TAILIEUCHUNG - Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P21

Gale Encyclopedia of American Law Volume 4 P21 fully illuminates today's leading cases, major statutes, legal terms and concepts, notable persons involved with the law, important documents and more. Legal issues are fully discussed in easy-to-understand language, including such high-profile topics as the Americans with Disabilities Act, capital punishment, domestic violence, gay and lesbian rights, physician-assisted suicide and thousands more. | ENVIRONMENTAL LAW 189 character and severity of the harm imposed the social value of the jeopardized interest the appropriateness of protecting the interest in a particular locality and the burden to the community or individual in avoiding the harm. An activity s usefulness is measured by the activity s social utility its suitability to a particular community and the practicality or expense of preventing the harm it inflicts. Because there is no exact or universally agreed-upon value for each of the competing interests it is often difficult for judges to apply the balancing test in a consistent fashion. Gravity of the injury Although courts apply the balancing test for nuisance actions on a case-by-case basis judges generally follow certain principles. The injury in question must be real and appreciable the law does not concern itself with trifles. An occasional whiff of smoke a temporary muddying of a well a modest intrusion by roots or branches and intermittent odors of sauces and stews will not rise to the level of a nuisance. Courts also consider whether the alleged nuisance is of a continuing nature or has produced permanent or long-lasting effects. Nuisance law may excuse an isolated invasion of drifting pesticides a single overflow of a sewer outlet or a debris-burning incident lasting only a few days and some courts have held that recurrence is a necessary prerequisite to a nuisance determination. For example one court denied a prison inmate s nuisance claim that he was poisoned by pesticide delousing because it occurred on only one occasion. In such cases plaintiffs may have a viable claim for trespass or negligence discussed later in this article but not for nuisance. In suits over pollution courts also consider which party arrived first in the particular community the polluter or the landowner alleging harm. The law has permitted polluters to escape liability by proving that a landowner alleging harm moved next to a preexisting nuisance with knowledge of

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