Property Law Developments—Joseph William Singer

The Tenth Circuit is allowing a nuisance claim to proceed against a nuclear power plant, finding it not to be preempted by the Price-Anderson Act, 42 U.S.C. §2014, a federal regulatory statute. Cook v. Rockwell Intl Corp., 2015 WL 3853593 (10th Cir. 2015). Property owners claimed damage from the nuclear weapons manufacturing plant causes by releases of plutonium and other hazardous substances from the plant.

The city of Irwindale in the Los Angeles area brought suit to shut down a plant that manufacturers hot sauce made from sriracha chilis.  Neighbors complained that the hot sauce manufacturer  caused them great discomfort from the odors of the plant, that they suffered from headaches, and that the plant made their eyes water and their throats burn. read article  On the other hand some residents suffered no ill effects while others found the effects fleeting and inconsistent. The state superior court judge must have believed the complaints because he issued an injunction ordering the plant to cease the operations that were causing the offensive odors.read article The court did not order the plant closed, just to act to mitigate the problems it was causing.

In Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2012), the court enforced the state right to farm act to prevent a homeowner from suing a neighboring cattle farm for creating a nuisance. The home owner tried to get around the right to farm statute by arguing that the farm was established after the house had been present. But the court focused on the fact that the the tenant had moved out of the house before the farm was established and that only after the farm was in operation did the home owner demolish the house, build a new one, and move in. The court found that the plaintiff had come to the nuisance despite the fact that a house had been on the property before the farm was established and that the purpose of the right to farm law was to codify the “coming to the nuisance” defense to any nuisance claim.

The Supreme Court of Minnesota held that pesticide drift from one property to another is governed by nuisance law and not trespass law even though it constitutes a physical invasion of particles. Johnson v. Paynesville Farmers Union Cooperative Oil Co., 817 N.W.2d 693 (Minn. 2012). The court held that trespass law protects only the interest in possession while nuisance law protects use and enjoyment, making nuisance the appropriate standard to regulate the problem. Trespass law does not require any proof of harm and the court felt that applying it in this context would require a narrowing principle it was not willing to create.

The Maryland Court of Appeals ruled in Exxon Mobil Corp. v. Albright, 67 A.3d 1061 (Md. 2013) that property owners near a gas station where 26,000 gallons of gasoline spilled from an underground tank could not sue for nuisance when their wells have not yet been contaminated. The neighbors were not allowed to sue for emotional damages, for reduction of the fair market value of their property or for future costs of medical monitoring. Most courts reach the same result although a few courts have allowed damages in such cases for nearby properties when the reduction in fair market value is substantial.

A Massachusetts trial court has banned a gun club from allowing pistols and rifles to be fired on its premises in the face of evidence that stray bullets have entered neighboring properties. Read article Justice Charles Hely converted a three-year-old temporary restraining order into a permanent injunction and ordered payment of a total $22,000 in damages to be paid to several neighbors who lived within a half-mile radius of the club. One plaintiff narrowly escaped being hit by a bullet that entered her laundry room shortly after she left it. The club had also been shut down for failure to obtain necessary permits.

When banks foreclose on property and then purchase the property at the foreclosure sale, they become the new owners of the property. They would like to resell the property as soon as possible. But in a recession, that is not always possible and when banks retain title to those foreclosed properties, they are subject to local law regulations to maintain the property and ensure that it does not become dilapidated. But many banks have been failing in that regard. They are in the business of financing the sale of property not in managing it. That has prompted the City of Boston to impose more than $80,000 in fines on Wells Fargo & Co and Bank of America for allowing many vacant properties in their possession ‘to fall into disrepair and blight neighborhoods.” Megan Woolhouse, Banks high on list of delinquent property owners, Boston Globe, Apr. 15, 2011.

Bank officials deny they own some of the properties, sometimes on the ground that they are merely the loan servicer or the trustee for securitized mortgages. This illustrates a problem with the securitization process and the practice of not recording the name of the bank that actually “owns” the mortgage. The city is using public records to contact the owner of record; if that institution is not the one who is the real owner, the fault lies not in the city but the failure of the banks to follow the requirements of the state recording laws which are designed to allow public identification of those with property interests in each parcel of real estate in the city.

In Young v. Ledford, 37 So. 3d 832 (Ala. Ct. Civ. App. 2009), an Alabama court held that an owner could not remove the half of a tree that sat on his property without killing it and that the owner could not destroy the entire tree without the neighbor’s consent. The landowner claimed that the tree was dangerous and might fall on the owner’s house and the court noted that it is possible an exception might be granted in such cases of boundary trees when they constitute a nuisance.

A federal court in California refused to allow the Native Village of Kivalina to sue 24 energy and utility companies for causing global warming and causing environmental changes that may well require the entire village to relocate. The court held, in Native Village of Kivalina v. Exxon Mobil Corp., 2009 WL 3326113 (N.D. Cal. 2009), that the question was nonjusticiable because it was impossible to prove causation.

However, both the Second and Fifth Circuits have recently allowed cases to proceed which claim that defendants contributed to global warming and thus caused a public nuisance and/or violated the plaintiffs’ property rights protected by a variety of doctrines, including trespass, negligence, and private nuisance. See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. 2009); Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009).

The Planning Board in Bourne, Massachusetts rejected an application from a home owner to install a 132-foot tall windmill in her back yard that would have generated enough electricity to power her home. Some people in other towns, including Vineyard Haven, Mass. have succeeded to getting permission to install these devices. read article

Another time a cloth-weaver came to live in a house next to Sandro [Boticcelli’s], and erected no fewer than eight looms, which, when at work, not only deafened poor Sandro with the noise of the treadles and the movement of the frames, but shook his whole house, the walls of which were no stronger than they should be, so that what with the one thing and the other he could not work or even stay home. Time after time he besought his neighbor to put an end to this annoyance, but the other said that he both would and could do what he pleased in his own house; whereupon Sandro, in disdain, balanced on the top of his own wall, which was higher than his neighbor’s and not very strong, an enormous stone, more than enough to fill a wagon, which threatened to fall at the slightest shaking of the wall and to shatter the roof, ceilings, webs, and looms of his neighbor, who, terrified by this danger, ran to Sandro, but was answered in his very own words—namely, that he both could and would do whatever he pleased in his own house. Nor could he get any other answer out of him, so that he was forced to come to a reasonable agreement and to be a good neighbor to Sandro.

Giorgio Vasari, The Lives of the Most Excellent Painters, Sculptors, and Architects 192-192 (Gaston du C. de Vere, trans.) (2006).