Law of Neighbors

Easement

An easement is a conveyance of a right to use property rather than possess it

Easement by prescription

Analogize w/ Adverse Possession--state statutes set a SOL required for a prescriptive easement Easement by prescription: Through long continued interrupted use. Too much time has gone by and it's too late to assert the owner's normal rights Note: Doesn't have to be exclusive (difference from adverse possession) Must show • Use • That it is open and notorious • Continuous for the statutory period • Hostile; in a manner, inconsistent with the owner's ownership.

Counterargument to coming to the nuisance

Argument Against Coming to the Nuisance: You were good in your day, but your time has passed, You are standing in the way of higher value uses. Coming to the nuisance argument will beat 1 individual but not a bunch of ppl moving against you.

Tulk v. Moxhay

Attempted to convey land w/o the covenant--> NO NO Rule of law: One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant. --This Shows us the Equity side. Facts: ∆ knew of the covenant. Privity is not an issue here, but it would be unfair to let someone who know about the promises that were made to completely disregard and break the contract. The defendant says there is no privity because the promise was not between you and I. Holding: Injunction granted in favor of Tulk. If there is a restriction on the conveyance, it is like an encumbrance. If this was a FSA, you would've been protected as a good faith purchaser. There were limitations on the land by your successors. Yes by law, there is no privity so you're not bound. But here in equity, you knew about the limitation and ignored it.

Madison v. Ducktown Sulphur

Balancing in equities --Defendant owned copper mines and plaintiff owned farms in nearby mountains. The smoke from mines destroyed plaintiff's crops. --The law must make the best arrangement it can between the contending parties, with a view to preserving to each one the largest measure of liberty possible under the circumstances.

Easement by grant

By express grant: I hereby grant/convey black acre and the right to go back and forth across the road on my lot Reasonable use As needed By reservation: I hereby grant black acre, reserving the use of the road

Bamford v. Turnley

COMING TO THE NUISANCE Plaintiff claimed that the defendant, his neighbor, was committing a nuisance by using his hand to make bricks. Take away: a defendant who causes a nuisance to a plaintiff through use of his or her property may lawfully continue his actions if they are for public benefit, but must compensate the plaintiff if for any intrusion into the plaintiffs use of his or her land. Holding: no nuisance because it was reasonable. Yes, there was damage, but the jury was instructed on just reasonableness so verdict for defendant. --What is reasonable? Everything—who what when where --Bramwell: we have to do better. It cannot just be what you think of the circumstances of the case. there is a prima facia case that has at least been satisfied here. If they did this on purpose to annoy, it would have been a prima facia nuisance case. Sic Utere Tuo Ut Alienum Non Laedas --Use your thing in such a way that you don't hurt the other fellow's thing. Except a common n ordinary use.

Nuisance

Courts haven't agreed on a formal definition of nuisance Interference must be substantial and unreasonable with the other person's use or enjoyment If an act of nuisance is intentional, you are liable unless you come up with some sort of justification

Rue v. Cheyenne Homes

Covenant and equitable servitude and encumbrance are same thing Rue (who is a real estate developer) wants to move Spanish house into subdivision full of non-Spanish style homes. Covenants: single family, minimum dollar value for home, Height limits on house, submit house plans to architectural review-committee. Suppose this is a municipal ordinance by the Sentential Design Committee. Could they stop Rue? No, = constitutionality but some municipalities away with it Privately owned neighborhood can do this Conflict b/t right to do what you want with your property and public benefit argument

Nahrstedt (Cat Case)

Covenant on common interest development, no cats/dogs are allowed. Association says that she came to our development attracted by the beauty and uniformity. The cat rule was an existing part of the basic regulation and the lady had notice. Trial court found for the Apartment Association. Under Cal civil code, rule has to be reasonable. Lady contends that it is unreasonable to believe that the cat would interfere with the peaceful and "quiet enjoyment" apartment complex. "Quiet enjoyment" phrase originally meant not being disposed so court is misusing it Just because it is private does not mean anything goes, so the word "reasonable" (weighing benefits against burdens) is included in the statute to create a modest constitutional limitation Argument in favor of Association: 1) Courts favor and enforce private restrictions because people opt in to them when they move in. Allowing one person to slip through would upset the stability. Prof. would also tell court that "She had notice". 2) Court must determine in the "individual case". Argument can be made that this is impractical. Association would have to have massive intelligence gathering and they would have to investigate cat by cat. This would cost a lot of money and the expenses would be passed on to the home owners. Argument in favor of Catwoman 1) If other violations of the same rule are occurring and they aren't being pursued, Plaintiff may have a chance. But argument goes back before reasonableness is even considered by saying she had notice.

Neponsit Realty

Covenant to pay fee to Neponsit Realty Group's property association for community maintenance. --Bank doesn't want to pay fee to association because (Great Depression) they own lots of subdivision houses subject to similar covenants like this and people aren't paying them. The bank wanted to create a collusive suit to clarify the law on this matter. (Had the πs sue them) On the law side of how covenants work we see that you will have to show privity, touches and concerns the land and notice. Rule of Law: (1) A covenant contained in a deed requiring the payment of money touches and concerns the land if it substantially affects the rights of the parties as landowners. (2) Privity of estate will exist in substance if not in form between property owners and owner's association when the association acting as a medium through which enjoyment of a common right is preserved. Liberalization of common law rules: --Parties intended to bind successors (i.e. covenant should run with the land) --covenant is one touch or concerning the land in question (which is what this case is about) --must be privity of estate between parties relationship. Usually landlord or tenant and one has the power over the other (right of reversion) Holding: For the plaintiff, the judge liberalizes on touching or concerning standard and on the privity prong.

Dominant vs. subservient

Dominant tenements: who has or who would have the easement: the right to use something

Rodgers v. Elliott

EXTRASENSITIVE π The right to make a noise for a proper purpose must be measured in reference to the degree of annoyance which others may reasonably be required to submit to. The church bell and the sick man across the street—held for church Again, it's an objective standard

Holbrook

Easement by Estoppel must make a significant investment in property (an investment that cannot be undone) Right to revoke easement is precluded Examples of EBE: 1) When the Hollbrooks gave Taylors permission to build house the road was the only way they could get there. If a highway is built, easement of estoppel will be lifted. 2) In a case wherein a representation is made in error and the barn is built (in the wrong place), Holbrook cannot revoke permission IE estoppel (precluded from exercising right) Detrimental change in position =when something is done that cannot be undone.

Easement by estoppel

Easement by Estoppel: used when you can't get one through prescription because you had permission Equitable doctrine where one party relied on a representation about some situation by other party.

Easement by implication

Easement by Implication: from prior use. Implied; like contracts Usually out of necessity--no one would've conveyed this land w/o the easement

Negative easement

Gives person right to prevent something from occurring on servient property IE( Neighborhood and house height)

Ways to work it out

Horizontal (between neighbors) -Torts-->Nuisance -Easement-->property (sticks) -Covenants-->contracts Vertical (top-down) -Zoning

Horizontal and vertical privity

Horizontal: Between Blackacre owner and Whiteacre owner Vertical Blackacre Owner 1 --> Blackacre Owner 2

Measuring public benefit

Idea of externalities o Public Benefit (doesn't the public need bricks?).....IE railways letting off sparks and causing fires. We can't conclude there is a net public benefit. We are worried about externalities. Damages must be taken care of before we can determine public benefit. We want "bricks" if they are for a public benefit o Public benefit entails that the cost has to be covered so the nuisance causer will be liable. o If you are still coming out ahead after compensating for nuisance and internalizing costs, then you have a public benefit and you will have bricks and railroads. If compensating victims makes operation uneconomical then production did not have enough public benefit.

Malice

If interference is malicious, will cut off any remedy

Principal of reciprocity

It takes two to have a nuisance

Fountainbleau Hotel Corp. v. Fourty-Five Tenty Five Inc. (Fla 1959)

Malice b/t Plaintiff and Defendant Plaintiff has friends on city council pass a shadow ordinance. Court later said it would have been okay if the passage of the ordinance was not retaliatory. It was created "quick" and "dirty" and it was not valid Suit was brought when the building was already 8-stories high Common Law Nuisance Trumped by Ordiance Common law nuisance (touting substantial and unreasonable standards) was displaced by city ordinance granting permission Negative Easement (disguised as Easement by Implication) = gives person right to prevent something from occurring on servient property IE( Neighborhood and house height) Plaintiff argued that they have earned an implied negative easement for light= This doctrine will never be excepted= • No SOL for light • creates incentive for developers to build faster ((("this is better handled by regulation instead of nuisance easement doctrine)"))))))))))))))))))

Nuisance vs. Trespass

Nuisance: is the unreasonable and substantial interference with another person's use and enjoyment of their land. Use and enjoyment Incorporeal invasion Intentional conduct "Reasonableness" part of definition Trespass Exclusive pass Physical intrusion Strict liability "reasonableness irrelevant

Wolff v. Fallon (Cal 1955)

P wants residential property for commercial purposes D's don't' want commercial development to continue on that block. They fear a domino effect. P says highest and best use of this land will be to designate as part of Paloma . Plaintiff knew there was a restriction when she purchased the land "Court lost sight of the fact that ppl shouldn't be allowed to buy property restricted and sell it unrestricted. " Facts: These covenants were properly written out. If the covenants are enforceable, we get to this point because no one uses them. In the middle of a covenant, people abide by it because it is the middle of the neighborhood but once they go to the outskirts, they start fraying away. Π ones a corner lot. Fallon is the neighborhood who wants to keep all the buildings residential. Holding: in Wolff's favor. Kull: This should have never happened and should have come out as Tulk—he shouldn't have won

Amphitheaters v. Portland Meadows

POOR PLANNING --Drive in outdoor movie and a race track. The defendant installed hoods over the lights to reduce their tendency to spill over. Holding for the defendant. --Whether a particular annoyance or inconvenience is sufficient to constitute a nuisance depends upon its effect upon an ordinarily reasonable man, that is, a normal person of ordinary habits and sensibilities. --A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor doing something lawful on his property, if it is something which would not injure an ordinary trade or anything but an exceptionally delicate trade.

Boomer v. Atlantic Cement

Permanent damages --Defendant owned a cement plant. The plaintiffs were residents. --Overturned Whalen and said once there was payment of permanent damages, the injunction is inoperative

Externalities

Public Benefit (doesn't the public need bricks?).....IE railways letting off sparks and causing fires. We can't conclude there is a net public benefit. We are worried about externalities. Damages must be taken care of before we can determine public benefit. We want "bricks" if they are for a public benefit

Covenants

Requirements: 1. Promise must be written 2. There must be intent to have the covenant 3. Horizontal and vertical privity 4. Must touch and concern land 5. Notice (recorded notice is sufficient)

Brown v. Voss

Rule of Law: An easement appurtenant to an estate may not be extended to other adjoining estates. Often used by hold-outs to stop development Facts: Easement is misused if it is not used for the exact reason it was granted. --It is good for just B and not parcel C. Going to places not within the easement Is misuse. Easements are limited by their scope. • Holding: Reversed in favor of Brown. The court denied the injunction sought by the owners of the servient estate (A). Yes, it was a misuse but no injunction. Reasoning: There was no increased travel on easement, no increase in burden on servient, your just being spiteful, it was reasonable. JACQUES V STEENBERG IT IS MINE, I SHOULDVE HAD THE RIGHT TO EXCLUDE, THE LAW IS TURNING INTO WHATS REASONABLE AND NOT WHAT IS MINE.

Sanborn v. Mclean (Michigan 1925)

Sanborn v. Mclean (Michigan 1925) Nothing in defendant's deed saying that he cannot build a gas station. Court says there is an implied negative easement associated with the property. Most deeds today have a 2-way covenant included so that every house in the area is subject to the same restrictions. Defendant should have been placed on notice by the fact that no one else around him had commercial property. Def. should have made inquiry. Holding: Courts rely on fact that Mclean had notice of original deeds restrictions and saves community. Even if you don't know, you should've known. By implication, there is a reciprocal restriction on the developers and their successors. 1st step: Show the reciprocal restrictions—2nd step: Show they had notice. Notice is imputed knowledge and works as a substitute. --This problem is solved today with Zoning.

Christie v. Davey

Sauce for the goose --Davey-carpenter Christie—music teacher. What is sauce for the goose is sauce for the gander. Davey objected that Christie was not entitled to prevent him from making noise because he was playing instruments like the ones she was playing. --Holding: for the Christie because the noises Davey created were not of a legitimate kind. They were made deliberately and maliciously for the purpose of annoying Christie.

Unreasonableness

Section 8.26 of Second Restatement Unreasonable if Section 8.26(B) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others and would not make the continuation of the conduct not feasible If you can't internalize the cost of your activity, wouldn't you want to do it somewhere else? 8.26 makes it reasonable.

Easement by implication

Sometimes the law will imply that an easement was created based on the surrounding circumstances. An easement by implication may be created when: 1. A single parcel of land is divided into two or more parcels, with parcels going to different owners 2. The use underlying the easement must have existed before the division of the property and that use have been both apparent and continuous before the division;, and 3. The use must be reasonably necessary for the use and enjoyment of the parcel

Barger v. Barringer

Spite Fences Chief of police brought complaining against barringer for filthy stables, who then built an 8 foot fence to darken it. trial court found for Barringer and the supreme court reversed it.

Schwab v. Timmons

Suit for the use a road. Swab and McCormick are suing everyone South of them for use of a private road that goes through all of those properties. They want the right to go across the road—they want an easement. Holding: no easement by necessity because they landlocked themselves. Logical premise for implied easement: There has to be a pre-existing use and some relationship between the property conveyed and the property retained. [Plain English—prior use before the conveyance]. o To prove an easement by prescription they would need to show that there was a use of the road that was obviously meant for access to the land—but this was not true here They don't make this argument because the use had to be inconsistent with the rights of the true owner (not adverse or hostile) o Easement by necessity does not have to show prior use Problem is that the property was not land locked at the time it was conveyed, but they made it that way themselves—so no easement by prescription. • Rule of law: the owner of landlocked property cannot claimant easement by necessity or implication if the owner has conveyed a way public—road access.

Whalen v. Union Bag & Paper Co.

THE HUMBLEST SUITOR --Defendant operated a pulp mill. Plaintiff owned a farm down the stream. The mill discharged chemicals. Closed down the business --The fact that the appellant has expended a large sum of money in the construction of its plant, and that it conducts its business in a careful manner and without malice, can make no difference it its right to the stream.

Warsaw v. Chicago Metal Ceiling

Trucks backing up Plaintiff asks for easement many times. Defendant says No --Def could've granted permission temporarily --Def could've put up a sign indicating term of easement or lack thereof No easement by prescription because there is permission (just b/c easement not granted did not mean that truck drivers did not have permission) --Court granted overkill easement because Def. kept on building after suit was brought instead of waiting for things to get sorted out b the court system (unclean hands)

Nahrsted

• Rule of law: California law provides the common interest development use restrictions are enforceable unless unreasonable. • Facts: this case mixes equitable servitudes and covenants running with the land. This case boils down to unreasonableness—does the reasonableness standard apply to an individual or community as a whole. Kull thinks she had notice, this was like a recording act. • Framework matters! o Use restrictions or rules promulgated by governing body. Restrictions have presumptions of validity while rules made by governing bodies are subject to the reasonableness test. • Holding: Lakeside Village, we don't want to prove to you that your cats are obnoxious, we cannot do this case by case evaluating if a cat obnoxious or not. Too much litigation. We have this rule, if you don't like it, go live somewhere else. • Basic law stands: o Distinction between what is the ground rules that have a presumption of validity (CCR'S—covenants, conditions and restrictions) and rules set by the legislature or some governing body. (Home Owner Association). o Court's favor CCR's. Courts favor a presumption of validity with some exemption's, unless one of the rules is illegal or unconstitutional, or contrary to public policy.