Interference with Property: Trespass and Nuisance

Question 1

What are the basic elements of trespass? (Feldman)

Answer 1

Act, entry, intent, and wrong

Question 2

Does a trespasser need to intend the wrong? (Feldman)

Answer 2

No. (Southern Counties)

Question 3

Does the trespasser need to intend or do harm?

Answer 3

No. (Southern Counties, Longnecker)

Question 4

What is the restatement definition of trespass? (Feldman)

Answer 4

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally:
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove

Question 5

What is nuisance? (Feldman)

Answer 5

Nuisance is a substantial and unreasonable interference with someone’s use and enjoyment of their land.

Question 6

What are the basic elements of nuisance? (Feldman)

Answer 6

The basic elements are (a) intent (per Garratt v. Dailey)
and (b) unreasonableness.

Question 7

What is the formula for determining nuisance? (Feldman)

Answer 7

It is the hand formula but reduces to a BL analysis
because Probability=100% so P drops out.

Question 8

When is the conduct reasonable in a nuisance case? (Feldman)

Answer 8

If B>L then the conduct is reasonable.

Question 9

When is the conduct unreasonable in a nuisance case? (Feldman)

Answer 9

If B<L then the conduct is unreasonable.

Question 10

What is primary criticism in nuisance? (Feldman)

Answer 10

Primary criticism, which is addressed by injunction, where the primary conduct was unreasonable or otherwise wrongful so the actor must act
differently.

Question 11

What kind of liability does primary criticism of nuisance generate? (Feldman)

Answer 11

Fault-based liability – similar to negligence.

Question 12

What is the rationale behind primary criticism of nuisance? (Feldman)

Answer 12

Rationale for injunction is actor’s conduct is unreasonable in that it does more harm than
good.

Question 13

What is secondary criticism in nuisance? (Feldman)

Answer 13

Where the conduct is reasonable and not otherwise wrongful but the actor’s secondary conduct – failure to make payment for harm – is unreasonable.

Question 14

What kind of liability does secondary criticism of nuisance generate? (Feldman)

Answer 14

Strict liability – activity-based rather than fault-based – similar to abnormally dangerous activity.

Question 15

What is the rationale behind secondary criticism of nuisance? (Feldman)

Answer 15

Rationale for awarding damages is risk-spreading, fairness, accident avoidance.

Question 16

When is an intentional invasion of another’s interest in the use and enjoyment of land unreasonable? (Feldman)

Answer 16

(a) the gravity of the harm outweighs the utility of the actor’s conduct, or
(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.