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Property I
University of Denver School of Law
Marsh, Lucy A.

Lucy MArsh
Spring 2011
a.       Nuisance (Concept of Reasonable Use)
a.       Reasonable Use
                           i.      Moving In Next To The Coke Plant—Bove v. Donner-Hanna Coke Corp.
In a dispute b/t the owner of a grocery/apts and a coke plant, the π was denied relief b/c a city ordinance had zoned the area allowing for that particular industry.  Regardless that the π was there first, reasoning was that growing communities were inevitable, and the area had never been deemed a residential district.
Rule: An owner may use his property as he sees fit, without objection or interference from his neighbor, provided such use does not violate an ordinance or statute. 
·         Limitation: one must so use his property as not to injure that of another. 
·         An owner will not be permitted to make an unreasonable use of his premises to the material annoyance of his neighbor, if the latter’s enjoyment of life or property is materially lessened thereby.
·         Not every annoyance is connected with business which will be enjoined.
·         Question of fact, and depends upon whether such use is reasonable under all the surrounding circumstances.
·         The inconvenience must be certain and substantial, and must interfere with the physical comfort of the ordinarily reasonable person.
Note: a private nuisance (as presented here) involves an invasion of the interest in the enjoyment of the land, and public nuisance involves the rights of the public.
b.       Private Nuisance
                           i.      Horses are a Nuisance—Hobbs v. Smith
A home owner keeping two horses in their backyard constituted nuisance in fact (per accidens).  Even though an ordinance allowed for the horses and the petitioner had exercised all reasonable skill and care in maintaining the property, the court found that the respondents had suffered a substantial interference with the use and enjoyment of their property which adjoined the petitioner’s property. 
Rule: A lawful use may become a nuisance in fact or per accidens by reason of locality, surroundings, or other circumstances.
·         Regardless of compliance with zoning ordinances or regulations, both business and residential uses may be enjoined if they constitute a nuisance to an adjoining property owner or resident.
                         ii.      Egg Ranching and Flies—Miller v. Carnation
In a case where flies had besieged a home near an egg ranch, court awarded special damages and exemplary damages to the π.  In its remittitur the trial court correctly limited recovery for loss of use and enjoyment to the loss of rental value occasioned by the invasion.  Π was entitled to exemplary damages, since there was evidence to support it.
Rule: Damages for loss of use and enjoyment of property, and for annoyance and discomfort are not duplicative.  The use and enjoyment of land is a proprietary interest, while annoyance and discomfort are personal, not proprietary, interests.
·         An owner of land who is not an occupant can only recover for the impaired value of his property.  An occupant-owner may recover both his proprietary and personal loss.
·         It is w/i the discretion of the jury to determine when and how extensively the π suffered.  In overseeing the jury, it is not the place for a judge to act as an additional juror.  Although the court may disagree with the verdict, the granting of a motion for a new trial is improper where the evidence palpably supports the verdict.
·         Exemplary damages must bear a relationship to compensatory damages.
·         Interest on personal injury damage awards must be recovered from the date the complaint is filed.
·         An injury is personal when it impairs the well-being or the mental or physical health of the victim, and an injury is not personal when inflicted on property.
c.        Public Nuisance
                                       i.      Development Next To A Cattle Feedlot—Spur v. Webb
An appeal to permanently enjoin ∆ from operating a cattle feedlot near π’s development company’s residential property was affirmed regarding the permanent enjoining of the cattle operation and reversed in part and remanded for a hearing upon the damages sustained by ∆ as a reasonable and direct result of the granting of the permanent injunction.
Rule: A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public.  A public nuisance is one affecting the rights enjoyed by citizens as a part of the public.  To constitute a public nuisance, the nuisance must affect a considerable number of people of an entire community or neighborhood.
·         A business which is not per se a public nuisance may become such by being carried on at a place where the health, comfort, or convenience of a populous neighborhood is affected.
A suit to enjoin a nuisance sounds in equity and the courts have long recognized a special responsibility to the public when acting as a court of equity.
·         Courts of public interest protect public interest and are concerned with protecting the operator of a lawful business from the result of a knowing and willful encroachment by others near his business.
Doctrine of Coming to the Nuisance—the courts have held that the residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial, agricultural, etc. endeavors and has been damaged thereby.  This is not a bar anytime in CO.
·         It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result.
d.       Right to Farm Statute (Alabama)
Act to provide that farm operations, if operated lawfully under certain conditions, may not be characterized as public or private nuisances or be determined to be in violation of a municipal or county ordinance.
·         Evidence that a farm is a nuisance:
·          Owner, etc. acts in a careless or wrongful manner;
·          Presence of untreated or improperly treated human waste, garbage, etc.
·          Presence of improperly built or maintained septic tanks, etc;
·          The keeping of diseased animals dangerous to human health;
·          Presence of unsanitary places where animals are slaughtered;
·          Presence on the right of way of any public road abutting or traversing the farm of trash, abandoned or worn out equipment, etc.
·         No farm or operation shall be deemed to be or shall become a public or private nuisance solely as a result of a change in ownership of the land, change in the type of farm, change in the boundaries of the farm.
b.       Support (Concept of Reasonable Use)
a.       The Sliding House Case—Noone v. Price
If land in its natural state would be capable of supporting the weight of a building of the subsidence of the land itself, then the owner of the land on which the building or structure is constructed can recover damages for both the injury to his land and the injury to his building or structure.
·         When an actor removes a natural lateral support and substitutes an artificial replacement, such as a retaining wall, the wall then becomes a burden on the land on which it is constructed and subsequent owners have a duty to maintain it.
·         From a geologist’s perspective, look at the land near the house to help determine the natural state of the land underneath the house.
c.        Rain, Sun, & Wind (Concept of Reasonable Use)
a.       Prah v. Maretti
In a private nuisance case regarding sunlight upon which relief can be granted, WI holds that the rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.  The court held that private nuisance law (the reasonable use doctrine) is applicable in this case.
·         The obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances.  The result in each case depends on whether the conduct complained of is unreasonable.
·         When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, that use is said to be a private nuisance.
·         An easement to light and air over adjacent property cannot not be created or acquired by prescription and courts are unwilling to recognize such an easement by implication.
b.       Colorado Solar Easemen

-Almaz v. U.S.
The seizure of a laptop by an airport customs agent does not constitute an implied in fact bailment case.  There is no bailment b/c there is a unilateral taking of the laptop.  The owner of the laptop did not agree to give the laptop to the agent; it was seized.
c.        The Teddy Bear Case—Alley v. Giannini
In a constructive bailment case, the bailee-defendant was held liable for losses resulting from the acts of his servants/employees.  To recover under a bailment theory, the π must allege:
(1) an express or implied agreement to create a bailment;
(2) delivery of the property in good condition;
(3) the bailee’s acceptance of the property; and
(4) the bailee’s failure to return the property or the bailee’s redelivery of the property in a damaged condition.  In IL, the ordinary measure for damages for personal property is the fair market value at the time of the loss.
·         As a landlord, you must let in a trustee in bankruptcy if requested.
e.        Condominiums
a.       Dutcher v. Owens
The liability of a condominium co-owner is limited to his pro rata interest in the regime as a whole, where such liability arises from those areas held in tenancy-in-common.
b.       Sample Condo Declarations
Inseparability of a Condominium Act—Each unit and the undivided interest in the general and limited common elements appurtenant thereto shall be inseperable and may be conveyed, leased, rented, or encumbered only as a condo unit.
Right of First Refusal—
Association—Attorney in Fact—
The owners representing an aggregate ownership interest of 85%, or more, of the general common elements may agree that the condominium units are obsolete and that the same should be sold.  Such plan (agreement) must have the approval of the HOA and the unanimous approval of every first mortgagee of record at the time.
·         This puts the power of sale for the entire project in the hands of 85% of the unit owners and all of the first mortgagees.  There need be no proof that the project is, in fact, obsolete.  If might just be that 85% of the owners (and all of the lenders) decide that it would be a good deal, financially, to sell the entire project to a Developer for construction of a big shopping center.  Then, the 15% of the unit owners who would like to stay in their units simply have their units sold b/c of a vote by the majority.
c.        Colorado Common Interest Ownership Act
Prohibitions contrary to public policy
An association shall not prohibit any of the following:
·         The display of the American flag on a unit owner’s property, in a window of the unit, or on a balcony adjoining the unit if the American flag is displayed in a manner consistent w the federal flag code.  The association may adopt reasonable rules regarding the placement and manner of display of the flag.  The association rules may regulate the location and size of flags and flagpoles, but shall not prohibit the installation of a flag pole.
·         The removal by a unit owner of trees, shrubs, or other vegetation to create defensible space around a dwelling for fire mitigation purposes.
·         Reasonable modifications to a unit or to common elements as necessary to afford a person w/ disabilities full use and enjoyment of the unit in accordance w/ the federal “Fair Housing Act of 1968.”
·         An association shall not effectively prohibit the installation or use of an energy efficient measure, i.e. a retractable clothesline.