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					Property II - Outline

The Law of Nuisance
o o o Nuisance o Tort Law: arises from negligent or wrongful activity o Property Law: liability is for interference with the use and enjoyment of land One should use one’s own property in such a way as not to injure the property of another. Definition – Nuisance is Conduct that o causes a substantial interference with the private use of land o is either  intentional and unreasonable, or  the gravity of the harm outweighs the utility of the conduct o an activity can still be a nuisance if the harm is serious and ∆ can afford to pay those damages



Gravity Factors o Extent of the harm. o Character of the harm.  Depreciation  Fear of harm

o o

o Social value of the use or enjoyment invaded. o suitability of the use invaded to the locality o burden on the person harmed of avoiding the harm  Utility of conduct factors o Social value of the conduct  Spite o suitability of the conduct to the locality  Plain old Ugly o impracticability of preventing or avoiding the invasion  unintentional but negligent, reckless, or resulting from an abnormally dangerous activity (ultra-hazardous)  the risk of harm makes the conduct unreasonable  refers to o actor’s conduct: negligent, reckless o gravity of the harm ∏ must have property interest. ∏ must be harmed.

If the nuisance is intentional, it is irrelevant that the defendant exercised great care to avoid it. A person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances. o acts for the purpose of causing it, or o knows that it is resulting from his conduct, or o knows that it is substantially certain to result from his conduct Ex: Oil refinery emitted noxious gases 2-3 days a week. Ex: air and water pollution, noise, odors, vibrations, flooding, excessive light Ex: serious discomfort and inconvenience – objectionable noise, odors, smoke o unreasonable interference is measured by the sensitivities of the average person o Ex: Drive in theater sued amusement park for excessive light. No Nuisance. ∏ is abnormally sensitive. Depreciation of the value of surrounding property is not enough by itself Reasonableness of fear tested by general community beliefs o Ex: ∆ wants to put half-way house. Fear of increased criminal activities is speculative. No nuisance.


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Property II - Outline o Public v. Private Nuisance o The difference between a private nuisance and a public nuisance is generally one of degree. o A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public o ∏ must have a property interest that is affected. o A public nuisance is one affecting the rights enjoyed by citizens as a part of the public. o Unreasonable interference with the rights of the public at large. o Affects a considerable number of people or an entire community or neighborhood o ∏ must show standing to sue: special injury.  Of a kind different from that suffered by other members of the public o Circumstances to consider:  whether the conduct interferes with public health, safety, peace, comfort, convenience  whether conduct is proscribed by statute or ordinance  whether conduct is of a continuing nature or has produced a permanent or longlasting effect

Ex: ∆ builds a “spite fence”  Nuisance. Unsightliness alone is not nuisance. Tasteless decoration: no nuisance (unless spite)

Ex: storage of dangerous explosives.

Ex: A pollutes a navigable stream so that it is no longer fit for drinking and swimming

Balance the Equities – Comparative Hardship o After we have determined a nuisance exists, we must o Balance the equities to determine whether an injunction will issue [as opposed to damages] o Injunctive relief should be granted unless an injunction would harm the public interest o o o Balance the injury of an injunction on (∆ and public) against injury sustained by ∏ if injunction is denied. The necessity of others may compel the injured party to seek relief by way of an action at law for damages rather than by a suit in equity. Injunctions are for sale by ∏ o Enjoined party may attempt to buy off the injunction from ∏ Ex: Apt complex put up a very noisy A/C causing nuisance. Injunction granted.


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Property II - Outline Give ∏ damages o Permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance. o In the type of continuing and recurrent nuisance permanent damages are appropriate. o Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery. o Servitude on Land: Permanent damages based on the theory of compensation for servitude on the land which precluded future recovery by plaintiffs or their grantees Grant Injuction to ∏ and Damages to ∆ (from ∏) o The locality and surroundings are of the first importance. A business which is not per se a public nuisance may become such by being carried on at a place where the health, comfort, or convenience of a populous neighborhood is affected. o Coming to the Nuisance: o The residential landowner may not have relief for a nuisance if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby. o o The law of nuisance is elastic: It undertakes to require only that which is fair and reasonable under all the circumstances. Indemnity limited to: Cases where a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief The cement company pays for a servitude on ∏’s land.

Ex (Boomer): cement company caused nuisance with dust, smoke, vibrations. Cost of plant: $45Mil and employed 300 people. Total damage = $185K only. Granted injunction which was vacatable upon ∆’s payment of permanent damages

Ex (Spur): ∆ had feedlots – ∏ build a residential area. The 2 expanded to within 500 ft of each other. Became necessary for enjoin ∆. But not without indemnification from developer ∏. o this solution may not be feasible when there are many ∏s.

Refuse ∏ any remedy.


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