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26 Cards in this Set

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The Substance of nuisance:

The general Principle
It is helpful to say that a person may not use his own land in an unreasonable manner that substantially lessens another person's use and enjoyment of his land. A nuisance may be private or public. A private nuisance involves interference with purely private rights to the use and enjoyment of land, usually one or more nearby landowners. A public nuisance involves interferenence with public rights, those held in common by everyone, but a public nuisance can also be a private nuisance
Private Nuisance:
A private nuisance occurs when there is substantial interference with private rights to use and enjoy land, produced by either of the following:

Intentional and unreasonable conduct, or
Unintentional conduct that is either negligent, reckless, or so inherently dangerous that strict liability is imposed
Example of
Private Nuisance:

Morgan v. High Penn Oil Co.
High Penn operated an oil refinery that emitted noxious odors several times each week, polluting the air for about a 2-mile radius form the refinery. Along with many other people who owned land located within that radius, Morgan sued to enjoin the refinery’s operations, alleging that the noxious odors made him sick and deprived him of use and enjoyment of his property.

Court agreed that a sue is a nuisance if it is either intentional and unreasonably or unintentionally produced by negligence, recklessness, or extremely dangerous activity. High Penn intended to operate the refinery and know or should have known that its operation would produce the noxious odors and the court assumed its use was unreasonable but did not explain quite why.
Private Nuisance: you use any formula analyzing the facts of this case (Note 3) look what this court did, people don’t want half way houses in there neighborhoods?
- Action to enjoin operation of a home for parolees and prisoners as a private nuisance. The Chancery Court, Third Division, Pulaski County, Kay L. Matthews, J., granted injunctive relief, and defendant appealed. The Supreme Court, E. J. Ball, Special Justice, held that where operation of 'halfway house' resulted in diminution in property values in area, nearby residents had real and reasonable fear and apprehension for their safety and one of residents of house had been convicted of carnal abuse and another had been removed for activities relating to alcohol, operation of house constituted a private nuisance in fact and its operation was properly enjoined
Private Nuisance:

Apprehension about future criminal activity?
- Suit by neighboring property owners against owner of a residential dwelling for an injunction restraining the defendant from using his property as a boarding house for state prison parolees on the ground of an alleged nuisance. The Court of Common Pleas in Hartford County, Lugg and Googel, JJ., granted a permanent injunction, and defendant appealed. The Supreme Court, Thim, Superior Court Judge, held that the fears and apprehensions of the plaintiffs of future manifestations of criminal activity in the neighborhood could not justify the granting of the relief sought, and that mere depreciation of land values, caused by subjective apprehension of property owners and their potential buyers, could not sustain an injunction.

- Not going to give ultra sensitive person more consideration than another.
Remedies for Private Nuisance:

Intentional Conduct
this is the most common form of nuisance. IC is action that is known by the actor to interfere with another use of land, but which is continued nevertheless. Is that conduct unreasonable interference? What in unreasonable there are three views.
Three views of Intentional Conduct:

1. Balancing Harm and Social Utility
If the gravity of the harm inflicted by the conduct outweighs its social utility (unconstrained by nuisance law) the conduct is unreasonable.

Restatement 2d torts. To measure the gravity of the harm torts suggest that courts should consider the extent of the harm, its character, the social value of the use, the suitability o fthe use to the location, and the burden of avoiding the harm.
Intentional Conduct:

2. Balancing: Uncompensated Harm and runious liability
A variation on balanding harm and social utitly is contianed in Restatement 2d torts which holds that an intentional activity is unreasonable if it causes serious harm and the actor could compensate for that and similar harm without going out of business. The courts are forced to decide which is worse -- uncompensated harm or forcing husinesses to close. There are at least two reasons why an actor inflicint serious harm might be excused from liability because he can't afford to pay for the harm
1- the injured party is able to avoid the harm at less cost than the compensation
2- the harm-inflicting activity generaltes positive externalities- benefits that the actor canot capture and use to compensate the injured party but which outweigh the harm.
Intentional Conduct:

3. Substantial Harm- the liability threshold
A number of courts tacitly or explicitly ignore the blanancing test oif substantial harm is inflicted.
Unintentional Conduct:
when an actor uses his land in a way that unintentionally injures another's use or enjoyment of land, the action is a nuisance if either the conduct is below the standard of care commonly required or the risk of harm is so great that the ocnduct ought not be tolerated. This focuses on actors conduct
Substantial Interference:
The alleged nuisance, whether intentional or not must be a subtantial impediment to the use and enjoyment of land. The average person is the standar measuremet for substantial interference. (Morgan v. High Penn)
Public Nuisance:
A public nuisance affects rights hel in common by everybody, the public, rather than just private rights of land use held by landowners
Public Nuisance:

A facotry dischargin pollutants into a publicly owned watershed, thereby contaminating the municipality is affected.
Public Nuisance:

Public Nuisances are normally abated by suits brought by public officials. but a private citizen may bring suit to abate a public huisance if he has been specially injured by the nuisance
Relationship To tresspass
Nuisance and trespass are closely related. Trespass involves a physical invation of a person's land -- an interference with his exclusive right of possession. Nuisance involves an interference with another eperson's righ tto use and enjoy his land and does not necessarily involve interference wiht the exclusive right of possession. There is some overlap; If a viscous sludge of animal waste from a hog farm crosses over the boundary to the neighbor's land, the neighbor ca assert both trespass and nuisance. Also, the physical inaion that constitutes tresspace can be microscopic
1- No Nuisance: The use continues without restraint

2- Enjoin the nuisance to stop it

3- Award damages to landowners affecteed by a nuisance but permit it to continue.

4- Enjoin and use (though maybe not a nuisance) and award damages to the enjoined user.
Economic and legal theory
Economic theory tells us that either landowner- the "pollutor" or the "receptor" of the pollution can hold the initial entitlement. A property interest protected by a property rule cannot be taken away from it owners involuntarily. A property intrest protected by a liability rule can be taken away involuntarily but only upon payment of an award of damages. These two theories result in the following four outcomes (No Nuisance, Enjoin, Award Damages and permit to continue, Enjoin and award damages) A court must allocate the right and decide whether to protect that right by a property rule (injunction) or a liaiblity rule (damages)

NO Nuisance: Continue the activity
If a challanged activity is found not to be a nuisance the use right is allocated to the challanged user and is implicitly protected by a property rule. Because it is not a nuisance. The huse will continue unless the challenged use is the less valuable one and transaction costs do not inhibit its transfer.

Nuisance: Enjoin and abate the activity
If a challenged activity is found to be a nuisance and the challenger’s use is protected by a property rule, the challenged activity will be enjoined and it will thus stop. The challenger can continue his use at his please. If the enjoined activity is the more valuable the use right will likely be shifted to the enjoined user unless transaction costs prevent the transfer.
Remedies: Nuisance: Enjoin and abate the activity

Estancias Dallas Corp v. Shultz
Estancias Dallas constructed an apartment complex in Dallas adjacent to Schultz’s residence. To save 40,00 E located its central air conditioning unit about 5 ft form the S’s lot line, 55 feet from his house, and 70 feet from his bedroom. The air conditioner was noisy, it prevented Shultz from entertaining outdoors, and even interfered with indoor covesation and his sleep. To change the location of the unit would cost E 150,000 to 200,000. The apartments could not be rented in the sweltering heat w/o air conditions. S’s house was 25, 000 and now because of the noise it was valued at 12,000

The court determined that the AC was a nuisance and injunction of its further operation. The loss of the entire value of Schultz’s house was outweighed by the social utility of the air conditioner. Although the harm may have been serious and E could have compensated S w/o ceasing business, that test is used when the P is seeking compensation. W/o saying so the texas courts were applying the threshold of harm test.
o Capitalized damages? That is the permennent loss to the property values
o The injunction places power on the P if you are willing to bargain.
o You can ask was is fair given what the parties did, what they knew, what they should have done, that is equally as relevant
o Differences between blanacing equities and balancing nuisances. Equity consider social utility and impact. Balancing Nuisance and injuction the courts have to look at a lot more when they consider the remedy. Such as what we talked about above. (KEY)
Nuisance: Pay damages and continue the activity
: If is not possible to ignore the Real World presence of transaction costs. Thus, in situations where there are a large number of landowners affected by a more valuable use that is, on balance, a nuisance, the presence of holdout transaction costs may prompt a court to protect the use right of the numerous landowners instead of enjoining the nuisance. The damages awarded are PERMANENT DAMAGES an amount sufficient to compensate now for all past and future injury that may be inflicted by continuation of the nuisance.
Remedies: Example of
Nuisance: Pay damages and continue the activity

Boomer v. Atlantic Cement Co.
Atlantic cement’s factory produced dirt, smoke, noise and vibrations that substantially interfered with the use and enjoyment of land owned by a large number of neighbors. The court upheld the TC finding that the factory was a nuisance and ward of damages instead of injunction . The case was remanded for determination of the amount of permanent damages to be awarded for the “servitude” thus created over the affected land.

The courts rationale was partly the tech impossibility of abatement, coupled with recognition that the factory was the more valuable use but that the holdout possibility might well frustrate a market transfer of the right if the factory was enjoin from further operation. In essence the court applied the balancing formula that asks whether the D could compensate for all the serious harm it causes without ceasing business and concluded that AC could do so. Because it is hard to ascertain permanent damages the present value of future injury that has not yet been inflicted, but if the damage award is not permanent, transaction costs will be high. An injunction is of dubious efficacy because of the nearly insurmountable transaction costs that would inhibit transfer of the use right from the affected homeowners to Atlantic Cement.

o How do you calculate permanent damages? All the damages up to date and the damages in the future. If you can show a measurable stream of damages courts would like. Court in property like to look at the decrease in property value. And it turned out to be a great deal of money.

Nuisance or not: Enjoin the activity but award damages to the enjoined actor
Typically this will not occur when 1) the p asserts that his activity is the more valuable 2) it is not clear either that i) the challenged activity is a nuisance or, if it is that ii) equity favors an adorned injunction and 3) it is unlikely that the P is able or willing to acquire the use right in the market.
Example of Nuisance or not: Enjoin the activity but award damages to the enjoined actor

Spur Industries, Inc v. Del E. Webb
Spur operated a cattle feed lot in a rural part of Arizona. The feed lot necessarily generated enormous quantities of manure, attracting clouds of insects and creating noxious odors, but nobody objected because there were no neighbors. Later, the Del corporation created Sun City, a retirement city, and expanded it until it was close to Spur’s feed lot to mate the two uses incompatable.

The court enjoined Spur from further operation of the feed lot, but required Del to pay Spur “a reasonable amount of the cost of moving or shutting down” Equity required Del Webb to compensate Spur because Webb came to the nuisance. The older common law view of nuisance ( either nuisance and injunction or no nuisance and no remedy) would have dealt with this by declaring Spur’s fed lot to be no nuisance and denying any relief to Webb and the retirees it induced to come to the nuisance. That is an unsafisfactory result, especially when the feed lot constituted a public nuisance on health grounds.

The courts solution forced Webb to bear the cost of his coming to the nuisance. This remedy also forces the complaining user “to put his money where his mouth is.” Because the P claims to have the more valuable use he ought to be willing to shoulder some of the lesser cost of his adversary’s cessation of use, particularly when he bears considerable responsibility for the use conflict. For this remedy to be effective it is necessary to join all parties who are adversely affected by the use to be enjoined. Otherwise, the free rider problem can be insuperable.
Lateral Support
the scope of the right of lateral support is different for land itself an dstructures placed on the land.

1. Land itself- a landowner who alters his land by removing the lateral support from his neighbor's land is strictly liable for any resulting damages to his neighbor;s land.

2. Structures- most states hold that a landowner is liable for damages to structures from withdrawal of lateral support if either of two conditions is met - land owner is negligent and it would have not occurred otherwise or callapse would have occurred whether or not the structer were there
Subjacent Support
the right of subjacent support is never an inssue unless ownership has been split into two parts
1) Ownerhsip of the surface and
2) Ownership of the right to mine under the surface.
The owner of the undergrond mineral rights is Strictly liable for an damage causet to land or structurs on the surface resulting form withdrawal of subjacent support