Chapter 13
RIGHTS INCIDENT TO LAND
I. NUISANCE
A. Defined: A landowner may sue another person for "private nuisance." Private nuisance is an interference with a landowner’s use and enjoyment of his land.
1. Substantial interference: The interference with the plaintiff’s use and enjoyment must be substantial. Thus if P’s damage consists of his being inconvenienced or subjected to unpleasant smells, noises, etc., this will be "substantial" damage only if a person of normal sensitivity would be seriously bothered.
2. Defendant’s mental state: There is no rule of "strict liability" in nuisance. P must show that D’s conduct was negligent, intentional or abnormally dangerous.
a. Intentional: If P wants to show that D’s conduct was "intentional," P does not have to show that D desired to interfere with P’s use and enjoyment of his land. P merely has to show that D knew with substantial certainty that such interference would occur. (Example: D, a factory owner, knows that his plant is spewing pollutants and smoke into the air over P’s property. P can sue D for "intentional" nuisance so long as P can show that D was on notice of what was happening, even if D did not "desire" this result to occur.)
3. Unreasonableness: Even if D’s conduct is intentional, P will not win in nuisance unless he shows that D’s actions were "unreasonable." In determining what is reasonable, the nature of the neighborhood is likely to be quite significant. (Example: A steel mill located in an otherwise completely residential area is much more likely to be found an "unreasonable" interference than is a steel mill in the middle of an industrial park.)
B. Remedies: P has a chance at either or both of the following remedies:
1. Damages: If the harm has already occurred, P can recover compensatory damages.
2. Injunction: If P can show that damages would not be a sufficient remedy, he may be entitled to an injunction against continuation of the nuisance. To get an injunction, P must show that the harm to him actually outweighs the social utility of D’s conduct. (Example: D operates a large cement plant employing hundreds of people. The Ps sue D for nuisance because of dirt, smoke and vibrations, which interfere with their nearby property. A court might not issue an injunction even though nuisance occurred, because the harm to the Ps may be found not to outweigh the job-creation and other economic utility of D’s plant. But in that event, D would still have to pay money damages for the harm, no matter how socially useful D’s conduct.)
II. LATERAL AND SUBJACENT SUPPORT
A. Generally: Every landowner is entitled to have his land receive the necessary physical support from adjacent and underlying soil. The right to support from adjoining soil is called the right of "lateral" support. The right to support from underneath the surface is known as the right to "subjacent" support.
B. Lateral support: The right to lateral support is absolute. That is, once support has been withdrawn and injury occurs, the responsible person is liable even if he used utmost care in his operation. (Example: A and B are adjoining landowners. A very carefully constructs a large excavation extending almost to the edge of his property. This causes B’s soil to run into A’s excavation, impairing the surface of B’s property. B’s right to lateral support has been violated, and he may recover damages.)
1. Building: But the absolute right to lateral support exists only with respect to land in its natural state. If the owner has constructed a building, and the soil under the building subsides in part due to the adjacent owner’s acts, but also in part because of the weight of the building itself, the adjacent owner is not liable unless he has been negligent. (If P’s building is damaged, and he can show that his land would have been damaged even with no building on it, courts are split as to whether D is liable in the absence of negligence.)
C. Subjacent support: The right to subjacent support arises only where sub-surface rights (i.e., mineral rights) are severed from the surface rights. When such a severance has taken place, the owner of the surface interest has the right not to have the surface subside or otherwise be damaged by the carrying out of the mining.
1. Structures existing: The surface owner has the absolute right to support, not only of the unimproved land, but also support of all structures existing on the date when the severance took place.
III. WATER RIGHTS
A. Drainage: Courts are split as to the rights of an owner to drain surface water from his property onto the property of others. In general, courts seem to be moving to a rule that an owner may do this only if his conduct is "reasonable" under all the circumstances.
B. Streams and lakes: States are sharply split as to when and how a landowner may make use of waterfront streams and lakes that abut his property.
1. Common law approach: In all parts of the country except for about 17 western states, courts apply the common-law "riparian rights" theory. Under this theory, no advantage is gained by priority of use. Instead, each riparian owner is entitled to only so much of the water as he can put to beneficial use upon his land, with due regard for the equal rights of the other riparian owners, and without regard to how long the owner has been using the water. (Example: A and B each own property that abuts a river. A is upstream from B. Under the common-law "riparian rights" theory, A may make "reasonable use" of the water — for instance, to irrigate his crops — but reasonableness will be determined by reference to B’s reasonable needs as well as A’s. The fact that A has been using the river for a particular use longer than B, or vice versa, is irrelevant.)
a. Riparian only: Only riparian owners are entitled to make use of the water, under this doctrine. That is, the owner’s land must abut the stream or lake, at least in part. So one whose land is not contiguous with the water may not carry the water by pipe or ditch to his property.
2. Prior appropriation doctrine: Seventeen arid states (all west of the Mississippi) adopt a completely different theory, called the prior appropriation doctrine. In many of these states (e.g., California), an owner must apply for a permit to use the water; if the application is accepted by the government, the user’s priority dates from the time of the application.
a. Riparian ownership not required: Under the prior appropriation system, water may be appropriated by a non-riparian owner.
C. Ground water: In most American states, an owner may make only "reasonable use" of ground water drawn from under his property. For instance, he may generally use as much of the water as he wishes for applications on the parcel which sits on top of the pool, but he may not divert the water to other properties which he may own.
IV. AIR RIGHTS
A. Airplane flights:
1. Direct overflights: If an airport permits flights to occur directly over an owner’s property, and within the "immediate reaches" of his land, the landowner may sue in trespass. But flights beyond a certain height are not deemed to be in the "immediate reaches," so no trespass suit may be brought.
2. Adjacent areas: If flights occur at low altitude on property adjacent to P’s property, some states may permit him to bring a suit for nuisance if the flights are low enough, frequent enough and noisy enough to substantially interfere with his use and enjoyment of his land. Also, a court may let such an owner bring a suit in "inverse condemnation," to establish that the interference is so great that it amounts to a "taking" for which compensation must be given under the U.S. Constitution.
1. Tall buildings: An owner generally has the right to build as high a building as he wishes (assuming that it satisfies all applicable zoning requirements and building restrictions). Thus if two owners are adjacent to each other, one cannot object to the other’s tall building on the grounds, say, that it ruins the quality of radio and television signals.
2. Right to sunlight: Generally, a landowner has no right to sunlight. For instance, an owner almost never acquires an easement of "light and air" by implication or even by necessity. So if A and B are adjoining owners, B can, without liability, build in such a way that A’s sunlight is blocked. (But if A uses sunlight as a source of solar energy, it is possible that he might have a claim — perhaps in nuisance — against B for blocking that energy source by a tall building.)