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A - Property 2 > Week 9 - Nuisance > Flashcards

Week 9 - Nuisance Flashcards

1
Q

Nuisance law represents the means by which ______ ______ _______ (not parties or legislature) resolve disputes involving conflicting land uses.

A

common law judges

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2
Q

Nuisance law represents the means by which common law judges (not parties or legislature) ________ _______ involving _______ _______ ______.

A

resolve disputes involving conflicting land uses

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3
Q

________ law is based upon the principle that one should use his or her own property in such a way as not to injure the property of another.

A

Nuisance

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4
Q

Nuisance law is based upon the ________ that one should use his or her own _______ in such a way as not to ______ the property of another.

A

principle

property

injure

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5
Q

Nuisance law is based upon the principle that one should use his or her own property in such a way as not to injure the _______ of ________.

A

property of another

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6
Q

Property and Torts where ________ _______ _______ resolve disputes in conflicting land uses.

A

common law judges

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7
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1. ?
2.
3.
4.
5.
6.
7.
8.
9.
10.

A
  1. Noise
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8
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2. ?
3.
4.
5.
6.
7.
8.
9.
10.

A
  1. Dust
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9
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3. ?
4.
5.
6.
7.
8.
9.
10.

A
  1. Smoke
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10
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4. ?
5.
6.
7.
8.
9.
10.

A
  1. Odors
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11
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5. ?
6.
7.
8.
9.
10.

A
  1. Fumes
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12
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5.
6. ?
7.
8.
9.
10.

A
  1. Airborne contaminants
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13
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7. ?
8.
9.
10.

A
  1. Water-borne contaminants
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14
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8. ?
9.
10.

A
  1. Vermin
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15
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8.
9. ?
10.

A
  1. Insects and
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16
Q

What are some examples of a common law nuisance?

What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8.
9.
10. ?

A
  1. Vibration
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17
Q

If you have to write for me about nuisance, you are going to want to be able to say EXAMPLES OF A COMMON LAW NUISANCE INCLUDE: noise, dust, etc. !!

A

!!

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18
Q

What is nuisance law?
Nuisance law is:
Partly _______.
Partly ___ _____.

A

Tort
Property Law

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19
Q

Part tort because _______ _______ arises from negligence or otherwise wrongful activity.

A

nuisance liability

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20
Q

Part ____ because nuisance liability arises from negligence or otherwise wrongful activity.

A

tort

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21
Q

Part ______ because the liability for interference is the use and enjoyment of the land.

A

property

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22
Q

Part property because the liability for interference is the ______ and _______ of the land.

A

use and enjoyment

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23
Q

The Nature of Nuisance Law:
Reciprocal Nature of a Nuisance. It takes ______ _______ to make a problem.

A

2 properties

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24
Q

Example: If I open a brick yard and excavate the red clay and fire it into bricks and I am out in the middle of nowhere – is anybody going to be mad about my brickyard? No, I am doing something that is productive and creating a product that people need, and they don’t have to hear the noise or smell the smoke or feel the vibrations or any of that.

Only a problem if John moves in next door and says your brick making building smells terrible, non-stop smoke. don’t like the trucks coming in and out every day, trucks almost hit my kid on their bike.

We talk a lot in Real covenants and equitable servitudes – I don’t want to live next to a factory.

As we assess nuisance law theoretical issues – whether the case should be ______ _____ ______ because brick houses are good according to the 3 little pigs. Brick houses are nice, and we need bricks. John doesn’t think we need bricks next to his house, but we need them somewhere.

A

strictly win/lose

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25
Q

When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1. ?
2.
3.
4.

A
  1. We abate the nuisance by giving the plaintiff injunctive relief
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26
Q

When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2. ?
3.
4.

A
  1. Allow the nuisance to continue but the defendant pays damages
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27
Q

When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3. ?
4.

A
  1. Let the activity continue, let the nuisance keep on and deny all relief.
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28
Q

When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3.
4. ?

A
  1. We shut down the nuisance if the plaintiff pays damages
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29
Q

When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3.
4.

A
  1. We abate the nuisance by giving the plaintiff injunctive relief
  2. Allow the nuisance to continue but the defendant pays damages
  3. Let the activity continue, let the nuisance keep on and deny all relief
  4. We shut down the nuisance if the plaintiff pays damages
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30
Q

That means John sues me and the judge shuts my brick yard down. Problem solved for John no more nuisance. Morgan case and Estancias case.

When thinking about whether each decision should be strictly win/ lose:

A
  1. We abate the nuisance by giving the plaintiff injunctive relief
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31
Q

Judge might say we really need bricks in our community and community members need to work at the brickyard but John, we hear you and it is a pain so the brickyard lady will pay you money for your suffering and if you want to move away you can because you have damages. Boomer case handles it that way.

When thinking about whether each decision should be strictly win/ lose:

A
  1. Allow the nuisance to continue but the defendant pays damages
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32
Q

The court is saying what are you complaining about? This isn’t a problem – no I am not going to stop it because it is not a problem.

When thinking about whether each decision should be strictly win/ lose:

A
  1. Let the activity continue let the nuisance keep on and deny all relief
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33
Q

This is one that we see in the Spur case. This one will deal with coming to the nuisance. The brickyard was there first, and John bought property next door. My brick is 365 days a year and same smoke and smell and you saw it and smelled it and bought next door anyway and you came to my nuisance and in that case a court might say okay John you feel so passionately about living there, you pay the brickyard lady to move somewhere else. Silly resolution where it is just one guy v. a business. What if it is a developer who is putting in thousands of units of housing? He can pay to move the brickyard or cattle feed lot.

When thinking about whether each decision should be strictly win/ lose:

A
  1. We shut down the nuisance if the plaintiff pays damages
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34
Q

To build an essay – start with is this the thing the P is complaining about even a common law nuisance. Noise, dust, smoke, fumes, etc.
When we can establish that it is then the next thing is say well we learned about these three different tests. Say here is what each test says and apply facts to each one and see how it turns out. I am not going to tell you which jurisdiction we are in.

Threshold test jurisdiction it will turn out this way.
Utilitarian jurisdiction it will turn out this way.
Balancing of the equities jurisdiction this is the way it is going to go.
!!

A

!!

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35
Q

A “nuisance per se” is a nuisance as a matter of law.
A. True
B. False

A

A. True

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36
Q

Rather than Strictly Win-Lose, We should consider weighing:
1. ?
2.
3.
4.
5.

A
  1. Promotion of marketability
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37
Q

Rather than Strictly Win-Lose, We should consider weighing:
1.
2. ?
3.
4.
5.

A
  1. Promotion of the productive use of land
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38
Q

Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3. ?
4.
5.

A
  1. Achieving fairness to each of the parties
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39
Q

Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3.
4. ?
5.

A
  1. Achieving efficiency, i.e., maximizing the value of the respective resources of the parties
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40
Q

Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3.
4.
5. ?

A
  1. consideration of society’s need for certain “problem” uses.
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41
Q

Nuisance Categories:
1. ?
2.
3.

A
  1. State of mind of person causing the nuisance
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42
Q

Nuisance Categories:
1.
2. ?
3.

A
  1. Persons Impacted by the Nuisance
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43
Q

Nuisance Categories:
1.
2.
3. ?

A
  1. Whether circumstances are relevant
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44
Q

State of Mind of Person Causing the Nuisance
1.
2.

A
  1. Intentional Nuisance
  2. Unintentional Nuisance
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45
Q

_______ ________: The actor knows the consequences, but they do it anyway. If I open my factory and I know there are vibrations, smoke, and dust coming out of my factory but I do it anyway because I want the money from the business that is an _________ _________.

A

Intentional nuisance
Intentional nuisance

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46
Q

_________ _________- created through negligence, recklessness, or ultra hazardous activities.

A

unintentional nuisance

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47
Q

Unintentional Nuisance - created through _______, ________, or _____ ____ ________.

A

negligence
recklessness
ultra hazardous activities

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48
Q

Person’s Impacted by the Nuisance
1.
2.

A
  1. Private Nuisance
  2. Public Nuisance
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49
Q

_______ _______ - deals with your rights in terms of your use and enjoyment of the land. _________ level: can you enjoy your land or has someone else’s actions disrupted your use.

A

Private Nuisance

Personal

50
Q

Private Nuisance deals with your rights in terms of your ______ and _______ of the land. Personal level: can you enjoy your land or has someone else’s actions disrupted your use.

A

use and enjoyment

51
Q

________ ________: unreasonable interference with a right common to the general public.

A

public nuisance

52
Q

Public nuisance: unreasonable interference with a right common to the ______ _______.

A

general public

53
Q

Whether Circumstances are Relevant:
1.
2.

A
  1. Nuisance in Fact
  2. Nuisance Per Se
54
Q
A
55
Q

______ ____ ______: When you don’t have a law being broken but you still have a nuisance anyway.

City has re-zoned an area and determined that it is legal for a land fill to go in this spot. People who live next door cannot argue that this land fill is a nuisance per se because it is legally operating where it is supposed to be but they may have horrendous odors, rats, cockroaches, all coming from the trash that is the landfill site and that may in fact be a nuisance in fact even though the law isn’t being broken by placing it there, it is still causing a nuisance.

A

Nuisance in fact

56
Q

______ ____ ______: nuisance as a matter of law. In creating your nuisance, you have broken a law or violated a regulation.

A

Nuisance per se

57
Q

Nuisance as a matter of law

A

Nuisance per se

58
Q

The ________ ______: The Threshold Test

A

Traditional Test

59
Q

The Traditional Test: The ______ _______.

A

Threshold Test

60
Q

The development of Judicial Analysis of Intentional Nuisance Claims:
1. ?
2.
3.

A
  1. The Traditional Test: Threshold Test
61
Q

The development of Judicial Analysis of Intentional Nuisance Claims:
1.
2. ?
3.

A
  1. Recognition of Public Interest: Balancing Test
62
Q

The development of Judicial Analysis of Intentional Nuisance Claims:
1.
2.
3. ?

A
  1. The Attempt to Consider Overall Fairness and Efficiency: Utilitarian Test
63
Q

When the test evolved to start considering public interest, is the thing that is causing the nuisance actually something we need as society that is when we ended up with the _______ ___ ___ _______ _______.

A

balancing of the equities test

64
Q

Threshold Test and the Balancing of the Equities Test they have _____ ____ _____ results.

A

strict win/lose

65
Q

_______ ______ and the _____________________ they have strict win/lose results.

A

Threshold Test

Balancing of the Equities Test

66
Q

Recognition of Public Interest: ______ _______.

A

Balancing Test

67
Q

The Attempt to Consider Overall Fairness and Efficiency: _______ ______.

A

Utilitarian Test

68
Q

The ______ to consider ____ ________ and ________: Utilitarian Test

A

Attempt

overall fairness and efficiency

69
Q

Modern Approach: __________ test.

A

utilitarian

70
Q

trying to consider all the things – overall fairness and efficiency – what is best for everyone? Coming up with create solutions with the ____________ test .

A

Utilitarian

71
Q

The “Threshold Test” is a strict win/lose test in nuisance law.
A. True
B. False

A

A. True

72
Q

Utilitarian Approach From The Restatement
There are two distinct questions to ask:
1. ?
2.

A
  1. What is the most efficient way to avoid the problem?
73
Q

Utilitarian Approach From The Restatement
There are two distinct questions to ask:
1.
2. ?

A
  1. Who should have the burden and bear the cost of avoidance?
74
Q

4 ways this could turn out the ________ is considering which of the four ways is the most efficient way to resolve the problem and who is in the best position to bear the burden or the cost of avoiding the nuisance.

A

Utilitarian

75
Q

___________ Test: No comparative examination; if level of interference meets a certain threshold, court grants relief against the continuation of the intrusion.

A

Threshold

76
Q

Doesn’t balance anything. Doesn’t look at how much the defendant will be hurt if we shut down their factory or how many jobs will be lost in the community if we shut down the factory. Do you have a certain amount of harm – if you do, shut it down. Some threshold level of harm to the plaintiff it is a nuisance, and it must be abated and shut down.

Which test?

A

Threshold

77
Q

Threshold Test: Nuisance is so bad it has to be stopped. If it is impacting the ______ and ______ of the plaintiff, then we need to shut it dow .

A

health and safety

78
Q

Assess all three approaches in an essay because you don’t know what jurisdiction it is and which test, they have adopted. Analyze them all. !!

A

!!

79
Q

The “Balancing of the Equities Test” in nuisance law is a strict win/lose test.
A. True
B. False

A

A. True

80
Q

Which Test?
The court will balance:

Injury which may result to Defendant and THE PUBLIC by granting the injunction, with the,

Injury which may result to Plaintiff if the injunction is denied.

A

Balancing of Equities Test

81
Q

Balancing of Equities Test: The Court will balance:
1. ?
2.

A
  1. Injury which may result to Defendant and THE PUBLIC by granting the injunction, with the
82
Q

Balancing of Equities Test: The Court will balance:
1.
2. ?

A
  1. Injury which may result to Plaintiff if the injunction is denied.
83
Q

Balancing of the equities test is strict win/lose. Think about a lot of things and then we are going to shut it down or we are not. True or False.

A

True

84
Q

Utilitarian we are going to balance a lot of things and then come up with a creative solution that we hope helps everybody. True or False

A

True

85
Q

________ of the _______ look the injury to the defendant and the public if we shut it down v. the injury to the plaintiff if we allow the nuisance to continue.

A

Balancing of the Equities

86
Q

HYPO: READ!! Context of factory – If l moves in and then later a factory comes. L is not going to enjoy living next to the factory- noise, dust, smoke, fumes, none of us want to live next to the factory. Harm to L if we keep the factory open. When we are in a state using balance of equities:
We have to say but hold on for a second, yes this is a harm and L is suffering but if we shut it down the D is going to suffer to.
What type of suffering is the D likely to have? Financial. Close down my business I don’t have a livelihood anymore.
Harm to the public if we shut down the factory – make a product that we really need – during covid – facemask – factory that makes N95 facemask – we shut down the factory there will be less facemasks and that will be a problem if we face another pandemic.
Benefit factory may bring to the community: Jobs to the factory and if you shut it down it could affect the community plus doing without the product that they produced.
Balancing of the equities test – look at how bad the harm was to L because the factory moved in next to her and how bad is it going to be to the D if we shut it down and how bad is it going to be for the public.
!!

A

!!

87
Q

________ and the ______ are on one side of the equation and the ______ is on the other.

A

Defendant
Public

Plaintiff

88
Q

Facts – the factory employs 500 community members. This particular factory is the only US manufacturer of this medication that treats this disease.
In the context of the public everybody who needs that medication and can’t get it would be impacted by shutting that factory down.
Job standpoint – more local.
!!

A

!!

89
Q

_______ ______: The court considers whether the utility of the actor’s conduct outweighs the gravity of the harm to plaintiff, such that, with the payment of money, and perhaps modification of use, the conduct is permitted to continue.

A

Utilitarian Test

90
Q

Utilitarian Test: The Court considers whether the utility of the actor’s conduct outweighs the gravity of the harm to ______, such that, with the _______ of ______, and perhaps modification of use, the conduct is permitted to continue.

A

plaintiff

payment of money

91
Q

Utilitarian Test: The Court considers whether the utility of the actor’s conduct outweighs the gravity of the harm to plaintiff, such that, with the payment of money, and perhaps ________ of _____, the conduct is _______ to ________.

A

modification of use

permitted to continue

92
Q

If L lives here and the factory moves in, but this factory produces some lifesaving medication that we need and gives jobs to the community and it is a useful factory we don’t want to shut it down.
Acknowledge that she is suffering could we pay her enough money to buy property somewhere else?

Advancements in pollution control. Some kind of filter we can use to cut down on dust? Whatever her concerns are is there something the defendant could do to decrease her harm and if there isn’t pay her enough money to live elsewhere. Not ideal but attempts to give something to all the sides.
!!

A

!!

93
Q

Elements of Intentional Nuisance
1. ?
2.
3.

A
  1. A substantial invasion of another’s interest in the private use and enjoyment of land.
94
Q

Elements of Intentional Nuisance
1.
2. ?
3.

A
  1. Non-trespassory
95
Q

Elements of Intentional Nuisance
1.
2.
3. ?

A
  1. Conduct of Defendant is unreasonable and intentional
96
Q

Elements of Intentional Nuisance
1.
2.
3.

A
  1. A substantial invasion of another’s interest in the private use and enjoyment of land.
  2. Non-trespassory
  3. Conduct of Defendant is unreasonable and intentional
97
Q

Different ways to assess unreasonableness
1.
2.

A
  1. Case law
  2. Restatement
98
Q

Different ways to assess unreasonableness:
1. ?
2.

A
  1. Case law: Unreasonableness is measured by the level of interference that results from the conduct
99
Q

Different ways to assess unreasonableness:
1.
2. ?

A

2.Restatement - whether the gravity of the harm outweighs the utility of the conduct?

100
Q

Most modern-day nuisances are ________.

A

intentional

101
Q

Elements of Unintentional Nuisance
1. ?
2.
3.

A
  1. A substantial invasion of another’s interest in the private use and enjoyment of land.
102
Q

Elements of Unintentional Nuisance
1.
2. ?
3.

A
  1. Non-Trespassory
103
Q

Elements of Unintentional Nuisance
1.
2.
3. ?

A
  1. Conduct of Defendant is unreasonable and unintentional.
104
Q

Elements of Unintentional Nuisance
1.
2.
3.

A
  1. A substantial invasion of another’s interest in the private use and enjoyment of land.
  2. non-trespassory
  3. Conduct of Defendant is unreasonable and unintentional
105
Q

Conduct of the defendant is unreasonable and unintentional. This is usually your ______, ______ or _______ type of activity.

A

reckless, negligent, or ultra hazardous type of activity.

106
Q

The “Utilitarian Test” in nuisance law creates a compromised result that is not strict win/lose.
A. True
B. False

A

Answer: A. True

107
Q

In operating the oil refinery, HPO intentionally and unreasonably caused noxious gases and odors to escape onto the lands of the plaintiffs to such a degree as to impair in a substantial manner the plaintiffs’ use and enjoyment of the land.

What Case?

A

Morgan v. High Penn Oil Co.: The stinky case

108
Q

What does enjoin mean?

A

Injunction which means shut it down

109
Q

Typically if your facts include _______, or ______ _______ trigger health and safety discussion.

A

nauseating

terrible headaches

110
Q

Typically if your facts include nauseating or terrible headaches trigger _____ and ______ discussion.

A

health and safety

111
Q

Balancing of the equities and utilitarian- weigh the impact that the decision has on everybody – the court wasn’t like a hospital will help this community – the court didn’t do that but if dealing with nuisance in BOE or U we would have to think about all those things. !!

A

!!

112
Q

_________ _________: No issue of balancing or weighing; comparable to the “threshold” test based upon parties’ agreement.

A

Covenant Enforcement

113
Q

_______ ________: Modernly, balancing the public interest, and weighing the impact upon the respective parties may be relevant.

A

Nuisance Considerations

114
Q

_______: Substantial Nontrespassory Invasion.

______: Physical invasion, but no “substantial” requirement.

A

NUISANCE

TRESPASS

115
Q

Nuisance: ______ _______ ______.

Trespass: _____ ______, but no ______ _________.

A

Substantial Nontrespassory Invasion

Physical Invasion, but no “substantial” requirement

116
Q

One area which is a little bit of an exception – for example an intentional release of polluted water or noxious gas that could be seen as trespassory because polluted water could be on your land for example. Nuisance is non-trespassory – non-physical. !!

A

!!

117
Q

Introduction to Nuisance Law
1.
2.
3.
4.

A
  1. Fear and loathing
  2. Light and Air
  3. Spite
  4. Plain old ugly
118
Q

Out west in Utah – city councilman lived higher up than the new hose. New house interfered with his view by 18 inches. The city councilman enforced the ordinance and made the person cut off the top 18 inches of the house after it was completely built. Owner of the shorter house is not happy and decided it would be good to install venting on the side. Venting was – they vented. The city councilman who had forced the people to cut their house off can be seen observing the vents. No city ordinance regarding the outward appearance of vents in the community. Bird vents got to stay, not a nuisance. !!

A

!!

119
Q

Gnome and Juliet: Toilet with flowers – this has been found in some jurisdictions to be art and not be a nuisance. This is why people live in HOA’s with rules. !!

A

!!

120
Q

How to tell if your neighbor doesn’t like you? Shrubbery is cut into the person mooning the other neighbor !!

A

!!

121
Q

Man and woman got divorced and ended up next door neighbors. Decided it was appropriate to commission a statute giving the bird. !!

A

!!

122
Q

Canadian people. Property line with fence and pile of stuff on the property. Manure. Really big pile. The wall of manure fresh unseasoned wet and raw. Fined 17,000. !!

A

!!

A - Property 2 (30 decks)

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