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Property II
West Virginia University School of Law
McConnell, Joyce E.

Property Outline – McConnell
Nuisance – Cause of Action
Nuisance – invasion of the right to private use and enjoyment of land
Property Doctrine based on Tort Theory; it is a Cause of Action allowing one landowner, tenant, or occupant to sue another person who is using his or her land in a way that unreasonably interferes with the person’s use of his land
Sic utere tuo ut alienum non laedas: One should use one’s own property in such a away as not to injure the property of another
What Constitutes Private Nuisance?
Common Law – Threshold Test – Substantial and Unreasonable Harm
–          substantial
–          non-trespassory invasion of
–          another’s interest in the
–          private use and enjoyment of land
–          by any type of liability forming conduct:
o        intentional
o        unintentional
Intentional Conduct – substantial and unreasonable
Unreasonable (Threshold Test of Liability) – measured by the level of interference that results from conduct
Intentional –
                                                               i.      acts for the purpose of causing it, or,
                                                             ii.      knows that it will result from the conduct, or
                                                            iii.      knows that it is substantially certain to result from the conduct
Unintentional Conduct – the unintentional result of negligent, reckless, or abnormally dangerous conduct.
Restatement Private Nuisance – Utilitarian Analysis of Nuisance
(a) non-trespassory invasion resulting in a (b) substantial interference (c) of another’s interest in the private use and enjoyment of land (d) by any type of liability forming conduct:
1. Intentional Nuisance
Intentional Conduct – purpose or knowledge with substantial certainty that this will result from the conduct; substantial and unreasonable; acts for the purpose of causing it, or, knows that it will result from the conduct, or knows that it is substantially certain to result from the conduct
2. Unreasonable Harm
a. Balancing Test
Balancing Test – Rest 1st, Rest 2d Torts § 826(1): the gravity of the harm outweighs the utility of the actor’s conduct;
Gravity of Harm
1.       The extent and character of the harm
2.       the social value of plaintiff’s use or enjoyment
3.       the suitability of the locality to plaintiff’s use or enjoyment
4.       the burden on the plaintiff of avoiding the harm
Utility of Defendant’s Conduct
1.       the social value of the conduct
2.       the suitability of the conduct to the locality
3.       the impracticality of defendant preventing harm
b. Threshold Test
Threshold Test – (Rest. 2d) an intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.
Payoff Test – Rest 2d Property § 826(b): the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible (harm serious, plaintiff needs compensation, compensation won’t destroy business, then compensate)
2. Unintentional Nuisance
Unintentional Conduct – the unintentional result of negligent, reckless, or abnormally dangerous conduct.
What is the Nuisance Remedy (Balance the Equity)?
Balancing of Equities – Rule to determine if an injunction should be granted as remedy
1.       the future harm to the defendant and to the public if the injunction is granted, and
2.       the future injury to the plaintiff if the injunction is denied
1. Injunction
Policy: (a) traditional nuisance remedy, (b) allow parties to bargain
2. Injunction Conditioned on Permanent Damages
Boomer v. Atlantic Cement Co. (dusty cement case): granted injunction conditioned on payment of permanent damages to the plaintiffs
3. Damages at Law
Rule: defendant pays damages for injury up to trial and into the future; no more suits can be brought
Damages at Law: where the injury is slight, money damages should be paid rather than an injunction
Permanent Damages: basically grants an equitable easement for payment of damages
Temporary Damages: court grants damages for injury up to the point of trial; can bring more suits
4. Indemnification; Del Webb; Developer Coming to the Nuisance
Holding: where a developer has, with foreseeability, brought into a previously agricultural or industrial area housing which makes necessary to grant an injunction against the lawful business and for which the business has no adequate relief, the developer must indemnify the business for the reasonable cost of moving or shutting down
Common to the Nuisance
Coming to the Nuisance – The fact that the plaintiff h

uccession: the interest of each is descendible and may be conveyed by deed or will; there are no survivorship rights between tenants in common
Conveyance: interest is alienable
Possession: Each must have an equal right to possession of the whole; after a tenancy is created, one tenant can voluntarily give exclusive possession to the other joint tenant
Downside: over time the estate can fragment so that it is practicably inalienable
Upside: each interest is alienable
2. Joint Tenancy – Right of Survivorship
Joint Tenants:
–          each tenant owns the undivided whole of the property;
–          right of survivorship: the right of a joint tenant to succeed to the whole estate upon the death of the other joint tenant; when one joint tenant dies, nothing passes to the surviving joint tenant, but the estate continues in the survivors freed from the participation of the decedent
–          regarded as a single owner;; the decedent’s interest is extinguished;
–          each tenant seised by share;
Words of Incantation: “to A and B as joint tenants with right of survivorship not tenants in common”
Conveyance: alienable, but conveyance destroys the joint tenancy; Multiple Joint Tenants: if one conveys, the grantee a tenant in common with the remaining joint tenants; remaining joint tenants are joint tenants among themselves (right of survivorship)
Intestate/Testate Succession: cannot pass interest by will because it ceases at death
Creditors: Creditors can seize and sell joint tenant’s interest in the property during life, but not after death; does not sever joint tenancy unless mortgage in a title theory state
Creation; Four Unities (Must Exist at Creation)
Common-law Rule: if the unities exist at creation, then the joint tenancy is created; otherwise a tenancy in common is created; if any unity ceases to exist, then it becomes a tenancy in common when the unity ceases to exist; simplifies alienation