Property II Law Outline – Spring 2008
Professor Michael J. Davis – Dukeminier 6th Edition
The University of Kansas School of Law
The Law of Nuisance
I. Nuisance – The use of private land in an unreasonable manner that substantially lessens another person’s use and enjoyment of his land. 2 types:
A. Private – occurs when there is a with private use of land by either:
· Intentional and substantial harm and unreasonable conduct
o Intentional – actions known to interfere with another’s use of land
o Unreasonable – 3 views to measure
§ Harm v. Social Utility – weight against each other
· Harms – extent, character, social value of the use, suitability of the use to location, burden of avoiding the harm
· Social Utility – social value, suitability to location, practical difficulty in removing harm
§ Uncompensated harm and ruinous liability
· A serious harm that the actor could compensate for without going out of business
§ Substantial Harm
· Harm that is tangible injury, discomfort perceptible
o Ex. Ind. Plant spewing sulfur does minor prop damage
§ Morgan v. High Penn – oil refinery enjoined, found intentional (knew should have known about gases emitted) and unreasonable(found but not explained)—probably used substantial harm view
· Unintentional conduct that is either negligent, reckless, or inherently dangerous
o Unintentional – actor is unaware that his use is interfering with another’s use of land and either
§ Reckless- falls below a standard level of care
§ Negligent – same(easier standard to meet than reckless)
§ Inherently Dangerous – harm so great conduct can’t be tolerated
· Substantial Interference – whether or not intentional conduct, the activity must be a substantial impediment to the use or enjoyment of land – Avg Person Standard
B. Public – A nuisance that affects the rights held in common by everybody, same test.
· A private party can sue for a abatement if specially injured by nuisance
C. Trespass and Nuisance
A. Trespass is a physical invasion of a person’s land which is an interference with the landowner’s right to exclusive possession, nuisance is an interference with use and enjoyment,
a. Trespass entitle owners to injunction, damages, regardless if substantial
b. Nuisance must be significant injury and unreasonable, could get injunction and damages.
II. Nuisance Remedies
A. Four Outcomes Generally
a. No nuisance found, let use continue
b. Enjoin nuisance, possibly give temporary damages to affected landowners
i. Estancias v. Dallas
1. Injunction given when affected’s interest outweigh enjoined’s interest
2. Affected will probably “sell” injunction back to enjoined
c. Allow nuisance to continue, award permanent damages (& possibly temp dam) 826(a)
i. Boomer v. Atlantic
1. Balancing act, (Harm v. Social Utility) used
2. Great social utility, permanent damages given in exchange for servitude created
3. Why not give injunction? (allow “sale” of injunction)
a. More P’s = higher cost of negotiating
b. Free Rider problem, letting others negotiate and then just gett
thing, enforceable against future interests in land.
a. 5 Types of Servitudes
i. Right to Enter (Easement)
ii. Right to Enter and Removed Something Attached (Profit)
iii. Restriction on use of land (Easement)
iv. Right to force action on landowner on his land (Equitable Serv. or Real Cov.)
v. Right to get money for upkeep (Equitable Serv. or Real Cov.)
II. Easements – interest in land that entitles the holder to use land owned or possessed by another person for a specific purpose
A. Ambiguous grants – if limited area or purpose, easement is likely intention, rebuttable presumption – ambiguous grants convey easements
· Preseault v. US
o Ambiguous grant for small interest found to be an easement for RR
B. Types of Easement
b. Appurtenant and In gross
i. Appurtenant – benefits an owner of another parcel of land, right transfers to new owner
1. benefited parcel = dominant estate
2. burdened parcel = servient estate
ii. In gross – personal benefit to a person, not attached to land, transferable if both parties intended.
iii. Ambiguous grants are construed appurtenant
1. more likely intended to benefit an adjacent lot
2. create value
3. easier to eliminate(can find owner easier)
