Property Class Notes 4/23/04


All of the slides are up!


More on Carpenter v. Double R Cattle Company, Inc.


What if there’s a guy with a metal plate in his head who lives next to a church, and whenever the bell rings, his experiences horrible pain.  So he sues the church…what happens?  Hypersensitive plaintiffs will generally not win their case.  This is basically the law of torts.  An unreasonable interference with a reasonable person using their land will not be allowed.  Also, if you look at nuisance as a kind of servitude, then the nature of the servitude is not changed based on who owns the servient estate.


Coming to the nuisance


There was a case involving the first major developer of neighborhoods that were exclusively or almost exclusively for people 55 and older.  The guy developed one in Phoenix right next to a feedlot.  The feedlot’s defense is that the developer came to the nuisance.  The feedlot was already there and had been operating in the same way for years!  Now, all of the sudden, all these single family residences are being built around it and senior citizens are complaining about the million pounds of manure.  So who wins?  If we say that the developer “came to the nuisance”, what happens to the development of cities?  The old use would be “cast in stone”!  The court have said the coming to the nuisance is a factor in determining whether there is a nuisance or not.  But it’s just one factor.  Just because one activity is first doesn’t mean that the activity gets to remain.


What would be the appropriate remedy in these coming to the nuisance cases?  The court in this case granted a conditional injunction on the condition that the developer paid the feedlot for moving.  It didn’t make sense to enjoin the nuisance, and it didn’t make sense to force the parties to be in close contact.  The developer gets their “fly-free” environment, but they have to pay for it.




This is an increasingly important issue!  All over the country, land that would have been considered marginal or not even suitable for development (because it is low-lying or very sensitive to increased loads of water) is now being developed because demand is increasing.  When such land is developed, the flow of water is changed.  The flow of water tends to increase!  When you have farmland, the ground will absorb rainwater naturally.  But if you replace that with hard surfaces like concrete, you get an increased flow of water off that land onto the downstream land, and this can cause very serious problems.  It can be a minor inconvenience, or it can be a major problem.


One solution to this problem is to require developers to build retaining ponds.  You’ll see this in the middle of lots of places (often with fountains).  These ponds accumulate surface water and let it out at a constant flow rate.  Instead of having an hour’s rain run off the uphill land to the downhill land in an hour, with a retaining pond it make take 24 hours instead.  This was thought of as a pretty good solution, but as we start developing land that is more prone to flooding, you don’t really decrease the amount of water flowing on the land.  You only decrease the flow rate.  So a higher volume of water flows for a longer time, and that can damage the downhill land too!


Westland Skating Center, Inc. v. Gus Machado Buick, Inc.


What’s the common enemy rule?  The rule says that the landowners have an unlimited privilege to deal with the surface water on their land without regard to the effect on others.  It’s a free-for-all!  Water is the common enemy of all landowners, and they’re allowed to deal with it how they see fit!  It’s the next guy’s problem to deal with it on his own land.  What’s wrong with this rule?  It sounds cheap to administer!  The people will just fight back and forth, though.  It’s cheap from the legal point of view, but in terms of the social cost, it can be very expensive, as it was here.  The other problem is that the new person is allowed to impose the cost on the person who has been there already.  That seems questionable as a matter of policy and fairness.


What about the civil law rule?  This rule says that the higher elevation has an easement over the lower elevation for all surface water that naturally flowed downhill.  But this rule had problems too.  It impedes the development of land.


This court adopts the reasonable use rule.  But once we introduce the concept of “reasonable”, it becomes a jury question and becomes fact-specific in every case!


This is an area where Braunstein thinks that a regulatory solution could be much better and less expensive than having a case-by-case judicial solution.  It seems preferable to him to go to the development commission and find out what to do about the water on the land you want to develop.  There could be a system of inspections and permits that balance the interests of the uphill and downhill landowners.  Frequently, it’s not just the two parties involved.  The water is going to keep going downhill!  So Braunstein suggests that a comprehensive regulatory solution might be better here than a common law judicial system.




Back to Class Notes