The Importance Of Priority Of Location In Private Nuisance Cases

One type of real estate litigation claim is an action for “private nuisance.” A private nuisance is an actionable interference with a person’s interest in the private use and enjoyment of the person’s land. Parties must use their own property in such a manner that they will not unreasonably interfere with or disturb their neighbor’s reasonable use and enjoyment of the neighbor’s property. A nuisance is anything that is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere unreasonably with the comfortable enjoyment of life or property.

Whether a business is a nuisance depends on the reasonableness of conducting the business in the manner, at the place, and under the circumstances in question. In considering the reasonableness of a business operation, courts consider which party had priority of location, the nature of the neighborhood, and the wrong complained of. None of these factors are determinative.

Let’s discuss “priority of location.” The Iowa Supreme Court has said that this factor “weighs heavily” in favor of the party who has priority and is given “considerable weight.” At the same time, as noted above no single nuisance factor is determinative. A party can still lose a private nuisance case even if it has priority of location.

Priority of location refers not to who lived on or owned their property first, but whether the complaining party moved to the nuisance. People have little basis to complain about conditions that they elected to encounter by moving to a location where a nuisance already existed. The important point in time at which to examine priority of location is just before the commencement of the nuisance-producing activities. In this sense, “priority of location” is really better understood as “priority of use.”

Recent examples from the Iowa Supreme Court illustrate this concept. In Miller v. Rohling, residential homeowners were able to recover against a grain elevator operation for private nuisance even though the business existed before the plaintiffs bought their homes. That was because the defendants increased their grain elevator’s storage capacity and the amount of grain being processed there (the use of their land), after the plaintiffs purchased their homes. The plaintiffs thus had priority of location because the defendants changed the use of their property after the home purchases. And in Perkins v. Madison County Livestock & Fair Association, residential homeowners successfully sued the fair association for private nuisance concerning racing at the fairgrounds. The homeowners won because, although the fairgrounds existed before most of them purchased their homes, the fair association did not start having races at the fairgrounds until after all of the homeowners had moved in.

The lesson from these cases is that businesses do not receive permanent immunity from private nuisance lawsuits simply because “they were there first.” The priority of location factor in private nuisance claims is more concerned with who was using their property in what manner and when rather than he was there first. Changed uses or conditions on the business’s property may still give rise to a successful private nuisance claim even if the business was long established before the complaining neighbor moved in.

Harley Erbe