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Private nuisance claim survives demurrer

Virginia Lawyers Weekly//December 6, 2021

Private nuisance claim survives demurrer

Virginia Lawyers Weekly//December 6, 2021

Where plaintiffs allege, among other things, that every time they go into their backyard after dark, defendant turns on his floodlights, and makes “loud and obnoxious noises” while they are in their back yard, defendant’s demurrer to plaintiffs’ private nuisance claim is overruled.

Defendant’s demurrers to abuse of process and defamation claims, arising from swearing out a trespass complaint against one plaintiff and later withdrawing it, are sustained.


Plaintiffs, the Megills, own property adjacent to defendant Wulff. After installing a patio and a firepit in their backyard, which was approved by the homeowners’ association, plaintiffs allege defendant began harassing them.

“He [defendant] ‘turned his hose on the Plaintiffs when they were in their back yard.’ He (repeatedly) turned on his floodlights when the Plaintiffs were in their back yard after dark. He purposefully makes ‘loud and obnoxious noises’ when the Plaintiffs attempt to use their back yard.

“Further, the Defendant has intentionally directed a green strobe light at the Plaintiffs’ property. He also has intentionally extended the downspouts on his house for the sole purpose of directing the flow of his storm water onto the Plaintiffs’ property.

“In addition, he has ‘directed’ a video recording device at the Plaintiffs’ back yard to record them on their own property. Finally, the Defendant has made false calls for service to the local fire department (asserting there was an out-of-control fire at the Megills’ home) for the purpose of interfering with their enjoyment of their fire pit in the back yard.”

As to Counts II and III, abuse of process and defamation, “Plaintiff Douglas Megill alleges that the Defendant falsely swore out an arrest warrant against him for trespassing.” Defendant recanted two days before a hearing but did not tell Megill or his retained counsel. Both appeared in court “to discover that the charge was ‘withdrawn by the commonwealth’s attorney’ and the case was dismissed.”

Plaintiffs seek money damages and an injunction. “Their specific claims for injuries include loss of use and enjoyment of their property, anxiety, embarrassment and extreme distress, damage to reputation and associated legal fees (with regard to the claim for abuse of process).”

Defendant has demurred to all three counts.

Private nuisance

“[P]utting aside all the other allegations of Defendant’s conduct, Plaintiffs have alleged that every time they are in the backyard Defendant ‘makes loud and obnoxious noises’ and turns on his floodlights.

“In the proper case, loud and disruptive noises, vibrations, and lights constantly shining into a home can support a finding of a private nuisance. … In this matter, the court finds the Plaintiffs’ arguments to be well-taken. Consequently, as to the theory of nuisance, this court concurs with Plaintiffs’ view.

“It will be for a factfinder to determine whether they ultimately prevail on the merits of their cause. A cause of action is sufficiently stated as they have alleged sufficient facts to survive demurrer.

“Defendant’s attack upon the prayers for an injunction and the allegation of emotional harm are immaterial. … Defendant has demurred to the entirety of Count I. Plaintiffs’ prayer for relief on that count includes compensatory damages coupled with an allegation that they have been harmed in the loss of the use and enjoyment of their property.

“Therefore, as long as this demand is well claimed, the demurrer to Count I must be entirely overruled even if the other demands are not. … Because the court has concluded that Plaintiffs have done so the court will overrule the demurrer to Count I of the complaint.”

Abuse of process

“Mr. Megill asserts a claim for abuse of process for Defendant having knowingly and maliciously, falsely swearing out a warrant for trespassing. He further alleges that Defendant recanted two days prior to the court hearing. …

“Defendant demurs on the ground that the allegations fail to establish the element that Defendant used Process in a manner not proper to the regular course of the proceedings. He urges that having a warrant served on a person is routine act in a criminal case.”

Megill argues that serving the trespass warrant on him was an abuse of process. The Virginia Supreme Court has ruled otherwise.

“The Court said that a Defendant cannot be held liable ‘merely setting the criminal law in motion, and arresting the Plaintiff and holding him in custody until his discharge; but only for some distinct act or omission, which amounted to a misuse or Abuse of the Process after it had issued, some indignity or oppression beyond the mere fact of arrest and detention[.]’ …

“Even if Defendant used a false affidavit in seeking a warrant for trespassing, a citizen complaint is valid procedure for the issuance of a criminal warrant for a misdemeanor. …

“And Mr. Megill’s subsequent arrest is incident to the process of the obtaining of the warrant. There is no allegation that, following the institution of the criminal proceedings, Defendant misused individual legal procedures[.]”

The demurrer to Count II is sustained. Megill has leave to amend.


“Defendant urges that his statements enjoy the absolute privilege given to statements made in a judicial proceeding because statements made in a criminal complaint are an integral part of the charging Process in a criminal case. …

“Megill urges the court to find that a qualified privilege applies as a matter of public policy.” The court declines to do so. ‘It is settled law in Virginia that words spoken or written in a judicial proceeding that are relevant and pertinent to the matter under inquiry are absolutely privileged.’ Darnell v. Davis, 190 Va. 701, 707 (1950).”

Code § 19.2-72 permits a person to make a criminal complaint to a magistrate. If there is probable cause, the magistrate “shall issue” an arrest warrant.

“This process, the court concludes, is within the broad definition of ‘judicial proceeding’ adopted in Darnell in that it constitutes a legally authorized proceeding whereby a magistrate is requested to make a determination and act to issue a warrant.”

The demurrer to Count III is sustained. Plaintiff has leave to amend.

Megill v. Wulff, Nov. 16, 2021, Case No. CL 21-3693, Loudoun Circuit Court (Fisher). VLW 021-8-124, 6 pp.

VLW 021-8-124

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