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When does a private nuisance become a public one? In Drayton v City of Lincoln City, the Oregon Court of Appeals was faced with the question of whether the violation of a city ordinance relating to “land disturbing activity causing erosion or deposits of material on the property of another” could constitute a “public nuisance.” The difference had been explained in Mark v. Dept. of Fish and Wildlife, 158 Or App 355, 359-60, 974 P2d 716 (1999):

“A public nuisance is an unreasonable interference with a right that is common to all members of the public. ... A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.”

In Drayton, the significant different between a “public” nuisance and a “private” one was whether a constant nuisance over the course of decades could establish a prescriptive easement. The Draytons run a landscaping business that has been in operation on the same property (under other ownership) since the 1980s. The running of the business caused a good deal of dust and dirt to float in the air and settle on the neighboring property. The procedural posture of the case was very convoluted, stemming from a suit by the Draytons against the city for finding them in violation of the municipal ordinance, and a declaratory judgment on whether they had established a prescriptive easement (the right to use another person’s property after doing so in a “hostile” fashion for a set number of years). The property owners living next to the Draytons counterclaimed for trespass and a declaration of a public or private nuisance.

Public nuisances cannot be used to establish prescriptive easements. The argument of the neighbors was that because the Draytons violated a municipal ordinance, the nuisance was inherently public. Not so, said the Court of Appeals. The ordinance was aimed at depositing material “on the property of another,” and therefore was a burden on a particular property or properties, not a burden to the public as a whole. Because the landscaping business had operated since the 1980s, and because the neighbors had moved in and began complaining in 2002, the Draytons had established a prescriptive easement to stir up dust.