Untangling the Nuisance Knot

Abstract

Commentators have long characterized the law of nuisance as a muddled and confusing doctrine, limited to deciding a few landuse disputes not already resolved by zoning. In 1992, interest in the doctrine was renewed when the U.S. Supreme Court in Lucas v. South Carolina Coastal Council declared nuisance the key to the difficult question of when legislation amounted to an uncompensated taking of real property. It has thus become important to understand both the nuisance doctrine and the confusion surrounding its application. In this article, the author locates the source of the confusion in three problems stemming from the strict liability standard by which landuse disputes were originally governed in the English common law of nuisance. First, the application of nuisance doctrine to the landuse disputes inevitably accompanying the economic transformation of American society from agriculture to industry called for a modification, though not an abandonment, of strict liability. Second, bench and bar tangled over whether the remnants of strict liability in nuisance could moderate some of the negligence doctrines that weighed most heavily on tort plaintiffs. Third, attempts by the drafters of the Restatement (First and Second) of Torts to rationalize the doctrine with a single rule applicable to the law of both accidents and landuse disputes failed. Understanding these three forces may help both judge and practitioner discover a principled understanding of this newly-relevant area of law as they use nuisance to assess takings claims under Lucas.