March 13, 2007
Speaking of broadening the law of nuisance (honest, I was), here comes a new posting on SSRN (published in 2001 in the Emory Law Review) from John Copeland Nagle (Notre Dame) on "moral nuisances." The abstract:
Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.
I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community (3) whose harm outweighs the benefit of the offending conduct, and (4) which is not protected by the law. A moral nuisance claims is even stronger when (5) the activity is not only immoral, but illegal as well. This article illustrates the application of this test by using the example of Mark v. Powers, a 1999 Oregon state court case which held that a state wildlife area that was used as a nude beach constituted a nuisance to the neighboring landowners.
This article also considers the harms that may be remedied by nuisance law. A nuisance case can be premised on the sight of an offensive activity, the inability to use one's property because of the embarrassment caused by the activity, reasonable fears, or any more general interferences – such as excessive noises or physical harassment – with the plaintiff's use of his or her property. The mere awareness of the activity, any improper temptation produced by the activity, and reduced property values are not sufficient to establish a nuisance.
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