Private Nuisance – Tort in Virginia
0August 3, 2020 by Tom Roberts, Esq.
Private Nuisance - lawful activities that become obnoxious to occupants of neighboring dwellings endangering the life or health or obstructing the reasonable and comfortable use of the property gives rise to tort liability.
“[S]o use your own as not to injure another's property."
Black’s Law Dictionary 1872 (9th ed. 2009)
An owner or occupant of land has a right to recover against the operator of a private nuisance.
In Virginian Railway Co. v. London, 114 Va. 334, 76 S.E. 306 (1912), the court stated: ‘A private nuisance is the using, or authorizing the use of, one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property (1) by diminishing the value of that property; (2) by continuously interfering with his power of control or enjoyment of that property; (3) by causing material disturbance or annoyance to him in his use or occupation of that property.’
Even a lawful activity or business can become a nuisance
Here's what the Court said about lawful business activity in National Energy Corp. v. O'Quinn, 223 Va. 83, 85, 286 S.E.2d 181, 182 (1982)
When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gases, the operation of such business is a nuisance. . . .
A nuisance may diminish value of realty. The condition also may interfere with some right incident to the ownership or possession of real property. Such interference may be accomplished by substantially impairing the occupant’s comfort, convenience, and enjoyment of the property, causing a material disturbance or annoyance in the use of the realty.
The claim may be brought by not just the land owner but by all in possession of the land - this includes children of lawful occupants.
Members of the family. ‘Possession’ is not limited to occupancy under a claim of some other interest in the land, but occupancy is a sufficient interest in itself to permit recovery for invasions of the interest in the use and enjoyment of the land. Thus members of the family of the possessor of a dwelling who occupy it along with him may properly be regarded as sharing occupancy with intent to control the land and hence as possessors, as defined in § 328E. When there is interference with their use and enjoyment of the dwelling they can therefore maintain an action for private nuisance.
Bowers v. Westvaco Corp., 244 Va. 139, 149, 419 S.E.2d 661, 668 (1992) citing Restatement (Second) of Torts, § 821E comment d,
Moving into the area is not a defense
“coming to the nuisance” is simply one factor to consider while weighing the equities in an abatement action and that it is irrelevant with regard to a claim for damages. Prosser & Keeton § 88B, at 635
DAMAGES THAT MAY BE AWARDED
Damages are NOT limited to “compensation for loss or deprivation of rights associated with property and for harm resulting therefrom.
Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661, 667 (1992)
Right to Farm - Exceptions
Virginia Code § 3.2-300, et seq. provides some exceptions, stating in pertinent part “No agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, if such operations are conducted in substantial compliance with any applicable best management practices in use by the operation at the time of the alleged nuisance and with any applicable laws and regulations of the Commonwealth relevant to the alleged nuisance….” § 3.2-302 You will need to review these laws to determine the applicable exemption.
EXAMPLES IN VIRGINIA
Raceways/Off-road park – Westmorland County, litigants complaining of operation of loud motorized vehicles incessantly throughout the day, 2 punk music festivals late into the night, dust clouds, etc.
Fisher v. Bd. of Supervisors, 101 Va. Cir. 392, 396 (2012) overruling a demurrer stated:
Operation of a lawful enterprise may constitute a nuisance. The National Energy Corp. v. O’Quinn, 223 Va. 83, 91, 286 S.E.2d 181 (1982). The term nuisance includes “everything that endangers life or health or obstructs the reasonable and comfortable use of property.” Id. 223 Va. at 85. In Virginia, an occupant’s right to the “use and enjoyment of land” is broadly construed. Foley v. Harris, 223 Va. 20, 28, 286 S.E.2d 186 (1982). Use and enjoyment of land comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. “Freedom from discomfort and annoyance while using land, which inevitably involves an element of personal tastes and sensibilities, is often as important to a person as freedom from physical interruption with use of the land itself. The discomfort and annoyance must, however, be significant and of a kind that would be suffered by a normal person in the community.” Bowers 244 Va. at 145.
Newport News Park: occasional public urination, trash spilling onto property, occasional noisy vehicles, etc. Virginia Supreme Court reversing stated in Newport News v. Hertzler, 216 Va. 587, 594 (1976):
More than sporadic or isolated annoyances must be shown. See Senatore v. Blinn, 342 Mass. 778, 174 N.E.2d 437 (1961). The interference must be substantial. See Robie v. Lillis, 112 N.H. 492, 299 A.2d 155, 158 (1972); Lieberman v. Township of Saddle River, et al, 37 N.J.S. 62, 116 A.2d 809 (1955); 58 Am.Jur.2d Nuisances § 45, Extent or Degree of Injury or Annoyance, pp. 610-611. Thus, in Herring v. Wilton, 106 Va. 171, 55 S.E. 546 (1906), we affirmed a decree awarding injunctive relief to a neighbor against the owner of dogs that howled and barked continuously and thereby unreasonably and unnecessarily interrupted the rest of the complainant and his family and “seriously disturbed” them in the reasonable use and enjoyment of their home…Generally, no action will lie for loss or inconvenience arising from the performance of an authorized act in an authorized manner. See Fisher v. Seaboard Air Line Co., 102 Va. 363, 367, 46 S.E. 381, 384-85 (1904). In such circumstances resulting damages are an unavoidable concomitant of the sanctioned activity. There is no allegation or finding that the City negligently operated the Park, and the evidence is not sufficient to permit a reasonable inference of negligence in its operation at the time of the August 1, 1974, hearing. Therefore, the finding that the City maintained a nuisance is unsupported by the evidence and the final decree awarding injunctive relief to appellees must be reversed.
(See 1992 opinion in Westvaco in contrast)
Nothing herein is intended to be legal advice to you! If you represent yourself – you alone are responsible. The law firm always recommends that you seek the advice of counsel. Sometimes it is well worth it to pay for a 1 hour paid consult with an attorney even if you decide to represent yourself. Nothing herein creates an attorney client relationship. As with all of this website – it is intended for Virginia and nothing in this website evidences any intention to purposely avail the law firm of the benefits and protections of other jurisdictions.
Category General, Litigation | Tags: nuisance, nuisance in virginia, nuisance law, nuisance law in virginia, private nuisance, private nuisance in virginia, virginia nuisance, virginia private nuisance
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