i. if the harm cuased by the conduct is serious and the financial burden for compensating the victims would not drive the harming business out of business there is a nuisance -- but if compensation would drive the company out of business then there is no nuisance
D. Trespass compared?
1. CB 960
E. Lateral and subjacent support?
1. CB 962-963
F. Remedies for Nuisances
1. Estancias Dallas Corp v. Schultz -- CB 964
a. Analysis used by the court?
i. court granted the πs an injunction agains the ∆s use of the AC
iii. more likely that they used the threshold analysis
b. Balancing of the equities?
i. Court rules that b/c an injunction can be granted there must be a balancing of the equities
a) if the court finds that the injury to the complainant is slight in comparison to the injury caused to the defendant and the public by enjoining the nuisance, relief will ordinarily be refused
ii. if the injunction is denied the π can still obtain compensation
iii. problems with this?
a) it compares the general loss to the public while it only considers specific loss to the private land owner -- the specific money damage to his property notwithstanding he may be damaged in many general ways which cannot be translated into specific damages
iv. see Boomer below
c. Estancias injunction is protected by a property rule
i. π can stop ∆ from using the A/C and if ∆ wants to use it he will have to obtain π's permission
ii. π can sell his entitlement but the court cannot force the π to give it up
d. Is an injunctive more effective than damages in accomplishing the ends of fairness and efficiency?
i. parties can then bargain for the sale of the injunction and the efficient result will occur
c. court rules that it will grant an injunction unless the defendant pays the plaintiffs such permanent damages as may be fixed by the court --- does justice between the competing parties
d. Rule -- where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery
i. But isn't this Demsetz's problem? Especially where the judgment precludes future litigation by these parties or their grantees
a) sacraficing the future for the payment now?
e. plaintiffs are protected in this case only by a liability rule -- if defendant pays damages it can continue to operate its business
iii. CB 982 -- "it does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city int eh area, to indemnify those who are forced to leave as a result."
2. Why didn't the court just not find an injunction here?
i. it was a public rather than a private nuisance
ii. if the court found that there was no nuisance, there were probably too many people involved for the efficient result to occur because of transaction costs and the defendant may have chosen not to stop the activity anyway