A public nuisance consists of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:
A. injurious to public health, safety, morals or welfare; or
B. interferes with the exercise and enjoyment of public rights, including the right to use public property.
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.
History: 1953 Comp., § 40A-8-1, enacted by Laws 1963, ch. 303, § 8-1.
ANNOTATIONSCross references. — For polluting of water being public nuisance, see 30-8-2 NMSA 1978.
For provisions on abatement of public nuisance, see 30-8-8 NMSA 1978.
For conduct offensive to public well-being, see 30-8-12 NMSA 1978.
For house of prostitution being public nuisance, see 30-9-8 NMSA 1978.
For gambling and gambling houses being public nuisance, see 30-19-8 NMSA 1978.
For provision making forest fire burning without proper precaution a public nuisance, see 30-32-1 NMSA 1978.
Nuisance must affect group of people. — A public nuisance must affect a considerable number of people or an entire community or neighborhood. Environmental Improvement Div. v. Bloomfield Irrigation Dist., 1989-NMCA-049, 108 N.M. 691, 778 P.2d 438, cert. denied, 108 N.M. 681, 777 P.2d 1325.
This section applies to "anything affecting any number of citizens", which means a considerable number of people or an entire community or neighborhood. State ex rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.
Anticipatory nuisance. — Anticipatory nuisance is a valid cause of action. State ex rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.
Acts of municipality under governmental authority. — In the absence of a showing of fraud, collusion, or illegality, a city's constitutional and statutory authority to construct public highways and bridges constitutes a valid defense to a claim of nuisance per se. City of Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque, 1991-NMCA-015, 111 N.M. 608, 808 P.2d 58, cert. denied, 113 N.M. 524, 828 P.2d 957 (1992).
Acts which the law authorized to be done, if carried out and maintained in the manner authorized by law, where a public entity acts under its governmental authority, do not constitute public nuisances per se. City of Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque, 1991-NMCA-015, 111 N.M. 608, 808 P.2d 58, cert. denied, 113 N.M. 524, 828 P.2d 957 (1992).
Absent a showing that a project is, or will be, conducted or maintained in a manner contrary to law, a city is lawfully empowered to initiate and construct such project, and the project is not subject to abatement as a public nuisance per se, because the construction, operation, and maintenance of a highway or bridge in a lawful manner does not constitute a public nuisance. City of Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque, 1991-NMCA-015, 111 N.M. 608, 808 P.2d 58, cert. denied, 113 N.M. 524, 828 P.2d 957 (1992).
Public works as public nuisance. — Public works projects are fundamentally different from private construction projects. A public project carries with it the presumption that it is for the public good; proof that it will be a nuisance must be balanced against its benefit for the public as a whole. State ex rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.
Due authorization of public works. — If the public works project is in existence and poses a present nuisance, due authorization is a qualified defense; courts may or may not decide that despite the defense the project is still a nuisance. However, if the project has yet to be constructed and is challenged as an anticipatory nuisance in fact, due authorization is an absolute defense; courts will summarily conclude that there is no basis for a finding of nuisance. State ex rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.
Contamination of underground water. — Where a sewage treatment facility is operated by a city in a manner which results in the contamination of the underground water to such a degree that it is offensive or dangerous for human consumption or use, is injurious to public health, safety and welfare and interferes with the exercise and enjoyment of public rights, including the right to use public property, the city has created a public nuisance within the meaning of this section. Relief in the nature of a mandatory injunction requiring abatement of the nuisance by ordering the city to extend its waterlines to residences in and outside its limits free of hookup charges would not be a "donation" in violation of N.M. Const., art. IX, § 14. State ex rel. N.M. Water Quality Control Comm'n v. City of Hobbs, 1974-NMSC-064, 86 N.M. 444, 525 P.2d 371.
Shooting range. — Use of private property as a trap shooting range was not a "public right," and, thus, the actions of adjoining landowners in making complaints to the sheriff who shut down the range for an investigation did not support a claim under this section. State ex rel. Smith v. Riley, 1997-NMCA-063, 123 N.M. 453, 942 P.2d 721.
Entrance to house. — "Stoop" or concrete platform 14 1/2 inches off ground located outside back door of premises which was only means of entrance and exit was not a public nuisance as defined by statute, nor a private nuisance. Jellison v. Gleason, 1967-NMSC-033, 77 N.M. 445, 423 P.2d 876.
Illegal sale of alcoholic beverages is not a statutory nuisance per se nor is it a common law nuisance per se. State v. Davis, 1958-NMSC-130, 65 N.M. 128, 333 P.2d 613.
Damages. — Compensatory damages are not available for statutory public nuisance, as abatement of the nuisance is the prescribed remedy. New Mexico v. General Elec. Co., 335 F. Supp. 2d 1185 (D.N.M. 2004).
Launching rockets. — Construction and launching of rockets without adequate supervision and without adequate safeguards being provided to protect the persons involved as well as other persons and property which could be harmed by such a dangerous mechanism would be a public nuisance under this section. 1961 Op. Att'y Gen. No. 61-134.
Law reviews. — For note, "The Availability of the Affirmative Defenses of Assumption of Risk and the 'Sale Defense' Against Common Law Public Nuisance Actions; United States v. Hooker Chemicals & Plastics Corp.," see Nat. Resources J. 941 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Nuisances §§ 35, 36, 403, 404.
Necessity of knowledge by owner of real estate of a nuisance maintained thereon by another to subject him to the operation of a statute providing for the abatement of nuisances or prescribing a pecuniary penalty therefor, 12 A.L.R. 431, 121 A.L.R. 642.
Computer as nuisance, 45 A.L.R.4th 1212.
Telephone calls as nuisance, 53 A.L.R.4th 1153.
Tree or limb falls onto adjoining private property: personal injury and property damage liability, 54 A.L.R.4th 530.
Legal aspects of speed bumps, 60 A.L.R.4th 1249.
Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.
Sewage treatment plant as constituting nuisance, 92 A.L.R.5th 517.
Preemption, by provisions of Clean Air Act (42 USCS §§ 7401 et seq.), of federal common law of nuisance in area of air pollution, 61 A.L.R. Fed. 859.
66 C.J.S. Nuisances §§ 2, 159.