What is the difference between a private and public nuisance?

A private nuisance is often described as a non-trespassory invasion of another’s interest in the private use and enjoyment of their land.  In contrast, a public nuisance is a condition that amounts to an unreasonable interference with a right common to the general public. 

Generally speaking, a private 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.  Courts have generally divided private nuisances into three classifications:

  • Negligent invasion of another’s interests:
  • Intentional invasion of another’s interests; or
  • Other inappropriate conduct that invades another’s interest.  

A public nuisance is maintained (1) by act, or by failure to perform a legal duty, (2) intentionally causing or permitting a condition to exist, (3) which injures or endangers the public health, safety, or welfare.  Therefore, a public nuisance usually involves an act or condition that subverts public health or public order or which constitutes an obstruction of public rights.  

Some courts have held that if an activity is explicitly licensed or permitted by state law it cannot be a public nuisance.  Conversely, as a general rule, a permit granted by a state agency does not act to immunize a permit holder from private nuisance claims.

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