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Real property

public nuisance

A public nuisance (also known as a common nuisance) is a condition that amounts to an unreasonable interference with a right common to the general public. The question of reasonableness is determined by a variety of factors, including whether it interferes with the public health, safety, convenience, peace, and comfort in a way that tends to annoy, offend, or injure.

And the interference is unreasonable if it is continuing or produces a permanent or long-lasting effect that the defendant knew or should have known would have a significant effect on a public right. Noise, light, and odor coming from a neighboring property are common forms of nuisance.

In other words, a public nuisance exists when acts or conditions are subversive of public order or constitute an obstruction of public rights. For example, an impediment in a public way may constitute a nuisance.

To constitute a public nuisance, the condition must adversely affect the entire community; a public gathering place; or at least a considerable portion of the citizens.

And conduct may be classified by statute as a public nuisance or a common nuisance that an individual may seek to abate or enjoin.

Laws regarding public nuisances vary from state to state and may be located in a state’s statutes or in its court opinions—also known as common law or case law. Because statutes are also known as codes, law that is included in statutes is sometimes said to be codified.


A plaintiff must have standing to bring a private suit for damages caused by a public nuisance. The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome.

The standing doctrine generally requires that there be:

• a real controversy between the parties;

• that will be actually determined by the judicial declaration sought.

Generally, the plaintiff must show it suffered special damages that are different from the harm suffered by the general public, and that such damages are substantial. Or the plaintiff may show it has statutory standing to bring a private suit for damages caused by the public nuisance.


The general rule in cases involving injury to real property is that the proper measure of damages is the cost to restore or replace, plus loss of use for temporary injury, and loss in fair market value for permanent injury.

But courts apply this rule with some flexibility, considering the circumstances of each case to ensure that an award of damages neither over-nor-under-compensates a landowner for damage to the property. The purpose of the law is to compensate the owner for the injury received, and the measure of damages that will accomplish this in a given case is to be used.

For example, when a landowner can show that the destruction of trees on real property resulted in no diminishment of the property’s fair market value, or in so little diminishment of that value that the loss is essentially nominal, the landowner may recover the intrinsic value of the trees lost; that is, the ornamental and utilitarian value of the trees.

An injury to real property is considered permanent if:

• it cannot be repaired, fixed, or restored, or

• even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.

Conversely, an injury to real property is considered temporary if:

• it can be repaired, fixed, or restored, and

• any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.

Thus, the plaintiff may recover:

• actual damages for restoration or repair, lost profits, loss of use of the land, lost mineral rights, loss in fair market value, loss for the intrinsic (aesthetic and utilitarian) value of trees destroyed on the property, sickness, annoyance, discomfort, inconvenience;

• prejudgment interest;

• postjudgment interest; and

• costs of court.

And if the defendant’s interference with the plaintiff’s use and enjoyment of the property was the result of fraud, malice, or gross negligence, the plaintiff may be entitled to recover punitive or exemplary damages from the defendant.

Temporary and Permanent Injunctive Relief

The plaintiff may be entitled to temporary and permanent injunctive relief to prevent injury to the plaintiff’s real or personal property. Laws vary from state to state, but, for example, a writ of injunction may be granted if:

• the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant;

• a party performs or is about to perform or is procuring or allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual;

• the applicant is entitled to a writ of injunction under the state's principles of equity and statutes relating to injunctions;

• a cloud would be placed on the title of real property being sold under an execution against a party having no interest in the real property subject to execution at the time of sale, irrespective of any remedy at law; or

• irreparable injury to real or personal property is threatened, irrespective of any remedy at law.

And an applicant for injunctive relief must demonstrate:

• the existence of a wrongful act;

• the existence of imminent harm;

• the existence of irreparable injury; and

• the absence of an adequate remedy at law.

In Texas, a public nuisance is an unreasonable interference with a right common to the general public, such as public health, safety, or peace. Factors like noise, light, and odor can be considered nuisances if they have a significant and lasting impact on public rights. To take legal action, a plaintiff must have standing, meaning they must show special damages distinct from those suffered by the general public or statutory standing. Damages can include restoration costs, loss of use, and loss in fair market value, with flexibility in the courts to ensure fair compensation. In cases of fraud, malice, or gross negligence, punitive damages may be awarded. Texas law also allows for temporary and permanent injunctive relief to prevent further harm to property, requiring the plaintiff to demonstrate a wrongful act, imminent and irreparable harm, and the inadequacy of other legal remedies.

Texas Statutes & Rules

Federal Statutes & Rules

Clean Air Act (42 U.S.C. § 7401 et seq.)
The Clean Air Act addresses air pollution that can interfere with public health and welfare, which can be considered a form of public nuisance.

The Clean Air Act is a comprehensive federal law that regulates air emissions from stationary and mobile sources. It authorizes the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment. The Act sets requirements for controlling emissions of hazardous air pollutants, and it provides a framework for preventing significant deterioration of air quality in areas with clean air as well as for protecting visibility in national parks and wilderness areas. States are required to develop state implementation plans (SIPs) that enforce the NAAQS. Violations of the Clean Air Act can lead to fines and other penalties, and the Act provides for citizen suits against violators, which can be relevant in cases where air pollution constitutes a public nuisance.

Clean Water Act (33 U.S.C. § 1251 et seq.)
The Clean Water Act is relevant to public nuisance as it addresses the discharge of pollutants into the waters of the United States, which can affect public health and welfare.

The Clean Water Act aims to restore and maintain the chemical, physical, and biological integrity of the nation's waters. It prohibits the discharge of pollutants into navigable waters unless a permit is obtained under its National Pollutant Discharge Elimination System (NPDES). The Act also includes provisions for addressing oil spills, sewage treatment, and funding for wastewater treatment plants. The EPA sets water quality standards that states must meet in their waters. Violations of the Clean Water Act can result in civil or criminal penalties. Citizens may also file a lawsuit against alleged violators for enforcement of the Act or against the EPA for failure to perform a non-discretionary act or duty under the Act, which can be pertinent when water pollution rises to the level of a public nuisance.

Noise Control Act of 1972 (42 U.S.C. § 4901 et seq.)
The Noise Control Act is relevant to public nuisance issues related to noise pollution.

The Noise Control Act establishes a national policy to promote an environment for all Americans free from noise that jeopardizes their health and welfare. The Act authorizes the EPA to set noise emission standards for products distributed in commerce, and to promote the development of low-noise-emitting products. It also facilitates coordination among federal, state, and local noise control activities. While the EPA's Office of Noise Abatement and Control was defunded in the early 1980s, the statutes remain in place, and state and local governments often have noise regulations that are based on the standards that were developed under this Act. Excessive noise that affects a significant number of people or interferes with public welfare can be addressed under this Act.

Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.)
The RCRA is relevant to public nuisance as it governs the disposal of solid and hazardous waste, which can create conditions harmful to the public.

The Resource Conservation and Recovery Act provides the framework for the proper management of hazardous and non-hazardous solid waste. The Act includes provisions for waste generation, transportation, treatment, storage, and disposal. It is designed to prevent the creation of hazardous waste dumps, to ensure the proper disposal of waste, and to promote resource recovery and conservation. RCRA's regulations can be relevant in public nuisance cases involving waste management practices that affect public health or the environment. Facilities that treat, store, or dispose of hazardous waste must obtain a permit, and violators can face civil and criminal penalties. Citizens may bring lawsuits against violators or against the EPA for enforcement of the Act.

Federal Tort Claims Act (FTCA) (28 U.S.C. §§ 1346(b), 2671-2680)
The FTCA allows private parties to sue the United States in federal court for torts committed by persons acting on behalf of the United States, which can include public nuisances.

The Federal Tort Claims Act permits private individuals to sue the United States for most torts committed by federal employees within the scope of their employment. Under the FTCA, the government can be held liable in the same manner and to the same extent as a private individual under like circumstances, subject to certain exceptions. This means that if a federal employee creates a public nuisance that causes harm, affected individuals may be able to seek redress under the FTCA. However, the Act includes exceptions where the government is not liable, such as the discretionary function exception, which shields the government from liability for acts that involve a federal employee's exercise of discretion.