1. introduction: the power of legislature to allocate wealth

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Purpose of activity: exception exists when government determines an activity is good and needs to take place in certain areas, or is very strong for local economy.

  • Policy difference: maybe just judges with different value systems

  • Independent variable: whether people are actually harmed, not just fears about a potential future harm.

  • Level of Guilt – did you “come to the nuisance” (Dell Webb)

    The Coase Theorem

      • Theorem stating that market forces will dictate that the use of property will be its most efficient use regardless of the law

      • Tells judges to ignore issues of efficiency = doesn’t want judges to worry about what is most economically efficient thing because economy can take care of itself

      • Judges are to ignore considerations of economy and social utility unless someone can identify costs that will prevent the economy from taking care of itself

      • Commentators use this theorem to argue that the courts should allow market to determine use of property and should not interfere through nuisance decisions

      • Efficiency argument = if nuisance is in industrial part of country and nuisance helps business, courts may be reluctant to enjoin nuisance (Rose v. Socony-Vacuum Corp.)

      • Way to think about the efficient result is to ask what a single person seeking to maximize their house would do if confronted with the question

      • Instead of focusing on efficiency, judges could be interested in doing justice (Nelson)

      • Conservative positions (those who are adherents to the free market and against redistribution of wealth) on the use of the coase theorem:

    1. Argue that free market will take care of itself and judges shouldn’t interfere. When actors make money acting in the free market judges shouldn’t redistribute.

    2. When there are transaction costs, judges should attempt to achieve the result that the market would achieve and let profits go to those who’d normally get them

      • Liberal (those who are concerned about more egalitarian distribution of wealth:

    1. Argue we should let the market take care of itself and take the money the market produces and redistribute it to underdogs

    2. If there are transaction costs judges should do what the market would do without those costs then try and distribute the money


    • Rose v. Socony-Vacuum Corp. (1934) – Rose is a farmer whose water is contaminated by oil refinery. Court says Rose has no remedy.

            • Policy decision = favours oil over other use, unavoidable accident of growth of population/industry such that individual rights have to be surrendered for the benefit of the community as it develops and expands.

    • Stevens v. Rockport Granite Co. (1914) – where granite quarry and residential homes have long co-existed court limits quarry's operation of machinery, since the quarry can't suddenly change character of the neighborhood by introducing noisy machines

            • Must continue using land the way it has been used, or has to pay damages

            • in order for a noise to amount to nuisance, it must be harmful to health or comfort of ordinary persons -- reasonable man standard

            • granting injunction depends on whether remedy by damages will be adequate

    • Powell v. Taylor (1954) – Home owner in what seems to be a residential neighbourhood wants to convert house into a funeral home

            • most courts will hold opening of new funeral home to be nuisance, due to decline in property value and emotional discomfort

            • About justice = people moved into neighborhood with reasonable expectation it would remain a certain way and court wants to honor that

    • Nicholson v. Connecticut Half-Way House, Inc. (1966) – Property owner wants to convert house into half-way house for people released on parole. Court holds that the property owner’s proposed use as a half-way house is reasonable, and no specific evidence that property values will go down or that there will be harm

            • fears of neighbors based purely on speculation can’t justify injunction

    • Alevizos v. Metropolitan Airports Commission (1974) – Residents of neighbourhood near airport bring nuisance claim because of noise of jets. Court says that landowners have right to compensation if the noise from the airport caused a decrease in the market value of their property

            • Differences in cases = both the funeral home and the airlines are profit making, whereas the half-way house was not

    • Boomer v. Atlantic Cement Co. (1970) – Cement company found to be a nuisance. But economic value of company greater than the nuisance caused to neighbors. Company can stay but neighbors get compensation for having to live with nuisance

            • Court takes economic issues into account when determining a just outcome

    • Pendoley v. Ferreira (1963) – Piggery was established for years but town expanded and neighbors got closer  stench, flies and health risk = nuisance. Piggery has to close down and gets no compensation.

            • Why no compensation? Development just happened and there was no one person who created the situation (unlike Dell Webb), pig farmers can sell their land to a developer for a huge profit

    • Spur Industries, Inc. v. Del E. Webb Development Co. (1972) – Webb bought land near cattle feed company and built housing development. Dell sought to get the cattle company enjoined as nuisance because of smell. Court said that since Dell voluntarily “came to the nuisance” since it existed before he was not completely innocent and Dell was responsible for paying costs of moving etc.

    C. Easements

    Directory: sites -> default -> files -> upload documents
    upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
    upload documents -> Federalism – The Structure of Government
    upload documents -> General Info About Property law
    upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
    upload documents -> Property with Professor Vicki Been
    upload documents -> Property Outline – Professor Upham, Spring 2000
    upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
    upload documents -> Complex federal investigations
    upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
    upload documents -> Pricing v. Sanctions

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