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Property II
John Marshall Law School, Chicago
Cornwell, Joel

Nuisance/Economics/Easements/Covenants

Nuisance/Economics(Pg.305)

Nuisance: Interference with a landowner’s use and enjoyment of his land
Must be (1) substantial (person of normal sensitivity would be bothered)
(2) unreasonable (viewed in context of neighborhood-gravity of harm
outweighs utility)
General trend: D’s act will be nuisance if b
1. Gravity of harm to P’s use/enjoyment outweighs social utility of D’s
conduct (Extent and character of harm, social value attached to P’s
use/enjoyment, suitability of the use in character of locality-did P
come to nuisance)
2. Harm to P is sufficient enough and financial burden of D’s compensating for the harm would not make the continuation of D’s activities infeasible (Restatement)
3. Harm to P sufficient, P’s use is well-suited to locality and D’s conduct is not suited to locality
However, if P is “unusually sensitive”, P may be privileged
Much more difficult for P to prove nuisance if they came to the nuisance
Liability for any actor who “materially participates” in causing the harm
Balancing of utilities
Injunction
Usually used when harm to P outweighs social utility of D’s conduct; D can avoid harm w/o undue hardship; P’s conduct is suited to locale and D’s is not

Damages
D’s conduct causes more good than harm but harm to P so substantial it’s unfair to impose costs on them w/o compensation
Usually used when D provides significant social utility, and it cannot prevent the nuisance

Remedies
Property Rules
Fix an absolute entitlement either for D to engage in conduct(no liability) or for P to be secure from the harm(injunction)
Parties can bargain with each other to give up rights
Ex: Someone willing to sell but only for the right price
Liability Rules
If P is protected, can collect damages from D-but no injunction (D can perform if willing to pay)
If D is protected, P can stop D’s conduct only by paying damages to compensate them(purchased injunction)
Ex: Owner does not want to sell, but gov’t wants property so they have to pay for
Inalienability Rules
Assigns entitlements and prohibits them from being sold or exchanged

Fontainebleau v. Forty-five
P claims D’s addition to their hotel will cast shadow on P’s beach, interfering with its use.
One should not use his property so as to injure the lawful rights of another
Ruling: there is no legal right to the free flow of light and air from an adjoining land
Reasoning: Universally held that when a structure serves useful and beneficial purpose, no damages or injunction

Prah v. Maretti
P doesn’t want D to build house on property b/c it would interfere with the sun reaching his solar
panels.
Ruling: P may have a case
Reasoning: Modernization requires flexibility and since P using solar panels, encourages new energy sources
However, this case goes against trend-vast majority of courts hold that a

s holder to prevent owner from making certain uses
Types of Easements
Easement by Estoppel: Turns a license into a irrevocable easement
Can be used if grantor intended to and grantee invests OR
Claimant acts in good faith on servient owner’s words or actions
so servient owner not allowed to deny access
(1) Servient estate consents to use by dominant estate
(2) Servient knows/should know dominant will change position
b/c he believes use will not be revoked
(3) Dominant estate holder reasonably believing permission
will continue substantially changes position by improving
Easement by estoppel based on notion that when owner opens property to others, they
may by their words or actions create reasonable expectations of continued access(want
to achieve justice)
Holbrook v. Taylor: D bought property next to P. P allowed D to use road to get to build property, including construction crews and improvements to the road. P then blocked road off.
Ruling: D’s license becomes irrevocable
Reasoning: P gave D consent or at least mild approval to use/improve road.
The law protects those that expend money in improving property on