Restrictions on Right to Use/Enjoy - Reasonable Use

Question 1

Nuisance

Answer 1

• Unreasonable interference with another’s use or enjoyment of land; look to:
o Character of the harm
o Social value of the use invaded
o Suitability of that use to the character of the area
• Can be public or private
o Government always has a right to abate a public nuisance without compensation the owner
• Per se – conduct that is a nuisance itself (operation of illegal house of prostitution)
• Per accidens – otherwise lawful conduct that is wrongful because of the particular circumstances of the case where it is located
• Standard Remedy- Damages and injunctions

Question 2

Nuisance

* Bove v. Donner-Hanna Coke Corp. – NY (1932) “Coke Oven”

Answer 2

o F: P sues because D operates a coke oven across the street 24/7, emits noise, dirt, odors; claims that it eliminates use of property as grocery store and residence
o H: For D
 Area was industrial when P purchased (even though coke oven was hickory farm)
 Coke oven was run according to all the ordinances and was located in an approved lot (area was heavily industrialized)
 P’s damages are real, but the use from which the damages flow is not unreasonable
• Someone cannot knowingly move to area where there is a potentially offensive activity and then sue for nuisance
• Boomer – award damages but won’t force the industrial plant to shut down (innovative remedy)
• Zoning has displaced nuisance for a lot of inappropriate use of property

Question 3

Right to Support

• Noone v. Price – WV (1982) “Slipping Hill”

Answer 3

o F: P’s house is slipping; alleged due to poor maintenance of retaining wall by D; P knew of wall’s poor condition when bought property; when wall was built there was no property on P’s land; SJ for D at trial
o H: Remanded to determine if wall could support only land (as house was not built yet)
 Two extremes – no liability vs. strict liability (any slipping from loss of support = liability); neither is the rule
 Rule turns on if there are man-made structures on the land
 Want people not to excavate soil in a way that would cause hill to slide in its natural state
 If person digs in such a way that land would fall without a structure  lower landowner is liable [thus P needs to prove this here on remand]
 However, if land would not have subsided but for the weight of the plaintiffs’ house, then they can recover nothing
o Looks to R2d Torts §819 for negligence rule – unreasonable in the digging; intentional failure to warn neighbor; when actor realizes that there is substantial risk to his neighbor’s land and fails to take adequate provisions to prevent subsidence = liability