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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.

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