Legal Memorandum: Abatement of a Private Nuisance

Issue: Does California law allow an action for abatement of a private nuisance for landscaping that encroaches on another’s property?

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Private nuisance; Landscaping; Encroachments
Jurisdiction: California
Cited Cases: 181 Cal. App. 3d 867; 99 Cal. Rptr. 350; 119 Cal. Rptr. 2d 263; 69 Cal. Rptr. 2d 582; 226 Cal. Rptr. 698; 97 Cal. App. 4; 112 Cal. App. 2d 1
Cited Statutes: Cal. Civ. Code § 3479, § 3501, § 841
Date: 05/01/2005

Under the California Civil Code, a “nuisance” is defined as follows:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Cal. Civ. Code § 3479.  Liability for nuisance can arise from almost any conceivable act of interference with the enjoyment of another’s property, whether the act is intentional or negligent.  Tint v. Sanborn, 211 Cal. App. 3d 1225, 1227-28, 259 Cal. Rptr. 902, 903 (1989).  To establish liability for a private nuisance, the plaintiff must show (absent a showing of ultrahazardous or abnormal conduct such as would impose strict liability) that the defendant acted with malice or actually knew that his or her conduct would constitute a nuisance, or that the defendant was negligent.  Id. at 1228, 259 Cal. Rptr. at 904.  The remedies for private nuisance are civil action or abatement.  Cal. Civ. Code § 3501.

Clearly, branches from the trees that encroach or hang over the easement area onto a person’s property constitute a nuisance under California law.  See Bonde v. Bishop, 112 Cal. App. 2d 1, 2-3, […]

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