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Property I
University of Kansas School of Law
Glicksman, Robert L.

·         Definition 
·         any substantial and measurable interference with an individual’s or society’s collective rights to use and enjoy property. 
I.      Private Nuisance
A.  Definition
·         non-trespassing actor intentionally and unreasonably (or unintentionally but with reckless, negligent, or ultrahazardous conduct) invades and substantially interferes with another’s interest in private use and enjoyment. 
·         “substantial interference”: significant, if not sustained, discomfort and annoyance for the normal person
B. Non-trespassing Invasion
·         trier of fact looks to equity to balance the rights and claims of the invader and party with a       possessory interest in land
C. Intentional and Unreasonable
·         need not be inspired by malice or ill will
·         “unreasonable” generally because reoccurs frequently or are continuous conditions
D. Balancing Test: Gravity of Harm
·         Consider:
1.      extent of harm involved
2.      character of harm
3.      social value the law attaches to the type of use and enjoyment involved
4.      suitability of use and enjoyment to the locale where alleged violation occurred
5.      burden on person harmed to avoid the harm
·         “coming to the nuisance” 
·         not complete defense, but can force P to indemnify D to shut down or move operation if D’s operation is social utility
·         e.g. building residence in zoned industrial area
·         Spur Industries v. Del E. Webb
E. Balancing Test: Utility of Conduct
1.     social value of primary purpose of conduct
2.     suitability of conduct to character of locale
3.     impracticability of preventing or avoiding invasion
·         e.g., Boomer v. Atlantic Cement Co.
·         nuisance existed, but company too important for economic health of region
·         Damages awarded to P, but D allowed to continue operation
F.    Unintended Acts
·         Nuisance: unintended act coupled with negligence, recklessness or ultrahazardous activity
·         Test:  Risk Analysis
·         actors conduct involves a risk of harm through invasion of a party’s interest in the use and enjoyment of land
·         risk must be unreasonable for liability to attach
·         the greater the value law attaches to the interest which is impeded by the actor’s conduct, the more likely the court will find the conduct unreasonable.
Morgan v. High Penn Oil
·         Lawful conduct which is non-negligent may constitute a nuisance if it is intentional and unreasonable under the circumstances
II.     Public Nuisance
·         interference with property rights belonging to the general public
·         more varied conduct, often indiscriminate to its effect
·         Test: Same as private nuisance
·         intentional or unreasonable conduct (or unintentional negligent, reckless or ultrahazardous conduct) which causes substantial harm.
A.     Government Enforcement
·         public official, usually attorney general, brings action for public nuisance
B.     Enforcement by private individuals
·         Private individuals can bring public nuisance action only if they demonstrate specific injury unique from injury suffered by the public at large           
III.  Remedies
A.     Private Nuisance
1.      Equitable Relief by Injunction (traditional remedy)
·         Courts view each tract of land as unique and monetary damages are inadequate
·         Issue injunction upon threat of harm about to happen (impossible when award damages)
·         Even if nuisance exists, can deny injunction after weighting gravity of harm v. utility of conduct
2.      Damages
·         Monetary damages for harm suffered, often physical damage (e.g. crop failure, diminution in market value)
·         reflects courts’ belief that the nuisance will not or should not abate
3.      Enjoinment & Damages/Enjoinment but Indemnity
·         Courts may award damages for past harms and/or potential harms and enjoin nuisance permanently, or award damages to injured party until nuisance subsides
·         grant injunction but demand indemnification
·         require P to pay D’s cost to shutdown or move its facility
·         e.g., Spur Industries, Inc. v Del E. Webb                                                                                                                                                                 
·         cattle feed lot case (town grew to feedlot)
·         Court found nuisance and ordered Web to indemnify feedlot and pay moving and/or closing down costs
4.      Abatement by self-help
·         injured party does not have license to cause unnecessary or unreasonable damage in the process
B.     Public Nuisance
·         Usually criminal prosecution and/or enjoinment
I.      Easements, Generally
A. Affirmative Easement
·         entitles holder to enter upon the servient tenement and make an affirmative use of it. 
·         An affirmative easement privileges the holder of the benefit to make a use of the servient estate that, absent the easement, would be an unlawful trespass or nuisance.
B. Negative Easement
·         entitles the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, were it not for the existence of the easement, he would be privileged to o so. 
·         Simply a restrictive covenant.
·         Traditional negative easements:
·         light
·         air
·         subjacent or lateral support
·         flow of an artificial stream
C. Easement Appurtenant
·         right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land
·         must be two tracts of land
·         dominant tenement: benefits of the easement
·         servient tenement: subject to the easement right
·         benefit transfers with the transfer of dominant estate, regardless of notice.
1. Use and Enjoyment
·         the benefits to be realized by the easement must be directly beneficial to the possessor of the dominant estate in his physical use and enjoyment of that tract of land
·         not sufficient that the easement makes use of the land more profitable.
2. Benefit Attached to Possession
·         benefit of an easement appurtenant becomes an incident of the possession of the dominant tenement.
·         All who possess or succeed to title to the dominant tenement, become, by virtue of the fact of possession, entitled to the benefit of the easement
·         No conveyance of the easement right apart from possession of dominant tenement.
D. Easements in Gross
·         holder of the easement interest acquires a right of special use in the servient tenement independent of his ownership or possession of another tract of land
·         Easement holder not benefited in his use and enjoyment of a possessory estate by virtue of the acquisition of his ownership or possession of a separate tract of land
·         Personal or Commercial
·         Only transferable if commercial or economical in purpose
E. Judicial Preference for Easements Appurtenant
·         In cases of ambiguity, easements appurtenant are favored over easements in gross.
·         true even though the deed creating the easement makes no reference to a dominant tenement.
II.  Creation
A.  Express Creation
·         satisfies Statute of Frauds
·         often created by express grant
·         Exception: NO. Can’t “except” some land for use.
·         “except”: prior existing easement
·         “reserve”: creating new easement
·         Presumed to be of perpetual duration unless specified time stated
1.     Express Grant
2.     Express Reservation
·         when owner [of present possessory interest] of a tract of land conveys title but reserves the right to continue to use the tract for a special purpose.
·         Third Party Reservation:
·         Majority view: easement can be reserved ONLY FOR GRANTOR
·         can’t be “stranger to deed”
·         Modern Trend: growing trend to permit 3rd party reservations, but still a minority view.
B.    Implied Easements
·         exception to Statute of Frauds
·         prior or necessary use of land determines the easement rather than language of conveyance
·         2 types
1.     Easement by Necessity
·         premised on public policy and presumed intent of parties
a.      unity of ownership
·         requires dominant and servient estates to have originally existed under common ownership
b.     strict necessity
·         must be “strictly necessary” for use and enjoyment of the dominant estate
·         “strict necessity”
·         may be liberally construed as “substantial impracticability” or “unreasonable expense”
·         terminates when no longer necessary
·         owner of servient parcel has right to locate the easement, provided location is reasonably convenient.
NOTE: Mortgages
1.     lien theory
·         retains ownership and has right to present position
·         bank has lien and only takes possession in case of default
2.     title theory
·         bank owns house and right to present possession
·         mortgagee (future interest in right of possession)
3.     Easement Implied by Prior Use (Quasi-Easement)
·         if, prior to time tract divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part” and
·         a court determines that the parties intended the use to continue after the division of the property
·         created when an owner conveys a parcel of land intending to
1)      reserve a right to continued use of the conveyed parcel
·         Implied Reservation
2)      grant a right of use of the retained parcel
·         Implied Grant
a.      Unity of Ownership
·         land under common ownership severed
b.     Quasi-Easement (prior use)
·         prior to and at time of severance, owner must have made reasonably apparent and continuous use of one parcel to benefit the other
·         “reasonably apparent”: use visible or reasonably discoverable to put purchaser on notice of its existence
·         Underground pipes and utility lines: apparent because lead to visible above-ground connections
c.      Reasonable Necessity
·         most courts accept showing that easement would be convenient or beneficial to the claiming party, par

ty to enter servient estate to make repairs on easement
·         may not substantially change nature of servient estate in name of repairs
·         e.g. cannot pave dirt road
D.  Rights and Duties of Servient Estate Owner
·         owner may make any use of his property which does not unreasonably interfere with, or is not inconsistent with, the easement owner’s rights
IV. Transfers of Easements: Divisibility and Assignments (p.236)
A.  Easements Appurtenant
1. Dominant:
a. assignable
b. divisible
·         transfers easement right with any transfer of land
2. Servient
·         transfers burden with any transfer of estate
·         if bona fide purchaser, must have NOTICE
·         actual
·         inquiry
·         constructive
·         (everyone who buys land is expected to physically inspect it and examine public records)
B.    Easements in Gross
·         Assignable
·         Divisible
·         as long as parties so intend
·         Only if commercial or economical in nature
V.  Termination of Easement (p.237 in Gilberts)
·         to determine validity of termination, analyze
·         intentions of parties
·         manner easement created
·         significance of current use or nonuse of easement
A.  Merger
1. dominant and servient estates come into common ownership
2.     unity of title extinguishes the easement (no one can have easement on own land)
3. easement not automatically revived once land severed again. 
·         new easement by implied grant or reservation may be created
4.     Holder of easement: 
·         new interest must be of equal or greater duration than duration of easement privilege. 
5.     Holder of servient tenement:
·         title acquired must be equal to or greater than her interest in the servient tenement
6.     If incomplete acquisition, easement not extinguished
B.    Event Occurs/Condition Reached
·         e.g.. Easement given for limited time (until May 1, 2001) or on condition of event occurring (until the housing development is finished)
C.    Acts by Easement Holder
1.     Written release
·         may be terminated by written release to owner of servient estate
·         comply with Statute of Frauds
·         generally, only method to transfer appurtenant easement without selling entire dominant estate
2.     Abandonment
·         act + intent
·         extended nonuse by easement holder
·         physical act or acts that demonstrate holders unequivocal intent to abandon right
·         mere oral agreement not sufficient
·         renders land more marketable       
3.     Severance of Appurtenant Easement
·         easement created to benefit a particular piece of land may not be “severed” from dominant estate it was intended to serve.
·         Attempt to convert an appurtenant easement into an easement in gross may result in termination of the easement
·         e.g.. A owned Parcel 1, B owned Parcel 2. A granted an express easement for right of way across Parcel 1 to B “for the benefit of Parcel 2”. If B later attempted to transfer the right of way across Parcel 1 to C, who owned no land in the area, the transfer might be ruled invalid and the easement benefiting Parcel 2 might be terminated
4.     Overburdening Easement
·         overburdening or misuse will not per se terminate the right
·         if enjoinment is ineffective to curtail misuse, easement may terminate
D.  Acts of Servient Tenement Holders (p.239 Gilberts)
1.     Destruction of Servient Tenement
·         destruction of servient tenement terminates the easement
·         intentional destruction: servient owner may be liable in damages to easement holder and may be required to reconstruct easement
2.     Conveyance to Bona Fide Purchaser without Notice
·         If bona fide purchaser takes title to servient estate without actual inquiry or constructive notice of easement, easement is terminated
3.     Prescription: Adverse Use
·         terminated by servient tenement’s use adverse to rights of easement owner
·         owner of servient estate must continuously interfere with or prevent use of easement by easement holder for full prescriptive period