Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
nuisance question: does the defendant’s infringement on the plaintiff’s property interest constitute
an actionable infringement?
In the law of private nuisance,
one is subject to liability for a private nuisance if his conduct is a legal cause of the
invasion of the interest in the private use and enjoyment of land and such invasion
is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under
the rules governing liability for abnormally dangerous conditions or activities.
Copart Industries, Inc. v. Consolidated Edison Co., 362 N.E.2d 968, 971 (N.Y. 1977). The view
of the Second Restatement is essentially identical. See RESTATEMENT (SECOND) OF TORTS § 822.
When is an invasion of private use and enjoyment of land unreasonable? The Restatement
takes the position that an intentional invasion of another’s interest in 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.” RESTATEMENT (SECOND) OF TORTS
§ 826.
What part of this definition of private nuisance, if any, amounts to liability without fault?
Ensign v. Walls, 34 N.W.2d 549 (Mich. 1948)
CARR, J.
Defendant herein has for some years past carried on at 13949 Dacosta Street, in the city of
Detroit, the business of raising, breeding and boarding St. Bernard dogs. Plaintiffs are property
owners and residents in the immediate neighborhood. Claiming that the business conducted by
defendant constituted a nuisance as to them and their property, plaintiffs brought suit for
injunctive relief. The bill of complaint alleged that obnoxious odors came from defendant’s
premises at all times, that the continual barking of the dogs interfered with and disturbed plaintiffs
in the use and enjoyment of their respective properties, that the premises were infested with rats
and flies, and that on occasions dogs escaped from defendant’s premises and roamed about the
neighborhood. Defendant in her answer denied that her business was conducted in such a manner
as to constitute a nuisance, and claimed further that she had carried on the business at the premises
in question since 1926, that she had invested a considerable sum of money in the purchase of the
property and in the subsequent erection of buildings thereon, and that under the circumstances
plaintiffs were not entitled to the relief sought.
On the trial of the case testimony was offered on behalf of the parties tending to
substantiate their respective claims as set forth in the pleadings. . . . The trial judge inspected the
premises of the defendant, and it appears from the record that his observations confirmed, in many
respects at least, the proofs offered by plaintiffs with reference to the existing conditions. Decree
was entered enjoining the carrying on of the business at the location in question after the
expiration of 90 days from the entry of the decree, and requiring defendant to abate, within the
period of time stated, the nuisance found to exist. . . .
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