nuisance project

5/21/2018 Nuisance Project

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The Tort of Nuisance

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~~Do a word scramble on Nuisance cases~~

There are two types of nuisance in English law: Publicnuisance and Private nuisance. In some instances, the same set

of facts can produce liability in both kinds of nuisance, althoughthe two types of nuisance are very much distinct. Private

nuisance is concerned with protecting the rights of an occupier in

respect of unreasonable interference with the enjoyment or useof his land. The parties to an action in private nuisance are

generally neighbours in the popular sense of the word and thecourts undertake a balancing exercise between the competing

rights of land owner to use his land as he chooses and the right ofthe neighbour not to have his use or enjoyment of land interferedwith. Public nuisance is a crime but becomes actionable in tort

law if the claimant suffers 'particular damage' over and above thedamage suffered by the public generally.

A vast range of interferences are capable of amounting to anactionable nuisance. Some examples include:

Nuisance from flooding -Sedleigh-Denfield v O' Callaghan [1940]

AC 880Case summaryNuisance in the form of smells -Wheeler v JJ Saunders[1996] Ch

19Case summary

Encroachment by tree branches or roots -Lemmon v

Webb[1894] 3 Ch 1Case summaryNuisance noise -Kennaway v Thompson[1981] QB 88Case

summary

Cricket balls - Miller v Jackson[1977] 3 WLR20 Case summaryDisturbance from a brothel Thompson-Schwab v Costaki[1956] 1

WLR 335Case summary

Some interferences are not capable of giving rise to an actionablenuisance:
http://www.e-lawrevision.org.uk/Nuisance-quiz.phphttp://www.e-lawrevision.org.uk/Nuisance-word-search.phphttp://www.e-lawrevision.org.uk/Nuisance-word-search.phphttp://www.e-lawrevision.org.uk/Nuisance-Hangman.phphttp://www.e-lawrevision.org.uk/Nuisance-Hangman.phphttp://e-lawrevision.org.uk/Nuisance-word-scramble.phphttp://e-lawrevision.org.uk/Nuisance-word-scramble.phphttp://e-lawrevision.org.uk/Nuisance-word-scramble.phphttp://www.bailii.org/uk/cases/UKHL/1940/2.htmlhttp://www.bailii.org/uk/cases/UKHL/1940/2.htmlhttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1994/8.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/1994/8.htmlhttp://www.e-lawresources.co.uk/cases/Wheeler-v-JJ-Saunders.phphttp://www.e-lawresources.co.uk/cases/Wheeler-v-JJ-Saunders.phphttp://www.e-lawresources.co.uk/cases/Wheeler-v-JJ-Saunders.phphttp://www.e-lawresources.co.uk/cases/Lemmon-v-Webb.phphttp://www.e-lawresources.co.uk/cases/Lemmon-v-Webb.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1980/1.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/1980/1.htmlhttp://www.e-lawresources.co.uk/cases/Kennaway-v-Thompson.phphttp://www.e-lawresources.co.uk/cases/Kennaway-v-Thompson.phphttp://www.e-lawresources.co.uk/cases/Kennaway-v-Thompson.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1977/6.htmlhttp://www.e-lawresources.co.uk/cases/Miller-v-Jackson.phphttp://www.e-lawresources.co.uk/cases/Miller-v-Jackson.phphttp://www.e-lawresources.co.uk/cases/Thompson-Schwab-v-Costaki.phphttp://www.e-lawresources.co.uk/cases/Thompson-Schwab-v-Costaki.phphttp://www.e-lawresources.co.uk/cases/Thompson-Schwab-v-Costaki.phphttp://www.e-lawresources.co.uk/cases/Thompson-Schwab-v-Costaki.phphttp://www.e-lawresources.co.uk/cases/Miller-v-Jackson.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1977/6.htmlhttp://www.e-lawresources.co.uk/cases/Kennaway-v-Thompson.phphttp://www.e-lawresources.co.uk/cases/Kennaway-v-Thompson.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1980/1.htmlhttp://www.e-lawresources.co.uk/cases/Lemmon-v-Webb.phphttp://www.e-lawresources.co.uk/cases/Wheeler-v-JJ-Saunders.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1994/8.htmlhttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.bailii.org/uk/cases/UKHL/1940/2.htmlhttp://e-lawrevision.org.uk/Nuisance-word-scramble.phphttp://www.e-lawrevision.org.uk/Nuisance-Hangman.phphttp://www.e-lawrevision.org.uk/Nuisance-word-search.phphttp://www.e-lawrevision.org.uk/Nuisance-quiz.php


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Interference with television receptionHunter v Canary

Wharf[1997] 2 All ER 426Case summary

Interference with a view

Private nuisance

Private nuisance is essentially a land based tort. In order to bringa claim in private nuisance, a claimant must have an interest in

the land in which he asserts his enjoyment or use has beenunreasonably interfered with.

Malone v Laskey[1907] 2 KB 141 Case summary

This requirement was departed fromin Khorasandjian v Bushbut reinstated in Hunterv Canary Wharf:

Khorasandjian v Bush[1993] QB 727Case summary

Hunter v Canary Wharf[1997] 2 All ER 426 Case summary

The claimant must possess a right to the enjoyment of the facility

that is being deprived.

Bury v Pope(1587) Cro Eliz 118Case summary
http://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.e-lawresources.co.uk/cases/Malone-v-Laskey.phphttp://www.e-lawresources.co.uk/cases/Malone-v-Laskey.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1993/18.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/1993/18.htmlhttp://www.e-lawresources.co.uk/cases/Khorasandjian-v-Bush.phphttp://www.e-lawresources.co.uk/cases/Khorasandjian-v-Bush.phphttp://www.e-lawresources.co.uk/cases/Khorasandjian-v-Bush.phphttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.e-lawresources.co.uk/cases/Bury-v-Pope.phphttp://www.e-lawresources.co.uk/cases/Bury-v-Pope.phphttp://www.e-lawresources.co.uk/cases/Bury-v-Pope.phphttp://www.e-lawresources.co.uk/cases/Bury-v-Pope.phphttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.e-lawresources.co.uk/cases/Khorasandjian-v-Bush.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1993/18.htmlhttp://www.e-lawresources.co.uk/cases/Malone-v-Laskey.phphttp://www.e-lawresources.co.uk/cases/Hunter-v-Canary-Wharf.phphttp://www.bailii.org/uk/cases/UKHL/1997/14.htmlhttp://www.bailii.org/uk/cases/UKHL/1997/14.html


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There was no right to a particular water depth in Tate & Lyle but

the action succeeded based in public nuisance:

Tate & Lyle v GLC[1983] 2 AC 509Case summary

There is no such requirement that the defendant has any interestin land:

Thomas v National Union of Miners[1985] Case summary

Jones v Portsmouth City Council[2002] EWCA Civ 1723 Case

summary

However, they must have used land:

Southport Corporation v Esso Petroleum[1953] 3 WLR

773 Case summary

A person with ownership rights in the land may be liable innuisance even where they were not the creator of the nuisance ifthey authorised it:

Tetley v Chitty[1986] 1 All ER 663Case summary

The authorisation must relate to the nuisance, a landlord will notbe liable merely for allowing occupation of the creator of thenuisance:

Smith v Scott[1973] Ch 314 Case summary
http://www.bailii.org/uk/cases/UKHL/1983/2.htmlhttp://www.bailii.org/uk/cases/UKHL/1983/2.htmlhttp://www.e-lawresources.co.uk/cases/Tate--and--Lyle-v-Greater-London-Council.phphttp://www.e-lawresources.co.uk/cases/Tate--and--Lyle-v-Greater-London-Council.phphttp://www.e-lawresources.co.uk/cases/Thomas-v-NUM.phphttp://www.e-lawresources.co.uk/cases/Thomas-v-NUM.phphttp://www.bailii.org/ew/cases/EWHC/TCC/2002/1568.htmlhttp://www.bailii.org/ew/cases/EWHC/TCC/2002/1568.htmlhttp://e-lawresources.co.uk/cases/Jones-v-Portsmouth-City-Council.phphttp://e-lawresources.co.uk/cases/Jones-v-Portsmouth-City-Council.phphttp://e-lawresources.co.uk/cases/Jones-v-Portsmouth-City-Council.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1954/5.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/1954/5.htmlhttp://www.e-lawresources.co.uk/cases/Southport-Corporation-v-Esso-Petroleum.phphttp://www.e-lawresources.co.uk/cases/Southport-Corporation-v-Esso-Petroleum.phphttp://www.e-lawresources.co.uk/cases/Tetley-v-Chitty.phphttp://www.e-lawresources.co.uk/cases/Tetley-v-Chitty.phphttp://www.e-lawresources.co.uk/cases/Tetley-v-Chitty.phphttp://www.e-lawresources.co.uk/cases/Smith-v-Scott.phphttp://www.e-lawresources.co.uk/cases/Smith-v-Scott.phphttp://www.e-lawresources.co.uk/cases/Smith-v-Scott.phphttp://www.e-lawresources.co.uk/cases/Tetley-v-Chitty.phphttp://www.e-lawresources.co.uk/cases/Southport-Corporation-v-Esso-Petroleum.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1954/5.htmlhttp://e-lawresources.co.uk/cases/Jones-v-Portsmouth-City-Council.phphttp://e-lawresources.co.uk/cases/Jones-v-Portsmouth-City-Council.phphttp://www.bailii.org/ew/cases/EWHC/TCC/2002/1568.htmlhttp://www.e-lawresources.co.uk/cases/Thomas-v-NUM.phphttp://www.e-lawresources.co.uk/cases/Tate--and--Lyle-v-Greater-London-Council.phphttp://www.bailii.org/uk/cases/UKHL/1983/2.html


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Hussain v Lancaster City Council[1999] 2 WLR 1142 Case

summary

Similarly a landlord will not be liable for the noise created by atenant, where the noise itself does not constitute a nuisance.

London Borough of Southwark v Mills[1999] 3 WLR 939 Case

summary

A further way in which an owner or occupier may be liable for theacts of the creator of the nuisance is where they have adopted orcontinued the nuisance:

Sedleigh-Denfield v O' Callaghan [1940] AC 880Case summary

Page Motors v Epsom Borough Council[1982] LGR 337 Case

summary

Similarly an owner or occupier may be liable for hazards naturally

arising:

Leakey v National Trust[1980] QB 485Case summary

Goldman v Hargrave[1967] 1 AC 645Case summary

The owner or occupier is only expected to do what is reasonable

taking into account their resources:

Holbeck Hall Hotel Limited v Scarborough Borough

Council[2000] 2 ALL ER 705 Case summary
http://www.bailii.org/ew/cases/EWCA/Civ/1998/834.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/1998/834.htmlhttp://www.e-lawresources.co.uk/cases/Hussain-v-Lancaster-City-Council.phphttp://www.e-lawresources.co.uk/cases/Hussain-v-Lancaster-City-Council.phphttp://www.e-lawresources.co.uk/cases/Hussain-v-Lancaster-City-Council.phphttp://www.bailii.org/uk/cases/UKHL/1999/40.htmlhttp://www.bailii.org/uk/cases/UKHL/1999/40.htmlhttp://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.phphttp://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.phphttp://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.phphttp://www.bailii.org/uk/cases/UKHL/1940/2.htmlhttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.e-lawresources.co.uk/cases/Page-Motors-v-Epsom.phphttp://www.e-lawresources.co.uk/cases/Page-Motors-v-Epsom.phphttp://www.e-lawresources.co.uk/cases/Page-Motors-v-Epsom.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1979/5.htmlhttp://www.e-lawresources.co.uk/cases/Leakey-v-National-Trust.phphttp://www.e-lawresources.co.uk/cases/Leakey-v-National-Trust.phphttp://www.e-lawresources.co.uk/cases/Leakey-v-National-Trust.phphttp://www.bailii.org/uk/cases/UKPC/1966/1966_12.htmlhttp://www.bailii.org/uk/cases/UKPC/1966/1966_12.htmlhttp://www.e-lawresources.co.uk/cases/Goldman-v-Hargrave.phphttp://www.e-lawresources.co.uk/cases/Goldman-v-Hargrave.phphttp://www.e-lawresources.co.uk/cases/Goldman-v-Hargrave.phphttp://www.bailii.org/ew/cases/EWCA/Civ/2000/51.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2000/51.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2000/51.htmlhttp://www.e-lawresources.co.uk/cases/Holbeck-Hall-Hotel-v-Scarborough-BC.phphttp://www.e-lawresources.co.uk/cases/Holbeck-Hall-Hotel-v-Scarborough-BC.phphttp://www.e-lawresources.co.uk/cases/Holbeck-Hall-Hotel-v-Scarborough-BC.phphttp://www.bailii.org/ew/cases/EWCA/Civ/2000/51.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2000/51.htmlhttp://www.e-lawresources.co.uk/cases/Goldman-v-Hargrave.phphttp://www.bailii.org/uk/cases/UKPC/1966/1966_12.htmlhttp://www.e-lawresources.co.uk/cases/Leakey-v-National-Trust.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1979/5.htmlhttp://www.e-lawresources.co.uk/cases/Page-Motors-v-Epsom.phphttp://www.e-lawresources.co.uk/cases/Page-Motors-v-Epsom.phphttp://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.phphttp://www.bailii.org/uk/cases/UKHL/1940/2.htmlhttp://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.phphttp://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.phphttp://www.bailii.org/uk/cases/UKHL/1999/40.htmlhttp://www.e-lawresources.co.uk/cases/Hussain-v-Lancaster-City-Council.phphttp://www.e-lawresources.co.uk/cases/Hussain-v-Lancaster-City-Council.phphttp://www.bailii.org/ew/cases/EWCA/Civ/1998/834.html


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Unlawful interference

Private nuisance requires an unreasonable useof land by thedefendant which leads to anunreasonable interferencewith

the claimant's use or enjoyment of their own land. This requires abalancing exercise of competing rights often referred to as theprinciple of give and take. Unreasonable interference alone isinsufficient:

London Borough of Southwark v Mills[1999] 3 WLR 939Casesummary

In assessing the reasonableness of the use and reasonableness ofthe interference, the courts take all the circumstances intoaccount. In particular the courts will consider:

1. The nature of the locality/neighbourhood2. Duration

3. Sensitivity

4. Malice

1.Locality/Neighbourhood

The reasonableness of the use of land will beassessed with regard to the nature of the locality

in deciding whether there exists an actionablenuisance. As Thesiger LJ stated in Sturges vBridgman,

"What would be a nuisance in Belgrave Squarewould not necessarily be so in Bermondsey"

Sturges v Bridgman[1879] 11 Ch D 852 Case

summary
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Thus, for the pruposes of nuisance, a higher level of disturbance

is considered reasonable in an industrial area than would beregarded as reasonable in a residential area:

Hirose Electrical v Peak Ingredients[2011] EWCA Civ 987Case

summary

The running of a brothel in a respectableresidential area was held to constitute anuisance:

Thompson-Schwab v Costaki[1956] 1 WLR 335Case summary

Planning permission

Planning permission may have the effect of changing the nature

of the locality:

Gillingham Borough Council v Medway Docks[1993] QB 343Casesummary

However, planning permission does not confer immunity from anaction in nuisance and may not involve changing the nature ofthe locality:

Wheeler v JJ Saunders[1996] Ch 19Case summary

Watson v Croft Promosport[2009] 3 All ER249 Case summary

Jackson LJ summarised the position with regardsto planning permission in Coventry v Lawrence:
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Coventry v Lawrence[2012] EWCA Civ 26 Casesummary

Where the nuisance results in physical damageas oppose to amenity damage the locality isirrelevant:

St Helen's Smelting Co v Tipping(1865) 11 HLCas 642 Case summary

The position in relation to Art 8 EuropeanConvention of Human Rights was considered in:

Dennis v Ministry of Defence[2003] EWHC 793 Case summary

2. Duration

Most nuisances consist of a continuing state of affairs. In mostinstances the claimant is seeking an injunction to prevent thecontinuance of such nuisances. In general the longer the nuisance

lasts the greater the interference and the greater the likelihood ofit being held to be an unlawful interference. However, an

activity which is temporary may constitute a nuisance:

De Keyser's Royal Hotel v Spicer Bros(1914) 30 TLR 257 Casesummary

Whilst a continuing state of affairs may be found in order to

impose liability,

Spicer v Smee[1946] 1 All ER 489 Case summary

a single act is capable of amounting to a nuisance.
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Crown River Cruises v Kimbolton Fireworks[1996] 2 Lloyds Rep533 Case summary

3. Sensitivity

If the claimant is abnormally sensitive or their use of land is

particularly sensitive, the defendant will not be liable unless theactivity would have amounted to a nuisance to a reasonable

person using the land in a normal manner.

Robinson v Kilvert(1889) Ch D 88 Case summary

Network Rail v Morris[2004] EWCA Civ 172 Case summary

If, however, the claimant has established that the defendant has

infringed their right to ordinary enjoyment of the land, they canalso claim damages for any damage incurred to unusuallysensitive property:

McKinnon Industries v Walker[1951] WN 401 Case summary

4. Malice

Where the defendant acts out of malice, the actions are morelikely to be held unreasonable:

Christie v Davey[1893] 1 Ch 316 Case summary

Hollywood Silver Fox Farm v Emmett[1936] 2 KB 468Casesummary
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Public benefit

Whilst the benefit to the community is not a defence it may be afactor considered when assessing if the use is reasonable:

Miller v Jackson[1977] 3 WLR 20 Case summary

Public nuisance

Attorney General v PYA Quarries[1957] 2 WLR 770 Casesummary

Tate & Lyle v GLC[1983] 2 AC 509Case summary

Castle v St Augustine Links(1922) 38 TLR 615 Case summary

Rose v Miles [1815]

Noble v Harrison [1926]

Griffiths v Liverpool Corporation [1974]

Nuisance is subject to the rules on remoteness of damage:Cambridge Water v Eastern Counties Leather[1994] 2 AC

264Case summary
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Remedies

Damages

Abatement

Injunctions

Shelfer v City of London Electric LightingCo(1895) 1 Ch 287 Case summary

Miller v Jackson[1977] 3 WLR 20 Casesummary

Kennaway v Thompson[1981] QB 88 Case summary

Greenock Corporation v Caledonian Railway[1917] AC 556 Casesummary

Defences

Coming to a nuisance is no defence

Miller v Jackson[1977] 3 WLR 20 Case summaryKennaway v Thompson[1981] QB 88Case summary

Statutory authority

Allen v Gulf Oil Refining[1981] AC 1001Case summary
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NB Planning permission does not authorise a nuisance and is

therefore no defence

Prescription

Sedleigh-Denfield v OCallaghan[1940] AC 880 House of Lords

The council undertook some work on the defendants land at the request of a neighbouring

landowner. They had placed a culvert in a ditch to allow the water to drain away, however,

they had negligently placed a grate in the wrong place which rendered the grate useless and

the culvert became prone to blockages. The defendants workers had cleaned the culvert

periodically over a three year period to prevent blockages. However, a heavy rain storm

caused a blockage and the ditch became flooded. The flood spread to neighbouring

property owned by the claimant and caused substantial damage. The claimant brought anaction in nuisance for the damage caused. The defendant argued that he had neither

consented to nor had knowledge of the existence of the culvert.

Held:

The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt

or continue the nuisance.

Lord Maugham:

My Lords, in the present case I am of opinion that the Respondents both continued and

adopted the nuisance. After the lapse of nearly three years they must be taken to have

suffered the nuisance to continue; for they neglected to take the very simple step of placing

a grid in the proper place which would have removed the danger to their neighbour s land.

They adopted the nuisance for they continued during all that time to use the artificial

contrivance of the conduit for the purpose of getting rid of water from their property

without taking the proper means for rendering it safe.

Back to lecture outline onnuisanceintort law

Wheeler v JJ Saunders[1995] 3 WLR 466 Court of Appeal

The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages.

He lived in the farmhouse and let out the holiday cottages. He leased the farm to the

defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge

house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained

permission to build another Trowbridge house. The second house was built just 11 meters

from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in

relation to the noise and smells emanating from the pig houses. The trial judge found for the

claimant and ordered damages and an injunction. The defendant appealed contending that

since they obtained planning permission for the Trowbridge houses, any smells or noise in

relation to the pigs can not amount to a nuisance.

Held:
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The appeal was dismissed. The granting of planning permission differs from statutory

authority and confers no immunity from an action in nuisance. The decision inGillingham

Borough Council v Medway Dockmerely states that the granting of planning permission may

change the neighbourhood which may make it more difficult to establish a nuisance. It does

not authorise a nuisance.

Peter Gibson LJ:

The defence of statutory authority is allowed on the basis of the true construction of the

scope and effect of the statute. Parliament is presumed to have considered the competing

interests in the particular circumstances which are the subject of the statute and to have

determined which is to prevail in the public interest in authorising the particular

development and use of land and whether or not compensation is to be paid to those

whose common law rights are adversely affected by the authorised development and use.

But in the case of planning permission granted pursuant to the statutory scheme contained

in the town and country planning legislation it is far from obvious to me that Parliament

must be presumed to have intended that in every case it should have the same effect on

private rights as direct statutory authority, regardless of the circumstances that were in fact

taken into account. True it is that Parliament by that legislation has provided a mechanism

for regulating the development and use of land in the public interest and that it has

delegated to the local planning authority the function of making planning decisions; but

Parliament will also have been aware of the range of such decisions and the variety of

possible circumstances in which they may be taken. It would also have been aware of the

limited scope open to an objector to challenge a grant of planning permission.

Prior to theGillinghamcase the general assumption appears to have been that private

rights to claim in nuisance were unaffected by the permissive grant of planning permission,the developer going ahead with the development at his own risk if his activities were to

cause a nuisance. TheGillingham case, if rightly decided, calls that assumption into

question, at any rate in cases, likeGillinghamitself, of a major development altering the

character of a neighbourhood with wide consequential effects such as required a balancing

of competing public and private interests before permission was granted. I can well see that

in such a case the public interest must be allowed to and prevail that it would be

inappropriate to grant an injunction (though whether that should preclude any award of

damages in lieu is a question which may need further consideration). But I am not prepared

to accept that the principle applied in the Gillingham case must be taken to apply to every

planning decision. The Court should be slow to acquiesce in the extinction of private rightswithout compensation as a result of administrative decisions which cannot be appealed and

are difficult to challenge.

Kennaway v Thompson[1981] QB 88 Court of Appeal

The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club

which carried out motor boat racing. Water sports including motor boat racing had been

carried out at the Clubs waters since the early 1960s. 1972 the claimant moved into a house

which she had had built on land she inherited from her father. The house was situated 390

yards from the start line for the races. The frequency of the races increased over time and

the clubs waters were often used as a venue for both national and international races. The

claimant brought an action against the club in nuisance for the noise and disturbance
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experienced. She was successful in the claim and was awarded damages, however, the

judge refused to grant an injunction followingMiller v Jackson.The claimant appealed.

Held:

Appeal allowed and an injunction was granted. Lord Cairns Act allowing discretion to awarddamages in lieu of an injunction should only be used in exceptional circumstancesShelfer v

City of London Electric Lightingapproved,Miller v Jacksondoubted.


Miller v Jackson[1977]3 WLR 20 Court of Appeal

The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz

cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who

also owned some fields surrounding the grounds. Four years prior to the action, the NCB

sold one of the fields and a development of Wimpey homes was put up in close proximity tothe cricket ground. Mrs Miller purchased one of the houses and brought an action against

the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially

quite a number of balls were hit over the houses. However, in 1976 the cricket club erected

a higher fence and the number of balls hit out was reduced to nine over a two year

period. There had been no personal injuries resulting from the balls but some property

damage had been caused which the cricket club had paid for. Mrs Miller complained that

she could not use her garden during matches and would often stay out of the house

altogether.

Held:

The defendants were liable in both negligence and nuisance (Lord Denning dissenting)

However, Cumming Bruce LJ refused the injunction on the grounds that it would be

inequitable to grant an injunction given that the cricket ground had been used for so long

and would be a loss to the community and Mrs Miller received the benefit of being adjacent

to an open space.

Lord Lane would have granted the injunction stating that the decision inSturges v

Bridgemaninvolves the assumption that it is no defence for the defendant to show that

they came to the nuisance.


Thompson-Schwab v Costaki[1956] 1 WLR 335

The where the sight of prostitutes and their clients entering and leaving neighbouring

premises were held to amount to an actionable nuisance as the activity was considered

offensive in itself. There was no need to demonstrate that the activities were noisy.

Back to lecture outline on nuisance intort law

Hunter v Canary Wharf[1998] 1 WLR 434 House of Lords
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690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and

complained that the erection of the Canary Wharf Tower interfered with their television

reception. In addition, a second action against London Docklands Development Corporation

involved 513 claims for damages in respect of excessive amounts of dust created during the

construction of the tower. Some of the claimants were owners or tenants of properties, but

many of the claimants had no proprietary interest in lane at all. Some were children living

with parents, some were relations or lodgers with use of a room and some were spouses of

the tenant or owner of the property. The two issues the House of Lords were required to

consider were:

1. Whether interference with television reception was capable of giving rise to an

actionable nuisance

2. Whether an interest in property was required to bring an action in

Held:

1. There is no right of action in nuisance for interference with the television

reception.

2. An interest in property is required to bring an action in nuisance. Khorasanjian v

Bushoverruled in so far as it holds that a mere licensee can sue in private nuisance.

Lord Hoffman:

In this case, however, the defendants say that the type of interference alleged, namely by

the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter,

cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anythingpeculiar to television. It applies equally to interference with the passage of light or air or

radio signals or to the obstruction of a view. The general principle is that at common law

anyone may build whatever he likes upon his land. If the effect is to interfere with the light,

air or view of his neighbour, that is his misfortune. The owner's right to build can be

restrained only by covenant or the acquisition (by grant or prescription) of an easement of

light or air for the benefit of windows or apertures on adjoining land.

In relation to planning permission:

"In a case such as this, where the development is likely to have an impact upon many people

over a large area, the planning system is, I think, a far more appropriate form of control,

from the point of view of both the developer and the public, than enlarging the right to

bring actions for nuisance at common law. It enables the issues to be debated before an

expert forum at a planning inquiry and gives the developer the advantage of certainty as to

what he is entitled to build."


Malone v Laskey1907 2 KB 141

The claimant was injured when vibrations from an engine on an adjoining property caused abracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in
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her claim as she did not have a proprietary interest in the house. Her husband was a mere

licensee through his employment as a manager.


Khorasandjian v Bush[1993] 3 WLR 476

The claimant was an 18 year old woman who was being harassed by the defendant a 23

year old man. He had threatened her with violence, behaved aggressively when he saw her,

shouted abuse at her, he would pester her with phone calls at her parents and grandparents

house. He had spent time in prison for threatening to kill her. She obtained an injunction in

civil law against him to prevent him using violence to, harassing, pestering or

communicating with her. The defendant appealed against the injunction on the ground

that the judge had no jurisdiction to grant such an injunction as harassing, pestering or

communicating did not constitute any tort known to law. Whilst the persistent telephone

calls were capable of constituting the tort of nuisance, the claimant did not have an interestin the land and therefore had no cause of action in tort law.

Held:

His appeal was dismissed.

Dillon LJ:

To my mind, it is ridiculous if in this present age the law is that the making of deliberately

harassing and pestering telephone calls to a person is only actionable in the civil courts if the

recipient of the calls happens to have the freehold or a leasehold proprietary interest in the

premises in which he or she has received the calls.

NB this case was overruled inHunter v Canary Wharf


Hunter v Canary Wharf[1998] 1 WLR 434 House of Lords

690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and

complained that the erection of the Canary Wharf Tower interfered with their televisionreception. In addition, a second action against London Docklands Development Corporation

involved 513 claims for damages in respect of excessive amounts of dust created during the

construction of the tower. Some of the claimants were owners or tenants of properties, but

many of the claimants had no proprietary interest in lane at all. Some were children living

with parents, some were relations or lodgers with use of a room and some were spouses of

the tenant or owner of the property. The two issues the House of Lords were required to

consider were:

1. Whether interference with television reception was capable of giving rise to an

actionable nuisance

2. Whether an interest in property was required to bring an action in
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Held:

1. There is no right of action in nuisance for interference with the television

reception.2. An interest in property is required to bring an action in nuisance.Khorasanjian v

Bushoverruled in so far as it holds that a mere licensee can sue in private nuisance.

Lord Hoffman:

In this case, however, the defendants say that the type of interference alleged, namely by

the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter,

cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything

peculiar to television. It applies equally to interference with the passage of light or air or

radio signals or to the obstruction of a view. The general principle is that at common law

anyone may build whatever he likes upon his land. If the effect is to interfere with the light,air or view of his neighbour, that is his misfortune. The owner's right to build can be

restrained only by covenant or the acquisition (by grant or prescription) of an easement of

light or air for the benefit of windows or apertures on adjoining land.

In relation to planning permission:

"In a case such as this, where the development is likely to have an impact upon many people

over a large area, the planning system is, I think, a far more appropriate form of control,

from the point of view of both the developer and the public, than enlarging the right to

bring actions for nuisance at common law. It enables the issues to be debated before an

expert forum at a planning inquiry and gives the developer the advantage of certainty as towhat he is entitled to build."


Bury v Pope(1587) Cro Eliz 118

The owner of land was held entitled to erect a

house against his neighbour's windows eventhough they had enjoyed light for over 30 years.In the absence of an easement, there is no rightto light.


Tate & Lyle v Greater London Council[1983] 2 AC 509

Tate & Lyle operated a sugar refinery on the bank of the river Thames. They had a jetty fromwhich raw sugar would be offloaded from barges and refined sugar would be taken. The
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sugar would be taken be larger vessels and then transferred to smaller barges to enable

them to get to through the shallow waters. As part of development Tate & Lyle wished to

construct a new jetty and dredge the water to accommodate the larger vessels. At the same

time the GLC was constructing new ferry terminals. The design of the ferry terminals was

such that that it caused siltation of the channels. After using the channels for a short while,

Tate & Lyles larger vessels were no longer able to use them. Further dredging at the cost of

540,000 was required to make the channel and jetties usable by the vessels. Tate & Lyle

brought an action in negligence and nuisance to recover the cost of te extra dredging.

Held:

The claim in negligence and private nuisance failed since they did not possess any private

rights which enabled them to insist on any particular depth of water. The claim succeeded in

public nuisance since the interference caused by the ferry terminals affected public

navigation rights. Tate & Lyle suffered particular damage as a result of this interference.


Thomas v National Union of Mineworkers[1986] Ch 20

The actions of miners striking were held to constitute a nuisance. Scott J considered that the

miners returning to work should be entitled to use the public highway to enter the colliery

without harassment and abuse shouted at them by the picketers.


Jones Ltd v Portsmouth City Council[2002] EWHC 1568 High Court

The claimant ran an insurance brokers in London road, Portsmouth. London road was

owned by Hampshire County Council (HCC). There were two trees situated on London road

outside the claimants premises. The roots of which encroached on the claimants property

and the abstraction of moisture from the ground caused by the roots led to subsidence of

the property. HCC had an agreement with the defendant, Portsmouth City Council (PCC)

that PCC would be responsible for maintaining the trees on all highways in Portsmouth.

Held:

PCC were liable for nuisance despite the fact that they did not own or occupy the land

because they had lawful exercise of control over the tree.

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II SITE

Syllabus1

The classic black-letter definition of a public nuisance is "an act or omission which obstructs or causes

inconvenience or damage in the exercise of rights common to all."2As discussed in the last module, the concept of

public nuisance is poorly understood and has been the subject of heated debate for more than a century. Much ofthis current confusion can be traced to the Restatement (Second) of Torts, beginning with Section 821B which

states that:

1. A public nuisance is an unreasonable interference with a right common to the general public.

2. Circumstances that may sustain a holding that an interference with a public right is unreasonableinclude the following:

a. whether the conduct involves a significant interference with the public health, the public safety,the public peace, the public comfort or the public convenience, or

b. whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

c. whether the conduct is of a continuing nature or has produced a permanent or long lasting

effect, and, as the actor knows or has reason to know, has a significant effect upon the publicright.

Whenever a legal standard uses such fuzzy and ambiguous terms as "unreasonable interference," "significant

interference," "public peace," "public comfort," and "public convenience," it creates opportunities for good

lawyers to argue, judges to provide guidance, and jurors to interrupt what they believe or want these terms to

mean in the context of the case presented to them and the outcome being sought in that case.

To assist everyone in determining just what is, and is not, a public nuisance, the Restatement (Second) of Torts

drafted companion public nuisance sections and comments to each section. This module looks at case law and the

comments to applicable Restatement (Second) of Torts sections in an attempt to penetrate the jungle that

continues to grow around the law of public nuisance.

Index

What is a Public Nuisance?

1. Type of Harm - Interference with a Public Right

2. Degree of Harm - Substantial and Unreasonable

3. Type of Conduct:

a. Quasi-Criminal Conduct

b. The Role of Statutes and Regulations in Determining "Reasonableness"

c. "Controlling" the Nuisance

d. Intervening Causes

Text

What is a Public Nuisance?Type of Harm - Interference with a Public Right

According to the Restatement (Second) of Torts, "[a] public nuisance is an unreasonable interference with a right

common to the general public."3The key element in this definition of public nuisance claim (in contrast to a

private nuisance claim) is that the "inconvenience," "damage," or "interference" must be to a public right - not a
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private one. This requires proof that the injury is common to the general public.4Historically, public nuisances

were generally restricted to obstructions of public highways or navigable waterways.5Over time, the list of what

could be considered a public nuisance grew to include: noxious and offensive trades that interfered with health

and comfort (1700s); noxious trades or business that polluted navigable waterways and polluted air (mid to late

1800s); and disorderly taverns and similar enterprises on moral grounds (late 1800s).6As this list illustrates, a

public right is collective in nature.The Restatement (Second) of Torts also states that a person's"...[c]onduct does not become a public nuisance merely because it interferes with the use and enjoyment of land

by a large number of persons. There must be some interference with a public right. A public right is one commonto all members of the general public. It is collective in nature and not like the individual right that everyone hasnot to be assaulted or defamed or defrauded or negligently injured."7

Not all interferences with public rights, however, are public nuisances. The nuisance must also produce a

common injury, or be dangerous or injurious to the general public.8Numerous commentators, including authors

who favor the expansion of public nuisance, severely criticize courts that allow plaintiffs to use public nuisance as

a means to address what are essentially personal injury cases.9The "key inquiry" is whether the public will be

injured by the offending conduct while exercising their common rights.10

Consider the classic public nuisance claim against a party for allowing a tree to block a public road. Everyone

would agree that the fallen tree interferes with the public right to drive on that road. Thus, a government could

seek an injunction to stop the blockage even if no one ever actually drove down the road. Conversely, if the tree

blocked a neighbor's driveway, or the entrance to a commercial shopping plaza or church, a governmental entity

could not bring a public nuisance claim because no public right was violated because the public does not own the

property on which the tree fell, and there is no public right of access to private property.11

This is why the manufacture and distribution of lawful products will rarely, if ever, cause a violation of a public

right. Products tend to be purchased and used by individual consumers. Therefore, any harm aproductcauses is

to an individual or a discrete group of individuals. This is true even if the use of the product is widespread and the

manufacturer's or distributor's conduct is unreasonable. For example, say a fast-food chain sold millions of

defectively produced cheeseburgers, causing millions of people who ate them to become obese, have poor health

or just become ill. Regardless of the number of person affected, the injuries caused by fast-food chain are still to

the private rights of individuals (i.e., standard consumer tort or contract rights), and not a violation of the rights

of the general public (even if described as an .unreasonable interference. to the nation's health). The sheer

number of persons affected cannot transform individual injuries into a communal injury unless the term "public

right" is altered and expanded beyond its understood boundaries of the past 900 years.12

Degree of Harm - "Substantial" and "Unreasonable"To be a nuisance, a defendant's interference with the public right must be "substantial." It cannot be a "mere

annoyance," a "petty annoyance," a "trifle," or a "disturbance of everyday life."13The interference must be

substantial, objectionable to the ordinary reasonable man, and one that materially interferes with the ordinary

physical comfort of human existence according to plain, sober, and simple notions.14

The harm must also be unreasonable. Traditionally, this requires a risk-benefit analysis weighing the gravity and

probability of a risk occurring against the utility of the activity or conduct. This test was a judicial attempt

tocontrolthe potentially "disruptive consequences of injunctive relief" and allowed courts to find that some

interferences with the use and enjoyment of land were not actionable.15

Type of Conduct

"Quasi-Criminal" Conduct

Historically, the conduct associated with a public nuisance claim has been described as being quasi-

criminal.16Conduct is considered quasi-criminal when it is unreasonable under the circumstances and could

cause injury to someone who is exercising a common, societal right. When such conduct is uncovered, public

nuisance law provides a means for governments to stop it.17Based on his extensive review of the case law,

Professor William Prosser also thought that a public nuisance was "a criminal interference with a right common

to all members of the public."18He believed that its use should be limited to situations where there was a violation

of a criminal statute.19

Ultimately, the language of the Restatement (Second) of Torts lowered the requisite conduct from that of"criminal interference" to just "unreasonable interference" with a public right.20The factors to be considered

when deciding whether conduct is unreasonable include: whether it involves a significant interference with public
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health, safety, peace, comfort, or convenience; whether it is proscribed by a statute; and whether it is of a

continuing, long-lasting nature and the defendant knows that it has a "significant effect" on this ongoing

harm.21Yet, when examining conduct, "the role of 'creator' of a nuisance, upon whomliabilityfor nuisance-

caused injury is imposed, is one to which manufacturers and sellers [of products] seem totally alien because

nuisances are not created when aproductis sold; they are created when a product's purchasers or other third

party uses or disposes of the project."22

Traditionally, public nuisance law has not supported recovery simplybecause the "manufacture and sale of a product[was] later discovered to cause injury."23

The Role of Statutes and Regulations in Determining "Reasonableness"

Through legislation, regulations, and ordinances, federal, state, and local governments are able to define specific

activities as being a public nuisance. Too often, the statutes are general in nature and do not define what a

nuisance is other than using broad, vague, and ambiguous language. This trend conflicts with the general position

that criminal conduct be defined specifically and clearly.24If a public nuisance claim is based on such statutes, a

court or jury need not make a finding of unreasonableness because the legislature has already made that

determination.

However, when governmental entities have actively regulated a particular kind of conduct or human activity by

statute, ordinance, or administrative regulation, conduct that could be characterized as unreasonableundercommon lawno longer subjects the actor to tort liability if it complies with the statute, ordinance, or

regulation.25In these instances, courts accept that the legislative or regulatory body has determined that such

conduct is acceptable to society and is therefore not unreasonable.26This is particularly true in pollution cases,

which were almost routinely dealt with by filing nuisance suits until federal, state, and local governments

established comprehensive sets of legislative and administrative regulations dealing with pollution.

One example of such governmental regulations can be found in lead paint litigation. Over the years, many states

have enacted productliabilityacts (setting boundaries for lawsuits seeking damages based on harm caused by a

product) and lead paint acts (addressing harm caused by exposure to deteriorating lead paint).27Some courts

look to these acts for guidance, respecting the role of the legislature and the separation of powers between the

branches of government.28Other courts, however, claim that such statutes are irrelevant for claims brought under

the umbrella of the "common law."29

"Controlling" the Nuisance

Historically, the party who controlled the public nuisance was the party who owned or operated the property at

the time ofabatement.30This is because the "inability to allege that the defendants ha[ve] a legal right to abate the

nuisance is fatal to [a] nuisance claim."31Controlis a necessity because a primary purpose underlying public

nuisance is the ability of public authorities to have a legal remedy available to terminate conduct of a defendant

that is violating a public right and injuring the public safety, health, or welfare.32

InDetroit Board of Education v. Celotex Corporation, for example, a school board (representing hundreds of

public and private schools seeking to recover their asbestos removal costs) brought a public nuisance action

against multiple classes of defendants (manufacturers, distributors, and installers of asbestos products) because

statutes of limitation barred it from bringingproducts liabilityclaims.33Agreeing that the public nuisance claimwas not barred by statutes of limitation, the trial court allowed the case to proceed.34The appellate court rejected

the school board's attempt to spin its product-based claim as a public nuisance claim, stating that "the public

would not be served by neutralizing the limitation period by labeling a productliabilityclaim as a nuisance

claim."35The appellate court grounded part of its reasoning incontrol,noting that with respect to claims based on

commercial transactions:Defendants gave up ownership and control of their products when the products were sold to plaintiffs.Defendants now lack the legal right toabatewhatever hazards their products may pose; ownership andpossession lie exclusively with plaintiffs. If the defendants exercised no control over the instrumentality, then aremedy directed against them is of little use. ... Plaintiffs' proper remedies, were they not barred by the running ofthe limitation period, are products liability actions for negligence or breach of warranty.36

Another court has noted that "nuisance cases 'universally' concern the use or condition of property, not

products."37The court went on to cite Prosser for the proposition that: "[i]f 'nuisance' is to have any meaning at

all, it is necessary to dismiss a considerable number of cases which have applied the term to matters not

connected either with land or with any public right, as mere aberration."38In the context of the lead paint
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litigation, one court found that "the conduct that has given rise to the public health crisis is, in point of fact, poor

maintenance of premises where lead paint may be found by the owners of those premises."39The court chastised

the plaintiffs' attempt to "ignore the fact that the conduct that created the health crisis is the conduct of the

premises owner," noting that plaintiffs' theories to separate conduct and location "eliminate entirely the concept

of control of the nuisance."40Thus, as a general rule, manufacturers and culpable former landowners are not

liable for abatement because they no longer control the property.41

Once a manufacturer sells aproductto a third party, there should be no dispute that it lost control over the

product regardless of the method used to assess control.42This is one of the bedrock rules that courts have used

to justify their decision to dismiss public nuisance suits brought against manufacturers of products, including

lead pigment manufacturers. For example, in City of Chicago v. American Cyanamid Company, the Illinois

Court of Appeals held that:"[P]ublic policy concerns dictate that legal cause cannot be established with respect to defendants in the presentcase [who] produced a legal product decades ago that was used by third parties who applied the product tosurfaces in Chicago ... We therefore hold that the conduct of defendants in promoting and lawfully selling lead-containing pigments decades ago, which was subsequently used lawfully by others, cannot be a legal cause ofplaintiff's complained-of injury, where the hazard only exists because Chicago landowners continue to violatelaws that require them to remove deteriorated paint."43

Intervening Causes

Traditionally, a plaintiff must show that it was foreseeable that each defendant's conduct would create the public

nuisance.44Therefore, the plaintiff's injury must be the type of injury that a reasonable person would see as a

likely result of the defendant's conduct. Otherwise, the tort of public nuisance becomes limitless if courts allow a

defendant'sliabilityto be based on something other than independently tortious conduct, violation of a statute, or

conduct that is intentional and unreasonable. A New York court rightly received adverse reactions after stating

that "fault is not an issue, the inquiry being limited to whether the condition created, not the conduct creating it,

is causing damage to the public."45The Eighth Circuit Court of Appeals went so far as to state that to allow

recovery for public nuisance "regardless of the defendant's degree of culpability or the availability of other

traditional tort law theories of recovery" would allow nuisance to become "a monster that would devour in one

gulp the entire law of tort."46The New Jersey Supreme Court recently agreed with this sentiment in the context of

the lead paint litigation.47

Resources1. The material found in this module can be found in the following article: Richard O. Faulk and John

S. Gray,Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich.St. L. Rev. 941 (2008).2. William L. Prosser, Handbook of the Law of Torts 72, at 566 (1st ed. 1941)3. Restatement (Second) Of Torts 821B(1) (1979).

4.Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 958 (R.I. 1994) (citingCitizens forPreservation of Waterman Lake, 420 A.2d 53, 59 (R.I. 1989)).

5. [Refer to Module 1]6. Gifford,supranote 11, at 815.7. Restatement (Second) Of Torts 821B cmt. g (1979).Thus, the pollution of a stream that merely

deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with

their land does not for that reason alone become a public nuisance. If, however, the pollution prevents

the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of

the community of the right to fish, it becomes a public nuisance.Id.Nuisances are public where they violate public rights, and produce a common injury, and where theyconstitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public....If the annoyance is one that is common to the public generally, then it is a public nuisance . . . . Thetest is not the number of persons annoyed, but the possibility of annoyance to the public by the

invasion of its rights.Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001).

8.Id.Thus, water pollution that affects only a few (e.g., fifty or a hundred lower riparian owners)people of their ability to use the water is not necessarily become a public nuisance. If the pollution,
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however, prevents the use of a public beach or causes a large fish kill such that an entire community is

affected, it becomes a public nuisance.Id.The Connenicut Supreme court noted that the "test is notthe number of persons annoyed, but the possibility of annoyance to the public by the invasion of its

rights".Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001).See also58 Am. Jur. 2dNuisances 39 (2002).

9.SeeAntolini,supranote 34, at 771 n.54. (agreeing that .allowing purely personal injury claims tomasquerade as public nuisance claims is inappropriate. because a "personal injury does not reflectinjury to the community") (citations omitted).

10. Schwartz,supranote 10, at 562.11.Id.at 562-63. Some courts appear willing to blurr the boundaries of what constituents a publicnuisance to include conduct that interfers with the public's right to .the health, safety, peace, comfort

or convenience of the general community..Id.(citingCitizens for Preservation of WatermanLake,420 A.2d 53, 59 (R.I.1980)). Still, most courts have held that communal-based injuriers are

"wholly distinguishable" from personal injuries based on the use of product.Id.at 563.12. Gifford,supranote 11, at 817.13. William L. Prosser, Handbook of the Law of Torts 71, at 557-58 (1st ed. 1941);see

alsoAntolini,supranote 34, at 772.14. Prosser,supranote 2, at 1002-03;see alsoAntolini,supranote 34, at 772 n.57 (citing FrancisHilliard, The Law Of Torts Or Private Wrongs at 631 (2d ed. 1861)).

15. Antolini,supranote 34, at 772-73 (citation omitted). 16. Public nuisance is .a species of catch-all criminal offense[s].. Keeton,supranote 3, 86, at618.See also[reference to module 1]17. Victor E. Schwartz,et al.,Toward Neutral Principles of Stare Decisis In Tort Law, 58 S.C. L. Rev.317, 366 (2006).

18. Antolini,supranote 34, at 826 (citingPresentation of Restatement of the Law, Second, Torts,Tentative Draft No. 15,46 A.L.I. Proc. 267, 282 (1969)).

19. Gifford,supranote 11, at 806.20.

See

Restatement (Second) of Torts 821B(1) (1979).

21. Restatement (Second) of Torts 821B(2) (1979);see also Chicago v. Am. Cyanamid Co., No. 02CH 16212, 2003 WL 23315567 (Ill. Cir. Ct. Oct. 7, 2003).

22.Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1993) (quoting 63 AM.JUR. 2DProducts Liability 593).23.Id.24. Restatement (Second) of Torts 821B cmt. c (1979) (noting that some statutes declare plants

which harbor parasites that are destructive to food crops or timber to be public nuisances).

25. Restatement (Second) of Torts 821B cmt. f (1979). The only means of pursuing a public nuisance

claim for such lawful conduct would be to show that .the law regulati

nuisance project

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