Chapter § 19.1 Introduction

• Jurisdiction: Washington

§19.1 INTRODUCTION

Nuisance and trespass date to the earliest origins of the common law but continue to have substantial viability due in large part to the flexibility of the underlying concepts to adapt to ever-changing and complex circumstances. The basis for nuisance actions was, and remains, essentially a quiet enjoyment of one's property free from unreasonable impairment by a neighboring use. Similarly, trespass has always sought to protect a property owner from unpermitted encroachments and physical occupations. Indeed, nuisance and trespass remain vital components in real property litigation even as legislatures adopt statutory causes of action for certain activities that impact real property, such as the Washington Model Toxics Control Act (MTCA), Chapter 70.105D RCW. Frequently the common-law claims are combined with a statutory cause of action to expand the scope of potential relief. See, e.g., Mayer v. City of Seattle, 102 Wn. App. 66, 10. P.3d 408 (2000), review denied, 142 Wn.2d 1029 (2001) (discussing claims for MTCA, nuisance, and trespass).

The principles of nuisance law are, of necessity, imprecise:

The general legal principle to be inferred from court action in nuisance cases is that one landowner will not be permitted to use his land so unreasonably as to interfere unreasonably with another landowner's use and enjoyment of his land. The crux of the matter appears to be reasonableness. Admittedly, the term is a flexible one. It has many shades and varieties of meaning. In a nuisance case the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances. Application of the doctrine of nuisance requires a balancing of rights, interests, and convenience. Whether...decisions in other cases relative to alleged nuisances will be controlling in a given case is dependent purely and simply upon identity or similarity of facts and circumstances.

Riblet v. Spokane-Portland Cement Co. (Riblet I), 41 Wn.2d 249, 254, 248 P.2d 380 (1952), overruled on other grounds by Bradley v. Am. Smelting and Refining Co., 104 Wn.2d 677, 709 P.2d 782 (1985).

Very few land uses are classified as a nuisance "per se," meaning that the land use is always deemed to be a nuisance regardless of the manner or...