PROPERTY II OUTLINE
I. Nuisance
a. Def.- the unreasonable interference with use and enjoyment of one’s land
b. Two types:
i. Public- interference with a right common to the general public
ii. Private- interference with use and enjoyment of one’s land
c. Nuisance v. Trespass- trespass is an interference w/ ∏’s right to exclusive possession, nuisance is interference with use and enjoyment of it.
d. Interference must be substantial- ie- actual injury to person or property
i. Excludes smells, noises, etc unless it would offend a reasonable person with ordinary sensitivities from that community.
e. ∏ must show
i. ∆’s conduct as negligent, intentional or abnormally dangerous
1. Intentional- can be known of or have substantial certainty of
ii. ∆’s axns were unreasonable
1. even if conduct was intentional, ∏ must still prove axn is unreasonable
iii. significance- ∏ may have a privilege to interfere with ∏’s rights as long as interference is not unreasonable or if there is a pubic utility
iv. nature of the neighborhood- zoning defense- see how the neighborhood is zoned.
f. Defense to Private Nuisance Claim
i. Assumption of risk- “coming to the nuisance” now only a factor in evaluating damage R2d 840d
ii. Locality- “nature of the neighborhood” defense
g. Remedies
i. Damages- compensatory damages- for past damages up to the time the suit is brought
ii. Injunctions- both temporary and permanent- stops the continuation of the nuisance
1. must show that the harm outweighs the utility
h. Case Law:
i. Rose v. Chaikin- held that the windmill was a nuisance
1. established standard for unreasonableness as being offensive to a person of ordinary sensitivities
2. established a risk-utility test for nuisance
ii. Wernke- yard ornaments are only an aesthetic annoyance
iii. Lew- drug houses can be found to be a nuisance even if the landlord and tenants are not the ones dealing, because the LL knew or should’ve known about it and thus attempted to abate the nuisance
iv. Granberry- self help or “abatement” is the only remedy for landowners whose dwelling is injured by trees and shrubs from the adjacent property
v. Boomer- dust/material pollutants- ct allowed factory to pay for future damages and thus allowed the to “license the nuisance”
vi.
BUT if ∏ adds weight to the land and causes the collapse, no liability.
ii. carrion
1. ∆ changes the contour of the land, court ordered him to repair it b/c it did not resemble anything like the original state of the land
III. Drainage
a. Def- “diffused surface water”- waters that are spread over the surface of the ground/ w/ no predictable flow.
b. Three theories
i. “common-enemy”- common law right to dam the water from your property to send it back from whenst it came. MAJORITY
ii. minority- says that you cannot obstruct the flow of natural water on your land.
iii. Reasonable use doctrine- sub silentio- adhering to both 1 and 2- landowner may make reasonable changes to natural drainage patterns.
c. Armstrong v. Francis- reasonable use doctrine- each possessor has the privilege to reasonably alter the flow of water on his land- liability if its unreasonable
IV. Water courses in waterways-
a. 2 old approaches-
i. riparian rights
prior appropriation- 17 western states and Mississippi
