Private landowners may suffer property damage in a variety of ways. From industrial plants belching out smoke and toxins to farms raising livestock next to neighborhoods, property owners may have options when their goal is to stop the offensive problem or to recover damages.

Depending on the facts of the case, a plaintiff may be able to bring a nuisance claim against the defendant. Nuisance actions are generally appropriate when the plaintiff suffers indirect damage to his property. These injuries are typically consequential and result from the commission of an act beyond the limits of the affected property. Georgia law defines nuisance as anything that causes hurt, inconvenience, or damage to another's person or property.

Inconvenience is generally regarded as something that would affect an ordinary, reasonable man. In a nuisance action, the plaintiff must allege that the defendant's action was illegal, improper, negligent, or caused the plaintiff injury or harm. The essential element of nuisance is control over the cause of the harm. In other words, the defendant must be the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.

Nuisances are broken into two categories: public and private. A public nuisance is one which damages all persons who come within the sphere of its operation such as a plant producing an odor that affects all the residents within an area. Such actions must generally be brought by the district attorney, city attorney, or county attorney on behalf of the public. A private nuisance is one that is limited in its injurious effects to one or a few individuals. An example of a private nuisance would be the discharge of waste water from a plant onto property owned by one person. Plaintiffs in private nuisance actions may recover for both damage to the person and the property.

It is important to note that activities which are otherwise lawful may become a nuisance by improper operation or other circumstances. For instance, a plant that is in compliance with the Air Quality Act may still be liable for nuisance if it releases a large amount of soot and ash into the air which impacts nearby landowners. A defendant may also be liable for a continuing nuisance such as construction that causes continuous runoff onto someone's property. For continuing nuisances, it is not necessarily the creation of the nuisance which forms a legal action but rather the failure of the defendant to abate it.

A plaintiff may also elect to bring a trespass claim. Trespass is any unlawful interference with or invasion of a real property right. In a trespass action, the plaintiff must either have title or possession of the land. Trespass differs from nuisance in that trespass is a direct infringement on another's property right whereas nuisance is an infringement that is a result of an act which may not be wrongful in itself. Examples of trespass include pollution of the atmosphere which causes dust or debris to settle on land or the concussion to neighboring land caused by dynamite blasting. However, trespass actions are generally brought in conjunction with nuisance actions. This is especially true in surface water invasion cases. For instance, a polluted stream coming from a construction site which contaminates a plaintiff's property is considered to be a continuing trespass and a continuing nuisance.

A plaintiff may also bring a negligence claim when property is harmed. The plaintiff must show that the defendant had a duty which was breached and that the breach proximately caused the alleged injury. Generally, this duty requires a property owner to exercise the care of an ordinarily prudent person under the circumstances. A plaintiff may also be able to bring a negligence per se action when a statute or regulation is violated. If the plaintiff proves that the defendant violated a statute or regulation, negligence is generally presumed. However, the plaintiff must still prove that the violation caused his injuries.

Counties may be liable for conditions created on private property only under the constitutional eminent domain provisions against taking or damaging property for public purposes without just and adequate compensation. Thus, a plaintiff may generally only recover if the trespass or nuisance amounted to the taking of the property without just compensation. On the other hand, a municipality may be liable for nuisance like any other individual or private corporation.

In tort actions for injury to land, the general measure of damages is the difference in value of the property before and after the injury. Continuing trespass and nuisance actions tend to complicate matters. Damages in those actions must be divided into those before the cause of action was brought and those which are anticipated to occur in the future. Damages for past invasions include damages such as the resulting annoyance or discomfort to the owner, as well as the reduction in the land's yearly rental value for the period of the invasion if the invasion is temporary. If the invasion is permanent, these damages are measured by the diminution of the land's market value. In some cases, restoration costs of the land may also be awarded. Punitive damages may also be awarded in some cases.

A plaintiff may also wish to seek an injunction to stop the defendant from continuing a nuisance or starting one. Generally, injunctions are issued where the injury will cause irreparable harm. The classic example of an injunction being issued in a nuisance case is when a hog farm is being constructed next door to private landowners. Hog farms potentially pollute ground water and the air which may be enough for the court to stop construction or operation. However, a court will typically not completely enjoin an operation that is not a nuisance at law where only parts of the operation constitute the nuisance.

In defending nuisance actions, a defendant may have many options. For instance, a defendant may argue that the plaintiff assumed the risk when he moved next to a nuisance. However, an assumption of the risk defense will not necessarily bar recovery or prevent an injunction in a pollution action. Yet, it may diminish the amount of damages which would otherwise be recoverable. Such a landowner may be able to recover some damages, since the owner may have assumed that the nuisance would be abated.

The information provided above is a very general summary of the law regarding this particular legal issue at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult with a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all Georgia state and federal courts.