Week 12 Flashcards
Four tests for nuisance vs. trespass
(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
If merely use and enjoyment cuts towards ___
nuisance
If intangible cuts toward __
nuisance
TM thinks tangibility determined by asking whether ___
item large enough to displace a person
TM more tentative about ___ for nuisance
indirect/direct
Adams says intrusion must be ___ to count as trespass
tangible and direct
Adams says to recover for nuisance LO must prove __
significant harm
from D unreasonable interference with use of her property
Adam says that ___ fall under nuisance
dust, noise and vibrations threatening use and enjoyment
Trespass threatens right of ___ vs nuisance threatens right __
exclusion, quiet use and enjoyment
Adam says direct means offender ___
knew or reasonably should have known act would result in physical invasion of the land
Though some courts have moved to more ___, majority Adams rule remains
nuisance like definition of trespass
It is very difficult to get courts to recognize ___ but sometimes it happens
aesthethic nuisance
Intruding trees are ___ but P ___
trespass, limited to self help
Minority rule says tree root invasions should be governed by nuisance if ___
cause harm (allowing damages, injunction)
Non-naturally flooding a neighbor’s land can be trespass if ___
deprives P of possession
When applying nuisance balancing test, courts focus on ___
custom/character of the neighborhood (Campbell)
Public nuisance is __
interference with right common to general public
Core example of public nuisance
blocking public highway/waterway
Individuals can only bring public nuisance action if __
special injury above and beyond what is experienced by other members of the public
Campbell says that brick burning is not ____ but it is ___
per se nuisance, nuisance to P
Campbell says P entitled to injunction because __
D not exercised right with enough continuity to acquire prescriptive easement
Campbell says nuisance liability not undermined by ___
(1) fact that brick burning happened first (coming to the nuisance)
(2) or injunction against bricks would harm D
Tucker had opposite result of Campbell because ___
operations conducted with reasonable care and could not be moved
Typical parts of old nuisance doctrine
sic utere
locality rule
unreasonable use
threshold of material harm
nuisance per se
injunctive relief for irreparable harm
coming to nuisance
prescription
Nuisance per se
nuisance wherever/whenever it occurs
Nuisance per accidens
otherwise permissible activity nuisance because of where it occurs
Coming to nuisance is __
not defense but one of factors court considers
Servitudes are __
contracts that run with the land (bind successive ownership_
Easements are contract where owner agrees to __
waive right to exclude certain kinds of intrusions
Appurtenant easements always __
run with land and are considered type of property
Covenants are contracts where owner agrees to abide by __
certain restrictions on use of land for benefit of one or more others
Covenants more often prescribe ___ on LO
affirmative behavior
Covenants sometimes ___
run with land
Covenants are less described ___
as type of property
Covenants are more of __ than easements
governance mechanism
Servient estate is the one that__
easement carved out of
Easement is always attached to servient estate so if ___
another owner takes servient easement continues even if easement held in gross
Why are easements more like property
(1) created by grant not K
(2) irrevocable
(3) in rem
Easement appurtenant when easement __
belongs to another parcel of land (benefit of easement belongs to whoever owns the land)
Easement in gross belongs to__
particular grantee
Easement in gross was created to __
grant easement to railroads (not affiliated with any particular tract of land)
Most courts hold easements in gross are not ___
inheritable or transferable
Affirmative easement allows __
easement holder to perform some affirmative act on land of another
Negative easement permits easement holder to ___
demand that owner of servient tract desist from certain actions that might harm easement holder
Negative easement was ___ in Fontainbleu
rejected
American courts more ___ with ___ negative easements
flexible, permitting
Negative easements must be __
created by grant not law
CA upheld negative easement for ___
unobstructed view of San Fran bay
Might be also able to prevent blockage of sunlight using __
nuisance
Private easements allow __
specific named parties to use land for designated purpose
Public easements authorize __
general public to use land for designated purposes
Public sometimes holds negative easements like -_
scenic, conservation, historic preservation
____ likely to be held as public easements
beaches, bike trails, portages
Baseball holds that a signed writing granting exclusive right and privilege to maintain sign on wall possessed by owner is ___
easement in gross which may be enforced through SP
Baseball held that the writing went beyond ___
mere license to easement in gross
Baseball said not a lease because the wall was ___
still in D possession and P could only use for specific purpose
Baseball is an application of __
numerus clausus
The right way to create an easement is __
by grant (grantor deliver grantee deed to the property)
Easement by implication occurs when __
existing use that was visible and continuos
Easement by implication is when severance __
of title to land OG held by common owner
Easement by implication requires that the use be __
reasonably necessary for enjoyment of land severed
Schwab rejected both __
easement by implication and easement by necessity
Easement by necessity requires ____
(1) severance of title to land OG held by common owner
(2) use strictly necessary because owner of parcel landlocked
Under easement by necessity, Landlocked owner can force ___
owner to convey easement but must pay just compenation
Easement by estoppel is when __
TO gives express license for use and licensee makes reasonable expenditure in reliance
Easement by prescription
open
notorious
adverse
continuous for statutory period
under claim of right
Schwab says there was no easement by implication because ___
private road never extend to P’s properties and any use by the previous owner not obvious, manifest or continuous
Schwab says no easement by necessity because ___
US never severed a landlocked piece of property that was not accessible
Schwab says that inconvenience does not ___
equal impossibility of reaching road
Schwab says grantor cannot create easement by necessity __
of their own actions
Schwab court doesn’t want to sanction __
hidden easements that don’t show up on record
Holbrook says no prescriptive easement because ___
use of roadway didn’t go on long enough to establish
Holbrook says easement by estoppel because of ___
use/maintenance of the road + reliance with consent of appellants
TM thinks Holbrook stretches license requirement to limits because ___
H never gave explicit permission
Warsaw says that one who acquires valid prescriptive easement is not required to __
compensate TO for easement’s FMV
Warsaw says a holder of an easement is not required to compensate TO for costs of relocating encroaching building if ___
erected with prior notice of easement claim
Fontainbleau says that as long as structure ___ a neighboring LO has ___
useful purpose, no action when structure blocks light air and views
Fontainbleu says no prescriptive easement in __ rejecting___
sunlight, English doctrine of “ancient lights”
Some jdx have allowed ___ for flow of sunlight
easement by grant
the officially approved method of terminating an easement is __
termination by deed
Other ways to terminate easement
(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)
When a dominant owner subdivides appurtenant parcel among multiple owners , majority rule says __
presumptively ok
When dominant owner uses easement to reach non-appurtenant parcel (annexation), majority courts say __
presumptively prohibited (Penn Bowling)
When dominant owner increases frequency or nature of use, majority rule is __
rule of reasonableness
Remedies for misuse of easement
forfeiture
Injunction (return to OG deal)
Damages
A misuse of easement doesn’t result in forfeiture unless ___
impossible to separate unauthorized use via injunction
Problems with damages for misuse of easement
take and pay counter to owner sovereignty and may be under compensator if servient owner cannot prove harm
Penn Bowling says P could __ but could not ___
continue to use the easement, use it to serve parts of land not part of OG dominant track
Calabresi suggests entitlement protected by property rule to extent __
must get in voluntary transaction, need owner consent
Calabresi suggests entitlement subject to liability rule if ___
can be taken in forced sale
Calabresi says that entitlement should be passed to __
whoever more deserving so receive compensation
Case where P can insist on injunction forcing D to abate nuisance
(Campbell, plaintiff property rule_
Case where D can continue activity and P only get it abated through D consent
Hinman/Tucker, property rule for D
Calabresi says use property rule where -__ whereas liability when ___
transaction costs low, high (hold outs)
Case where D allowed to keep being nuisance but only upon damages
Boomer, liability rule for P
Case where P can force D to stop being nuisance but only upon comp
maybe Spur, liability rule for D
TM thinks Calabresi framework works for __
in personam nuisance, but no sense for in rem
Boomer says that when nuisance causes substantial damage but injunction disproportionately costly, __
injunction may be conditioned on payment of damages
Boomer says that risk of being required to pay permanent damages will __
incentivize research for improved techniques
There is a concern in Boomer that market damages are __
undercompensatory because LOs typically value land at higher than market price
Boomer takes ex post perspective ____ but could take ex ante ___
cost-benefit of enjoining plant, might incentivize other similar operations to carefully consider locations
Spur says developer who builds residential community near a lawful business causing __ may be __
business to be enjoined, liable for costs of business moving or shutting down
Injunctive relief is appropriate in Spur beacuse __
public and private nuisance dangerous to public health
Spur not required to move because of __ but because of __
wrongdoing, regard for citizens
No cases have ___ cited Spur
positively
