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Property II
University of Iowa School of Law
VanderVelde, Lea


· Sic utere tuo ut alienum non laedas
o Use your property in such a way as to not harm the use by others of their property

· Externalities
o If A’s use is good for B’s use, then it is a positive externality
· Such as aesthetic improvements, or increase value of A, which in turn increases value to B, or new access to water… (dumb)
o If A’s use is bad for B’s use, it is a negative externality, and possibly a nuisance

· Basic Principles
o Dedication Principle-
· Once land is dedicated to a particular use, difficult, costly, or inefficient to change its use.
· Much of the value of land comes from developing land from unimproved to improved land.
§ Once dedicated (devoted) to improved use, it will usually be most efficient to leave it at that use
· Such as reverting subdivisions back to farm land- this is both difficult and costly
§ Unimproved, non dedicated land, is more valuable than dedicated land which can no longer be used for the purpose for which it was previously dedicated.
· Land often cannot even be given away, it has a negative value.
· Leads to abandonment, as a rational decision
o Locational Principle-
· Land is unique, and because of this its unique location is important
· Every exercise of a liberty, has some sort of impact on property next door.
§ If you own land you have neighbors, your actions affect each other.
§ Affected most strongly by those closest to you
o Ownership principle-
· Ownership extends from the center of the earth to the heavens.
§ Airplane exampleIn the 1920’s FAA said it only went up to 3,000 above surface level, above that was part of the commons, that has since come down, different states it is now different levels
· Complete ownership worked when Blackstone wrote in 1700’s- not so much worry about mineral rights or airspace rights
o Nuisance Principle-
· Use your own property in such a manner as not to injure that property of another.
§ Sensitive Use and User-
· This is the plaintiff
· Be an owner, and in the locale affected
· Concerned citizen has no standing.
§ Standing- must have a property interest, and it must be interfered with.
· Conflict between ownership and nuisance principle

· Elements for Private Nuisance
o Intentional Interference
· a person’s harmful conduct is deemed intentional if either
§ he acts for the purpose of causing the harm or
§ he knows that the harm is resulting or substantially certain to result from his conduct.
o Nontrespassory Interference
· the harmful conduct must be nontrespassory.
o Unreasonable Interference
· Wide variance in states, What might count
§ Serious injury,
§ Multi factor test
· Character of the neighborhood
· Nature of Conduct
· Proximity to sympathetic users land
· Frequency and Duration
· Under the Restatement, 1/3 of states, Interference unreasonable if:
§ Gravity of harm
§ Outweighs utility of interfering users conduct
o Substantial Interference
· Slight inconveniences or petty annoyances do not give rise to nuisance liability.
§ If a normal person living in the community would regard the interference as strongly offensive or seriously annoying,
§ Then the level of interference is substantial.
o Interference with Use and Enjoyment of Land
· Liability arises only from interference with the interests of an owner, tenant, orother land occupant in the use and enjoyment of land
· E.G. if fumes from defendant’s factory destroy plaintiff’s apple orchard).
· Remedies for Private Nuisance
o Injunction
· Traditional remedy in private nuisance was injunction against the interfering use
· No longer an automatic right to this remedy
· Court will use a balancing test (balance the equities)
§ Determine if an injunction is appropriate on the facts of the case
§ In general, resulting benefit will have to be greater than resulting damage to defendant, as in Boomer v. Atlantic Cement.
§ Not necessarily monetary measure, but this is often what is employed
o Damages
· Permanent Nuisance
§ Receive damages for past and future harm in one lawsuit
§ This is given when there will be no injunction, as the interfering use is going to continue, but be compensated for
§ Damage measured by amount nuisance diminishes fair market value of property
· Battle of experts
· Temporary or Continuing Nuisance
§ Compensate for past harm
· Measured by decline in market value or use value
§ Must sue again in future as additional damages are suffered.
§ With this, an injunction may or may not be granted.
· Injunction in private nuisance and Post Trial Bargaining
o Injunction granted
· The offending user will try to purhase: nonenforcement of the injunction, the propery and may get a servitude as well
o Injunction not granted
· The sensitive user will try to purchase: the property, or a servitude (negative easement)
o Court will not enforce unless plaintiff pursues.
o Thanks to the possibility of bargaining in the shadows, the end of litigation is often the beginning of negotiations.
· The court will not participate in this negotiation,
· Effect: afte

ke an actionable nuisance.
· Evidence of sympathetic user: There was much evidence to the effect that the pig pens and enclosures were kept in a filthy condition, and that the odors arising there from and drifting over the plaintiff’s premises were very offensive and continuous during the summer months.
· Evidence of interfering use: There was also considerable testimony to the effect that the pens and yards were kept in as clean and sanitary condition as reasonably possible,
§ and better than most farmers are accustomed to keep such places.
· The pig pens and enclosures existed and were in use in 1905, when the plaintiff purchased his property along the lake shore,
§ at that time the plaintiff bought of the defendant two small parcels along the east side of his property, on which pig pens were situated, in order to remove the pens and keep the defendant’s hogs further away from his summer house.
· The defendant raised more pigs during the years beginning with 1911 or 1912 than before.
· The court found in substance that the pens and yards were kept in as clean and sanitary condition as can be expected, that there were no odors, except such as necessarily exist around well-kept pens and yards,
· that the effect of such odors is not such as to materially interfere with the enjoyment of plaintiff’s premises, or materially impair their use by people of ordinary sensibilities.
o Mitchell v. Hines
· Evidence established that the operation of a piggery on a large scale and the feeding of garbage on premises constituted a “nuisance”, justifying issuance of injunction when the nuisance was in existence at time of trial and its temporary partial abatement was due to weather conditions only.
· Court of equity is reluctant to bar operation of a lawful business and will not do so if a remedy may be applied to the nuisance incidental thereto.
Although court of equity is reluctant to bar operation of a lawful business, where proof failed to reveal any method of feeding of garbage to pigs on a commercial scale that