Public Nuisance and Public Plaintiffs: Rediscovering the Common Law (Part I)

Louise A. Halper

Editors' Summary: Much attention has been focused on the role of statutes in environmental enforcement. This focus is understandable, given the huge arsenal of environmental statutes that have been enacted. But the courts have not forgotten the common law, and as this article points out, neither should litigants. Approaching the subject from the perspective of the state enforcement official, the article discusses the applicability of the common law concept of public nuisance to modern-day environmental problems, particularly those caused by hazardous waste and toxic substances. The author argues that in many situations, the public nuisance doctrine provides enforcement officials with powerful flexibility not otherwise available. In this first of three parts, the author sets the stage for an appropriate understanding of the modern potential of public nuisance by discussing the history of public nuisance, analyzing the doctrine's original purposes, and examining how the concept has changed over the years. A second article will look at remedies available to the state litigator and possible defenses that may be raised.

Louise A. Halper is an Assistant Attorney General in the Environmental Protection Bureau, New York State Department of Law and a member of the New York and New Jersey bars. The views set forth in this article are the author's and are not necessarily those of the Department of Law or Attorney General Robert Abrams.

[16 ELR 10292]

The common law action to abate a public nuisance, encompassing restitution for costs of abatement, is a useful and simple tool for the state environmental litigator. State litigators often fail to realize how powerful this action can be when brought on behalf of the sovereign as plaintiff.

When the sovereign litigates to abate a public nuisance, no tort-based proofs of defendant's negligence or engaging in ultrahazardous activities are required. For a court to grant the equitable relief of abatement, the sovereign need only prove that a public nuisance exists and that defendant is responsible for it. Because the sovereign's suit against a nuisance is not a tort action, but an exercise of the police power, it is governed by strict liability.¹

The ancient common law action of nuisance has recently gained new viability as an instrument of environmental enforcement. Yet too often, those who seek to make use of it get lost in what Dean William Prosser called the "impenetrable jungle … which surrounds the word 'nuisance.'"² It is the purpose of this article and a successor to point out a broad and well-lit road around the jungle for state environmental litigators. Litigators immersed in the details of establishing a cause of action and the need to anticipate defenses will be assisted by understanding the sources of the concepts over which they battle in court. To meet that need, this first article will outline the historical underpinnings of public nuisance and will focus on public nuisance actions instituted by the state as protector of public rights.³

Public Nuisance Defined

A public nuisance is an offense against the state.⁴ It may be criminally prosecuted,⁵ and may be, as well, the subject [16 ELR 10293] of an equitable abatement action by the sovereign.

A public nuisance is that which obstructs the public in the exercise of rights common to all.⁶ A public nuisance abatable by the sovereign need not involve injury to plaintiffs right in land.⁷ Rather, it is created where public rights or privileges common to every person in the community are interrupted or interfered with, though the interference need not affect every member of the community.⁸ It may offend public morals, interfere with the use of a public place, or endanger property, health, safety, or comfort.⁹ The common thread is that a public nuisance works its harm "with those who come in contact with it in the exercise of a public right."¹⁰ Generally, a nuisance is created when one violates the duty to use one's property so as not to injure another, a duty to which every right in property is buejct,¹¹ and it is the performance of that duty which the state, through its police power, works to ensure.¹² Nuisance, as an injury, is thus distinguishable from the ordinary tort in that it arises from defendant's use, enterprise, or exercise of rights in property.

The harm that a public nuisance works may be threatened or may have already occurred; in either case, it may be abated by the sovereign.¹³ Charged withthe protection of the health and safety of its citizens, the sovereign may act for the protection of the public when the public is threatened.¹⁴ In the words of the New York Court of Appeals, public authorities "ought not to wait until some citizen is sick or dead before they prevent or abate the nuisance."¹⁵

Public Nuisance in the Environmental Context

The public nuisance action is particularly useful to remedy environmental hazards. The release or threat of release of hazardous wastes into the environment unreasonably infringes upon public rights and has been held to be a public nuisance as a matter of law.¹⁶ In New York v. Shore Realty Corp.,¹⁷ the Second Circuit found a public nuisance where hazardous waste was held in corroding tanks and there was a threat of release of these substances into the environment. The fact that releases so far had been minimal did not affect the liability of the responsible party to abate the nuisance. The seepage of waste from the homes of a community into the surrounding environment is also a public nuisance,¹⁸ as is an accidental release of organic chemicals into a waterway,¹⁹ or the threat of pollution of a town's water supply.²⁰ The state, in the exercise of the police power and as "guardian of the environment,²¹ may act in the public interest and place liability for costs of abatement upon the party responsible for the nuisance.²²

Historical Antecedents of State Public Nuisance Actions

Case law that has developed over the past ten years or so reveals a trend in many jurisdictions to allow the use of public nuisance as a tool of state environmental enforcement.²³ But public nuisance has long existed in the common law.

Since virtually the dawn of the common law,²⁴ an action [16 ELR 10294] has been available to private plaintiffs in both the criminal and civil law "designed to cover invasions of the plaintiff's land due to conduct wholly on the land of the defendant."²⁵ These eventually merged to become the civil action on the case for nuisance and this "was the parent of the law of private nuisance as it stands today."²⁶ At the same time, "an entirely separate principle"²⁷ developed that an infringement of the rights of the crown or of the general public was a crime and "thus was born the public nuisance."²⁸

In the sixteenth century, private plaintiffs won the right to maintain an action for particular damages due to public nuisance distinct from the harm suffered by the public in general.²⁹ That action was treated in precisely the same manner as an action for damages due to a private nuisance.

The right of the public to abatement of a public nuisance was contained within the criminal prosecution and did not become a separate action for some time.³⁰ Today, however, the state's access to equity to abate a nuisance is undisputed whether or not the nuisance has been criminalized by statute,³¹ or even made subject to a separate set of administrative proceedings.³²

Thus, the law of nuisance has travelled on two tracks. The first arises from the sovereign's exercise of its powers to protect the public from interference with common rights and includes the criminal prosecution of a public nuisance as well as its equitable abatement. The other includes individual actions to recover for particular damages consequent to a nuisance, public or private. The confusion of public and private plaintiffs and the failure to recognize the distinct historical status of the nuisance actions available to each has led litigators straight into Dean Prosser's jungle.³³ It has produced the anomalous situation in which those litigating on behalf of the sovereign accept the notion that they must prove against a defendant some dereliction of duty equal to that which a tort plaintiff must demonstrate. Complaint after complaint, while captioned "State of —" or "People of —", recites counts of negligence, foreseeability, ultrahazardous activity, unlawful conduct, or lack of due care, as though the case were to be tried to a jury.

But it does not matter with what degree of care one hinders the exercise of common public rights to health and safety. If those rights are hindered, whether willfully, recklessly, or carefully, the nuisance must be abated at the suit of the sovereign.

Strict Liability in State Public Nuisance Actions

The imposition of strict liability in public nuisance actions brought by the state is sanctioned by long-standing precedent.³⁴ Common law courts have had no difficulty in applying tort standards of negligence to the private plaintiff's action on a public nuisance,³⁵ while consistently holding that a party is liable to the state or appropriate public authorities for a public nuisance without proof of fault or negligence, if its use has created the conditon injuring or threatening injury to the public.

In an early case, Board of Health v. Copcutt,³⁶ it was held that one who built a dam and pond for the needs of his enterprise was liable for abating the nuisance created when the pond became clogged with pollutants deposited upstream by others:

[T]his dam and pond were his. He had a right and it was his duty to keep them clean and safe, or dispense with them entirely if he could not. His dam was a pocket to catch and hold all filth thrown in above. He well knew it and could not sit still and suffer his property to become an intolerable nuisance and say it was not his fault…. [I]t is the condition with which the boards of health must grapple, and the condition which must be abated or removed, without regard to the question who caused the trouble.³⁷

Similarly, in New York Trap Rock Corp. v. Town of Clarkstown,³⁸ the town argued that

to allege a cause of action for [public] nuisance, it is only necessary to set forth that defendnt is doing some act which endangers the public health or safety and that [claimant] is injured thereby.³⁹

The town claimed that quarrying and blasting depreciated the value of property in the town, injured the health of citizens of the town, and interfered with residential development, but it made no fault-based allegations. The court held that the town had sufficiently set forth the essential elements of a public nuisance. It ruled that no faultbased proofs were required to establish public nuisance. Moreover, the court did not balance interests to determine whether the value of the ongoing use outweighed the threatened right.⁴⁰

[16 ELR 10295]

In Town of Mt. Pleasant v. Van Tassell,⁴¹ a public nuisance was found where a piggery, though lawful and predating the ownership of its complaining neighbors, created odor and unsightliness and attracted pests. The trial court held that

[A use] is a nuisance, subject to restraint as such, where it is carried on at such a location and in such a manner that it unreasonably and materially interferes with the general well-being, health or property rights of neighbors and of people generally.⁴²

In State v. Waterloo Stock Car Raceway,⁴³ the operators of an auto raceway in an otherwise tranquil community defended against the state's equitable action for abatement, arguing that their business was lawfully conducted, did not violate zoning ordinances, and was a priority use. But, according to the court, they could not "acquire by prescription the right to maintain a public nuisance."⁴⁴ Moreover, the court held, a use "may be in full compliance … [but] still be enjoined as a nuisance."⁴⁵

In State v. Ole Olsen, Inc.,⁴⁶ the state sued a developer who had built and sold homes with inadequate sewer systems, resulting in the contamination of a nearby pond. The court did not require a factual determination of the degree of care with which defendant created a nuisance but merely inquired whether it had created the nuisance.

More recently, in the context of hazardous waste litigation, the United States Court of Appeals for the Second Circuit held, in New York v. Shore Realty Corp., that the creator of a public nuisance is strictly liable to the public for its abatement in a state public nuisance action brought under New York law.⁴⁷ The degree of care with which the nuisance has been created is not a defense. One is "liable for … public nuisance irrespective of negligence or fault."⁴⁸ That which interferes with the rights of all must be abated when the public, through its appropriate representative, seeks its abatement.

Shore Realty involved a party who purchased a wasteladen site solely for condominium development. The defendant was held liable for cleanup costs, despite its lack of involvement in waste generation.⁴⁹ Interestingly, in holding this non-generating owner liable, the Second Circuit relied upon State v. Schenectady Chemicals, Inc.,⁵⁰ a state case holding a non-owning generator liable. In Schenectady Chemicals, the court ruled that strict liability is appropriate in an abatement/restitution action brought by the state. The question presented to the court was whether

[T]he State, by … common law, can maintain an action to compel a chemical company to pay the costs of cleaning up a dumpsite so as to prevent pollution … when the dumping took place between 15 to 30 years ago at a site owned by an independent contractor hired by the chemical company to dispose of the waste material.⁵¹

The state sought in Schenectady Chemicals to recover abatement costs from a generator who had contracted with a dumper for disposal of chemical waste at a site the generator did not own. The site was leaking many years after the disposal of the last of the defendant chemical company's waste. Defendant argued it could not be held liable for site cleanup without proof of negligence. The lower court disagreed, holding that "with reference to a public nuisance, it is not necessary to show acts of negligence."⁵² The court made clear that liability for public nuisance is strict and that tort defenses will not defeat a public nuisance claim.

[W]ith respect to public nuisances … fault is not an issue, the inquiry being limited to whether the condition created, not the conduct creating it, is causing damage to the public.⁵³

The appellate court affirmed.⁵⁴

In sum, where defendant was the generator of wastes disposed of by a third party on a site owned by a third party, both the lower court and the appellate court agreed that the generator, though non-negligent, could be strictly liable for creating the public nuisance constituted by public exposure to the waste. The generator need not have done the dumping itself, nor need it have owned the site. If its wastes were leaking and the public was exposed, it could be found liable to the public and required to abate the nuisance constituted by the leaking dumpsite or to pay for the costs of abatement already incurred by public agencies.⁵⁵ And where the facts were reversed, as in Shore Realty,⁵⁶ and defendant was not the generator of waste, but the knowing purchaser of a site laden with another's waste, that defendant, too, could be held strictly liable to the state for abating the public nuisance on his land.

These cases clearly reveal the flexibility and reach of common law public nuisance for the state litigator. In neither case was the defendant the traditional tortfeasor; in both cases, however, defenant participated in an enterprise involving hazardous waste and was thus considered responsible for the nuisance caused by that waste. Shore Realty speculated, by purchasing a waste-laden site, on its ability to develop the waterfront site for residential purposes; Schenectady Chemicals had obviously profited, in the normal course of business, from generation of hazardous waste. The traditional nuisance framework, focusing on defendant's use, enterprise, or exercise of rights in property, thus serves modern needs to prevent or abate environmental hazards related to commercial or industrial uses.

Police Power as the Basis of Strict Liability

The courts' placement of liability in Shore Realty and Schenectady Chemicals is consistent with the historic focus in nuisance upon the condition rather than the conduct creating it. Nuisance "describes the consequences of conduct, [16 ELR 10296] … rather than the type of conduct involved.⁵⁷ Its premise is effects rather than actions, harm to the plaintiff's interests rather than the propriety of defendant's acts. Nuisance liability historically rested on "the interests invaded, … the damage or harm inflicted, and not any particular kind of act or omission which has led to the invasion."⁵⁸

Given this history, it is understandable that the original standard of liability in nuisance was strict. If plaintiff's interests were invaded by defendant's use, defendant was liable regardless of care or intent. Today, however, different standards of liability apply to the public nuisance action brought by the private plaintiff land that brought by the state. Thus, the state environmental litigator must note that the operative distinction for ascertaining the liability standard is not between public and private nuisance, but between the public and private plaintiffs.⁵⁹ A private plaintiff's action sounds in tort while the state's action is an exercise of its policy power.

Rights in property are constrained by a superior public interest in the health and safety of the community which is enforced by the police power of the sovereign.⁶⁰ The state's police power includes "everything essential to the public safety, health and morals and justif[ies] … abatement of whatever may be regarded as a public nuisance."⁶¹ The "imperative necessity for its existence"⁶² means that the police power may be exercised broadly so long as the exercise is not arbitrary. Thus, the police power may, within constitutional limitations of due process, suppress what is offensive and promote the public health and safety,⁶³ and act "to abate evils" arising from commercial enterprises.⁶⁴ An act is presumed valid if done in the exercise of a state's police powers,⁶⁵ and this is particularly true when a state acts to protect public health and safety.⁶⁶ While the police power is difficult to define precisely, it "is the least limitable of the powers of government … [and] undoubtedly extends to all of the great public needs,"⁶⁷ including the preservation of the lives, health, and safety of its citizens.

Although private plaintiffs may maintain a public nuisance action for their particular damages not shared by the rest of the public, the powe to abate or prosecute a nuisance, sans particular injury, is reserved to the sovereign under the police power: "Redress of the wrong to the community must be left to its appointed representative."⁶⁸ The state or those to whom it has delegated its authority may abate a public nuisance or seek mandatory or prohibitory relief from a court of equity where the use of property is "injurious to the community."⁶⁹

It is precisely because the state's police power action seeks immediate protection of the public that such actions are entertained by courts of equity, rather than courts of law, where the actions of private plaintiffs are generally brought. Thus, in Mugler v. Kansas, the United States Supreme Court said,

The ground of … [equity] jurisdiction in cases of … public nuisance, is the ability of courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future…. This is a salutary jurisdiction, especially where a nuisance affects the health, morals or safety of the community.⁷⁰

While commentators debate the appropriate liability standards in private actions on public nuisance,"⁷¹ this interesting discussion is of no moment to the state environmental litigator. Tort liability and the balancing of rights and duties between competing private parties are foreign to the question of the duty a user of property owes the community in a state public nuisance action.

The Example of Barnes & Tucker

The most explicit statement of these principles discussed above appears in a case arising under Pennsylbania common law, Commonwealth v. Barnes & Tucker Co.⁷² This case is important enough that it will be discussed in some detail here.

Barnes & Tucker (B&T) had worked Mine No. 15 for some thirty years,⁷³ under state permit.⁷⁴ In 1969, the mine was closed and flooded, a standard mining practice.⁷⁵ After closing, the water level in the mine began rising and by the middle of the next year,⁷⁶ more than a million gallons a day of acid minewater was entering the Susquehanna River.⁷⁷

After the state sued, the parties stipulated that the state would lime discharge from the mine, while B&T would operate a pumping station to lower the level of water within the mine.⁷⁸ But when the water level had been lowered below the breakout point, B&T ceased pumping. The state unwillingly assumed that task, but sought injunctive relief [16 ELR 10297] to force B&T to operate the pumping station and to recompense the state for the costs of its pumping.⁷⁹ The state alleged both statutory and common law bases for B&T's liability. One of its arguments was that the acid discharge constituted a common law public nuisance and that B&T was responsible for its abatement.⁸⁰

The trial court declined to impose liability on the statutory grounds. On the common law question, the court first reviewed Pennsylvania precedent, appropriately making a distinction between public and private nuisance actions. It found the case before it was one of first impression because negligence, foreseeability, and unlawful conduct were not present, nor was "a present activity … or course of conduct directly producing the deleterious result."⁸¹ Thus, the court declined to hold that B&T was responsible for creating public nuisance. On appeal, the Pennsylvania Supreme Court found liability on a statutory ground, but went to say,

Although ordinarily we would not discuss an alternative basis of liability, having already found liability to exist under one theory, we feel that the [trial] Court's misconstruction of this evasive area [i.e., common law public nuisance] of the law compels comment by this Court.⁸²

The Supreme Court held B&T liable under common law public nuisance, using language that is at the crux of the state litigator's approach to nuisance:

The absence of facts supporting concepts of negligence, foreseeability or unlawful conduct is not in the least fatal to a finding of the existence of a common law nuisance. The assumption that such might be the case is "based upon an entirely mistaken emphasis upon what the defendant has done rather than the result which has followed," [citation omitted].⁸³

Moreover, said the court, although the activity which gave rise to the harmful condition is no longer occurring, defendant is not relieved of responsibility for abatement of the condition.⁸⁴

On remand, B&T argued that relief should not be granted against it because it had not caused the subsurface condition which led to the flooding, having purchased the mine from another company. Mandating abatement expenditures, it argued, would amount to a taking of private property without just compensation, and thus an unconstitutional exercise of the police power. B&T argued that proof of causation was necessary:

[A] fundamental prerequisite to the imposition of the relief required inthis case is a showing that … [B&T's] conduct proximately caused the creation to the public nuisance here found to exist.⁸⁵

The trial court disagreed, concluding that "traditional criteria to establishment of tortious or unlawful conduct in the law of negligence has [sic] no application in public nuisance cases."⁸⁶ It held the law of nuisance did not support B&T's "contention here that lack of proof of proximate cause in traditional negligence concepts has constitutional proportions."⁸⁷ The court stated that regardless of whether the water which entered Mine No. 15 did so as a direct result of B&T's activity,

the conduct of B&T in its mining activity remains the dominant and relevant fact without which the public nuisance would not have resulted where and under the circumstances it did.⁸⁸

On appeal the second time, the Pennsylvania Supreme Court upheld the decision that B&T must expend its own monies to abate the public nuisance. It said that because

the Commonwealth is validly employing its police power in a reasonable manner to abate the immediate public nuisance, there can be no finding of an unconstitutional "taking" by the imposition of the present abatement order, despite the impact this exercise of the police power may have on the appellant.⁸⁹

In a later case,⁹⁰ the Pennsylvania Supreme Court made explicit the logic of imposing strict liability in state public nuisance actions:

In criminal law, of course, inquiry into a defendant's "culpability' is at the core of guilt determination and punishment. In the field of tort law, the notion of "fault" is not an inappropriate limitation on liability because, among other reasons, the beneficiary of tort compensation, like the tortfeasor, is a private party. The notion of fault is least functional, however, when balancing the interests of a property holder against the interests of a state in the exercise of its police power, because the beneficiary is not an individual but the community.⁹¹

The Shift from Strict Liability in Private Actions

That fault as a basis of liability is not relevant when the interests harmed are those of the public is a powerful concept, and it is applicable in any common law jurisdiction. It is important to understand how this principle came to be obscured from view.

Originally, the rule of strict liability in public nuisance actions, whether brought by private individuals or by a sovereign, applied with equal force despite the different rights vindicated in the two kinds of actions.⁹² Thus, the New York Court of Appeals concluded many years ago that a

nuisance does not rest upon the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care.⁹³

But strict liability in nuisance created problems where [16 ELR 10298] private actions were concerned, since it held nuisance defendants to a stricter standard than tort defendants who were governed by a negligence standard. This encouraged plaintiffs to bring nuisance actions where their own contributory negligence would otherwise bar recovery: if defendant's negligence was not at issue in a nuisance action, governed as it was by strict liability, then neither was plaintiff's.⁹⁴ Thus, courts brought negligence doctrines into the tort law of nuisance in order "to avoid permitting or denying recovery to plaintiff solely on the basis of the label attached to the cause of action."⁹⁵

The clearest delineation of this process was presented in McFarlane v. City of Niagara Falls.⁹⁶ In McFarlane, the plaintiff stumbled on a city sidewalk, tripping over an unintended outcropping of cement. She sued the municipality in nuisance for her injuries. The city claimed contributory negligence; plaintiff replied that the concept was, in nuisance, inapposite. This issue went to the Court of Appeals, where it became the subject of an oft-cited opinion by Chief Judge Cardozo.

Cardozo began by noting appropriately that the "primary meaning [of nuisance] does not involve the element of negligence as one of its essential factors."⁹⁷ But, he continued, when dealing with things not intrinsically dangerous or illegal, "what was lawful in its origins may be turned into a nuisance by negligence."⁹⁸ Where the nuisance is a consequence of defendant's negligent conduct, the court held, plaintiff "may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance."⁹⁹

Cardozo did not rest with affirming that contributory negligence had a role as a defense in a case of "negligent" nuisance, but went on to say,

[W]e are not to be understood as holding by implication that where the nuisance is absolute, the negligence of the [plaintiff] is a fact of no account … In nuisance of that order, the fault that bars recovery is fault so extreme as to be equivalent to invitation to injury or, at least, indifference to consequences. Here is a borderland where the concept of contributory negligence merges almost imperceptibly with thatof acceptance of a risk.¹⁰⁰

Strict Liability Post-McFarlane

McFarlane marks a shift of focus in the law of nuisance from results to acts, both those of defendant and those of plaintiff, and makes the tort of nuisance virtually identical with any negligent tort. This was primarily a way of guarding against the astute plaintiff's back-door evasion of the strictures of contributory negligence. As Cardozo said, "It would be intolerable if the choice of a name [tort or nuisance] were to condition liability."¹⁰¹

But it must be remembered this was a case of a private plaintiff's action for particular damages due to a public nuisance. It was not a public action for abatement or a criminal prosecution. The rule Cardozo announced was to govern the actions of private plaintiffs on public or private nuisance, but not the public nuisance action brought on behalf of the public. The McFarlane rule had no impact upon the latter kind of action. It did not require negligence to be proved as part of a public nuisance action, nor did it permit contributory negligence to be raised as a defense. Thus, in New York Trap Rock, a case decided some twenty years after McFarlane, the court held that the power of a public entity to maintain an action to abate a public nuisance rests simply upon whether a threat to the public interest has been pled, with no reference to the character of the acts creating it.¹⁰²

The notion that the nature of the interests infringed determines, in nuisance, the standard of liability is consistent with the traditional understanding of nuisance as a focus on consequences rather than acts.¹⁰³ The shift to a more tort-oriented understanding of nuisance in McFarlane and its progeny in other states had really to do with whether negligence would maintain its position in the law of torts. It did not, and was not meant to, undermine the public's right to be free of nuisance and the state's duty to abate if a nuisance exists.

The difficulty some litigators and courts have had in determining an appropriate liability standard in public nuisance cases may be explained by the application of cases which are themselves an echo of a battle on quite another front: at stake in those cases has been the ease or difficulty with which a private plaintiff may have a money recovery from a deep-pocket defendant. That battle continues. The contributory negligence rule had led to the import of negligence doctrines into the law of nuisance, but its demise has not meant their export.¹⁰⁴ Strict liability has not yet recovered its primacy in the tort of nuisance, although contributory negligence has passed out of it. Today, questions of strict liability in the tort of nuisance are fought on grounds denominated "ultrahazardous" and "abnormally dangerous."¹⁰⁵ Whether strict liability will regain its place we do not know, but interesting as the question is, it is not relevant to the state litigator, who must vindicate the exercise of rights common to all.

Conclusion

The protection of the health and safety of the community warrants the abatement of whatever threatens the public. The historical basis of the nuisance action was as a limitation, for the good of the community, on the uses to which [16 ELR 10299] property might be put. Environmental hazards have been included among those subject to abatement as common law public nuisances. Although strict liability was the historic standard for all nuisance actions, both public and private, it now applies categorically only to public nuisance actions brought by the sovereign pursuant to the police power.

A second article will examine the remedies available to the state in environmental public nuisance cases and the defenses it may face.

1. This doctrine is described here largely by use of common law cases originating in New York, though case law from other states is cited. Because the common law is a shared ancestry throughout the country, cases from other states are often persuasive within a state; moreover, the historical progress of common law nuisance has been influenced by cases from New York's Court of Appeals, such as the widely cited opinion of Judge Cardozo in McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (N.Y. 1928). See infra text accompanying notes 96-101.

2. W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS 616 (5th ed. 1984) [hereinafter PROSSER AND KEETON].

3. This article deals with the correct application of strict liability in equitable actions brought on behalf of the state or other public authority. A second article will deal with defenses which may be interposed including permitting, sale, and lack of causation, and with the available remedies of abatement and restitution.

4. Copart Industries, Inc. v. Consolidated Edison Co. of New York, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968, 7 ELR 20604 (N.Y. 1977).

5. See, e.g., NEW YORK PENAL LAW § 240.45 (Consol. 1967).

6. New York Trap Rock Corp. v. Town of Clarkstown, 299 N.Y. 77, 85 N.E.2d 873 (N.Y. 1949).

7. H. STREET, THE LAW OF TORTS 230 (7th ed. 1983). A public nuisance "encompasses much conduct other than the type that interferes with use and enjoyment of private property," PROSSER AND KEETON, supra note 2, at 643, and that underlies a private plaintiff's nuisance action. In fact, the "doctrine of public nuisance protects public interests quite different from those implicated in claims for private nuisance," Philadelphia Electric Co. v. Hercules, Inc., 762 F.2d 303, 315, 15 ELR 20554, 20560 (3d Cir. 1985).

8. People v. Rubenfeld, 254 N.Y. 245, 172 N.E. 485 (N.Y. 1930) (Cardozo, C.J.).

9. Copart, 41 N.Y.2d at 568, 394 N.Y.S.2d at 172, 362 N.E.2d at 971, 7 ELR at 20605.

10. PROSSER AND KEETON, supra note 2, at 645.

11. Coates v. Mayor of New York, 7 Cow. 585 (N.Y. 1827).

12. Ives v. South Buffalo Railway Co., 201 N.Y. 271, 94 N.E. 431 (N.Y. 1911). See also Smead, Sic Utere Tuo ut Alienum Non Laedas: A Basis of the State's Police Power, 21 CORNELL L. REV. 276 (1936).

13. New York v. Shore Realty Corp., 759 F.2d 1032, 1051, 15 ELR 20358, 20367, citing Southern Leasing Co. v. Ludwig, 217 N.Y. 100, 111 N.E. 470 (N.Y. 1916). See also People v. Vanderbilt, 26 N.Y. 287 (N.Y. 1863).

14. Shore Realty, 759 F.2d at 1051, 15 ELR at 20367, citing City of Rochester v. Gutberlett, 211 N.Y. 309, 105 N.E. 548 (N.Y. 1914).

15. Board of Health v. Copcutt, 140 N.Y. 12, 21, 35 N.E. 443, 445 (N.Y. 1893).

16. Shore Realty, 759 F.2d at 1051, 15 ELR at 20367. See also State v. Monarch Chemicals Inc., 111 Misc. 2d 343, 443 N.Y.S.2d 967 (N.Y. Sup. Ct. 1981), aff'd, 90 A.D.2d 907, 456 N.Y.S.2d 867, 13 ELR 20482 (N.Y. App. Div. 1982) (pollution of soil and groundwater from hazardous waste facility constitutes a public nuisance); State v. Schenectady Chemicals, Inc., 117 Misc. 2d 960, 459 N.Y.S.2d 971, 13 ELR 20550 (N.Y. Sup. Ct. 1983), aff'd in part and rev'd in part, 103 A.D.2d 33, 479 N.Y.S.2d 1010 (N.Y. App. Div. 1984) (seepage of chemical wastes into a public water supply constitutes a public nuisance).

17. 759 F.2d at 1050, 15 ELR at 20367.

18. State v. Ole Olsen, Inc., 65 Misc. 2d 366, 317 N.Y.S.2d 538 (N.Y. Sup. Ct. 1971) (motion to dismiss denied), aff'd, 38 A.D.2d 967, 331 N.Y.S.2d 761 (N.Y. App. Div. 1972), decision at trial, 76 Misc. 2d 97, 352 N.Y.S.2d 97 (N.Y. Sup. Ct. 1973), aff'd mem., 45 A.D.2d 821, 357 N.Y.S.2d 1016 (N.Y. App. Div. 1974), aff'd and modified, 35 N.Y.2d 979, 365 N.Y.S.2d 528, 324 N.E.2d 886 (N.Y. 1975).

19. In re Oswego Barge Corp., 439 F. Supp. 312 (N.D.N.Y. 1977).

20. Town of Cheektowaga v. Sts. Peter & Paul Russian Greek Orthodox Church, 123 Misc. 458, 205 N.Y.S. 334 (N.Y. Sup. Ct. 1924).

21. Shore Realty, 759 F.2d at 1051, 15 ELR at 20367.

22. Id.; Schenectady Chemicals, 103 A.D.2d at 38-39, 479 N.Y.S.2d at 1010-1011.

23. See, e.g., State Department of Environmental Protection v. Ventron, 94 N.J. 473, 468 A.2d 150, 13 ELR 20837 (N.J. 1983) (pollution from toxic wastes that seeps onto the land of others and into streams necessarily harms the environment and is a public nuisance); Wood v. Picillo, 443 A.2d 1244, 12 ELR 21000 (R.I. 1982) (toxic chemicals present in dumpsite and leaking into surrounding marsh will eventually threaten wildlife and humans and must be abated as a public nuisance); People v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir. 1982) (Chicago's allegations that fenced site contained exposed chemical waste to which public could gain access set forth common law public nuisance cause of action); Village of Wilsonville v. SCA Services, Inc., 86 Ill. 2d 1, 426 N.E.2d 824, 11 ELR 20698 (Ill. 1981) (where chemical waste dump threatened future leak, permitting by state and federal authorities no bar to town's prayer for public nuisance abatement); Town of East Troy v. Soo Line Railroad Co., 653 F.2d 1123, 11 ELR 20079 (7th Cir. 1980) (under Wisconsin law, spill of hazardous chemical constituted a public nuisance without proof of injury to land or persons); Commonwealth v. Barnes & Tucker Co., 9 Pa. Commw. 1, 303 A.2d 544 (Pa Commw. Ct. 1973), rev'd and remanded, 455 Pa. 392, 319 A.2d 871, 4 ELR 20545 (Pa. 1974), injunction issued, 23 Pa. Commw. 496, 353 A.2d 471, 6 ELR 20466 (Pa. Commw. Ct. 1976); aff'd, 472 Pa. 115, 371 A.2d 461, 7 ELR 20394 (Pa. 1977), appeal dismissed, 434 U.S. 807 (release of acidic minewater into river constituted public nuisance without more).

24. Historically, nuisance as an action to protect property rights predated the emergence of the varying standards of duty and liability for personal injury we today know as the law of torts. See Coquillette, Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment, 64 CORNELL L. REV. 761 (1979); McRae, The Development of Nuisance in the Early Common Law, 1 U. FLA. L. REV. 27 (1948).

25. W. PROSSER, THE LAW OF TORTS 572 (4th ed. 1971) [hereinafter PROSSER]. More recent scholarship casts doubt on the proposition that the assize of nuisance had a criminal character, see C. FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW (1949), but Dean Prosser's analysis has been accepted by many courts, see, e.g., Copart, 41 N.Y.2d at 567-68, 7 ELR at 20605.

26. PROSSER, supra note 25, at 572.

27. Id.

28. Id.

29. Id. at 586.

30. People ex rel. Bennett v. Laman, 250 A.D. 368, 14 N.E.2d 439 (N.Y. App. Div. 1938).

31. People ex rel. Lemon v. Elmore, 256 N.Y. 489, 177 N.E. 14 (N.Y. 1931).

32. State v. Town of Huntington, 67 Misc. 2d 875, 325 N.Y.S.2d 624 (N.Y. Sup. Ct. 1971), aff'd, 37 A.D.2d 858, 326 N.Y.S.2d 981 (N.Y. App. Div. 1971).

33. See supra text accompanying note 2.

34. See Melker v. City of New York, 190 N.Y. 481, 83 N.E. 56 (N.Y. 1908) and cases cited therein.

35. See, e.g., Copart, 41 N.Y.2d at 571-72, 7 ELR at 20606.

36. 140 N.Y. 12, 35 N.E. 443 (N.Y. 1893).

37. Id. at 21, 35 N.E. at 445.

38. 299 N.Y. 77, 85 N.E.2d 873 (N.Y. 1949).

39. Id. at 78, 85 N.E.2d at 875.

40. See also Illinois v. City of Milwaukee, 599 F.2d 151, 166, 9 ELR 20347 (7th Cir. 1979), rev'd on other grounds sub. nom. City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981) (holding that "… if pollution endangers the public health, injunctive relief is proper without resort to balancing"). Compare Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (N.Y. 1970), where, as between competing private interests, the New York Court of Appeals found that the social utility of the defendant's nuisance could be weighed against the extent of the plaintiff's injury. It ruled that the nuisance, a plant employing five hundred people, could be allowed to continue operating upon payment of compensation for creation of an equitable servitude upon plaintiffs' land.

41. 7 Misc. 2d 643, 166 N.Y.S.2d 458 (N.Y. Sup. Ct. 1957), aff'd, 6 A.D.2d 880, 177 N.Y.S.2d 1010 (N.Y. App. Div. 1958).

42. 7 Misc. 2d at 645, 166 N.Y.S.2d at 462.

43. 96 Misc. 2d 350, 409 N.Y.S.2d 40 (N.Y. Sup. Ct. 1978).

44. Id. at 358, 409 N.Y.S.2d at 44-45.

45. Id.

46. 65 Misc. 2d 366, 317 N.Y.S.2d 538 (N.Y. Sup. Ct. 1971).

47. 759 F.2d 1032, 1051, 15 ELR 20358, 20367.

48. Id. (emphasis in original).

49. Id. at 1038-39, 15 ELR at 20360.

50. 117 Misc. 2d 960, 459 N.Y.S.2d 971, 13 ELR 20550 (N.Y. Sup. Ct. 1983).

51. Id. at 960, 459 N.Y.S.2d at 973, 13 ELR at 20550.

52. Id. at 965, 459 N.Y.S.2d at 976, 13 ELR at 20551.

53. Id. at 970, 459 N.Y.S.2d at 979, 13 ELR at 20552.

54. 103 A.D.2d 33, 479 N.Y.S.2d 1010 (N.Y. App. Div. 1984).

55. Id. at 38-39, 479 N.Y.S.2d at 1014.

56. 759 F.2d at 1050, 15 ELR at 20367.

57. Copart, 41 N.Y.2d at 569, 394 N.Y.S.2d at 172, 7 ELR at 20605. As Dean Prosser put it, the issue is not "defendant's conduct but whether he [will] be permitted to continue it." Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 418 (1942).

58. PROSSER, supra note 25, at 594.

59. The state litigator will, by definition, be concerned with those conditions which are potentially hazardous to the community and are public, rather than private, nuisances.

60. It is precisely the "limits set to property by other public interests [which] present themselves as a branch of … the police power of the state." Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).

61. Lawton v. Steele, 152 U.S. 133, 136 (1893).

62. Hadachek v. Sebastian, 239 U.S. 394, 410 (1915).

63. Bacon v. Walker, 204 U.S. 311 (1907).

64. Great A&P Tea Co. v. Grosjean, 301 U.S. 412, 425 (1937).

65. Rice v. Santa Fe Elevator Corp., 312 U.S. 218 (1947).

66. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).

67. People v. Nebbia, 262 N.Y. 259, 270, 186 N.E. 694, 699 (N.Y. 1933), aff'd, 291 U.S. 502.

68. PROSSER, supra note 25, at 587.

69. Mugler v. Kansas, 123 U.S. 623, 625 (1880).

70. Id. at 673.

71. Compare, e.g., PROSSER, supra note 25, Chap. 15, "Nuisance," and PROSSER AND KEETON, supra note 2, Chap. 15, "Nuisance" (see especially §§ 88, 88A, 88B and 88C); see also Bryson & MacBeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 ECOLOGY L.Q. 241 (1972).

72. 9 Pa. Commw. 1, 303 A.2d 544 (Pa. Commw. Ct. 1973).

73. Id. at 6, 303 A.2d at 546.

74. Id. at 9-11, 303 A.2d at 549-550.

75. Id. at 17, 303 A.2d at 551.

76. Id.

77. Id. at 21 n.3, 303 A.2d at 553 n.3.

78. Id. at 22, 303 A.2d at 554.

79. Id. at 23, 303 A.2d at 554.

80. Id. at 32-33, 303 A.2d at 559.

81. Id. at 57, 303 A.2d at 571.

82. 455 Pa. 392, 410, 319 A.2d 871, 881, 4 ELR 20545, 20549.

83. Id. at 414, 319 A.2d at 883, 4 ELR at 20550.

84. Id. at 419, 319 A.2d at 885, 4 ELR at 20551.

85. 23 Pa. Commw. 496, 509, 353 A.2d 471, 478, 6 ELR 20466.

86. Id.

87. Id. at 510, 353 A.2d at 479, 6 ELR at 20466.

88. Id.

89. 472 Pa. 115, 129, 371 A.2d 461, 467, 7 ELR 20394, 20397 (Pa. 1977), appeal dismissed, 434 U.S. 807.

90. National Wood Preservers, Inc. v. Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37, 10 ELR 20724 (Pa. 1980).

91. Id. at 239 n.18, 414 A.2d at 46 n.18, 10 ELR at 20728 n.18 (emphasis supplied).

92. Other concepts, such as permitted use, moderated the force of strict liability as applied to public nuisance. See, e.g., Booth v. Rome W&O Terminal Railway Co., 140 N.Y. 267, 35 N.E. 592 (N.Y. 1893). Moreover, a general social bias in favor of economic expansion ensured that abatement actions were not often prosecuted. See generally Brenner, Nuisance and the Industrial Revolution, 2 J. LEGAL STUD. 403 (1974).

93. Melker v. City of New York, 190 N.Y. 481, 491, 83 N.E. 565, 568 (N.Y. 1908).

94. Annotation, Contributory Negligences or Assumption of Risk as Defense to Action for Damages From Nuisance — Modern Views, 73 A.L.R.2d 1378 (1960).

95. Id. at 1380.

96. 247 N.Y. 340, 160 N.E. 391 (N.Y. 1928).

97. 247 N.Y. at 343, 160 N.E. at 391.

98. Id.

99. Id. at 344-45.

100. Id. at 348. See also Curtis v. Kastner, 220 Cal. 185, 30 P.2d 26 (Cal. 1934) (plaintiff's contributory negligence is especially relevant in case of absolute nuisance because there is no negligence on part of liable defendant). But see Delaney v. Philhearn Realty Holding Co., 280 N.Y. 461, 21 N.E.2d 507 (N.Y. 1939) (contributory negligence may be no defense in case of absolute nuisance.)

101. McFarlane, 247 N.Y. at 345, 160 N.E. at 392.

102. 299 N.Y. at 78, 85 N.E.2d at 875.

103. See supra text accompanying notes 57-58.

104. See supra text accompanying notes 96-101.

105. See, e.g., Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 398 N.Y.S.2d 401 (N.Y. 1977).