The law of nuisance has long been seen as the heart of real property law - this because of its distributive and re-distributive force in land use. In its present form, while often ad hoc in application, a nuisance is defined generally as merely some interference with the use and enjoyment of the land. The most common remedy to abate a nuisance is injunctive relief in equity. Yet, judicial creativity has been seen through the use of such remedies as awards of permanent damages and the compensated injunction. The doctrine of anticipatory nuisance is brought into focus usually when a moving party is seeking to prevent commencement of what is alleged will become a nuisance. While recognized in both state and federal common law for many years, it is under-utilized because of the high burden of proof (e.g., reasonable certainty or high probability) normally set legislatively or through judicial interpretation and practice. Currently, only two states - Alabama and Georgia - have statutory enactments which allow for injunctive relief to restrain actions before they become nuisances. In order to re-validate the doctrine of anticipatory nuisance and contemporize its inherent value to modern lawmaking - and particularly to environmental management - the thesis of this Article is simple and direct: namely, that by greater judicial care and insight in applying the traditional balancing test to include a weighing of both the probability and the magnitude of an injury, equitably nuanced and practical decisionmaking will occur.
Similarly, with legislative foresight, efforts should be made to define and clarify with greater specificity what evidentiary proofs must be submitted in order to establish, for example, a reasonable certainty of harm necessary to trigger injunctive relief.
George P. Smith, II, Re-Validating The Doctrine of Anticipatory Nuisance, 29 VT. L. REV. 687 (2005).