I. Trespass/ Nuisance

Front 1

What is De Minimus encroachment?

Back 1

“There was an tiny encroachment and we’re not going to do anything”

Front 2

Define Trespass

Back 2

An unprivileged physical invasion of property possessed by another

Front 3

What are the 2 types of Trespass?
What are the 2 types of trespass actions?

Back 3

Civil and Criminal.
Civil and Ejectment

Front 4

Name the 5 of Trespass Remedies?

Back 4

a. Compensatory Damages
b. Punitive Damages.
c. Nominal Damages
d. Permanent Damages
e. Injunctive Relief

Front 5

Define Compensatory Damages

Back 5

i. Available to remedy actual harm to property
ii. Often low to nominal

Front 6

Define Punitive Damages

Back 6

i. If the trespass is “sufficiently malicious, oppressive, or rude”
ii. Means to deter trespass from occurring

Front 7

Define Nominal Damages

Back 7

i. Trespass without proof of harm to the property

Front 8

Define Permanent Damages

Back 8

i. Trespass affects the fair market value of the property

Front 9

Define Injunctive Relief

Back 9

i. Court order to trespasser to cease the intrusion in the future
ii. Remove intruding structures or agents of the trespasser

Front 10

Define the "Principle of Public accommodation"

Back 10

When property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude (revoke licenses) people unreasonably.

Front 11

What are the Common Law Limits on Right to Exclude? (6)

Back 11

a. Consent (License)
b. Estoppel
c. Necessity
d. Public Policy or Social Need
e) Special exceptions (2)

Front 12

What are 4 types of objects which might encroach?

Back 12

a. Encroaching structures

b. Vegetation and Trees
c. Aviation
d. Pollution

Front 13

What approaches do courts take to encroaching structures?

Back 13

a) removal of the structure
b) Most courts adopt the Relative Hardship Doctrine

Front 14

How do courts deal with encroaching Vegetation and Trees?

Back 14

i. Land owners have a legal right to remove vegetation that intrudes onto their property
ii. Owners have the right to trim encroaching branches or hedges to the boundary line even when the tree or plant is right on the boundary line
iii. If the owner of the encroaching tree trims it, he will not be liable for trespass due to right to use self-help
a) The owner of the tree owns the cut branches

Front 15

What is the Good faith improver doctrine?

Back 15

Case law in some states entitles the good faith improver to either remove the improvements or receive compensation equal to the amount by which the improvements increase the market value of the owner’s land.

Front 16

Define Nuisance

Back 16

A nuisance is a substantial and unreasonable interference with the use or enjoyment of land

Front 17

Distinguish Trespass and Nuisance- _____ is an actionable invasion of a possessor’s interest in ______ _______ of land

Back 17

______ is an actionable invasion of a possessor’s interest in ______ _______ of land
Trespass- "Exclusive Posession"
Nuisance- "Use and Enjoyment"

Front 18

Distinguish Trespass and Nuisance - _____ claims can be brought by _____

Back 18

* Trespass-only owners or current possessors of land (tenants)

* Nuisance-anyone who has an interest in land (including mortgagees and owners of easements)

Front 19

Distinguish Trespass and Nuisance: In a _____ action, Π must show ____

Back 19

Trespass: intentional, unprivileged physical intrusion.
(No showing of substantial injury is required)

Nuisance: Unreasonable conduct, Substantial injury, That the equities balance in the Π’s favor.

Front 20

Distinguish Trespass and Nuisance: Remedies

Back 20

Trespass: Damages for past conduct, Injunction against future trespass

Nuisance: Damages for past conduct, Permanent damages for future conduct, Injunction

Front 21

Define "Substantial" Interference

Back 21

i. “Offensive or inconvenient” to the ordinary or average person
a) Reasonable Person Standard

Front 22

Define "Unreasonable" Interference

Back 22

unreasonable if “the gravity of the harm outweighs the utility of the actor’s conduct”

No specific intent is required, but intent is required. (easily met)

Front 23

For Nuisance, what is the Restatement's Balancing test?

Back 23

Utility of Conduct v. the Gravity of the Harm. But, b) Even if the utility of the conduct outweighs the gravity of the harm, an activity can still be a nuisance if the harm is serious and the Δ can afford to pay those damaged.

Front 24

In determining gravity of harm involved, Courts consider what factors?

Back 24

1) Extent of harm
2) Character of harm
3) The social value that the law attaches to the type of use or enjoyment invaded
4) The suitability of the particular use or enjoyment invaded to the character of the locality
5) The burden on the person harmed of avoiding the harm

Front 25

In determining Utility of Conduct, Courts consider:

Back 25

1) Social value that the law attaches to the primary purpose of the conduct
2) Suitability of the conduct to the character of the locality
3) Impracticability of preventing or avoiding the invasion

Front 26

Nuisance distinguished from Negligence

Back 26

i. Negligence liability applies when Δ acted in a way that caused an unreasonable risk of harm
ii. Nuisance liability focuses not on the reasonableness of the Δ’s conduct, but on the reasonableness of the consequences of that conduct

Front 27

Hoogasian v. Sears, Roebuck

Back 27

The Watchtower
There is no American decision that holds that a landowner as a right to the free flow of light and air across the adjoining land of his neighbor. Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action. Absent legislation to the contrary, one has the proprietary right to construct a building to its desired height.

Front 28

Prah v. Maretti

Back 28

An owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment by the other.

Front 29

Spur Industries, Inc

Back 29

The difference in a private and public nuisance is generally one of degree. A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public, while a public nuisance is one affecting the rights enjoyed by citizens as part of the public. Coming to the Nuisance.

Front 30

Nuisance Cases can result in four outcomes:

Back 30

(Property Rules)
1. Injunction 2. No Relief

(Liability Rules)
3. Damages 4. Purchased Injunction

Front 31

When do courts use damages in nuisance cases?

Back 31

Courts use damages in nuisance cases unless there is irreparable harm or if damages are inadequate.

Front 32

Distinguish Put and Option in regards to Nuisance

Back 32

Option- Forced sale or "option" owned by P.

Put- Forced Purchase.
Court determines price of both.

Front 33

What is the Coase Theorem?

Back 33

The market will move the right to the highest value used.

Front 34

Define Lateral Support

Back 34

a. Owner has right to expect other owner not to dig adjacent to property and damage property
b. Right to support of land is absolute - Strict liability

Front 35

Is support closer to trespass or nuisance?

Does a neighbor have a duty not to remove existing support?

Back 35

i. trespass more than nuisance
ii. Neighbor is strictly liable for removing support (unless P's land would have been adequately supported if it had been in its natural condition, unburdened by buildings and artificial weight.

Front 36

Is there a duty to support existing structures on the neighbors land?

Back 36

No, But... i. But always duty not to behave negligently. ii. Duty to maintain retaining walls once in place

Front 37

Define SubAdjacent Support

Back 37

a. Right of surface owner not to have land undermined by holders of rights to underground materials (e.g., minerals, water)

Front 38

W/ subadjacent support, is there an absolute right to support for land?

Back 38

Yes, Strict Liability. i. Duty of miners to those on surface

Front 39

How do courts treat subadjacent support with respect to structures?

Back 39

i. Majority apply negligence analysis

Front 40

What is diffuse surface water?

Back 40

i. Drainage water from rain, melting snow, marsh, etc.

Front 41

What are the 3 doctrines for diffuse surface water?

Back 41

a) Natural Use Doctrine: Strict liability rule.
b) Common enemy
c) Reasonable use doctrine (current trend)

Front 42

What is the Common Enemy doctrine?

Back 42

a landowner is privileged to use any and all methods to get rid of surface water and is not liable to his neighbors for flooding them. Surface water is considered an outlaw or common enemy; a high value is placed upon getting rid of it to develop land.

Front 43

What is the reasonable use doctrine?

Back 43

(current trend): an owner is privileged to make reasonable use of his land and in so doing, to alter the drainage of surface water up the point that the alteration causes unreasonable interference with his neighbors’ use of their land. 1) Substantial harm caused by the discharge of water is likely to be held to be unlawful even if the utility of the Δ’s land use far outweighs that of the Π’s land use

Front 44

What are Riparian Rights?

Back 44

Rights to Streams and Lakes.

Front 45

What is the natural FLOW doctrine?

Back 45

a) Various owners on a body of water have use rights, but, with minor exceptions, none is permitted to reduce the water to ownership.
b) “Domestic Purposes”—generally limited to personal human consumption, drinking, bathing, and watering domestic animals.
c) Beyond domestic uses, use must be “reasonable,” but he may not substantially or materially diminish the quantity or quality of water.

Front 46

A riparian owner may make any and all reasonable uses of water, as long as they do not unreasonably interfere with the other riparian owners’ opportunity for reasonable use (majority). What factors do they consider?

Back 46

Purposes of the various uses, their economic value and importance to the owners and to the community, their social value, how much a given use impinges upon the other riparian owners, how appropriate a use is to the particular body of water, and the cost and practicality of adjusting a given use. ii. Domestic uses usually will prevail

Front 47

How do you analyze who has rights to underground water?

Back 47

Reasonable use (Majority): all uses of water upon the land from which it is extracted must be reasonable, even if they more or less deplete the supply to the harm of neighbors, unless the purpose is malicious or wasteful. Water may be extracted for use elsewhere only up to the point that it begins to injure owners within the aquifer.