Nuisance, "Modern Female Artists," Hunting, and Fiber Lines for Internet Access

In Bingham v. Kentucky Foundation for Women, Inc., decided Mar. 6 by Judge Charles Simpson (W.D. Ky.), writer Sallie Bingham owned a good deal of land, some of which she donated (to oversimplify) to the Foundation:

Historically, the Foundation has used the Real Property for women artists' retreats and residencies. However, according to the Foundation, Hopscotch House [the 5-bedroom residence on the property] has become outdated and artists' interest in staying there has dropped precipitously. Thus, it "proposed a renovation and addition to Hopscotch House to reinvigorate interest among female Kentucky artists in Hopscotch House, bringing it into the modern era and making it more attractive to, and safer for, modern female artists." The Foundation alleges that it "asked Bingham if she would be willing to donate funds for the project …." and "Bingham initially agreed." But later, Bingham "withdrew her funding."

There's a lot going on in the case (including claims for slander of title, defamation, and more), but here's an excerpt that struck me as unusual; note that it appears that the Foundation's property is surrounded by Bingham's land:

The Foundation maintains that Bingham is liable for creating a private nuisance because she (1) has prevented the Foundation from connecting its property to water lines and the internet and (2) permits hunting on her adjacent farmland which makes artists feel unsafe….

Under Kentucky law, nuisance consists of "that class of wrongs which arise from the unreasonable, unwarranted, or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequential damage." Accordingly, a nuisance is "anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable." Thus, the general rule is that "in order to be a nuisance the use of the property must disturb physical comfort or be offensive to physical senses." If the alleged nuisance causes only emotional upset, it is not actionable. McCaw v. Harrison (Ky. 1953) (plaintiff's fear that cemetery might contaminate wells and reduce property value not actionable).

Here, the Foundation has fallen short of stating a nuisance claim. The Foundation has alleged that Bingham's permitting hunting on her land "could result in crossfire across its property" and has caused some female artists to fear staying there. The Foundation has not alleged that dangerous crossfire has in fact occurred or has otherwise disturbed anyone's physical comfort.

The Foundation also asserts that Bingham's refusal to grant an easement so that the retreat can run new fiber lines for internet access and have access to "modern water lines" has resulted in a basic lack of amenities that artists find "challenging." But there are no allegations that anyone's physical comfort is being disturbed by something that is offensive to the senses [such as loud noise or blasting that shakes nearby homes].

The Foundation asserts that Smith v. Carbide and Chem. Corp (6th Cir. 2007) stands for the proposition that the loss of such conveniences constitutes an actionable nuisance. The Court disagrees. In Smith, the defendant had contaminated ground water, rendering the plaintiffs unable to use their water wells on which they had historically relied. No like circumstance has been pleaded here. Instead, the Foundation has alleged only that it needs to truck in water to fill a cistern—a condition that has been true since it bought the property in 1987.

As for the lack of a fiber-cable connection to the internet, such does not disturb one's physical comfort and rendering a vicinity less attractive does not state an actionable claim under Kentucky law. See L.D. Pearson & Son v. Bonnie (Ky. 1925) (people's reluctance to live next door to funeral home does not state action for private nuisance even though homes may lose value as result of undesirability)….