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Property I
SUNY Buffalo Law School
Meidinger, Errol E.

(1) Introduction to the Course
What is Property – Property is what the law defines as property. If a claim to a resource is not recognized by law, it is not property in a legal sense. Once recognized by law, a claim becomes a legal right. For example, if a judge declares that A can walk across Blackacre free of B’s interference, A has a property right; but if a judge declares that B can exclude A, B – and not A – has a property right.
What is a Property Right – a property right is protection by the state of a claim to valuable resources. A property right may be in an individual, it may be held by a particular group, or it may be held in common by people at large.
First In Time Rule – the most fundamental rule for determining ownership is the first person to take possession of a thing owns it. This rule, also known as the rule of capture, implements important social policies relating to rewarding labor and protecting investment in resources.
Rule of Capture – first in time wins.
General Rule of Acquisition by Capture– a person who first captures resources in entitled to the resources. Another way of putting this rule is: Whoever is prior in time wins. This rule has been applied to many kinds of resources.
Discovery of America (Acquisition by Discovery & Conquest) – “In the beginning, all the world was America” was John Locke’s famous statement meaning that it was up for grabs. The European nations had a convention that discovery of America gave title to a government when its subjects made the discovery. When the Native Americans contested this, the Supreme Court, through Chief Justice Marshall, held that discovery gave title to the European nations which passed title to the states or to the United States. The Native Americans were not regarded as in prior possession of America; they were hunters who moved from their villagees,a nd unlike the Europeans, were not settlers who built permanent homes, staked out farms, and took possession of tracts of land. As an alternative to title by discovery, Marshall held that the European – and subsequently the United States – acquired title by conquest. “Conquest gives a title which the Courts of the conqueror cannot deny,” wrote Marshall, “whatever the private and speculative opinions of the individuals may be, respecting the original justice of the claim” (Johnson v. M’Intosh – 1823).
            (a) Lessons From America – two lessons can be drawn from this opinion. First, “possession” is
                 an elastic word. Its meaning is culturally determined. The European idea of possession of land
                 was unknown to Native Americans, who used the land but never thought of “possessing” it.
                 Second, the determination and enforcement of property rights depends on the power of the
                 state to impose its will. Property thus both confers power and rests upon power.
Capture of Wild Animals (Acquisition by Capture) – if wild animals (ferae naturae) are captured, they belong to the capture. But capture is required; merely chasing the animal is not enough (Pierson v. Post – 1805). In this case, Post and his hounds were pursuing a fox. Pierson spots the fox and shoots it, killing it. Pierson is entitled to the fox because Post never captured it or had actual possession of it. The rationale for this is as follows:
            (a) Competition – Society’s object is to capture foxes (to destroy them) or ducks (to put them on
                  the table). To foster competition, resulting in more wild animals being captured, society does
                  not reward the pursuer, only the captor. It is assumed that this brings more persons into
                  pursuit, resulting in more capture.
            (b) Ease of Administration – Rewarding capture, an objective act, is an easier rule to administer
                  than protecting pursuit, which is hard to define and can take many forms. Thus the rule of
                  capture promotes certainty and efficient administration in a situation where the stakes (a fox,
                  some ducks, some fish) are not high and not worth a lot of judicial time in resolving conflict
Note: The rule of capture – designed to destroy wild animals – was a 19th century formulation. Today, the rule of capture, promoting pursuit and killing, leads to over-capture of fish and overinvestment in capture technology (Save The Whales). Similarly, other species have become endangered by a rule that treats wild animals as unowned property available to anyone.
(a) Exam Tip: Although the rule of capture can be applied to several different things, capture of
      wild animals is a traditional favorite on exams. Therefore, it is worth remembering the rule
      (that capture – not just pursuit – is required, and the reasons behind that rule).
Wounded or Trapped Animals – if an animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured. But if the animal is only in the process of being entrapped, and the door has not snapped shut, it has not been captured. For example, A has driven a school of fish into a net and is in the process of encircling them, but the fish could still turn tail and escape. A has not captured the fish. Until the net has closed, another person, B, can sweep in with a net and take the fish.
            (a) Unfair Competition – although the law wants competition to promote capture, it also wants
                  competition to be fair so as to attract more persons into the pursuit. Protecting against unfair
                  competition also protects against monopolies (with resulting high prices). Thus, in the
                  example above from Young v. Hichens (not in our casebook), B could not sink A’s boat. In
                  fact, the actual action of B in dashing in with a smaller net to take the fish before the big net
                  closed comes close to being unfair competition and might be so deemed today.
            (b) Cage Not Escape-Proof – to trap or net a wild animal, the animal must be confined in an
                  enclosure, but it is not necessary that there be absolutely no possibility of escape. The captor
                  acquires possession if he uses reasonable precautions against escape.
                  Example: a tugboat crew removes fish from a net owned by another. The net has a series of
                  smaller and smaller entrances from which escape is possible but unlikely. The fish are
                  possessed by the owner of the net, and thus the tugboat crew is guilty of larceny.
Interference by Non-Competitor – if a person is in the process of entrapping animals, a competitor who also wants to capture the animals can interfere with the other person’s activity and try to capture the animals. But a person who does not want to capture the animal cannot interfere (Remember: Society wants the animal caught). This rule promotes killing; it does not promote conservation of wildlife, which may be a goal of society today. These rules are designed to achieve ends. They show the instrumental nature of the law.
            Example (Keeble v. Hickeringill): Keeble puts out decoys on his pond to attract ducks and sets
            nets to catch them. Hickeringill, a neighbor, shoots off guns at the pond to scare the ducks away.
            Hickeringill is liable for damages. However, Hickeringill would be able to shoot to kill the ducks
            flying over his land to the pond.
Custom (Ghen v. Rich) – While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought more effective in getting animals killed, may dictate a different result. Among American whalers, for example, the custom was to award the whale to the ship that first killed the whale – even though the whale sank and was discovered several days later floating on the surface by another whaler or on the beach by another person. This custom advanced the killing of whales and led to greater efficiency in that trade by benefiting both the whalers and society (society’s object), because the killer ship could be off looking for other whales without waiting around for the whale to rise. This custom was recognized by the courts as giving possession.
Escaped Wild Animals – if a captured wild animal that has no habit of return (no animus revertendi) escapes, the captor loses possession, and the animal is again subject to capture by another. However, if the animal is not native to the area, but unusual (i.e., an elephant in Buffalo), a hunter may put notice that the animal has escaped and some other person has prior possession. In that case, the hunter cannot capture the wild animal for himself.
Limitations on the Capture of Wild Animals – the common law, assuming wild animals were plentiful, placed no limit on the number that may be captured. Today, game may be scares and some species endangered. Statutes have been enacted by states to change the common law and regulate hunting and fishing so as to protect the resources. Congress has enacted the endangered species act to protect said species.
            (a) Regulation By State – game laws have the purpose of preventing overkill and preserving
                  natural resources. It has sometimes been argued that these protective laws are valid because
                  the state owns wild game, and therefore prevails over a person who takes possession of it.
                  But this argument is entirely fictional. The better reason is that the state has the power to
                  regulate the taking of game under its police power, by which it prevents conduct harmful to
                  the public.
The Rule of Capture and Rights to Oil and Gas – the rule of capture has been applied by courts to oil and gas. Some courts have characterized oil and gas as “fugitive” resources, analogous to wild animals, which might wander from a space under A’s land to a space under B’s land. The most persuasive reason for applying the rule of capture to oil and gas, however, is that it gives an incentive to produce oil and gas. A landowner can extract (capture) all the oil and gas from a well bottomed under the landowner’s land, even though the oil and gas may be drained from neighboring land.
            (a) Non-Negligent Capture Required – the rule of capture does not protect an owner who
                  negligently drills a well, which blows out, catches fire, and consumes huge quantities of gas
                  from underneath neighboring property. A negligent driller must pay damages for injuring the
                  common reservoir and thus is penalized for negligently destroying common resources. But if
                  the driller is not negligent, he can withdraw all the oil from the common pool and make it his
            (b) Limitations on Capture of Oil and Gas – to conserve resources, most states with oil and
                  gas deposits have statutes regulating the number of acres required for a well and requiring
                  apportionment of the drilling profits among surface owners within the acreage unit.
                  “Unitization” or “pooling” prevents landowners from racing to put down wells to capture oil
                  and gas from their neighbors.
Rights in Water – the rule of capture is applied to rights in water in certain contexts. Much depends on the source of the water. The English applied a rule of capture to ground water, which was deemed to be part of the soil. The surface owner has the right to pump water either for his own use or commercial use; the captured water can be sold to another. This rule made its way to the U.S. and was accepted in most eastern states where water was plentiful. Unless done with negligence or malicious intent, an owner can with impunity sink a well and cause a neighbor’s well to go dry or cause subsidence of a neighbor’s land.
            (a) Reasonable Use Doctrine – in most western states and some eastern ones where water is
                  scarce, the rule of capture is limited by the reasonable use doctrine. A surface owner may
                  capture percolating ground water only to the extent that the use of the water is reasonable.
                  The test of reasonable use is similar to the reasonable use doctrine applied to streams.
                  Generally, an overlying owner can pump water for use on his own land for reasonable uses in
                  unlimited quantities – even if it causes a neighboring landowner harm. An overlying owner
                  cannot, however, divert water from his well to noncontiguous land if another owner within
                  the water basin would be harmed. In an arid climate, this limitation poses a serious obstacle
                  for cities attempting to supplement their water supplies by purchasing land and sinking wells.
Rights in Water (Streams and Lakes) – rights in streams and lakes adjoining land are different from rights in percolating ground water under the owner’s land and surface water on the land. In most jurisdictions, adjacent landowners have riparian rights in streams or lakes. A stream is a flowing body of water, either aboveground or underground, contained within a definite course. Riparian rights include rights in the quantity, quality, and velocity of the water. Riparian owners have swimming, boating, and fishing privileges, as well as the right to use or take the water onto riparian land. The extent of riparian rights depends on whether the jurisdiction follows the natural flow doctrine or reasonable sue doctrine.
Riparian Land – riparian land is all land under a unit title contiguous to a body of water, provided the land is within the watershed of the body of water. A riparian right is attached to the riparian land and can never be transferred to a non-riparian owner. The right runs with the land.
Acquisition by Accession – acquisition by accession comes into play when one person adds to the property another either labor or labor and new materials. A person whose property is taken and used by another is always entitled to the value of the property taken, but that person may lose title by the accessions (additions) of the other. If the improver is denied title by accession, the original owner is entitled to the value added by the taker.
            (a) Labor Added – when A adds labor to B’s raw material, the courts usually award the final
                  product to the owner of the raw material (B), unless A’s efforts have sufficiently increased its
                  value to make it unfair to award the final product to B. Just how much is “sufficient” is
                  difficult to determine. In addition, most states require that for A to recover, he must show
                  that he acted in good faith and not willfully.
                  Example: A, relying on permission that he supposes came from B, enters B’s land, cuts
                  timber and makes hoops from the timber. The standing timber was worth $25; the hoops are
                  worth $700. the hoops belong to A, although B can sue A for $25 in damages for trespass.
                  Regardless of acting in good faith, A has still trespassed.
                  Compare: However, if the timber was worth $2.87 and the value of A’s labor is worth $1.87,
                  A has not sufficiently increased the value of the timber to have his labor rewarded.
            (b) Labor and Materials Added – Where A, an innocent trespasser, adds labor and materials to
                  raw material owned by B, the final product is generally awarded to the owner of the principal
                  material. However, where A is not innocent (i.e., a thief or one who knowingly took from a
                  thief), most courts will award the final product to B regardless of the extent of the labor and
                  materials that were added.
                  Example: A’s car is stolen and stripped by thieves. The thieves dispose of the car’s nearly
                  worthless body on an empty lot. B subsequently spots the body and, incorrectly believing that
                  its owner has abandoned it, takes the body home for restoration. B installs in the body an
                  engine, transmission, radio, tires, glass, and upholstery. If A subsequently discovers his car
                  body in B’s hands, A will not be entitled to the car; B will only have to pay A the value of
                  the stripped car body.
General Rule (Acquisition by Creation) – a person can acquire property by creating it, but there are a number of difficulties in defining “creation.” The primary purpose is recognizing property by creation is to reward labor, but when one’s labor is mixed with labor or goods of another, ownership questions become difficult.
Acquisition by Accession – accession occurs when one adds to another’s property either labor or labor and new materials. A person may lose title by another’s accessions but is entitled to the unimproved value. If the improver is denied title, the owner is entitled to the added value of the property.
(a) Labor Added – where labor is added, the final product is usually awarded to the owner
     unless its value has sufficiently been increased so as to make it unfair to award to original
(b) Labor and Materials Added – final product awarded to owner of principal material.
Intellectual Property – intellectual property is the “catchall” label for property created by exercising the mind. The term includes copyrights, patents, and trademarks, but it may also cover property in ideas or in a persona.
            (a) The Dilemma – the dilemma in recognizing intellectual property is how to nurture individual
                  creativity and reward labor without going too far by creating monopolies and stifling
                  creativity in others. After all, creativity thrives on imitation. The law of intellectual property
                  is full of careful balances of what ideas are protected as private property and for how long
                  and what ideas are not protected.              
            (b) The Common Law (Cheney Brothers v. Doris Silk Corp.) – to avoid monopoly and
                  encourage competition, the common law commonly allows copying and imitation (Cheney
                  Brothers v. Doris Silk Corp – 1929). But there are exceptions, like the right of publicity. A
                  person may not use a celebrity’s name, likeness, voice, or signature for profit without the
                  celebrity’s consent. The celebrity’s labor in creating a persona of value is protected against
                  another’s using it for profit.
            (c) Statutes – copyright and patent laws have been enacted by Congress to solve the dilemma of
                  how much protection to give creativity. Patents and copyrights are limited in time. Copyright
                  law includes a fair use exception and a right to parody. A person cannot copyright an idea,
                  but can copyright the expression of it. In a nutshell, a person can imitate another’s work to
                  some extent, but not too much.
            (d) Unfair Competition (International News Service v. Associated Press) – Courts have
                  sometimes protected labor and investment under the law of unfair competition (This can be
                  seen in acquisition by capture as well, in that the law wants competition to promote capture,
                  but it wants fair competition so that it attracts more persons to the pursuit – an animal can be
                  mortally wounded or trapped so that capture is virtually certain, but if you are in the process
                  of entrapping it, there is no capture). For example, it has been held that a news agency has a
                  quasi-property interest in news it has gathered and can prohibit competitors from
                  disseminating the news until its commercial value as news has passed away (International
                  News Service v. Associated Press).
Acquisition by Find – possessor prevails against all but the true owner, and a prior possessor prevails against a subsequent possessor.
            (a) Possession – a finder must acquire physical control and have intent to assume dominion over
                  the object. Constructive Possession (where court treats the person as if he is in possession,
                  when in fact, he is not or is unaware of it – i.e., a pool man finds a ring while cleaning out
                  someone’s pool; owner of the pool has constructive possession, even though she doesn’t
                  know the ring is there) also entitles a person to the benefit of the prior possessor wins rule.
(2) Neighbors in Space: Nuisance, Easements, Covenants/Servitudes (September 16-30)
I. Nuisance 
Nuisance – a nuisance is an unprivileged interference w/ a person’s use and enjoyment.
Private Nuisance – a private nuisance is conduct that causes a substantial interference with the private use of the land and is either (a) intentional and unreasonable, or (2) unintentional but negligent, reckless, or resulting from an abnormally dangerous activity (for which there is strict liability). A person cannot sue claiming a private nuisance unless they have a property interest that is affected or alleges bodily harm as the result of the activities complained of.
            (a) Intentional Nuisance – the unreasonableness of the interference determines whether the
                  nuisance is intentional. Conduct is unreasonable if the gravity of the harm outweighs the
                  utility of the actor’s conduct
Intentional Nuisance – the usual type of nuisance is an intentional and unreasonable act that continues over time and is known to interfere with another’s enjoyment of land. The primary factor in determining an intentional nuisance is the unreasonableness of the interference with the neighbor’s use and enjoyment. Under the Restatement (Second) of Torts, any intentional invasion of an interest in the private use and enjoyment of land is unreasonable, and therefore a nuisance, if the gravity of the harm outweighs the utility of the actor’s conduct. Balancing the gravity of the harm against the utility of the conduct requires an examination of particular factors in each case. Even if the utility of the conduct outweighs the gravity of the harm, an activity can still be a nuisance if the harm is serious and the defendant can afford to pay those damaged.
            (a) Gravity of Harm – The Restatement lists the following factors to be considered in
                 determining the gravity of the harm: (i) the extent of the harm; (ii) the character of the harm;
                 (iii) the social value of the use or enjoyment invaded; (iv) the suitability of the land use
                 invaded to the locality; and (v) the burden on the person harmed of avoiding the harm.
            (b) Utility of Conduct – The restatement lists the following factors to be considered in
                  determining the utility of the conduct of the invader: (i) the social value of the primary
                  purpose of the conduct; (ii) the suitability of the conduct to the character of the locality; and
                  (iii) the impracticability of preventing or avoiding the invasion.
            (c) Fault – the fault of the defendant is not controlling, but the failure of the defendant to use due
                  care in avoiding the harm may be a ground for imposing liability. In some cases, courts have
                  imposed liability on the defendant even though she has taken all reasonable precautions as is
                  in no way at fault. They have concluded that the gravity of the harm outweighed the utility of
                  the conduct (Pendoley v. Ferreira – existing well-operated piggery enjoined as nuisance
                  when new homes built in area).
                  Comment: There may be an economic justification for this result in that total value to
                  society will be increased by the cessation of the defendant’s activity, but the question of
                  whether it is fair to put the cost of abating the conflict on the defendant is another matter.
Unintentional Nuisance – an unintentional act may give rise to a nuisance when the risk of harm makes the conduct unreasonable. When the act is unintentional, “unreasonableness” does not involve weighing the utility of the conduct against the harm caused, but refers to the actor’s conduct (whether negligent or reckless) as well as the gravity of the harm. The utility of the conduct is seldom a defense. Nuisances of this type are uncommon, but an example is the storage of dangerous explosives.
Types of Unreasonable Interference – the practical meaning of the term “nuisance” can best be grasped by looking at the particulars of various cases in which the interference ahs been held to be a nuisance.
            (a) Depreciation of Property Value – use of property in a manner that depreciates the value of
                  surrounding property is not enough by itself to constitute a nuisance. Even so, it is an
                  important factor in proving that there is substantial injury to the plaintiff. In the case of
                  psychological nuisances (cemeteries, funeral homes, etc.), depreciation of neighboring
                  property values may be the underlying or controlling factor.
            (b) Discomfort (Morgan V. High Penn Oil Co.) – serious discomfort and inconvenience in the
                  use of land is another important factor in determining a nuisance. Objectionable noise, odors,
                  or smoke are frequently the interference complained of. The standard of unreasonable
                  interference is measured by the sensibilities

a location on the basis of
      the cheapest cost, which is to society’s benefit. Also, by permitting established uses to
      continue unharmed, the court avoids “demoralization costs,” which might arise if a court
      enjoins a long-established use because of incompatibility with some use newly arrived on the
      Criticism: Awarding the entitlement to the first in time might be efficient and fair where (i)
      the defendant established their use at a time when he could not reasonably foresee the
      conflict, and (ii) the activity was not a nuisance at the time it was established. But if there
      were external costs at the time the activity was begun, it seems both inefficient and unfair not
      to require the defendant to take these into account by giving damages to the damaged parties.
(c) Wealth Redistribution – assume the cost to A of installing smoke abatement equipment is
      $100, and the smoke damage to B is $50. if the right is given to A to continue to belch
      smoke, A is $100 richer and B is $50 poorer. The market will not reallocate the right. If the
      right is given to B to enjoin A, B is richer by $50, or, if the market subsequently reallocates
      the right, by some amount between $50 and $100 (whatever price A and B come to for
      transferring that right) and A is poorer by the same amount. Thus the initial allocation affects
      the wealth position of A and B. The court might decide to allocate the right to A if B is very
      rich and A poor, or to allocate the right to B if the situation were reversed. The theory would
      be that society prefers to equalize wealth. This is not an economic argument but a public
      policy argument based on fairness.
(d) Healthy Environment – another non-economic argument for allocation of the property right
      (or entitlement) is that it is morally right for society to guarantee a minimally healthy
      environment. A person should not be subject to certain health risks, no matter how
      economically inefficient such a policy might be. Thus, if A’s smoke is deemed “unhealthy,”
      allocate the entitlement to B. This argument usually has a strong appeal when phrased in
      words such as “healthy environment,” “air quality,” and the like, but the costs of achieving
      these goals cannot be disregarded. A variation on this argument is to set up an order of
      preferred activities, as is done in cumulative zoning, which prefers housing over commercial
      uses. This, in effect, makes the allocation in accordance with how “harm” is intuitively
      perceived by the court or legislature.
II. Nuisance Rights and Remedies
Judicial Remedies – in determining what remedy to give in cases of land use conflict, a court has the four choices below. The basic choice of remedy is between injunctive and damage relief. When an injunction is granted, the plaintiff receives the entitlement or property right; the plaintiff can refuse to sell this right if the defendant does not offer enough. When damages are given, the invader is in effect given power to destroy the entitlement of plaintiff on payment of its value, objectively determined by a jury. Thus the remedy has an important impact on the wealth position of parties (if not on whether the activity will cease). To illustrate, assume AS is a factory owner and B is the owner of an amusement park.
            (1) Enjoin A (Estancias Dallas Corp. v. Schultz) – the court may grant B an injunction
                  forbidding A to emit smoke. B then has the right. A and B can then bargain and, according to
                  the Coase theorem, transfer the right to A. B is made richer by the entitlement and is also in a
                  strong position to get most of the gains from trade. In the Estancias Dallas Corp. case, the
                  nuisance involved the cost of installing air conditioning in apartment buildings.
                  (a) High Transaction Costs – if transaction costs are very high (if, for example, the
                        plaintiffs were 50 neighbors), the right as initially allocated would probably not be
                        transferred, even though it would be to society’s economic advantage. For this reason,
                        some have suggested that the second or third remedy, which leaves the right with the
                        highest valued use while giving damages to the other party, is appropriate in such a
            (2) Give B Damages (Boomer v. Atlantic Cement Co.) – the court may refuse an injunction but
                  grant B damages. This has the effect of giving the right to B, but forcing a sale of it to A
                  (damages). Since the forced sale is at the price of B’s damage, B gets his damages but A gets
                  all the possible gains from the trade. In the Boomer case, the residents got permanent
                  damages and the Cement plant did not get the entitlement until it had paid for permanent
                  (a) Taking for Private Use – it is arguable that this remedy results in A “taking” B’s
                        property. Since the Constitution prohibits taking of private property for private use, this
                        remedy is arguable unconstitutional. However, if it is assumed that neither party alone is
                        at fault in conflicting land use, this argument begs the question of whose property is
                        being taken. A might claim that an injunction against him would be the taking of his
                        property. In recent cases, this argument has been rejected on the ground that the question
                        is what remedy a court of equity should fashion, not whether A is taking B’s property.
            (3) Enjoin A and Give A Damages (Spur Industries v. Del E. Webb) – the court may grant B
                  an injunction against A and require B to pay A damages. This has the effect of giving the
                  right to B, but forcing B to pay A for it. This solution tends to bring about efficient resource
                  allocation because B, who claims the right is worth more to B than to A but is willing to or
                  cannot bargain with A for transfer of the right, is forced to back up his claim for a judicially
                  enforced transfer with cash. However, this solution may not be feasible when there are many
                  potential B’s, and high transaction costs.
            (4) Refuse B Any Remedy – the court may refuse to grant B any remedy – either an injunction
                  or damages.
Public Nuisance – a public nuisance affects the general public, whereas a private nuisance affects only particular individuals. A public nuisance is widespread in its range or indiscriminate in its effects. Uses classified as public nuisances include gambling, prostitution, nude sunbathing, air pollution, and rock festivals. The underlying test of a public nuisance is the same as for private nuisance: substantial harm caused by intentional and unreasonable conduct or by conduct that is negligent or abnormally dangerous. Unreasonableness turns primarily on the gravity of the harm balanced against the utility of the activity. A suit to stop a public nuisance is usually brought by the attorney general.
            (a) Enforcement By Private Persons – a private individual may act against a public nuisance
                  only if she can show that the nuisance is specially injurious to her. The person does not have
                  to own any affected land (as in privatenuisance0, but she must show that the damage to her is
                  of a different kind than the damage to the public at large. It is not enough to show that she
                  suffers the same kind of harm as the general public but to a greater extent.
                  Example: A pollutes a navigable stream so that it is no longer fit for drinking and swimming.
                  This is a public nuisance. A fish hatchery downstream whose business is ruined thereby is
                  entitled to bring suit.
                  (1) Standing to Sue (Special Injury) – the reason for the requirement of “special injury” is
                        to avoid an excessive number of lawsuits seeking to enforce public rights. The suit should
                        be brought by a public official. However, in recent years, under pressure from
                        environmentalists, standing to sue for public nuisance has been liberalized by statutes and
                        decisions. In some states, a private person can sue a representative of the general public
                        or in a class action.
            (b) Use Authorized by Statute – if a use is authorized by statute or ordinance, it is not a public
                  nuisance and cannot be enjoined. Even so, what would be a public nuisance (in the absence
                  of a statute authorizing it) may be treated as a private nuisance if special injury is shown.
                  Zoning ordinances are not defenses to a private nuisance suit.
Note: Be careful not to confuse the requirements to bring a private nuisance action with those for a private individual to bring a public nuisance action. To claim a private nuisance, a person must have a property interest that is affected or must allege bodily harm. For a private individual to have standing to sue against a public nuisance, that person need not own any affected land, but must show a special injury different from the public at large.
Right to Support – the right to support of one’s land from the lands adjoining is one of the incidents of ownership. It is sometimes called a “natural right.” There are two kinds of support involved; lateral support and subjacent support.
Lateral Support – this is support that land receives from the adjacent land.
            (a) Right to Support of Land – a landowner is strictly liable if he changes his land use so as to
                  withdraw lateral support from his neighbor and cause his neighbor’s land to slip or fall in. it
                  is no defense that the excavator acted with the utmost care and not negligently. The absolute
                  right to support of land is based on the idea that fairness requires