Tuesday, July 19, 2011

Noise as Nuisance: How bad does it have to be before judicial relief can be granted?


What constitutes a nuisance, legally speaking?

 A “nuisance” is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.  Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).  
Distinct types of nuisance claims: Excessive noise may qualify
Courts have divided actionable nuisance into three classifications:  (1) negligent invasion of another’s interest; (2) intentional invasion of another’s interest; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests.  See City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997).  

Noise, if sufficiently extreme, may constitute a nuisance.  See Schneider, 147 S.W.3d at 269; see also Kane v. Cameron Int’l Corp. 331 S.W.3d 145, 148 (Tex. App.–Houston [14th Dist.] 2011, no pet.) (nuisance may arise when person’s senses are physically assaulted).
A business that is lawful in and of itself may become a nuisance because of the locality in which it is carried on.  See Storey, 226 S.W.2d at 618.  A business may also be a nuisance because the place where it is located is uncongenial to that type of enterprise.  Id.   The law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business.  Id.  The right to acquire a known property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921).  However, it is a right that takes into account the equal rights of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others.  Id
SOURCE: Tyler Court of Appeals - 12-09-00291-CV  -7/13/11 

Here, the respective testimonies of Cox, Cardin, Williams, Saunders, Tarter, and Graham describe noise and activities from the ATV events at Pool Ranch that, for each of them, caused discomfort and annoyance.  We rely upon the trial court to determine whether each of these individuals is “a person of ordinary sensibilities.”  Based upon our review of their testimonies, we conclude that this evidence supports the existence of noise levels caused by ATV events that were sufficiently extreme to constitute a nuisance.  See Schneider, 147 S.W.3d at 269.
            Nonetheless, reasonable minds could have differed on the meaning, inferences, and conclusions to be drawn from the aforementioned evidence.  But we note that the trial court was entitled to disregard the contrary evidence offered due to the relationship to Appellants of those witnesses testifying that the operation by Appellants of a commercial ATV park caused them no discomfort and annoyance.  Based on our review of the entirety of the record, we conclude that the evidence contrary to the finding of a nuisance is not so against the great weight and preponderance of the evidence supporting the trial court’s finding that its determination was manifestly unjust.  Accordingly, we hold that there is both legally and factually sufficient evidence to establish that the ATV events on Pool Ranch created a nuisance in the community.  Appellants’ first issue is overruled.

SOURCE: Tyler Court of Appeals - 12-09-00291-CV  -7/13/11   

RELATED CONCEPTS: interference, tortious interference, invasion of privacy tort, intentional infliction of emotional distress (IIED)


  1. Need to get the Texas Legislature to reduce DB levels in unincorporated areas from 85 to 68 day and 58 night

    1. I absolutely agree!

    2. I agree the laws in Texas are bought and paid for by oil and gas companies.

  2. The Texas Legislature needs to understand that "we" the citizens and voters of this state matter, not just the noisy businesses. As the law is written it needs several changes...one being DBA not DB. There is a difference. Bass vibrations need to be considered. Where the readings are taken...at the offending party's property line is suggested. The "after the person making the noise receives notice from a magistrate or peace officer" needs to be clarified as to ONE warning, not one every hour or over and over again. As written the current law is unenforceable.

  3. Many changes need to be made to the current Texas noise statue (42.01) The realization that unwanted noise is unwanted noise whether it's a leaf blower or a dripping faucet it can be just as irritating and disturb your sleep. WHO (World Health Organization) recommends DBa no higher than 45 for restful nighttime sleep.