Chapter § 19.5 Remedies for Nuisance and Trespass

• Jurisdiction: Washington

§19.5 Remedies for Trespass and Nuisance

Remedies to claims for trespass and nuisance cover the gamut from damages to the possibility of criminal sanctions, as discussed below.

(1) Abatement

RCW 7.48.020 provides that when a nuisance is found to exist, the plaintiff may, on motion, have an order allowing a warrant issued to the sheriff to abate such nuisance. The procedures for issuing the warrant are also prescribed by statute. See RCW 7.48.030-040.In addition to abatement by warrant, aggrieved persons may also abate the nuisance themselves, provided this can be done without a breach of peace. See, e.g., State v. Long, 98 Wn. App. 669, 676-77, 991 P.2d 102, review denied, 140 Wn.2d 1025 (2000) (self-help abatement no defense to malicious mischief charge for killing two dogs that crossed defendant's land); Gostina v. Ryland, 116 Wash. 228, 234, 199 P. 298 (1921) (property owners had right to clip tree branches and remove vines encroaching on their property from neighbor).

A public nuisance may be abated by order of a superior court notwithstanding a pending or concluded criminal action. See RCW 7.48.250-260; RCW 9.66.040. Municipalities and public officers may also abate public nuisances, RCW 7.48.220, as may an injured party, subject to the same rules as above.

(2) Injunctive relief

A private nuisance may be enjoined by a superior court. See RCW 7.48.010, .020; see also Mathewson v. Primeau, 64 Wn.2d 929, 395 P.2d 183 (1964); Park v. Stolzheise, 24 Wn.2d 781, 167 P.2d 412 (1946). Although there is, in general, no express statutory authorization for actions to enjoin public nuisances, the courts have acknowledged their power to grant injunctive relief in public nuisance cases when such relief was appropriate under the rules of equity. See City of Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 585 P.2d 784 (1978); Harris, 41 Wn.2d 200. When it is possible to do so, the order is frequently framed in such a way as to mitigate the offensive aspects of defendant's activity without requiring its abatement altogether. See State ex rel. Tollefson, 25 Wn.2d 476; Payne v. Johnson, 20 Wn.2d 24, 145 P.2d 552 (1944); Chambers, 11 Wn. App. 357; see also Tinsley, 2 Wn. App. 675. Hoover v. Warner, 189 Wn. App. 509, 528, 358 P.3d 1174 (2015) (injunction impermissibly broad where defendants precluded from engaging in activity that has any adverse effect on plaintiff neighbor's drainage).

The remedies for a continuing trespass are limited to injunctive relief and damages for injury incurred during the three years before filing the action. Crystal Lotus Enters. Ltd. v. City of Shoreline, 167 Wn. App. 501, 506, 274 P.3d 1054 (2012).

RCW 7.40.030 provides for injunctive relief to restrain the malicious erection of any structure intended to spite, injure, or annoy an adjoining property owner. The statute provides for a mandatory injunction to compel abatement and removal when an owner or lessee has maliciously erected a structure with intent. Id.; see MJD Props., LLC v. Haley, 189 Wn. App. 963, 358 P.3d 476 (2015) (single tree artificially located and planted with spiteful intent may, depending on circumstances, come within scope of statute).

Practice Tip: Factors considered in determining whether an injunction should issue with respect to a nuisance include the following

(a) The character of the interest to be protected, (b) The relative adequacy to the plaintiff of injunction and of the remedies [available], (c) plaintiff's delay in bringing suit, (d) plaintiff's misconduct, (e) the relative hardship likely to result to defendant if injunction is granted and to plaintiff if it is denied, (f) the interests of third persons and of the public, and (g) the practicability of framing and enforcing the order or judgment. Steele, 54 Wn.2d at 411 (quoting Restatement of Torts §936 (1939)); see also Wilber, 14 Wn. App. 169 (factors of costs, adequacy of other relief, and likelihood of future recurrence considered in denial of injunctive relief).

(3) Damages

The measure of damages applied by Washington courts for nuisance or trespass cases turns on the nature of the harm—whether it is temporary or permanent. See Miotke, 101 Wn.2d at 332, 334 (nuisance and inverse condemnation); Messenger v. Frye, 176 Wash. 291, 298-99, 28 P.2d 1023 (1934) (trespass); Wilson, 40 Wn. App. at 811 (nuisance). When the injury to land is temporary, the measure of damages is the diminished rental value if the property is to be rented, or the diminished value of its use if the property is to be used by the property owner. Miotke, 101 Wn.2d at 332 (quoting Barci v. Intalco Aluminum Corp., 11 Wn. App. 342, 356, 522 P.2d 1159, review denied, 84 Wn.2d 1012 (1974)). Only when the injury to land is permanent and irreparable does the measure of damages become the difference in the market value of the property before and after the creation of the nuisance. Id.

The permanence of the injury depends upon whether an intrusive condition can be abated reasonably. Bradley, 104 Wn.2d at 695. A trespass or nuisance is considered abatable, irrespective of the permanency of any structure involved, as long as the defendant can take curative action to stop the continuing damages and the condition is one that can be removed without unreasonable hardship and expense. See Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 125-26, 977 P.2d 1265 (1999). Determination of whether an injury to property is temporary or permanent is typically a fact question. Pepper v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 542, 871 P.2d 601, review denied, 124 Wn.2d 1029 (1994).

Trespass is an intentional tort and damages from an intentional tort need not be mitigated. Pub. Util. Dist. No. 2 of Pac. Cnty. v. Comcast of Wash. IV, Inc., 184 Wn. App. 24, 77, 336 P.3d 65 (2014), review denied, 183 Wn.2d 1015 (2015) (utility district not required to mitigate damages stemming from company's failure to remove communication equipment from electric utility poles after parties failed to reach utility pole agreement).

Continuing trespass damages are limited to injunctive relief and damages for injuries incurred during the three years prior to filing the action. Crystal Lotus Enters., 167 Wn. App. at 506 (allegations that property unusable do not suffice to defeat motion for summary judgment).

Although only single damages are recoverable in a private trespass case, a trespass on public lands exposes a defendant to treble damages under RCW 79.02.030. That statute, however, provides for single damages if it is determined that the person did not know or have reason to know that that person lacked authority to use or occupy the public land or to remove any valuable material or cause waste or damage. RCW 79.02.030. But see Northlake Marine Works, Inc., 134 Wn. App. at 291-92 (agency gave implied permission for use of waterway and therefore was equitably estopped from treble damages until it revoked permission, but in any event was entitled to fair market rental value plus interest).

As discussed above, the specific timber trespass statutes, RCW 64.12.030-040, and RCW 79.02.300 and .320, also make provision for treble damages in certain trespass cases. See §19.4(3), above.

(4) Stigma damages

The purpose of awarding damages is to make a party whole for the losses proximately caused by a harm. Increasingly, plaintiffs using nuisance and trespass claims to seek damages for impairment of property value employ a damages concept known as "stigma."

Washington courts have not specifically addressed the issue, but in Wilson, 40 Wn. App. at 811, the court permitted recovery of diminished market value damages due to the permanent nature of the injury to the plaintiffs' properties, i.e., solvents had been disposed of in a nearby landfill and had leached into the local groundwater, contaminating plaintiffs' wells. The injury to plaintiffs' property was considered permanent because experts testified that chemicals would continue to leach into the wells for at least 100 years. Id. By contrast, in Miotke, 101 Wn.2d at 332, the court awarded plaintiffs only loss of use damages for sewage that was discharged into the Spokane River in front of plaintiffs' properties. The distinction appears to be whether the effects of the injury are temporary or permanent...