- Nuisance & Land Use Conflicts Among Neighbors
| Some important sticks | |
| Held by Landowner: Right to occupancy To lease to T To sell/gift it, over time To mortgage it for equity To covenant about its use | By the neighbors/community Right to tax it To regulate certain uses To access during emergency To take it for public use (with compensation) |
| Stick Flux ▶ Examples of sticks recently shifted between Owner & Neighbors include statutory protection for: Quality of public air & water supply (new stick for neighbrs) Right to farm in existing locations (new stick for owner) Endangered species habitat (new stick for neighbrs) Against tax increases for long-term Os (new stick for owner) ▶ Eminent Domain for Economic Development? (Battle rages on!) | Property Law Axiom: “Everyone wants to be able to enjoy their own land, without interference by the neighbors.” ▶ But to me, enjoyment is having an apartment horse; ▶For you, it’s freedom from smells, sounds, and ceiling damage! |
| Land Use Conflicts in a Nutshell Δ wants freedom to act Π wants security from harm vs. ▶ Balancing autonomy interests of Os v. security interests of Ns… …is the enduring theme (& central controversy) of land use law! | Basic Ways to Resolve Land Use Conflicts ▶Sometimes, we do it by… 1. Priority in Time: Who was there first? ▶ Or, for a category of conflicts, assign the legal entitlement to… 2. Privilege Δ’s autonomy interest: Δ always wins! 3. Privilege Π’s security interest: Π always wins! ▶ And sometimes, we just try to figure out… 4. What seems Fair under the circumstances. ▶But:How do we decide which way to go? |
| Deciding:The Policy Origins of Legal Rules ▶ Appeal to individual rights &/or societal good-based arguments &/or Some Familiar Rights Familiar Indeces of Social Utility ▪ Self-determination (autonomy) Public safety ▪ Religious practice Avail. of food, shelter, employm’t ▪ Speech, procreation, etc. Clean environment | The Reasonable Use Rule ▶“A possessor has a limited privilege to discharge surface water on other lands, by artificial means in a non-natural manner.” ▶ Limited by what? ▶Unreasonable interference with the neighboring land! ▶ …but how do we know whether or not the interference is reasonable? |
| Reasonableness Standards ▶ Req. judgment call re: legitimacy of conduct in specific context Might consider: ▪ Extent of harm to Π? ▪ Which use established first? ▪ Any important rights implicated? ▪ Motives of the parties? Social utility of Δ’s harmful activity? –What will society lose if can’t continue? Any means to avoid or mitigate harm? –Who is the least cost avoider? | The Reasonable Use “Standard” ▶ We turn to a Balancing Test. Here, it considers: ▪ Social benefit from development of Δ’s property, ▪ Cost-effective means to avoid or mitigate harm, ▪ Gravity of harm to Π’s property. ▶ NB: Substantial harm to Π likely to be found unrsbl regardless of value of Δ’s development project. ▶ Common Enemy/Natural Flow vs. Reasonable Use? |
| Rules: Over-Inclusivity and Under-Inclusivity ▶ A rule is… ▶ Under-inclusive when allows too many that should be prevented according to rule’s rationale. ▶ Over-inclusive when prevents too many that should be allowed according to rule’s rationale. ▶ As applied to 18 year-olds’ right to vote? ▶ Sacrificed “justice in the ind. case” = big disadvantage of BLRs. ▶ Big disadvantage of flexible standards? | The “Common Enemy” Rule ▶ Δ gets the legal entitlement: Free to act despite harm to Π |
| The “Natural Flow” (Civil Law) Rule ▶ Π gets the legal entitlement: Veto rights over harmful activity | The Reasonable Use Rule ▶ Majority rule for diffuse surface water claims: no clear entitlement ▶“A possessor has a limited privilege to discharge surface water on other lands, by artificial means in a non-natural manner.” ▶ Limited by what? ▶Unreasonable interference w/ neighboring land! ▶ …when is the interference is reasonable? Look to the standard! |
| The Reasonable Use “Balancing Test” ▶ Considers: ▪ Social benefit from development of Δ’s property ▪ Cost-effective means to avoid or mitigate harm ▪ Gravity of harm to Π’s property ▶ Law of Diff Srfc Water: Classic Dialectic btw BLRs & Standrds ▪ Starts out “crystal,” erodes to “mud,” then back again | BLR: Certainty, but Over- & Under-Inclusive ▶ Under-inclusive when allows too many that should be prevented under the rule’s rationale ▶ Over-inclusive when prevents too many that should be allowed according to rule’s rationale ▶ 18 year-olds’ right to vote? Std: Justice in indvl case, but Uncertainty |
- Land Use Entitlements
- Coase Theorem
- Diffuse Surface Water
- Armstrong v. Francis
- Support Easements
- Lateral Support
| he Common Law of Support ▶Lateral support: Physical support provided to land by neighboring lands (or, if neighboring lands altered, by supportive “retaining” wall). ▶Subjacent Support: Support from beneath. CL Obligation of Lateral Support ▶When Δ causes land subsidence? ▪ SL: ∆=absolute duty to provide lateral spt to neighboring land; Π has entlmt (always wins) ▶When structures on land also subside? ▪ If would subside even w/o structure, same: Δ=SL for all damages, including to structure ▶ But if the weight of the structure is the “straw that breaks the camel’s back”? ▪ Does Π automatically lose? |
If Structure = “Straw that Broke Camel’s Back”? ▶ Π doesn’t always lose, but ∆ no longer in strict liability… ▪ Negligence std to determine liability for removal of support ▶ No absolute duty to provide lateral support for add’l weight of structure… ▪ …but ∆ must remove lateral support to structures non-negligently! |
| Rules, Standards, & the CL of Lateral Support ▶ Whether in territory of SL or negligence for failure to provide lateral support is determined by a rigid, BL-Rule… ▪ What is it? ▶ Once that rule tells us that we’re in negligence territory, then we confront a standard… ▪ What is it |
| Test for Negligent Removal of Support? ▶ Might consider ∆’s… ▪ Notice (Given of act likely to cause Π’s house to cave in, so П can try to prevent it?) ▪ Intent (Did Δ dig hole solely to harm Π?) ▪ Did Δ dig it unreasonably recklessly? (Using a nuclear bomb instead of shovel?) |
| Rights & Duties that “Run with the Land” ▶ Rt to Lateral Support = example of a stick in the bundle corresponding to your landthat’s actually held by your neighbor! ▶ Essentially what an Easement is: ▪ a right to use your land for some purpose held by someone else (usually a neighbor) ▶Usually, such rights “run with the land.” ▪ Exactly what “ran w/the land” in Noone? ▪ Why have this rule? Why difft for strctr? |
- Noone v. Price
- Precedent
- Llewellyn
- Judicial Role
- Shapiro, Singer
- Common Law Nuisance
| CL Private Nuisance ▶ A use that creates a… (1) Substantial & (2) Unreasonable …interference w/ neighbor’s enjoyment. |
| The Common Law of Nuisance ▶ Private Nuisance: “Nontrespassory invasion of another’s interest in the private use and enjoyment of land.” –2d Rest. Torts ▶ Public Nuisance: A use that interferes w/ rights of the public in general, usually by threatening public health or safety. ▪ Same kind of analysis… |
| What’s “Reasonable” for PN? ▶Evaluate the ▪ Manner, Place, & Circumstances of the challenged use against prevailing ▪ Community standards ▶IA: Cmt Std yrdstck=“normal persons in a particular locality.” + ▶2d Rst: Balance gravity of harm vs. utility of harmful conduct |
| Generic Reasonableness Standard ▶ In judgment call re: legitimacy of given conduct, considers: ▪ Extent of harm to Π? ▪ Which use established first? ▪ Any important rights implicated? ▪ Motives of the parties? ▪ Social utility of Π’s harmed activity? ▪ Social utility of Δ’s harmful activity? –What will society lose if can’t continue? ▪ Any means to avoid or mitigate harm? –Who is the least cost avoider? |
| Hyper-Sensitive П? ▶Is Π’s harmed use so “unusually sensitive” that it would be unreasonable to curtail Δ’s use on the basis of that harm? ▶i.e., maybe it’s П’s sensitivity that is unrsbl, if Δ’s use wouldn’t interfere w/a more common sort of neighbor ▶A defense to private nuisance claim. ▶Page County Appliance Center? |
- Page County Appliance v. Honeywell
- Fontainbleau Hotel
| Fountainbleau Paradox ▶Court: Only PN if Δ’s conduct interferes w/Π’s lawful rights. ▶ Makes sense: of course you shouldn’t be able to stop your neighbor from taking action that interferes with rights you don’t even have! ▶ But how do we know the extent of anyone’s rights in PN context? |
| Scope of Rights in Context of Nuisance? ▶ Can we really ever know without applying the reasonableness test at the heart of the doctrine? ▶ E.g., was it so inherently obvious in Page County Appliance Store that Π had “the right” to prevent the travel agency’s use of its computers? ▶IsFontainbleau really different from Page County Appl.? ▶Right or wrong result? ▶Alternative way there? |
- Remedies (278 -81)
| Land Use Conflicts & Remedies ▶ Who gets the entitlement is only half the story… ▪ Property Rule ▪ Inalienability Rule ▪ Liability Rule ▶Nutshell:(1) Can parties bargain around the default rule? (2) Who gets to decide?(Boomer v. Atlantic Cement) |
| The Liability Model vs. “All or Nothing” Remedies ▶Say Δ really harming Π, but Δ’s activity very socially valuable(e.g. manufacturer of effective airport security screening devices). ▶PN test may find harm substantial & unreasonablein terms of cost to Π—but ∆ use may be very valuable to rest of us: ‘socially-valuable harmful activity’ ▶Overallutility calculussays toallow Δ to continue the socially valuable activity… ▶ …butrights-based fairnesssayswrong make Π bear full, disproportionate burdento benefit the rest of us. ▶ Remedy? |
| Liability Rule and Justice in the Individual Case? ▶ Apt where conflicting rights & utility calculus makes both sides sympathetic… ▶ Asks: “Why does the remedy have to be all or nothing, for one side or the other?” ▶ If parties can bargain over the entitlement under the property model, then shouldn’t courts be able to do it preemptively with an eye to overall justice? (Or shouldn’t they?) |
| “No Easement for Light and Air” ▶ No PN for blocked light & air is the majority rule in US… ▶ Why might this rejection have been so important when case decided in 1959? ▶ What if the PN claim is for interference with technology installed to harvest solar or wind energy? |
| Big Questions After Boomer … ▶ How could court determine that Δ’s conduct violates Π’s rights, but then let that continue? ▪ Isn’t entire purpose of CLN to prevent nuisances from harming others? ▶ If factory so valuable, then why PN at all? ▪ Wouldn’t the test suggest that, if it’s so socially beneficial, then the conduct is reasonable and thus not a nuisance? |
- Prah v. Maretti (legal arguments)
- Economic Analysis of Law
- Critiques of Economic Analysis