What’s Sic Utere for the Goose: The Public Nature of the Right to Use and Enjoy Property Suggests a Utilitarian Approach to Nuisance Cases

Abstract

This essay addresses recurring issues that arise when two or more occupiers of real property would use their property in ways that conflict. The real property owner’s interest in using and enjoying property as the owner pleases is almost universally regarded as one of the important “sticks” in the bundle of property interests held by the real property owner. But this important interest in using and enjoying property frequently conflicts with the interests of other property owners to use and enjoy their property.

Because real property is useful, it has market value, and the relationship between the market value of land and its usefulness for one or more of these varied possible purposes is quite close. The market value of land will be greater if it is intrinsically more useful than other land. Market value has long been considered one aspect of the property owner’s use and enjoyment. Therefore, destroying potential future uses of land, which will inevitably negatively affect the market value of the land, is considered an interference with the owner’s interest in the land’s use and enjoyment – a nuisance.

Not all sticks in the property owner’s bundle of interests share this complication of potential conflict with neighboring uses. For example, one property owner’s right to exclusive possession of his property never conflicts with the same right of another property owner to the exclusive possession of a separate piece of property. Parties may disagree over who properly holds the right of possession, but once the proper holders of the right to exclusive possession of various tracts of land are identified, each property owner can exercise her right of exclusive possession to the fullest possible degree without ever conflicting with another property owner’s similar right of exclusive possession.

In this way, trespass is unlike nuisance. Trespass always can be avoided by each property owner exercising only her own right of possession. Therefore, a trespass always is actionable. The interest in exclusive possession of property is purely private. Nuisance is different – a property owner’s exercising her own interest in using and enjoying her property might unavoidably interfere with another property owner’s interest in using and enjoying his property, creating a nuisance. This is what is meant by the phrase “the public nature of the right to use and enjoy property” in the title of this essay – neighboring interests in the use and enjoyment of property are necessarily correlative, not absolute like the private right to exclusive possession. A property owner simply cannot possibly go about using and enjoying his property without that use and enjoyment implicating the similar interest of his neighbors. For this reason, nuisance is not as easily avoided as trespass, and, therefore, unlike trespass, not all interferences with the interest in using and enjoying property (nuisances) are actionable. Because courts often do not fully appreciate the implications of this aspect of the interest in using and enjoying property and its fundamental difference from other more absolute interests, such as the right to exclude, those courts often fail to apply a consistent approach to recurring nuisance issues. Even though the interest in use and enjoyment of property is not, like the trespass interest in exclusive possession, an absolute right that can always be exercised to the fullest possible extent without ever interfering with the interest of another, courts nevertheless frequently view nuisance cases as analogous to cases of trespass, with one property owner infringing the absolute rights of another. The court proceeds as though it need merely identify who is the infringer and who is the “infringee” and then protect the infringee absolutely. But nuisance scenarios often involve, not identifying which property owner is the infringer of another’s absolute right, but rather appropriately adjusting inconsistent exercises of two legitimate interests in using and enjoying neighboring properties.

Treatment of conflicts between neighboring uses of property was long dominated at common law by the maxim sic utere tuo ut alienum non laedas (so use your own property as not to injure your neighbor’s). This maxim resembles the “golden rule,” one of the most famous teachings attributed to Jesus. Following the golden rule can be difficult for the owner of real property. One property owner may love to play music on her deck while her neighbor cherishes the sound of silence in his back yard. The music lover cannot fully enjoy her property unless she makes some sound. The silence lover cannot fully enjoy his property if his neighbor makes music. The real property owner who would follow the “golden rule” must take into account her neighbors’ interests when deciding how to use her own property. This, of course, is easier said than done. Because the property owner’s interest in the use and enjoyment of property necessarily impacts the similar interest of neighboring property owners, the interest in use and enjoyment is inherently public. And only a utilitarian approach to cases of conflicting uses of property allows a satisfactory adjustment, the utilitarian approach outlined by Jesus in the golden rule. While there is some surface similarity between the golden rule and the sic utere maxim, the golden rule is significantly different from sic utere. The golden rule may be difficult to follow, but following the literal sic utere maxim might present an even greater challenge. Complying with the sic utere maxim is so challenging because it frequently comes into tension with the property owner’s traditional interest in the use and enjoyment of property – it sometimes simply is not possible for all property owners to pursue their legitimate interests in use and enjoyment of property without impinging on a neighbor’s similar interest. In this way, applying a utilitarian standard, such as the golden rule, would be more workable than the traditional sic utere maxim, which is based in the idea that property rights are absolute. Sic utere was problematic because its literal application frequently would require property owners to refrain from very productive uses of their property simply because those uses would inevitably conflict, sometimes in a relatively trivial way, with a neighbor’s chosen use. The golden rule, on the other hand, would permit all property owners to pursue their chosen property use, so long as they treated their neighbors as they would like to be treated. This idea went largely unrecognized for centuries until Ronald Coase and the law and economics movement elaborated it a few decades ago.

The thesis of this essay is that most of the difficulties generated by conflicting exercises of the interest in using and enjoying property can be fairly and efficiently mediated by holding all users of property strictly liable when their volitional acts cause a diminution in market value of their neighbor’s property. Recovery then should be limited to that diminution in market value. This approach would leave all property owners free to use and enjoy their property as they see fit and would simultaneously force them to follow the golden rule (not the sic utere maxim) -- property users would be forced to consider the impact of their chosen use and enjoyment on their neighbors. The desirability of this approach flows from the public nature of the interest in the use and enjoyment of property – because the use and enjoyment of real property is inherently public, it simply will not do to treat it as the exercise of an absolute private right.

Keywords: nuisance, property, torts, sic utere, legal history, utilitarianism