California Civil Jury Instructions (CACI)

2021. Private Nuisance—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] interfered with [name of plaintiff]’s use and enjoyment of [his/her] land. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [owned/leased/occupied/controlled] the property;

2. That [name of defendant], by acting or failing to act, created a condition or permitted a condition to exist that [insert one or more of the following:]

[was harmful to health;] [or]

[was indecent or offensive to the senses;] [or]

[was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property;] [or]

[unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;]

3. That this condition interfered with [name of plaintiff]’s use or enjoyment of [his/her] land;

4. That [name of plaintiff] did not consent to [name of defendant]’s conduct;

5. That an ordinary person would be reasonably annoyed or disturbed by [name of defendant]’s conduct;

6. That [name of plaintiff] was harmed;

7. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm; and

8. That the seriousness of the harm outweighs the public benefit of [name of defendant]’s conduct.

New September 2003; Revised February 2007, December 2011

Directions for Use

For instruction on control of property, see CACI No. 1002, Extent of Control Over Premises Area, in the Premises Liability series.

Sources and Authority

  • Civil Code section 3479 provides: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
  • Civil Code section 3482 provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”
  • “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by decisions of this court… ‘ “A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury.” ’ ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142 Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
  • “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal.Rptr.2d 724, 920 P.2d 669].)
  • “[T]he essence of a private nuisance is its interference with the use and enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, or the noise and vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534 [90 Cal.Rptr.2d 491], internal citations omitted.)
  • “Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041 [29 Cal.Rptr.2d 664], internal citation omitted.)
  • “Examples of interferences with the use and enjoyment of land actionable under a private nuisance theory are legion. ‘So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.’ ” (Koll-Irvine Center Property Owners Assn., supra, 24 Cal.App.4th at p. 1041, internal citation omitted.)
  • “The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ The Restatement recognizes the same requirement as the need for proof of ‘significant harm,’ which it variously defines as ‘harm of importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ and an invasion that is ‘definitely offensive, seriously annoying or intolerable.’ The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? ‘If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular plaintiff may make it unendurable to him.’ This is, of course, a question of fact that turns on the circumstances of each case.” (San Diego Gas & Electric Co., supra, 13 Cal.4th at p. 938, internal citations omitted.)
  • “The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable’, i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account. Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’ And again this is a question of fact: ‘Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case.’ ” (San Diego Gas & Electric Co., supra, 13 Cal.4th at pp. 938—939, internal citations omitted.)
  • Appellant first argues that the judgment is erroneous because there is no showing that any act or conduct of his caused the damage. It is true that there is neither showing nor finding of any negligent or wrongful act or omission of defendant proximately causing the falling of the trees. But no such showing is required. If the trees remained upright, with some of their branches extending over or upon plaintiff’s land, they clearly would constitute a nuisance, which defendant could be required to abate.” (Mattos v. Mattos (1958) 162 Cal.App.2d 41, 42 [328 P.2d 269].)
  • “The fact that the defendants’ alleged misconduct consists of omission rather than affirmative actions does not preclude nuisance liability.” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552 [87 Cal.Rptr.3d 602], internal citations omitted.)
  • “A nuisance may be either a negligent or an intentional tort.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal citation omitted.)/li>
  • Restatement Second of Torts, section 822 provides:

    One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

    (a) intentional and unreasonable, or

    (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

  • Restatement Second of Torts, section 826 provides:

    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.

  • Restatement Second of Torts, section 827 provides:

    In determining the gravity of the harm from an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:

    (a) the extent of the harm involved;

    (b) the character of the harm involved;

    (c) the social value that the law attaches to the type of use or enjoyment invaded;

    (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and

    (e) the burden on the person harmed of avoiding the harm.

  • Restatement Second of Torts, section 828 provides:

    In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:

    (a) the social value that the law attaches to the primary purpose of the conduct;

    (b) the suitability of the conduct to the character of the locality; and

    (c) the impracticability of preventing or avoiding the invasion.

Secondary Sources

13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 153

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01—17.05 (Matthew Bender)

34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13 (Matthew Bender)

16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew Bender)

California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters West)