Chicken houses, coal mines, natural gas operations, bars, strip clubs and any number of other potentially bothersome uses of property can interfere with a private landowner’s enjoyment of their home. These uses are legal, and in some cases extremely necessary and useful. Most are regulated in some way and those regulations often go a long way toward protecting neighbors from any ill effects. However, sometimes neighbors end up pitted against each other because of uses of property which fall through the cracks or are otherwise not regulated. At common law, there was an action for a private nuisance. Although not employed a lot (and perhaps with good reason), this action is one which should be considered in appropriate circumstances.
In Waschak v. Moffat 379 Pa. 441, 109 A.2d 310, 1954, the Supreme Court adopted the Restatement of the Law of Torts Section 822 as the rule in Pennsylvania:
The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enjoyment of land if,
(a) the other has property rights and privileges in respect to the use and enjoyment interfered with; and
(b) the invasion is substantial; and
(c) the actor’s conduct is a legal cause of the invasion; and (d) the invasion is either
(i) intentional and unreasonable or
(ii)unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.
Restatement of the Law of Torts, §822.
The key factor in Washcak was the determination of reasonableness. The plaintiffs were the owners of a home located next to a coal yard processing facility. Gaseous by products of the coal processing had discolored the homeowner’s property. The Court ruled that the owner of the coal yard was not liable for the damage, relying on the fact that the homeowners acquired their residence subsequent to the coal yard operation being active. The Court also cited that fact that the gas that produced the discoloration, hydrogen sulfide, was not a normal byproduct of coal processing and, in fact, only occurred at the processing area next to the homeowners’ property.
In Hughes v. Emerald Mines Corporation 303 Pa. Super. 426, 426 A.2d 1 (1982), the Superior Court cited the Supreme Court's adoption of the Restatement of Torts, 2d at § 822, in Washcak. Hughes involved an alleged devaluation of real property value due to a loss of water allegedly caused by an airshaft. The law cited in that case is exceptionally instructive and will be recited at length.
First, the Superior Court recited the Restatement 2d as:
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
Restatement of the Law of Torts 2d, §822.
The Hughes case was tried on the first of the two theories, that being that the airshaft was intentional and unreasonable. The Restatement defines intentional invasion as follows:
An invasion of another's interest in the use and enjoyment of land or an interference with the public right is intentional if the actor
(a) acts for the purpose of causing it, or
(b) knows that it is resulting or is substantially certain to result from his conduct.
Restatement of the Law of Torts 2d, §825.
An intentional invasion becomes unreasonable if:
(a) the gravity of the harm outweighs the utility of the actors conduct, or
(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harms to others would not make the continuation of the conduct not feasible.
Restatement of the Law of Torts 2d, §826.
Section 829 (a) contributes to the definition of unreasonableness:
An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.
Restatement of the Law of Torts 2d, §829(a).
The comments following Section 829(a) supply further explanation as follows:
…certain types of harm may be so severe as to require a holding of unreasonableness as a matter of law, regardless of the utility of the conduct. This is particularly true if the harm resulting from the invasion is physical in character… Aside from the normal requirement that the harm be significant …, it is apparent that the more serious the harm is found to be, the more likely it is that the trier of fact will hold that the invasion is unreasonable.
In Hughes, a coal mining company had pumped grout down their air shafts resulting in two of a homeowner’s wells being rendered unusable. The coal company was liable for private nuisance. The court relied upon the sections of the Restatement of Torts, 2d, as cited above, noting the defendant provided no proof that its air shafts could not have been located on other parts of the defendant's property. The Superior Court specifically rejected the idea that the airshafts had a utility and were necessary, and therefore could not be unreasonable. Unreasonableness being a term of art, utility must be balanced against the bad effects of an act to determine reasonableness. It should be noted that, although the coal company was found liable, the jury award of $32,500.00 was reduced because the actual cost of remedying the wells was more in the range of $1,000.00 to $2,000.00. The case was remanded to determine a reasonable award. The lesson is a defendant might pay less in remedying the situation than paying an attorney and a plaintiff might be better off accepting the remedy than fighting a jury trial.
The Superior Court continued to adopt by citation further portions of the Restatement of Torts, 2d in Kembel v. Schlegel 329 Pa. Super. 159, 478 A.2d. 11 (1984). More specifically, the court adopted Section 821 F's definition of significant harm:
There is liability for a nuisance only to those to whom it causes a significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.
Restatement of the Law of Torts 2d, §821 F. The Superior Court favorably referred to the Comment to Section 821 F, that states that significant harm is harm of importance involving more than slight inconvenience or petty annoyance: there must be a real and appreciable interference with use or enjoyment of land. Furthermore, the Superior Court adopted the reasonable person standard.
In Kembel, a group of neighbors sought in injunction barring the Schlegel from operating his transportation company during certain times and days of the week (nights and weekends). The Superior Court found no evidence in the record produced by the neighbors that the trucking company’s actions rose to the level of significant harm. Significantly, the Superior Court allowed that liability for private nuisance may arise even if the results of a defendant's actions are not injurious to heath. (Citing Smith v. Alderson 262 Pa.Super. 387, 389, 396 A.2d 808, 810 (1979)).
The lasting lessons are that landowner’s have a chance to use the theory of nuisance to remedy harm, but must show that the harm is serious. In addition, landowner’s must be reasonable in their expectations of recovery. Private nuisance is not a tool to punish a neighbor, it is only a tool to seek redress for wrongs. For philosophical purposes, private nuisance can benefit everyone and place external costs of pollution, or other nuisances back on the person causing the harm. Where such costs belong.
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