May. & City of Baltimore v. AbelMay. & City of Baltimore v. Abel
Under Maryland common law, liability for private nuisance is established by considering not only the significance of the invasion of the plaintiff’s reasonable use and enjoyment of his or her land but also the reasonableness of the defendant’s conduct or use of his or her property that causes the invasion. When considering the reasonableness of the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law requires that the defendant engage in wrongful conduct. A private nuisance claim may arise from more than one type of conduct. For example, it may arise from conduct that is negligent, reckless, or abnormally dangerous. Where a defendant’s conduct is not otherwise negligent, reckless, or abnormally dangerous, the conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto plaintiff’s use and enjoyment of his or her property. Once it is established that a defendant’s wrongful conduct is creating a private nuisance by causing a significant and unreasonable interference with a plaintiff’s use and enjoyment of plaintiff’s land, the defendant is strictly liable for damages resulting therefrom.
In this case, viewing the evidence in the light most favorable to the plaintiffs, the Supreme Court of Maryland determined that the plaintiffs failed to present legally sufficient evidence to generate a jury question on the issue of whether the invasion of their use and enjoyment of land was caused by wrongful conduct of the City of Baltimore.
Case No.: 24-C-22-005128
Argued: February 5, 2026
Opinion by Booth, J.
Watts and Killough, J.J., dissent.
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2026.07.29 ‘00‘04- 10:49:01
Gregory Hilton, Clerk
This Court granted certiorari to determine the following questions, which we have rephrased:
- Whether the Appellate Court erred when it held that, for purposes of establishing private nuisance liability, the reasonableness of the defendant‘s use of land is determined solely by the significance of the interference with the plaintiffs’ right to use plaintiffs’ land.
- Whether the Appellate Court erred when it held that, for purposes of establishing private nuisance liability, the requirement of continuousness or recurrence of the intrusion was met.
- Whether the Appellate Court erred when it held that the evidence presented was sufficient to support private nuisance liability against the City for a single one-day sewer backup in the Abels’ basement in 2019.
For the reasons set forth more fully herein, we reverse the judgment of the Appellate Court.
Procedural History
In March 2024, the Abels presented the following evidence in connection with their negligence and private nuisance claims concerning the 2019 sewer backup in their basement.1
A. Testimony at Trial
Ms. Abel testified that she and her husband had been renting their home at 2011 Griffis Avenue in Baltimore City since 2010. In the nine years they lived there, before the backup in 2019, Ms. Abel testified that she never had “any issues with sewage backups[.]” The Abels’ next-door neighbor also testified that she never had any sewer backups in her house.
The Abels’ December 28 Backup
Early in the day on December 28, 2019, Ms. Abel noticed “some water trickling out from underneath the base of the toilet” in the basement, a problem she had never had before. The water was light brown in color and smelled bad. The Abels put towels down to contain the water and called a plumber. The plumber came out but did not fix the issue, and the Abels left for the day, hoping the issue would resolve on its own. When they returned to their home at approximately 9:00 p.m., the water had spread further, the odor was like “the
Ms. Abel testified that, at some point after 9:00 p.m. on December 28, 2019, they called the City‘s 311 “nonemergency service number” to report their backup and were told that the City‘s responders “were busy” responding to other calls but that someone would be out to address the issue within 24 hours of the call. The City‘s corporate designee confirmed that when 311 receives reports of sewage backups, those reports become service requests that are “put into a queue” so that the City‘s cleaning truck crews can respond to those calls in order.
When the Abels woke up the next morning on December 29, the sewage water had spread further out on the basement floor. At 10:00 a.m., the Abels again called the City‘s 311 nonemergency service number. Ms. Abel further testified that, at some point after noon, they called the City‘s 311 nonemergency service number a third time, but this time asked to speak with a supervisor. Their discussion led the City‘s supervisor to escalate their case‘s priority. The City‘s crew arrived with a sewer cleaning truck by 2:30 p.m., roughly 17 hours after the Abels’ first call to the City‘s 311 nonemergency service number. The water stopped backing up into the Abels’ basement roughly 15 minutes after the City‘s truck arrived at their home.
After the Abels’ landlord paid for a remediation company to clean their basement, an offensive odor remained for “about a week,” according to Ms. Abel, or “at least a
Ms. Abel testified that the fair market value of their home was $75,000 when they bought it in 2021, though they paid $45,000 for it. She also testified that in her neighborhood, the rental value of a one-bedroom basement unit similar to theirs was $600 per month.
Upstream Backup on December 23
On December 23, 2019—five days before the backup into the Abels’ home—one of the Abels’ upstream neighbors experienced a sewer backup. The Abels’ expert witness testified that the City had cleared this blockage “and cleaned 300 feet of the sewers” on that date. He also testified that “[t]he standard in the industry is to clean the areas of the sewer that were affected by the blockage[,]” and that after that earlier blockage, “[t]he condition of the sewer was such that the blockage had been removed.” The Abels’ expert tried to testify that it was his opinion that the City had failed to properly clean the sewer, but the court sustained an objection and granted a motion to strike for lack of any factual basis for that opinion. He was then allowed to testify that, in his opinion, the City should have cleaned further upstream in the sewer than it did on December 23, 2019, and that the failure to do so allowed the rags, grease, and debris upstream in the sewer to form the blockage that caused the backup in the Abels’ basement five days later on December 28, 2019.
At the close of the Abels’ case, the City moved for judgment as a matter of law on both the negligence claim and the nuisance claim, arguing that the City had no notice of the backup, that the Abels’ expert‘s testimony invited speculation, and that liability for private nuisance requires some sort of continuation. The circuit court denied the motions as to both claims, reasoning that the jury could find that the upstream backup that occurred five days prior to the Abels’ backup constituted constructive notice, and the jury could find, based on the expert testimony, that the City‘s work performed five days prior could have caused the Abels’ backup. At the close of evidence, the City renewed its motions, and the court denied them again.3
C. The Verdict
The jury found that the City was not liable for negligence but was liable for nuisance, awarding the Abels a judgment in the amount of $18,240.00 on the nuisance claim. The City noted a timely appeal.
On appeal, the City argued that the evidence presented at trial was legally insufficient to establish private nuisance liability since there was no evidence that an unreasonable use of land or wrongful act by the City caused the backup, and there was no evidence that the backup was a continuous or recurring infringement on the Abels’ use of their property. Mayor & City Council of Balt. v. Abel, No. 372, 2025 WL 829733, at *1, *2 (Md. App. Ct. Mar. 17, 2025). The Appellate Court disagreed with the City and affirmed the judgment of the circuit court. Id. at *1.
After agreeing with the City that “liability [could not] be based on the mere use of land for a sewer system[,]” the Appellate Court characterized the question before it as “whether the condition created was either continuous or a recurring infringement on the Abels’ enjoyment of their property.” Id. at *3. The court stated that a finding of nuisance “does not turn on a showing of a failure to act reasonably or reckless, intentional, or abnormally dangerous conduct.” Id. Rather, the court determined, “[w]hether an interference is unreasonable is determined by the injury caused by the condition and not by the conduct of the party creating the condition.” Id. Applying these principles, the court determined that there was “evidence from which the jury could infer that the act of clearing
In response to the City‘s assertion that a private nuisance cannot be established by a singular occurrence that does not involve wrongful conduct, the Appellate Court rejected the City‘s characterization of the act as constituting a single occurrence. Id. at *5. Instead, the court stated that, based upon its review of the evidence, “the backup was both ongoing,” and “interfered with the Abels’ reasonable use and enjoyment of their home,” and therefore, “a jury could reasonably find that the interference was continuous or repetitive, substantial, and offensive or inconvenient to the normal person.” Id. (citation modified). On this basis, the Appellate Court found that the evidence was legally sufficient to create a question for the jury, and that the circuit court therefore properly denied the City‘s motion for judgment. Id.
Parties’ Contentions
The City asserts that the circuit court erred in denying its motion for judgment because the evidence presented at trial was legally insufficient to establish a private nuisance. Specifically, the City contends that (1) there was no evidence that an unreasonable use of land or wrongful act by the City caused the backup, and (2) there was no evidence that the backup was a continuous or recurring infringement on the Abels’ use of their property. The City argues that, under Maryland common law, the tort of private nuisance requires not only that the plaintiffs suffer an unreasonable interference with their right to utilize their land, but also that the defendant‘s use of his or her land involve wrongful conduct—conduct that is either intentional and unreasonable or otherwise legally
The City argues that in affirming the circuit court‘s denial of the City‘s motion, the Appellate Court applied an incorrect legal standard for determining whether a defendant is liable for private nuisance when it stated that private nuisance liability is determined by “the injury caused by the condition and not by the conduct of the party creating the condition.” Abel, 2025 WL 82733, at *3. According to the City, Maryland case law requires either wrongful conduct by the defendant in order for the defendant to be liable for private nuisance, or an unreasonable use of land which arises when the defendant‘s conduct creates a continuous or recurring intrusion onto the plaintiff‘s use and enjoyment of the plaintiff‘s property.4
According to the Abels, the question of whether the City‘s conduct was “continuous or recurring” was also appropriately submitted to the jury. The Abels argue that the jury could have considered not only the 2019 backup but also the backup that occurred two years later to find the requisite “recurrence” or “continuance” necessary to maintain an action for private nuisance. The Abels also contend that in Exxon Mobil Corporation v. Albright, 433 Md. 303 (2013), this Court upheld a finding of a private nuisance involving a single act of misconduct. In any event, the Abels argue, the Appellate Court appropriately held that there was sufficient evidence for a jury to find that the backup was continuous or repetitive.
Standard of Review
We conduct a de novo review of a trial court‘s decision regarding a motion for judgment. Webb v. Giant of Md., LLC, 477 Md. 121, 137 (2021). In effectuating that review,
Discussion
We recently discussed the differences under Maryland common law between a public nuisance, which is a public action, and a private nuisance, which is a tort. Express Scripts, Inc. v. Anne Arundel County, 493 Md. 329, 366 (2026). In that case, in connection with a certified question related to whether a local government could bring a tort action for public nuisance against certain companies for the licensed dispensing of and administration of benefits plans for opioid drugs, we were asked to determine whether Maryland recognized a common law tort of public nuisance based upon the definition contained in
Although on occasion our cases discuss public and private nuisance together, they are distinct actions, and we have consistently followed the common law principles that define each action. Id. at 393–94. A public nuisance is “an injury to the public at large or to all persons who come into contact with it, whereas a private nuisance is an injury to an individual or a limited number of individuals only.” Id. at 370 (quoting Adams v. Comm‘rs of Trappe, 204 Md. 165, 170 (1954)) (citation modified).5 Public nuisance was historically punishable as a crime, id. at 361–62, 394, and Maryland has not expanded the public nuisance doctrine beyond the traditional historical principles embodied in the common law—namely, that a public nuisance action was not regarded as a tort but was instead a public action by a government entity to pursue criminal prosecutions or seek injunctive relief to abate harmful conduct, id. at 334, 395–97, 413.
“By contrast, private nuisance is a tort involving a nontrespassory invasion of another‘s interest in the private use and enjoyment of land.” Id. at 394 (citing Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 (1994)). “A plaintiff in a private nuisance action may be entitled to injunctive relief or damages if the plaintiff establishes that he or she has suffered an injury that is different in kind from that suffered by members of the public.”
In answering the certified question related to the public nuisance doctrine, we explained that we did “not need to discuss the specific elements necessary to establish a private nuisance.” Id. at 376. For purposes of that case, we determined that it was “sufficient to note that a finding of [private] nuisance requires evidence of an unreasonable and substantial interference with a plaintiff‘s use and enjoyment of his or her property.” Id. (citing Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 377 (1975); Hamilton Corp. v. Julian, 130 Md. 597, 599 (1917)). We further explained that “[t]he alleged injury to the use and enjoyment of property must be of such a nature as to diminish materially the value of the property and to seriously interfere with the ordinary comfort and enjoyment of it.” Id. (citing Carr‘s Beach Amusement Co. v. Annapolis Rds. Prop. Owners’ Ass‘n, 222 Md. 392 (1960); Meadowbrook Swimming Club v. Albert, 173 Md. 641 (1938); Adams v. Michael, 38 Md. 123 (1873)).
In this case, the parties ask us to determine whether the tort of private nuisance is established under Maryland law by proving that any conduct on the defendant‘s land causes an unreasonable and substantial interference with the plaintiff‘s use and enjoyment of his or her property, or whether the interference must arise from wrongful conduct.
A. Maryland‘s Common Law of Private Nuisance
Maryland‘s private nuisance law encompasses a wide swath of conduct for which we have determined that a defendant is liable when such conduct causes a significant, unreasonable invasion of a plaintiff‘s reasonable use and enjoyment of land. The invasions
1. Cases Involving Otherwise Tortious Conduct
Our private nuisance jurisprudence includes a handful of cases in which the harm to the plaintiff‘s use and enjoyment of his or her property was caused by the defendant‘s negligent conduct. In other words, the defendant was liable for causing a substantial intrusion onto the plaintiff‘s use and enjoyment of property because the defendant breached an existing legal duty.
In Short v. Baltimore City Passenger Railway Company, 50 Md. 73 (1878), this Court described these principles in a private nuisance case in which a railway company cleared its tracks after a heavy snow. Instead of placing the snow in the street, the railroad company dumped the snow into the gutter, thereby obstructing the natural flow of water from the street and causing an adjacent property owner‘s home to flood after the snowfall turned to heavy rains. Id. at 80. This Court affirmed the damages award in favor of the property owner. Id. at 84. We explained that, although the railroad company had the right to remove the snow from its tracks in connection with its business operation and to place the snow in the street, it had no right to throw the snow in the gutter and cause the obstruction of the natural flow of water from the street, which would have been an act of negligence. Id. at 83–84. This Court explained that the railroad company was “obliged to
In Exxon Mobil Corporation v. Albright, 433 Md. 303 (2013), this Court examined the plaintiffs’ various tort claims, including a claim for private nuisance, arising from a series of negligent acts involving an underground gasoline tank that caused significant water contamination to nearby property owners’ wells. We summarized the defendant‘s various negligent acts that led to the contamination. Id. at 317–21. First, Exxon failed to follow safety measures during construction. Id. at 318. After the station was in operation, during maintenance work, an Exxon contractor negligently drilled a hole into a gas line. Id. at 319. After a leak detection system set off an alarm, the contractors who were sent to investigate incorrectly concluded that no leak existed, and incorrectly recalibrated the leak detection system such that the alarm system could no longer detect the actual leak when the fuel system was reactivated. Id. at 319–20. As a result of this confluence of events, the leak continued, uninterrupted, without activating the alarm system. Id. at 320. One month later, the leak was discovered after an employee noticed inventory discrepancies. Id. By then, over 26,000 gallons of gasoline had been released into the underground environment and entered potable wells located on nearby properties. Id. We affirmed the
2. Cases Involving Continuous or Recurring Intrusions
Many of our private nuisance cases involve a defendant‘s legitimate business activity where the defendant is engaging in conduct that is causing a continuous or recurring intrusion upon an adjoining or nearby property that causes an injury shown to be of such a character as to diminish materially the value of the property, seriously interfering with the ordinary comfort and enjoyment of it. In such cases, we have held that “where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his [or her] property a wrong is done to a neighboring owner for which an action lies[.]” Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645 (1938). Moreover, “it makes no difference that the business [is] lawful and one useful to the public and conducted in the most approved method.” Id.; see also Bishop Processing Co. v. Davis, 213 Md. 465, 474 (1957); Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276 (1890). “Virtually any disturbance of the enjoyment of the property may amount to a nuisance so long as the interference is substantial and unreasonable and such would be offensive or inconvenient to the normal person.” Wash. Suburban Sanitary Comm‘n v. CAE-Link Corp., 330 Md. 115, 125 (1993) (citing Gorman v. Sabo, 210 Md. 155, 159 (1956) (quoting William L. Prosser, The Law of Torts 406–07 (2d. ed. 1955))).
The cases in which we have affirmed a finding of private nuisance based upon non-negligent conduct involve continuous or recurring conduct. See, e.g., Corbi v. Hendrickson, 268 Md. 459, 468–69 (1973) (affirming injunction of certain conduct related to a nightclub operation causing excessive noise to nearby residential properties); Bishop Processing Co., 213 Md. at 476 (affirming a judicial decree requiring an animal processing plant to implement additional measures to reduce nauseating odors affecting many nearby properties); Fox v. Ewers, 195 Md. 650, 662 (1950) (affirming injunctive relief in connection with defendant‘s parking and storing trucks containing asphalt, which created a nauseating odor and were started at early morning hours thereby creating loud noises); Meadowbrook Swimming Club, 173 Md. at 644 (affirming injunction where certain conduct related to an amusement venue‘s outdoor dancing and bands was causing excessively loud noise); Washington Cleaners & Dyers, Inc. v. Albrecht, 157 Md. 389, 401 (1929) (affirming an injunction requiring a fabric cleaning and dyeing factory to alter its business practices to prevent the intrusion of smoke and gasoline vapors onto surrounding properties); Susquehanna Fertilizer Co., 73 Md. at 282–83 (affirming a damages award in favor of the owner of five dwelling houses against owner of a fertilizer factory whose business created daily noxious fumes that discolored clothing hung out to dry, grimed up windows, and corroded tin on houses); Woodyear v. Schaefer, 57 Md. 1, 13 (1881) (remanding the case for the issuance of an injunction where a slaughterhouse was continuously emptying blood and animal waste into a stream that created an unbearable
A survey of our case law reveals that, in cases in which this Court has upheld a determination of private nuisance that did not otherwise involve negligent conduct, they all involved a continuous or recurrent invasion. None of the cases involved a single invasion. Our observation here is consistent with the same observation that we made in Wynkoop v. City of Hagerstown, 159 Md. 194, 202 (1930): “A nuisance necessarily involves the idea of continuance[.]”
a. Cases Involving Intrusion of Surface Waters
Another category of private nuisance is “surface water” cases—cases involving claims for damages or injunctive relief arising from an increase in surface flow of water on a plaintiff‘s property because of activities undertaken on a defendant‘s property. These cases arise from a rule of civil law that governs the flow of surface water, which this Court first applied in Philadelphia, Wilmington & Baltimore Railroad Company v. Davis, 68 Md. 281 (1888). Under Maryland‘s surface water rule, the owners of land are entitled to have surface waters flow naturally over the land of the lower landowner, and the lower landowner cannot obstruct the running of water from the higher land onto his own. Id. at 289; see also Hancock v. Stull, 206 Md. 117, 119 (1955); Biberman v. Funkhouser, 190 Md. 424, 428–29 (1948); Whitman v. Forney, 181 Md. 652, 657 (1943). However, although the upper owner has the right to have surface waters flow naturally over the land of the lower owner, the upper owner cannot artificially increase or concentrate the natural
In Battisto, we discussed the application of these principles within the context of the articulation of private nuisance in the First Restatement of Torts and our case law. 210 Md. at 546. In that case, the plaintiffs, who owned eight lots at a lower elevation than the defendants’ property, brought a civil action alleging that the defendants “committed an actionable wrong in the nature of a private nuisance.” Id. at 545. The plaintiffs alleged that prior to the defendants’ construction activities, the defendants’ land was unimproved and covered with trees and vegetation, which naturally slowed the normal flow of
On appeal, we noted that there was no allegation of negligence, but that there seemed “to be no question that an action at law [would] lie for a substantial injury of this character,” under certain circumstances. Id. We examined the legal sufficiency of the plaintiffs’ claim by referring to the nuisance principles articulated in the First Restatement. Id. at 546. We observed that “[h]istorically, the action for nuisance is older than the action for negligence.” Id. We stated that “[t]he use of the term ‘nuisance’ has been criticized on the ground that it confuses the invasion of the property right of use and enjoyment with the conduct that is the true basis of liability.” Id. at 546 (citing William L. Prosser, The Law of Torts § 72 (2d ed. 1955) and the Restatement of Torts, Introductory Note to § 822 (1939)). We also cited to comment a of § 833 of the First Restatement, which notes that, “[w]here the invasion is not intentional, the liability of the person harmfully interfering with the flow of surface waters depends upon whether his [or her] conduct has been negligent, reckless or ultrahazardous . . . . Where, however, the invasion is intentional, liability depends upon whether the invasion is unreasonable[.]” Id.
Turning to Maryland cases, we noted that Maryland, like other states, had adopted the “reasonableness of use” rule, which “involv[ed] a balance of benefit and harm.” Id. Recognizing that in Maryland, a property owner cannot, “with impunity,” artificially
This Court‘s most recent comprehensive discussion of private nuisance—Wietzke v. Chesapeake Conference Association, 421 Md. 355 (2011)—similarly involved claims of increased surface water flow. We discuss that case below.
b. Intrusion Cases Involving Sewer Operations
Our case law is clear that an operator of a public sewer system may be liable for private nuisance where the system is operated in a manner that creates continuous and unreasonable intrusions onto a plaintiff‘s use and enjoyment of his or her land. See Taylor v. Mayor & City Council of Balt., 130 Md. 133, 148 (1917); CAE-Link, 330 Md. at 129.
In Taylor, a property owner sued the City for damages arising from the operation of the Baltimore City sewer system. 130 Md. at 134. The plaintiff‘s property, which had
A municipality has no more right to create a nuisance to the injury of another than has an individual, and hence where a sewer outlet is a private nuisance, damages are recoverable. Where a sewer is maintained by a municipal corporation so as to discharge sewerage and filth upon private property, or to emit offensive odors, creating an unsanitary and dangerous condition interfering with the safe and comfortable enjoyment of such property so as to impair its value, the municipality will be liable.
Id. at 147 (quoting § 2699 of 6 McQuillin: The Law of Municipal Corporations). The Court concluded that there was sufficient evidence to show that the City‘s operation of the
We turn to two continuous intrusion cases upon which the parties heavily rely to support their respective arguments—one in the context of a sewer sludge composting operation that produced ongoing noxious odors, Washington Suburban Sanitary Commission v. CAE-Link Corporation, 330 Md. 115 (1993), and another in the context of allegations of increased surface water flow, Wietzke v. Chesapeake Conference Association, 421 Md. 355 (2011). The Abels contend that this Court established a strict liability standard for private nuisance in CAE-Link and that the Appellate Court correctly relied upon that case in affirming the circuit court‘s judgment. Specifically, in rejecting the City‘s contention that private nuisance liability requires a finding of wrongful conduct on the part of the defendant, the Appellate Court stated that private nuisance liability is determined “by the injury caused by the condition and not by the conduct of the party creating the condition.” Abel, 2025 WL 829733 at *3 (citing CAE-Link, 330 Md. at 140–42). For its part, the City asserts that the Abels and the Appellate Court misinterpret our discussion of strict liability in the context of private nuisance liability and point out that in Wietzke, we clarified—and expressly rejected—the Abels’ and the Appellate Court‘s interpretation of CAE-Link. As we explain below, we agree with the City.
c. Cases Discussing Strict Liability in the Private Nuisance Context
In Washington Suburban Sanitary Commission v. CAE-Link Corporation, 330 Md. 115, 119 (1993), we considered, among other things, whether the operator of a sewage sludge composting facility was “strictly liable for nuisance as a result of its construction,
As part of its day-to-day operations, the Commission received shipments of sewage sludge, mixed the sludge with wood chips, divided the mixture into composting piles, and essentially let the piles ferment for 51 days. Id. at 119 n.2 (pointing to Electro-Nucleonics, Inc. v. Wash. Suburban Sanitary Comm‘n, 315 Md. 361, 378 (1989) “for a more complete description of the operation“). Although the Commission utilized a “vacuum blower” system to control the smells emitted, the sewage facility created a radius of noxious odors which could be detected on nearby properties. Electro-Nucleonics, 315 Md. at 378.
The question before us was whether negligence had to be proven in order to submit a private nuisance claim to the jury related to the ongoing fumes that permeated the surrounding properties arising from the plant‘s operation. CAE-Link, 330 Md. at 123–24. The issue was generated by the circuit court‘s grant of partial summary judgment on the affected landowner‘s nuisance claim in which the trial court ruled that the plaintiffs were required to show that the Commission had negligently operated the sewer sludge facility. Id. at 122–23.
At trial, the affected landowners failed to establish a prima facie showing of negligence, and the trial court granted the Commission‘s motion for judgment. Id. at 122.
Maryland has long adhered to the rule that proof of nuisance focuses not on the possible negligence of the defendant but on whether there has been unreasonable interference with the plaintiff‘s use and enjoyment of his or her property. To prove the existence of a nuisance, therefore, the complained of interference must cause actual physical discomfort and annoyance to those of ordinary sensibilities, tastes and habits; it must interfere seriously with the ordinary comfort and enjoyment of the property.
Id. at 126 (citations omitted).
With these nuisance concepts in mind, we started the next section of our opinion by noting that the Commission “conceded that, in Maryland, nuisance is a matter of strict liability and that liability for nuisance may arise even when there is compliance with applicable laws and regulations or where the offending instrumentality is authorized or permitted (as opposed to mandated) by state statute.” Id. (citation modified). We examined
We rejected the Commission‘s argument that a private nuisance claim could not be maintained because the sludge facility was constructed pursuant to a court order. Id. at 127–29. First, we noted that, under our case law, the creation of a private nuisance “does not necessarily presuppose negligence but may arise from an unlawful act.” Id. at 128 (quoting Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 214 (1939) (emphasis omitted)).
Second, we noted that the instant case was “more closely akin to” Taylor v. Mayor & City Council of Baltimore, 130 Md. 133 (1917). Id. at 128. We described the facts of that case in which the City erected a sewage disposal plant 1,500 feet from the plaintiff‘s property on which a hotel and a dance and a dining pavilion were located. Id. We explained that we framed the issue as being whether a municipal corporation could be “liable under the facts and circumstances” “which would amount to a nuisance if done by a private corporation, or individuals—even if done by legislative authority.” Id. (quoting Taylor, 130 Md. at 143). We cited our holding in Taylor “that the City could be held liable for nuisance even though the construction of the sewage disposal plant did not result in a taking of plaintiff‘s property and was done pursuant to State authority.” Id. at 129 (citing Taylor, 130 Md. at 142–43).
Third, we cited two United States Supreme Court cases—Baltimore & Potomac Railroad Company v. Fifth Baptist Church, 108 U.S. 317 (1883) and Richards v. Washington Terminal Company, 233 U.S. 546 (1914)—both of which rejected railroad companies’ claims of immunity from private nuisance suits arising from ongoing gases and smoke where the construction of the railroad was legislatively authorized, and in the case of Richards, the locale was established pursuant to law and not voluntarily chosen by the defendant. CAE-Link, 330 Md. at 129–30 (citing Richards, 233 U.S. at 557).
Relying on these cases, we noted that, although the district court ordered the Commission to build a sewage sludge composting facility in Montgomery County, it did not select the site, nor did it mandate how construction would proceed. Id. at 131. We stated that the Commission “created the nuisance[,]” and therefore, “[a] strict liability standard should apply.” Id. We concluded that the district court‘s consent decree did not “sanction or legalize any acts or any use of property that will create a private nuisance which will injuriously affect the property of another.” Id. at 132 (quoting Taylor, 130 Md. at 145).
In Wietzke v. Chesapeake Conference Association, 421 Md. 355, 382–83 (2011), we addressed a dispute about what we meant in CAE-Link in referring to strict liability in discussing a private nuisance claim. Specifically, the plaintiffs in Wietzke argued that CAE-Link established a strict liability standard for a private nuisance claim in the sense that a trier of fact must consider only the harm caused to the plaintiff and not the offending landowner‘s conduct.
In that case, the plaintiffs brought a suit with claims of negligence, private nuisance, and trespass against an adjoining landowner, alleging that the landowner‘s construction of a new parking lot in connection with its church caused an increase in surface water over the plaintiff‘s property, resulting in “repeated and continued flooding.” Id. at 358 (citation
The plaintiffs testified that they had experienced three major flooding events in their basement, which coincided with the period in which the church had received violation notices. Id. at 363. The plaintiffs also testified that they had experienced between 40 and 50 additional minor flooding events in their basement during the same time period. Id. at 363–64. Due to the flooding, the plaintiffs testified that they had ceased using their basement entirely. Id. at 364. The plaintiffs did not produce any expert testimony. Id. In addition to the plaintiffs’ testimony, two neighbors gave testimony that, based on their perception, water appeared to flow toward the plaintiffs’ property from the church‘s property, and one of the neighbors presented video footage of a significant flooding event of the plaintiffs’ house, which they asserted came from the church property. Id. The plaintiffs also called the church‘s contractor, who oversaw the construction. Id. The contractor admitted that the construction project increased the runoff from the church‘s property and stated that the church constructed a stormwater pond to control it. Id. The church‘s contractor also acknowledged that the church had considered whether it would
At the close of the plaintiffs’ case, the circuit court granted the church‘s motion for judgment on the negligence claim. Id. The church presented “a case rife with expert testimony.” Id. at 365. This testimony included the county inspector, who issued the notices and, testifying as a stormwater expert, opined that the violations would not have increased the surface flow from the church‘s property onto the plaintiffs’ property. Id. at 365–66. The church‘s experts also testified that (1) the construction of the new parking lot did not cause water to flow where it was not previously flowing, and (2) the surface water flowing onto the plaintiffs’ property most likely originated from multiple sources, but that it was impossible to determine which properties contributed without a detailed runoff study. Id. at 366.
At the close of the defendant‘s case, the parties met with the trial judge for two days regarding their requested jury instructions. Id. The plaintiffs requested several jury instructions related to their nuisance claim, one of which would have advised the jury that the church was liable if the plaintiffs’ comfortable enjoyment of their property had been interfered with, without more. Id. The plaintiffs’ proposed jury instruction based on that understanding of strict liability read as follows:
Nuisance is a strict liability cause of action. This means that it does not matter whether or not the nuisance was the result of illegal or negligent conduct. Even if a business is lawful and conducted in the most approved method, it is still a nuisance if it interferes with the comfortable enjoyment by another of his property.
Examining our case law, we determined that the jury instruction given was a correct exposition of the law and that the trial judge did not err in denying the plaintiffs’ requested instruction based on their theory of strict liability. Id. at 381. In so concluding, we discussed our private nuisance jurisprudence. Id. at 373–81. Specifically, we noted that, in Short v. Baltimore City Passenger Railroad Company, 50 Md. 73 (1878), “we explained that the nuisance inquiry necessarily involved the balancing of conflicting property rights, and to that end, a determination of whether the offending landowner‘s use of its own
of the area in which the real property is located, and the uses being made of the other property in the area.
A person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance.
The defendants in this case have asserted that the natural flow of water in the neighborhood leads to plaintiffs’ property. You are instructed that even if the natural flow of water in the neighborhood leads to plaintiffs’ property, the defendants are liable if they created a change in that water flow which created a nuisance to the [plaintiffs].
Wietzke v. Chesapeake Conf. Ass‘n, 421 Md. 355, 368–69 (2011).
We then noted that “[i]n other late nineteenth century cases, we had occasion to flirt with discussing only the unreasonableness of the interference caused to the affected landowner‘s use and enjoyment as a basis for relief[.]” Id. We observed, however, that we “never expressly adopted a view consistent with that doctrine nor deflected one that balanced reasonable use versus unreasonable interference as adopted in Short.” Id. We pointed out that our opinion in Susquehanna Fertilizer Company v. Malone, 73 Md. 268 (1890) “embrace[d] the balance of use against interference test.” Id. at 378. Moreover, we stated that “[i]n more modern nuisance in-fact cases, we also have balanced the competing rights of landowners.” Id. We reviewed those cases at length. Id. at 378–81; see Evans v. Burruss, 401 Md. 586, 610 (2007) (characterizing the doctrine of private nuisance as one which “balance[d] the conflicting rights of landowners“); Slaird v. Klewers, 260 Md. 2, 10 (1970) (affirming a trial court‘s dismissal of a private nuisance claim and determining that the trial court had appropriately considered the reasonableness of the offending landowner‘s use and development of their land); Battisto, 210 Md. at 546 (framing our analysis by establishing that, due to the competing property interests at stake, a court in equity was obliged to balance the benefit versus the harm caused by an offending landowner‘s use of its property, leaving the question of whether the offending landowner had used his or her property reasonably to the jury).
We noted that the plaintiffs asserted that, “[i]n order to obviate our holding[]” in CAE-Link, we “substantially revised” Maryland‘s private nuisance law by prohibiting a trier of fact from considering the reasonableness of an offending landowner‘s conduct in determining whether a plaintiff established a private nuisance claim. Id. at 381–82. After discussing the facts of that case, we rejected the plaintiffs’ assertion that CAE-Link effected such a change in our private nuisance law. Id. at 382–83. We explained that, in CAE-Link, “because the creation of a nuisance resulted in strict liability, making out a prima facie case of nuisance did not require a showing that the Commission had been negligent.” Id. at 382. “In so doing,” we explained, “we did not dramatically revise our nuisance jurisprudence,” as the plaintiffs had argued, “such that the finding of a private nuisance no longer involves a balance of the competing property interests at stake.” Id. at 382–83. In other words, a private nuisance is a strict liability claim in the sense that once a nuisance is established, liability follows strictly, without the necessity of showing negligence. It is not a strict liability claim in the sense the plaintiffs had argued, meaning without an analysis of whether the defendant‘s conduct constituted an unreasonable interference.
Thus, we determined that the trial judge correctly instructed the jury on the concept of “strict liability” in the context of private nuisance claims with the following instruction:
The [church has] asserted that the natural flow of water in the neighborhood leads to [the plaintiffs‘] property. You are instructed that even if the natural flow of water in the neighborhood leads to [the plaintiffs‘] property, the [church is] liable if they created a change in that water flow which created a nuisance to the [plaintiffs].
We agree with our conclusion in Wietzke that CAE-Link did not alter our existing private nuisance jurisprudence by imposing a strict liability standard in which a trier of fact considers only the significance of the interference with the plaintiff‘s use and enjoyment of his or her property without regard to the nature of the defendant‘s conduct that causes the invasion. Within the context of CAE-Link—in which it was undisputed that the Commission‘s operation of its sewer sludge facility was causing a continuing and significant interference with nearby properties in the form of unreasonable offensive smells—this Court correctly explained that (1) a finding of negligence is not required to establish private nuisance, and that liability may arise from another type of “unlawful act,” and (2) the Commission was not immune from liability for maintaining a private nuisance simply because the facility was constructed pursuant to the district court‘s consent decree. CAE-Link, 330 Md. at 126–29. In other words, once it is established that a defendant‘s wrongful conduct is creating a private nuisance by causing a significant interference with the use and enjoyment of a plaintiff‘s land, the defendant is strictly liable for damages resulting therefrom. Put another way, once a nuisance is established, the plaintiff does not have to prove a more traditional, fault-based type of conduct, such as negligence. We
B. Maryland‘s Private Nuisance Common Law Requires Establishing Wrongful Conduct by the Defendant in the Sense that It Violates an Existing Legal Duty or Creates a Continuous and Unreasonable Intrusion
Based upon our review of our private nuisance common law, we distill the following principles.
First, our case law clearly requires that, to establish a private nuisance, a trier of fact must consider not only the significance of the invasion of the plaintiff‘s interference with the use and enjoyment of his or her property, but also the nature of the defendant‘s conduct that causes the invasion. Wietzke, 421 Md. at 377–79.
Second, to establish private nuisance, the intrusion onto the plaintiff‘s use and enjoyment of his or her property must arise from wrongful conduct. Toy, 178 Md. at 215 (“In order to constitute a nuisance at law[,] it is required that the wrongful act of the defendant, its agents or servants[,] be shown, as proof of damage, loss or inconvenience suffered is not enough to maintain an action.” (emphasis added)); CAE-Link, 330 Md. at 128 (reiterating that the creation of a private nuisance “does not necessarily presuppose negligence but may arise from an unlawful act[]” (quoting Toy, 176 Md. at 214) (emphasis omitted)).
Fourth, we are not aware of any Maryland cases in which a defendant has been held liable for a private nuisance where conduct that is not negligent, reckless, or abnormally dangerous occurs on a defendant‘s land and causes a single invasion of a plaintiff‘s use and enjoyment of his or her property. A survey of cases in which a defendant‘s conduct that is not negligent, reckless, or abnormally dangerous, and is determined to be a private nuisance, all involve an invasion that is continuous or recurring.
Fifth, we agree with our conclusion in Wietzke that CAE-Link did not alter our existing private nuisance jurisprudence by imposing a strict liability standard in which a trier of fact considers only the significance of the interference with the plaintiff‘s use and enjoyment of his or her property without regard to the nature of the defendant‘s conduct that causes the invasion. Once it is established that a defendant‘s wrongful conduct is creating a private nuisance by causing a significant interference with the use and enjoyment of a plaintiff‘s land, the defendant is strictly liable for damages resulting therefrom.
C. Taking the Evidence in the Light Most Favorable to the Plaintiffs, There Is No Evidence of Wrongful Conduct by the City To Establish Private Nuisance
Viewing the evidence in the light most favorable to the Abels, we determine that there is no evidence of wrongful conduct by the City that satisfies the requirement for liability for private nuisance. The jury found in the City‘s favor on the Abels’ negligence claims
We therefore must determine whether there was evidence that the City’s non-negligent conduct was wrongful because it caused a continuous or recurring and unreasonable invasion. The court instructed the jury that Maryland’s private nuisance law requires a continuous and unreasonable intrusion by the following portion of the jury instruction: “Nuisance connotes a continuance of the complaining conduct, and a single act not likely to be repeated will not sustain a suit in nuisance.” We determine that, taking the evidence in the light most favorable to the Abels, the evidence was insufficient as a matter of law to generate a jury question of whether there was a continuous or recurring intrusion.
It is undisputed that the blockage that caused the Abels’ backup on December 28, 2019, came from the City’s main sewer line—into which the lateral lines that serve individual properties flow. After the Abels noticed water trickling around their basement toilet, they put down towels and called a plumber. The plumber came out but did not fix the issue. The Abels left for the day, hoping the issue would resolve on its own. When they returned, at approximately 9:00 p.m., the water had spread further, the smell was like “the hippo house at the zoo,” and the basement bathtub “looked like it had mud in it” that was “maybe four, five inches” deep. It was at this time that the Abels first called the City’s nonemergency service number to alert the City about the problem. In other words, a
The Abels’ next call to the City’s 311 nonemergency number was at 10:00 a.m. the next morning. Ms. Abel placed a third call to the 311 number at some point after noon, but this time, she asked for a supervisor, and their discussion led the City’s supervisor to escalate their case’s priority. The City’s crew with a sewer cleaning truck arrived by 2:30 p.m., and the City was able to stop the water from backing up approximately 15 minutes after arriving.
Viewing the evidence in the light most favorable to the Abels, we determine that the City’s non-negligent conduct did not cause a continuous invasion of the sewage into the Abels’ basement. Ms. Abel called the City’s nonemergency number at 9:00 p.m. to report a sewer back up. By that time, four or five inches of sewage had accumulated during the day and into the evening during hours in which the Abels were not home. We further determine that a single one-day backup over the course of 17 hours9 does not constitute a “continuous and unreasonable” invasion for which the City may be held liable for private nuisance under our case law. The facts of this case are different from Taylor, 130 Md. 133, and CAE-Link, 330 Md. 115. In those cases, the defendants were operating their systems in a manner that caused ongoing and continuous invasions in the form of odors. Here, there was no continuous invasion.
Crediting the entirety of the Abels’ expert’s testimony that an upstream blockage on December 23, 2019—which “had been removed”—caused the intrusion into the Abels’ home five days later because the City should have undertaken additional cleaning to prevent future backups, there is no evidence of conduct that caused a continuous intrusion into the Abels’ home.10 Because there was insufficient evidence as a matter of law to generate a jury question as to whether there was a continuous intrusion into the Abels’ home, the circuit court erred in denying the City’s motion for judgment.
We determine that a single backup arising from a blockage in the City’s main sewer line that was not caused by any negligent act of the City does not constitute an invasion of a continuous nature under our private nuisance jurisprudence. Viewing the evidence in the
V
Conclusion
In conclusion, we hold as follows:
Under Maryland common law, liability for private nuisance is established by considering not only the significance of the invasion of the plaintiff’s reasonable use and enjoyment of his or her land but also the reasonableness of the defendant’s conduct or use of his or her property that causes the invasion. When considering the reasonableness of the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law requires that the defendant engage in wrongful conduct. A private nuisance claim may arise from more than one type of conduct. For example, it may arise from conduct that is negligent, reckless, or abnormally dangerous. Where the defendant’s conduct does not involve conduct that is not otherwise negligent, reckless, or abnormally dangerous, the defendant’s conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto a plaintiff’s use and enjoyment of his or her property. Once it is established that a defendant’s wrongful conduct is creating a private nuisance by causing a significant and unreasonable interference with the use and enjoyment of the plaintiff’s land, the defendant is strictly liable for damages resulting therefrom.
In this case, viewing the evidence in the light most favorable to the Abels, there was insufficient evidence as a matter of law that the City engaged in wrongful conduct that caused the invasion of the sewage into their basement. The jury found in favor of the City
JUDGMENT OF THE APPELLATE COURT OF MARYLAND REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR ENTRY OF JUDGMENT IN FAVOR OF PETITIONER. COSTS IN THE APPELLATE COURT OF MARYLAND AND THIS COURT TO BE PAID BY RESPONDENTS.
First, although I agree that a trier of fact must consider the significance of the invasion on the plaintiff’s use and enjoyment of the plaintiff’s property and the nature of the defendant’s conduct that causes the invasion, I disagree that “to establish private nuisance, the intrusion onto the plaintiff’s use and enjoyment of his or her property must arise from wrongful conduct.” Maj. Slip Op. at 36 (citations omitted). With this holding, the Majority improperly raises the standard of proof required in private nuisance cases. Although a private nuisance may arise from wrongful or illegal conduct, it is not required that to establish private nuisance liability a plaintiff must prove “wrongful conduct” on the part of the defendant.
On brief, the City contends that to constitute a private nuisance, a defendant’s use of land must be unreasonable or consist of a wrongful act and characterizes nuisances as resulting from intentional and negligent behavior. The City argues: “The list of Maryland cases where nuisances resulted from this kind of intentional unreasonable behavior is long[,]” and “[t]he second category of nuisances – those resulting from unintentional intrusions arising from negligent (and therefore unreasonable) use of land – is far less common, perhaps because negligent conduct is actionable on its own right.” (Citation modified). The City contends that this is the nature of conduct that, according to it, has resulted in courts concluding for purposes of private nuisance liability that a defendant’s
The City quotes from section 822 of Second Restatement and uses its provisions to make the point that a defendant’s conduct must constitute “a wrongful act or an unreasonable use of land” and that, according to the City, its conduct in this case does not satisfy that standard because it was not intentional or negligent. The City’s argument that wrongful conduct or a wrongful act is part of private nuisance law is, at bottom, a request to raise the standard of proof.
Our case law concerning private nuisance does not require that there be a wrongful act or wrongful conduct by the defendant. Rather, our case law requires that the trier of fact consider the reasonableness of the defendant’s use of the defendant’s property, not whether the defendant engaged in wrongful conduct. See, e.g., Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 381, 26 A.3d 931, 947 (2011) (“In the present surface water case, the trial judge, in accordance with our jurisprudence, properly instructed the jury that they should consider the reasonableness of the offending landowner’s use of its property, the locality of the affected landowner’s property, the surrounding circumstances, and the substantiality of the interference with the Wietzkes’ use and enjoyment of their property.”). To the extent that the Majority interprets the City’s argument to be a request that we adopt a requirement that to establish private nuisance liability a plaintiff must prove that an intrusion onto the plaintiff’s property that interferes with the use and enjoyment of
In reaching this conclusion the Majority relies primarily on a 1939 case involving a negligence action—Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 4 A.2d 757 (1939)—which it misinterprets. In Exxon Mobil Corp. v. Albright, 433 Md. 303, 412, 71 A.3d 30, 96-97 (2013), we discussed the circumstances and holding in Toy, stating:
[T]his Court considered whether a defendant could be held liable for negligence despite the absence of physical invasion of property. In Toy, the plaintiffs sought recovery for the loss of water access and use of a carp pond on their property resulting from obstruction of a navigable creek following dredging operations performed by the defendant. We noted that, because the destruction of the creek “greatly diminished in value the property of the Plaintiffs, it was the cause of a particular and special injury for which an action will lie,” despite the lack of physical invasion of property owned by the plaintiffs. Toy, 176 Md. at 207, 4 A.2d at 763. Because plaintiffs had suffered damages as a result of the obstruction of the navigable creek—specifically, they could no longer access their property via boat, nor control the level of water necessary to sustain the carp in their pond—we determined that plaintiffs alleged a sufficient injury to land in order to recover, provided that they could establish a wrongful act on the part of the defendant. Id. at 207-08, 4 A.2d at 762-63.
Although the case did not involve an action for nuisance, we stated:
If the defendant had caused the earth and debris to be cast into the channel opposite the shore of the plaintiffs, and so filled it that the plaintiffs’ limited navigable access to their shore and dam had been materially affected or destroyed so that they had sustained damages which were so special and peculiar to their property as to make them substantially different from those suffered by the public generally, the plaintiffs would have a cause of action against the defendant on the theory of the unlawful creation of a private nuisance, since its existence does not necessarily presuppose negligence but may arise from an unlawful act. It has been seen that the defendant was not negligent, so the plaintiffs could not recover, unless there was testimony legally sufficient to establish that some act of the defendant had caused the filling and blocking of the channel. There is no such testimony.
Id. at 214, 4 A.2d at 766 (emphasis added). We discussed the testimony in the case and observed that there was no evidence the defendant committed an act or omission that contributed to the injury. See id. at 215-16, 4 A.2d at 766. In that context, we stated: “In order to constitute a nuisance at law it is required that the wrongful act of the defendant, its agents or servants be shown, as proof of damage, loss or inconvenience suffered is not
Nonetheless, the Majority establishes a new standard of proof for private nuisance liability requiring “wrongful conduct” by the defendant. Maj. Slip Op. at 42. The Majority states: “When considering the reasonableness of the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law requires that the defendant engage in wrongful conduct.” Maj. Slip Op. at 42. The Majority holds: “Where the defendant’s conduct does not involve conduct that is not otherwise negligent, reckless, or abnormally dangerous, the defendant’s conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto a plaintiff’s use and enjoyment of his or her property.” Maj. Slip Op. at 42.
Because the Majority sets forth a new requirement that, to establish private nuisance liability, a plaintiff must prove that a defendant’s use of land was the result of wrongful conduct, rather than reverse the judgment of the Appellate Court and remand the case with instruction that the Circuit Court for Baltimore City enter judgment in favor of the City, the fair and impartial outcome would be to reverse the judgment of the Appellate Court and remand with instructions that the circuit court vacate its judgment and conduct further proceedings consistent with the Majority’s opinion. Whether the Majority will admit it or not, with its decision, it plainly has imposed new elements of proof for the tort of private nuisance. Where a new rule affecting civil liability is imposed by an appellate court and
Second, although it is accurate that a private nuisance claim “may arise from conduct that is negligent, reckless, or abnormally dangerous” or from conduct that creates a continuous or recurring and unreasonable intrusion on a plaintiff’s use and enjoyment of the plaintiff’s property, Maj. Slip Op. at 37, to the extent that the majority opinion can be read to require that a plaintiff has to prove negligence, recklessness, or abnormally dangerous activity, or a continuous and recurrent intrusion, such a requirement not only imposes a new standard of proof, but also a heightened one. Our case law makes clear that reasonableness of the defendant’s use of land, or lack thereof, is the key in private nuisance liability, not that a plaintiff must prove that a defendant’s conduct is wrongful, negligent, reckless, or abnormally dangerous. Conduct that is negligent, reckless, or abnormally dangerous would be deemed per se unreasonable. However, not all unreasonable conduct is negligent, reckless, or abnormally dangerous.
Just because the Majority states that it is “not aware of any Maryland cases in which a defendant has been held liable for a private nuisance where conduct that is not negligent, reckless, or abnormally dangerous occurs on a defendant’s land and causes a single invasion of a plaintiff’s use and enjoyment of his or her property[,]” Maj. Slip Op. at 38, does not mean that this is the standard of proof that a plaintiff in a private nuisance case must meet; rather, this is just an observation by the Majority about circumstances of cases
The Majority’s holding is built on the false premise that our private nuisance jurisprudence has all along required a plaintiff to demonstrate that a defendant’s interference with use and enjoyment of the plaintiff’s land was negligent, reckless, or abnormally dangerous. In Wietzke, we set forth the definition of a strict liability standard for private nuisance and reaffirmed that private nuisance is a strict liability action.
In Wietzke, 421 Md. at 358-59, 26 A.3d at 933-34, a case in which the plaintiffs filed a private nuisance claim after the construction of a parking lot purportedly caused the “repeated and continued flooding” of their home, we considered whether the plaintiffs were improperly denied jury instructions related to their nuisance claim. (Citation modified). One of the plaintiffs requested a jury instruction stating that nuisance is a strict liability
A nuisance is any unreasonable conduct which causes real, substantial, and unreasonable damage to, or interference with, another person’s ordinary use and enjoyment of his or her property.
Conduct is unreasonable if it is prohibited by law or violated regulations which were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with the other person’s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense.
In determining whether the conduct was unreasonable, you should consider whether it was the kind of conduct an ordinary person would expect might interfere with the use and enjoyment of another person’s property or cause real and substantial injury to another person’s health or comfort. You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The plaintiff’s right to be free from interference with his or her use and enjoyment should be balanced against defendant’s right to use his or her property. And the plaintiff must expect to endure some inconvenience or discomfort which results from the defendant’s reasonable use of his or her property.
In determining what reasonable amount of interference, inconvenience, or discomfort the plaintiff should be expected to tolerate you should consider the right of the defendant to use his or her property or to conduct his or her affairs in a reasonable manner. The extent of interference which would result from the defendant’s reasonable use of his or her property or conduct of his
or her affairs, the circumstances under which the interference occurred, the nature of the area in which the real property is located, and the uses being made of other property in the area. A person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance.
The defendants in this case have asserted that the natural flow of water in the neighborhood leads to plaintiff’s property. You are instructed that even if the natural flow of water in the neighborhood leads to plaintiff’s property, the defendants are liable if they created a change in that water flow which created a nuisance to the Wietzkes.
Id. at 368-69, 26 A.3d at 939-40.
We held that the jury instructions issued by the trial judge were a correct exposition of the law and that, for private nuisance claims, the jury shall consider the reasonableness of the offending landowner’s use of his or her property, the locality of the affected landowner’s property, the surrounding circumstances, and the substantiality of the interference with the plaintiffs’ use and enjoyment of their property. Id. at 381, 26 A.3d at 947. Referring to our decision in Washington Suburban Sanitary Commission v. CAE-Link Corp., 330 Md. 115, 622 A.2d 745 (1993), we stated in Wietzke that in CAE-Link Corp.,
[w]e concluded that, because the creation of a nuisance resulted in strict liability, making out a prima facie case of nuisance did not require a showing that the Commission had been negligent. In so doing, however, we did not dramatically revise our nuisance jurisprudence, as the Wietzkes’ have argued, such that the finding of a private nuisance no longer involves a balance of the competing property interests at stake.
Wietzke, 421 Md. at 382-83, 26 A.3d at 948.
To be sure, we held that we perceived little merit in the Wietzkes’ argument that the concept of strict liability was not covered in the trial judge’s instruction. See id. at 383, 26 A.3d at 948. We explained that “[s]trict liability is defined as: Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.” Id. at 383, 26 A.3d at 948. We concluded that the concept of strict liability was “articulated, correctly, in the trial judge’s instruction that ‘[a] person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance.’” Id. at 383, 26 A.3d at 948. Our holding in Wietzke did not impose a mens rea standard for public nuisance liability requiring that a defendant’s conduct be negligent or reckless or that the defendant’s conduct be wrongful.
Our holding in Wietzke reinforced the principle that has historically existed in our case law—that private nuisance is a strict liability action. As explained, in Wietzke, id. at 369, 26 A.3d at 939-40, with respect to the nature of the conduct that establishes private nuisance, we held that consistent with the definition of strict liability, “[a] person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance.” Applying that standard, the last sentence of the jury instruction that we upheld in Wietzke instructed the jury that “even if the natural flow of water in the neighborhood leads to plaintiff’s property, the defendants are liable if they created a change in that water flow which created a nuisance to the Wietzkes.” Id. at 369, 26 A.3d at 940.
The real question that the Majority is grappling with is whether establishing private nuisance liability requires proof of a continuing or recurring intrusion and, if so, what the definition of continuing and recurring should be. To answer those questions, it is not necessary to label continuing or recurring conduct as “wrongful conduct” and to do so is both misleading and confusing. A review of our case law reveals that, without requiring
Corbi v. Hendrickson, 268 Md. 459, 461, 302 A.2d 194, 195 (1973), involved the Circuit Court for Baltimore County having issued an order permanently enjoining appellants from playing loud music in a manner that “noise made by them is transmitted onto the properties of the appellees” and deprived them of the reasonable use and enjoyment of their homes. (Citation modified). In Corbi, id. at 463-64, 302 A.2d at 197, we stated:
[A]ppellants raise three contentions in hope of obtaining a reversal of either the injunction, the finding of contempt, or both. First, they posit that the chancellor erred when he admitted into evidence, allegedly without a proper foundation, a tape recording made by one of the appellees of the type of music that was annoying them. Second, appellants argue that if the recording was admissible then Lawrence Corbi should have been permitted to testify about the results of a test he made in court using a decibel meter which showed that the volume of the voice of one of the appellees on the tape was far greater than the actual volume of her voice in court. Finally appellants urge that the chancellor erred when he held appellants to be in contempt.
We held that “though not a nuisance per se . . . where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies at law or equity.” Id. at 464, 302 A.2d at 197. We affirmed the enjoining of the transmittal of loud noises and vacated
Likewise, in Bishop Processing Co. v. Davis, 213 Md. 465, 468-69, 471, 132 A.2d 445, 446, 447 (1957), we enjoined the defendant owner and operator of a processing plant from maintaining and operating the plant because the odors from the plant interfered with the plaintiffs’ lawful use and enjoyment of their properties. We noted, however, that the defendant was “unquestionably making an honest effort to improve the unfortunate situation and to dispense with the odors completely[.]” Id. at 470, 132 A.2d at 447.
In Fox v. Ewers, 195 Md. 650, 654, 662, 75 A.2d 357, 358, 362 (1950), we affirmed the trial court’s decree enjoining the defendant from storing asphalt or parking or storing trucks, tractors, and trailers on his property or operating them on the property where “such use of defendant’s property having been found to cause odors, fumes and noises to penetrate plaintiffs’ dwelling, causing serious disturbance to the peaceful enjoyment of their property and their personal welfare, and to constitute a nuisance.” We adopted the trial court’s opinion, adding a “brief comment” indicating that the “[d]efendant’s contentions as to plaintiffs’ specific complaints, e. g., noises and vibration, odors, gnats, [were] adequately dealt with in [the trial court’s] opinion.” Id. at 655, 660, 75 A.2d at 358, 361. The trial court’s opinion revealed that the plaintiffs testified about noise, odor, and gnats emanating from asphalt leakage from the defendant’s equipment. See id. at 656-57, 75 A.2d at 359. The trial court observed that “[t]here is no denial that there is some leakage
In Meadowbrook Swimming Club v. Albert, 173 Md. 641, 643-44, 197 A. 146, 147 (1938), we affirmed the trial court’s decree enjoining the continuance of a noise nuisance from an amusement place with a swimming pool, dance floor, and musicians’ stand. The neighboring residents and property owners sent complaints to the defendant, who undertook to minimize the noise. See id. at 644, 197 A. at 147. In issuing the injunction, the trial court noted that the law is clear that where a business “as carried on interferes with the reasonable and comfortable enjoyment by another of his property a wrong is done to a neighboring owner for which an action lies at law or equity.” Id. at 645, 197 A. at 148. In addressing the defendant’s contention that the injunction should not have been issued because it intended to build a roof over the dance floor to limit the transmission of sound, we stated that the defendant had failed to abate the disturbance, which had been the subject of complaints, for two years before the lawsuit and therefore “could not validly assert a right to have the restraining decree longer deferred.” Id. at 648-49, 197 A. at 149. In other words, we upheld the trial court’s determination that a nuisance existed, which was a finding that the trial court reached without requiring that the plaintiff prove that the defendant had negligently or intentionally created a nuisance, and concluded that the defendant’s assertion that it would abate the nuisance was not sufficient to preclude entry of an injunction.
In Washington Cleaners & Dyers v. Albrecht, 157 Md. 389, 396, 146 A. 233, 235-36 (1929), we affirmed the trial court’s determination that the operation of the defendant’s
In Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276, 20 A. 900, 900 (1890), we affirmed the jury’s award of damages for the plaintiff against the defendant fertilizer factory and reiterated the “settled” principle “that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie[,]” “without regard to the locality where such business is carried on[,]” whether the business is lawful and useful, or whether “the best and most approved appliances and methods may be used in the conduct and management of the business.”
In Woodyear v. Schaefer, 57 Md. 1, 5, 13 (1881), we remanded the case for issuance of an injunction where the defendant slaughterhouse was emptying blood and discharging animal waste into a stream a mile above the plaintiff’s mill, creating an offensive odor and causing the mill’s employees to become sick. We stated that slaughterhouses have been held to be prima facie nuisances and that blood running into a stream is a nuisance that will be restrained. See id. at 11. In remanding the case for issuance of an injunction, we focused on the injury suffered by the plaintiff, not on whether the defendant had knowledge or notice of the conditions creating the nuisance. See id. at 12 (“We think that the complainant has shown himself to have suffered greatly, and likely to suffer more in the
In Dittman v. Repp, 50 Md. 516, 520-21, 523 (1879), we affirmed an order granting an injunction where the defendants’ machinery used in brewing beer produced continual vibration and jarring in the plaintiff’s house in the building adjoining the defendants’ business. We stated that, in nuisance cases, “the question is, whether the nuisance complained of, will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant.” Id. at 522. And, where the question is nuisance from noise or vibration, “reference must always be had to the locality, the nature of the trade, the character of the machinery, and the manner of using the property producing the annoyance and injury complained of.” Id.
These cases demonstrate findings of private nuisance based on conduct that could potentially be considered in some sense continuous or recurring, but it is plain that the cases do not impose such a requirement much less mandate that a necessary element of a private nuisance claim is that a defendant must have engaged in wrongful conduct. To be sure, in Corbi and other cases, we commented that where a defendant was engaging in business in a manner that interfered with the reasonable and comfortable enjoyment of the plaintiff’s property, a wrong was done, but in none of the cases that I have reviewed has the Court required proof of wrongful conduct by a defendant under any definition of the phrase. Rather, in upholding the findings of public nuisance, we explained that the
Even so, because the Majority has changed the standard of proof, it is worth noting that contrary to the Majority’s analysis, applying its new standard to the evidence developed at trial in this case results in the conclusion that the judgment of the Appellate Court should be affirmed. Viewing the evidence in the light most favorable to the Abels, as we must and applying the standard announced by the Majority, the record in this case demonstrates that the City engaged in “non-negligent conduct [that] was wrongful because it caused a continuous or recurring and unreasonable invasion” of the Abels’ property, as the Majority has now held is required. Maj. Slip Op. at 39.
At trial, the Abels called Anthony Paglia to testify as an expert in sewer systems. Testifying as an expert witness, Mr. Paglia explained that, on December 23, 2019, a sewer
Although the jury found the evidence insufficient to establish negligence, Mr. Paglia’s testimony established that the City’s failure to properly clean the sewer line after an earlier back up caused the back up of sewage onto the Abels’ property. Under the Majority’s holding, the testimony produced by the Abels at trial was sufficient to establish that the City engaged in the wrongful conduct of causing a continuous or recurring and unreasonable invasion of sewage onto the Abels’ property. Maj. Slip Op. at 38-39. Because the Majority has not defined what it means by continuous or recurring, there is no reason to conclude otherwise.
Nonetheless, applying a standard that did not govern at the time of trial, the Majority goes through an analysis and concludes that the City did not “engage[] in a wrongful act that caused the damage to the Abels’ property[,]” i.e., the Abels failed to meet the burden of proof (that they did not know about) and reverses the judgment of the Appellate Court. Maj. Slip Op. at 41-42.
For the above reasons, respectfully, I dissent.
Dissenting Opinion by Killough, J., which Watts, J., joins.
I respectfully dissent. I join Justice Watts’ dissenting opinion, which demonstrates that private nuisance has long been a strict liability action in Maryland. Watts, J., dissenting, at 1-5. Nuisance does not require proof of fault. It can rest on a defendant’s negligence, but it need not; liability attaches when the defendant’s conduct “cause[d] substantial injury to the property of another[,]” whether or not the defendant was careful. Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 280 (1890). Under the Majority’s formulation, “[w]here the defendant’s conduct does not involve conduct that is not otherwise negligent, reckless, or abnormally dangerous,” strict liability attaches only after a plaintiff demonstrates that the defendant’s conduct “may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion.” Maj. Slip Op. 42. In so far as the Majority’s position shifts the main focus of the analysis from the nature of the interference to the defendant’s conduct, it finds no footing in our cases. See Watts, J., dissenting, at 1-5, 10-17; see also Wash. Suburban Sanitary Comm’n v. CAE-Link Corp., 330 Md. 115, 125 (1993) (“Virtually any disturbance of the enjoyment of the property may amount to a nuisance so long as the interference is substantial and unreasonable and such as would be offensive or inconvenient to the normal person. (citation omitted)). The Appellate Court appropriately observed that “[w]hether an interference is unreasonable is determined by the injury caused by the condition and not by the conduct of the party creating the condition.” Mayor and City Council of Balt. v. Abel, 2025 WL 829733, at *3 (2025) (citing CAE-Link, 330 Md. at 140-42).
That said, the Majority now reverses because, in its view, “there was no evidence upon which a jury could find that any conduct by the City caused a continuous or recurring
I write separately to make three additional points. First, the sole error the Majority identified below is a derivative of its own view of the evidence. Second, the record contains far more than the “slight” evidence our cases require to generate a jury question, and the jury was instructed on continuity at the City’s own request. Third, if the law of nuisance is to be narrowed, that judgment belongs to the General Assembly and not to this Court.
I. The Only Error the Majority Identifies Is That the Jury Was Allowed To Decide Whether The City Was Liable.
It is undisputed that on the morning of December 28, 2019, the City’s sewer main backed up into the Abels’ basement and that, for seventeen hours, their home served as a terminal of the City’s system. The basement, in Mrs. Abel’s words, was like “the hippo house at the zoo.” The Abels dealt with the aftermath for at least a month, enduring a stomach-turning, noxious smell and “a constant headache[.]” Mr. Abel worried about what the sewage would do to his household, from electrical problems to the effect of the unsanitary conditions on his immunocompromised mother-in-law, who was on “24/7 oxygen.” Id. The trial court denied the City’s motion for judgment, concluding that a
The sole error the Majority identifies in this trial is that, “[b]ecause there was insufficient evidence as a matter of law to generate a jury question as to whether there was a continuous intrusion into the Abels’ home, the circuit court erred in denying the City’s motion for judgment.” Maj. Slip Op. at 41. It is worth pausing on what that error consists of. The Majority does not hold that the trial court misstated the law of nuisance. It does not hold that the jury was wrongly instructed—nor could it, for the City requested the instruction it received.1 It does not hold that the court admitted evidence it should have excluded, or that it applied the wrong standard to the motion before it. The single error the Majority finds is that the trial judge, having heard the evidence, permitted the jury to decide whether the invasion was continuous—a question that is ordinarily the jury’s to decide. Cf. Wietzke v. Chesapeake Conf. Ass’n, 421 Md. 355, 383 (2011). That is not an error of law. It is the Majority’s disagreement with the jury’s answer, restated as a criticism of the judge who let the jury give it.
Nor does the Majority reverse on anything that happened at trial. In its motion for judgment on the nuisance claim, the City pressed one ground before the trial judge that survives here: continuity. It did not argue that the Abels had failed to prove wrongful conduct. It disclaimed the theory of an intentional invasion altogether, telling the court that “there has been no allegations of intentional torts here.” A party moving for judgment must “state with particularity all reasons why the motion should be granted[,]”
That leaves the standard of review, which the Majority recites and then does not apply. We review the denial of a motion for judgment de novo. Maj. Slip Op. at 11-12; Webb v. Giant of Md., LLC, 477 Md. 121, 132 (2021). But de novo review of the ruling is
II. There Was Legally Sufficient Evidence to Generate a Jury Question on Continuity, and the Jury Was Instructed to Find It.
The Majority reverses because, in its view, “there was no evidence upon which a jury could find that any conduct by the City caused a continuous or recurring invasion of the Abels’ property.” Maj. Slip Op. at 43. The record says otherwise, and the Majority’s own opinion recites much of it. Five days before the Abels’ basement filled, the same main line backed up at an upstream neighbor’s property, and the City sent a crew to clear it. The Abels’ expert testified that the City’s cleaning did not meet industry standards, and that a renewed blockage of the kind that flooded the Abels was the predictable consequence of leaving the line as the City left it. Then the line failed again, on the same block, five days
That is evidence of a recurring invasion arising from a continuing condition. A jury was free to reject it. But this jury did not. And the question before us is not whether we would have found a continuous invasion; it is whether there was “any evidence, no matter how slight,” from which a reasonable jury could. Thomas, 423 Md. at 394 (emphasis added). There was more than a scintilla of such evidence here, and that ends the inquiry.
What happened at trial is harder to reconcile with the Majority’s holding than its opinion acknowledges. The jury was instructed—at the City’s request—that “a single act not likely to be repeated will not sustain a suit in nuisance.” The Majority quotes that instruction. Maj. Slip Op. at 39. It observes that “the parties recognized that Maryland’s private nuisance law requires a continuous and unreasonable intrusion[.]” Id. What the Majority does not say is what follows from it. A jury that was told that a single, non-recurring act cannot sustain a nuisance claim, and which nonetheless returned a verdict for the Abels on this claim, necessarily found that this invasion was not a single, non-recurring act. The finding the Majority says no reasonable jury could make is the finding this jury was required to make before it could return the verdict it returned. The Majority quotes the charge and then decides for itself the question the charge committed to the jury.
The jury had a further reason to answer as it did. This case was not bifurcated. The same jury, in the same trial, heard evidence of a second sewage backup into the same home in 2022, and it found the City liable in nuisance for that backup as well—a verdict the City did not challenge. Maj. Slip Op. at 2 n.1. A jury asked whether the December 2019
But this question need not be resolved to decide this case, because the Majority answers it itself. The Majority holds that where a defendant’s conduct is not otherwise negligent, reckless, or abnormally dangerous, “the . . . conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto” the plaintiff’s property. Maj. Slip Op. at 42. On that definition, a continuous and unreasonable intrusion is not merely evidence of wrongful conduct. It is wrongful conduct.2 And a continuous and unreasonable intrusion is precisely what this jury, properly instructed, found. The Majority defines wrongfulness in terms of continuity, and then holds that no evidence of continuity exists—while reciting the December 23 backup, the deficient cleaning, and the recurrence five days later in its own statement of facts. Maj. Slip Op. at 41; see also Thomas, 423 Md. at 394. Nor does the jury’s verdict on negligence supply the
III. The Remedy Replaces the Jury, and the Policy Concern Belongs to the General Assembly.
The Majority’s underlying concern is that liability here would make the City “an absolute insurer” against intrusions caused by any user of a system serving 1.5 million people. Maj. Slip Op. at 41 n.10. But the record says nothing about how many sewer-backup claims the City faces or what it pays for them. Nor is municipal solvency a matter awaiting this Court’s protection. The General Assembly has already capped the damages recoverable against a local government.
While the concern over fiscal matters involving public municipal utility companies is a legitimate concern as a matter of public policy, it is not a legitimate matter for a court, certainly not as it relates to the facts of this case. The jury’s verdict in this case was not based on a stranger’s blockage or their greasy rags. It was not based on happenstance. It was based on the City’s own failure to clear a line the City had just been called out to clear. And to the extent municipal exposure warrants a ceiling, that judgment belongs to the General Assembly, which can hold hearings, weigh the cost, and calibrate a remedy. It certainly is not a reason to take a verdict from a jury.
IV. Conclusion
The trial court, viewing the evidence in the light most favorable to the non-moving party, submitted the nuisance claim and the embedded continuity question to the jury. The jury did what we ask juries to do. It followed the instructions—including the one the City requested—deliberated within a verdict sheet the City accepted, distinguished negligence from nuisance, and calibrated damages to the proven harm. The City may not have been negligent in 2019, but the jury found it responsible. That is the space between negligence and nuisance our cases have occupied for more than a century. See Susquehanna Fertilizer, 73 Md. at 280; Taylor v. Mayor & City Council of Balt., 130 Md. 133 (1917); Wash. Suburban Sanitary Comm’n v. CAE-Link Corp., 330 Md. 115, 126 (1993).
Only one participant in this case is said by the Majority to have erred, and only in one respect: the trial judge, for letting the jury decide. The jury is not faulted, at least not
The Abels did not merely prevail in this case. They prevailed under a jury charge that is more exacting than the law required. At the City’s request, the jury was given a non-pattern instruction that told them that a single act not likely to be repeated would not sustain a suit in nuisance—a continuity requirement closer to the Majority’s understanding of this claim than to the strict liability standard our cases have long applied. This jury instruction was an incorrect exposition of Maryland law that favored the City. See Watts, J., dissenting, at 7, 10-11. Yet, the Abels satisfied it anyway. Six jurors, so instructed, found a continuing and unreasonable invasion of the Abels’ home. Whatever else may be said of that verdict, it was not the product of a lenient standard.
The right to trial by jury in civil cases is not a formality we honor when the verdict is convenient. Our Constitution commands that it “be inviolably preserved.”
I would affirm the judgment of the Appellate Court of Maryland. I respectfully dissent. Justice Watts has authorized me to state she joins this dissent.
Notes
In the absence of a remand, the appropriate outcome would be for the Majority to hold that its new standard shall apply prospectively. I disagree that the Abels were required to show “wrongful conduct” as a matter of law. See Watts, J., dissenting at 1-5. Nevertheless, even under the Majority’s formulation, this jury found “wrongful conduct.”[Defense Counsel:] Can you describe to the jury what a main line is?
[DPW employee:] The main line is the main -- it‘s the circle of pipe that‘s in the middle of the street where all your sewage goes to from the laterals.
[Defense Counsel:] And can you explain a lateral, please?
[DPW employee:] The laterals is connected to the main line, which goes in the middle of the street. The laterals to go to each -- service of each house or building.
The Majority reasons in part that the jury found the City not negligent as to the 2019 backup, and that recklessness, purpose, and abnormally dangerous activity were not alleged. Maj. Slip Op. at 38-39. That finding does not fully answer the question the Majority asks. Negligence asks whether the City’s conduct fell below reasonable care; the Majority’s own test asks, in the alternative, whether the City’s conduct created a continuous and unreasonable intrusion. A defendant may be careful and still maintain a continuing condition that unreasonably invades a neighbor’s property—which is what Susquehanna and Meadowbrook hold. Read coherently, this verdict finds careful conduct and a continuing, unreasonable interference—findings that coexist without difficulty.A nuisance is any unreasonable use of land that causes real, substantial, and unreasonable damage to or interference with another person‘s ordinary use and enjoyment of his or her property. Generally, nuisance is all conduct that endangers life or health, offends the senses, violates the laws of decency, or obstructs the reasonable and comfortable use and enjoyment of property. The test is not [d]efendant‘s negligence or whether the interference complies with applicable laws and regulations, but whether the interference is substantial and unreasonable.
Nuisance connotes a continuance of the complaining conduct, and a single act not likely to be repeated will not sustain a suit in nuisance. It must materially diminish the property‘s value, seriously interfere with ordinary comfort and enjoyment. A suit in nuisance involves balancing the correlative rights of the parties. The utility of a defendant‘s conduct and his or her rights are weighed against the amount of harm to the plaintiff and to his or her rights. The factors to be considered in this weighing are (a) the extent and character of the harm; (b) social value of the parties’ respective uses; (c) suitability of each use vis-à-vis the locality; (d) ability of the parties to avoid the harm. Proof of damage, loss, or inconvenience alone does not establish a nuisance, as there must also be evidence of a wrongful act. Nuisance includes all tangible intrusions on another‘s property, including noise, odor, and lights, and is not contingent on physical impingement on the other‘s property but on the substantial and unreasonable interference with the other‘s use and enjoyment of his or her property.
[L]awful possession of land without ownership is sufficient to bring action even if the possession is a prescriptive right acquired by adverse possession.
Unreasonable use of land. Use of land is unreasonable if [] it is for the purpose of interfering with another person‘s use and enjoyment, or it is prohibited by law or violates regulations that were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with another person‘s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense.
In determining whether the use of land was unreasonable, you should consider whether it was the kind of use an ordinary person would expect might interfere with the use and enjoyment of another person‘s property or cause real and substantial injury to another person‘s health or comfort. You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The Plaintiff‘s right to be free from interference with his or her use and enjoyment should be balanced against the Defendant‘s right to use his or her property, and the Plaintiff must expect to endure some inconvenience or discomfort that results from the Defendant‘s reasonable use of his or her property.
In determining what reasonable amount of interference, inconvenience, or discomfort the Plaintiffs should be expected to tolerate, you should consider the right of the Defendant to use his or her property or to conduct his or her affairs in a reasonable manner, the extent of interference that would result from the Defendant‘s reasonable use of his or her property or conduct of his or her affairs, the circumstances under which the interference occurred, the nature of the area in which the real property is located, and the uses being made of other property in the area.
A nuisance is any unreasonable conduct which causes real, substantial, and unreasonable damage to, or interference with, another person‘s ordinary use and enjoyment of his or her property.
Conduct is unreasonable if it is prohibited by law or violated regulations which were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with the other person‘s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense.
In determining whether the conduct was unreasonable, you should consider whether it was the kind of conduct an ordinary person would expect might interfere with the use and enjoyment of another‘s property or cause real and substantial injury to another person‘s health or comfort. You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The plaintiff‘s right to be free from interference with his or her use and enjoyment should be balanced against defendant‘s right to use his or her property. And the plaintiff must expect to endure some inconvenience or discomfort which results from the defendant‘s use of his or her property.
In determining what reasonable amount of interference, inconvenience, or discomfort the plaintiff should be expected to tolerate you should consider the right of the defendant to his or her property or to conduct his or her affairs in a reasonable manner. The extent of interference which would result from the defendant‘s reasonable use of his or her property or conduct of his or her affairs, the circumstances under which the interference occurred, the nature