There is an interesting case out of Austin Texas that raises the now defunct “coming to the nuisance” doctrine. There was a time that a defendant could move to dismiss a nuisance case on the basis that the plaintiff moved to the existing nuisance only to challenge it in court. That doctrine fell into disfavor, but there continue to be cases where the underlying rationale seems compelling. Take the Westin in Austin. The company built a large hotel right next to the Nook Amphitheater — a huge draw in the city for music. The hotel then objected to . . . you guessed it . . . the music. The hotel is seeking to enjoin the music as harming their business.
The doctrine originated in early common law with cases like Rex v. Cross, 172 Eng. Rep. 219 (1826). The Court held:
if a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party would be entitled to continue his trade, because his trade was legal before the erection of the houses in the one case, and the making of the road in the other.
American courts found the doctrine to hinder growth and work against the common good, particularly as populations in cities expanded into rural areas. Of course this is a case of a hotel moving to a popular music area and then objecting to the music. The hotel says that guests cannot sleep late at night, even though the location itself is clearly a draw for guests. The complaint states that the Nook plays “chest thumping bass” seven nights a week until 2 a.m. — making some rooms uninhabitable. However, the Nook has a permit to play during those hours and insists that it stays within noise ordinances.
Coming to the nuisance is no longer a per se defense but it can be a factor considered in the determination of whether an activity constitutes a nuisance.
The result can be a creative form of injunction as in the case of Spur Industries, Inc. v. Del E. Webb Dev. Co., where Del Webb built a housing development next to one of the largest feed lots. Owned by Spur Industries in a long-standing cattle area of Arizona, the lot obviously produced odors and other unpleasant byproducts. Del Webb sued the lot as a public nuisance. The court had to conclude that the long-standing business did meet the definition of a nuisance. Yet, the Court noted that “in addition to protecting the public interest, however, courts of equity are concerned with protecting the operator of a lawfully, albeit noxious, business from the result of a knowing and willful encroachment by others near his business.” The Court noted that it did “not equitably or legally follow … that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained.” Thus, “it does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop … to indemnify those who are forced to leave as a result.” As a result, the lot was forced to move but Del Webb would have to indemnify Spur Industries for the damages sustained in relocating the feedlot.
Such a solution could be applied in the case of the Nook which could suffer a loss of business from an injunction. Yet, if the Nook is complying noise ordinances, the question is whether the activity is a nuisance — and whether (if it is a nuisance) the court should enjoin the activity.
What do you think?