PROPERTY II SPRING 2006 OUTLINE
I. Nuisance- an interference that substantially impairs the use and enjoyment of land.
A. Nuisance v. Trespass:
1. Trespass: for intentional trespass, there is strict liability
•Don’t have to have harm for trespass
a. Martin v. Reynolds Metals- found trespass when noxious gas leaked onto Ps land
i. Crt. found trespass but still applied the balancing test
ii. Crts. will do the same thing for water spilling over onto land
iii. Crts. are blurring the line between nuisance and trespass
2. Nuisance- an interference that substantially impairs the use and enjoyment of property.
•Harm must be substantial to recover under the theory of nuisance
B. To Give Rise to Nuisance Liability, Interference Must Be:
1. Substantial
2. Either Intentional or Unintentional
a. Unintentional- negligent, reckless, or ultrahazardous conduct
i. Negligent
ii. Reckless
iii. Ultrahazardous is conduct like blasting, using chemicals, etc.
A. Strict liability if the unintentional interference is the caused by ultra hazardous conduct
b. Intentional- see below
C. Intentional Interference For Nuisance Liability
1. Elements:
a. Foreseeable -For an act to be intentional, it must be foreseeable
i. The harm doesn’t have to be the purpose for D’s interference
i. Standard: D knew or should have known
b. Unreasonable- Morgan v. High Penn Oil Company
i. Morgan: Nuisance- sick trailer park
•D running an oil refinery and it is expelling out noxious gas
•P is running residential/small business and a restaurant
•It is not particularly clear in this case if they are using the threshold test or the balancing test
ii. Unreasonable tests
a. Balancing Test- weigh the harm against the utility
1. How substantial is the harm to the P in comparison to the utility?
2. It is not purely economic (relative to the particular person)
Ex.- Crt. will look at what it would cost for the Company to shut down to prevent gases from being expelled compared to the Ps cost of moving and losing livelihood
3. Who was there first is factored in, doesn’t necessarily mean that if the nuisance was there first the P is precluded from bringing suit.
4. Factors to consider when applying test for unreasonableness:
Burden of Harm to P:
a. Extent and character of the harm — health problems, economic harm, etc.
b. Social value of P’s use of land
c. Suitability of P’s use to the locality in question
d. Burden on P of avoiding the harm.
Utility of D’s Use:
a. Social value of D’s use of land
b. Suitability of D’s use to the locality in question
c. Impracticality of D preventing the harm.
b. Threshold Approach- if harm reaches a certain level, they are not going to apply the balancing test.
• Jost: nuisance was dairy cows
1. Court didn’t allow evidence of the utility of the cows
2. Unfairness to weighing the utility of a huge company compared to one little guy (balancing might weigh in favor of the nuisance)
c. Second Restatement
i. Restatement allows a finding of nuisance if either the a) harm outweighs the social use, OR the b) harm is substantial and it can be feasibly compensated by damages.
ii. Two Approaches:
a. Balancing Test
b. Whether the harm caused is serious, but recovery is limited by:
1. Whether the financial burden of compensating for the nuisance going to be feasible?
•Still a balancing but on the utility side; How harmful is it to mitigate this harm (financially)?
•No cases have applied this part of the Restatement
•Crts. typically apply the Balancing or Threshold Tests
D. Half-way House Example as Nuisance
1. Harms- decrease in property value, fear of harm, etc.
2. Action is intentional- not that they are locating the house there to decrease property value; rather it is a foreseeable c
benefited the community and the builder should have known.
5. Spite
a. HOLDING: Crts. commonly find liability in instances where a landowner builds a structure w/ no use whatsoever than to vex a neighbor.
6. Aesthetic Nuisance- AKA “ugliness”
a. HOLDING: Most Crts. hold that unsightliness alone does not make a nuisance unless spite is the only motive.
b. Exception: A junkyard in a residential area might be a nuisance if unreasonably operated and unduly offensive.
F. Threshold Test Defeating Balancing Test
1. Estancias Dallas Corp. v. Schultz (loud air conditioning unit)
•P seeking to enjoin the air conditioning unit at an apartment
a. Harm- noise and decrease in property value(residential property)
b. Remedy- granted the injunction
c. Analysis
i. Property value was $25k to start and somewhere between $10-12k after the nuisance
ii. Cost of replacing the air conditioning (can’t get rid of it b/c they can’t rent apartments w/o air conditioning) would be $150-$200k
d. If balancing is purely economic, why did the crt. rule for the injunction?
i. Threshold Test- the nuisance exceeded the threshold
ii. Also, no evidence of a housing shortage
iii. Only cost $40k to implement the correct air units when they built the apartments (element of fairness)
iv. Timing also came into play (residence there before apartment complex)
e. What happens next after awarding an injunction?
i. P has the power after the injunction is awarded
ii. Starting point $149,999.99 and work your way down
iii. Some critics argue that this is not an efficient result
G. Balancing Test In Favor of D, Damages Still Awarded
1.Boomer v. Atlantic Cement Co. (blasting cement case)
•P seeking to enjoin the blasting at the cement plant
•Even though the utility of the D’s conduct outweighs the injury to the P, the court determines there is a nuisance because the Ds action involved an intentional and unreasonable invasion. (Although the damage to the P may be slight compared to the D’s expense of abating the condition, that is not a good reason for refusing the injunction.)
a. Harm: noise, air pollution, cracking of the foundation of residential units
b. Remedy: permanent damages; remands down to a lower crt. to award a temporary injunction until damages are paid
i. Permanent damages- not just payment for harm that has occurred to date, but also for harm in
