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85 W. Va. L. Rev. 263 (1982-83)
West v. National Mines: Creation of Private Nuisance by Use of Public Property

handle is hein.journals/wvb85 and id is 271 raw text is: Case Comments WEST v. NATIONAL MINES: CREATION OF PRIVATE NUISANCE BY USE OF PUBLIC PROPERTY I. INTRODUCTION Private nuisance law1 has evolved case by case since the early assizes and, at its core, protects an individual's right to quiet possession and enjoyment of one's land.2 Most jurisdictions, including West Virginia,3 follow the general rule which defines a private nuisance as any activity that unreasonably inter- feres with the private use and enjoyment of land.4 Underlying this definition, however, are competing policy considerations, and the court is the traditional forum to determine whose interests will domi- nate in a private nuisance action.5 Frequently at conflict are the social utility of a business enterprise and the habitation rights of the private landowner.6 In balancing these interests, the West Virginia Supreme Court of Appeals has been inclined to permit businesses latitude in conducting their activities and not to impose unnecessary restrictions.7 However, the court has also recognized that this latitude must be restricted when business operations unreasonably interfere with the use and enjoyment of another person's land.8 The term nuisance is incapable of exact and complete definition which will fix all cases since the controlling facts and affected subject matter vary from case to case. See generally, W. PROSSER, THE LAW OF TORTS § 86 (4th ed. 1971) (hereinafter cited as PROSSER). Nuisance law protects the invasion of two distinct interests, private and public: A private nuisance threatens injury to one or a few persons or which violates only private rights and produces damages to one or to no more than a few persons. BALLENTINE'S LAW DICTIONARY 993 (3d ed. 1969). A public nui- sance is a violation of a public right either by direct encroachment upon a public right or property or by doing some act which tends to a common injury, or by omitting to do some act which the common duty requires, and which it is the duty of the person to do, which results in injury to the public. It is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency or morals of the citizens at large, resulting either from an act not warranted by law, or from neglect of a duty imposed by law. BALLENTINE'S LAW DICTIONARY 1023 (3d ed. 1969). A nuisance may be public and private at one and the same time where conduct constituting a public nuisance substantially interferes with the use of privately owned land. PROSSER, supra § 86, at 573. ' PROSSER, supra note 1, § 89, at 591. 2 See Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692 (1974); Martin v. Williams, 141 W. Va. 595, 93 S.E.2d 835 (1956). 4 RESTATEMENT (SECOND) OF TORTS § 822 (1977). ' Martin v. Williams, 141 W. Va. 595, 605, 93 S.E.2d 835, 841 (1956). 1 E.g., Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692 (1974); Gunther v. E.I. duPont de Nemours & Co., 157 F. Supp. 25 (N.D. W. Va. 1957), appeal dismissed, 255 F.2d 710 (4th Cir. 1958); Sanders v. Roselawn Memorial Gardens, Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968). 7 Gunther v. E.I. duPont de Nemours & Co., 157 F. Supp. at 33; Sanders v. Roselawn Memo- rial Gardens, Inc., 152 W. Va. at 113-14, 159 S.E.2d at 798. ' Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692 (1974).

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