“Stop being a nuisance!”
I heard that admonition plenty of times in my youth.
What I didn’t realize was that the term “nuisance” was not only a common description of an annoying child, but also a term of long-standing legal consequence.
Under Missouri law, nuisance is defined as the unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his property.
Nuisance can be a basis to file a lawsuit seeking an injunction and/or damages for such conditions and activities that creates unreasonable noise, pollution, visual blight, or noxious odor.
Nuisance when committed by the government can also be a legal basis for a private landowner to seek money damages for inverse condemnation, on the theory that the government entity causing the nuisance is actually taking a valued property interest from the complaining party, without compensating them, just as if the government were building a road or pipeline over their land.
This was the claim in a case decided by the Missouri Court of Appeals earlier this month, Scott Family Properties v. Missouri Highway and Transportation Commission.
The Scott Family owns an office building alongside Interstate 64 in Chesterfield, Missouri. The Highway Department built a sound wall on its own property adjacent to the interstate that obstructed the view of the Scott Family’s office building to the thousands of passersby each day. The Scott Family claimed that the wall, although on public property, impaired the Scott Family’s ability to attract commercial tenants to its building, constituting a nuisance, and entitling them to $5 million in damages under an inverse condemnation theory.
The Scott Family also alleged that the Highway Commission violated its own policies by failing to give public notice and allow public comment before erecting the wall.
The Highway Commission filed a motion to dismiss the Scott Family’s lawsuit on its face on the basis that Missouri law doesn’t recognize a protectable interest in or right to the visibility of one’s property to the public.
The St. Louis County Circuit Court agreed, and dismissed the lawsuit. The Scott Family appealed.
The Court of Appeals affirmed the dismissal, relying on a series of cases on the Missouri books that landowners do not have a property right in visibility.
The Court distinguished cases that permitted nuisance claims for unsightly conditions, like junk yards and trash heaps, as opposed to a claim of obstructed visibility, which it refused to recognize as a basis for going forward on a claim of nuisance, just as Missouri Courts had held in prior cases.
The Court also noted that the failure of the Highway Commission to follow its internal rules on public notice and comments before building the wall may (or may not) have some legal implications, but that was not a factor in determining that the Scott Family’s situation did not constitute a nuisance under Missouri law, entitling them to monetary damages under inverse condemnation.
And while there may be some sympathy for the Scott Family, with the view of its commercial building being obstructed, I can also understand the other side of the argument.
For if we change the law to recognize that anything that obstructs visibility to the public may constitute an actionable nuisance, then every new sign, new building, new traffic reconfiguration, or newly planted tree could open the door to a nuisance claim by some commercial enterprise that feels that it obstructs there visibility.
And so our Courts have decided, once again, that we just don’t want to go there with the Missouri law on nuisance.
-- Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org