WHAT IS A “NUISANCE” IN LEGAL TERMS?
Under Texas law, a “nuisance” is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to a person of ordinary sensibilities attempting to use and enjoy it. Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 600–01 (Tex. 2016) (confirming definition of nuisance); Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011) (per curiam); Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).
It is important to understand that the term “nuisance” describes a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff’s legal rights. See, e.g., Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967) (quoting 54 C.J.S. Limitations of Actions § 168, pp. 122-23); Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888). The law of nuisance recognizes that certain injuries to a person’s right to the “use and enjoyment of property” can also constitute a form of legal injury for which a legal remedy will be granted. Likes, 962 S.W.2d at 504.
The law of “nuisance” seeks to balance a property owner’s right to use his property “as he chooses in any lawful way” against his duty not to use it in a way that “injure[s] another.” Gulf, Colo. & Santa Fe Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 1000 (Tex. 1900)
Whether a defendant may be held liable for causing a nuisance depends on the culpability of the defendant’s conduct, in addition to proof that the interference is a nuisance. There must be some level of culpability on behalf of the defendant. Nuisance cannot be premised on mere accidental interference with the use and enjoyment of land but only on such interferences that are caused by negligent, intentional, or abnormally dangerous con- duct that is also out of place in its surroundings. Crosstex North Texas Pipeline, L.P., 505 S.W.3d at 588, 604 (retaining the three categories); City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997).
TWO TYPES OF NUISANCE
Nusiances are generally categorized as “public” or “private” depending on the party or parties adversely affected by the interfering condition created by the defendant. Although they are similar, they are distinct conditions that have different requirements. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 591 n.3 (Tex. 2016).
The difference between a public and private nuisance is that a public nuisance affects the public at large, while a private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of land. Walker v. Tex. Elec. Serv. Co., 499 S.W.2d 20, 27 (Tex. Civ. App.—Fort Worth 1973, no writ); Kane v. Cameron Int’l Corp., 331 S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
As is so often true in the law, there is grey area because a public nuisance may also be a private nuisance. Crosstex N. Tex. Pipeline, 505 S.W.3d at 591 n.3.
PUBLIC NUISANCE
In public nuisance, a defendant’s conduct unreasonably interferes with a right common to the public at large by affecting the public health or public order. See Crosstex North Texas Pipeline, L.P., 505 S.W.3d at 591 n.3.
An impediment in a public way may constitute a nuisance. See, e.g., Kjellander v. Smith, 652 S.W.2d 595, 600 (Tex. App.–Tyler 1983, no writ); SoapCorp. of Am. v. Balis, 223 S.W.2d 957, 960 (Tex. Civ. App.–Fort Worth 1949, writ ref’d n.r.e.)
Typically, a city or state attorney’s office sues for a public nuisance. A private citizen must estab- lish standing to sue. To establish standing, the plaintiff must have suffered harm differ- ent in kind from the public at large. Jamail v. Stoneledge Condominium Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.); Quanah Acme & Pacific Railway Co. v. Swearingen, 4 S.W.2d 136, 139 (Tex. App.—Amarillo 1927, writ ref’d).
PRIVATE NUISANCE
In private nuisance, a defendant’s conduct substantially interferes with the use and enjoyment of real property owned by an individual or small group of persons. “It may, for example, cause physical damage to the plaintiffs’ property, economic harm to the property’s market value, harm to the plaintiffs’ health, or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.” Crosstex North Texas Pipeline, L.P., 505 S.W.3d at 596.
To support a claim for private nuisance, the condition the defendant causes may interfere with a wide variety of the plaintiffs’ interests in the use and enjoyment of their property. It may, for example, cause physical damage to the plaintiffs’ property, economic harm to the property’s market value, harm to the plaintiffs’ health, or psychological harm to the plaintiffs’ “peace of mind” in the use and enjoyment of their property. See Harper § 1.23, at 98-100; Prosser, 3d ed. § 90, at 6113 (“[V]irtually any disturbance of the enjoyment of the property may amount to a nuisance.”). But to rise to the level of nuisance, the interference must be “substantial” in light of all the circumstances.
IS THE DEFENDANT’s INTERFERENCE WITH THE PLAINTIFF’s USE AND ENJOYMENT OF LAND “SUBSTANTIAL?’
The determination of whether a defendant’s interference with a plaintiff’s use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors, depending on the circumstances of the case at hand. These include, among others:
– the character and nature of the neighborhood, each party’s land usage, and social expectations;
– the location of each party’s land and the nature of that locality;
– the extent to which others in the vicinity are engaging in similar conduct in the use of their land;
– the social utility of each property’s usage;
– the tendency or likelihood that the defendant’s conduct will cause interference with the plaintiff’s use and enjoyment of their land;
– the magnitude, extent, degree, frequency, or duration of the interference and resulting harm;
– the relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land;
– the timing of each party’s conduct or usage that creates the conflict;
