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Chapter 3. Tort-Like Limits on the Right to Use: Nuisance & Related Doctrines DISCUSSION QUESTIONS 48. What kinds of concerns does the majority opinion in McCarty recognize as legally relevant in disputes like the one in the case? What additional concerns does the dissent think the majority needed to take into account? Are there concerns at neither opinion mentions that you think should be relevant? 49. Does the result in McCarty seem right to you? Why or why not? FOUR APPROACHES TO PRIVATE NUISANCE H>U U>H (serious) U>H (trivial) Balancer STRICT LIABILITY + INJUNCTION INJ INJ 0 0 S/LIAB. + BALANCING EQUITIES INJ DMG 0 Judge 1st RESTATEMENT INJ 0 0 FoF S60

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Chapter 2

Chapter 3. Tort-Like Limits on the Right to Use:

Nuisance & Related Doctrines

DISCUSSION QUESTIONS

48.  What kinds of concerns does the majority opinion in McCarty recognize as legally relevant in disputes like the one in the case?  What additional concerns does the dissent think the majority needed to take into account? Are there concerns at neither opinion mentions that you think should be relevant?

49.  Does the result in McCarty seem right to you?  Why or why not? 

( ( ( ( ( ( ( ( (

FOUR APPROACHES TO PRIVATE NUISANCE

H>U

U>H (serious)

U>H (trivial)

Balancer

STRICT LIABILITY + INJUNCTION

INJ

INJ

0

0

S/LIAB. + BALANCING EQUITIES

INJ

DMG

0

Judge

1st RESTATEMENT

INJ

0

0

FoF

2d RESTATEMENT

INJ

DMG

0

FoF

H = HARM U = UTILITY

INJ = Injunction

DMG = Damages for Future Harm

FoF = Finder of Fact

CARPENTER v. DOUBLE R CATTLE CO.

669 P.2d 643 (Idaho App. 1983)

BURNETT, Judge. Dean William Prosser once observed, “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’.” W. Prosser, Handbook Of The Law Of Torts, §86, at 571 (4th ed. 1971). Today we review a case that has thrust us into the jungle of nuisance law. We are asked to define the legal test for determining whether an intended use of property, which incidentally produces adverse effects upon neighboring properties, constitutes a nuisance.

This lawsuit was filed by a group of homeowners who alleged that expansion of a nearby cattle feedlot had created a nuisance. The homeowners claimed that operation of the expanded feedlot had caused noxious odors, air and water pollution, noise and pests in the area. … The jury returned a verdict simply finding that no nuisance existed. The court entered judgment for the feedlot proprietors, denying the homeowners any damages or injunctive relief. This appeal followed. … The homeowners contend that the jury received improper instructions on criteria for determining the existence of a nuisance. The jury was told to weigh the alleged injury to the homeowners against the “social value” of the feedlot, and to consider “the interests of the community as a whole,” in determining whether a nuisance existed. …

II.The concept of nuisance originated in the law of property. At common law, a distinction was maintained between two encroachments upon property rights— interference with possession of land, and interference with the use and enjoyment of land. The first type of encroachment was subject to an “assize of novel disseisen,” a remedy for trespass. The latter form of encroachment was subject to an “assize of nuisance,” a remedy for a variety of invasions which diminished the owner’s enjoyment of his property without dispossessing him of it. Thus, nuisance and trespass have common roots in property law, and occasionally it is difficult to distinguish between them. But where an invasion of property is merely incidental to the use of adjoining property, and does not physically interfere with possession of the property invaded, it generally has been classified as a nuisance rather than as a trespass. See cases collected in 58 Am.Jur.2D Nuisances, §2, 556-57 (1971).

The early concepts of nuisance and trespass shared the common law’s reverence for property rights. Invasions of property were deemed wrongful per se, and the parties responsible for such invasions were subject to a form of strict liability. Thus, in the famous case of Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), aff'd L.R. 3 H.L. 330 (1868), an English court held that the owner of a reservoir would be liable to the owner of adjacent property for any injury caused by escaping water. The court stated:

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

Although a physical intrusion by water might have been viewed as a trespass, rather than as a nuisance, the court noted that the result would have been the same regardless of whether the mischief was caused by “beasts, or water, or filth, or stenches.” Thus, the English concept of nuisance was broad, and it carried remedies similar to those available for trespass.

The property-oriented, English concept of a nuisance had its analogue in early American law. In one illustrative case of the nineteenth century, an American court held that title to land gave the owner the right to impregnate the air with odors, dust and smoke, pollute his own water and make noises, provided that he did not substantially interfere with the comfort of others or injure the use or enjoyment of their property. Pennoyer v. Allen, 14 N.W. 609 (Wis. 1883).

This broad description of nuisance was incorporated into Idaho law. Idaho Code §52-101, which has antecedents dating to 1881, defines a nuisance as “[a]nything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....” The statutory remedies are similarly broad. Idaho Code §52-111 empowers “any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance [to bring an action] ... and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.” …

However, as the English concept of nuisance was assimilated into American law, it underwent a transformation. It ceased to be solely a creature of property law. As exemplified by the Idaho statutes, nuisance law came to protect life and health, as well as property. A nuisance signified not merely an infringement of property rights, but a wrong against both person and property—a tort.

American tort law in the nineteenth and early twentieth centuries was founded upon the rock of “fault.” As the notion of fault burrowed into the concept of nuisance, the strict liability which had attended nuisance in property law began to deteriorate. American courts stressed that liability for nuisance would arise only from “unreasonable” uses of property. In some cases, the courts began to treat nuisance as a form of conduct rather than as a condition affecting the enjoyment of property. This position later fell into disfavor.

However, American emphasis upon the element of reasonableness persisted. Our courts also underscored the distinction between conditions which are inherently nuisances (nuisances per se) and those conditions which may or may not constitute nuisances, depending upon the surrounding circumstances (nuisances per accidens). Of cases in the latter category, it became customary for the courts to say that whether an invasion of another’s enjoyment of property was unreasonable would depend upon all circumstances in the case. These circumstances typically would include the location of the claimed nuisance, the character of the neighborhood, the nature of the offending activity, the frequency of the intrusion, and the effect upon the enjoyment of life, health and property.

Moreover, the American transformation resulted in diminished application of the principle—derived from property law—that where property rights were substantially impaired by a nuisance, the complaining party was entitled to an injunction. This principle, which had complemented the property-based concept of strict liability, entitled a property owner to block an offensive activity on neighboring property, regardless of disparate economic consequences. American courts apparently found this approach ill-suited to the demands of a developing nation.

There evolved two lines of American response to the problem of injunctions. One response was to narrow the scope of cases in which injunctions would be granted, while continuing to recognize an entitlement to damages for injury to property rights. … Ultimately, th[is] approach … developed into the “comparative injury” doctrine. Under this doctrine, the comparative benefits and hardships of discontinuing one activity for the protection of another would be weighed in determining whether injunctive relief or damages represented the more appropriate remedy for a nuisance. The Idaho Supreme Court adopted the comparative injury doctrine in Koseris v. J.R. Simplot Co., 352 P.2d 235 (Idaho 1960). As explained later in this opinion, our Supreme Court in Koseris acknowledged the right to recover damages for the invasion of one’s property, even where the comparative injury doctrine might bar injunctive relief.

The second line of American response to the injunction problem was to narrow the scope of cases in which nuisances were found to exist. This was achieved by incorporating the social value—the “utility”—of the offending activity into the litany of circumstances to be weighed in determining whether a particular use of property was “unreasonable.” Thus, the utility of an offending activity militated not merely against the issuance of an injunction, but also against a determination that the offending activity was a nuisance at all. This second line of response found expression in the general (“black letter”) principles set forth by the Restatement Of Torts (1932) (herein cited as the First Restatement). Section 826 of the First Restatement declared that an invasion of another's enjoyment of property would be deemed unreasonable, and therefore a nuisance, unless the utility of the actor's conduct outweighed the gravity of the harm.

The Idaho Supreme Court never explicitly adopted the First Restatement. However, in McNichols v. J.R. Simplot Co., [262 P.2d 1012 (Idaho 1953),] the Court may have intimated a similar approach. In that case, emissions from a large phosphate plant were alleged to have adversely affected a small neighboring business. Both damages and injunctive relief were sought. … [T]he Supreme Court in McNichols found certain jury instructions to be incomplete and the Court reversed a judgment for the phosphate plant. However, the Court also mentioned, without disapproval, [jury] instructions stating that existence of a nuisance should be determined in light of “all circumstances,” and outlining the factors to be weighed. These factors included “inconsequentialness of the relative size of importance of the respective businesses (relative benefit or loss is a pertinent factor)....” 262 P.2d at 1014. This ambiguous language later was deemed to support a pattern jury instruction stating that “the interests of the community as a whole” should be considered in determining whether a nuisance exists. See Idaho Jury Instructions (IDJI) 491 (1st ed. 1974 & 2d ed. 1982).

Thus, when confronted with a choice between the two American lines of response to the problem of injunctions in nuisance cases, Idaho appeared to choose both. Koseris adopted the “comparative injury” doctrine, restricting the cases qualifying for injunctions without narrowing the scope of nuisance cases in which an aggrieved party was entitled to be compensated in damages. However, McNichols and IDJI 491 allowed the offending activity’s value to the community to be considered in determining whether any nuisance existed at all.

Idaho’s uncertain direction reflected a national confusion which led Dean Prosser to deliver his characterization of nuisance law as a “jungle.” … Dissatisfaction with the First Restatement … was expressed by the courts. In Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970), the New York Court of Appeals held that parties adversely affected by dust from a cement plant would be entitled to recover damages for the harm, although the value of the cement plant to the community was so great that its operation would not be enjoined. The Oregon Supreme Court also refused to follow the First Restatement's test for determining existence of a nuisance. In Furrer v. Talent Irr. Dist., 466 P.2d 605 (Or. 1970), the Court rejected the contention:

that in every case the jury has the power to exonerate the defendant from liability because it feels that the social value of the defendant's conduct outweighs the harm which the defendant has visited upon the plaintiff. … [I]f the plaintiff's land is harmed by the conduct of the defendant, the latter cannot escape compensating the plaintiff for the harm simply by showing that the defendant's use had a greater social value than the plaintiff's.

Similarly, Jost v. Dairyland Power Coop., 172 N.W.2d 647 (Wis. 1970), upheld compensation for crop damage caused by sulfur fumes from an electrical power generating plant. On appeal, the power company contended that the trial court erred by not allowing it to prove its economic importance to the region, as a defense against the damage claim. The Wisconsin Supreme Court replied:

We ... conclude that the court properly excluded all evidence that tended to show the utility of the [power company's] enterprise. Whether its economic or social importance dwarfed the claim of a small farmer is of no consequence in this lawsuit. It will not be said that, because a great and socially useful enterprise will be liable in damages, an injury small by comparison should go unredressed. We know of no acceptable rule of jurisprudence that permits those who are engaged in important and desirable enterprises to injure with impunity those who are engaged in enterprises of lesser economic significance.

Thus, it was clear by 1970 that the First Restatement's black letter test for existence of a nuisance had ceased to be—if, indeed, it ever was—an adequate expression of case law. The days were drawing to a close when an economic activity could escape all liability under nuisance law for harm caused to its neighbors, simply because a large measure of social utility was ascribed to it.

III.The seeds of reform had been sown. They took root in fertile soil when the American Law Institute (ALI), which had begun to write a new restatement of the law of torts, turned its attention to the subject of nuisances in 1970. … Ultimately, the [ALI] … approved … the private nuisance sections of chapter 40, Restatement (Second) Of Torts (1977) (herein cited as the Second Restatement). The Second Restatement, like its predecessor, divides such nuisances into two groups: (a) “intentional and unreasonable” invasions of another's interest in the use and enjoyment of property, and (b) invasions which are “unintentional” but otherwise actionable under general tort principles. Second Restatement at §822.

The first category is broader than the term “intentional” at first glance might suggest. Section 825 of the Second Restatement explains that an invasion is “intentional” if the actor knows that the invasion is resulting, or is substantially certain to result, from his activity. Thus, the purpose of an activity, such as a feedlot, may not be to invade its neighbors’ interests in the use and enjoyment of their property; but the invasion is “intentional” within the meaning of the Second Restatement if the proprietors of the activity know that such an invasion is resulting—or is substantially certain to result—from the intended operation of their business. We focus upon “intentional” invasion, in this sense, because it is the type of nuisance alleged to exist in the present case.

The Second Restatement treats such an “intentional” invasion as a nuisance if it is “unreasonable.” Section 826 of the Second Restatement now provides two sets of criteria for determining whether this type of nuisance exists:

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if

(a) the gravity of the harm outweighs the utility of the actor's conduct, or

(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

The present version of §826, unlike its counterpart in the First Restatement, recognizes that liability for damages caused by a nuisance may exist regardless of whether the utility of the offending activity exceeds the gravity of the harm it has created. This fundamental proposition now permeates the entire Second Restatement. The commentary to §822, which distinguishes between “intentional” and “unintentional” invasions, and which serves as the gateway for all succeeding sections, emphasizes that the test for existence of a nuisance no longer depends solely upon the balance between the gravity of harm and utility of the conduct. Comment d to §822 states that, for the purpose of determining liability for damages, an invasion may be regarded as unreasonable even though the utility of the conduct is great and the amount of harm is relatively small. Comment g to the same section reemphasizes that damages are appropriate where the harm from the invasion is greater than a party should be required to bear, “at least without compensation.”

The distinction between damages and injunctive relief is carried over in the commentary to §826. Comment e recognizes that the utility of an activity may be greatly reduced if it does not compensate those whom it harms. Comment f stresses that an intentional invasion, for which damages may be sought, is unreasonable where the harm can be compensated even if the gravity of the harm does not outweigh the utility of the conduct.

Evaluation of The Second Restatement. The Second Restatement clearly has rejected the notion that if an activity’s utility exceeds the harm it creates, the activity is not a nuisance and therefore is free from all liability in damages or for injunctive relief. It discards those earlier authorities which had responded to the problem of disparate economic consequences of injunctions by narrowing the concept of nuisance. Thus, the Second Restatement today is inconsistent with the Idaho Supreme Court’s decision in McNichols, supra, insofar as that decision is said to support IDJI 491. As noted earlier, this pattern instruction would require a jury to consider “the interest of the community as a whole” in determining whether a nuisance exists. IDJI 491 enunciates a single test for existence of a nuisance—regardless of whether damages or an injunction are sought—and obliquely incorporates the utility of the offending activity into the unified test. The pattern instruction perpetuates a discredited line of authority rejected by the Second Restatement.

In contrast, the Idaho Supreme Court's decision in Koseris, supra, is entirely consistent with—and in some respects might be said to have presaged—the Second Restatement. In that case, a plaintiff sought injunctive relief, but claimed no damages, from fumes emitted by the same phosphate plant involved in McNichols. The phosphate plant offered to prove, among other things, that its facility was important to the economies and tax bases of certain counties in southeastern Idaho. The trial court disallowed the proof. On appeal our Supreme Court said:

We are constrained to hold that the trial court erred in sustaining objections to those offers of proof, since they were relevant as bearing upon the issue whether respondents, in seeking injunctive relief, were pursuing the proper remedy; nevertheless, on the theory of damages which respondents had waived, the ruling was correct.

Both the Second Restatement and Koseris recognize that utility of the activity alleged to be a nuisance is a proper factor to consider in the context of injunctive relief; but that damages may be awarded regardless of utility. Evidence of utility does not constitute a defense against recovery of damages where the harm is serious and compensation is feasible. Were the law otherwise, a large enterprise, important to the local economy, would have a lesser duty to compensate its neighbors for invasion of their rights than would a smaller business deemed less essential to the community. In our view, this is not, and should not be, the law in Idaho.

Koseris and the Second Restatement also share a recognition of the fundamental difference between making an activity compensate those whom it harms, and forcing the activity to discontinue or to modify its operations. The damage question goes to a person's basic right in tort law to recover for harm inflicted by another. The injunction question is broader; it brings into play the interest of other persons who may benefit from the activity. Comparative benefits and hardships must be weighed in determining whether injunctive relief is appropriate. Thus, the Second Restatement is consistent with the “comparative injury” standard adopted in Koseris.

We believe that Koseris and the Second Restatement furnish better guidance than IDJI 491 for the future path of nuisance law in Idaho. The law of nuisance profoundly affects the quality of life enjoyed by all Idahoans. It should be broad in coverage, as our statutes provide, and fair in its application. It should not contain blind spots for large or important enterprises.

However, our view is not based simply upon general notions of fairness; it is also grounded in economics. The Second Restatement deals effectively with the problem of “externalities” identified in the ALI proceedings. Where an enterprise externalizes some burdens upon its neighbors, without compensation, our market system does not reflect the true cost of products or services provided by that enterprise. Externalities distort the price signals essential to the proper functioning of the market.

This problem affects two fundamental objectives of the economic system. The first objective, commonly called “efficiency” in economic theory, is to promote the greatest aggregate surplus of benefits over the costs of economic activity. The second objective, usually termed “equity” or “distributive justice,” is to allocate these benefits and costs in accordance with prevailing societal values. The market system best serves the goal of efficiency when prices reflect true costs; and the goal of distributive justice is best achieved when benefits are explicitly identified to the correlative costs.

Although the problem of externalities affects both goals of efficiency and distributive justice, these objectives are conceptually different and may imply different solutions to a given problem. In theory, if there were no societal goal other than efficiency, and if there were no impediments to exchanges of property or property rights, individuals pursuing their economic self-interests might reach the most efficient allocation of costs and benefits by means of exchange, without direction by the courts. See Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). However, the real world is not free from impediments to exchanges, and our economic system operates within the constraints of a society which is also concerned with distributive justice. Thus, the courts often are the battlegrounds upon which campaigns for efficiency and distributive justice are waged.

Our historical survey of nuisance law, in Part II of this opinion, has reflected the differing emphasis upon efficiency and distributive justice. As noted, the English system of property law placed a preeminent value upon property rights. It was thus primarily concerned with distributive justice in accord with those rights. For that reason the English system favored the injunction as a remedy for a nuisance, regardless of disparate economic consequences. However, when the concept of nuisance was incorporated into American law, it encountered a different value system. Respect for property rights came to be tempered by the tort-related concept of fault, and the demands of a developing nation placed greater emphasis upon the economic objective of efficiency relative to the objective of distributive justice. The injunction fell into disfavor. The reaction against the injunction, as embodied in the First Restatement, so narrowed the concept of nuisance itself that it rendered the courts impotent to deal with externalities generated by enterprises of great utility. This reaction was excessive; neither efficiency nor distributive justice has been well served.

In order to address the problem of externalities, the remedies of damages and injunctive relief must be carefully chosen to accommodate the often competing goals of efficiency and distributive justice. See generally Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 Stan.L.Rev. 1075 (1980); Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681 (1973). Koseris and the Second Restatement recognize the complementary functions of injunctions and damages. Section 826(a) of the Second Restatement allows both injunctions and damages to be employed where the harm created by an economic activity exceeds its utility. Section 826(b) allows the more limited remedy of damages alone to be employed where it would not be appropriate to enjoin the activity but the activity is imposing harm upon its neighbors so substantial that they cannot reasonably be expected to bear it without compensation.

We follow Koseris and adopt §826 of the Second Restatement. To the extent that IDJI 491 is inconsistent with our decision today, we urge that it be modified. In any event, IDJI 491 is merely recommendatory in nature; it is not mandatory.

Implications of the Second Restatement. Each of the parties in the present case has viewed the Second Restatement with some apprehension. We now turn to those concerns.

The homeowners, echoing an argument made during the ALI proceedings, have contended that the test of nuisance set forth in §826 grants large enterprises a form of private eminent domain. They evidently fear that if the utility of a large enterprise exceeds the gravity of the harm it creates—insulating it from an injunction and subjecting it to liability only in damages—the enterprise might interfere at will with the enjoyment and use of neighboring property, upon penalty only of paying compensation from time to time. Such a result might be consistent with the economic goal of efficiency, but it may conflict with the goal of distributive justice insofar as it violates a basic societal value which opposes forced exchanges of property rights. See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 536 (1961).

Even those legal scholars who advocate the most limited role for injunctions as a remedy against nuisances acknowledge that damages may be inadequate, and injunctions may be necessary, where the harm in question relates to personal health and safety, or to one's fundamental freedom of action within the boundaries of his own property. Ellickson, supra. Ordinarily, plaintiffs in such cases would prevail on the test which balances utility against gravity of the harm. Moreover, in the exceptional cases, the offending activity might be modified or eliminated through legislative or administrative controls such as environmental protection laws or zoning. Therefore, we expect that few cases would remain in need of a judicial remedy. However, we do not today close the door on the possibility that an injunction might lie, to protect personal health and safety or fundamental freedoms, in cases missed by the balancing test and by non-judicial controls. To this extent, our adoption of the Second Restatement's test of nuisance stops short of being absolute.

The Second Restatement also has encountered a host of objections from the feedlot proprietors and from the amicus curiae. These objections reflect genuine, legitimate concerns of Idaho business, particularly the agricultural community. The concerns have been eloquently presented by able counsel. We recognize that business is an anchor of our state. We believe that Idaho business will find that it can operate responsibly and profitably within the contours of nuisance liability defined by the Second Restatement. Every business person is someone else’s neighbor. Business people are as much benefited by protecting our quality of life as are other Idaho residents. We further note that business enterprises which do not depend for their viability upon an asserted right to impose serious harm upon their neighbors will not be threatened by the nuisance tests articulated in the Second Restatement.

Beyond these general observations, we address several particular objections to the Second Restatement. First, our attention has been invited to the Idaho “Right to Farm Act.” This Act recites the Legislature’s concern that agricultural activities conducted on farmland in urbanizing areas often are subjected to nuisance lawsuits. The Act imposes restrictions upon such lawsuits. However, we find that these restrictions are inapposite to the present case. The Act does not apply to lawsuits commenced before March 31, 1981. The homeowners’ complaint in the instant case was filed on March 28, 1978.

More fundamentally, even assuming, without deciding, that a feedlot constitutes an “agricultural operation” within the meaning of the Act, the Act precludes a finding of nuisance only with respect to an activity which would not have been a nuisance but for a change in surrounding non-agricultural uses more than one year after the activity began. In contrast, the pleadings in the present case disclose that the feedlot is alleged to be a nuisance, not because of changes in surrounding non-agricultural uses, but because of an expansion of the feedlot itself.

The proprietors and amicus curiae recognize that the Act does not strictly apply in this case, but they suggest that it is a legislative statement of policy which should inhibit our adoption of the Second Restatement. However, the Act in essence represents a statutory adaptation of the common law doctrine of “coming to the nuisance.” This doctrine does not conflict with the Second Restatement.

At early common law, the doctrine of “coming to the nuisance” was thus expressed:

If my neighbor makes a tan-yard so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue.

2 W. Blackstone, Commentaries On The Laws Of England 402 (17th ed. 1830). This rigid doctrine later was changed to provide that coming to the nuisance was not an absolute bar to the finding of a nuisance, but was merely one factor to be considered. This change stemmed from recognition that an absolute bar to a finding of nuisance would, in effect, give the offending activity a perpetual servitude upon the land of its neighbors without the payment of any compensation.

In keeping with this case law development, the Second Restatement recites, at §840D, that coming to the nuisance is not a total bar to relief, but is a factor to be considered. When this section of the Second Restatement is considered in relation to the tests of nuisance set forth in §826, we believe that coming to the nuisance is a factor which a jury may consider in evaluating the seriousness of the harm later claimed by the plaintiffs. We conclude that the Act affords no basis to view the Second Restatement as contrary to legislative policy.

The feedlot proprietors and amicus curiae also contend that the Second Restatement should be rejected because it assertedly contains a rule of absolute liability, making an enterprise liable in damages to anyone adversely affected by its operations. However, this argument overlooks the requirement in §826(b) that the harm be “serious.” A plaintiff who fails to demonstrate harm exceeding the utility of a defendant’s conduct will fail to establish a nuisance under §826(a). The plaintiff also will fail under §826(b) unless the trier of fact is persuaded that the harm shown is “serious.” Long before the Second Restatement, it had been well established by case law that an activity would not be deemed a nuisance unless the harm attributed to it was more injurious to the normal use and enjoyment of land than the harm attributed to other types of activities customarily encountered in the relevant area. Moreover, “[a]n interference is not a nuisance unless, among other things, it substantially interferes with the use and enjoyment of neighboring land.” Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va.L.Rev. 1299, 1319 (1977) (emphasis in original). In our view, unless the harm claimed by a plaintiff is substantial, and more injurious than that caused by other types of activities customary to the area, it would not be deemed “serious” within the meaning of §826(b).

In determining seriousness, the factors for evaluating gravity of harm, as set forth in §827, may be utilized. They include the extent and character of the harm, the suitability of the particular use or enjoyment invaded to the character of the locality, the burden on the injured person to avoid such harm, and the value which the law attaches to the type of use or enjoyment invaded. The last factor—the value attached to the type of use or enjoyment invaded—obviously relates to its intrinsic value when applied under §826(b); its relative value, in comparison with the utility of the offending activity, should be considered only when applying §826(a).

Moreover, comment g to §822 makes it clear that the Second Restatement does not create a rule of absolute liability. The comment states, in part, the following:

Not every intentional and significant invasion of a person's interest in the use and enjoyment of land is actionable.... Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms.... Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.

The feedlot proprietors and amicus curiae also assert that the Second Restatement will prove uneven in its application, because damages may be awarded only in those cases where the payment of such compensation is “feasible.” They contend that the element of feasibility subjects a profitable enterprise to greater potential liability than that which would attend a similar activity conducted by a marginal business. However, we believe this contention misperceives the thrust of the feasibility requirement.

As used in §826(b), the term “feasible” does not refer to the financial condition of the business conducting the activity, but refers to the activity itself. Section 826(b) merely recognizes that if the burden of paying compensation in damages would make it unfeasible to continue the activity, the effect of a damage award would be to discontinue operation of the activity. In those circumstances, the result would be the same as an injunction. In order to qualify for injunctive relief under §826(a), a plaintiff would be required to show that the gravity of the harm exceeded the utility of the defendant's conduct. Thus, as noted in comment f to §826, “[i]f imposition of this financial burden would make continuation of the activity not feasible, the weighing process for determining unreasonableness is similar to that in a suit for injunction.” Comment f to the same section further notes that the feasibility requirement may limit the scope of plaintiffs who can recover:

[I]n the case of a factory emitting smoke and odors, the granting of compensation for annoyance and inconvenience to all persons located in the general vicinity may create a burden so heavy as to make it not feasible to continue to operate the factory. Compensation may therefore be granted only to those in closer vicinity to the plant whose annoyance is more severe, and not to those farther away whose annoyance is less.... Cases involving airport noise [also] illustrate this principle.

The element of feasibility illustrates the interrelationship between §826(a) and §826(b). If a plaintiff suffers serious harm from an intentional invasion of the use and enjoyment of his property, he is entitled to injunctive relief or damages—or a mix of these remedies—if the trier of fact determines that the gravity of the harm exceeds the utility of the defendant's conduct. If the harm does not outweigh the utility, but remains serious, the plaintiff's remedy is limited to damages—subject, however, to the further limitation that if the nature of the activity (not the particular enterprise conducting it) is such that payment of compensation in damages would cause the activity to be discontinued, then the damage award will be viewed as having the same impact as an injunction. In those circumstances, full compensation will not be awarded unless the gravity of the harm has been found to exceed the utility of the defendant’s conduct.

IV.We now resume our focus upon the instant case. The feeding of large congregations of animals within the confined area of a feedlot may create problems that affect the use and enjoyment of neighboring properties. In general, feedlots are subject to the same principles of nuisance law which apply to other economic activities. General nuisance instructions were given to the jury in this case.

The actual instructions need not be set forth at length. In summary, the district court instructed the jury on the concept of an “intentional” invasion, within the meaning discussed earlier in this opinion. The court then informed the jury that a nuisance characterized by such an invasion could be found to exist only if the invasion were found to be unreasonable, and that “gravity of any harm” and “utility of defendants’ conduct” should be weighed as factors in determining unreasonableness. The court also instructed the jury to take into account such factors as “the interests of the community as a whole,” the “general public good,” and the “social value” of the defendants’ conduct. In short, the district judge gave the jury a set of instructions which did not conform precisely to, but were consistent with, the First Restatement and IDJI 491. The court took no account of Koseris, nor of the dual criteria for determining the existence of a nuisance under §826 of the Second Restatement. The jury was given no instruction on damage liability comparable to §826(b) of the Second Restatement. We conclude that the jury was improperly instructed, in light of our adoption today of the Second Restatement’s criteria for determining existence of a nuisance. … We conclude that the entire judgment of the district court, entered upon the verdict of a jury which had been improperly instructed, must be vacated. The case must be remanded for a new trial to determine whether a nuisance exists under the full criteria set forth in §826 of the Second Restatement.

Because a remand is necessary, we will also address an issue, raised by the homeowners, as to whether the district court should have instructed the jury that they could consider “standards and practices in the feedlot business.” Because this case involves an alleged “intentional” invasion, it would have been inappropriate to give the jury any “standards and practices” instruction which suggested that negligence was an issue in the case. The concept of negligence has no application to “intentional” invasions under the Second Restatement. An issue of negligence may arise only in connection with “unintentional” invasions. See Second Restatement at §822, comment i. The district court safeguarded the instruction on this point by informing the jury that the plaintiffs were “not required to show negligence ... in order to establish a nuisance.”

However, there is a further limitation upon the use of a “standards and practices” instruction. In Koseris, the phosphate plant’s offer to prove the utility of its operation had been coupled with a companion offer to prove its use of modern pollution control procedures. Our Supreme Court referred to both of these offers of proof when it said that the evidence could be allowed on a question of injunctive relief, but would have been improper on an issue of damages. Similarly, the Second Restatement refers to the skill or care with which an activity is conducted as a factor to be considered only in measuring the utility of the conduct. See §828, comment h. Thus, it falls within the balancing test set forth in §826(a), but would not apply to a determination of nuisance under §826(b). We instruct upon remand that if the district court again elects to give a “standards and practices” instruction, it should inform the jury that such “standards and practices” are germane only to a determination under §826(a) and are not to be considered among the criteria applied to a determination of nuisance under §826(b).

The judgment of the district court is vacated. The case is remanded for further proceedings consistent with this opinion.

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CARPENTER v. DOUBLE R CATTLE CO. [II]

701 P.2d 222 (Idaho 1985)

BAKES, Justice. Plaintiffs appealed a district court judgment based upon a court and jury finding that defendant's feedlot did not constitute a nuisance. The Court of Appeals reversed and … adopted subsection (b) of Section 826 of the Restatement Second, that a defendant can be held liable for a nuisance regardless of the utility of the conduct if the harm is “serious” and the payment of damages is “feasible” without jeopardizing the continuance of the conduct. We disagree that this is the law in Idaho.

At the outset, it is important to … note that appellants neither requested such an instruction nor assigned as error the failure of the trial court to give an instruction consistent with the new rule stated above. … Further, the instructions given were consistent with both the First Restatement and Section 826(a) of the Second Restatement, and also our decisions in McNichols v. J.R. Simplot Co., 262 P.2d 1012 (Idaho 1953) (action for damages and injunction), and Koseris v. J.R. Simplot Co., 352 P.2d 235 (Idaho 1960) (action for injunction only).

The Court of Appeals, without being requested by appellant, adopted the new subsection (b) of Section 826 of the Second Restatement partially because of language in Koseris which reads:

We are constrained to hold that the trial court erred in sustaining objections to those offers of proof [evidence of utility of conduct], since they were relevant as bearing upon the issue whether respondents, in seeking injunctive relief, were pursuing the proper remedy; nevertheless, on the theory of damages which respondents had waived, the ruling was correct.

The last phrase of the quote, relied on by the Court of Appeals, is clearly dictum, since the question of utility of conduct in a nuisance action for damages was not at issue in Koseris. It is very doubtful that this Court’s dictum in Koseris was intended to make such a substantial change in the nuisance law. When the isolated statement of dictum was made in 1960, there was no persuasive authority for such a proposition. Indeed, no citation of authority was given. The three cases from other jurisdictions which the Court of Appeals relied on for authority did not exist until 1970. … The Second Restatement, which proposed the change in the law by adding subsection (b) to Section 826, was also not in existence until 1970. Therefore, we greatly discount this Court’s dictum in the 1960 Koseris opinion as authority for such a substantial change in the nuisance law.

… McNichols should be viewed as the law in Idaho that in a nuisance action seeking damages the interests of the community, which would include the utility of the conduct, should be considered in the determination of the existence of a nuisance. The trial court’s instructions in the present case were entirely consistent with McNichols. A plethora of other modern cases are in accord. E.g., Nissan Motor Corp. v. Maryland Shipbuilding & Drydock Co., 544 F.Supp. 1104 (D.Md.1982) (utility of defendant's conduct is factor to be considered in determining existence of nuisance in damages action); Little Joseph Realty, Inc. v. Town of Babylon, 363 N.E.2d 1163 (N.Y. 1977) (indicating that New York still adheres to balancing of risk and utility, requiring that harm to plaintiff must outweigh social usefulness of defendant’s activity); Pendergrast v. Aiken, 236 S.E.2d 787 (N.C. 1977) (balancing of harm versus utility retained, despite change of section 826 Restatement (Second) of Torts); Pate v. City of Martin, 614 S.W.2d 46 (Tenn.1981) (determination of existence of nuisance in action for damages and injunction cannot be determined by exact rules, but depends on circumstances of each case, including locality and character of surroundings, as well as utility and social value of defendant’s conduct).

The State of Idaho is sparsely populated and its economy depends largely upon the benefits of agriculture, lumber, mining and industrial development. To eliminate the utility of conduct and other factors listed by the trial court from the criteria to be considered in determining whether a nuisance exists, as the appellant has argued throughout this appeal, would place an unreasonable burden upon these industries. We see no policy reasons which should compel this Court to accept appellant's argument and depart from our present law. Accordingly, the judgment of the district court is affirmed and the Court of Appeals decision is set aside.

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DISCUSSION QUESTIONS

50. Under the Second Restatement definition of “intentional“ nuisance (see S64-65), can a nuisance ever be “unintentional” once someone has complained of harm to the defendant?

51. Assume that you were trying Carpenter under the balancing test of the First Restatement (see S63). What are the harms that are likely to be caused by the defendant’s proposed expansion? What are likely benefits of the expansion? What facts not given in the opinions would be helpful to doing this analysis? What arguments could you make to the jury for each side about whether the utility of the expansion exceeds the harm?

52. Carpenter I notes two common approaches to considering the utility of the defendant’s conduct. In the first, after using the traditional strict liability test to determine whether there’s a nuisance, the court “balances the equities” to determine whether an injunction should issue. In the second, the balancing occurs in the process of deciding whether there’s a nuisance at all. One important difference between the two approaches is that in the first, the judge always does the balancing, but in the second, the jury may do it. Do you think the judge or jury should be responsible for balancing harms against social utility?

53. §826(b) of the Second Restatement adds a second prong to the First Restatement’s test for nuisance (see S65). What does this second prong do? How do you decide if harm is “serious”?

54. The court in Carpenter I says the Second Restatement effectively deals with the problem of “externalities” (S66). What does the court mean?

55. The plaintiffs in Carpenter argued that the Second Restatement is a form of “private eminent domain” (S68). What do they mean? What is the court’s response?

56. What kind of situation does the Idaho Right to Farm Act (see S68) address? Why doesn’t the Act apply in Carpenter?

57. The Second Restatement makes “coming to the nuisance” a factor to consider and not a complete bar to recovery (see 69). Is this a good approach?

58. What is a “standards and practices” jury instruction (see S71)? Why do the defendants want one? When does the court say such an instruction would be relevant?

59. Why does the Idaho Supreme Court in Carpenter II reject the reasoning of the Court of Appeals?

60. How is the Idaho Supreme Court’s decision in Carpenter II similar to its decision in Maguire? How are the two decisions different?

61. Carpenter I describes four approaches to nuisance law: (1) traditional strict liability; (2) strict liability, but the court balances the equities before issuing an injunction; (3) the First Restatement; and (4) the Second Restatement. Which do you think is preferable and why?

62. The notes suggest that the line between trespass and nuisance is not always clear. What kinds of cases are best suited to be addressed solely as trespass cases? What kinds of cases are best suited to be addressed solely as nuisance cases? For what kinds of cases, if any, should both theories be available? What is the best approach for invasive plant species (See Note 8 P66-67)? Be prepared to discuss this last question with reference to the facts of Review Problem 3F (S83).

63. Should a nuisance claim ever be available for the following circumstances described in the notes?

(a) Interference with the Plaintiff’s View? (Note 7 P138)

(b) Interference with Sunlight hitting the Plaintiff’s Land? (Same)

(c) Spite Fences? (Note 3 P144)

(d) Aesthetic Harms? (Note 4 P144-45)

64. What do the casebook authors see as the relationship between public nuisance law and pollution control? What do the acronyms “NIMBY” and “LULU” mean? What do the casebook authors see as the relationship between these concepts and public nuisance law?

65. Under what circumstances would the court in Spur apply the “coming to the nuisance” doctrine? Under what circumstances would it refuse to apply it?

66. What exactly did the court order the parties to do in Spur? Is the result fair to everyone involved?

67. Suppose you represent the trade association for Arizona ranch and feedlot owners. What can you do if association members don’t like the result in Spur?

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ARMORY PARK NEIGHBORHOOD ASS’N v.

EPISCOPAL COMMUNITY SERVICES IN ARIZONA

712 P.2d 914 (Ariz.1985)

FELDMAN, Justice. … Episcopal Community Services in Arizona (ECS) opened the St. Martin's Center (Center) in Tucson. The Center's only purpose is to provide one free meal a day to indigent persons. Plaintiff Armory Park Neighborhood Association (APNA) is a non-profit corporation organized for the purpose of “improving, maintaining and insuring the quality of the neighborhood known as Armory Park Historical Residential District.” The Center is located on Arizona Avenue, the western boundary of the Armory Park district. … APNA filed a complaint in Pima County Superior Court, seeking to enjoin ECS from operating its free food distribution program. The complaint alleged that the Center's activities constituted a public nuisance and that the Armory Park residents had sustained injuries from transient persons attracted to their neighborhood by the Center.

The superior court held a hearing on APNA's application for preliminary injunction…. [T]he parties stipulated that

... there is no issue concerning any State, County, or Municipal zoning ordinance, or health provision, before the Court. And, the Court may find that defendants are in compliance with the same.

The residents then testified about the changes the Center had brought to their neighborhood. Before the Center opened, the area had been primarily residential with a few small businesses. When the Center began operating…, many transients crossed the area daily on their way to and from the Center. Although the Center was only open from 5:00 to 6:00 p.m., patrons lined up well before this hour and often lingered in the neighborhood long after finishing their meal. The Center rented an adjacent fenced lot for a waiting area and organized neighborhood cleaning projects, but the trial judge apparently felt these efforts were inadequate to control the activity stemming from the Center. Transients frequently trespassed onto residents’ yards, sometimes urinating, defecating, drinking and littering on the residents’ property. A few broke into storage areas and unoccupied homes, and some asked residents for handouts. The number of arrests in the area increased dramatically. Many residents were frightened or annoyed by the transients and altered their lifestyles to avoid them. …

[T]he trial court granted the preliminary injunction…. A divided court of appeals reversed the trial court’s order. In the view of the majority, a criminal violation was a prerequisite to a finding of public nuisance; because plaintiff had alleged no criminal violation, the injunction was improperly granted. The majority also … held that compliance with zoning provisions was a complete defense. … We granted review in this case because of the importance of the following questions:

1) When does a voluntary association have standing to bring an action for public nuisance on behalf of its members?

2) May a lawful business be enjoined for acts committed off its premises by clients who are not under its control or direction?

3) Is it necessary to plead and prove a zoning or criminal violation by the defendant, or may a lawful activity be enjoined because the manner in which it is conducted is unreasonable and therefore constitutes a public nuisance?

THE CONCEPT OF "NUISANCE". Now considered a tort, a public nuisance action originated in criminal law. Early scholars defined public nuisance as “an act or omission ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her Majesty's subjects.’” Prosser, W. And W.P. Keeton, Handbook On The Law Of Torts, §90, at 643 (5th ed. 1984), quoting Stephen, General View of the Criminal Law in England 105 (1890). The sole remedy was criminal prosecution.

Historically, the remedy for a private nuisance was an action “upon the case,” as it was an injury consequential to the act done and found its roots in civil law. A private nuisance is strictly limited to an interference with a person's interest in the enjoyment of real property. The Restatement defines a private nuisance as “a nontrespassory invasion of another's interest in the private use and enjoyment of land.” Restatement (Second) Of Torts §821D. A public nuisance, to the contrary, is not limited to an interference with the use and enjoyment of the plaintiff's land. It encompasses any unreasonable interference with a right common to the general public.

We have previously distinguished public and private nuisances. In City of Phoenix v. Johnson, 75 P.2d 30 (Ariz. 1938), we noted that a nuisance is public when it affects rights of “citizens as a part of the public, while a private nuisance is one which affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public.” A public nuisance must also affect a considerable number of people. Id. See also Spur Industries. The legislature has adopted a similar requirement for its criminal code, defining a public nuisance as an interference “with the comfortable enjoyment of life or property by an entire community or neighborhood, or by a considerable number of persons ....” A.R.S. §13-2917.

The defendant contends that the trial court erred in finding both public and private nuisances when the plaintiff had not asserted a private nuisance claim. The defendant has read the trial court's minute entry too strictly. While we acknowledge that public and private nuisances implicate different interests, we recognize also that the same facts may support claims of both public and private nuisance. As Dean Prosser explained:

When a public nuisance substantially interferes with the use or enjoyment of the plaintiff's rights in land, it never has been disputed that there is a particular kind of damage, for which the private action will lie. Not only is every plot of land traditionally unique in the eyes of the law, but in the ordinary case the class of landowners in the vicinity of the alleged nuisance will necessarily be a limited one, with an interest obviously different from that of the general public. The interference itself is of course a private nuisance; but is none the less particular damage from a public one, and the action can be maintained upon either basis, or upon both.

Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997, 1018 (1966).

Thus, a nuisance may be simultaneously public and private when a considerable number of people suffer an interference with their use and enjoyment of land. See Spur Industries. The torts are not mutually exclusive. Some of plaintiff's members in this case have suffered an injury to the use and enjoyment of their land. Any reference to both a public and a private nuisance by the trial court was, we believe, merely a recognition of this well-accepted rule and not error. However, both because plaintiff did not seek relief under the theory of private nuisance and because that theory might raise standing issues not addressed by the parties, we believe plaintiff's claim must stand or fall on the public nuisance theory alone.

STANDING TO BRING THE ACTION

1. Do the residents have standing? Defendant argues that the Association has no standing to sue and that, therefore, the action should be dismissed. … Two standing questions are before us. The first pertains to the right of a private person, as distinguished from a public official, to bring a suit to enjoin the maintenance of a public nuisance. The original rule at common law was that a citizen had no standing to sue for abatement or suppression of a public nuisance since

such inconvenient or troublesome offences [sic], as annoy the whole community in general, and not merely some particular persons; and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits, by giving every man a separate right of action, by what damnifies him in common only with the rest of his fellow subjects.

4 Blackstone Commentaries 167.

It was later held that a private individual might have a tort action to recover personal damages arising from the invasion of the public right. However, the individual bringing the action was required to show that his damage was different in kind or quality from that suffered by the public in common. The rationale behind this limitation was two-fold. First, it was meant to relieve defendants and the courts of the multiple actions that might follow if every member of the public were allowed to sue for a common wrong. Second, it was believed that a harm which affected all members of the public equally should be handled by public officials.

Considerable disagreement remains over the type of injury which the plaintiff must suffer in order to have standing to bring an action to enjoin a public nuisance. However, we have intimated in the past that an injury to plaintiff's interest in land is sufficient to distinguish plaintiff's injuries from those experienced by the general public and to give the plaintiff-landowner standing to bring the action. See, e.g., Tucson Community Development and Design Center v. City of Tucson, 131 Ariz. 454, 457, 641 P.2d 1298, 1302 (1981) (plaintiff denied standing to challenge city's redevelopment plan because they neither lived nor held property in the area affected by the plan); Folk v. City of Phoenix, 27 Ariz.App. 146, 551 P.2d 595 (1976) (plaintiff had standing sufficient to withstand a motion to dismiss by alleging ownership of a prescriptive right in the land affected). This seems also to be the general rule accepted in the United States.

We hold, therefore, that because the acts allegedly committed by the patrons of the neighborhood center affected the residents’ use and enjoyment of their real property, a damage special in nature and different in kind from that experienced by the residents of the city in general, the residents of the neighborhood could bring an action to recover damages for or enjoin the maintenance of a public nuisance.

2. May the Association bring the action on behalf of its members? We have not previously decided whether an association or other organization has standing to assert the claims of its members in a representational capacity. … We have previously determined that the question of standing in Arizona is not a constitutional mandate since we have no counterpart to the “case or controversy” requirement of the federal constitution. In addressing the question of standing, therefore, we are confronted only with questions of prudential or judicial restraint. We impose that restraint to insure that our courts do not issue mere advisory opinions, that the case is not moot and that the issues will be fully developed by true adversaries. … [T]hese considerations require at a minimum that each party possess an interest in the outcome. Thus, the … issue in Arizona is whether, given all the circumstances in the case, the association has a legitimate interest in an actual controversy involving its members and whether judicial economy and administration will be promoted by allowing representational appearance.

As indicated earlier, individual residents whose land was affected by the actions of defendant’s patrons would have had standing to bring an action in their own name. Testimony was offered indicating that the purpose of APNA was to promote and preserve the use and enjoyment of the neighborhood by its residents. We believe this purpose is sufficiently relevant to the issues presented in this action so that APNA will adequately and fairly represent the interests of those of its members who would have had standing in their individual capacities. Further, APNA seeks an injunction rather than damages for separate property owners. Principles of judicial economy are advanced by allowing the issues to be settled in a single action rather than in a multitude of individual actions because the relief sought is universal to all of its members and requires no individual quantification by the court. We hold, therefore, that APNA has standing to bring the action as the representative of its members.

DEFENDANT'S DERIVATIVE RESPONSIBILITY. Defendant claims that its business should not be held responsible for acts committed by its patrons off the premises of the Center. It argues that since it has no control over the patrons when they are not on the Center's premises, it cannot be enjoined because of their acts. We do not believe this position is supported either by precedent or theory.

In Shamhart v. Morrison Cafeteria Co., 32 So.2d 727 (Fla. 1947), the defendant operated a well frequented cafeteria. Each day customers waiting to enter the business would line up on the sidewalk, blocking the entrances to the neighboring establishments. The dissenting justices argued that the defendant had not actually caused the lines to form and that the duty to prevent the harm to the plaintiffs should be left to the police through regulation of the public streets. The majority of the court rejected this argument, and remanded the case for a determination of the damages. See also Reid v. Brodsky, 156 A.2d 334 (Pa. 1959) (operation of a bar enjoined because its patrons were often noisy and intoxicated; they frequently used the neighboring properties for toilet purposes and sexual misconduct); Barrett v. Lopez, 262 P.2d 981, 983 (N.M. 1953) (operation of a dance hall enjoined, the court finding that “mere possibility of relief from another source [police] does not relieve the courts of their responsibilities”); Wade v. Fuller, 365 P.2d 802 (Utah 1961) (operation of drive-in cafe enjoined where patrons created disturbances to nearby residents); McQuade v. Tucson Tiller Apartments, 543 P.2d 150 (Ariz.App. 1975) (music concerts at mall designed to attract customers enjoined because of increased crowds and noise in residential area).

Under general tort law, liability for nuisance may be imposed upon one who sets in motion the forces which eventually cause the tortious act; liability will arise for a public nuisance when “one person's acts set in motion a force or chain of events resulting in the invasion.” Restatement, supra, §824 comment b. We hold, therefore, that defendant’s activity may be enjoined upon the showing of a causal connection between that activity and harm to another.

The testimony at the hearing establishes that it was the Center's act of offering free meals which “set in motion” the forces resulting in the injuries to the Armory Park residents. Several residents testified that they saw many of the same transients passing through the neighborhood and going in and out of the Center. We find the testimony sufficient to support the trial judge’s finding of a causal link between the acts of ECS and the injuries suffered by the Armory Park residents. The court of appeals thus erred by holding that there was no evidence from which the trial court could have concluded that ECS had engaged in conduct which would render it causally responsible for the interferences. The question is not whether defendant directly caused each improper act, but whether defendant’s business operation frequently attracted patrons whose conduct violated the rights of residents to peacefully use and enjoy their property.

REASONABLENESS OF THE INTERFERENCES. Since the rules of a civilized society require us to tolerate our neighbors, the law requires our neighbors to keep their activities within the limits of what is tolerable by a reasonable person. However, what is reasonably tolerable must be tolerated; not all interferences with public rights are public nuisances. As Dean Prosser explains, “[t]he law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result.” Prosser, supra, §88, at 626. Thus, to constitute a nuisance, the complained-of interference must be substantial, intentional and unreasonable under the circumstances. Restatement, supra, §826 comment c and §821F. Our courts have generally used a balancing test in deciding the reasonableness of an interference. The trial court should look at the utility and reasonableness of the conduct and balance these factors against the extent of harm inflicted and the nature of the affected neighborhood. … The trial judge did not ignore the balancing test and was well aware of the social utility of defendant's operation. His words are illuminating:

It is distressing to this Court that an activity such as defendants [sic] should be restrained. Providing for the poor and the homeless is certainly a worthwhile, praisworthy [sic] activity. It is particularly distressing to this Court because it [defendant] has no control over those who are attracted to the kitchen while they are either coming or leaving the premises. However, the right to the comfortable enjoyment of one's property is something that another's activities should not affect, the harm being suffered by the Armory Park Neighborhood and the residents therein is irreparable and substantial, for which they have no adequate legal remedy.

We believe that a determination made by weighing and balancing conflicting interests or principles is truly one which lies within the discretion of the trial judge. We defer to that discretion here. The evidence of the multiple trespasses upon and defacement of the residents’ property supports the trial court’s conclusion that the interference caused by defendant’s operation was unreasonable despite its charitable cause.

The common law has long recognized that the usefulness of a particular activity may outweigh the inconveniences, discomforts and changes it causes some persons to suffer. We, too, acknowledge the social value of the Center. Its charitable purpose, that of feeding the hungry, is entitled to greater deference than pursuits of lesser intrinsic value. It appears from the record that ECS purposes in operating the Center were entirely admirable. However, even admirable ventures may cause unreasonable interferences. We do not believe that the law allows the costs of a charitable enterprise to be visited in their entirety upon the residents of a single neighborhood. The problems of dealing with the unemployed, the homeless and the mentally ill are also matters of community or governmental responsibility.

ZONING. ECS argues that its compliance with City of Tucson zoning regulations is a conclusive determination of reasonableness. We agree that compliance with zoning provisions has some bearing in nuisance cases. We would hesitate to find a public nuisance, if, for example, the legislature enacted comprehensive and specific laws concerning the manner in which a particular activity was to be carried out.

We decline, however, to find that ECS’ compliance with the applicable zoning provisions precludes a court from enjoining its activities. The equitable power of the judiciary exists independent of statute. Although zoning and criminal provisions are binding with respect to the type of activity, they do not limit the power of a court acting in equity to enjoin an unreasonable, albeit permitted, activity as a public nuisance.

The determination of the type of business to be permitted in a particular neighborhood, therefore, may be left to administrative agencies or legislative bodies. However, the judgment concerning the manner in which that business is carried out is within the province of the judiciary. Zoning provisions may permit one's neighbor to operate a business. This does not give him license to use one's yard, nor permit his customers to do so. …

CRIMINAL VIOLATION. Occasionally we have indicated that conduct which violates a specific criminal statute is an element of public nuisance for civil tort claims. [However, we have not decided] whether a tort claim for public nuisance exists independent of statute. ECS argued that there is no criminal violation and that a tort claim for nuisance must be based on such a violation. The trial court did find that the consequences of ECS’ activities fit within A.R.S. §13-2917, which defines a criminal nuisance as an interference with the “comfortable enjoyment of life or property.” We need not reach this issue nor need we rule on the constitutionality of the statute. We do not find it fatal that the plaintiff failed to allege a statutory violation. The statute in question adds little to APNA's claim. It does not proscribe specific conduct nor define what conduct constitutes a public nuisance, but only declares, in effect, that a public nuisance is a crime. We are squarely faced, therefore, with the issue of whether a public nuisance may be found in the absence of a statute making specific conduct a crime.

In MacDonald v. Perry, [255 P. 494 (Ariz. 1927)], we indicated that the inquiry in a nuisance claim is not whether the activity allegedly constituting the nuisance is lawful but whether it is reasonable under the circumstances. The Restatement states that a criminal violation is only one factor among others to be used in determining reasonableness. That section reads:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

Restatement, supra, §821B. Comment d to that section explains:

It has been stated with some frequency that a public nuisance is always a criminal offense. This statement is susceptible of two interpretations. The first is that in order to be treated as a public nuisance, conduct must have been already proscribed by the state as criminal. This is too restrictive.... [T]here is clear recognition that a defendant need not be subject to criminal responsibility.

Our earlier decisions indicate that a business which is lawful may nevertheless be a public nuisance. For example, in Spur Industries, we enjoined the defendant's lawful business. We explained that “Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard of the courts for the rights and interests of the public.” This rule is widely accepted. We hold, therefore, that conduct which unreasonably and significantly interferes with the public health, safety, peace, comfort or convenience is a public nuisance within the concept of tort law, even if that conduct is not specifically prohibited by the criminal law. …

CONCLUSION. The trial court’s order granting the preliminary injunction is affirmed. By affirming the trial court's preliminary orders, we do not require that he close the center permanently. It is of course, within the equitable discretion of the trial court to fashion a less severe remedy, if possible. The opinion of the court of appeals is vacated. The case is remanded for further proceedings.

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Discussion Questions

68. What test do the Arizona cases appear to use to determine whether a nuisance has been committed?

69. What test or tests do the Arizona cases use to determine whether a nuisance is “public”? Why did the facts in Spur meet the test(s)? Why did the facts in Armory Park?

70. According to Armory Park, what must private plaintiffs show to have standing to bring a public nuisance action? How did Webb Industries meet that standard in Spur? Why is there a special standing requirement for these cases? The Association in Armory Park owns no property at all. Why does it have standing to sue?

71. Armory Park holds the church liable for the acts of third parties. Is this a good idea? Of the cases cited in support of this proposition, which most strongly supports derivative liability? Which is the weakest?

72. What arguments can you make in support of the trial court’s finding the gravity of the harm at issue in Armory Park outweighed the utility of the church’s conduct? What arguments can you make that the trial court was wrong on this point?

73. Why isn’t it a defense to a public nuisance claim that a defendant’s activities complied with local zoning ordinances? Shouldn’t landowners be able to rely on zoning to tell them what they can and cannot do with their land?

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REVIEW PROBLEMS: NUISANCE

(3A) The state of Conflict uses the First Restatement's test to resolve both public and private nuisances. Discuss whether the state could obtain an injunction under a public nuisance theory in the following scenario: Rincón, Inc. makes contact lenses under a special patented process that makes them both cheaper and more comfortable to wear than conventional lenses. However the process emits into the air small quantities of Silichlor IV, an odorless chemical to which about 2% of the population is highly allergic.

(3B) Discuss whether, in the following scenario, Scott could successfully bring a private nuisance suit in a jurisdiction that follows the Second Restatement approach: Mary Melody, the famous movie star, after being acquitted of murdering her third husband, purchased a big house in a wealthy suburban community far from the lights of Hollywood. Because she has been busy filming a TV movie about herself, she has spent little time at the house. When she does use the house, she makes almost no noise and has few guests. However, on occasion, journalists hear a rumor that she is about to appear and many reporters and camera crews congregate in the neighborhood for a couple of days, sometimes trespassing on neighbors’ lawns in search of a good camera angle. For many years, Scott has lived next door to the house Mary purchased. Since she moved in, he has been trying to sell his house without success. Potential buyers have expressed dismay at the idea of living next to a possible murderer and at the presence of the media.

(3C) Discuss what remedies for nuisance, if any, Vera City residents would have under the Second Restatement in the following scenario: Dolls-R-Us manufactures its lucrative (sales of $34 million per year) Brussels Sprout doll line in a factory on the outskirts of Vera City. The manufacturing process needed to give the Sprout dolls their widely-advertised "feels-like-a-baby's-skin" texture releases a chemical into the air that causes cancer in rats. When this information becomes public, Vera City property values drop.

(3D) Discuss whether, in the following scenario, Ambrose and his neighbors could enjoin the opening of the treatment center under a private nuisance theory in a jurisdiction that follows the First Restatement: Sam purchased a 5-bedroom house in a well-to-do residential neighborhood to set up a live-in treatment center for people recovering from drug addictions, a use allowed by the local zoning. Although the center hasn’t officially opened, negative publicity about it has reduced by 15% the value of the four closest neighboring lots (one of which is owned by Ambrose).

(3E) Discuss whether, under a private nuisance theory in a state that follows the First Restatement, Chris would be liable to the neighbors he is waking up, given the following scenario: Chris is a stockbroker who lives in the western United States. He was in a terrible car accident and was left paralyzed from the waist down. After extensive rehabilitation, he moved back into his house and returned to his old job. He bought a used van with a motorized lift designed for a person in a wheelchair, so he can drive himself to work. The lift takes about six minutes to raise Chris into the van and is very noisy while operating. Because Chris has to be at work at 4:45 a.m. to be ready when the stock exchanges open on the east coast, he needs to leave the house at 3:55 a.m. The noise of the van regularly wakes neighbors in seven nearby houses. A new van with a much quieter lift mechanism would cost $85,000, which would not be covered by any insurance.

(3F) Discuss whether, in the following scenario, Mike could succeed in a private nuisance suit against Alissa in a jurisdiction following the First Restatement. Alissa and Mike own houses on adjoining lots in a residential suburban neighborhood. They both spend a lot of time gardening. Alissa returned from a trip to Kenya with seeds of the camara, a beautiful little plant that, in the spring, produces large golden flowers and, in the fall, grows bright red seed pods that open on windy days, scattering the tiny seeds. Alissa planted the seeds along the side of her house facing Mike’s lot, where they grew beautifully. Many of the neighbors commented on how beautiful they looked.

For several years beginning the following spring, camara plants appeared in Mike’s lot. At first, he let them grow because they were so pretty, but then he discovered that he was mildly allergic to them (the pollen and seeds caused sneezing and eye irritation and handling the plants gave him a mild rash). After a few years, he discovered that, any place the camara plants grew, his tulips and daffodils stopped coming up. Research revealed that camara roots secreted chemicals that killed the bulbs from which plants like tulips and daffodils grow.

Mike repeatedly asked Alissa to do something to help keep the camara plants off his lot. However, she was unable to control the seeds as the seed pods were bursting. She refused to pull out the plants or to remove the seed pods before bursting, which would have left her with no viable seeds to grow camaras for the following year.

(3G) Discuss whether, in the following scenario, Matt might have a nuisance cause of action for harm he was suffering from the fair in general and from the rock concerts in particular.

Starting in 1885, Sonderling County held a fair every summer on the county fairgrounds. By the 1980s, the fair was clearly failing: traditional exhibits did not attract teenagers or young adults and the County was losing more money on the fair each year. In 1984, the County hired Leigh, a successful promoter, to run the fair. She immediately reinvigorated the fair, which became a huge success and grew steadily. By 1999, the fair was a major event for both local folks and tourists, lasting from mid-June to mid-August every year. Although the fair brought a lot of money into the local economy, residents living nearby began to complain about increasing amounts of noise, trash, traffic and trespassing. Leigh increased her security and cleaning staff and worked with the County to ease parking and traffic concerns, but the problems continued.

In October 2005, Matt bought a house on a two-acre lot just to the east of the fairgrounds. In the summer of 2006, Matt first experienced life adjacent to the Sonderling County Fair, which produced an unpleasant amount of noise and occasional trespassers and litterers. Other folks living near the fairgrounds told him that “it gets worse every year.” And the following summer it did!!

At the 2007 fair, for the first time, Leigh brought in well-known rock bands and had them perform after the main fair events had ended for the day. These concerts were supposed to run from 8:30 to 10:00 pm but they rarely started on time and sometimes lasted until nearly midnight. To stage these concerts, Leigh had built a special band shell very close to Matt’s lot, so he was particularly affected by the noise and by the trespassing littering teenagers who attended the concerts and often tried to further their sexual development in Matt’s yard afterward.

After a few days, Matt complained to Leigh, but she wasn’t interested in changing anything because she was charging separate admissions for the concerts and they brought in a lot of money.

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