Chapter 31 - § 31.1 • DEFINITION

• Jurisdiction: Colorado

§ 31.1 • DEFINITION

The term "nuisance" refers to two types of tortious invasion of others' interests.

The first, public nuisance, concerns the invasion of rights common to all members of the public.¹ The abatement of public nuisances is addressed by statute and generally requires action by a governmental entity.²

The second, private nuisance, is the main focus of this chapter. "Private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of his land."³ The Restatement (Second) of Torts states that protected interests in land include those in the use and enjoyment of easements and profits.⁴ Additionally, the Restatement takes a broad view of one's "interest in the use and enjoyment of land"; this concept includes not only one's interests "in the actual present use of land for residential, agricultural, commercial, industrial and other purposes," but also one's interests "in having the present use value of the land unimpaired by changes in its physical condition" and in "the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land."⁵

Because private nuisance is a tort against land, a plaintiff's interest in land is essential to standing.⁶ Land owners have an interest in land sufficient to bring a nuisance claim, but other plaintiffs with a sufficient interest in land may also include land possessors, owners of easements and profits, and mortgagees.⁷

Plaintiffs commonly bring nuisance actions against the person or entity whose action or lack thereof creates the nuisance.⁸ However, liability may extend to active participants in the nuisance, land possessors, and lessors of land.⁹ Depending on the terms of the policy and the circumstances, a defendant's insurer may not cover activity constituting a nuisance, or may be required to defend and indemnify against a nuisance action.¹⁰

A nuisance may be simultaneously public and private.¹¹ In such instances, an action may be brought by either a governmental entity or a private individual whose damages are different in kind from those of the general public.¹² An activity that complies with applicable zoning regulations may still constitute a private nuisance; otherwise, courts explain, the legislature would be able to license a nuisance.¹³ Likewise, an activity's failure to comply with applicable municipal regulations is not dispositive as to whether the activity constitutes a nuisance.¹⁴ In the context of overlapping private and public nuisances, actions can be brought to abate absolute nuisances, also referred to as nuisances per se.¹⁵

A person or entity may be held liable for engaging in a civil conspiracy to create a private nuisance.¹⁶

An "agricultural operation" is not a public or private nuisance if it predates any nonagricultural uses in the surrounding area, "employs methods or practices that are commonly or reasonably associated with agricultural production," and is not...