LOGISTICS: CLASS WED/THU

• We’ll finish coverage of Notes after Maguire. For discussion on norms, think about:– Examples of norms inconsistent w law?– Likely effects of this type of inconsistency?– Pros and cons of having law try to parrot local norms

• We’ll spend substantial time on Carpenter: – Corn DQs: DQ51 worth attention; we’ll do at length– Wheat DQs: start, get as far as time allows ,finish on Fri

LOGISTICS: ASSIGNMENT II

• Looking for volunteers among Section C1 Plaintiffs’ Attorneys to do witness interview:

• Qs (don’t give away your evidence to other side!)

MAGUIRE: CONTEXTUnit on Bundle of Sticks

• Chapter 3: Introduction to Limits on Right to Use• Examples of Problems of Competing/Incompatible

Uses of Land (Reese’s Peanut Butter Cup Problem)– Here: Tort solutions: Trespass & Nuisance – Also dealt with by several other legal tools:

1. Limits in grants of property rights when transferred: Defeasible Fees (ch 7)

2. Contract solutions: Servitudes (ch. 8)3. Regulatory solutions: Zoning & Environmental Law (outside

course)

MAGUIRE: CONTEXTInherent Conflict between Ranchers & Farmers• Grazing animals off ranch do harm to crops• Several ways to address– E.g., Private Contracts or General Regulation– If use Tort Law (Trespass or Nuisance):

1. Might make ranchers strictly liable for damage, which encourages them to “fence in” animals in & maintain fences

2. If ranchers not strictly liable, encourages farmers to “fence out” & maintain fences

MAGUIRE: HISTORYCommon Law re Ranchers v. Farmers

• Old Common Law Rule (England and some States)– Owner of animals strictly liable– Owners encouraged to fence in.

• Many American states (including Idaho) reject b/c …– Custom of open grazing on govt lands in west– Very expensive to fence in big ranches (Texan on Kibbutz)

• Replace w rule that O only liable if intentionally drives animals onto 3d party land– Creates incentives for farmers to fence out animals– Usually exception for cities and villages

MAGUIRE: HISTORYIdaho Legislation

1.“Legal Fence Laws”– Can get damages for trespass by animals if land

surrounded by legal fence (as defined). – Why specify dimensions of fence? • Encourage farmers to put up fences that actually protect

crops• Minimize disputes over what constitutes a “fence”

– Clever way to balance interests and hard for court to do because need specfic definition.

MAGUIRE: HISTORYIdaho Legislation

1.“Legal Fence Laws”2.“Herd Districts”– Area where common law rule reinstated by vote of

majority of landowners– Changes rule from fence out back to fence in– Essentially creates no grazing zones– Democratic control of areas whose use is shifting

MAGUIRE: HISTORYIdaho Legislation

1.“Legal Fence Laws”2.“Herd Districts”3.Special Rules for “Open Range Lands”• Areas where livestock historically allowed to graze• Herd Districts not protected against animals from Open

Range unless surrounded by fence (back to fence out)• Rationale: Too difficult to control animals at boundaries if

grazing on large Open Range Lands (Ranchers must have lobbied)

MAGUIRE: HISTORYIdaho Legislation

1. “Legal Fence Laws”2. “Herd Districts”3. Special Rules for “Open Range Lands”

Note that Idaho Legislature in this sequence of laws has tried to balance interests of ranchers and farmers and deal with possibility of changing

circumstances.

MAGUIRE: LEGAL DISPUTE• ISSUE: Legal Status of Area in Q– Not “Herd District”– Not “Open Range Land”

• Trial Court held that b/c no grazing tradition (not open range), old common law rule (fence in) applied

• Idaho SCt Reverses

MAGUIRE: LEGAL DISPUTEHOLDING: Idaho Background Rule is Fence Out• Only Exceptions: Cities/Villages or “Herd District”• Protection for Farmers is Build “Legal Fence” or

Lobby for “Herd District”• Note not doing a policy discussion – Instead trying to give force to sequence of legislative

enactments. – Job different once legislature has intervened– Protecting expectations created by existing regulatory

regime

MAGUIRE: LEGAL DISPUTEHOLDING: Idaho Background Rule is Fence Out• Only Exceptions: Cities/Villages or “Herd District”• Protection for Farmers is Build “Legal Fence” or

Lobby for “Herd District”• Note not doing a policy discussion, but trying to

fit case into legislative scheme.

Qs on Maguire?

McCARTY: LEGAL DISPUTE• Private Nuisance Action: Residence v. Polluting

Factory; Conceded that Plaintiff didn’t Come to the Nuisance

• Lower Court granted injunction & damages for past harm (not future).

• Majority Affirms.

McCARTY: RELEVANCE ANALYSIS• Majority says case turns on whether D’s use of its

land is “reasonable” considering all the circumstances.

• This is never true. Court will not consider evidence, e.g., on– Which party gave the largest bribes to the trial judge– Which party’s counsel is tallest– Which party’s building has the best décor

• What circumstances are really relevant to “reasonableness”?

McCARTY: RELEVANCE ANALYSISRelevant Factors Listed on P131 and P132

1. Location/Character of neighborhood/Immediate surroundings

2. Extent & frequency of injury/Effect on enjoyment of life, health & property

3. Nature of use4. Public utility

A little vague, especially 3 and 4.

McCARTY: RELEVANCE ANALYSISDoes “Nature of Use” or Public Utility” include value

to society of D’s business or costs to D of modifying production methods?

• Dissent: record doesn’t indicate whether the D could stay in business if it switched to hard coal

• In most tort contexts, “reasonableness” includes analysis of value of D’s business & costs to D of eliminating the harm.

McCARTY: RELEVANCE ANALYSISMajority seems to reject relevance of value of D’s

business & costs to D of eliminating the harm.• Not defense that location of challenged use is necessary

to D (P131)• Not defense that D exercises all practicable care;

negligence not an element of claim )P131)1. P131: Negligence, wrong business methods, improper

appliances bear upon but do not control the issue of reasonable use.

2. i.e., it can count against you if you’re negligent, but not a defense if you aren’t

McCARTY: RELEVANCE ANALYSISMajority seems to reject relevance of value of D’s

business & costs to D of eliminating the harm.• Says it’s possible to run the business w/o particular

damage by using hard coal or cleaner methods (P132)• Says even if these methods cost more, better to reduce

profits than to compel P to abandon his home. (P132)• Although as dissent notes, no evidence that D can afford

to stay in business using either alternative.

What does reasonableness mean here, if not whether D’s conduct is cost-justified?

McCARTY: RELEVANCE ANALYSISMajority suggests that nuisance occurs where

plaintiff is reasonable in complaining about it. • Asks what an ordinary plaintiff can reasonably expect – Some smoke ordinarily is part of town or city living and

residents have to put up with it (P131-32).– But when “the smoke is so unusual or excessive as to

materially interfere with the ordinary comfort of human existence, the trier of fact … may find the use unreasonable.” (P132

McCARTY: RELEVANCE ANALYSISMajority suggests that nuisance occurs where

plaintiff is reasonable in complaining about it. • “The extent more than the nature of the injury

constitutes the nuisance.” (P131) • Contrasts “trifling results” with “material interference”– “Lex non favet votis delicatorum”: The law doesn’t favor the

dainty.– Looks like traditional defense of oversensitiveness (i.e., an

unreasonable plaintiff)

McCARTY: RELEVANCE ANALYSISDefense of Oversensitiveness.

• Can go to extent or nature of injury– Extent: Not enough to bother normal person in the

circumstances• Florida case about daytime noise made by children at

daycare• McCarty Dissent seems to say that absent evidence of

tangible permanent harm, in a town where manufacturing takes place, plaintiffs shouldn’t be able to stop the defendant merely for “their comfort.” Sounds like an oversensitiveness concern.

McCARTY: RELEVANCE ANALYSISDefense of Oversensitiveness.

• Can go to extent or nature of injury– Extent: Not enough to bother normal person in the

circumstances– Nature: Not the kind of thing that bothers a normal

person• Soul injury from slaughterhouse• Minor aesthetic concerns• Rare allergies

McCARTY: RELEVANCE ANALYSISDefense of Oversensitiveness.

• Can go to extent or nature of injury– Extent: Not enough to bother normal person in the

circumstances– Nature: Not the kind of thing that bothers a normal

person– Defense contains an implicit policy Q about extent &

nature of harm people need to be willing to accept to live in that location