PROPERTY
TURNER
FALL 2016
EXCLUSION
Trespass (the right to exclude)
Trespass is an unauthorized, unprivileged, intentional entry onto another’s property
Elements:
voluntary and intentional entrance onto the land, but not necessarily intending to trespass
actual, direct, physical invasion by a tangible thing
Doesn’t require actual damage to the property of another nor a utilitarian balancing of the effects
Importance of Trespass (Jacque v Steenberg)
Protects the right to exclude
Rule before Jacques was nominal damages can’t = punitive damages (society had little interest in deterring)
BUT there is an interest in deterring trespass
Policy should protect the landowner’s rights; and nominal $1 damages do not protect.
Rule (Jacque): punitive damages should be allowed even when only nominal damages are awarded in order to deter trespassers
: If the only thing keeping trespassers off was small monetary fine, then no incentive for trespassers to stop; if continue to let trespasser do so w/o punishment, then they would eventually gain a right to the land themselves (AP); loss/damage to land may not be substantial, but still want to deter people from trespassing because right to exclude is so important; don’t want people to resolve to “self-help” to resolve disputes.
Exceptions to Trespass:
Privilege
Consent (a type of privilege)
If consent is given by the landowner then there is no trespass, even if the consent was induced by fraud (Desnick)
Can be revoked at any time by the landowner
Sometimes this is explicit, but sometimes it is just common practice
Ex: going to the store, you are not explicitly invited, but you know that you are invited during store hours
: most likely found when lift or limb is at stake
Claims of trespass are precluded if the entry was induced by the need to save human life or property (Ploof)
Public Policy
If public policy dictates that in order to optimize social utility there must be some kind of trespass, there is no claim for trespass
Hinman v Pacific Transport
No trespass in the case of the plane flying over owner’s property because the landowner did not have exclusive rights to the air above his land
OLD RULE: (ad coelom) A person owned everything on their land from the heavens to the center of the earth
Landowner has a right to the air above his land only insofar as he uses it and only for as long as he uses it
Nuisance
Nuisance is a substantial and unreasonable interference with one’s use or enjoyment of their land
Invasion of right to use/enjoyment of land
Negligence, Recklessness, or Ultra hazardous
Purpose, Knows is resulting, Knew to substantial certainty
Threshold – greater than should bear
Gravity v Utility
Serious harm and feasibility of compensation
Private Nuisance: When an owner make improper use of his property in a may that injures the land or some right of a neighbor
Differentiated from trespass (Adams v Cleeland Cliffs)
Nuisance requires actual damage to the property that interferes with the use and enjoyment of the land
Utility of the Conduct:
Social value & Suitability of D’s use V. Value of plaintiff’s arguments
Cheapest cost avoider loses
Overall idea is to minimize the costs between the two parties
Established that there was no right to air/light over one’s property
Doctrine of sic utero tuo ut alienum non leadus: a landowner can use his property however he sees fit with the exception of not depriving the adjoining landowner of any right of enjoyment of his
transaction may not enter into the transaction if there is a tax or something that would require cost of harm to third parties be taken into account
Property Rules and Liability Rules
Property Rules:
Parties can decide price to pay
Individual with entitlement can decide price
Winner determines price
Liability Rules:
Damages: Maybe there is something that could keep the deal from happening.
If damages are set properly, then it would be okay for D to continue their actions
If it’s not worth it for D to pay and continue, world is better off if D stops the conduct
Costs: Damages cost money to assess
Nuisance in Practice:
P protected by Property Rule (*Rule 1)
D’s conduct is unreasonable: Total social benefits are exceeded by total social costs
P protected by Liability Rule (*Rule 2)
D’s Conduct is reasonable, but unfair to put all costs on P
(Boomer: Nuisance continued, but damages were paid to all who had to endure it)
D protected by Property Rule (P loses, suit – there is no nuisance) (*Rule 3)
P harm is insubstantial
OR
D would be out of business and that is more costly than the harm to P (Fountainbleu)
OR
D’s conduct is reasonable and damages would be unfair
D protected by Liability Rule (D may have to stop, but P will have to pay) (*Rule 4)
D’s conduct is unreasonable, but it is unfair to put the costs on D
Ex: coming to the nuisance cases (Spur)
