PRIVATE NUISANCE

A NUISANCE IS “ANYTHING INJURIOUS TO HEALTH . . . [OR] INDECENT OR OFFENSIVE TO THE SENSES, OR AN OBSTRUCTION TO FREE USE OF PROPERTY SO AS TO INTERFERE WITH COMFORTABLE ENJOYMENT OF LIFE OR PROPERTY . . .” (CIVIL CODE SEC. 3479.) A PLAINTIFF MAY BRING AN ACTION FOR PRIVATE NUISANCE, WHERE HE/SHE HAS SUFFERED INJURY SPECIFIC TO THE USE AND ENJOYMENT OF HIS/HER LAND. TO SUCCEED IN SUCH A CLAIM, THE PLAINTIFF MUST SHOW:

  1. THE PLAINTIFF OWNED, LEASED, OCCUPIED OR CONTROLLED THE PROPERTY;
  2. THE DEFENDANT, BY ACTING OR FAILING TO ACT, CREATED A CONDITION OR PERMITTED A CONDITION TO EXIST THAT:
    1. WAS HARMFUL TO HEALTH;
    2. WAS INDECENT OR OFFENSIVE TO THE SENSES;
    3. WAS AN OBSTRUCTION TO THE FREE USE OF PROPERTY, SO AS TO INTERFERE WITH THE COMFORTABLE ENJOYMENT OF LIFE OR PROPERTY;
    4. UNLAWFULLY OBSTRUCTED THE FREE PASSAGE OR USE, IN THE CUSTOMARY MANNER, OF ANY NAVIGABLE LAKE, OR RIVER, BAY, STREAM, CANAL, OR BASIN, OR ANY PUBLIC PARK, SQUARE, STREET, OR HIGHWAY; OR
    5. WAS A POTENTIALLY DANGEROUS CONDITION TO THE PLAINTIFF’S PROPERTY;
  3. THIS CONDITION SUBSTANTIALLY INTERFERED WITH THE PLAINTIFF’S USE OR ENJOYMENT OF HIS/HER LAND;
  4. AN ORDINARY PERSON WOULD REASONABLY BE ANNOYED OR DISTURBED BY THE DEFENDANT’S CONDUCT;
  5. THE PLAINTIFF DID NOT CONSENT TO THE DEFENDANT’S CONDUCT;
  6. THE PLAINTIFF WAS HARMED;
  7. THE DEFENDANT’S CONDUCT WAS A SUBSTANTIAL FACTOR IN CAUSING THE PLAINTIFF’S HARM; &
  8. THE SERIOUSNESS OF THE HARM OUTWEIGHS THE PUBLIC BENEFIT OF THE DEFENDANT’S CONDUCT.

THE ESSENCE OF A PRIVATE NUISANCE IS ITS INTERFERENCE WITH THE USE AND ENJOYMENT OF LAND. THE ACTIVITY IN ISSUE MUST “DISTURB OR PREVENT THE COMFORTABLE ENJOYMENT OF PROPERTY,” SUCH AS SMOKE FROM AN ASPHALT MIXING PLANT, NOISE AND ODORS FROM THE OPERATION OF A REFRESHMENT STAND, OR NOISE AND VIBRATION OF MACHINERY.” (OLIVER V. AT&T WIRELESS SERVICES (1999) 76 CAL.APP.4TH 521.) 

“TO PROCEED ON A PRIVATE NUISANCE THEORY THE PLAINTIFF MUST PROVE AN INJURY SPECIFICALLY REFERABLE TO THE USE AND ENJOYMENT OF HIS OR HER LAND. THE INJURY, HOWEVER, NEED NOT BE DIFFERENT IN KIND FROM THAT SUFFERED BY THE GENERAL PUBLIC.” (KOLL-IRVINE PROPERTY OWNERS ASSN. V. COUNTY OF ORANGE (1994) 24 CAL.APP.4TH 1036.)

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