Nuisance & Land Use Conflicts Among Neighbors

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Nuisance & Land Use Conflicts Among Neighbors

Land Use Entitlements

Basic solution to Land use conflicts between neighbors

D’s privilege: freedom to act despite the harm

Damage without legal redress

P’s security: strict liability or absolute right to be free from the harm

P effectively has veto rights over D’s harmful activity

Reasonableness Test

Authorized the D to engage in the activity if it’s deemd to be reasonabl but not if the conduct and/or the harm caused by it is deemed unreasonable

Factors considered

The extent of harm to P and social utility of P’s activity

Social benefit of D’s activity, measured by what society would lose by preventing the activity

Overall relative costs and benefits of the conflicting uses of P and D

Availability of alternative means to mitigate or avoid the harm; and the least cost avoider

D’s motive

Which use was established first

Prior Use: Appropriation or Prescription

Prior appropriation grants a right to commit the harmful activity to the person who first established her use.

basic ways to resolve land use conflicts

  1. Priority in time
  2. Assign entitlement to privilege D’s autonomy interest
  3. Assign entitlement to privilege the P’s security interest
  4. Figure out what seems fair under the circumstances

Important Rights of Landowners and Neighbors

  1. Landowner
            • The right to live on the land
            • Right to lease it to T
            • Right to sell/gift it
            • Mortgage it for equity
            • Grant easement over it
            • Covenant about its use
        1. Neighbors/community
            • Right to tax the land
            • Right to regulate certain uses, even while remains in private possession
            • Right to take it for public use under certain circumstances

Examples of Shifting Rights

  1. The quality of public air and water supply (new stick for community)
  2. Individual rights to farm in existing locations (new stick for landowner)
  3. Threatened and endangered species habitat (new stick for community)
  4. Against tax increases for long term owners (for landowners)

Property law axiom: balancing the autonomy interests of owners against the security interests of neighbors


  1. Dismissal of Complaint
  2. Damages
  3. Injunction
  4. Purchased injunction

Coase and the Problem of Social Cost

            • The problem is to avoid the more serious harm
            • Suggests that the central question is the magnitude of the harms caused on both sides and not their character
            • Externalities? Cost of human life?

Diffuse Surface Water

Armstrong v. Francis


D drained off excess water from its land by means of culverts and pipes, thereby causing injury to it’s neighbor, P’s, property.


The NJ court here adopts the reasonable use rule, as opposed to either the civil law rule or the common enemy rule.  Under this rule, it is unreasonable for a developer of land to discharge of his excess water upon his neighbor’s land through the use of artificial waterways.


The developer is the least cost avoider as well as the latecomer in time. 

The issue of reasonableness includes such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and other relevant matter. 

Both the “common enemy” rule and the “civil law” rule are rarely enforced strictly by courts of varying jurisdiction.  Most courts instead read in a “reasonable use” rule which has the virtue of flexibility. 

Civil Law/Natural Flow Rule

  • A possessor has no privilege, under any circumstances, to interfere with the surface water on his land so as to cuase it to flow upon adjoining land in a manner or quantity substantially different from its natural flow
  • One who interferes with the natural flow of surface waters so as to harm another’s use and enjoyment of own land is always subject to liability to neighbor
  • Strict liability for altering the natural flow, D is always liable

Common Enemy Rule

  • The right of landowner to conduct activities on his land so as to ward against the intrusion of surface water without regard to effect of such acitivites on other landowners.
  • Diffuse surface water is the common enemy of all landowners, so everyone has an unrestricted legal privilege to deal with it, however he/she wants to own property, without regard to neighbor harm.

Reasonableness Use Rule

  • Requires the decision makers in specific cases to determine whether D’s conduct caused unreasonable interference with the neighbors’ use of their land. 
  • This determination involves balancing the social benefit derived from development of D’s property, the availability of cost-effective means to avoid or mitigate damages, and the gravity of the harm to P’s property.
  • Possessor has a limited privilege to discharge surface water on other land subject to a standard of reasonableness
  • This is now the majority rule.

Balancing Test

A. Social Benefit From Development

Cost-benefit analysis; benefits and harms of preventing or allowing either party’s activities.

B. Cost-Effective Means to Avoid or Mitigate Harm

Least cost avoider

C. Gravity of Harm to P’s Property

Substantial harm to P is likely to be found unreasonable regardless of value of D’s development project. 

* Motives of the parties

1. Rights: Freedom of Action Versus Security

2. Social Utility: Competition Versus Secure Investment

3. Formal realizability or administrability: rigid rules v. flexible standards

  1. Justice in Social Relationships
  2. Rights as Freedom of Action
  3. Rights as Security
  4. Value Judgments
  1. Promoting the General Welfare by Enacting
  2. Appropriate Incentives

Promoting Competition

  1. Protecting the Security of Investment
  2. Balancing Interests
  1. Predictability Versus justice in the Individual Case
  2. Rules
  3. Standards
  4. Formal realizability and social utility

Crafting Legal Rules

1. Bright Line Rules

Tend to be over/under inclusive

2. Flexible Standards

Tend to lead to judicial bias and unpredictability

Support Easements

Lateral Support

Lateral Support

            • Physical support provided to land by neighboring lands (or, if neighboring lands are altered, by retaining wall thereon)
            • When Causes Land Subsidence

SL: absolute duty to provide lateral support to neighboring lands.  P has entitlement

            • When Causes Collapse of Structures

If would subside even without structure, same rule: D liable for all damages, including structure

            • But if the Weight of the Structure is the “Straw that breaks the camel’s back?”

We use a negligence standard to determine liability.

a. Proper Notice

b. Intent

c. Unreasonable Recklessness

Subjacent Support

Support from beneath the earth

Noone v. Price


P contended D breached her duty to supply lateral support P’s hillside home by allowing a retaining wall to fall into disrepair. 

The wall had been built prior to the installment of P’s building on the land.


An adjacent landowner is strictly liable for acts of commission and omission that result in the withdrawal of lateral support to his neighbor’s land in its natural state.

If the land would have subsided without any structures on it, we go directly to strict liability.

If the land would not have subsided without structures on it, we go to negligence.


If, as a result of the additional weight of a building so much strain is placed on the lateral support that it will not hold, then in the absence of negligence, the adjacent landowner is not liable for any resulting damages. 

At the time the retaining wall was built, there were no structures on P’s property, therefore the wall needed only to support the land in its natural state. 

If P is to recover, he must do so by proving that the disrepair of the wall would inevitably led to the subsistence of his land in its natural condition, without the house upon it. 


D became responsible for the wall when the land became her responsibility

Rights and Duties That “Run With the Land”

Right of lateral support is an example of a stick in the bundle corresponding to your land that is actually held by your neighbor. 


A right on your land for some purpose (usually passage) held by someone else (usually a neighboring landowner)

Said to be a right that “runs with the land”



Judicial Role

Shapiro, Singer

Common Law Nuisance

Private Nuisance

When you use your land in a manner that

(1) substantially, and

(2) unreasonably

interferes with your neightbor’s use and enjoyment of own land.

Public Nuisance

A use that interferes with rights of the public in general, usually by threatening public health or safety.


The Adjudicator might consider;

a. which use was established first

b. any important rights implicated

c. extent of harm to P and social utility of P’s activity

d. social benefits of D’s harmful activity

e. any means to avoid or mitigate harm

least cost avoider?

f. motives of the parties

spite fences?



Manner, Place, and Circumstances, against Community Standards

Page County Appliance v. Honeywell


D placed a computer in a business adjoining P that interfered with P’s business of selling television sets.


Lawful activity constitutes a nuisance if unreasonably interferes with another’s enjoyment of his or her property. 


A litigant need not show negligence in an action for nuisance; he need only show that it was unreasonable in the context in which it took place.

Defendant a

Hyper-sensitive use

P cannot, by devoting his own land to an unusually sensitive use, make a nuisance out of conduct of the adjoining D, which would otherwise be harmless.

Social utility argument

There is a community interest in advancing technology


Right-based fairness argument

We have a right to conduct our business without the interference of others

Fontainbleau Hotel

Remedies (278 -81)

Prah v. Maretti (legal arguments)

Economic Analysis of Law

Critiques of Economic Analysis