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.
Water
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.
Yay!
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