Typical Common Law Claims: Private Nuisance (continued)

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.


Nuisance claims are frequently described as a non-trespassory invasion of another’s interest in the use and enjoyment of land.[1] But despite this exclusionary description, in some instances an action can be both a trespass and a nuisance.[2]

A nuisance may arise by causing physical harm to (1) property, such as by the encroachment of a damaging substance or by the property’s destruction or (2) a person on his property from an assault of his senses or by other personal injury.[3] 

A nuisance may also arise by emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind.[4] If foul odors, dust, noise, and bright lights are sufficiently extreme, they may also constitute a nuisance.[5]  However, a condition that causes mere aesthetic changes to the view, scenery, landscape, or beauty of an area is not a nuisance.[6] 

Courts have generally divided actionable nuisances into three classifications: (1) negligent invasion of another’s interests; (2) intentional invasion of another’s interests; or (3) other inappropriate conduct that invades another’s interest (e.g., the illegal sale of controlled substances or the operation of a gambling or prostitution establishment).[7] 

Accordingly, proof of negligence is not essential to the imposition of liability for the creation and maintenance of a nuisance.[8]  This makes this cause of action very attractive to plaintiffs as a nuisance claim can have the same practical effect as a strict liability claim.[9]  Several courts have held that one may create a private nuisance by using property in a way that causes reasonable fear in those who own, lease, or occupy property nearby.[10] 

Generally, proof of due care is not a defense because nuisance looks only to effect, not the culpable conduct of the defendant.[11]  However, because each classification referenced above concerns the interests “of another”, at least one court has held that a previous owner cannot be liable to a subsequent owner for alleged damages that occurred during its ownership.[12]

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[1] Id. (citing GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

[2] Id. (citing Allen v. Virginia Hill Water Supply Corp., 609 S.W.2d 633, 636 (Tex. Civ. App.—Tyler 1980, no writ).

[3] Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 270 (Tex. App.—El Paso 2001, pet. denied).

[4] Id.

[5] Id.

[6] Rankin, 266 S.W.3d at 513.

[7] Id.

[8] Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 829 (Tex. App.—Waco 1993, writ denied).

[9] Id.

[10] Kane v. Cameron Int’l Corp., 331 S.W.3d 145, 148 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Comminge v. Stevenson, 13 S.W. 556, 557 (Tex. 1890)); McMahan v. City of Abilene, 261 S.W. 455, 456 (Tex. Civ. App.—El Paso 1924, writ dism’d w.o.j.).

[11] See Hill v. Villarreal, 362 S.W.2d 348, 349 (Tex. Civ. App.—Waco 1962, writ ref’d n.r.e.).

[12] See Hicks v. Humble Oil & Refining Co., 970 S.W.2d 90, 96 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

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