Also known as:non-trespassory invasion · nontrespassory invasion · nontrespassory invasions · private nuisance
Written by attorneys — see sources below.
A type of interference with land use that occurs without any physical entry onto the property. It impairs the possessor's ability to enjoy the land through intangible means such as odors, noise, smoke, or vibrations.
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How its tested
Common Examples
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Rooftop Bar Disturbs Condo Balcony
Harper owns a condominium next to a boutique hotel operated by Larkin Hospitality. The hotel opens a rooftop bar that sends loud music and cigarette smoke onto Harper's balcony each evening. Harper can no longer sit outside or open windows without discomfort. The interference occurs through sound and drifting air rather than any person or object crossing the boundary.
Powder-Coating Line Emits Odors
Olivia owns a home next to a metal fabrication plant operated by Apex Metals. The plant installs a powder-coating line that releases fine particulates and a strong chemical odor. Olivia can no longer open her windows or hang laundry outside without discomfort. The emissions reach her property through the air without any physical entry by the plant.
A farmer applies pesticide by aerial spraying on fields adjacent to a certified organic farm. The wind carries the chemical particles onto the organic fields. The organic farmer must destroy affected crops and loses certification. No equipment or workers from the spraying operation physically enter the organic land.
Johnson v. Paynesville Farmers Union Cooperative Oil Co.817 N.W.2d 693, 704 (Minn. 2012)
Oluf and Debra Johnson are organic farmers in central Minnesota whose fields are certified under the National Organic Program. Paynesville Farmers Union Cooperative Oil Company is a member-owned provider that applies pesticides to conventional farm fields adjacent to the Johnsons' property.
In June 2007 the Johnsons filed a complaint with the Minnesota Department of Agriculture alleging pesticide drift onto one of their transitional soybean fields. On June 15, 2007, winds of 9 to 21 miles per hour carried Status (diflufenzopyr and dicamba) and Roundup Original (glyphosate) from the Cooperative's spraying of a neighboring conventional field onto the Johnsons' soybeans. MDA testing detected dicamba below detection levels but no diflufenzopyr or glyphosate. The MDA nevertheless directed the Johnsons to plow down approximately 10 acres of the crop because of visual damage and the presence of dicamba. The Johnsons also notified their certifying agent, the Organic Crop Improvement Association. An August 27, 2007 OCIA letter stated that chemical drift may have occurred and that, if contamination were confirmed, the field would have to return to the beginning of the 36-month transition period. The Johnsons therefore restarted the three-year transition for that soybean field.
In July 2008 the Johnsons reported a second incident in which Roundup Power Max and Select Max (glyphosate and clethodim) drifted onto a transitional alfalfa field. MDA testing found minimal glyphosate. On August 1, 2008, they reported a third incident involving Lorsban Advanced (chlorpyrifos) on the same alfalfa field. Testing again showed minimal residue. The MDA concluded that drift from the Cooperative's applications caused both positive results. The Johnsons took the alfalfa field out of organic production for an additional three years.
The Johnsons sued the Cooperative for trespass, nuisance, negligence per se, and battery, claiming economic losses from the three-year transition periods, destruction of the soybean crop, increased weeding and reporting burdens, and adverse health effects to Oluf Johnson. They also sought a permanent injunction barring spraying within a half mile of their fields. The district court granted summary judgment to the Cooperative on all claims and denied the Johnsons' motion to amend the complaint to add the 2008 incidents. The court of appeals reversed in part. The Minnesota Supreme Court granted the Cooperative's petition for review.
A homeowner installs a solar collector on the roof of an existing residence. A neighbor later builds a home that casts a permanent shadow over the collector. The homeowner can no longer generate the expected electricity. The interference arises from the placement of the new structure rather than any entry onto the affected property.
Prah v. Maretti321 N.W.2d 182 (Wis. 1982)
The plaintiff, Frank Prah, owns a residence in a subdivision in the Town of Muskego that he constructed during 1978 or 1979.
His home includes a solar energy system which includes roof-mounted solar collectors located on the south side of the roof. The solar energy system supplies heat for the plaintiff's domestic hot water and space heating.
The plaintiff has invested $20,000 in his solar heating system.
In 1980, the defendant, Richard D. Maretti, acquired the vacant lot immediately south of Prah's property and began planning to build a two-story residence whose roof would extend to within twelve feet of the lot line. The proposed structure would cast a shadow over Prah's solar collectors during the winter months, rendering the heating system inoperable.
Prah informed Maretti about the solar system and asked him to adjust the location of the new home to avoid interference with the collectors, but Maretti declined to modify his plans. Prah then filed suit in the Circuit Court for Waukesha County, alleging that the construction would constitute a private nuisance and seeking injunctive relief along with compensatory and punitive damages.
The circuit court dismissed the complaint for failure to state a claim. On appeal, the court of appeals certified the case to the Supreme Court of Wisconsin, which accepted certification.
A mill conducts repeated blasting operations near a mink ranch. The explosions cause the mother mink to become agitated and kill their young. The ranch owner suffers repeated losses without any physical intrusion onto the ranch land. The disturbance travels through vibrations and sound.
Foster v. Preston Mill Co.44 Wash.2d 440, 268 P.2d 645.
B. W. Foster owned a mink ranch located in a rural area one and one-half miles east of North Bend in King County, Washington. The ranch occupied seven and one-half acres and included seven sheds housing mink in welded wire cages with wood roofs. The property sat about two blocks from U.S. Highway No. 10 and near Northern Pacific Railway tracks and Chicago, Milwaukee, St. Paul & Pacific Railroad tracks.
Preston Mill Company engaged in logging operations in the adjacent area. Early in May 1951, the company began constructing a road approximately two and one-quarter miles southwest of the mink ranch and twenty-five hundred feet above it along Rattlesnake Ledge. To build the road, the company used explosives, setting off blasts twice daily at noon and the end of the workday, with charges usually limited to fifty pounds and occasionally reaching one hundred pounds.
The whelping season for mink begins about May 1 and lasts about two and one-half weeks, during which mothers are highly excitable and may kill their kittens if disturbed by noises or vibrations. Roy A. Peterson, the ranch manager, observed that the blasting caused tremendous vibrations that rattled boxes on the cages, leading mother mink to run back and forth and kill their young. Before the season progressed far, thirty-five or forty kittens had been killed.
Peterson informed the manager of Preston Mill Company about the losses. Although no request was made to stop the blasting, the company reduced the amount of explosives per shot from nineteen or twenty sticks to fourteen sticks. Officials of the company noted that halting road construction during the whelping period would have been impractical due to scheduling and expense concerns.
Foster filed suit against Preston Mill Company seeking damages only for losses occurring after the company received notice of the effects on the mink. After a trial to the court without a jury on a second amended complaint alleging absolute liability and alternatively nuisance, the trial court entered judgment for Foster in the amount of $1,953.68 based on absolute liability for post-notice damages. The court found no public nuisance, and Foster conceded that the trial court had ruled in the company's favor on the nuisance claim. Preston Mill Company appealed the judgment.
A feedlot operator maintains thousands of cattle near land being developed into retirement homes. The resulting odors and flies make outdoor living unpleasant for the new residents. The developer faces sales resistance and complaints from buyers. The interference reaches the homes through the air without any physical crossing of the boundary.
Spur Industries, Inc. v. Del E. Webb Development Co.494 P.2d 700 (Ariz. 1972)
In 1956, Spur’s predecessors in interest developed feedlots about ½ mile south of Olive Avenue in an area between the confluence of the usually dry Agua Fria and New Rivers, some 14 to 15 miles west of the urban area of Phoenix. By April and May of 1959, the Northside Hay Mill was feeding between 6,000 and 7,000 head of cattle and Welborn approximately 1,500 head on a combined area of 35 acres. In 1960, Spur purchased the property and expanded the feedlot operation from approximately thirty-five acres to one hundred fourteen acres by 1962, eventually maintaining between twenty thousand and thirty thousand head of cattle at the time of trial.
Del E. Webb Development Co. began planning Sun City, a retirement community, in May 1959 after purchasing twenty thousand acres of farmland for fifteen million dollars. Construction of a golf course started that September. Homes were first offered in January 1960. The first residents moved in during 1960. By the time of trial, Sun City had a population of approximately fourteen thousand people, and the development had extended south to within five hundred feet of Spur's feedlot north of Olive Avenue.
Residents of Sun City began complaining about odors and flies from the feedlot, which produced over a million pounds of wet manure per day, and Webb encountered sales resistance starting around 1963 in the southwestern portion of the development. Webb attempted to buy the feedlot from Spur but the parties could not agree on a price. Webb then filed suit alleging that the feedlot was a public nuisance because flies and odors drifted over the southern portion of Sun City, rendering in excess of one thousand three hundred lots unfit for residential development.
The trial court, after proceedings that included an advisory jury later discharged and special actions in the Arizona Supreme Court, found the feedlot to be a nuisance, permanently enjoined its operation, and awarded damages to Webb. Spur appealed from the injunction and the damages award, while Webb cross-appealed from the trial court's refusal to award attorneys' fees. During the appeal process, Spur agreed to and did shut down its operation without prejudice to the final determination.
What distinguishes a nontrespassory invasion from a trespass?
A nontrespassory invasion reaches the land through intangible means such as odors, noise, or smoke. Trespass requires a physical entry by a person or tangible object. The distinction determines whether the claim proceeds under nuisance or trespass doctrine.
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Who may recover for a private nuisance caused by a nontrespassory invasion?
Only persons who hold property rights or privileges in the affected land may recover. This includes possessors such as owners and tenants. Licensees and temporary visitors generally lack standing.
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Does a regulatory violation automatically establish a nontrespassory invasion amounting to nuisance?
No. Ordinance violations may support a finding of unreasonableness but are not required. A defendant may create a nuisance while complying with all regulations, and a technical violation does not by itself prove the invasion.
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Can an easement holder bring a claim based on a nontrespassory invasion?
Yes. Owners of easements qualify as persons with property rights in the affected land. Interference that impairs the specific rights granted by the easement supports a private nuisance claim.
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…is solely between Del E. Webb Development Company and Spur Industries, Inc. MAY SPUR BE ENJOINED? The difference between a
private nuisance
and a public
nuisance
is generally one of degree. A
private nuisance
is one affecting a single individual or a definite small number of persons in the enjoyment of