Kentucky-Ohio Gas Co. v. Bowling

Kentucky Court of Appeals · Property

PropertyPrivate nuisancePermanent vs. temporary nuisanceDamagesprivate nuisanceair vibrationpermanent nuisancetemporary nuisance

Facts

Bowling owned and occupied a home about 100 feet from the gas company's power plant and pumping station. After acquiring the plant in 1933, the company operated two gas engines to compress gas from eighty wells during six months of each year; although a later brick stack eliminated exhaust noise, the plant's intake operation caused air vibrations that shook Bowling's house so that doors and windows rattled and rest was disturbed. There was no evidence of earth vibration, and the court found the plant was not negligently constructed or operated. The plant and business were relatively enduring and not likely to be abated.

Issue

Whether the evidence was sufficient to submit Bowling's private nuisance claim to the jury, and if so, whether the nuisance should be treated as permanent or temporary for purposes of damages. Relatedly, the court had to determine whether Bowling could recover separately for annoyance and discomfort in addition to diminution in market value.

Rule

A nuisance is that which annoys or disturbs one in possession of property so as to render its ordinary use physically uncomfortable, judged by whether the complained-of use is unreasonable in the particular locality and manner of operation and whether it would produce physical discomfort to persons of ordinary sensibilities. If the nuisance is permanent because it results from the inherent character of a relatively enduring structure or business whose lawful and necessary operation creates the injury, and not from negligent construction or operation, damages are measured by the diminution in the market value of the affected property. In that circumstance, annoyance and discomfort are not separately recoverable beyond market-value diminution, though evidence of them is admissible insofar as they affect salable value.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a lightly populated area outside Tulsa, Nora Bennett lives in a cottage across the road from a permanently installed grain-drying facility owned by Red Prairie Milling, LLC. The facility is lawfully operated and emits rhythmic air pulses that make Nora’s windows chatter for several hours each evening during harvest season, but only Nora complains because she is unusually sensitive to low-frequency vibrations.

If Nora sues for private nuisance, which is the best statement of the governing standard?

Explanation. The majority states that a lawful business may still be a nuisance if, in the particular locality and manner of operation, it unreasonably produces physical discomfort to persons of ordinary sensibilities and ordinary tastes and habits. The test is not the plaintiff’s unusual sensitivity, nor is negligence or earth vibration required. (Derived from Kentucky-Ohio Gas Co. v. Bowling (n.d.).)