or to remove the seed pods before bursting, which would have
left her with no viable seeds to grow camaras for the following
year.
(3G) Discuss whether, in the following scenario, Matt might have
a nuisance cause of action for harm he was suffering from the fair
in general and from the rock concerts in particular.
Starting in 1885, Sonderling County held a fair every summer on
the county fairgrounds. By the 1980s, the fair was clearly failing:
traditional exhibits did not attract teenagers or young adults and
the County was losing more money on the fair each year. In 1984,
the County hired Leigh, a successful promoter, to run the fair. She
immediately reinvigorated the fair, which became a huge success and
grew steadily. By 1999, the fair was a major event for both local
folks and tourists, lasting from mid-June to mid-August every year.
Although the fair brought a lot of money into the local economy,
residents living nearby began to complain about increasing amounts
of noise, trash, traffic and trespassing. Leigh increased her
security and cleaning staff and worked with the County to ease
parking and traffic concerns, but the problems continued.
In October 2005, Matt bought a house on a two-acre lot just to
the east of the fairgrounds. In the summer of 2006, Matt first
experienced life adjacent to the Sonderling County Fair, which
produced an unpleasant amount of noise and occasional trespassers
and litterers. Other folks living near the fairgrounds told him
that “it gets worse every year.” And the following summer it
did!!
At the 2007 fair, for the first time, Leigh brought in
well-known rock bands and had them perform after the main fair
events had ended for the day. These concerts were supposed to run
from 8:30 to 10:00 pm but they rarely started on time and sometimes
lasted until nearly midnight. To stage these concerts, Leigh had
built a special band shell very close to Matt’s lot, so he was
particularly affected by the noise and by the trespassing littering
teenagers who attended the concerts and often tried to further
their sexual development in Matt’s yard afterward.
After a few days, Matt complained to Leigh, but she wasn’t
interested in changing anything because she was charging separate
admissions for the concerts and they brought in a lot of money.
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