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Nuisance claims can be divided into two types: public and private.  The distinction typically involves whether the harm being experienced is on public property or private property. To claim a public nuisance, there must be an unreasonable interference with a right common to the general public. Jamail v. Stoneledge Condo. Owners Ass'n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998).  In suits by private parties for a public nuisance there must also be a special injury, that is, an interference with a property right of the plaintiff, distinct from the injury to the public at large.  A private nuisance is the most common nuisance claim and involves an interference with plaintiff right to use their private property. 

PRIVATE NUISANCE.  According to the Texas Supreme Court, a private nuisance does not refer to a cause of action at all, but rather to “the particular type of legal injury that can support a claim or cause of action seeking legal relief.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594 (Tex. 2016). The law of nuisance recognizes that certain injuries to a person's right to the use and enjoyment of their property can constitute a “form of legal injury for which a legal remedy will be granted.” Id. at 595. The claim focuses on a condition that a defendant causes to interfere with a wide variety of the plaintiffs' interests in the use and enjoyment of their property. To rise to the level of nuisance, however, the interference must satisfy two additional requirements.  First, it must be “substantial” in light of all the circumstances. Id. at 595.  Second, the “discomfort or annoyance” must be objectively “unreasonable.” Id.  

The requirement that the interference must be “substantial” “sets a minimum threshold that confirms that the law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result.” Id. at 595.  Such things as foul odors, dust, noise, and bright lights, if sufficiently extreme, may constitute a nuisance.” Id. (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004)).   In determining whether the interference is substantial, a court may review whether the use impairs the adjoining property's market value. Id.  The substantiality test is fact-specific and includes consideration of such things as the nature and extent of the interference, and how long the interference lasts or how often it recurs.” Id. at 595-96. 

The second requirement is that the “discomfort or annoyance” must be objectively unreasonable, meaning that the harm from the interference is severe and greater than the other should be required to bear without compensation.” Id. at 596. The unreasonableness inquiry focuses on the effect of the conduct, not the conduct itself. Id. 596-99. The test is an objective one that views the effect from the standpoint of a “person of ordinary sensibilities,” Id. at 596, 599-600.  To constitute a private nuisance, the effects of a defendant's conduct or land use must be “such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits.” Id. at 599. “It is not enough that plaintiff himself is offended or annoyed if he is peculiarly sensitive.” Id. at 600. “The standard is what ordinary people, acting reasonably, have a right to demand in the way of health and comfort under all the circumstances.” Id.  

Finally, the nuisance claim needs to have an underlying cause of action to be actionable. The Supreme Court set out three categories for private nuisance: 1) intentional nuisance, 2) negligent nuisance, and 3) strict liability nuisance. Id. at 602, 604-609.  For an intentional nuisance claim, a plaintiff may establish intent with proof that the defendant acted with a specific intent to inflict injury or a malicious desire to so harm by causing the actionable interference.  But an intent to inflict injury or desire to harm is not required to show intent; the plaintiff can establish intent with evidence that the defendant acted with the belief that the interference was ‘substantially certain to result from’ the defendant's conduct.” Id. (quoting Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)).  An intentional invasion may be “an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm.” Id. The second category, a negligent nuisance claim, is governed by ordinary negligence principles, and a plaintiff must prove the normal elements of a negligence claim: a legal duty, breach of that duty, and damages proximately caused by the breach. Id. at 607.  A property owner has a duty not to use his property in a way that injures another. Id. at 595.  Generally speaking, the law imposes upon all persons the duty to use ordinary care to avoid injury or damage to the property of others.  When a breach of that duty substantially interferes with use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities, it has caused a nuisance. Id. at 600.  The third category of nuisance claims, strict liability, includes those based on “other conduct, culpable because abnormal and out of place in its surroundings, that invades another's interests. Id. at 607. Even in the absence of intent or negligence, “a nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous activity which necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed. Id.  This third category has been applied unevenly in different Texas cases throughout the years, but the Court in Crosstex noted that what seemed clear is that a nuisance created by “abnormal and out of place” conduct arises only out of conduct that constitutes an “abnormally dangerous activity” or involves an abnormally “dangerous substance” on the property that creates a “high degree of risk” of serious injury. Id. at 609.  

Statute of Limitations.  The limitations period for nuisance is two years.  Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012).  When a nuisance claim accrues depends on whether the nuisance is permanent or temporary.  Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).   Texas law classifies nuisances as either permanent or temporary. This classification has consequences for the statute-of-limitations purposes.  A permanent nuisance claim accrues when the injury first occurs or is discovered; a temporary nuisance claim accrues a new upon each injury.” Id.  A “permanent nuisance may be established by showing that either the plaintiff's injuries or the defendant's operations are permanent.” Id. at 283.  In most nuisance cases, a permanent source will result in permanent interference. Id.  The Texas Supreme Court has determined that "an injury to real property is considered permanent if: (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated." Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 474 S.W.3d 474, 480 (Tex. 2014).  Conversely, an injury to real property is considered temporary if: (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty." Id. Whether an injury is permanent or temporary is a question of law for the court to decide. Id.  

Damages.  With respect to damages, the general rule is that in cases involving permanent injury to real property the measure of damages is the loss of fair market value, while the cost to repair or restore is the proper measure in temporary nuisance cases. Id.  Although, in cases of temporary injury, when the cost to repair or restore exceeds the diminution in the property's market value to such a high degree that the repairs are no longer economically feasible, then the injury may be deemed permanent and damages are awarded only for the loss of market value. Id.  In additional to money damages, the other remedies that may be available include injunctive relief and self-help abatement. However, not all remedies are available in every case.


© 2020 Mark Courtois

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