Water Pollution as a Private Nuisance

A private nuisance is the unreasonable or unlawful use of property that impairs another person’s right to the use and enjoyment of their own property.

When Can Water Pollution Occur?

Water pollution occurs when a contaminant is introduced or discharged into a water source. Contaminants include:

• Chemicals,
• Animal feces, or
• Industrial bi-products.

Water pollution can damage the health of people, crops, and animals living in or using the water.

Some indicators of water pollution include:

• Changes in the water’s color, odor, or taste
• Changes in the soil around a water source,
• Effects on humans or animals who consume the water,
• When you come in contact with water, you may feel a burning sensation
• Low crop yields.

Residents are exposed to water pollution that has not yet reached their wells for drinking water in many cases. However, they are still at risk.

As a result of the threat of contamination and the uncertainties surrounding the exact location and spread of groundwater contamination when it is first discovered, local residents are often compelled to take action to deal with the pollution.

As a result, they may have to purchase and rely on bottled water, take shorter baths and showers, stop using pools, and cope with the discomforts of being at risk of contamination. In such cases, residents should be able to sue for nuisance, but courts often reject such claims because the contamination has not yet reached their wells.

What Do You Have to Prove for Water Pollution as a Private Nuisance?

You must prove the following to have a successful lawsuit against another for water pollution as a private nuisance:

1. The other person’s actions interfered with your use or enjoyment of your property,
2. Their conduct was what caused that interference, and
3. If they acted intentionally, the result was unreasonable, or if they acted unintentionally, the result and conduct that led to the water pollution were unreasonable.

Are There Any Defenses?

Private nuisance lawsuits for water pollution can be defended in many ways. Here are a few examples:

• A person’s use and enjoyment of their land were not affected by the water pollution,
• Water pollution did not interfere with the person’s enjoyment of their land,
• It was not unreasonable for the conduct or result that led to the water pollution,
• Such a lawsuit is barred by statute, or
• The injured person consented to the conduct that caused the pollution.

What Can Be Recovered?

In general, a successful lawsuit will recover damages for any property damage or personal injuries caused by the pollution. Some of these can include present and future medical expenses, compensation for economic losses, and punitive damages.

Are There Any Other Theories of Liability?

Water pollution can be considered a private nuisance. There are other ways to sue for water pollution. Other theories of liability for water pollution include:

• Negligence,
• Trespass, and
• Strict liability.

Contamination Not on Property: Validity of Nuisance Claims

Residents generally claim nuisance by claiming the loss of enjoyment of their property as well as the loss of value of what is frequently their largest investment – their homes (referred to as “diminishment in property value” claims).

However, courts are faced with the difficult question of whether a person can have a valid nuisance claim even if contamination does not reach the plaintiff’s property. Where does liability end in such a case?

To avoid that difficult question, courts have too often created a bright line – if the contamination is not above regulatory standards, you do not have a claim. In this case, the history and purpose of the nuisance claim aren’t considered.

Private Nuisance Claims

Common law nuisance claims have a long history. As of the 12th century, an action for “assessment of nuisance” could be brought where there was no actual entry onto the land. This action differed from an “assessment of novel disseisin,” which involved physical impact on another’s land. A nuisance is an interference with the use and enjoyment of land.

Common law nuisance claims protect rights even when there is no physical trespass or encroachment on the land. At common law, trespass claims cover physical intrusions on another’s property. As a result, the purpose and history of a nuisance claim are to provide a remedy even if there is no physical intrusion onto the plaintiff’s property.

Despite this, courts have repeatedly ruled that nuisance claims cannot be brought in environmental tort actions where the contamination at issue has not yet reached the plaintiff’s land. Some of these cases have acknowledged that a nuisance claim does not require physical intrusion on another’s property.

As a result, the court finds that contamination or low-level contamination does not “significantly” impact the use and enjoyment of a site. It has been held that a nuisance claim could not arise on evidence of having to use “bottled water or Brita filters, entertaining in and around their homes less frequently than expected, or taking shorter showers and baths.” However, this limitation seems to ignore the reality of living with contaminated groundwater, especially when it threatens a home’s drinking water supply.

Nuisance Actions Based on Uncertainties

A nuisance action has traditionally been the result of foul odors, loud noises, or bright lights that intrude upon the plaintiff’s property. In fact, these are the types of non-trespassory nuisance claims upheld by the courts.

When such interferences are so “significant” as to warrant legal protection, how can it be that losing access to one’s drinking water – even for a relatively short time while contamination is investigated – is not so? It cannot be ignored that groundwater contamination is often fraught with uncertainties – How far has it spread? How fast is it spreading? What depth does it reach? Where is its highest concentration? All of these problems have been caused by the polluter’s failure to control or investigate the contamination.

Most courts disregard the impact of losing access to one’s tap water for drinking and cooking, or a swimming pool at home, as “insignificant.” But this results in granting a license to pollute without the threat of liability.

Practitioners believe that steps must be taken to bring the reality and gravity of the harms caused by the threatened or unknown levels of contamination to the court’s attention. Plaintiffs need to provide compelling and convincing testimony to convey to the court the difficulties of living with the contamination that is entirely the defendant’s fault.

In these situations, many of the cases relied upon by defendants failed because of a lack of evidence of actual interference with use and enjoyment or outright admissions by plaintiffs that they were not seeking use and enjoyment damages.

When defendants attempt to rely on such cases, they can and must be distinguished from plaintiffs who assert actual and substantial impacts on their lives. Losing access to one’s drinking water is no minor inconvenience, especially when it is possible that the drinking water the plaintiff has relied on for years may have been contaminated. These are the kinds of impacts on one’s pleasure, comfort, and security that a nuisance claim is intended to protect.

Do I Need an Attorney for Water Pollution Issues?

Suppose you are the victim of water pollution, or you are being sued for polluting someone else’s water. In that case, it is highly recommended that you find a property attorney because criminal liability may also exist along with civil liability. Only an attorney can explain the issues and help you defend your rights.