John J. Tollefsen Civil Litigation Law Blog on Lawyers.com

Vance v. XXXL Development, LLC, --- P.3d ----, 2009 WL 1202596 (Wash.App. Div. 2 May 05, 2009) (NO. 37503-6-II)

In 1988, Vance bought a house in Longview, Washington for $205,000. In 2006, XXXL sought approval for a residential development just to the north of Vance's property. It constructed a retaining wall two feet from Vance's property line. The concrete block wall is approximately 25 feet high and more than 100 feet long.

In December 2006, Vance sued XXXL on several claims, including private nuisance. The trial court initially set the case for trial in December 2007, on a date when Vance still owned the home. The trial court granted XXXL's motion to continue the trial date and moved the trial to February 2008. Vance sold her home for $185,000 in December 2007, after the original trial date had passed. She claimed that, absent the nuisance, her house would have been worth $285,000.

A nuisance is an unreasonable interference with another's use and enjoyment of property. RCW 7.48.010 provides:

[W]hatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief.

RCW 7.48.020 states in part:

Such action may be brought by any person whose property is ... injuriously affected or whose personal enjoyment is lessened by the nuisance.” (Emphases added.) And RCW 7.48.180 provides, “The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.

The measure of damages for nuisance is the diminution in a property's value due to the nuisance. This method of calculating damages is not affected by the sale of a property; in fact, the damages are perhaps more easily measured post-sale.

The court held that the fact that Vance sold the house has no bearing on her ability to maintain her nuisance suit.