Property Law Outline - Nuisance

1. Classifying a Nuisance
1. A nuisance is
1. Unreasonable conduct
2. Which substantially interferes with or disturbs
3. Use and enjoyment
4. Of land.
2. Ex: Pollution that crosses property lines, hazardous conditions that threaten neighboring property.
3. Public v. Private Nuisance:
1. A public nuisance involves an interference is with a right common to the general public.
2. A private nuisance involves a substantial interference with the private use and enjoyment of one or a number of nearby properties.
1. Some courts have used the "substantial invasion" requirement to deny recovery for environmental degradation like aesthetic impairment that does not result in tangible physical changes in land or easily-measured economic harm.

2. Private Nuisance is conduct that causes a substantial interference with the private use of land. Conduct can be:
1. Intentional and unreasonable OR
1. Conduct is intentional if it is undertaken to cause the harm in question or if the result was known or reasonably should have been known.
2. Usually an intentional act that continues over time and interferes with another's enjoyment of land.
3. In order to sue, a person must have a property interest that is affected as a result of the defendant's activities.
4. Unreasonableness of the interference is the primary factor.
1. Gravity of the harm must outweigh the utility of the actor's conduct (BPL analysis). Restatement factors:
1. Gravity of the harm:
1. Extent of the harm
2. Character of the harm
3. Social value of the use or enjoyment invaded
4. Suitability of the use invaded to the locality, AND
5. Burden on the person harmed of avoiding the harm.
2. Utility of the conduct:
1. Social value
2. Suitability of the conduct to the locality
3. Impracticability of preventing or avoiding the invasion
2. NOTE: Even if the utility outweighs the gravity, an activity can still be a nuisance if the harm is serious and the defendant can afford to pay.
5. NOTE: Intentional trespass should be distinguished from intentional nuisance on the grounds that intentional trespass does not require a substantial injury to result and that there is no unreasonableness requirement. 
1. Court also has more discretion in remedies in nuisance because it can order permanent damages for future conduct or an injunction or damages for past conduct.  Trespass gets damages for past conduct and an injunction.
1. Court has more flexibility with nuisance suits.  Therefore, for some things like air pollution, the court has a choice regarding classification.
2. Trespass concerns the Right to Exclude not the Right to Use.
3. Unintentional trespass is treated similarly to unintentional nuisance, however.
2. Unintentional but negligent, reckless, or resulting from an abnormally dangerous activity (strict liability).
1. These are uncommon suits. One example of this is the storage of explosives.
2. Waschak v. Moffat (p.298)
1. Issue was that culm banks from coal mine released gasses that harmed paint on P's house and smelled like rotten eggs.
2. Court holds that:
1. D didn't know that this gas would be released and would have this effect, AND
2. Even if there was intent, conduct was not unreasonable because
1. D's actions were not negligent or reckless
2. P "came to the nuisance."
3. Court basically upholds economic efficiency here, saying that if you got rid of the economic activity in Pittsburg, there would be no city there now.
4. Dissent argues that this conduct is unreasonable because it is a public health risk.  Dissent looks more broadly at the operation of the coal mine, rather than specifically at the emission of this one type of gas.

1. Substantial Interference considerations:
1. Depreciation of property value might help to show that there is a substantial injury to the P.
2. Serious discomfort and inconvenience from odors, smoke, objectionable noise, etc. (measured by sensibilities of the average person).
1. Blocking sunlight in general has not been held to be a nuisance, BUT blocking sunlight from solar collector has.
2. Spite fences that have no social utility have also been held a nuisance.
3. Fear of harm from storage of explosives, mental hospitals, etc. (but may be permitted if have a high social value, such as halfway houses).
4. Character of the neighborhood
1. Residential areas have lower standards regarding what qualifies as a nuisance.
1. However, the fact that the defendant is in violation of a zoning ordinance is not controlling in an action for private nuisance.
2. What qualifies as a nuisance might change with the neighborhood.  Conduct that was once reasonable can become unreasonable.
5. Social values of the conflicting uses.
6. Priority in time- conflicting use that came first gets priority.
1. Coming to the Nuisance- if the D's use was first, P has a less appealing case because he could have avoided the harm.
1. However, this will never be a determinative fact. Other factors will be considered.
2. Whether or not this doctrine is used can help shape what the landscape looks like.  If it is too rigid it will freeze land use and prevent community change.
2. Ex: Waschak v. Moffat (p.298) - Paint on P's house damaged by anthracite coal mines. Court held for D partly because P had purchased the home from a former mine inspector and knew about the situation.
7. Economic Analysis is becoming increasingly important.
1. Tension between economic rights/community benefit v. individual right to use.
2. Some types of nuisance can't be actionable because they are the unavoidable result of economic activity (Waschak). 

3. Public Nuisance
1. A public nuisance affects the general public.  It is widespread in its range and indiscriminate in its effects.
1. Is "an unreasonable interference with a traditional right common to the public."
2. Includes: gambling, prostitution, nude sunbathing, air pollution, and rock festivals.
2. R. 2d identifies circumstances that create a public nuisance:
1. Whether the conduct involves significant interference with public health, safety, peace comfort, or convenience,
2. Whether the conduct is proscribed by a statute, ordinance, or administrative regulation, or
3. Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
3. Generally can only be brought by a public official, such as the city attorney.
1. Private individual can only bring suit if he can show that his injury was different in kind (not just in degree) from the injury suffered by the rest of the community.
2. Rationale for this is that it would be unreasonable to give every man a separate right of action for damage done in common.
4. Sometimes, a P can establish standing on the ground that land is unique.
1. R. 2d has adopted a more liberal test in actions to enjoin or abate a public nuisance, extending it to persons who can sue as a representative of the general public or as a member of a class action.
2. Language reflects an awareness that public officials may not always have the resources or incentive to bring public nuisance actions, so a private plaintiff should be able to vindicate the rights of the public as a whole.

4. Remedies for Nuisance
1. Balance between value of harm/individual compensation and a desire to allow continued economic development.
1. Arguments for damages:
1. Transaction costs are lowered.
2. Accountability
3. Could reduce pollution by forcing internalization of harm.
2. Arguments against damages:
1. Discretion
2. Can't live in a world in which everything is compensated.
2. Coase Theorem
1. The market determines whether the activity will continue, not the initial allocation of rights by the courts.  The initial allocation only makes one party richer and will not stop pollution.
3. Remedies for nuisance are broader than traditional property remedies
1. Traditionally, there is only an injunction or there is not.
2. In Boomer v. Atlantic Cement Co., non-traditional remedies were awarded.
1. P lived close to a cement plant and sued for nuisance based on dirt, smoke, noise, etc.
2. P was awarded monetary damages for the permanent nuisance.
1. Opens the option of both a liability and a property rule:
1. If D didn't pay, an injunction would be imposed.
2. If D paid, it could continue to operate.
2. Why were these options available?
1. Court doesn't want to allow holdouts to stifle economic development.
2. Could encourage company to make changes to pollute less.
3. Issue: Monetizing non-economic factors such as noise, vibration, etc.
3. This case shows the move from strict damages under property rules to a mix of property and liability remedies.
4. A court should refuse injunctive relief when there is a large disparity in economic consequences of the nuisance and the injunction.
4. Available Remedies
1. Injunction
2. Monetary damages
3. Do nothing- D holds entitlement to preexisting use.
4. P contributes to clean up or leave
1. Occurred in Spur Industries.
2. This can be a way to address "coming to the nuisance."
3. Recognizes entitlement to preexisting use while also recognizing change in time/circumstances.