Chapter 30 PRIVATE NUISANCE

• Jurisdiction: North Carolina

30 PRIVATE NUISANCE¹

A. Definition

"[A]private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one's neighbor."² The Restatement of Torts says: "A private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of land."³ Private nuisance is "a field of tort liability rather than a single type of tortious conduct."⁴

There are two types of private nuisance recognized in North Carolina: nuisance per se (i.e., in law) and nuisance per accidens (i.e., in fact).⁵ The former is an act, occupation or structure that is a nuisance at all times and under any circumstances, regardless of its location or surroundings.⁶ It is rare for courts to find that something is a nuisance per se, and lawful enterprises can probably not be nuisances per se.⁷ The latter — the type of nuisance that is the focus of this chapter — is one that becomes a nuisance because of its location or because of the manner in which it is constructed, maintained or operated.⁸

The invasion that is claimed to be a nuisance per accidens may be either intentional or unintentional.⁹ The latter occurs when a defendant's conduct is negligent, reckless or ultrahazardous.¹⁰ Most private nuisances per accidens are intentional and redressed without allegation or proof of negligence.¹¹ Intentional nuisance focuses on the unreasonableness of the interference.¹² Citing the Restatement of Torts, the North Carolina Supreme Court said:

An invasion of another's interest in the use and enjoyment of land is intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct.¹³

Restatement (Second) of Torts § 825 states:

An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.

Comment c to the Restatement says that an invasion does not need not be inspired by malice or ill will to be "intentional." An invasion knowingly caused in pursuit of a laudable enterprise without any desire to harm is still intentional. That the defendant realizes or should realize the conduct involves a serious risk or likelihood of causing an invasion is not enough to make the invasion intentional. The defendant must either act for the purpose of causing it, or know that it is resulting or is substantially certain to result from his or her conduct.

Among the instrumentalities that may be responsible for the invasion are dust,¹⁴ light,¹⁵ "spite" fences,¹⁶ infectious disease,¹⁷ sewage,¹⁸ colloidal matter,¹⁹ noise,²⁰ vibration,²¹ odors,²² water²³ and groundwater contaminates.²⁴

Despite all attempts, nuisance remains difficult to define. The North Carolina Court of Appeals has more than once quoted a Kentucky decision that said:

In the whole field of law there is nothing more difficult to capture within the confines of a workable definition than the concept of nuisance, nothing more dependent on the peculiar facts of the given case. Like the legendary and elusive gadfly Tyll Eulenspiegel, it scoffs at the conventionalities of the law.²⁵

A large part of the difficulty comes from the overlapping of nuisance with negligence and trespass.

In two cases, the North Carolina Supreme Court drew distinctions between negligence²⁶ and nuisance:

Negligence and nuisance are separate torts, but the line of demarcation between them is often indistinct and difficult to define. Primarily a nuisance is a condition, not an act or omission, but a structure or condition which is lawful may be a nuisance by reason of the manner of its maintenance or management.²⁷
While the same act or omission may constitute negligence and also give rise to a private nuisance per accidens or in fact, and thus the two torts may coexist and be practically inseparable, a private nuisance per accidens or in fact may be created or maintained without negligence.²⁸

A Restatement commentary attempts to distinguish trespass from nuisance. Trespass, says the Restatement, is "an invasion of the interest in the exclusive possession of land, as by entry," whereas nuisance is an interference with the interest in the private use and enjoyment of property that does not require interference with possession.²⁹ There is a certain overlap between the two torts, another Restatement commentary notes, and they are not entirely exclusive or inconsistent.³⁰ The plaintiff, in some cases, may have a choice of one or the other, or may proceed on both.³¹

B. Elements

To establish a nuisance per accidens, a plaintiff must show:

(1) Improper or unreasonable use of the defendant's property
(2) That caused a substantial interference with plaintiff's use and enjoyment of his or her property.³²

C. Elements Defined

1. Improper or Unreasonable Use of Defendant's Property

The first element focuses on the defendant's conduct. The conduct may be either the creation or the maintenance of a nuisance.³³ A finding that the defendant's conduct was unreasonable is the essential inquiry in any nuisance action,³⁴ but it is not always easy to define whether a defendant's use of property is unreasonable.³⁵

Fundamentally, the unreasonableness of intentional invasion is a problem of relative values to be determined by the jury in the light of the circumstances of the case. The question is not whether a reasonable person in plaintiffs' or defendant's position would regard the invasion as unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Regard must be had not only for the interests of the person harmed but also for the interests of the defendant, and for the interests of the community.³⁶

Ordinarily, the reasonableness of the defendant's conduct is a jury question.³⁷ The North Carolina Supreme Court has said that something that is "reasonable in one locality and in one set of circumstances may be unreasonable in another."³⁸ The court set forth some of the circumstances to be considered by a jury determining whether or not a defendant's conduct is unreasonable. These include:

• Surroundings and conditions under which a defendant's conduct is maintained
• Character of the neighborhood
• Nature,³⁹ utility⁴⁰ and social value of defendant's operation⁴¹
• Nature, utility and social value of the plaintiff's use and enjoyment that have been invaded
• Suitability of the location for the defendant's operation⁴²
• Suitability of the location for the use the plaintiff makes of his or her property
• Extent,⁴³ nature⁴⁴ and frequency of the harm to the plaintiff's interest⁴⁵
• Priority of occupation between the parties

No one of these factors, said the court, is decisive, and all circumstances must be considered. In the case of surface-water drainage, North Carolina follows the rule of reasonable use, under which "[e]ach possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others, but liability is incurred when his harmful interference with the flow of surface waters is unreasonable and causes substantial damage."⁴⁶

2. Substantial Interference with Plaintiff's Use and Enjoyment of His or Her Property

The second element focuses on the effect of the defendant's conduct on the plaintiff's property. A preliminary question is: does the plaintiff have a sufficient interest in the property to maintain the action?⁴⁷ Under the Restatement, the interests protected include those in the use and enjoyment of easements and profits.⁴⁸ The Restatement commentary says the phrase "interest in the use and enjoyment of land" is used in a broad sense to encompass not only the interests in actual present use, but also in having the present-use value of the land unimpaired by changes in its physical condition and in the pleasure, comfort and enjoyment normally derived from occupying land.⁴⁹ A commentary adds that there must be a legally protected interest concerning the particular use or enjoyment that was affected. Only when conduct interferes with exercise of particular rights and privileges the plaintiff owns may an action be maintained. Someone who has a profit in minerals can only complain of an interference with the land or its use if the minerals or their use and enjoyment are affected.⁵⁰ Another commentary says the term "possessors of land" — defined in § 328E — applies to adverse possessors.⁵¹ Occupancy is a sufficient interest in itself, under the Restatement, to permit recovery for an invasion of the interest in the use and enjoyment of land.⁵²

North Carolina decisions have assumed that a leasehold interest is sufficient to bring a nuisance action.⁵³ In Kent v. Humphries,⁵⁴ the North Carolina Supreme Court decided that when a tenant entered into possession under an invalid lease — one violating the statute of frauds — and tendered rent that was accepted by the landlord, a periodic tenancy was created and the plaintiff "clearly had a sufficient property interest to maintain a claim in nuisance."

A jury cannot find that a nuisance exists at all without finding substantial damage to the plaintiff.⁵⁵ The plaintiff must show that the injury, invasion, or interference⁵⁶ was substantial or significant.⁵⁷

By substantial invasion is meant an invasion that involves more than slight inconvenience or petty annoyance. The law does not concern itself with trifles. 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. Each individual in

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