Trespass to Land and Nuisance

Question 1

What are the 5 elements to trespass to land?

Answer 1

1. Act (entry)
2. Intent
3. Causation
4. Plaintiff’s land
5. without consent

Question 2

What is the very broad, general rule for trespass to land?

Answer 2

Trespass to land is an interference with the possession of one’s land.

Question 3

What is the rule for trespass to land?

Answer 3

To prevail on a claim for trespass to land, the plaintiff must prove, by a preponderance of the evidence, that the defendant acted intentionally to cause an entry to the plaintiff’s property without the plaintiff’s consent.

Question 4

What is the intent requirement for trespass to land?

Answer 4

Intent is either specific, by targeting the interference at the plaintiff’s property, or general, with substantial certainty that the interference will occur to any person or property.

Question 5

Waht is the act requirement for trespass to land?

Answer 5

An act is a volitional movement of the defendant’s body or by the defendant’s body. For trespass to land, the plaintiff must show that the defendant either physically entered or caused something else to physically enter the plaintiff’s land. The act requirement is also satisfied by the defendant’s remaining on the land after consent has been withdrawn or failing to remove something from the land which he or she is under a duty to remove.

Question 6

What is the causation requirement for trespass to land?

Answer 6

The plaintiff must prove that the interference was caused by the defendant’s entry or other actions and can be linked to no other external causes.

Question 7

What are the three defenses to trespass to land?

Answer 7

1. Consent, but can be exceeded
2. Private or public necessity, if not exceeded
3. Other privileges

Question 8

Are nominal damages available for trespass to land?

Answer 8

Yes. The law presumes some damage from trespass, even if nothing more than the treading down of grass.

Question 9

How are compensatory damages awarded and measured for trespass to land?

Answer 9

Compensatory damages may be awarded for harm to real property, normally measured by the cost to repair or diminution in value.

Question 10

Are consequential damages available for trespass to land?

Answer 10

Consequential damages – damages that would not have occurred without the tortious conduct – may be recovered for personal injury and in some cases emotional distress. Consequential damages must be reasonably related to the trespass.

Question 11

What is the broad, general rule for nuisance?

Answer 11

Nuisance is an interference with the use and enjoyment of land.

Question 12

What is the act/underlying tort requirement for nuisance?

Answer 12

A nuisance action is based upon an underlying tortious conduct that falls within the other categories of torts. Therefore, nuisance may be an intentional action, a negligence action, or a strict liability action.

Question 13

When is a nuisance an intentional action?

Answer 13

Where the defendant is aware of the interference to the plaintiff’s property, also known as specific intent, or where it is substantially certain an interference would occur, also known as general intent. If the plaintiff tells the defendant about the interference, and the defendant continues in its conduct, it becomes intentional.

Question 14

When is a nuisance a negligence action?

Answer 14

Where the defendant may not have been aware of the nuisance, but owed a duty to the plaintiff not to interfere with his enjoyment of land but then breached that duty by failing to act as a reasonable, prudent person in causing that interference.

Question 15

What are the 6 elements of private nuisance?

Answer 15

1. Act (underlying tort)
2. Unreasonable
3. Interference w/ P use and enjoyment of land
4. P possession of land
5. Factual/prox cause
6. P Significant harm

Question 16

What is the general rule for a private nuisance action?

Answer 16

For a claim of private nuisance, the plaintiff must prove, by a preponderance of the evidence, that there was an act (or lack thereof) by the defendant resulting in an unreasonable interference with another private individual’s use and enjoyment of land which he actually possesses or has the right of immediate possession, and that the interference was both the factual and proximate cause of the plaintiff’s significant harm.

Question 17

When is an interference unreasonable?

Answer 17

In order to determine the unreasonableness of the interference, the utility of the defendant’s conduct is weighed against the severity of the injury suffered by the plainitff, taking into accounr the right of the plaintiff to use his land in a reaosnable way, the value of the land, the neighborhood in which the activity is carried on, and alternative methods the defendant may employ to carry on his activity. This is a balancing test that appears subjective in most cases.

Question 18

What is the interference requirement for private nuisance?

Answer 18

The plaintiff must prove that an actual interference with the plaintiff’s use and enjoyment of land occurred or continues to occur. An interference can be a physical intrusion by the defendant or simply affecting the senses of the plaintiff.

Question 19

What is the significant harm required for private nuisance?

Answer 19

A significant harm is that which would be suffered by a normal perosn in the community or by property in normal condition and used for a normal purpose. Mere annoyance is not enough.

Question 20

Who is a possessor for private nuisance?

Answer 20

Only those who are possessors of the land, owners of easements or profits in the land, and owners of nonpossessory estates in the land are able to pursue an action or private nuisance.

Question 21

What is the idea of “live and let live” for private nuisance?

Answer 21

Deals with common uses of property that are generally reasonable and unintentional. Genearlly limited to non-substantial damages. Look for situations of reciprocal risk.

Question 22

What is the idea of aesthetics for private nuisance?

Answer 22

Absent purely malicious conduct (conduct which has no utility), blocking air, light, or aesthetics is genearlly insufficient to give rise to private nuisance.

Question 23

What is the idea of natural nuisances in private nuisance?

Answer 23

One is not required to abate natural nuisances, unless near a boundary and likely to hurt the public outside.

Question 24

What are the 5 elements of public nuisance?

Answer 24

1. Act (underlying tort)
2. Factual/prox cause
3. Unreasonable
4. Interference w/ public health, safety
5. Private P: significant harm diff in kind

Question 25

What is the very broad, general rule for public nuisance?

Answer 25

A public nuisance is an interference with the rights of the public.

Question 26

What is the general rule for public nuisance?

Answer 26

A public nuisance is an act (or failure to act) by the defendant that is both the factual and proximate cause of an unreasonable interference with the health, safety, or property rights of the public. Public nuisance acts are generally brought by the government as the plaintiff.

Question 27

When is an interference unreasonable for public nuisance?

Answer 27

An interference for public nuisance is unreasonable when (1) it significantly interferes with public safety, public peace, public comfort, or public health; (2) it’s regulated by statute or other regulation; or (3) whether the conduct is continuous or has permanent effects of which the defendant is aware or should be aware.

Question 28

What is required for a private plaintiff to bring an action in public nuisance?

Answer 28

For a private plaintiff to recover under a public nuisance action, called a private suit for public nuisance, the plaintiff must show that her particular damage was unique of a kind different from that suffered by other members of the public, not just a different degree of harm.

Question 29

What are the majority and minority views of what a private plaintiff can recover for under a public nuisance action?

Answer 29

Generally, a private plaintiff can recover for personal injuries and property damage. The minority view is that an individual may only recover for property damage.

Question 30

What are three defenses to nuisance?

Answer 30

1. Contributory/comparative negligence if based upon negligence.
2. Consent, if the plaintiff knew of and consented to the structures built by DF
3. Coming to the Nuisance, not dispositive

Question 31

What is the general rule for coming to the nuisance?

Answer 31

Coming to the nuisance is not dispositive, but may be a factor in determining liability. If the plaintiff had no knowledge of the nuisance, then the plaintiff’s claim may proceed. However, ifthe plaintiff had knowledge of the nuisance, then it is relevant to the discussion but not a total bar to the suit, unless the plaintiff moved in solely to bring a lawsuit, in which case recovery is barred.

Question 32

What is the usual remedy for private and public nuisance?

Answer 32

money damages. the ycan be assessed incrementally or in a lump sum. A plaintiff still has a duty to mitigate damages.

Question 33

What remedy is available for nuisance if money is insufficient?

Answer 33

Where money is insufficient or unavailable, an injunction stopping the offending activity may be appropriate, such as where the activity is an ongoing, damaging activity, such as polluting. The courts will weigh the cost of the injunction to both parties, but generally will not weigh such consideration in the face of a legitimate right asserted by a plaintiff who desires to be free of interference of the use and enjoyment of his property or intentional conduct by the defendant.

Question 34

Can a plaintiff be awarded damages and injunctive relief?

Answer 34

Yes, the two are not mutually exclusive

Question 35

Who decides wherther to grant an injunction?

Answer 35

the judge, not a jury

Question 36

Can damages be recovered for preemptive nuisance?

Answer 36

Damages and injunctions are typically not allowed for merely increasing the risk of harm, or preemptive nuisance.