Nuisance & Land Use Conflicts Among Neighbors

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  1. 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

      1. Land Use Entitlements
        1. Coase Theorem
      2. Diffuse Surface Water
        1. Armstrong v. Francis
      3. Support Easements
        1. 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 land that’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?

          1. Noone v. Price
        1. Precedent
          1. Llewellyn
        2. Judicial Role
          1. Shapiro, Singer
      1. 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?

        1. Page County Appliance v. Honeywell
        2. 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?

Is Fontainbleau really different from Page County Appl.?

Right or wrong result? Alternative way there?

        1. 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 & unreasonable in terms of cost to Πbut ∆ use may be very valuable to rest of us: ‘socially-valuable harmful activity

Overall utility calculus says to allow Δ to

   continue the socially valuable activity…

…but rights-based fairness says wrong make Π bear full, disproportionate burden to 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?

        1. Prah v. Maretti (legal arguments)
        2. Economic Analysis of Law
        3. Critiques of Economic Analysis