‘‘A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.’’ 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235
(1967). The law of private nuisance springs from the general principle that ‘‘[i]t is the duty of every person to make a reasonable use of his own property so as to
occasion no unnecessary damage or annoyance to his neighbor.’’ Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). ‘‘The essence of a
private nuisance is an interference with the use and enjoyment of land.’’ W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 87, p. 619.
The common situation occurs where a neighbor of a property owner causes a situation in which a bad smell or loud noises affects another property owner. If someone physically enters a property, this is trespass, not a nuisance.
According to the Restatement (Second) of Torts, a plaintiff must prove that: (1) there was an invasion of the plaintiff’s use and enjoyment of his or her property; (2) the defendant’s conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant’s conduct was negligent or reckless. 4 Restatement (Second), supra, § 822.
‘[C]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole.’’ 4 Restatement (Second), supra, § 826, comment (c); see also Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 456–57, 736 A.2d811 (1999). ‘‘Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . .’’ 4 Restatement(Second), supra, § 826, comment (c) ( A jury considers all relevant factors to determine if a use is reasonable or unreasonable).
“Courts have often found the existence of a nuisance on the basis of unreasonable use when what was meant is that the interference was unreasonable.” Prestey v. Cushman 259 Conn. 345 at 360 (2002)
It is possible to prove that a defendant’s use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person. That was the situation in Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443 ( a common situation can be where a use is legal, but still is unreasonably – such as farm).
If you are having problem with your neighbors, who are using their property in a way which causes loud noises or bad smells, please feel free to contact Attorney Singer.
Attorney Robert M. Singer
2572 Whitney Avenue, Hamden, CT 06518,
Serving Hamden, New Haven County and all of Connecticut