CHAPTER 13

RIGHTS INCIDENT TO LAND

Introductory note:  In this chapter, we consider several rights which one holds by virtue of being a landowner: (1) the right not to have one’s use and enjoyment of the land unreasonably interfered with (nuisance); (2) the right to have lateral and subjacent support for one’s property; (3) the right to control “diffused surface water”(drainage); (4) the right to water flowing through or near one’s property; and (5) the right to the air space above one’s property.

I. NUISANCE

A.  Nuisance generally:  The subject of nuisance is usually covered more closely in the course on Torts. See Emanuel on Torts. Therefore, we examine it here only in a cursory fashion.

1.  Public vs. private nuisance: The term “nuisance” is used to cover two quite different types of harms, one called “public” nuisance and the other usually called “private” nuisance. Public nuisance is an interference with a right common to the general public. Our primary interest here is in private nuisance, i.e., an interference with a private landowner’s use and enjoyment of his land.

2.  Distinguished from trespass:  Whereas trespass is an interference with the plaintiff’s right to exclusive possession of his property, nuisance is an interference with his right to use and enjoy it.

B.  Interference with use: The interference with the plaintiff’s use and enjoyment must be substantial.

1.  Inconvenience:  If the plaintiff is personally injured, or his property is physically damaged, the interference will always be“substantial.” But if the plaintiff’s damage consists in his being inconvenienced or subjected to unpleasant smells, noises, etc., this will be substantial damage only if a person in the community of normal sensitivity would be seriously bothered.

C.  Defendant’s conduct: There is no general rule of“strict liability” in nuisance. In other words, the plaintiff must show that the defendant’s conduct was negligent, intentional, or abnormally dangerous.

1.  Intentional:  Most nuisance claims arise out of conduct by the defendant that can be called“intentional”. This does not mean that the defendant has desired to interfere with the plaintiff’s use and enjoyment of his land, but simply that he knows with substantial certainty that such interference will occur. For instance, a factory owner whose plant spews pollutants and smoke into the air over plaintiff’s property will be held to have intended this interference, at least if the plaintiff can show that he put the defendant on notice of what was happening by making a complaint.