NUISANCE
Purpose. To protect against unreasonable interference with use and enjoyment of land.
Elements. Substantial harm to a private property interest in land caused by the defendant’s intentional or unintentional conduct.
Intentional. Defendant’s intentional act or omission causes substantial interference and the resulting interference is unreasonable.
Unintentional. Liability if negligent, reckless, or an abnormally dangerous activity. The test for all three of these is “unreasonableness”.
Test For “Unreasonableness”:
1. MAJORITY Threshold Test. More than a reasonable person should have to suffer without being compensated.
2. Restatement Balancing Test = If gravity of harm plaintiff is suffering outweighs the utility of the defendant’s conduct, interference is unreasonable. Rst. Sect 826(1)-828.
3. Alternate Restatment Test. If there is a serious harm and the defendantcan pay all injured parties without going broke interference is unreasonable. Rst 826(b)
What Remedy?
If Plaintiff Wins:
Damages.
Permanent. The decrease in fair market value. Damages are for past and future harm which are recovered in a lump sum. This can be risky because of volatility of market.
Temporary Damages. Temporary nuisance allows recovery for past damages calculated using diminished rental or use value.
Injunction. Balancing the Equities Test = A court will issue an injunction only if the resulting benefit to the plaintiff is greater that the resulting damage to the defendant.
Abate Activity if Plaintiff Pays Damages.
If Defendant Wins.
Deny all Relief.
Damages. (Spur case).
Public Nuisance. A public nuisance is “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts, § 821B(1). Almost any intentional conduct that unreasonably interferes with the public health, safety, welfare, or morals may constitute a public nuisance. Usually a public nuisance action is brought by a city or other governmental entity. A private party may sue only if he has suffered special injury.
Goal: efficient fair result for both parties
I.Injunction or damages?
a.Few parties, then injunction should be issued. Case 1 & 2
b.Multiparty, then damages would be better Case 3 & 4
II.Who should win?
a.Box 1 & 4: efficient considerations (RS balancing tests)
b.Box 2 & 3: fairness consideration (balancing equities)
Liability: fairness
Remedy: efficiency
Method of Legal protection
A
(right 2 use water 4 drinking)
WDI
(right 2 use water 4 waste disposal)
Injunction
Court issues an injunction against the defendant.
Morgan and Estancias case
omise not to do something on own land that would have been permitted
-Equitable servitude: real covenant that is specifically enforced by a court in equity
How to distinguish between negatives:
-language of the document creating the interest (grant = easement, contractual/promise = neg. cov.)
-subject matter of negative restrictions: easement = narrow scope
benefits v. burden :
-benefit = the right to use land owned or possessed by another
-burden = corresponding restriction
appurtenant v. in gross servitudes :
-benefit is appurtenant if it is attached to a particular parcel of land
-in gross attaches to a particular individual rather than land
dominant v. servient estate
-dominant estate is the land benefited by appurtenant non-possessory interest (usually easement)
-servient estate is land burdened by non-possesory interest (usually an easement)
Practicality in Contracting:
Considerations between choosing possessory or non-possessory interests
-manner of enforceability
-transferability (should they bind successory possessors?)
-durability (does it disappear if after non-usage)
-marketability (ability to sell)
