There are two types of nuisances: private and public. The two have little to do with each other. A private nuisance is activity that interferes with the use and enjoyment of someone’s land; air and water pollution, noise, and bad odors are classic examples. Public nuisance has come to mean acts which inconvenience or interfere with public rights common to all. A public nuisance is often a criminal matter enforced by the local prosecuting attorney or the state’s attorney general. Obstructing a highway, operating a house of prostitution, or operating a gambling resort are examples of public nuisances. Overlap between public and private nuisances occurs when a public nuisance also interferes with a private owner’s use and enjoyment of his land.
The common law maintained a bright line between trespass and nuisance by requiring a direct invasion for trespass and excluding intangible intrusions such as smoke drift from being actionable as trespass. Modern technology has made it possible for intangible intrusions of invisible chemical particles to cause considerable damage to property and people, and as a result the courts, in cases such as Bradley, in $ 9.02[B], have had to re-think the lines between trespass and nuisance.
According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the resi- dence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of plaintiff’s lot and commenced planning construction of a home. *** ***
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Plaintiff’s home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant’s home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff’s lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee and the Planning Commission of the City of Muskego approved the defendant’s plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Archi- tectural Control Committee. The problem with defendant’s proposed construc- tion, as far as the plaintiff’s interests are concerned, arises from a combination of the grade and the distance of defendant’s home from the defendant’s lot line. ***
As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make “a comparative evaluation of conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant’s conduct.” The circuit court concluded: “A com ative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant’s conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning.” ** ***
This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other. *** ***
The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (20) Torts $ 821D. The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property. The comment in the Restatement describes the landowner’s interest protected by private nuisance law as follows:
Although the defendant’s obstruction of the plaintiff’s access to sun- light appears to fall within the Restatement’s broad concept of a private nuisance as a nontrespassory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. ***
The defendant is not completely correct in asserting that the common law did not protect a landowner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.*