• Nuisance Continued
• Spur Industries v. Del E. Webb
Development Co.
• Introduction to Private Land Use
Controls: the Law of Servitudes—
Easements
• Willard v. First Church of Christ,
Scientist
• Van Sandt v. Royster
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Spur Industries, Inc. v.
Del E. Webb Development Co.,
494 P.2d 700 (Ariz. 1972), Casebook, p. 656.
1. Can the feedlot be enjoined when it
becomes a nuisance because the
developer brought residences into the
area?
2. If the feedlot is enjoined, may the
developer be required to indemnify
the feedlot for its losses?
3. The citizens of Sun City?
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
1
Spur Industries, Inc. v.
Del E. Webb Development Co. Cont’d
1. Can the feedlot be enjoined when it
becomes a nuisance because the
developer brought residences into the
area?
•
Private – owners of land
•
Public – statute and special injury
Surprise, AZ
Sun City Grand
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Public Nuisance in Texas
Texas Health & Safety Code Ann., § 341. 011
(1) a condition or place that is a breeding
place for flies and that is in a populous area;
(7) a collection of water in which mosquitoes
are breeding in the limits of a municipality;
(9) a place or condition harboring rats in a
populous area; and
(10) the presence of ectoparasites [parasite
that lives on the exterior of its host], including
bedbugs, lice, and mites, suspected to be
disease carriers in a place in which sleeping
accommodations are offered to the public.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
2
Spur Industries, Inc. v.
Del E. Webb Development Co. Cont’d
2. If the feedlot is enjoined, may the
developer be required to indemnify the
feedlot for its losses?
•
Fairness
•
Efficiency
Surprise, AZ
•
Forseeability
•
Encroachment, “coming to the
nuisance,” and First in Time
•
Internalization
U N I V E R S I T Y of H O U S T O N
Sun City Grand
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Spur Industries, Inc. v.
Del E. Webb Development Co. Cont’d
3. What about the residents of Sun City?
•
Fairness
•
Efficiency
•
Forseeability
•
Encroachment, “coming to the
nuisance,” and First in Time
•
Internalization
Surprise, AZ
Sun City Grand
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
3
Spur Industries, Inc. v.
Del E. Webb Development Co. Cont’d
Right to Farm in Texas
Effect of Nuisance Actions and
Governmental Requirements on
Preexisting Agricultural Operations
Tex. Agric. Code Ann., Chapter 251
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Nuisance: Four Outcomes
• Polluter (P)
• Receptor/Neighbor (R)
• Entitlement/Property Right (E)
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
4
Nuisance: Four Outcomes
1. Use continues with no relief to R. P
has E, protected by a property rule,
and may keep it (and continue to
pollute) or sell it (and stop polluting).
(Right to Farm)
2. Use continues only if P pays
damages to R (Boomer). R’s E is
protected only by a liability rule and
may be involuntarily sold if P is willing
to pay for it.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Nuisance: Four Outcomes Cont’d
3. Use is enjoined (High Penn Oil &
Estancias). R has the E, protected by
a property rule, and may choose to
sell it and allow P to continue its use
or it may choose not to sell it and P
must cease.
4. Use is enjoined and R must pay P
damages (Spur). The P’s E is
protected only by a liability rule and
may be involuntarily sold if R is willing
to pay for it.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
5
Introduction to Private Land Use Controls:
the Law of Servitudes—Easements
• Tenements
• Servient - burdened land
• Dominant - benefited land
• Easements
• Appurtenant - serves the owner of
land in her use of that land
• In Gross - serves holder personally
without regard to ownership of land
• Quasi-Easements
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Easements Created By:
• Express writing
• Implication
• Prior Existing Use
• Necessity
• Prescription
• Estoppel
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
6
Willard v. First Church of Christ, Scientist,
498 P.2d 987 (Ca. 1972), Casebook, p. 672.
Creation of Easements
• May a grantor, in deeding real property
to one person, effectively reserve an
interest in the property to another (a
third party/“stranger to the title”)?
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Willard v. First Church of Christ Cont’d
Creation of Easements Cont’d
• Reservations: Conveyances
• Mistrust of conveyance by deed
• Revesting in grantor (regrant
from grantee back to grantor)
• Vesting in a third party
• Applicability today
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
7
Willard v. First Church of Christ Cont’d
Creation of Easements Cont’d
• Reservations: Contracts
• Intent of grantor
• Lower price (for remote grantee
too?)
• Reliance interest
• “subject to” & “is given”
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Willard v. First Church of Christ Cont’d
Appurtenant or In Gross?
• Intent to “run with the land”
• For the benefit of “the church”
• “Only so long as the property. . . is
used for church purposes”
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
8
Van Sandt v. Royster,
83 P.2d 698 (Kan. 1938), Casebook p. 682.
Tenth Street
Lot 19
Lot 20
Lot 4
+
+
+
1904 Bailey
to Jones, who
built house
and connected
to sewer
1904 Bailey
to Murphy,
who built
house and
connected
to sewer
Van Sandt
Royster
Highland
Avenue
City
Sewer
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Bailey’s
House
Lateral
sewer
constructed
in early 1904
by Bailey
Gray
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Van Sandt v. Royster Cont’d
Implied by Prior Existing Use
1. Is there an easement (quasieasement)?
2. Is Van Sandt a BFP without notice?
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
9
Van Sandt v. Royster Cont’d
Quasi-Easement
•
An easement is an interest in another’s
land so an owner cannot have an
easement in one’s own land (without a
legal fiction).
•
But if owner makes use of part of own land
to benefit another part of her land, then it
is a quasi-easement with a quasi-servient
tenement and a quasi-dominant tenement.
•
If owner conveys the quasi-dominant
tenement, the quasi-easement vests in
grantee if the quasi-easement is apparent,
continuous, and necessary. Copyright©2008 Marcilynn A. Burke
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
All rights reserved. Provided for student use only.
Van Sandt v. Royster Cont’d
Implied Reservations and Grants
• Reservation?
• Conveyance of quasi-servient
tenement
• Derogation of the plain words of the
conveyance.
• Invalid in England. Must be able to
trust the words of the deed.
• [Strict] Necessity required in the
U.S.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
10
Van Sandt v. Royster Cont’d
Implied Reservations and Grants
• Grant?
• Conveyance of quasi-dominant
tenement
• Adds an additional right
(“Lagniappe”)
• Based upon parties’ inferred
intentions as with any other contract
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Van Sandt v. Royster Cont’d
Role of Necessity
• Many courts at the time of the case said
the need for/degree of necessity was
the same for implied grants as for
implied reservations.
• But the majority of courts at the time
required strict necessity for a implied
reservation. Likely not still the majority
in the U.S. today.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
11
Van Sandt v. Royster Cont’d
Role of Necessity Cont’d
• Court says that whether is it a grant or
a reservation should be only one of
many factors taken into account.
• Restatement says the degree of
necessity should be greater to imply an
easement in favor of the grantor
(reservation) than in favor of the
grantee (grant).
• Texas requires strict necessity for
reservations.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Van Sandt v. Royster Cont’d
Van Sandt as BFP W/O Notice?
• Easement not in a written document.
• Plumbing was apparent?!?
Costs to Consider
• Moving the sewer.***
• Collecting money from other owners for
damages and repairs.
• Continuing friction with the neighbors.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
12
Van Sandt v. Royster Cont’d
Can Van Sandt Sue on Warranty Deed?
• Present Covenants
• Future Covenants
• Exception to the Warranty
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2008 Marcilynn A. Burke
All rights reserved. Provided for student use only.
13