Select Page

Property II
University of South Carolina School of Law
Eagle, Joshua Gary

Chapter 9: NUISANCE: means by which common law judges resolve conflicting land uses.
·         Sic utere tuo ut alienum non laedas: “one should use ones own property in such a way as to not injure the property of another.”
o        More helpful to say that a person may not use his own land in an unreasonable manner that substantially lessens another persons use and enjoyment of his land.
–          Private Nuisance: involves interference with purely private rights to the use and enjoyment of land – usually one or more nearby landowners; occurs when there is substantial interference with private rights to use and enjoy land, produced by either of the following: (1) Intentional and unreasonable conduct, or (2) Unintentional conduct that is negligent, reckless, or so inherently dangerous that strict liability is imposed. 
o        Rights in question = property rights
o        Unreasonableness = two tests of balancing of equities & threshold test
o        Standing = Π is a property owner
o        Damages = Π can seek either injunction or damages.
–          Public Nuisance: involves interference with public rights – those held in common by everybody.
o        Rights in question = public rights (those held in common with everyone, i.e., air)
o        Unreasonableness = looking more at the public welfare, often to statutes
o        Standing = Π is either the gov’t (local, state, etc.), or private citizens (where they have suffered a special harm – above that of their neighbors)
o        Damages = Π can only seek injunction.
·          “Intentional” conduct: 3 ways:
1.        ∆ acts for the purpose of causing the nuisance;
2.        ∆ acts knowing it would cause the nuisance;
3.        ∆ acts knowing it would be substantial certain to result in nuisance.
·         “Unreasonable” conduct: balancing tests used by the courts:
o        Balancing: Harm and social utility: Restatement (2d) of Torts is that an activity is unreasonable if the gravity of the harm inflicted by the activity outweighs its social utility. This judgment is highly contextual and may involve weighing of incommensurable values. A nuisance may often be the right thing in the wrong place- hot tar on the carpet instead of the roof.
o        Balancing: Uncompensated harm & ruinous liability: Restatement (2d) of Torts holds, alternatively, that an intentional activity is unreasonable if it causes Π harm and ∆ could compensate for that & similar harm w/o going out of business. When ∆ would be forced out of business by compensating for the harm he causes this test concludes that the activity is not unreasonable and thus not a nuisance. Under such circumstances a court is asked to decide which is worse- uncompensated harm or forcing businesses to close. This test is relevant when the issue is whether a nuisance should continue upon payment of compensation to those harmed; when a Π seeks to enjoin a claimed nuisance, compensation is not a factor and the general balancing of harm and social utility is applicable.
o        Substantial Harm: The liability threshold: Many courts ignore the balancing tests if substantial harm is inflicted; a nuisance exists if the injury it inflicts is severe enough to be above some max level of interference that a person can be expected to endure without redress- a “threshold of liability.”
·         “Unintentional” conduct: When ∆ neither knows nor should know that his action substantially interferes with Πs’ use and enjoyment of their land, the focus is on whether the activity poses an unreasonable risk of harm to others- either because the actor is careless or the action is inherently dangerous.
·         Substantial interference: To constitute a nuisance the offending use must substantially impair use and enjoyment to the average Π, not to the specific Π affected. An unusually sensitive Π has no augmented pwr to cry “nuisance.”
·         Public nuisances: A public nuisance affects rights held in common by everybody (e.g., to the municipal water supply). A pure public nuisance is rare; usually, a public nuisance is also a private nuisance. The substantive test for the public nuisance is the same as for a private nuisance. A private citizen may enforce a public nuisance if he has suffered special injury.
·         Relationship to Trespass: Trespass involves a physical invasion of a Π’s land- and interference with the exclusive right to possession. Nuisance involves an interference with use and enjoyment but dies not necessarily involve any interference with the exclusive right to possession. However, the two concepts can and do overlap.
·         Morgan v. High Penn Oil Co.: ∆ operated an oil refinery that emitted noxious odors several times each week, polluting the air for about a 2-mile radius from the refinery. Π lived within that radius and sued to enjoin the refineries operations, alleging that the noxious odors make him sick and deprived him of use and enjoyment of his property. 
o        Holding: High Penn intended to operate the refinery and knew or should have known that its operation would produce the noxious odors and the court assumed its use was unreasonable.
o        Rule: An interference with use and enjoyment of land in order to give rise to liability must be substantial; it must also be either intentional or unreasonable or the unintentional result of negligent, reckless, or abnormally dangerous activity. 
·         Notes and Questions
o        Unreasonableness. Issues of unreasonableness have come to play an important role in the law of nuisance. However, what it amounts to is obscure. 
o        Unintentional – Liability is based on negligence, recklessness, abnormally dangerous activities, all of which embody in some degree the concept of unreasonableness.
o        Intentional – (most modern day nuisances are intentional), typically they involve interference with the use and enjoyment of land – from air and water pollution, noise, odors, vibrations, flooding, excessive light, or inadequate light – that continues over time and is known by the ∆ to result from its activities. 
·         Trespass. Trespass is treated like the other intentional torts; nuisance, on the other hand, is usually subjected to reasonableness and amount of harm. 
·   Lateral and subjacent Support: Π has the right to both lateral support & subjacent support of his land – ∆ can’t deprive Π of either support right.
·         Lateral support: provided to one piece of land by parcels of land surrounding it; extent of the duty to maintain lateral support differs w/ respect to the land itself and structures upon the land.
o        Common law right of lateral support imposes a duty on neighboring land to provide the support that the subject parcel would need and receive under natural conditions, ordinarily, then, there is no right to support of structures on the land. 
o        Liability is absolute, negligence need not be shown. 
o        The right of lateral support can be waived; it can also be expressly expanded, as by a grant of a right to additional support.
o        Land itself: ∆ is strictly liable for removal of lateral support from the land itself.
o        Structures: ∆ is strictly liable for damage to structures resulting from removal of lateral support if the collapse would have occurred even without the structures (but if the collapse would not have occurred but for the added weight of the structure, ∆ is liable for removal of lateral support only if he was negligent in doing so).
·         Subjacent support: support form underneath as opposed to the sides. 
o        Arises when Π owns surface rights and ∆ owns some kind of subsurface rights (i.e., minerals)
·         ∆ is strictly liable for damages caused to land or structures from w/drawal of subjacent support.
B.      Remedies
·         Nuisance presents a problem of conflicting uses- each user’s desired use prevents the other use from occurring. Each use produces externalities- costs that are not imposed on somebody other than the person producing them. While economic theory suggests that it doesn’t matter who gets the initial right of use, because the parties will reallocate

termine if an injunction should be granted.
·   Boomer v. Atlantic Cement Co.: ∆ operates a lg cement plant. Πs, neighboring landowners, are alleging property damage by dirt, smoke, and vibrations emanating form the plant. 
·         Held: nuisance complained of by these Πs may have other public/private consequences, but these Π’s are only parties who have sought remedies, & judgment proposed will fully redress them. (Court applied balancing formula that asked whether ∆ could compensate for all the serious harm it caused w/o ceasing biz & concluded that the ∆ could). Limitations of relief granted is only a limitation only w/in the 4 corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court. 
·         In general, a ct will issue an injunction only if resulting benefit to the Π is greater that the resulting damage to the ∆.
·         Rule: Although rule in NY is that a nuisance will be enjoined even when there is a marked disparity shown in economic conseq b/w effect of injunction and effect of nuisance, an injunction ≠ be applied if result is too close down a plant. Permanent $ may be awarded as an alternative.
·   Spur Industries, Inc. v. Del E. Webb Development Co.: Π operated a cattle feed lot in a rural part of AZ, feed lot generated a huge amt of manure, attracted insects, & created noxious odors, but nobody objected b/c it was neighbored by other agricultural land. Later, ∆ created Sun City, retirement community, & expanded it until it was very close to Π’s cattle feed, this made 2 use of land incompatible. 
·         Held: Ct differentiated b/w public & private nuisance, & held that Πs operation was enjoyable public nuisance as far as the ppl in Sun City were concerned. Next court weighted the interest of Π, who was operating lawful business, from result of a knowing and willful encroachment by others near his business. Court held that since ∆ brought people to nuisance to foreseeable detriment of Π, ∆ must indemnify Π for reasonable amt of the cost of moving or shutting down. 
·         Rule: doctrine of coming to nuisance ≠ prohibit granting injunctive relief against nuisance, but the party that came to the nuisance may be caused to indemnify the party that has to move.
·         Nuisance Law & Environmental Controls: no answer to how much pollution is ok – is policy issue
·         Nuisance litigation is ill-suited to other than small scale, incidental, localized, scientifically uncomplicated problems.
·         Institutional alternative to judicial resolution or pollution problems is leg and admin intervention. 
ü       Legislative efforts have taken the form of reg. A reg program typically proceeds by prohibiting certain activities, req installation of prescribed technologies, & setting standards limiting emissions from pollution sources. Regulation proceeds by telling pollution sources how much and sometimes how to control.
ü       Incentive systems, rather than command, they induce.
1.       Emissions or effluent fee –charge on each unit of air/water pollution (higher the charge, less the pollution)
2.       Variant, marketable, or transferable rights – sets a fixed # of pollution rights (the fewer the rights the less the pollution)