Easement by Prescription

Private Nuisance

A private nuisance is any substantial and unreasonable interference with the use and enjoyment of property.

Trespass

A trespass is any physical occupation of real property without permission.

Intent

A trespass only occurs if the trespasser actually intended to occupy the land. The trespasser's knowledge about the ownership of the land is irrelevant. A mistaken belief that they had the right to enter the land is not a defense. In essence, trespass is a strict liability offense.

Right to Protect Easement

An easement holder has the right to protect their easement from interference, even from the landowner. This includes the dismantling of any barrier erected as an impediment to that easemen

Implied Easement by Prescription

Easements grant the dominant estate (or a party in limited circumstances) the right to use the subservient estate for limited purposes. An implied easement has no writing requirement. An easement by prescription functions similarly to adverse possession of a property, but only for a limited use. In order to establish that there is an easement by prescription, the seeker of the easement must demonstrate(1) continuous use of the subservient estate, (2) for a statutory period, (3) that was open and notorious, and (4) hostile. Unlike in adverse possession, there is no requirement that the easement holder have had exclusive use over the property, since the easement does not eliminate the property owners' rights entirely.

Just Compensation

Generally, the compensation must merely be equal to the full market value at the time of the taking, including the value of any improvements. Fair market value can be determined by appraisal or by the sale of comparative properties.

Remedy

Generally, the remedy for a private nuisance is an injunction. If the activity is essential to a community's economic health or otherwise of exceptional utility, money damages may be awarded instead.

Town's Suit

Government entities have the right to "take" property, providing that "just compensation" is provided. In order to take, the government must merely show that the taking is rationally related to a legitimate government purpose.Town is a government entity.

Legal Taking

If the taking was illegal, than M may be able to retake her property or receive additional damage. As above, a taking must be rationally related to a legitimate government purpose. Here, T took the property for the purpose of building a public park. Building a public park is a legitimate purpose. Additionally

Nuisance Substantial Interference

Interference is substantial if the interference would be annoying or offensive to an average person in the community

Action for Trespass

Len intentionally enters her land and retrieves her dog. Her damages/injury is the injury to her property right and her right to keep trespassers from her property. Len's conduct is the actual cause of her injury

Prescriptive Easement

Len will argue that he has an easement by prescription to enter Michelle's property and retrieve the dog from the patio. An easement is a nonpossessory right in land. Here, Len will argue that there is an easement appurtenant. His land is the dominant tenement, and Michelle's land is the servient tenement. He has a right to use the servient tenement within the scope of the easement.

Defenses: Privilege

Len will argue that his entrance onto the land was privileged because he was retrieving his property, the dog. However, when an animal is on another's property, the owner is not privileged to go and retrieve it himself without giving notice to the landowner. Entrance onto the land would only be privileged if he informed X that his dog was on her property and he intended to retrieve. She would then be compelled to allow him to retrieve it at a reasonable time and in a reasonable manner. The facts state that no such communications occurred. Therefore, Len's entrance onto land was not privileged.

Defenses: Laches

Len will probably assert the defense of laches and argue that too much time has passed for Michelle to assert this claim. He will argue that he installed the smokehouse 3 years ago, and this is the first time that she is alleging it is a nuisance. In response, Michelle will argue that she tried to live with it, but after three years, it was clear that the smokehouse would permanently deprive her of the use and enjoyment of her property. She will also bring up that she asked Len, multiple times, not to use the smokehouse, and tried to arrive at a compromise. Len, however, rejected her attempts to deal. Since she and Len were not able to resolve it privately, she is finally bringing suit. Len will probably not prevail on his defense of laches.

Private Neccessity

Private necessity exists when exigent circumstances cause the trespass. For example, docking a ship on a storm constitutes a private necessity, or swerving to avoid an obstacle on the road. Private necessity allows the avoidance of nominal damages and ejectment.

Private Necessity - Limitations (Actual Damages)

Private necessity fundamentally involves a balancing of the risk of not trespassing and harm inflicted by trespassing. The trespasser has the ultimate decision on the balance of these factors. As such, the trespasser is traditionally held responsible for any actual damages that occur as a result of the trespass.

Public Nuisance

Public Nuisance is any activity that interferes with the health or safety of the public at large.

Public Necessity

Public necessity exists when the trespass is necessary to prevent harm to the public at large. Unlike private necessity, the landowner cannot collect actual damages from public necessity.

Standing

Public nuisance has strict standing requirements. In order to collect under public nuisance, a private individual must demonstrate that they have suffered a harm that is different in kind than the general public. A harm different in degree is insufficient.

Unreasonable

The activity causing the nuisance must be unreasonable. This is a balancing test. If the utility of the activity outweighs its interference with the plaintiff's property rights, it is reasonable. Otherwise, it is unreasonable

Interference/Trespass

The activity must actually interfere with the use of land. Generally, this has been expressed as requiring that the activity have a trespass component. Interfering with access to light traditionally has not met this standard. However, the introduction of any particulate matter or sound waves on the plaintiff's property satisfies this requirement.

Claims for Fetching Dog

The elements of trespass are 1) intentional act, 2) entering the land of another, 3) causation, 4) damages. The interference with the property right is sufficient for damages.

Relocation Costs

The government may be liable for losses resulting from reliance on the assumption that there would be no taking. For example, the government may be required to compensate a party for the cost of recent improvements. However, the government is not responsible for other costs, such as the costs of finding a replacement property.

Substantial

The interference must be substantial. An interference is substantial if it would be offensive or annoying to an average member of the community. This is an objective standard - there is no requirement that the plaintiff actually be annoyed nor is there any special allowance if he or she is actually annoyed or offended.

Without Permission

The property owner must not have consented to the trespass, impliedly or expressly.

Statute of Limitations

The statute of limitations serves as an absolute bar to legal action. For most causes of action, the statute of limitations is one year from the time the cause of action arises. However, continuous actions can be recovered for any violation within the previous year.

Use and Enjoyment of Property

The substantial and unreasonable interference must directly interfere with the use of private property. Interfering with public spaces does not create a private nuisance.

Physical Presence

The trespasser must be physically present on the property.

Continuous Use

The use must have been continuous throughout the statutory period. It need not have been constant, but must have been reliable enough for the scope of the easement sought.

Open and Notorious

The use must have been such that an observant landowner would be aware of it. In essence, the landowner must have been put on inquiry notice of the use.

Hostile

The use must have been without the permission of the landowner. Otherwise, there is a freely revocable license.

Statutory Period

The use must have lasted the statutory period (usually 7-14 years).

Damages

There is no requirement of actual harm. Nominal damages are recoverable.

Takings

Under the 5th Amendment, the government is permitted to condemn private land for public use so long as it provides the landowner with just compensation. Just compensation is measured as fair market value at the time of condemnation.