If someone trespasses on my property or creates a nuisance, can I sue for the annoyance and inconvenience, or only for the dollar damage to the property?
Plain-English summary
Senators Michael Padilla and Pete Campos asked whether New Mexico law lets people recover non-monetary damages, things like annoyance, discomfort, inconvenience, and disruption to the use and enjoyment of their land, when someone trespasses on their property or creates a nuisance. The AG concluded yes for private nuisance and most trespass claims, with a much narrower answer for public nuisance.
For private nuisance, the answer is settled. Padilla v. Lawrence (1984) directly holds that plaintiffs can recover for annoyance, discomfort, and inconvenience, and they do not need to prove the property dropped in market value to qualify. The Aguayo v. Village of Chama case from 1969 already confirmed that the trier of fact decides the dollar amount based on the severity of the disturbance.
For trespass, no New Mexico appellate case squarely answers the question, but the AG concluded the same kinds of noneconomic damages should be available when the trespass "unreasonably infringes on a plaintiff's occupancy and property rights." The reasoning leans on the Restatement (Second) of Torts § 929 and on out-of-state precedent like Christian v. Atlantic Richfield from Montana.
Pure emotional-distress damages are a different matter. Castillo v. City of Las Vegas (2008) limits emotional distress recovery in New Mexico to specific situations like loss of consortium, intentional misconduct, defamation, or physical injury, so emotional distress alone is unlikely to be recoverable in a property-only nuisance or trespass suit. Public nuisance is even more restricted: federal courts applying New Mexico law have said statutory public nuisance generally does not support compensatory damages because abatement is the prescribed remedy, and individual plaintiffs need to show "special harm" different from harm to the general public.
What this means for you
If your property has been trespassed on
You have a tort claim for trespass under common law that survives even when there is no measurable economic loss. North v. Public Service Co. (1980) confirms that "every unauthorized entry" entitles the owner to at least nominal damages, and Holcomb v. Rodriguez (2016) reinforces that nominal damages are available. Beyond nominal damages, this AG opinion supports recovery for annoyance, inconvenience, and disruption when the trespass interferes with how you use or enjoy the land. Document the disturbance carefully (frequency, duration, what activities it interrupted) because the trier of fact decides how much to award based on those facts. Note that the statutory criminal-trespass remedy in NMSA § 30-14-1.1(D) (double the appraised damage value) is an additional, not exclusive, remedy.
If a neighbor or business is creating a nuisance
For private nuisance, you can sue for annoyance, discomfort, and inconvenience. You do not have to show your property lost value, which removes a common defense argument. The classic factual pattern is ongoing noise, smells, dust, vibration, or similar interference with use and enjoyment of your land. Keep records: complaint dates, photos, video, witness statements, log of times the disturbance occurred, and any health or sleep impacts. The case-by-case evaluation by the jury will turn on those facts.
If you're a tort plaintiff or plaintiff's attorney
The AG's reading endorses noneconomic damages for both private nuisance and trespass plaintiffs, but stops short of endorsing standalone emotional-distress recovery for property-only torts. To get past Castillo, you will need to plead and prove an additional ground (intentional misconduct, physical injury, etc.). For public nuisance, expect the defense to invoke General Electric Co. v. New Mexico, 335 F. Supp. 2d 1185 (D.N.M. 2004), and to argue abatement is the only available remedy. Building a "special harm" theory under Restatement § 821C is the recognized path.
If you're a defendant in a nuisance or trespass suit
The opinion narrows two arguments you might otherwise rely on. The "no economic loss equals no damages" defense is foreclosed for private nuisance under Padilla v. Lawrence. The "no New Mexico case authorizes that" defense for trespass noneconomic damages is now harder because a state agency has publicly endorsed recovery. Your strongest remaining defenses are causation, the unreasonableness threshold for trespass, and Castillo limits on any emotional-distress component.
If you're representing a city or county on public nuisance
The opinion confirms abatement, not damages, is the principal remedy for statutory public nuisance under NMSA § 30-8-8. That preserves the standard municipal toolkit. The opinion does leave open the possibility that common-law (as opposed to statutory) public nuisance might support broader remedies, citing Espinosa v. Roswell Tower for punitive damages in public nuisance, so the doctrinal terrain in non-statutory cases is less settled.
Common questions
Can I recover damages just for being annoyed by my neighbor's noise or smells?
If the disturbance amounts to a private nuisance under New Mexico law, yes. Padilla v. Lawrence allows recovery for annoyance, discomfort, and inconvenience as "special damages," separate from any drop in property value. The trier of fact decides how much, based on how intrusive the nuisance was.
Do I have to prove my property lost market value first?
No. That was the central holding in Padilla: "A complaining party need not demonstrate diminution in value as a prerequisite to recovery for annoyance and inconvenience."
What's the difference between private nuisance and trespass?
Trespass is a direct, physical entry onto land you are entitled to possess, even if the entry is fleeting or causes no visible damage. Private nuisance is a non-trespassory interference with your use and enjoyment of the land, like persistent noise or pollution that crosses the boundary in a non-physical way. The AG concluded both support similar noneconomic damages, but the doctrine for nuisance is more developed in New Mexico cases.
Can I sue for emotional distress on top of property damage?
Generally not by itself. Castillo v. City of Las Vegas (2008) holds that "a plaintiff may not recover for emotional distress based solely on a claim for negligent damage to property." You need an additional ground: loss of consortium, intentional misconduct, defamation, or physical injury. Some other states allow standalone emotional distress damages in trespass and nuisance cases, but New Mexico courts have not adopted that approach.
What about public nuisance, like a polluter affecting the whole community?
Different rules. New Mexico's statutory public nuisance scheme (NMSA § 30-8-8) prescribes abatement as the remedy, and federal courts applying state law have held compensatory damages are not available. An individual plaintiff seeking damages for public nuisance generally has to show "special harm" different in kind from what the general public suffered, citing Restatement (Second) of Torts § 821C. Common-law public nuisance may support broader remedies, but the law there is less developed.
Does this opinion change the law?
No. AG opinions are persuasive authority, not binding precedent. The Padilla rule on annoyance damages in private nuisance was already New Mexico law. What the opinion adds is the AG's endorsement of analogous trespass damages, which courts may consider when no New Mexico case directly addresses the issue.
Background and statutory framework
The opinion sits at the intersection of three doctrinal areas. First, compensatory damages in tort generally are characterized as either economic (medical bills, lost wages, repair costs) or noneconomic (pain and suffering, loss of enjoyment of life, mental anguish). Morga v. FedEx Ground (2022) supplies the standard definition.
Second, the substantive law of trespass and nuisance has separate roots. Trespass is the older common-law action protecting the right of possession, and even nominal damages are available for any unauthorized entry under North v. Public Service Co. (1980) and Holcomb v. Rodriguez (2016). Private nuisance protects use and enjoyment without requiring physical entry, and the leading New Mexico case, Padilla v. Lawrence (1984), squarely permits damages for annoyance, discomfort, and inconvenience.
Third, public nuisance operates under a different remedial framework. The statute, NMSA § 30-8-1, defines criminal public nuisance, while § 30-8-8 provides for civil abatement actions. Federal district courts in New Mexico have read this scheme to foreclose compensatory damages for statutory public nuisance, and an individual plaintiff seeking damages must establish "special harm" under Restatement § 821C. New Mexico courts have not squarely addressed whether common-law public nuisance can support compensatory damages, though Espinosa v. Roswell Tower (1996) discussed punitive damages in that context.
The AG's emotional-distress analysis tracks Castillo v. City of Las Vegas (2008), which limits emotional distress recovery to defined circumstances and rejects standalone emotional damages tied only to negligent property harm.
Citations
The opinion's strongest citations for noneconomic damages in private nuisance are Padilla v. Lawrence, 1984-NMCA-064, and Aguayo v. Village of Chama, 1969-NMSC-005. For the still-open question of noneconomic damages in trespass, the AG relies on Restatement (Second) of Torts § 929(1)(c), 7 American Law of Torts § 23:37, and the Montana Supreme Court's decision in Christian v. Atlantic Richfield Co., 2015 MT 255. The emotional-distress limit comes from Castillo v. City of Las Vegas, 2008-NMCA-141. Public nuisance damages are analyzed under New Mexico v. General Electric Co., 335 F. Supp. 2d 1185 (D.N.M. 2004), Schwartzman v. Atchison, Topeka & Santa Fe Railway, 857 F. Supp. 838 (D.N.M. 1994), and Restatement (Second) of Torts § 821C.
Source
- Landing page: https://nmdoj.gov/publication/opinion/2024-05-opinion-noneconomic-damages-for-nuisance-and-trespass/
- Original PDF: https://nmdoj.gov/wp-content/uploads/Noneconomic-Damages-for-Nuisance-and-Trespass.pdf
Original opinion text
March 7, 2024
OPINION
OF
RAÚL TORREZ
Attorney General
Opinion No. 2024-05
By:
Ellen Venegas
Assistant Solicitor General
To:
The Honorable Michael Padilla, Majority Whip
New Mexico State Senate
The Honorable Pete Campos
New Mexico State Senate
In Re: Opinion Request – Noneconomic Damages for Nuisance and Trespass
Question: Under New Mexico law, are non-economic damages (including but not limited to annoyance, discomfort, inconvenience, invasion of another's interest in the private use and enjoyment of the land) available/compensable under the legal concepts of trespass, private nuisance, and public nuisance?
Answer: As discussed in more detail below, noneconomic damages are available to compensate nuisance and trespass plaintiffs for annoyance, discomfort, and inconvenience.
Analysis
Noneconomic damages compensate for nonmonetary losses. "Noneconomic damages include pain and suffering, future pain and discomfort, disfigurement, loss of enjoyment of life, mental anguish, and loss of consortium." Morga v. FedEx Ground Package Sys., Inc., 2022-NMSC-013, ¶ 28, 512 P.3d 774 (internal quotation marks and citation omitted). Noneconomic damages are widely understood to be a type of compensatory, or actual, damages.
Trespass and Private Nuisance
"A trespass is a direct infringement of another's right of possession." Padilla v. Lawrence, 1984-NMCA-064, ¶ 26, 101 N.M. 556, 685 P.2d 964. "The gist of an action of trespass to real property is in tort for the alleged injury to the right of possession." Pacheco v. Martinez, 1981-NMCA-116, ¶ 14, 97 N.M. 37, 636 P.2d 308.
"Private nuisance is akin to trespass: it is an in personam action for tortious interference with one's use and enjoyment of land. However, in nuisance actions, the interference is non-trespassory." Kaywal, Inc. v. Avangrid Renewables, LLC, 2021-NMCA-037, ¶ 42, 495 P.3d 550. Thus, a private nuisance is "a non-trespassory invasion of another's interest in the private use and enjoyment of land." Padilla, 1984-NMCA-064, ¶ 9.
Noneconomic damages are available in private nuisance actions in New Mexico. Specifically, plaintiffs in private nuisance actions may seek damages to compensate for annoyance, discomfort, and inconvenience. See Padilla, 1984-NMCA-064, ¶ 16; see also 58 Am. Jur. 2d Nuisances § 218 ("[I]n addition to injury to property, a plaintiff may recover damages for deprivation of the comfortable enjoyment of the plaintiff's property and the inconvenience and discomfort the plaintiff has suffered."); Peacock v. Guss, No. A-1-CA-37939, mem. op. ¶ 7 (N.M. Ct. App. Dec. 7, 2020) (non-precedential).
In a nuisance claim, these damages are characterized as "special damages," and they are distinct from damages to compensate for diminution in property value. See Padilla, 1984-NMCA-064, ¶ 16 ("A complaining party need not demonstrate diminution in value as a prerequisite to recovery for annoyance and inconvenience." (citing Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331)). "It is for the trier of the facts to determine the amount of damages, in view of the discomfort or annoyance to which the plaintiffs have been subjected." Aguayo, 1969-NMSC-005, ¶ 8 (citations omitted).
Concerning trespass, "[e]very unauthorized entry upon the land of another is a trespass which entitles the owner to a verdict for some damages." North v. Pub. Serv. Co. of New Mexico, 1980-NMCA-031, ¶ 4, 94 N.M. 246, 608 P.2d 1128. Not all trespasses will result in actual damages; "[i]ndeed, nominal damages are available in actions for trespass." Holcomb v. Rodriguez, 2016-NMCA-075, ¶ 12, 387 P.3d 286.
New Mexico courts have not expressly opined on the availability of noneconomic damages in a trespass action. Nevertheless, given the similarity of trespass and private nuisance, both of which seek to remedy invasions of property rights, we believe the noneconomic damages permitted in nuisance suits would also be available in some trespass actions. See, e.g., Christian v. Atl. Richfield Co., 2015 MT 255, ¶ 46, 358 P.3d 131; see also Restatement (Second) of Torts § 929(1)(c) Harm to Land from Past Invasions (Am. L. Inst. 1979); 7 American Law of Torts § 23:37 ("Damages available on a trespass claim may include not only diminution of market value, costs of restoration, and loss of use of the property but also discomfort and annoyance to the property owner as the occupant.").
Our office is of the opinion that damages to compensate for annoyance, discomfort, and inconvenience would be warranted in cases of trespass when the nature of the trespass unreasonably infringes on a plaintiff's occupancy and property rights, including possession, use, or enjoyment of the property. Cf. Muckleroy v. Muckleroy, 1972-NMSC-051, ¶ 5, 84 N.M. 14, 498 P.2d 1357 ("Broadly defined, property includes every interest a person may have in a thing that can be the subject of ownership, including the right to enjoy, use, freely possess and transfer that interest.").
In addition, some jurisdictions allow trespass and private nuisance plaintiffs to seek compensation for emotional distress or mental anguish resulting from the tortious conduct. See 7 American Law of Torts § 23:37 ("There is some conflict in the cases concerning the recovery of damages for mental anguish resulting from a trespass."); 58 Am. Jur. 2d Nuisances § 217 ("In some jurisdictions, even where the trespass or nuisance involves solely property damage, emotional distress or mental anguish damages proximately caused by a nuisance are recoverable.").
New Mexico courts have not addressed the availability of emotional distress damages in nuisance or trespass actions. However, as a general matter, emotional distress damages are only allowed under limited circumstances in New Mexico. Castillo v. City of Las Vegas, 2008-NMCA-141, ¶¶ 21-22, 145 N.M. 205, 195 P.3d 870 (explaining that "compensation for emotional distress is permitted when a plaintiff establishes loss of consortium, intentional misconduct, defamation, or a physical injury" and concluding that "a plaintiff may not recover for emotional distress based solely on a claim for negligent damage to property"). Accordingly, under existing law, it is unlikely that a noneconomic damage award in a trespass or nuisance action would be permitted based solely on emotional distress or would otherwise be permitted to include damages for emotional distress.
Public Nuisance
"A public nuisance is one which adversely affects public health, welfare, or safety. A public nuisance affects the rights of citizens as part of the public and must affect a considerable number of people or an entire community or neighborhood." Padilla, 1984-NMCA-064, ¶ 24 (citations omitted). New Mexico recognizes both common law and statutory public nuisance. See City of Sunland Park v. Harris News, Inc., 2005-NMCA-128, ¶ 40, 138 N.M. 588, 124 P.3d 566; see also NMSA 1978, § 30-8-1 (1963) (setting forth offense of public nuisance). "[A] nuisance may be both public and private, or mixed, where a considerable number of people suffer in the interference with their use and enjoyment of land." City of Sunland Park, 2005-NMCA-128, ¶ 41 (internal quotation marks and citation omitted).
New Mexico state courts have not squarely addressed whether noneconomic damages are recoverable in public nuisance actions. Often, damages of any nature are not permitted in public nuisance actions. Notably, federal district courts have determined that New Mexico law does not permit compensatory damages for statutory public nuisance because abatement of the nuisance is the remedy prescribed by statute. See New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1185, 1242 (D.N.M. 2004); Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 857 F. Supp. 838, 851 (D.N.M. 1994); see also NMSA 1978, § 30-8-8 (1963) (providing for "civil action to abate a public nuisance"). It is possible that an action based on common law, as opposed to statutory, public nuisance would not be limited in such a manner. Cf. Espinosa v. Roswell Tower, Inc., 1996-NMCA-006, ¶¶ 13-15, 121 N.M. 306, 910 P.2d 940 (noting that "[n]uisance law in our state has largely evolved in the context of injunctive relief[,]" discussing propriety of punitive damages in public nuisance actions, and upholding punitive damages award).
Notably, to recover any damages for public nuisance, a plaintiff would likely need to show that they "have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference." Gen. Elec. Co., 335 F. Supp. 2d at 1239 (quoting Restatement (Second) of Torts § 821C (1979)) (internal quotation marks omitted). Alternatively, damages, including noneconomic damages, may be appropriate in actions involving mixed nuisances.
Conclusion
It is the opinion of the New Mexico Department of Justice that noneconomic damages for annoyance, discomfort, and inconvenience are generally available to plaintiffs in nuisance and trespass actions and may be compensable under the circumstances described herein. "The purpose of compensatory damages is to make the injured party whole by compensating it for losses." Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 11, 121 N.M. 840, 918 P.2d 1340; see also Sanchez v. Clayton, 1994-NMSC-064, ¶ 11, 117 N.M. 761, 877 P.2d 567 (describing compensatory damages as "the measure of a loss"). Depending on the nature of a particular invasion of property rights, noneconomic damages may be an important component of compensating injuries resulting from nuisance or trespass.
You have requested an opinion on this question presented to our office. The request and the opinion provided herein will be published on our website and made available to the general public. If you have any questions regarding this matter, or if our office may be of further assistance, please let us know.
RAÚL TORREZ
ATTORNEY GENERAL
By:
Ellen Venegas
Assistant Solicitor General
Footnote 1: The common law trespass discussed herein is not limited based on any available statutory trespass remedies. See NMSA 1978, § 30-14-1.1(D) (1983) (providing for "damages in an amount equal to double the amount of the appraised value of the damage of the property injured or destroyed"). "Rather than limiting or abolishing a right that existed under the common law, Section 30-14-1.1(D) provides an additional remedy in certain statutorily defined circumstances. Those circumstances are not necessarily as expansive as the full reach of the common law." Hartman v. Texaco Inc., 1997-NMCA-032, ¶ 15, 123 N.M. 220, 937 P.2d 979.