Nuisance Easements

Week 8

What is a nuisance?

A non-trespassory interference with another's use and enjoyment of their land. It can arise from noise, odors, smoke, or similar disturbances.

What is the difference between a public and a private nuisance?

A private nuisance affects an individual or a small group’s enjoyment of land. A public nuisance affects the health, safety, or welfare of the public or a large number of people.

Who can bring a public nuisance claim?

Typically a public authority (district or city attorney). A private person may sue only if they suffer a special or unique injury beyond that of the public.

What are the requirements for a nuisance claim?

The interference must be both substantial and unreasonable. Substantial means more than minor annoyance; unreasonable means the harm outweighs the activity’s social utility.

Give an example of an unreasonable nuisance.

A neighbor detonating model cars for fun—low social utility, high interference with others’ enjoyment of property.

Give an example of a reasonable activity that is not a nuisance.

Fire trucks leaving a fire station are loud, but the social utility outweighs the noise harm.

How does nuisance differ from trespass?

Trespass is a physical invasion of property. Nuisance is a non-physical interference (noise, odor, fumes).

Can an action be both trespass and nuisance?

Yes. For example, throwing debris onto another’s property (trespass) while making excessive noise (nuisance).

Is damage required for trespass?

No. Any physical invasion is actionable even without damage, to prevent claims of adverse possession or prescriptive easement.

Is damage required for nuisance?

Yes. Plaintiff must show actual harm or interference with use and enjoyment.

What remedies are available for nuisance?

Courts can award money damages, injunctions, or permanent damages. Remedies balance harm and social utility.

What is lateral support?

The side support of land. Neighbors may not excavate in a way that causes adjoining land to subside or collapse.

What is subjacent support?

Support from below the surface. Removing subjacent support can make the surface collapse.

What is the liability standard for removing lateral support from unimproved land?

Strict liability — the neighbor is liable even without negligence if the land collapses.

What is the liability standard for removing lateral support from improved land?

Liable only if negligent, unless the land would have collapsed even without the improvements.

What is the rule for subjacent support when the land was unimproved at the time of excavation?

Strict liability — the excavator is liable if removing support causes the surface to collapse.

What if the landowner adds buildings after granting subjacent excavation rights?

Then the landowner must prove negligence by the excavator to recover damages.

What is an easement?

A non-possessory interest in another’s land giving the holder a right to use or restrict use of the land.

What is the difference between an affirmative and a negative easement?

Affirmative easement: right to use another’s land (e.g., right of way). Negative easement: restricts landowner’s use (e.g., blocking sunlight).

What are the four recognized types of negative easements?

1. Light 2. Air 3. Lateral and subjacent support 4. Flow of an artificial stream.

What is an easement appurtenant?

An easement that benefits a specific parcel of land (dominant estate). Example: right of way to a road from a neighboring parcel.

What is an easement in gross?

An easement that benefits a person or company, not a parcel of land. Example: utility easement for power lines.

How can easements be created by express grant?

In writing, where the owner grants another person a right to use the land (e.g., 'I grant B an easement for driveway access').

How can easements be created by express reservation?

When a landowner sells property but reserves for themselves an easement over the conveyed parcel.

What is an easement implied by preexisting use?

When land was once commonly owned, and before division, there was an apparent, continuous, and reasonably necessary use that continues after subdivision.

What is an easement implied by necessity?

Arises when a landowner subdivides property and a parcel becomes landlocked. Strict necessity is required for access.

What is an easement by prescription?

Created through open, notorious, continuous, and adverse use for the statutory period. No exclusivity requirement.

What is an easement by estoppel?

Arises when someone reasonably relies on permission to their detriment, such that the landowner is estopped from revoking the use.

What is a license?

A revocable privilege to enter land, not an interest in land. Example: invitation to a party.

When can a license become irrevocable?

When there has been detrimental reliance, or when it is coupled with an interest (e.g., lease for a sign).

What is a profit?

A non-possessory interest that allows the holder to take resources (minerals, crops, oil) from another’s land. Must be created in writing.

Devin is building a new home on his lot. Devin’s lot is adjacent to Eli’s property. Devin’s new home will include a finished basement. The basement requires that Devin excavate at least 20 feet below the surface of his land. As a result of the excavation, some of Eli’s property subsided. If Eli sues Devin, what will be the likely result?

It depends. If Eli’s land is undeveloped, Devin would be strictly liable for removing Eli’s lateral support. If Eli’s land is developed with structures, Eli could hold Devin liable only if Eli can prove that Devin acted negligently in excavating his property.

Owen has owned his home for many years. Owen’s home is near the location of a new metro line transportation station. The County officials building the metro line obtained Owen’s permission to tunnel 100 feet below Owen’s property to connect the station to an electrical conduit. The tunneling caused several cracks in Owen’s home. In addition, one of Owen’s windows will no longer shut due to one of the cracks. If Owen sues the County for damages, who will win?

Owen will win. Owen has owned his home for many years. This means that his home was in existence at the time the County obtained permission to tunnel underneath the property. When someone has permission to tunnel underneath a property, the owner of the surface can hold that party strictly liable for any interference with owner’s subjacent support if the property owner’s land was undeveloped and if the land was developed with buildings which existed at the time the right to tunnel underneath the land was granted.

Noah owns a large complex. Noah recently renovated the complex and decided to open a nightclub in one of the spaces in the building. In addition, to opening a nightclub, Noah rented another space in the complex to a cannabis retailer. A third space was rented to a 24-hour café which features donuts and desserts. When the nightclub opened, residents in the neighborhood surrounding the complex began to complain about noisy patrons returning to their cars late at night. Residents in the neighborhood have taken videos of patrons leaving the nightclub and then going to their cars to drink. Some of the patrons throw empty bottles into the street. Residents in the neighborhood have also reported that patrons of the nightclub have been urinating and throwing up on the sidewalks in front of their homes. Recently there has been a significant increase in vehicle accidents in the area around the nightclub. These incidents have been tied to patrons of the nightclub driving while intoxicated. Pam is one of the residents in the neighborhood. She is also the president of the local chapter of Mothers Against Drunk Driving. She has filed suit against Noah claiming that the nightclub is overserving patrons and creating a public nuisance by encouraging drunk driving. Will Pam be successful in her lawsuit?

No. In most jurisdictions, a lawsuit alleging a public nuisance must be brought by a public authority such as a district attorney or a city attorney. Even though Pam lives in the neighborhood which is most impacted by the nightclub and even though Pam is the head of an organization focusing on drunk driving, that does not give Pam the ability to assert a claim for public nuisance. Pam might be successful in her claim for a public nuisance if she can demonstrate that she suffered or suffers some unique harm as a result of the ongoing activity. Simply living in the affected area is not sufficient to show that Pam has suffered a particular harm that is different than the type of harm experienced by the general public.

Patrick owns a house next to a golf course. For many years, the golf course had a large wooden sign which spanned the border between Patrick’s property and the golf course. Several months ago, the sign was damaged in a windstorm and the golf course had to remove the sign due to the risk it would collapse. The golf course has applied for a permit from the city to install a new sign, but the city has a backlog of applications and it won’t be able to process the golf course’s sign permit application for at least six months. Ever since the sign on the golf course was removed, Patrick has found numerous golf balls in his backyard. On several occasions, stray golf balls have flown into Patrick’s backyard while Patrick has been entertaining guests. Patrick has filed suit against the golf course for nuisance. Who is likely to win Patrick’s nuisance lawsuit, Patrick or the golf course?

The golf course. Patrick has experienced repeated physical invasions of his real property. A nuisance is a substantial nonphysical interference with the use and enjoyment of the land of another. Although the members of the golf course are interfering with Patrick’s use and enjoyment of his property, the interference is physical in nature. For a physical intrusion onto his land, Patrick should be asserting a claim of trespass to land, not a claim for nuisance.

A court can order a plaintiff to pay the cost of relocating an activity in a nuisance case. True or False?

True. Although rare, in some cases a court can order the plaintiff to pay the defendant the cost of relocating its activity. In Del Webb v. Spur Industries, the Court concluded that the defendant’s feedlots were a nuisance because of the odors and pests the feedlots brought to the area. However, because the plaintiff had started developing homes nearby the feedlots, the plaintiff wasn’t blameless in precipitating the conflict between different land uses. The Court concluded that Del Webb was entitled to an injunction to stop Spur Industries from continuing the nuisance, but Del Webb was obligated to pay the cost of relocating Spur Industries to another location.