Injury To Property
This chapter discusses damages for trespass and nuisance. Damages for related causes of action are briefly discussed in §5.54. Because the right to damages can be defeated by affirmative defenses, various defenses are also discussed in that section.
The focus of this chapter is on damages. However, one of the unique features of nuisance and trespass law is that the remedies cannot be separated from the substantive law. The historical growth of these two torts have produced an unusually tight bond between substantive law and the determination of the remedies available. The remedies and defenses applicable to a particular situation involving nuisance or trespass depend on the classification of the underlying claim as “per se” (see §5.3), “public” or “private” (see §§5.7–5.11), and “temporary/continuing” or “permanent” (see §§5.13–5.16). The result is that remedies, including damages, can be meaningfully discussed only in the context of the substantive law. Therefore, practitioners must review the elements of the causes of action for nuisance and trespass in order to possess sufficient information to evaluate the damage options available in a particular case.
Also, there are devastating traps for the unwary inherent in these classifications (e.g., “public/private,” “continuing/permanent”). The classifications are often artificial and extremely difficult to predict with accuracy. These classifications not only control what remedies are available but also determine whether the plaintiff has any viable claim at all. Practitioners must be aware of the implications of these classifications in their cases. See, e.g., §§5.7–5.12 concerning public and private nuisance and §§5.13–5.16 discussing temporary or continuing versus permanent nuisance.
This chapter does not provide a complete treatment of the substantive law of nuisance and trespass. For a discussion of nuisance, see 11 Witkin, Summary of California Law, Equity §§133–173 (10th ed 2005), and of trespass, see 5 Witkin, Summary, Torts §§604–609. For a review of insurance issues concerning damage to real property, see California Liability Insurance Practice: Claims and Litigation (Cal CEB 1991).