Property II
Professor: Davis
Type: Open book/notes (anything that doesn’t breathe)
Structure: Written exam (30-40 minutes of multiple choice)
Length: 2
Date/Time: 05.3.08 (Saturday)/ 9:00AM
Computer: Yes
A. Nuisance
1. In General: A nuisance is an unprivileged interference with a person’s use and enjoyment of her land.
2. Private Nuisance
a. Definition: Conduct that causes a substantial interference with the private use of land and is either (i) intentional and unreasonable, or (ii) unintentional but negligent, reckless, or resulting from an abnormally dangerous activity (for which there is strict liability)
(1) Intentional nuisance: The primary factor in determining intentional nuisance is the unreasonableness of the interference and weighing (balancing) the gravity of the harm against the utility of the actor’s conduct.
(a) Gravity of harm: Factors in determining the gravity of the harm: (i) the extent of the harm; (ii) the character of the harm; (iii) the social value of the use or enjoyment invaded; (iv) the suitability of the use invaded to the locality; and (v) the burden on the person harmed in avoiding the harm.
(b) Utility of conduct: Factors in determining the utility of conduct: (i) the social value of the primary purpose of the conduct; (ii) the suitability of the conduct to the character of the locality; and (iii) the impracticability of preventing or avoiding the invasion.
(c) Fault: The fault of the Δ is not controlling, but the failure of Δ to use due care in avoiding the harm may be a ground for imposing liability.
(2) Unintentional nuisance: An unintentional act may give rise to a nuisance when the conduct in question is reckless, negligent or involves an abnormally dangerous activity. An example is the storage of dangerous explosives.
b. Types of unreasonable interference
(1) Character of the harm
(a) Depreciation of property value: Not enough by itself, but nevertheless an important factor.
(b) Dis
damages.
(3) Priority in time: Which of the conflicting uses was first located in the vicinity. If the Δ’s use was first, the plaintiff has come to the nuisance. Economic analysis supports the coming to the nuisance defense in many cases. In Spur Industries v. Webb, Δ owned cattle feedlots prior to the construction of nearby residential development. The feedlots generated tons of manure and the smells traveled for miles. The court granted the injunction stopping the operation of the feedlot in that area. However, because developer “came to the nuisance”, it had to foot the bill in relocating the Δ.
(a) Exam Tip: Although some courts will take into account the Π’s coming to the nuisance, in no court will that fact be determinative- all other relevant factors will be considered.
