Property Class Notes 4/22/04

It’s a three hour exam. There are two typical law school essay questions except shorter. There are 80 multiple choice questions and then 7 or 8 short answer questions that can be answered in a couple of sentences. Braunstein tries to make the exam correspond with how much time we spent on each topic in class. So keep that in mind when you’re studying.

More on nuisance

This is like the law of servitudes in that it restricts what one can do with one’s own land, which would make it like a negative servitude. But it’s also in a sense like an affirmative servitude. If we deny someone an injunction for a neighbor’s annoyance, then it gives the neighbor an affirmative servitude. The denial of an injunction is kind of an implicit endorsement of the annoying use of someone else’s property. The law of nuisance is complicated by the fact that there is no agreement between the parties.

Blanks v. Rawson

This is the easy case. The developer had the authority to basically change the rules at will. You might want to be careful about buying into a subdivision where the developer can change the servitudes at will. You don’t know what the servitudes are going to be, and the servitudes may not run. Why won’t they run? The question is whether the covenant “touches and concerns”. Why? Does the benefit touch and concern land? Braunstein isn’t sure, but he could argue that it doesn’t. If the developer has the right to change the servitudes at will, it looks like the benefit is personal to the developer, and thus is in gross. The biggest problem, of course, is that you simply don’t know what you’re buying into.

What’s a nuisance per se? It is something that is inherently a nuisance. What would be an example of this? Braunstein says that the only thing that is a true nuisance per se is something that is prohibited by law, for example, having a house of prostitution. It doesn’t matter where you do it or how you do it, it’s a nuisance because it violates the law.

Who is interfering with whom in this case? Consider the basketball hoop: two people both want to use their property in a reasonable way. You usually put a basketball hoop next to the driveway. That seems reasonable. But at the same time, it’s reasonable to not want to listen to some kids play basketball and listen to the radio. Neither side is being unreasonable; the problem is that they’re located so close to each other! They’re each trying to impose a restriction on the other’s reasonable activity.

Why wasn’t the basketball court a nuisance? It is found to be an anticipatory nuisance at best. The noise might have been a nuisance, and that only happened once. The kid turned down the radio when he was asked to. The court says that this isn’t unreasonable, and furthermore, the court says that you can have a nuisance even before the obnoxious activity commences. You have the chance to prove that no matter how carefully the activity is carried out, it will be a nuisance. But that’s not shown here.

The dog pen is a nuisance per accidens. The problem is where it’s located (close to the property line) and how it’s maintained (not very well). The court enjoins them from using it, at least insofar as it remains a nuisance.

What about the high fence? The jurisdiction doesn’t recognize a prescriptive easement of view. It is referred to as a “hate fence”. Given the relationship between these neighbors, the court thinks maybe this is an example of “good fences make good neighbors”. Building a fence doesn’t violate any restriction and isn’t a nuisance per se. The fence is built on the property line. Finally, except for the four negative easements (like ancient lights) you can’t acquire a negative easement by prescription because no wrongful act occurred when the Blanks looked over Rawson’s property. Thus the statute of limitations never started to run (remember the analogy to adverse possession).

Braunstein says that this is a case that never should have gone to trial in the first place.

Carpenter v. Double R Cattle Company, Inc.

Nuisance law is a problem! If you think about it, nuisance tends to protect the status quo. If you’re out in the middle of nowhere and you’re making bricks and making dust and smoke, then it’s not a nuisance. What happens if someone wants to move in near you? We may continue to say that this activity is not a nuisance because you were there first, and thus the person moving near you assumes the risk. If the law of nuisance takes that position, then you “engrave” whatever the existing uses are in the law, so they become protected. As development occurs, it becomes more and more likely that something will be a nuisance. From the Industrial Revolution on, cities developed rapidly and development was seen as a good in itself in ways that we don’t think of it today. Nuisance was seen as hostile to development, especially because the traditional remedy for nuisance was an injunction. That is, if you could prove that your neighbor was doing something that constitutes a nuisance, you can enjoin your neighbor from doing that thing. But the problem is that socially desirable activities might be entirely blocked! These activities may impose externalities, but overall they may be beneficial.

Courts deal with this problem in one of two ways, as this case points out. The first was to limit the situation in which injunctions would be granted, but not to limit the definition of nuisance, so that we would continue to say that something is a nuisance but say that it can be enforced by not just an injunction, but alternatively by money damages. The second option was to limit the situations where a nuisance is found to exist. The First Restatement says that there is only a nuisance if the annoyance outweighs the utility to the actor and to society as a whole. This is a pretty unfair comparison between the two parties! This is the doctrine of comparative utility.

One of the most famous cases is Boomer v. Atlantic Cement. This took place in the Hudson River valley. The cement company spewed out a whole lot of dust which you pretty much have to do in order to make cement. They also caused a lot of vibration. Boomer and his neighbors sued. The court would not grant the injunction because they said that the social utility of the factory exceeded the damage to the neighbors. The court agreed to grant a conditional injunction. Essentially, the court allowed the cement company to buy a servitude over Boomer’s property. The company had a right to conduct a nuisance. The court admitted it was a nuisance but refused to grant a permanent injunction. So presumably Boomer has been compensated. If he wants to, Boomer can sell his land and go live somewhere else. This is the idea of the Second Restatement rule: the court uses comparative utility to determine a remedy: if the utility is great and the harm is less, then we will award damages rather than a permanent injunction.

What difference does it make if the court orders an injunction? Does it matter what remedy the court imposes? What’s ultimately going to happen? If the court enjoins the feedlot, is the use really going to stop? Probably not, and the feedlot would just pay damages for contempt. Or if an injunction is not granted, the neighbors could essentially “bribe” them to stop. It’s a classic Coase Theorem problem! Whatever remedy the court grants, the highest valued use will continue. The idea is that if you have a well-organized scheme of property rights and transactions are cheap and lawful, then the highest-valued use is the one that will continue. The thing that it overlooks is that while it’s good for society as a whole, there are real wealth effects as between the parties. If you enjoin the feedlot, the feedlot will buy off the plaintiffs, and the plaintiffs will be richer. If you don’t enjoin the feedlot, the plaintiffs will buy off the feedlot and they will be poorer.

Let’s try to make sense out of the Second Restatement: what does intentional mean in the Second Restatement? Does it mean that you have to have malice? You just need to know that a problem will happen or know that it is substantially certain to result. Knowing includes not just what you know at the outset, but also what you know as you continue the activity. Even if you didn’t know at the beginning that you were going to be causing these problems, you keep on with the activity even after you learn that there was a problem: that makes the nuisance intentional. What’s unreasonable? It’s defined in § 826. If the utility of an activity is greater than the harm, it is not unreasonable under § 826 (a). If the utility is greater than the harm, then an injunction is not available. Under § 826 (b), in order to be a nuisance, the activity must be serious, and the cost of compensating the current plaintiff and others who are harmed won’t put you out of business if you pay. The idea of (b) is that damages and injunctions are both available when they would have the same effect.

In order to make cement useful, you must be located near where it’s going to be used, and that’s going to be in urban areas. Do you automatically get an injunction if you can’t get damages? Say we decide that it’s not feasible for the action to continue. Does that mean that you get an injunction automatically? Let’s say the social utility of doing something is 20 and the cost of compensating people for the harm that’s being caused to them and others similarly situated is 21. That activity should not continue! Damages would have the same effect as an injunction: if you can’t afford to compensate for the harm you’re causing, you ought to go out of business! You’re in business because you have created a situation where you impose externalities on your neighbors. Maybe you make money because you are located close to the big city and you save lots of money because you can blow crap all over your neighbors houses without paying for it. But utility and harm are not easy to measure! Especially when it comes to environmental nuisances it is difficult to prove causality.

What the Restatement is trying to do is say that if the harm of the activity outweighs the utility, you get an injunction. If the harm is serious, and it’s possible for the activity to feasibly continue, you may impose damages. But if taking damages would cause them to go out of business, you’re back to part (a).

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