nuisance and easements Flashcards
Nuisance
Substantial and unreasonable interference with another’s land
under nuisance, what is considered to be unreasonable
Majority Rule: Courts balance interests
Social utility of Defendant’s (D) conduct vs. Harm to Plaintiff (P)
Special NY Rule:
If cost of nuisance outweighs benefits → Injunction (nuisance shut down)
If social benefits of nuisance outweigh costs → Nuisance allowed if victims are compensated with permanent damages
Public Nuisance
Harms the public at large, not just a few landowners
Private Nuisance
effects only a small amount of people
Intentional nuisance occurs when
the defendant acts with the purpose of causing harm, knows harm is resulting, or knows harm is substantially certain to result.
Unintentional nuisance arises from
negligent, reckless, or ultrahazardous conduct.
When balancing, defendants win
when the injury to the plaintiff is slight when comparing the harm caused to the defendant and the public
Coming to the Nuisance - only applies to
public nuisance
under coming to the nuisance, a plaintiffs public development..
then creates a populous public, then the defendant may be required to cease the nuisance but the plaintiff may be required to indemnify the defendant.
Permanent Damages
if a harm to defendant is found to be greater, the court may award the plaintiff PD.
* Purpose: Compensate P, make them whole, and create an incentive for D to reduce the nuisance
* This approach compensates the plaintiffs for past and future harm while allowing the defendant to continue operations.
* This could also incentivize the defendant to get rid of the nuisance
License is
rights of way across another’s
Easements is
rights of way across another’s
revocable ? covered by statute of frauds? license
Generally revocable at will (subject to exceptions), need not be in writing.
Can be terminated after a short period of time.
revocable ? covered by statute of frauds? easement
covered by statute of frauds so must be in writing. Also generally not unilaterally revocable
How do you know when a right to enter is a license?
Either 1) created orally or 2) some evidence (usually in the granting instrument) that parties intended it to be revocable by grantor.
When licenses NOT revocable
- Estoppel - licensee has invested substantial money/labor etc in reliance on license, this making revocation unjust
- Also license coupled with interest, (you can go back and get your stuff) but this is much less important - just to recover chattels
Dominant tenant/land
the person who has the easement or the land that benefits from it
Servient tenant/land -
person subject to the easement or land that is walked/driven over by dominant tenant
Easement appurtenant -
easement that benefits someone in their role as owner of specific land - that is, useless if holder moved far away.
* Tied to the dominant tenant land.
*Useless if the land is not near the servient land. Most easements involving individual people will be this.
Easement in gross
dominant tenant benefits even if not a neighbor (e.g, utility easement) does not matter where the dominant tenant lives.
* Can live far away, this is mostly for corporations. Does not usually involve individuals.
Express easement
Created by grant or contract, interpreted by looking at what parties meant like any other contract
easement implied from prior use
when BEFORE land split up, owner of land used part of land in easement - like manner to benefit the other part.
must be:
1. apparent
2. continuous
3. necessary (convinent)
Easement by necessity
someone is landlocked and cannot reach public streets without an easement
- Unity of estates - both dominant and servient land were once owned by same person (dominany means land of person who has the easement, land subject to easement is servient)
- Strict necessity (not just reasonable)
- The necessity Element existed when unity of ownership ended (existed when the land was split up)
Easement by prescription
like adverse possession for easements
** Use must be -
Open
Continuous
Hostile
- Basically adverse possession)
- No E
- Must be for the number of years in statute of limitations
Even if theres an express easement, when is dominant tenant going beyond what’s allowed?
The scope of the easement is determined by reasonableness and burden
- Courts focus on 2 elements:
- Is new use somehow foreseeable from original use, or is it radically different?
- Is new use far more burdensome to servient land than original use?
Example - In presault, court thought recreational trail was 1) too different from original railroad easement and 2) more burdensome
Termination of easements
Abandonment -
Merger
Government condemnation
Abandonment
mere nonse not enough, there must be some affirmative act of abandonment (e.g, tearing up RR tracks in Presault)
Merger
if dominant and servient properties come under common ownership (i.e if someone who has the easement buys the land they have the easement through or vice versa)
Government condemnation
when the government takes the land it also takes all easements connected to the land. Condemnation has to be for public use, it is the government taking the land which then extinguishes any easements.
Re-Creation of an extinguished easement:
To officially re-create the easement, it must be clearly written in the property records (the “chain of title” of the land that is burdened by the easement).
Even if the new owner knows the easement used to exist, that’s not enough—it must be in the deed.
Are easements transferable?
For easements appurtenant
yes. In fact, if land governed by easement transferred, easement runs with land even if not mentioned in deed. Automatically transferred when the dominant land is transferred. Even if the dominant property is separated both of the new owner’s get the easement.
Are easements transferable?
Easements in gross
yes, if it is commercial. No, if not commercial
Upkeep responsibilities for easements:
joint use implies a joint responsibility for upkeep.
- Under common law principles, if an easement is silent on maintenance obligations, the burden typically falls on the dominant estate (the beneficiary of the easement).
