Typical Common Law Claims: Private Nuisance

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


Generally speaking, a nuisance is a regularly recurring condition that “substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to a person of ordinary sensibilities.”[1]

In Crosstex North Texas Pipeline, LP v. Gardiner, the Texas Supreme Court noted that courts have used the term “nuisance” in a variety of ways, including as a reference to a particular legal cause of action, a defendant’s conduct that gives rise to that cause of action, an event or activity or operation that is the “cause or source of a harm,” the harm itself, and the liability that results from that harm.[2] 

To reduce the confusion that has resulted from these varied uses of the term, the Texas Supreme Court held that the better approach is to utilize the term “nuisance” to refer not to a cause of action or to the defendant’s conduct or operations, but instead to the particular type of legal injury that can support a claim or cause of action seeking legal relief.[3]  In other words, the term “nuisance” describes a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff’s legal rights.[4]

The court also clarified that the term “nuisance” does not refer to the “wrongful act” or to the “resulting damages,” but only to the legal injury—the interference with the use and enjoyment of property—that may result from the wrongful act and result in the compensable damages.[5]  To establish such legal injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or annoyance is unreasonable, but need not establish that the defendant’s conduct or land use was unreasonable.[6]

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[1] Crosstex North Texas Pipeline, LP v. Gardiner, 2016 WL 3483165, *6 (Tex. June 24, 2016); see also Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 (Tex. App.—Eastland 2008, pet. denied).

[2] Id. (citing Restatement (Second) of Torts § 821A cmt. b.).

[3] Id. (citing City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997).

[4] Id. (citing Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967) (quoting 54 C.J.S. Limitations of Actions § 168, pp. 122–23); Hous. Waterworks Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888).

[5] Id.

[6] Id. at *12.

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