Property II Professor Donald J. Kochan

1. Property IIProfessor Donald J. Kochan Spring 2009 Class 36 4 February 2009

2. Today’s Readings • Judicial Land Use Controls • Nuisance • Trespass • Morgan • Estancias • Boomer • Spur • Remedies • Relationship to Environmental Controls • Pages 637-665

3. Land Use Controls • Judicial • Private • Legislative • Eminent Domain *Not mutually exclusive **When one fails to satisfy preferences,consider another

4. Judicial Land Use Controls:Part Torts and Part Property • Founded on the right to exclude andsic utere tuo ut alienum non laedas • Judicial land use controls attempt to resolve conflicting land uses and protection of dominion through the ASSIGNMENT of rights and control of externalities • Primary doctrines (understand the distinctions, similarities, and overlaps): • Nuisance • Trespass

5. Sic Utere “Sic utere tuo ut non laedas” So to use your own as not to injure another.“First: No man is to deprive another of his property,or disturb him in enjoying it.Secondly, every person is bound to take due care of his own property, so as the neglect thereof may not injure his neighbor. Thirdly, all persons must so use their right, that they donot ... damage their neighbor's property.” Giles Jacob 1729 (A New Law Dictionary) p.s. read the poster too

6. Nuisance • Involves the resolution of conflicting land uses • Involves the control of externalities • Reciprocal obligations and sic utere • “Although the term "nuisance" has been regarded as incapable of precise definition so as to fit all cases, it has also been held to be a term with a well defined legal meaning, and in legal phraseology applies to that class of wrongs which arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing material annoyance, inconvenience, discomfort, or hurt.” 66 C.J.S. Nuisances § 2

7. Nuisance Defined From Black’s Law Dictionary (8th ed. 2004): “nuisance. 1. A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways. • Liability might or might not arise from the condition or situation. -- Formerly also termed annoyance. [Cases: Nuisance 1-4. C.J.S. Nuisances §§ 2-8, 10-14, 17-23, 25-45, 47-57, 59-62.] "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118 (1926).     . . . "The general distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not." Roger A. Cunningham et al., The Law of Property § 7.2, at 417 (2d ed. 1993).”

8. Nuisance Defined (cont.) From Black’s Law Dictionary (8th ed. 2004): “nuisance. 2. Loosely, an act or failure to act resulting in an interference with the use or enjoyment of property. • In this sense, the term denotes the action causing the interference, rather than the resulting condition <the Slocums' playing electric guitars in their yard constituted a nuisance to their neighbors>. [Cases: Nuisance 3, 61. C.J.S. Nuisances §§ 4, 10-14, 18, 20-21, 25-26, 28, 31-57, 59-62.] "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." Prosser and Keeton on the Law of Torts § 86, at 616 (W. Page Keeton et al., 5th ed. 1984).”

9. Difference between Private Nuisance and Public Nuisance From Black’s Law Dictionary (8th ed. 2004): “private nuisance. A condition that interferes with a person's enjoyment of 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 trespass to it. • The condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction. [Cases: Nuisance 1. C.J.S. Nuisances §§ 2-8, 10-14, 18-21.] "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 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 intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability." Restatement (Second) of Torts § 821D cmt. d (1979).  . . . public nuisance. An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. • Such a nuisance may lead to a civil injunction or criminal prosecution. -- Also termed common nuisance. [Cases: Nuisance 59-96. C.J.S. Landlord and Tenant § 344; Nuisances§§ 4, 9-10, 14-16, 18, 20-21, 24, 34-39, 41-66, 70-76, 78, 84-86, 88-91, 94-97, 103-115, 117-118, 120-122, 124-133, 149-158.]”

10. Trespass Defined From Black’s Law Dictionary (8th ed. 2004): “trespass . . . n.1. An unlawful act committed against the person or property of another; esp., wrongful entry on another's real property. [Cases: Trespass 1-15. C.J.S. Trespass §§ 2, 4-16, 28-29, 74, 164.]. . . trespass quare clausum fregit . . . 1. A person's unlawful entry on another's land that is visibly enclosed. • This tort consists of doing any of the following without lawful justification: (1) entering upon land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object upon it. 2. At common law, an action to recover damages resulting from another's unlawful entry on one's land that is visibly enclosed. . . . [Cases: Trespass 10, 16, 17. C.J.S. Trespass §§ 13-15, 62-64, 70-74.]”

11. Trespass Defined (cont.) “Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbour's: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of law, as 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 necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.” William Blackstone,3 Commentaries on the Laws of England 209-10 (1768).

12. Morgan v. High Penn Oil Co. • Proximity case; refinery; traceability (source) of pollution issues • Use and enjoyment • Must identify the interest invaded • Distinguish between intentional and unintentional • Sic utere (an omnipresent principle) • Focus on reasonableness and unreasonable and the distinctions between intentional and unintentional – they matter for both liability and remedy.Do you understand the distinction between liability and remedy? • Read the note on comparison with trespass • Read the note on air and light – classic nuisances versus comparable ones • On lateral and subjacent support, return to classes 30-31

13. Morgan v. High Penn Oil Co. (cont.) • “[T]he interest of another in the use and enjoyment of land; that any substantial nontrespassory invasion of another’s interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance; that the invasion which subjects a person to liability for private nuisance may be intential or unintentional; that a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case; and that a person is subject to liability for an unintentional invasion when his conduct is negligent, reckless or ultra-hazardous.” • “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 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 that it is substantially certain to result from his conduct. . . . A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skil exercised by him to avoid such injury . . .”

14. Estancias Dallas Corp. v. Shultz • Noise from A/C unit case • Injunction v. Damages • Comparative Injury Issues • Balancing of Equities – what does that mean? • Permitting a nuisance to continue “in the public interest” issues; public benefit v. private rights? • Utilitarianism?

15. Boomer v. Atlantic Cement Co. • Cement plant and air pollution case • Traceability and externality issues • “general public welfare” informs remedies • Conflict about jurisprudential philosophy – right private wrongs or serve the “general welfare”? • Permanent v. Temporary Damages

16. Spur Industries Inc. v. Del E. Webb Development Co. • Cattle feedlot case • Otherwise lawful activity issue • Coming to the nuisance • Notice and assumption of risk • Private v. Public Nuisance -- examine how the definition affects the choice of remedy • What is indemnification and why is that important to this case?

17. Coming to the Nuisance • Notice, Investment-Backed Expectations, Due Diligence, and Discounts in Price • “Relevant Factor” for both Liability and Choice of Remedy • Read and recall the discussion about “first in time” principles both in this reading and the reference back

18. Nuisance and Environmental Law • Substitution – if judicial land use controls fail to satisfy preferences, can regulatory controls fill the gap? • Do collective action, free-rider, traceability, extraordinary private litigation costs, etc. justify regulatory/legislative land use controls to compensate for problems in the judicial or private land use control systems? • Are regulatory environmental controls a mirror of judicial controls just with a separate enforcement system or are they and should they go beyond that role?

19. Concluding Thoughts • If your property is limited by a judicial land use control, you never had that stick in your bundle in the first place • If judicial land use controls do not satisfy your preferences, always consider alternative mechanisms (e.g., private or legislative land use controls) • Review also what you have learned in Torts regarding nuisance and trespass • Revisit the remedies cases for next class • Take a minute to recall all the thinkers we have discussed and how their theories apply (Coase, C&M, Madison, etc.)