The differences in a private nuisance & trespassing
Trespassing falls into one of two categories: trespass to land and trespass to chattels. Trespass to land means that the defendant entered real property owned or occupied by the plaintiff.
Trespass to chattels means that the defendant interfered with the plaintiff's right to enjoy personal property.
Private nuisance means that the defendant is doing something that prevents the plaintiff from enjoying his property. Although these concepts are closely related, there are some important differences.
Degree of Interference
To recover for trespassing, the plaintiff must show that the defendant interfered to any degree with the plaintiff's property or entered the plaintiff's land.
Private nuisance also requires the plaintiff to show that the defendant interfered with the plaintiff's property. Unlike with trespassing, in a private nuisance claim the plaintiff must establish that the interference was substantial, meaning that an ordinary person in the community would consider the nuisance strongly offensive or seriously annoying.
To recover for trespassing, the plaintiff must show that the defendant acted intentionally with respect to the plaintiff's property.
The plaintiff does not have to show that the defendant specifically intended to interfere with the plaintiff's property. So long as the defendant intended to act, this requirement is satisfied. For example, if Sam intended to enter a portion of land that Sam thought he owned, but mistakenly entered Dave's land, Sam may be liable for trespassing even though he entered Dave's land by mistake. All that is required is that Sam intended to enter onto the land. By contrast, a plaintiff suing for private nuisance is not required to establish that the defendant acted intentionally.
A plaintiff seeking to recover for private nuisance must establish that the defendant acted either intentionally or negligently. Negligence means that the defendant did something, or failed to do something, that a reasonable person in the defendant's position would have done, or would not have done.
By contrast, a plaintiff seeking to recover for trespassing cannot recover if the plaintiff only establishes that the defendant acted negligently. In other words, a showing of intent is required in an action for trespassing.
Right to Possession
A plaintiff can recover for trespassing even if he did not possess the item or land lawfully. This does not apply if the plaintiff is suing the rightful owner of the property.
By contrast, a plaintiff suing for private nuisance must establish that he or she has the right possess the property.
For example, if Sue breaks into Betty's vacant vacation home and Cindy attempts to enter the property, Sue could sue Cindy for trespassing. However, if Cindy was instead operating a factory and smoke from the factory was entering the property occupied by Sue, Sue could not sue Cindy for private nuisance because Sue does not have the right to possess Betty's vacant home.
Punitive damages are awarded in addition to actual damages as a means of punishing the defendant who acted intentionally.
Because a person can only recover for trespassing upon a showing of intent, punitive damages are available for trespassing. Because a plaintiff can recover for private nuisance by showing either that the defendant acted intentionally or negligently, punitive damages are not available in a private nuisance action if the plaintiff's case relied on negligence.