Property II Prof. Glicksman Spring 2003
Land Use Controls
I. Nuisance Law (p.745)
· Definition
· any substantial and measurable interference with an individual’s or society’s collective rights to use and enjoy property.
Differences between public and private nuisances (p.773)
The difference between a private nuisance and public nuisance is one of degree
1) a private nuisance = one affecting a single individual or a definite small number of person in the enjoyment of private rights not common to the public
2) a public nuisance is one affecting the rights enjoyed by citizens as a part of the public (harms to the general public)
a. the nuisance must affect a considerable number of people or an entire community or neighborhood
Private Nuisance = involves interference with the use and enjoyment of one or a number of nearby properties
I. Private Nuisance
A. Definition
· non-trespassing actor intentionally and unreasonably (or unintentionally but with reckless, negligent, or ultra hazardous 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
· To have a Private Nuisances Claim: Person cannot sue claiming a private nuisance unless she has a property interest that is affected or alleges bodily harm as a result of the activities complained of.
Public Nuisance = involves interference with the right common to the general public
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 ultra-hazardous 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
A. Judicial Land Use Controls
i. The Law of Nuisance
1) GENERAL RULE – every person should use his own property as not to injure that of another
2) In the legal sense –
a. When one makes an improper use of his own property and in that way injuries the land or some incorporeal right of one’s neighbors
3) private nuisance is a filed of trot liability not a single type of torturous conduct
1) Private Nuisance Claims (p.749)
a. Intentional and Unreasonable
i. need not be inspired by malice or ill will
1. “unreasonable” generally because reoccurs frequently or are continuous conditions
b. Can either be
i. Intentional (and Unreasonable)
1. person is subject to liability when his conduct is unreasonable under the circumstances of a particular case
2. Restatement 2nd of Torts – Any intentional invasion of an interest in the private use and enjoyment of land is unreasonable and therefore a nuisance, if the gravity of the harm outweighs the utility of the actor’s conduct.
3. Even if the utility of the conduct outweighs the gravity of the harm, an activity can still be a nuisance if the harm is serious and the defendant can afford to pay those damages
ii. Unintentional (but Negligent)
1. person is liable when is conduct is negligent, reckless, or ultra-hazardous
B. Non-trespassing Invasion
· trier of fact looks to equity to balance the rights and claims of the invader and party with a possessor interest in land
Three ways to determine the point of liability
1) Restatement Balancing Test
2) Alternative Restatement Test
3) Threshold Approach to liability
Liability Test for either type Plaintiff must show:
1) That he has some sort of property interest.
2) Substantial harm that resulted from D’s conduct
3) If unintentional must show:
a. Reckless
b. Negligent
c. Dangerous behavior
4) If intentional nuisance
a. Intentional conduct (must show that it is both intentional and unreasonable)
b. Unreasonable (p.750)
i. Courts don’t agree on what it takes to show unreasonableness
ii. P must show that intentional invasion was unreasonable and that gravity of P’s harm out-weights utility of D’s conduct
1. test that promote economic efficiency (law and economics)
2. If Gravity out weights utility – P wins
3. But it this isn’t true and utility out-weight gravity P can still win if —
a. Courts also look at how much it would cost to remedy the nuisance.
i. Alternative Restatement Test – If P can show that WDI can afford to pay for this and similar harm without going broke
ii. People think that WDI operations are worth the harm caused
iii. D would then still be forced to pay P
D. Balancing Test: Gravity of Harm
1. Consider: Does Gravity out weight utility? (p751)
b. Gravity of Harm factors
1. the extent of the harm involved
2. Character of harm
3. the social value of the primary purpose of the conduct
a. social value the law attaches to the type of use and enjoyment involved
4. the suitability of the conduct to the character of the locality
a. suitability of used and enjoyment to the locale where alleged violation occurred.
5. the burden on the person harmed of avoiding the harm
c. Sec.827 – Factors relevant to gravity of the harm are the extent and character of the harm, the social value of the P’s use its suitability to the locality in question and the burden on the P of avoiding the harm.
d. Some courts look at the order in which party was on the land first.
i. Some court ignore the restatement balancing test
4. Want to achieve a result that is both EFFICIENT and FAIR.
· “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
4) An Introduction to the Substantive Law
a. Morgan v. High Penn Oil Co. (p.747)
i. Lateral and Subjacent Support
A. Lateral Support = support from adjacent land
B. Subjacent support = support from ground above
ii. Mutual and Compatible uses
A. Who prevails
B. Is there liability or not
C. Who is held legally responsible
ii. Externalities (p.48 – 52)
Trespass v. Private Nuisance
Nuisance = interference with the use and enjoyment of land
Trespass = invasion of the possessor’s interest in exclusive possession
Remedies for each = injunction and damages
II. There is a difference between PN and Trespass
A. In PN must show that it was either intentional or D was blame-worthy
B. There is no culpability in Trespass cases
C. How do you show liability?
i. P.749 If it is unintentional she must show it was abnormally dangerous or conduct was negligent
D. Intent in this context is not desire to hurt the P – it is more broad than that
i. They intended to do what they did (dumping chemicals) – that is all that is needed it is sufficient in a PN act.
ii. Bradley v. American Smelting
1) Ct said – must show it is also unreasonableness if it is either intentional private nuisance
a. You must make a separate and distinctive showing of unreasonableness
i. Balancing process
A. gravity of harm suffered by plaintiff
B. vs. utility of D’s conduct
b. Notes and Question #1 P.750
Estancias Dallas Corp v. Schultz (p.755)
Air conditional noise test
RULE – Numbers must show that the utility of the D’s conduct must outweigh the gravity of the harm to the plaintiff.
Lost property value – approx. $25,000
1) apply test
a. Does gravity of harm suffered by plaintiff outweigh the utility of the actor’s conduct?
b. Must show utility of D’s conduct exceeds $25,000
i. How much would it take for D to avoid harm caused
1. D’s avoidance clause
ii. It would cost $250,000 to fix
ofitable.
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, particularly where prior use was extraordinarily apparent or continuous
· Less strict necessity needed that in Easement by implied necessity
· impracticability is OK (if relatively high) (difficulty of alternatives)
· whether price paid reflects the expected continued use of the servient portion of the tract.
3. Eas
