Property IIProperty IIProfessor Donald J. KochanProfessor Donald J. Kochan

Spring 2009Spring 2009Class 36Class 36

4 February 20094 February 2009

Today’s ReadingsToday’s Readings

Judicial Land Use ControlsJudicial Land Use Controls NuisanceNuisance TrespassTrespass

MorganMorgan EstanciasEstancias

BoomerBoomer SpurSpur

RemediesRemedies

Relationship to Environmental ControlsRelationship to Environmental Controls

Pages 637-665Pages 637-665

Land Use ControlsLand Use Controls

JudicialJudicial

PrivatePrivate

LegislativeLegislative

Eminent DomainEminent Domain

*Not mutually exclusive*Not mutually exclusive**When one fails to satisfy preferences,**When one fails to satisfy preferences,

consider anotherconsider another

Judicial Land Use Controls:Judicial Land Use Controls:Part Torts and Part PropertyPart Torts and Part Property

Founded on the right to exclude andFounded on the right to exclude andsic utere tuo ut alienum non laedassic utere tuo ut alienum non laedas

Judicial land use controls attempt to resolve conflicting Judicial land use controls attempt to resolve conflicting land uses and protection of dominion through the land uses and protection of dominion through the ASSIGNMENT of rights and control of externalitiesASSIGNMENT of rights and control of externalities

Primary doctrines Primary doctrines (understand the distinctions, similarities, and (understand the distinctions, similarities, and

overlaps):overlaps): NuisanceNuisance TrespassTrespass

Sic UtereSic Utere

““Sic utere tuo ut non laedas”Sic utere tuo ut non laedas”So to use your own as not to injure another.So to use your own as not to injure another.

  “First: No man is to deprive another of his property,“First: No man is to deprive another of his property,

or disturb him in enjoying it.or disturb him in enjoying it.Secondly, every person is bound to take Secondly, every person is bound to take

due care of his own property, due care of his own property, so as the neglect thereof may not injure his neighbor.so as the neglect thereof may not injure his neighbor.

Thirdly, all persons must so use their right, that they doThirdly, all persons must so use their right, that they donot ... damage their neighbor's property.”not ... damage their neighbor's property.”

Giles Jacob 1729 (A New Law Dictionary)Giles Jacob 1729 (A New Law Dictionary)

p.s. read the poster toop.s. read the poster too

NuisanceNuisance Involves the resolution of conflicting land usesInvolves the resolution of conflicting land uses

Involves the control of externalitiesInvolves the control of externalities

Reciprocal obligations and Reciprocal obligations and sic uteresic utere

““Although the term "nuisance" has been regarded as Although the term "nuisance" has been regarded as incapable of precise definition so as to fit all cases, it has incapable of precise definition so as to fit all cases, it has

also been held to be a term with a well defined legal also been held to be a term with a well defined legal meaning, and in legal phraseology applies to that class of meaning, and in legal phraseology applies to that class of

wrongs which arise from the unreasonable, unwarrantable, wrongs which arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or or unlawful use by a person of his own property, real or

personal, or from his own improper, indecent, or unlawful personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right personal conduct, working an obstruction or injury to a right

of another, or of the public, and producing material of another, or of the public, and producing material annoyance, inconvenience, discomfort, or hurt.” annoyance, inconvenience, discomfort, or hurt.”

66 C.J.S. Nuisances § 266 C.J.S. Nuisances § 2

Nuisance DefinedNuisance DefinedFrom From Black’s Law DictionaryBlack’s Law Dictionary (8 (8thth ed. 2004): ed. 2004):

““nuisance. 1.nuisance. 1. A condition, activity, or situation (such as a loud noise or A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways. • the enjoyment of easements on the land or of public highways. •

Liability might or might not arise from the condition or situation. -- Liability might or might not arise from the condition or situation. -- Formerly also termed Formerly also termed annoyanceannoyance. [Cases: Nuisance 1-4. . [Cases: Nuisance 1-4. C.J.S. C.J.S.

NuisancesNuisances §§ 2 §§ 2--88, , 1010--1414, , 1717--2323, , 2525--4545, , 4747--5757, , 5959--6262.] .]         

"A nuisance may be merely a right thing in the wrong place, like a pig in "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." the parlor instead of the barnyard."

Village of Euclid v. Ambler Realty Co.Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 , 272 U.S. 365, 388, 47 S.CtS.Ct. 114, 118 (1926). 114, 118 (1926). .

        . . . "The general distinction between a nuisance and a trespass is . . . "The general distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance that the trespass flows from a physical invasion and the nuisance

does not." Roger A. Cunningham et al., does not." Roger A. Cunningham et al., The Law of PropertyThe Law of Property § 7.2, at  § 7.2, at 417 (2d ed. 1993).”417 (2d ed. 1993).”

Nuisance Defined (cont.)Nuisance Defined (cont.)

From From Black’s Law DictionaryBlack’s Law Dictionary (8 (8thth ed. 2004): ed. 2004):

““nuisance. 2.nuisance. 2. Loosely, an act or failure to act resulting in Loosely, an act or failure to act resulting in an interference with the use or enjoyment of property. • an interference with the use or enjoyment of property. • In this sense, the term denotes the action causing the In this sense, the term denotes the action causing the interference, rather than the resulting condition <the interference, rather than the resulting condition <the

Slocums' playing electric guitars in their yard constituted Slocums' playing electric guitars in their yard constituted a nuisance to their neighbors>. [Cases: Nuisance 3, 61. a nuisance to their neighbors>. [Cases: Nuisance 3, 61.

C.J.S. C.J.S. NuisancesNuisances §§ 4 §§ 4, , 1010--1414, , 1818, , 2020--2121, , 2525--2626, , 2828, , 3131--5757, , 5959--6262.] .]

"There is perhaps no more impenetrable jungle in the entire law "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach everything from an alarming advertisement to a cockroach

baked in a pie." baked in a pie." Prosser and Keeton on the Law of TortsProsser and Keeton on the Law of Torts § 86, at  § 86, at 616 (W. Page Keeton et al., 5th ed. 1984).”616 (W. Page Keeton et al., 5th ed. 1984).”

Difference between Difference between PrivatePrivate Nuisance and Nuisance and PublicPublic Nuisance Nuisance

From From Black’s Law DictionaryBlack’s Law Dictionary (8 (8thth ed. 2004): ed. 2004):

““private nuisanceprivate nuisance. A condition that interferes with a person's enjoyment of . A condition that interferes with a person's enjoyment of property; esp., a structure or other condition erected or put on nearby land, property; esp., a structure or other condition erected or put on nearby land,

creating or continuing an invasion of the actor's land and amounting to a creating or continuing an invasion of the actor's land and amounting to a trespass to it. • The condition constitutes a tort for which the adversely trespass to it. • The condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction. [Cases: affected person may recover damages or obtain an injunction. [Cases:

Nuisance 1. Nuisance 1. C.J.S. C.J.S. NuisancesNuisances §§ 2 §§ 2--88, , 1010--1414, , 1818--2121.] .]

"Trespass and private nuisance are alike in that each is a field of tort liability rather than a "Trespass and private nuisance are alike in that each is a field of tort liability rather than a single type of tortious conduct. In each, liability may arise from an intentional or an single type of tortious conduct. In each, liability may arise from an intentional or an

unintentional invasion. For an intentional trespass, there is liability without harm; for a unintentional invasion. For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm.... In private nuisance an private nuisance, there is no liability without significant harm.... In private nuisance an intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and

unreasonableness of the interference is necessary for liability." unreasonableness of the interference is necessary for liability." Restatement (Second) of TortsRestatement (Second) of Torts § 821D § 821D cmt. d (1979). cmt. d (1979).

  . . .. . .

public nuisancepublic nuisance. An unreasonable interference with a right common to the general . An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral public, such as a condition dangerous to health, offensive to community moral

standards, or unlawfully obstructing the public in the free use of public standards, or unlawfully obstructing the public in the free use of public property. • Such a nuisance may lead to a civil injunction or criminal property. • Such a nuisance may lead to a civil injunction or criminal

prosecution. -- Also termed prosecution. -- Also termed common nuisancecommon nuisance. [Cases: Nuisance 59-96. . [Cases: Nuisance 59-96. C.J.S. C.J.S. Landlord and TenantLandlord and Tenant § 344 § 344; ; NuisancesNuisances  §§ 4§§ 4, , 99--1010, , 1414--1616, , 1818, , 2020--2121, , 2424, , 3434--3939, , 4141--6666, ,

7070--7676, , 7878, , 8484--8686, , 8888--9191, , 9494--9797, , 103103--115115, , 117117--118118, , 120120--122122, , 124124--133133, , 149149--158158.]”.]”

Trespass DefinedTrespass Defined

From From Black’s Law DictionaryBlack’s Law Dictionary (8 (8thth ed. 2004): ed. 2004):

““trespasstrespass . . . . . . n.n.  1.1. An unlawful act committed against the An unlawful act committed against the person or property of another; esp., wrongful entry on person or property of another; esp., wrongful entry on another's real property. [Cases: Trespass 1-15. another's real property. [Cases: Trespass 1-15. C.J.S. C.J.S.

TrespassTrespass §§ 2 §§ 2, , 44--1616, , 2828--2929, , 7474, , 164164.].]. . .. . .

trespass quare clausum fregittrespass quare clausum fregit . . . . . . 1.1. A person's A person's unlawful entry on another's land that is visibly enclosed. unlawful entry on another's land that is visibly enclosed. • This tort consists of doing any of the following without • This tort consists of doing any of the following without

lawful justification: (1) entering upon land in the lawful justification: (1) entering upon land in the possession of another, (2) remaining on the land, or (3) possession of another, (2) remaining on the land, or (3) placing or projecting any object upon it. placing or projecting any object upon it. 2.2. At common At common

law, an action to recover damages resulting from law, an action to recover damages resulting from another's unlawful entry on one's land that is visibly another's unlawful entry on one's land that is visibly

enclosed. . . . [Cases: Trespass 10, 16, 17. enclosed. . . . [Cases: Trespass 10, 16, 17. C.J.S. C.J.S. TrespassTrespass §§ 13 §§ 13-15, 62-64, 70-74.]”-15, 62-64, 70-74.]”

Trespass Defined (cont.)Trespass Defined (cont.)

““Every unwarrantable entry on another's soil the law entitles Every unwarrantable entry on another's soil the law entitles a trespass by a trespass by breaking his closebreaking his close; the words of the writ of ; the words of the writ of

trespass commanding the defendant to shew cause, trespass commanding the defendant to shew cause, quare quare clausum querentis fregitclausum querentis fregit. For every man's land is in the eye . For every man's land is in the eye of the law enclosed and set apart from his neighbour's: and of the law enclosed and set apart from his neighbour's: and

that either by a visible and material fence, as one field is that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible divided from another by a hedge; or, by an ideal invisible

boundary, existing only in the contemplation of law, as boundary, existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. when one man's land adjoins to another's in the same field.

And every such entry or breach of a man's close carries And every such entry or breach of a man's close carries necessarily along with it some damage or other: for, if no necessarily along with it some damage or other: for, if no

other special loss can be assigned, yet still the words of the other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading writ itself specify one general damage, viz. the treading

down and bruising his herbage.”down and bruising his herbage.”William Blackstone,William Blackstone,

3 3 Commentaries on the Laws of EnglandCommentaries on the Laws of England 209-10 (1768). 209-10 (1768).

Morgan v. High Penn Oil Co.Morgan v. High Penn Oil Co. Proximity case; refinery; traceability (source) of pollution issuesProximity case; refinery; traceability (source) of pollution issues

Use and enjoymentUse and enjoyment

Must identify the interest invadedMust identify the interest invaded

Distinguish between intentional and unintentionalDistinguish between intentional and unintentional

Sic utereSic utere (an omnipresent principle) (an omnipresent principle)

Focus on reasonableness and unreasonable and the distinctions between intentional Focus on reasonableness and unreasonable and the distinctions between intentional and unintentional – they matter for both liability and remedy.and unintentional – they matter for both liability and remedy.

Do you understand the distinction between liability and remedy?Do you understand the distinction between liability and remedy?

Read the note on comparison with trespassRead the note on comparison with trespass

Read the note on air and light – classic nuisances versus comparable onesRead the note on air and light – classic nuisances versus comparable ones

On lateral and subjacent support, return to classes 30-31On lateral and subjacent support, return to classes 30-31

Morgan v. High Penn Oil Co. (cont.)Morgan v. High Penn Oil Co. (cont.)

““[T]he interest of another in the use and enjoyment of land; that any [T]he interest of another in the use and enjoyment of land; that any substantial nontrespassory invasion of another’s interest in the substantial nontrespassory invasion of another’s interest in the

private use and enjoyment of land by any type of liability forming private use and enjoyment of land by any type of liability forming conduct is a private nuisance; that the invasion which subjects a conduct is a private nuisance; that the invasion which subjects a

person to liability for private nuisance may be intential or person to liability for private nuisance may be intential or unintentional; that a person is subject to liability for an intentional unintentional; that a person is subject to liability for an intentional

invasion when his conduct is unreasonable under the circumstances invasion when his conduct is unreasonable under the circumstances of the particular case; and that a person is subject to liability for an of the particular case; and that a person is subject to liability for an

unintentional invasion when his conduct is negligent, reckless or unintentional invasion when his conduct is negligent, reckless or ultra-hazardous.”ultra-hazardous.”

““An invasion of another’s interest in the use and enjoyment of land is An invasion of another’s interest in the use and enjoyment of land is intentional in the law of private nuisance when the person whose intentional in the law of private nuisance when the person whose

conduct is in question as a basis for liability acts for the purpose of conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows causing it, or knows that it is resulting from his conduct, or knows

that it is substantially certain to result from his conduct. . . . A person that it is substantially certain to result from his conduct. . . . A person who intentionally creates or maintains a private nuisance is liable for who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skil the resulting injury to others regardless of the degree of care or skil

exercised by him to avoid such injury . . .”exercised by him to avoid such injury . . .”

Estancias Dallas Corp. v. ShultzEstancias Dallas Corp. v. Shultz

Noise from A/C unit caseNoise from A/C unit case Injunction v. DamagesInjunction v. Damages Comparative Injury IssuesComparative Injury Issues Balancing of Equities – what does Balancing of Equities – what does

that mean?that mean? Permitting a nuisance to continue “in Permitting a nuisance to continue “in

the public interest” issues; public the public interest” issues; public benefit v. private rights?benefit v. private rights?

Utilitarianism?Utilitarianism?

Boomer v. Atlantic Cement Co.Boomer v. Atlantic Cement Co.

Cement plant and air pollution caseCement plant and air pollution case Traceability and externality issuesTraceability and externality issues ““general public welfare” informs general public welfare” informs

remediesremedies Conflict about jurisprudential Conflict about jurisprudential

philosophy – right private wrongs or philosophy – right private wrongs or serve the “general welfare”?serve the “general welfare”?

Permanent v. Temporary DamagesPermanent v. Temporary Damages

Spur Industries Inc. v. Del E. Webb Spur Industries Inc. v. Del E. Webb Development Co.Development Co.

Cattle feedlot caseCattle feedlot case Otherwise lawful activity issueOtherwise lawful activity issue Coming to the nuisanceComing to the nuisance Notice and assumption of riskNotice and assumption of risk Private v. Public Nuisance -- examine Private v. Public Nuisance -- examine

how the definition affects the choice of how the definition affects the choice of remedyremedy

What is indemnification and why is that What is indemnification and why is that important to this case?important to this case?

Coming to the NuisanceComing to the Nuisance

Notice, Investment-Backed Notice, Investment-Backed Expectations, Due Diligence, and Expectations, Due Diligence, and Discounts in PriceDiscounts in Price

““Relevant Factor” for both Liability and Relevant Factor” for both Liability and Choice of RemedyChoice of Remedy

Read and recall the discussion about Read and recall the discussion about “first in time” principles both in this “first in time” principles both in this reading and the reference backreading and the reference back

Nuisance and Environmental LawNuisance and Environmental Law

Substitution – if judicial land use controls fail to satisfy Substitution – if judicial land use controls fail to satisfy preferences, can regulatory controls fill the gap?preferences, can regulatory controls fill the gap?

Do collective action, free-rider, traceability, Do collective action, free-rider, traceability, extraordinary private litigation costs, etc. justify extraordinary private litigation costs, etc. justify regulatory/legislative land use controls to compensate regulatory/legislative land use controls to compensate for problems in the judicial or private land use control for problems in the judicial or private land use control systems?systems?

Are regulatory environmental controls a mirror of Are regulatory environmental controls a mirror of judicial controls just with a separate enforcement judicial controls just with a separate enforcement system or are they and should they go beyond that system or are they and should they go beyond that role?role?

Concluding ThoughtsConcluding Thoughts If your property is limited by a judicial land use control, you If your property is limited by a judicial land use control, you

never hadnever had that stick in your bundle in the first place that stick in your bundle in the first place

If judicial land use controls do not satisfy your preferences, If judicial land use controls do not satisfy your preferences, always consider alternative mechanisms (always consider alternative mechanisms (e.g.e.g., private or , private or

legislative land use controls)legislative land use controls)

Review also what you have learned in Torts regarding Review also what you have learned in Torts regarding nuisance and trespassnuisance and trespass

Revisit the remedies cases for next classRevisit the remedies cases for next class

Take a minute to recall all the thinkers we have discussed Take a minute to recall all the thinkers we have discussed and how their theories apply (Coase, C&M, Madison, etc.)and how their theories apply (Coase, C&M, Madison, etc.)