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
ii. unlikely that they used the R2d approach since the financial burden to the harmer was great compared to the harm to the plaintiff
iii. more likely that they used the threshold analysis
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
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
a. As soon as the defendant pays, the plaintiff loses the entitlement -- this can have huge distributional consequences
ii. But also uphold the granting of an injunction b/c it is a public nuisance
c. Court says that the law of nuisance is elastic and undertakes to decide what is fair and reasonable under the circumstances
d. Why must Del Webb pay?
i. Coming to a nuisance? See CB 984 note 2
a) a residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby
ii. when Spur opened the ranch, there was no indication that a city would pop up in the middle of the desert
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