II. Liberty to Use vs. Security

II. Liberty to Use vs. Security

A. LAND USE CONFLICTS AMONG NEIGHBORS

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  Typically involve activities “offensive, physically, to the senses which make life uncomfortable” such as noise, odor, smoke, dust
  
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  Differs from trespass as it does not protect interest to exclusive possession, but to quiet enjoyment of land
  
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  Differs from negligence as nuisance focuses on result of the conduct rather than conduct itself (is the interference unreasonable?)
  

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  Permanent nuisance: either irreparably injured P’s property or is of such a character that it is likely to continue indefinitely. In this case, the statute of limitations begins at the time the nuisance begins
  
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  Temporary nuisance: can be alleviated by changes in the D’s conduct and the claim “accrues anew upon each injury” or occurs intermittently.
  

1. 
   Privilege: defendant is privileged to use the land in the way P complains of, as conduct of which P complains does not violate any legal duties owed by the D to the P (“damage without legal redress”)
   
2. 
   Strict Liability: P has an absolute right not to suffer a particular sort of harm caused by D’s activity; D is not legally entitled to engage in the activity without liability, unless he can get P to agree to let him do so, such as by paying P for permission (P effectively has power to veto D’s harmful activity)
   
3. 
   Reasonableness: Reasonableness test represents a middle position: authorizes D to engage in the harmful activity if it is deemed to be reasonable, but not if the conduct and/or harm caused by it is deemed unreasonable.
   

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  Factors: (a) extent of harm to P and social utility of P’s activity, (b) social benefits of D’s activity and what society would lose by preventing D from freely engaging in the activity, (c) overall relative social costs and benefits of the conflicting land uses of P and D, (d) availability of alternative means to mitigate/avoid the harm, (e) D’s motive, and (f) which use was established first
  

4. 
   Prior use: awarded to the person who established the first use
   

1. 
   Dismissal of complaint
   

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  D may also fend off a lawsuit by P by bringing it himself; D asks the court to issue a declaratory judgment establishing that the D has the privilege to engage in the harmful activity without liability to the neighbor
  

2. 
   Damages: most common
   

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  Cost of restoration – the cost of repairing the damage and bringing the property back to its prior condition
  
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  Diminution in the market value of the property
  

3. 
   Injunction: an order to the D to do or not to do certain specified acts
   
4. 
   Purchased injunction: The court may issue a conditional injunction, ordering the activity stopped on the condition that the P reimburse the D for the opportunity loss occasioned by ceasing the activity.
   

Armstrong v. Francis Corp., N.J. (1956)

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  Facts: Defendant built homes in a development and constructed drainage system that adversely impacted stream running through downstream properties including: discolored and foul water, flooding, erosion, and damage to masonry
  
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  Rule: Reasonable use privileges each possessor to make reasonable use of land, even though flow of surface waters is altered and causes some harm to others,, but incurs liability when harmful interference with surface waters is unreasonable
  
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  Holding: Court adopts the reasonable use doctrine due to flexibility
  

1. 
   Common enemy doctrine: allows property owners the absolute freedom to develop their property without liability for any resulting damage to neighbors caused by increased runoff of surface water
   

• 
  This rule may be the law in about 17 states
  

2. 
   Natural flow (“civil law”) rule: grants the injured property owner absolute security against injury from flooding caused by a neighboring property owner’s development of her property
   

• 
  Today it persists in only a few states as it might inhibit land development because most development will change drainage patterns
  

3. 
   Reasonable use test: requires decision maker to determine in specific cases whether the D’s conduct caused unreasonable interference with the neighbor’s use of their land
   

• 
  This test is now the majority rule
  

1. 
   Rights: Deal with the parties themselves. Rights arguments can do multiple things such as
   

1. 
   Justice in social relationships – appeal to fairness or justice in social relationships
   
2. 
   Rights as freedom of action – deal with a landowner’s claim that they have the right to use their property as they wish
   
3. 
   Rights as security – deal with a landowner’s claim that they have the right to have one’s property be protected from harm
   
4. 
   Value judgments – raises question of where to draw the line between one possessor’s right to use their property freely and another possessor’s right to security
   
1. 
   Social Utility: Deals with society as a whole
   
   1. 
      Promoting the general welfare by enacting appropriate incentives: appeal to goal of generating rules of law that promote socially desirable conduct and deter socially harmful conduct – two components:
      

1. 
   Assert that particular legal rules create specified incentives that encourage or discourage certain kinds of behavior and
   
2. 
   Evaluate that behavior by asserting that a particular rule is better than the alternatives either because it promotes socially desirable conduct (behavior that has greater social benefits than social costs) or because it discourages socially harmful conduct (an activity whose costs outweigh its benefits)
   

1. 
   Promoting Competition: social welfare is maximized when the government deregulates economic activity by freeing property owners to develop their property as they see fit (shielding property holders from liability encourages investment in socially beneficial economic activities)
   
2. 
   Protecting the security of investment: opposite of promoting competition, where it is said that no one will invest to develop property if the investment is not secure; the basis of the institution of property is to provide security for the justified expectations
   

1. 
   Development generally should be encouraged, but not to the extent that its harmful effects outweigh its benefits
   
2. 
   Land development benefits society, but it also may negatively affect neighboring property
   
3. 
   By bringing private costs in line with social costs, the rules can encourage activity whose social benefits outweigh its social costs and discourage activity whose total social costs outweigh its social benefits
   

1. 
   Balancing interests: assessing social utility arguments requires judgments about how people will actually respond to alternative legal rules
   
1. 
   Formal Realizability or Administrability: Rigid rules versus flexible standards
   
   1. 
      Predictability versus justice in the individual case: unlike rights and social utility arguments, formal considerations concern the manner in which rules are expressed and implemented.
      
   2. 
      Rules: legal rules are sometimes defined in a way that allows mechanical application
      

1. 
   Two major benefits of rules: restraint of official arbitrariness and certainty
   
2. 
   Disadvantages include requiring particular results, even if the results seem unfair under the circumstances.
   

1. 
   Standards: in contrast to rigid rules, legal doctrines are sometimes flexible and such doctrines take the form of standards or principles, other times standards take the form of lists of “factors” that are to be considered in adjudicating a case.
   

1. 
   These have the benefit of obtaining justice in the individual case by allowing the decision maker to take account of all relevant circumstances
   
2. 
   May offer less predictability, however over time as their application is elaborated through case law, standards can become more predictable
   

Page County Appliance Center, Inc. v. Honeywell, Inc., Iowa (1984)

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  Facts: Defendant placed computer, manufactured by Honeywell, with its travel agency and leaking radiation interfered with display television pictures at a nearby appliance store. Honeywell declined to manufacture non-radiation-emitting computer because it was neither cost nor consumer effective.
  
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  Rule: Serious harms may be privileged if plaintiff demonstrates an “unusually sensitive” use of the premises; wrong to regulate defendant’s generally inoffensive activity
  
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  Rule: Reasonableness is a function of (1) priority of location, (2) character of neighborhood, (3) nature of alleged wrong
  
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  Holding: Reversed and remanded
  

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  Facts: Invasive roots of defendant’s tree damaged and displaced retaining wall between parties’ properties, displaced pavers on plaintiff’s patio, caused blockage of plaintiff’s sewage and water pipes, and impaired foundation of plaintiff’s house. Tree’s branches also deposit leaves and other debris onto plaintiff’s roof and rain gutters. Self-help proved ineffectual.
  
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  Rule: Living trees and plants are not ordinarily nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property
  
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  Holding: Adopts Hawaii approach with regards to “noxious” nature of plant and rules that equitable relief is not precluded even when a nuisance is found to exist
  

1. 
   Massachusetts Rule: landowner’s right to protect property from encroaching boughs and roots of a neighbor’s tree is limited to self-help
   
2. 
   Virginia Rule: intrusion of roots and branches from a neighbor’s plantings which are “not noxious in nature” and caused no “sensible injury” are not actionable at law, plaintiff limited to self-help
   
3. 
   Restatement Rule: obligation on owner to control vegetation encroaching on adjoining land if vegetation is “artificial” (planted or maintained by a person), but not if the encroaching vegetation is “natural”
   
4. 
   Hawaii Rule: living trees or plants not ordinarily nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property
   

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  Determine what INTERESTS are encompassed by the right to the use and enjoyment of land (freedom from pollution, noise, odors, and smoke)
  
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  How serious must the interference be for the nuisance to be present? Traditionally it must be SUBSTANTIAL
  
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  How do we determine whether the harm is UNREASONABLE?
  

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  Rights or fairness
  
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  Social utility (parties themselves) or welfare (society as a whole) analysis
  

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  Activity deemed nuisance
  

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  Defendant’s conduct is disfavored (e.g. spite fences)
  
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  Activity is one owners should not have to bear without compensation
  

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  Activity not deemed nuisance
  

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  Regulating activity goes too far in limiting freedom or causes unfair surprise (e.g. unusually sensitive plaintiff)
  
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  Harmful activity established first (“coming to the nuisance”)
  

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  In evaluating the gravity of harm the courts look at:
  

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  The extent and character of the harm involved
  
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  The social value that the law attaches to the type of use or enjoyment invaded
  
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  The suitability of the particular use or enjoyment invaded to the character of the locality
  
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  The burden on the person harmed of avoiding the harm
  

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  In evaluating the utility of the conduct the courts look at:
  

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  The social value that the law attaches to the primary purpose of the conduct
  
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  The suitability of the conduct to the character of the locality and
  
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  The impracticability of preventing or avoiding the invasion
  

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  On the social utility side, courts will consider:
  

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  The character of the harm
  
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  Distributive considerations: fair to make an individual owner bear the costs of D’s socially beneficial activity or should those costs be spread around to the owner causing the damage?
  
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  Fault: Is one of the owners engaged in a disfavored activity? Is the conduct appropriate for the area? Did P come to the nuisance?
  

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  On the welfare side, courts will consider:
  

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  Costs and benefits
  
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  Incentives
  
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  Lowest cost avoider: Which party can more cheaply avoid the cost? Should this party also bear the burden of paying the cost?
  

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  Traditionally limited to claims only by public officials
  
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  Trend is to allow any private citizen affected by nuisance to bring a lawsuit
  

Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc., Fla. Dist. Ct. App. (1959)

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  Facts: Defendant plans a 14-story addition that will cast a shadow over the cabana and swimming pool areas of the adjoining hotel, which was built a year before the defendant hotel.
  
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  Rule: Property owner may put his own property to any reasonable and lawful use, as long as he does not deprive adjoining landowner of any right of enjoyment of his property recognized and protected by law
  
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  Rule: In the absence of some contractual or statutory obligation, there is no common law right to free flow of light and air across the adjoining land of one’s neighbor
  
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  Holding: Reversed; plaintiff establishes no legally recognized cause of action
  

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  Facts: Plaintiff’s home was first built in subdivision and he seeks to restrict neighbor’s home construction plans to guarantee access to sunlight across adjoining party to prevent reduction in efficiency of his solar-powered heating system
  
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  Rule: Common law rules adapt to changing social values and conditions
  
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  Rule: Reasonable use nuisance doctrine is applicable to light across adjoining property
  
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  Dissent: Landowner’s right to use of property within limits of ordinances, statutes, and restrictions of record here such use is necessary to serve legitimate needs is a fundamental precept of a free society; policy decisions best left to legislature
  

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  Exception is enjoinment of “spite fences” erected for sole purpose of harming neighbor
  

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  Affirmative easement: right to do something on someone else’s property
  
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  Negative easement: right to prevent someone else from using their own property in a certain way
  

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  Lateral support: support for neighboring land consisting of land along the side of the neighbor’s subsurface, holding it up; land must be sufficiently strong in its natural state to support weight of neighboring house (“servitude for lateral support of land”)
  
• 
  Subjacent support: support for the surface from underneath
  

Noone v. Price, W.Va. (1982)

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  Facts: Plaintiff’s home begins slipping down mountainside due to deterioration of defendant’s retaining wall below.
  
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  Rule: No obligation to support added weight of buildings or other structures that land cannot naturally support
  
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  Rule: Owner of land may be unreasonable in withdrawing lateral support needed by neighbor for artificial conditions (i.e. buildings) on neighbor’s land in: (1) making unnecessary excavation causing neighbor’s land to subside, and (2) negligence in failing to provide against risk of harm to neighbor’s structures (regardless of whether actor fails to realize risk or realizes substantial risk and fails to take precautions themselves or allow neighbor opportunity to take precautions)
  
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  Holding: Summary judgment reversed; plaintiffs entitled to prove that disrepair of retaining wall would have led to subsidence of their land in its natural condition
  

• 
  Modern approach (Noone) imposes consequential damages for harm to both land and buildings if caused by removal of lateral support for land
  

• 
  Obligations “runs with the land” and is binding on subsequent owners
  
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  In absence of statute, owner is not obligated to keep it strong enough to support added weight of neighbor’s building(s)
  
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  Defendant does have duty to act non-negligently in withdrawing support, by notifying plaintiff of any changes so plaintiff may take steps to support own structure
  

B. SUBJACENT SUPPORT

Friendswood Development Co. v. Smith-Southwest Industries, Inc., Tex. (1978)

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  Facts: Plaintiffs allege defendant Exxon contributed to severe subsidence of land by continuing withdrawals of vast quantities of underground water from wells on defendant’s nearby lands.
  
• 
  Rule: If landowner’s manner of withdrawing groundwater from land is negligent, willfully wasteful, or for purpose of malicious injury, and conduct is proximate cause of land subsidence, he will be liable
  
• 
  Holding: Defendant liable
  

• 
  Exception is when ownership of minerals beneath surface is separated from surface ownership – in absence of agreement to contrary, owner of surface has absolute right to not have subjacent support undermined by owner of mineral estate