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Property > Week 12 > Flashcards

Week 12 Flashcards

1
Q

Four tests for nuisance vs. trespass

A

(1) D action giving rise to intrusion on or outside P land?
(2) harm to P land direct or indirect?
(3) invasion committed by tangible or intangible
(4) deprive P of possession or merely use and enjoyment

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2
Q

If merely use and enjoyment cuts towards ___

A

nuisance

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3
Q

If intangible cuts toward __

A

nuisance

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4
Q

TM thinks tangibility determined by asking whether ___

A

item large enough to displace a person

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5
Q

TM more tentative about ___ for nuisance

A

indirect/direct

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6
Q

Adams says intrusion must be ___ to count as trespass

A

tangible and direct

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7
Q

Adams says to recover for nuisance LO must prove __

A

significant harm
from D unreasonable interference with use of her property

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8
Q

Adam says that ___ fall under nuisance

A

dust, noise and vibrations threatening use and enjoyment

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9
Q

Trespass threatens right of ___ vs nuisance threatens right __

A

exclusion, quiet use and enjoyment

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10
Q

Adam says direct means offender ___

A

knew or reasonably should have known act would result in physical invasion of the land

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11
Q

Though some courts have moved to more ___, majority Adams rule remains

A

nuisance like definition of trespass

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12
Q

It is very difficult to get courts to recognize ___ but sometimes it happens

A

aesthethic nuisance

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13
Q

Intruding trees are ___ but P ___

A

trespass, limited to self help

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14
Q

Minority rule says tree root invasions should be governed by nuisance if ___

A

cause harm (allowing damages, injunction)

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15
Q

Non-naturally flooding a neighbor’s land can be trespass if ___

A

deprives P of possession

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16
Q

When applying nuisance balancing test, courts focus on ___

A

custom/character of the neighborhood (Campbell)

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17
Q

Public nuisance is __

A

interference with right common to general public

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18
Q

Core example of public nuisance

A

blocking public highway/waterway

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19
Q

Individuals can only bring public nuisance action if __

A

special injury above and beyond what is experienced by other members of the public

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20
Q

Campbell says that brick burning is not ____ but it is ___

A

per se nuisance, nuisance to P

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21
Q

Campbell says P entitled to injunction because __

A

D not exercised right with enough continuity to acquire prescriptive easement

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22
Q

Campbell says nuisance liability not undermined by ___

A

(1) fact that brick burning happened first (coming to the nuisance)
(2) or injunction against bricks would harm D

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23
Q

Tucker had opposite result of Campbell because ___

A

operations conducted with reasonable care and could not be moved

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24
Q

Typical parts of old nuisance doctrine

A

sic utere
locality rule
unreasonable use
threshold of material harm
nuisance per se
injunctive relief for irreparable harm
coming to nuisance
prescription

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25
Q

Nuisance per se

A

nuisance wherever/whenever it occurs

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26
Q

Nuisance per accidens

A

otherwise permissible activity nuisance because of where it occurs

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27
Q

Coming to nuisance is __

A

not defense but one of factors court considers

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28
Q

Servitudes are __

A

contracts that run with the land (bind successive ownership_

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29
Q

Easements are contract where owner agrees to __

A

waive right to exclude certain kinds of intrusions

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30
Q

Appurtenant easements always __

A

run with land and are considered type of property

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31
Q

Covenants are contracts where owner agrees to abide by __

A

certain restrictions on use of land for benefit of one or more others

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32
Q

Covenants more often prescribe ___ on LO

A

affirmative behavior

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33
Q

Covenants sometimes ___

A

run with land

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34
Q

Covenants are less described ___

A

as type of property

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35
Q

Covenants are more of __ than easements

A

governance mechanism

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36
Q

Servient estate is the one that__

A

easement carved out of

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37
Q

Easement is always attached to servient estate so if ___

A

another owner takes servient easement continues even if easement held in gross

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38
Q

Why are easements more like property

A

(1) created by grant not K
(2) irrevocable
(3) in rem

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39
Q

Easement appurtenant when easement __

A

belongs to another parcel of land (benefit of easement belongs to whoever owns the land)

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40
Q

Easement in gross belongs to__

A

particular grantee

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41
Q

Easement in gross was created to __

A

grant easement to railroads (not affiliated with any particular tract of land)

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42
Q

Most courts hold easements in gross are not ___

A

inheritable or transferable

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43
Q

Affirmative easement allows __

A

easement holder to perform some affirmative act on land of another

44
Q

Negative easement permits easement holder to ___

A

demand that owner of servient tract desist from certain actions that might harm easement holder

45
Q

Negative easement was ___ in Fontainbleu

A

rejected

46
Q

American courts more ___ with ___ negative easements

A

flexible, permitting

47
Q

Negative easements must be __

A

created by grant not law

48
Q

CA upheld negative easement for ___

A

unobstructed view of San Fran bay

49
Q

Might be also able to prevent blockage of sunlight using __

A

nuisance

50
Q

Private easements allow __

A

specific named parties to use land for designated purpose

51
Q

Public easements authorize __

A

general public to use land for designated purposes

52
Q

Public sometimes holds negative easements like -_

A

scenic, conservation, historic preservation

53
Q

____ likely to be held as public easements

A

beaches, bike trails, portages

54
Q

Baseball holds that a signed writing granting exclusive right and privilege to maintain sign on wall possessed by owner is ___

A

easement in gross which may be enforced through SP

55
Q

Baseball held that the writing went beyond ___

A

mere license to easement in gross

56
Q

Baseball said not a lease because the wall was ___

A

still in D possession and P could only use for specific purpose

57
Q

Baseball is an application of __

A

numerus clausus

58
Q

The right way to create an easement is __

A

by grant (grantor deliver grantee deed to the property)

59
Q

Easement by implication occurs when __

A

existing use that was visible and continuos

60
Q

Easement by implication is when severance __

A

of title to land OG held by common owner

61
Q

Easement by implication requires that the use be __

A

reasonably necessary for enjoyment of land severed

62
Q

Schwab rejected both __

A

easement by implication and easement by necessity

63
Q

Easement by necessity requires ____

A

(1) severance of title to land OG held by common owner
(2) use strictly necessary because owner of parcel landlocked

64
Q

Under easement by necessity, Landlocked owner can force ___

A

owner to convey easement but must pay just compenation

65
Q

Easement by estoppel is when __

A

TO gives express license for use and licensee makes reasonable expenditure in reliance

66
Q

Easement by prescription

A

open
notorious
adverse
continuous for statutory period
under claim of right

67
Q

Schwab says there was no easement by implication because ___

A

private road never extend to P’s properties and any use by the previous owner not obvious, manifest or continuous

68
Q

Schwab says no easement by necessity because ___

A

US never severed a landlocked piece of property that was not accessible

69
Q

Schwab says that inconvenience does not ___

A

equal impossibility of reaching road

70
Q

Schwab says grantor cannot create easement by necessity __

A

of their own actions

71
Q

Schwab court doesn’t want to sanction __

A

hidden easements that don’t show up on record

72
Q

Holbrook says no prescriptive easement because ___

A

use of roadway didn’t go on long enough to establish

73
Q

Holbrook says easement by estoppel because of ___

A

use/maintenance of the road + reliance with consent of appellants

74
Q

TM thinks Holbrook stretches license requirement to limits because ___

A

H never gave explicit permission

75
Q

Warsaw says that one who acquires valid prescriptive easement is not required to __

A

compensate TO for easement’s FMV

76
Q

Warsaw says a holder of an easement is not required to compensate TO for costs of relocating encroaching building if ___

A

erected with prior notice of easement claim

77
Q

Fontainbleau says that as long as structure ___ a neighboring LO has ___

A

useful purpose, no action when structure blocks light air and views

78
Q

Fontainbleu says no prescriptive easement in __ rejecting___

A

sunlight, English doctrine of “ancient lights”

79
Q

Some jdx have allowed ___ for flow of sunlight

A

easement by grant

80
Q

the officially approved method of terminating an easement is __

A

termination by deed

81
Q

Other ways to terminate easement

A

(1) abandonment (dominant owner failed to use for some time or indicate intention to no longer use)

(2) prescription (servient owner blocks and fails to do anything before SOL)

(3) merger (dominant and servient tracks under common ownership)

82
Q

When a dominant owner subdivides appurtenant parcel among multiple owners , majority rule says __

A

presumptively ok

83
Q

When dominant owner uses easement to reach non-appurtenant parcel (annexation), majority courts say __

A

presumptively prohibited (Penn Bowling)

84
Q

When dominant owner increases frequency or nature of use, majority rule is __

A

rule of reasonableness

85
Q

Remedies for misuse of easement

A

forfeiture
Injunction (return to OG deal)
Damages

86
Q

A misuse of easement doesn’t result in forfeiture unless ___

A

impossible to separate unauthorized use via injunction

87
Q

Problems with damages for misuse of easement

A

take and pay counter to owner sovereignty and may be under compensator if servient owner cannot prove harm

88
Q

Penn Bowling says P could __ but could not ___

A

continue to use the easement, use it to serve parts of land not part of OG dominant track

89
Q

Calabresi suggests entitlement protected by property rule to extent __

A

must get in voluntary transaction, need owner consent

90
Q

Calabresi suggests entitlement subject to liability rule if ___

A

can be taken in forced sale

91
Q

Calabresi says that entitlement should be passed to __

A

whoever more deserving so receive compensation

92
Q

Case where P can insist on injunction forcing D to abate nuisance

A

(Campbell, plaintiff property rule_

93
Q

Case where D can continue activity and P only get it abated through D consent

A

Hinman/Tucker, property rule for D

94
Q

Calabresi says use property rule where -__ whereas liability when ___

A

transaction costs low, high (hold outs)

95
Q

Case where D allowed to keep being nuisance but only upon damages

A

Boomer, liability rule for P

96
Q

Case where P can force D to stop being nuisance but only upon comp

A

maybe Spur, liability rule for D

97
Q

TM thinks Calabresi framework works for __

A

in personam nuisance, but no sense for in rem

98
Q

Boomer says that when nuisance causes substantial damage but injunction disproportionately costly, __

A

injunction may be conditioned on payment of damages

99
Q

Boomer says that risk of being required to pay permanent damages will __

A

incentivize research for improved techniques

100
Q

There is a concern in Boomer that market damages are __

A

undercompensatory because LOs typically value land at higher than market price

101
Q

Boomer takes ex post perspective ____ but could take ex ante ___

A

cost-benefit of enjoining plant, might incentivize other similar operations to carefully consider locations

102
Q

Spur says developer who builds residential community near a lawful business causing __ may be __

A

business to be enjoined, liable for costs of business moving or shutting down

103
Q

Injunctive relief is appropriate in Spur beacuse __

A

public and private nuisance dangerous to public health

104
Q

Spur not required to move because of __ but because of __

A

wrongdoing, regard for citizens

105
Q

No cases have ___ cited Spur

A

positively

106
Q
A

Property (15 decks)

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