PROPERTY II MORINGIELLO SPRING 2018
NUISSANCE
I. RULE/DEFINTION/ORIGIN
A. ELEMENTS
i. Any substantial non trespassory invasion of another’s interest in the private use and enjoyment of land by any type of liability forming conduct.
ii. Must sustain actual physical damage in injury.
iii. Spite is a nuisance but unsightly is not.
iv. Externalitiesà noise, smell, etc.
B. BALANCING THE EQUITIES OF A NUISANCE
i. Doctrine of Comparative Injury:
1. must balance the injury of both parties.
2. Takes effect after court has found a nuisance
3. Determines whose damage is worse.
Estancias Dallas Corp. v. Schultz : A/C case within apartment complex of Texas. Owner didn’t want to update new apartment with new AC unit and believed there was plenty of housing for the renters within Houston but for those in the apartment complex, it was a necessity to have air conditioning. AN injunction was granted.
II. TYPES OF NUISSANCES
A. PRIVATE
i. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury regardless of the degree of care or skill exercised by him to avoid such injury.
B. ELEMENTS (Intentional or Unintentional, Reasonable Test, and Liability Forming Conduct)
i. Reasonable Test
1. The gravity of harm outweighs the utility of the actor’s conduct.
2. 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 that other should be required to bear without- compensation.
3. Takes into account the level of interference.
Morgan v. High Penn : creation of unreasonable test with the circumstances of the conduct of the intentional invasion
i. Liability Forming Conduct
a) Unintentional and Intentional Conduct
1. Unintentional conduct is when the condition is negligent, reckless or abnormally dangerous.
Morgan v. High Penn: Plaintiff acquired new land in which they created renovations and improvements to their land with developments. High Penn Oil Company moved in some time later after Morgan renovated the tract of property, but being so close to the property; emitted gasses that made the neighbors and residents sick.
2. Intentional Conduct is unreasonable or abnormal
ii. Trespassory Invasion
1. Physical Intrusion
2. Subjects an actor to liability, regardless of the harm done.
a) Substantial Trespassory / Substantial Manner of Loss
1. Loss of market value
2. Loss of ability to enjoy property
3. Unhealthy conditions
4. the injunction will be allowed
b) Unsubstantial Trespassory
1. Check if there are advancements that can make the situation better?
2. Traditional Rule Out of Boomer : When the damage resulting from a nuisance is found unsubstantial, an injunction is usually not granted and Plaintiff can keep suing for damages.
3: Whalen Rule out of Boomer: When a the damages of nuisance is found to be unsubstantial an injunction should still be granted because it is not a founding reason to deny remedy to the Plaintiff injured. Permananet damages are allowed where the loss recoverable would obviously be small as comparted with the cost of removal.
Boomer v. Atlantic : Cement company spits out dirt and smoke and creates vibration which affected other neighbors. The Court found that permanent damages were allowed versus the cost of removal of the plant. Thus it was only fair.
B. PUBLIC
i. Any member of the affected public can bring suit, but only if they can show they have suffered an injury.
ii. A business which is not per se a public nuisance may become one by being carried on at a place where the health, comfort, or inconvenience of a populous neighborhood affected.
iii. YET! If the landowner comes knowingly into a neighborhood reserved for industrial or agricultural endeavors that could be seen as “nuisance,” then no damages can be held accountable.
Spur v. Del Web : Builder buys land that was cheap in a residential area surrounded by cow farms and residents began to complain about “cow poop.” Court held the injured cant received damages when they knowingly came unto the nuisance, BUT!! The court took into consideration of all the other people that bought from builder and enjoined the cow farm to not harm them for their sake.
III. USES
A. Restrict or stop or protect the environment.
B. Have the right to possess, but you cannot impede on another bundle of rights and possessions next to you.
IV. R
ment could not be divided. It would either be assigned fully or not divided at all. It was never the intention of the parties to subdivide their rights.
iii. Reservation: provision in a deed creating some new servitude which did not exist before as an independent interest.
1. a reservation allows a grantor’s whole interest in the property to pass to the grantee, but revests a newly created interest In the grantor.
2. Allows an easement to be created in favor of a third party.
3. Common Law Theoryà Regrant Theory
iv. Exception: provision in a deed that excludes from the grant some preexisting servitude on the land.
1. Does not allow a third party to receive an easement by vesting.
Willard v. First Church: Woman gives an easement to the church to park and then sells the land to another party on the condition that the church will continue to be able to use the land to park; except the contract of land did not have it their grant. Court held it was an reservation and not an exception; and could therefore pass the easement to the third party.
C. WAYS OF GRANTING AN EASEMENT
i. Express/Written Grant: remember the statute of frauds
ii. Implication
1. Not recorded
a) Easement Implied
1) severance of a land which was initially undivided ( quasi easement) * Further show it was a pre-existing use easement.
2) an apparent, existing and continuing use of the one of the parcels at the time of the severance
3) reasonable necessity for the use at the time of the severance
Van Standt v. Royster : A woman had 3 plots of land which were sold but all connected in an underground lateral sewage unit, one of which affected the last plot owners land by flooding his basement. The plot owner enjoined to stop the sewage line.
