Interference with the use or enjoyment of land

Introduction

Interference with someone's enjoyment of their land must be at a level that would substantially interfere with the ordinary, physical comfort of a person. Inconvenience to a sensitive or fussy person or interference with a sensitive use will not constitute a nuisance.

The claimant must usually prove damage, i.e. physical damage to the land itself or property; or injury to health, such as headaches caused by noise, which prevents a person enjoying the use of their land

Duration and timing of the nuisance will also be relevant. For example, in the case of nuisance caused by noise, noise in the middle of the night or at other quiet times will be more likely to be found to be a nuisance.

Basic Principles

Property interest may be through ownership or rights acquired by lease. Nuisance may be premised upon conduct taking place off of land that has impact

on land. Successful plaintiff may receive actual damages (harm to property and harm to

enjoyment) and injunctive relief (stop the offending conduct).

Nuisance

According to Common law, An unreasonable conduct that materially interferences with the ordinary comfort of human existence. From the perspective of law, nuisance is an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions.

As stated by the British Columbia Court of Appeal in Royal Anne Hotel Co. Ltd. v. Ashcroft et al (1979), 8 C.C.L.T. 179:

“The test then is, has the defendant’s use of this land interfered with the useand enjoyment of the plaintiff’s land and is that interference unreasonable? Where . . . actual physical damage occurs it is not difficult to decide that the interference is in fact

unreasonable. Greater difficulty will be found where interference results in little or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes.”

The law of nuisance attempts to reconcile competing uses of land. It endeavors to balance the rights of one occupier of land to use his or her property for lawful purposes with another occupier’s right to the quiet use and enjoyment of his or her land. The Court can intervene when the interference with the other’s use or enjoyment of land is unreasonable.The Courts in British Columbia have adopted an objective test for nuisance, which applies the standards of an ordinary reasonable person.

The roots of modern environmental law are found in the common law concept of nuisance. The word ‘nuisance’ is derived from the French word ‘nuire’ which means to injure, hurt or harm. The term nuisance is incapable of a precise definition, but its concept is well comprehended. Nuisance may be described as an ‘unlawful interference with a person’s use or enjoyment of land or of some right or in connection with it.’

For an interference to be an actionable nuisance, the conduct of the defendant must be unreasonable. A nuisance may be caused by negligence and there may be cases where the same act or omission may comprise a certain element of either kind, but generally speaking these two classes of action are distinct.

It Involves

Physical damage to the land – such as poisonous emissions from the defendant’s factory kills the plants in the claimant’s garden

Disturb the claimant’s enjoyment of the land – such as loud music in an apartment building prevents someone from sleeping

Disturbances can take a variety of forms – smoke, smells, overhanging branches and noise.

In common law, nuisance is of two kinds: (a) Private nuisance and (b) Public nuisance.

Private nuisance

Private nuisance may be defined as unlawful interference with a person's use, comfort, enjoyment and any interest that a person may have over his land.

As with the definition of public nuisance, in private nuisance too, ‘unlawful interference' does not mean that the activity or conduct of the defendant is inherently unlawful. An interference becomes unlawful and constitutes a nuisance when it unreasonably interference with the plaintiff's enjoyment of his land.

In an action for private nuisance the plaintiff must prove interference with the enjoyment of his land. Therefore a plaintiff must have an interest in land to be able to sue in private nuisance, unlike a claim based on public nuisance which does not require the plaintiff to have any interest over land.

Persons who have an interest over land are a landowner, a tenant and a licensee who has been granted a license to use the land for a particular purpose

Problem Statement

How the tort of private nuisance can apply when the use of land by one property owner interferes in the enjoyment of neighboring lands.

Whether that there are any laws which govern the private nuisance issue. The issue arise when the nuisance had occurs and we would looked which provision for the set of law can be related in the public nuisance.

The private nuisance has established as a law to protect the interest of the people in the civil suit and how effective there are to cover the situation occurs. If there is any law related with the private law, how can that law would be applied to the wrongdoer?

Courts have found the following to constitute an actionable nuisance:

Vibration of building due to blasting on adjacent property; Flooding; Drifting odors or dust from manufacturing; Drifting odor and noise from dog kennel; Noise from drag racing; Golf balls from golf course; Smoke from manufacturing.

Case Law includes:

Challen -v- The McLeod Country Golf Club [2004]- Golf balls from golf course

Sammut v. Islington Golf Club [2005] - Golf balls from golf course

Hellman v.La Cumbre Golf & Country Club

Challen -v- The McLeod Country Golf Club [2004] QCA 358

Nuisance created by errant golf balls hit from adjoining golf course onto private property

The Facts

The plaintiff, Mrs. Challen, lived with her family at a house she built and owned adjoining the golf course owned and operated by the McLeod Country Golf Club since November 1988. In November 2001, the plaintiff sued the club for damages for nuisance occasioned by golf balls being hit from its golf course onto her property. Prior to the proceedings, the plaintiff had written to the club (seeking reimbursement for damage caused by errant golf balls) in October 1991, July 1992, November 1994, November 1996, December 1998, and July 2000. In March 2001, the plaintiff’s solicitors sent the club a lengthy letter detailing the history of the problem. In response to this letter, the club changed its course in late 2001. As a result of these changes, the number of balls coming onto the plaintiff’s property was reduced from around 20 a week to 2 or 3 a week.

The Decision at Trial

The trial judge held he would have expected the letters from the plaintiff to the club to be more frequent, from the early to late 1990s, if the interference with the plaintiff’s enjoyment of her premises was material or substantial. The trial judge concluded that the interference with the plaintiff’s enjoyment of her premises was not material or substantial during this time period.

The trial judge held that the interference with the plaintiff’s enjoyment of her premises was material or substantial in the late 1990s and early 2000s, but was satisfied that the interference with the plaintiff’s enjoyment of her premises was not now material or substantial.

Further, the trial judge held that the club did not know nor ought to have known until the letter from the plaintiff’s solicitors in March 2001 that the interference with the plaintiff’s

enjoyment of her property had been material or substantial. The trial judge was satisfied that the club did all that could reasonably be expected of it in response to that letter.Accordingly, the trial judge entered judgment for the club.

The Issues on Appeal

Apart from appealing the finding that there was a nuisance from the late 1990s until the early 2000s, the plaintiff challenged each of the trial judge’s findings.

The plaintiff made it clear that she sought general damages only in respect of the nuisance to the date of trial, and was not seeking an award of equitable damages in lieu of an injunction for any continuing nuisance.

The Decision on Appeal

The Court of Appeal held that the trial judge erred in deciding the issue of whether the interference with the plaintiff’s enjoyment of her property was material or substantial between the early and late 1990s by reference to the frequency of the letters from her to the club during that period.

Further, the Court of Appeal held that by the time the club received the plaintiff’s letter in November 1994, it was on notice that some golfers whom it permitted to play on its course were substantially and materially interfering with the plaintiff’s enjoyment of her property. In this period until the late 1990s, that situation did not change to the knowledge of the club.

The Court of Appeal held that, in light of the conclusion that the club was on notice of the nuisance from the receipt of the letter in November 1994 (and not from receipt of the plaintiff’s solicitor’s letter in March 2001), the steps taken by the club in late 2001 could not amount to a reasonable response in all theCircumstances to abate the nuisance.

The Court of Appeal also held that, in any case, even 2 or 3 balls a week coming onto the plaintiff’s property was a material interference with her enjoyment of her property. It was common ground, however, that there would be a continuing abatement of the problem as some of the steps taken by the club, such as the planting of shrubs, become more effectual over time in providing a barrier between the course and the plaintiff’s property.For this reason, the Court of Appeal held that the plaintiff was entitled to a finding of nuisance (although of much less significance) which continued to the date of trial. The Court of Appeal awarded the plaintiff $12,067 in damages.

A Case for Golf SeasonPrivate Nuisance: Sammut v. Islington Golf Club

The recent Superior Court decision in Sammut v Islington Golf Club [2005] O.J. 2674 is an interesting example of how the tort of private nuisance can apply when the use of land by one property owner interferes in the enjoyment of neighbouring lands.

The Islington Golf Club was built in 1923 and is a historic 18 hole course designed by Stanley Thompson. Mr. Thompson was, arguably, Canada’s finest golf course designer designing many of the finest golf courses around the world. The Islington Golf Course has operated without significant difficulty from or to its neighbors’ from 1923. In 1999 the Sammut’s build a house immediately northeast of the third hole tee box on the Islington Golf Course. The green is immediately to the northwest of the Sammuts’ property. Unsurprisingly, at least for one who has played golf, the Sammuts’ property was repeatedly hit by fast moving golf balls from the third hole tee. The Sammuts com plained and sought a permanent injunction which would stop the Islington Golf Course from allowing such errant golf balls invading the Sammuts’ property. The golf course argued that the Sammuts, in building the property where they did, consented to the golf balls being shot onto their property and certainly there is a superficial attractiveness to such an argument.

On the face of it, it would seem that someone building a house by a tee box might expect to have golf balls shot onto their property. Certainly, when golf course communities are built, it is common place for purchasers of properties to look carefully at the layout of the golf course to determine whether or not errant balls will cause a problem. In any event, the Court in this case, found that there was no basis for finding an implied consent and ruled that private nuisance applied. It is unclear whether the Court considered pre-existing property use, although such would probably not apply in a case where projectiles were invading neighbouring lands. The Court’s decision was hopeful that some rectification of the problem could be made without a major redesign of the third hole but nevertheless granted an injunction restraining the playing of golf on the third hole in such a day as to allow golf balls to interfere with the Sammuts’ property.

The most salient passages of the Decision follow

20. Private nuisance deals with interference with an occupier's interest in the beneficial use and enjoyment of his land (see G.H .L. Fridman, The Law of Torts in

Canada, Carswell (2nd ed.) p. 167).

21. In order to consider whether a private nuisance exists, it is often necessary to undertake a balancing and comparison of competing interests. As was observed by the Ontario Court of Appeal in Pugliese et al. v. National Capital Commission et al. (1977), 17 O.R. (2d ) 129:

In determining whether nuisance exists, it is not sufficient to ask whether an occupier has made a reasonable use of his own property. One must ask whether his conduct is reasonable considering the fact that he has a neighbour. As Lord Wright pointed out in Sedleigh-Denfield v. O'Callaghan et al., [1940] A.C. 880 at p. 903:

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formulate it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly, in a particular society.

22. It must be noted that this case is not one where a property owner adjacent to golf green or fairway is complaining about, and seeking an injunction against, the occasional golf shot being softly lobbed or dribbling into his yard du ring the course of play. This case concerns IGC's operation of its third hole and the placement of the tee box in such a way and at such an angle and distance as to result in the persistent barrage of high-speed golf balls, referred to in the evidence as "screamers", into the Sammut's home and surrounding garden area.

23. IGC appears to take the position that the Smuts have somehow consented to this problem by having had the nerve to build their home adjacent to the golf course. I do not agree with that proposition. Although it might be reasonable to suggest that the Sammuts should not be allowed impose a drastic remedy upon IGC an d its members as a consequent of the occasional errant golf ball, I cannot see any basis for the conclusion the at they have ever consented to endure a problem of this nature or magnitude.

24. IGC is a private club. Although the evidence reveals that it has endeavoured to be respectful of its neighbours and has allowed them to walk on the property when not in use or in the off -season, it is not a public park and does not attract, in my view, the same degree of regard to the public interest as did, for instance the Linzt Cricket Club of Burnopfield, County Durham from the English Court of Appeal in its decision in Miller

et al. v. Jackson et al., [19 77] Q.B. 966. In that case, moreover, a nuisance was established but the proper remedy was considered to be money damages rather than an injunction.

25. Findings of private nuisance have been made in similar or analogous circumstances to these (see; Cartez v. Willow Park Golf Course Ltd., [2002] A.J. No. 11 74 (Alta. Q.B.); Segal v. Derrick Golf & Winter Club (1977), D.L.R. (3d) 746 (Alta. S.C. Trial Div.); Wilson v. Fawcett, [1979] O.J. No. 526 (O.H.J.) and the decision of S tewart, J. of May 27, 1970 referred to therein).

26. 6 I am of the view that the barrage of golf balls to which the Sammuts are being subjected constitutes a private nuisance for which the IGC should be held responsible. IGC has created the problem and has allowed it to continue.

Remedy

27. The Sammuts' real concern is not for substantial money damages. The cost of repair of the damages to their property is relatively modest. They want the problem rectified by an injunction. The issue of damages is secondary to that.

28. I am of the opinion that IGC is liable for the cost of repairs of the property damage sustained by the Sammuts due to its negligence as determined above. On the evidence and the estimates of repair costs provided, I assess damages for the cost of repair to broken or cracked windows, damaged eaves troughs, fascia board, panels and the chimney and replacement of the steel garage doors to be $9,000.00.

29. With respect to damages for the past private nuisance for which IGC is responsible, I observe that damages in instances such as these have been assessed within a fairly modest range. Not surprisingly, plaintiffs have primarily sought an end to the nuisance, rather than substantial money damages. Accordingly, in all of these circumstances and in light of the inconvenience and annoyance described by the Sammuts in their evidence, I assess damages for past nuisance in the sum of $5,000.00.

30. For the reasons outlined above, I consider that the Sammuts are entitled to injunctive relief to put a stop to the continuation of the nuisance. As a result, I order the following:

(a) IGC is hereby enjoined from allowing its members or their guests from playing golf on the third hole of its 18-hole golf course in any way that results in the hitting or traversing of the Sammuts' adjacent property at 6 Fairway Road in the City of Toronto by hard-driven golf balls.

(b) The effect of the order contained in (a) above is to be suspended for a period of two weeks from the date of release of this decision to permit IGC to review its available options to remedy the nuisance and to implement such necessary action or course modifications as are required to comply with this order.

31. I do not consider that it is for the Court to determine which of the various options available to remedy the problem and stop the ongoing nuisance is to be preferred or implemented by IGC. I express the expectation, however, that a solution will be found which will not require a wholesale redesign of the third hole but instead will employ larger and more effective screening, landscaping and perhaps a re-positioning of the third-hole tee-boxes to produce the desired result.

Hellman v. La Cumbre Golf & Country Club(1992) 6 Cal.App.4th 1224

COUNSELDelwiche & Von Dollen and S.C. Von Dollen for Plaintiffs and Appellants. [6 Cal.App.4th 1227]

Kosmo, Cho & Brown, Frederick W. Kosmo, Griffith & Thornburgh and John R. Rydell for Defendant and Respondent.

OPINIONSTONE (S. J.), P. J.

Anita Hellman and M. Stanley Goldberg appeal from a judgment in favor of respondent La Cumbre Golf and Country Club against appellants on their cause of action for damages and injunction for nuisance. They contend: (1) the evidence is insufficient to sustain the finding that the rate of golf balls landing on their property has been the same since 1957; (2) failure to issue a proper statement of decision is reversible error per se; (3) the doctrine of coming to a nuisance is no longer viable; (4) the statute of limitations is inapplicable to a continuing nuisance; and (5) they met their burden of proof in showing existence of a nuisance. We affirm the judgment.

Facts

Appellants own a home adjacent to the 10th fairway of La Cumbre Golf and Country Club in the Hope Ranch area of Santa Barbara. The club has been in operation since

1957. Appellants' home was built in 1970 and they visited the house on three occasions before purchasing the property in August 1985. On one visit, Mr. Goldberg discovered a golf ball in the gutter but the seller said golf balls did not pose a problem. On another occasion, Mr. Goldberg walked from the 10th tee down the 10th fairway to pace the distance to the property line. Since he could not see the house from the fairway, which is 75 to 80 feet higher than the house, he concluded that golf balls would not be a hazard. Ms. Hellman expected that living adjacent to a golf course might result in some golf balls on the property.

After moving in, appellants discovered five to ten golf balls on their property every week. Since 1985, Mr. Goldberg has collected approximately 1,300 golf balls which were not retrieved by their owners. Golf balls land on the property every day of the week with the heaviest concentration on weekends. On several occasions the balls have almost hit appellants. Both appellants' automobiles have been dented by golf balls and Ms. Hellman accepted $1,000 less for her vehicle due to golf ball dents when she sold it. Appellants are afraid to have guests outside during the daytime and do not use the swimming pool for fear of being hit by golf balls.

The typical golf hole consists of a tee area, fairway and hole. Every golf hole at La Cumbre has three tee locations, a woman’s, men's, and championship tee. The championship tee is farthest from the hole, 486 yards, the [6 Cal.App.4th 1228] men's tee is 448 yards, and the women's tee 445 yards. Appellants' expert, Johnstone, testified that the dimension of the safety standard for a golf hole can be illustrated by a cone or wedge shape, narrow at the tee, and spreading to a distance of 150 feet on each side of the center line of the fairway at a point 150 yards from the tee and continuing down the fairway.

Respondent's expert, Olson, agreed essentially with this description except that he testified the spreading out of 150 feet on either side of the fairway center line does not occur until 250 yards from the tee. Appellants' expert opined that a condition exists that is more hazardous than would be normally designed in a golf tee due to the elevation of the tee, the inclination of most right-handed golfers to slice the ball, and the narrowness of the fairway at the property line. Mr. Johnstone proposed two solutions to minimize or eliminate golf balls landing on appellants' property: (1) move all the tees down off the hill to the lower area, across from the far corner of appellants' home or (2) abandon the

current men's tees, move them to the current women's tee and then add a hedge along the right side of the tee to help catch errant balls.

Mr. Olson opined that from a design and setbacks safety standpoint, the course met the standard practice at the time it was built and acceptable standards of today. He also stated that the 10th tee is almost a "signature" tee. Changing it would affect the playability, increasing it from a men's par four to a par five. He indicated that moving the tee would affect sales value of membership and that the course rating is based upon the degree of difficulty and challenge of the holes. He did suggest that changes in the degree of tilt of the tee and adding a marker pole could eliminate many of the errant balls. Respondent stated that it intended to adopt Mr. Olson's recommendations regardless of the outcome of the trial.

Respondent's experts and witnesses testified that the club has averaged 100 players daily and that since 1959, the tees were in the same place except for the championship tee which did not exist at first. The golf professional who had worked at the club since 1957 had personally witnessed only three to six balls hit into appellant's property. Appellants were the first persons to complain.

The court ruled, in its tentative decision that the evidence supports that balls have landed on appellants' property at the same rate since the club opened in 1957 and that appellants have not established that a nuisance exists. The court ruled that based on all the circumstances, it could not find that respondent's use of its property is unreasonable or that it constitutes a nuisance. It held unnecessary the resolution of respondent's affirmative [6 Cal.App.4th 1229] defense which alleged the existence of a prescriptive easement. Had it been called upon to make that determination, the court indicated it would have concluded that a prescriptive easement exists under the authority of MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693 [140 Cal.Rptr. 367].

When appellants requested a statement of decision, the court essentially adopted its tentative decision. Appellants filed objections and requested that the court answer 19 questions concerning the factual and legal basis of its decision. The court refused to do so.

Discussion

[1a] Appellants claim that the primary ground of this appeal is lack of substantial evidence to support the judgment, most clearly demonstrated by the insufficient statement of decision, which, they assert, is reversible error per se. They contend that the trial court did not adequately discuss the issue of unreasonable interference of their use and enjoyment of the property due to respondent's activity.

[2] However, a reviewing court will not find unsupported the trial court's findings merely because it might reasonably draw different inferences from those the trial court reasonably drew unless it clearly appears that under no hypothesis is there substantial evidence to support the trier of fact's finding. (Murphy v. Ablow (1954) 123 Cal.App.2d 853, 858, 859 [268 P.2d 80].) Questions of credibility and resolution of conflicting evidence are for the trier of fact. (Ibid.)

[3] In reviewing the sufficiency of the evidence, our task begins and ends with a determination whether any substantial evidence exists, contradicted or uncontradicted, which will support the trier of fact's conclusion. (Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584 [234 Cal.Rptr. 889].) [4] " 'An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' "(California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44 [221 Cal.Rptr. 171]; Evid. Code, § 600, subd. (b).) A deduction drawn from inferences is just as probative in resolving an issue of fact as is direct evidence. (Ibid.) Whether a particular inference can be drawn from certain evidence is a question of law, but whether, in a given case, the inference shall be drawn is a question of fact for the trier of fact's determination. (175 Cal.App.3d, at pp. 44-45; Louis & Diederich, Inc. v. Cambridge European Imports, Inc., supra, 189 Cal.App.3d 1574, 1584.) [6 Cal.App.4th 1230]

[1b] Here, the trial court could reasonably infer from the evidence that the rate of golf balls descending on appellants' property had been constant since the club opened; the same number of players used the club now as then, the tees were in the same location, and five to ten balls descended on appellants' property weekly since they moved to the property in 1985.

[5] In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to

make findings on a material issue which would fairly disclose the trial court's determination would reversible error result. (In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 686-687 [226 Cal.Rptr. 485]; Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525 [246 Cal.Rptr. 823].) Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party's favor which would have the effect of countervailing or destroying other findings. (In re Marriage of Garrity and Bishton, supra, 181 Cal.App.3d 675, 687.) A failure to find on an immaterial issue is not error. (Ibid.; Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co., supra, 200 Cal.App.3d 1518, 1525.) The trial court need not discuss each question listed in a party's request; all that is required is an explanation of the factual and legal basis for the court's decision regarding the principal controverted issues at trial as are listed in the request. (Nunes, supra, at p. 1525.)

[6] Civil Code section 3479 defines a nuisance as "anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ..." Whether or not a use in itself lawful constitutes a nuisance depends upon a number of circumstances: locality and surroundings, the number of people living there, the prior use, whether it is continual or occasional, and the nature and extent of the nuisance and of the injury sustained therefrom. (McIntosh v. Brimmer (1924) 68 Cal.App. 770, 777 [230 P. 203].) The law relating to private nuisance is one of degree. (Ibid.) Whether the use is unreasonable or not is an inference to be drawn from all the facts. (Ibid.)

The basic concept underlying the law of nuisance is that one should use one's own property so as not to injure the property of another. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) [7a] An action for private nuisance is designed to redress a substantial and unreasonable invasion of one's interest in the free use and enjoyment of one's property. (Ibid.) " 'The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless [6 Cal.App.4th 1231] conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable. On the other hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above.' " (Ibid.; see also Rest.2d Torts, § 822.) Determination whether something, not deemed a nuisance per se, is

a nuisance in fact in a particular instance, is a question for the trier of fact. (206 Cal.App.3d at p. 106, fn. 10.)

[1c] Here, the trial court's statement of decision recounted the facts stated supra. underlying the challenged conduct. [7b] The initial determination of what constitutes a nuisance includes a consideration of conflicting interests leading to a conclusion whether the harm suffered outweighs the utility of the conduct. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity § 153, p. 833.) That the plaintiff has acquired or improved his land after a nuisance interfering with it has come into existence is not in itself sufficient to bar his action but is a factor to be considered in determining whether the nuisance is actionable. (Rest.2d Torts, § 840D; see also 11 Witkin, op. cit. supra, Equity § 150, p. 830.)

[1d] From the evidence the court reasonably inferred that circumstances that exist today have existed since the course opened for play in 1957. The court also set forth the factors to consider, i.e., locality, surroundings, prior use, and the nature and extent of the injury caused thereby. It also noted that appellants came to the property with knowledge that it was next to a golf course, which put them on at least constructive notice that golf balls would be landing on their property. (See Friedman v. Pacific Outdoor Adv. Co. (1946) 74 Cal.App.2d 946, 952 [170 P.2d 67].)

The statement of decision sufficiently sets forth the factual and legal basis of the court's decision that appellants failed to show that respondent's actions were unreasonable. Moreover, had the court answered all of appellants' proposed questions, their cause would not be advanced; the trial court resolved the conflicting testimony of the experts in respondent's favor and substantial evidence supports that relocating the tee, as requested by appellants, would have been unduly burdensome compared to the type of intrusion on appellants' property. Substantial evidence supports the trial court's decision that respondent is not operating a nuisance.

Since the judgment is supportable without a decision whether respondent perfected a prescriptive easement, we need not discuss whether the statement of decision is sufficient on that issue. [6 Cal.App.4th 1232] The judgment is affirmed. Each party to bear its own costs on appeal. Gilbert, J., and Yegan, J., concurred.

Anderson v. Jeffries, 2008 BCSC 1410

The defendant operated a dog rescue shelter on her 13-acre rural property. The area was classified rural residential, indicating residential use but allowing some agricultural uses such as would be associated with a hobby farm. By 1997, the plaintiffs’ predecessor in title and others in the neighbourhood had lodged complaints with the governing municipal authority of incessant barking, foul odours and proliferation of rats as a result of poor storage of dog food. The district brought an action to restrain the dog rescue shelter by enforcement of the applicable zoning bylaw, but that action was unsuccessful in that the permitted uses under the bylaw included the keeping of dogs. The district enacted a dog bylaw, limiting to three the number of dogs which could be kept on properties in the district, but enforcement of the bylaw was never pursued against the defendant because her rescue shelter pre-dated the bylaw. The plaintiffs, who were the neighbours living closest to the defendant’s land, purchased their property in 1998. The plaintiffs commenced an action in nuisance, seeking injunctive relief. By the time of trial the defendant kept about 60 dogs. Among the evidence used by the plaintiffs in this case included photographs of the ratinfested food storage, and witness testimony.

In the end, the Court held that the “question of whether the dog shelter presents a nuisance is primarily a question to be determined on assessment of the credibility of the witnesses.”The Court also looked to the law of actionable nuisance as established in Royal Anne, supra, noting that whether or not something constitutes an unreasonable interference with the use and enjoyment of property must take into account the nature of the area involved. In the case of rural areas, the Court noted that there will be a greater tolerance for normal agricultural sights, sounds, and odours. Conversely, the court noted that an urban area might have its own characteristics that would need to be considered. The determination of whether something is a nuisance or not is the reasonable man test in the context of general uses found in the area.The Court ultimately found that the plaintiffs presented compelling evidence of the ongoing nature of the excessive noise, odour and attraction of vermin on the defendant’s property.The defendant’s evidence of being able to control the 60 dogs at her shelter was unconvincing. As a matter of common sense, a shelter housing a substantial number of dogs, many with troubled backgrounds, is a use of land that almost assuredly will create a nuisance within a residential area. The setting was rural but, nonetheless, primarily residential. The operation of the dog shelter was an unreasonable interference with the use of the plaintiff’s neighbouring property. The odour and barking had unreasonably interfered

With such normal uses as outdoor gardening and enjoyment of decks and patios. The barking disturbed sleep at night. The method of food storage attracted rats, which also accounted for their presence on other properties in the area. The Court awarded the plaintiff’s application for an injunction.

Conclusion

The law of torts which deals with dispute between adjacent landowners is private nuisance. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbor not to be interfered with. It is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it.These laws of torts are to provide damages and remedies for those people who had suffered damages from nuisance. we could conclude that the law of private nuisance has their own element which if it is proven, then the people who suffered damages may sue the parties who had interfere with their enjoyment of their land or who had made nuisance.

Bibliography & Reference

Cross, Gerry (1995). "Does only the careless polluter pay? A fresh examination of the nature of private nuisance". Law Quarterly Review (Sweet & Maxwell) 111 (3). ISSN 0023-933X.

Elliott, Catherine; Francis Quinn (2007). Tort Law (6th ed.). Pearson Longman. ISBN 978-1-4058-4672-1.

Gearty, Conor (1989). "The Place of Private Nuisance in a Modern Law of Torts". Cambridge Law Journal (Cambridge University Press) 48 (2). ISSN 0008-1973.

Gaunt v. Fynney (1872) 8 Ch App 8, at 11-12

Wringe v. Cohen [1940] KB 1 229

Sedleigh-Denfield v. O’Callaghan [1940] AC 880

Masters v. Brent London Borough Council [1978] QB 841

[1] Stone v. Bolton (1949) 1 All ER 237:1951 AC 850.

[2] (1847) LR 9 CP 400: 22 WR 631.

[3] (1926) 2 K.B. 332.

[4] (1861) 10 C.B. (N.S.) 268

[5] (1907) 2 KB 141

[6] (1964) 1 All ER 816

[7] (1895) 1 287.