An Intro to Nuisance

Adapted from Jeremy Sheff, “Estates and Future Interests” in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., Open Source Property: A Free Casebook, https://opensourceproperty.org (2015).

There is perhaps no more impenetrable jungle in the entire law than that regarding the word nuisance.

– Prosser and Keeton on Torts 86 (5th ed. 1984).

People want to use land for different things. We’ve already seen how the resulting conflicts provide a rationale for property rights. In the so-called tragedy of the commons, for example, each cattle owner has an incentive to use the pasture for grazing before someone else beats him or her to it. The race to consume leaves the pasture depleted and everyone worse off. Property rights are one, but by no means the only, mechanism for addressing the problem, as an individual owner may have the necessary incentive to ensure that the plot is not overconsumed. Likewise property rights enable owners to manage their holdings free from external interference. The farmer may plant her corn even though her neighbor wishes a hotel were there. And property rights facilitate the reconciliation of incompatible interests without outside intervention. Determining whether Blackacre is better off as a hotel or a farm might be a hard call for an outside regulator. But with enough money, the would-be hotelier may simply buy out the farmer (or vice versa).

This hardly exhausts the universe of potential dispute. As we have already seen, disputes may emerge within property boundaries. One joint tenant may want to use a pond for irrigation; the other, fishing. Property law provides another set of management mechanisms for this kind of disagreement—e.g. partition actions—that we studied in our unit on concurrent interests. Likewise the law of leaseholds has its own set of doctrines for managing the inevitable battles of the landlord/tenant relationship.

Here we are interested in conflicts that arise between neighboring property owners. The collision is not within an ownership interest (as with cotenants) but between such interests. My lifelong dream of operating the world’s smokiest factory may be incompatible with my neighbor’s desire for odorless living. We each own our respective land. What then?

One solution is to engage in private governance. We might strike a deal, and the law of servitudes lets us bind our successors in ownership to the arrangement. Alternatively, the state might resolve our dispute via regulation—the government may declare my facility illegal via zoning law or air quality regulation, effectively picking a winner between competing interests.

The law of nuisance takes a different tack. It also involves picking a winner, but turns the choice over to a court. The court’s role, however, is not explicitly regulatory. Rather, it is there to determine whether the complained-of act is contrary to someone else’s property rights. Stated another way, if my factory is a nuisance, your property rights already preclude its operation. The nuisance action merely clarifies that I violated your property rights (and that my property rights did not include the right to use my land in the way I had). In essence, the court is determining whether a boundary has been crossed. But from another perspective, nuisance looks a lot like regulation. A judicial regulator (rather than a politically accountable agency) takes a look at the facts and decides whose interests ought to prevail. We might look at nuisance questions from either view, which complicates the doctrine.

The Problem of Nuisance Definition #

“A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” [Restatement (Second) of Torts]{.smallcaps} § 821D (1979). What does that mean? Nuisance law is a history of courts trying to come to grips with a fairly vague exhortation. Judges sometimes invoke the maxim sic utere tuo ut alienum non laedas. “[O]ne must so use his own rights as not to infringe upon the rights of another. The principle of sic utere precludes use of land so as to injure the property of another.” Cline v. Dunlora S., LLC, 726 S.E.2d 14, 17 (Va. 2012).

That’s intuitive, but unhelpful. Back to the factory versus the home. If my ownership of land includes the right to emit smoke, I interfere with my neighbor’s ability to enjoy her home. But if her property right includes the ability to shut me down, then her preferred property use interferes with my ability to use my property as I see fit. The harms are reciprocal. Appeals to sic utere beg the question. That said, there is something intuitively appealing about the maxim, and perhaps you have a strong intuition (based on what?) that factories “cause” harm in a way that homes do not. How far do intuitions of harm go? What if, instead of using my property, I prefer to let it fall into disuse? Does this passive act cause harm?