The Trespass/Nuisance Divide and the Law of Easements
45 Pages Posted: 18 Oct 2017 Last revised: 10 May 2019
Date Written: October 17, 2017
The law of easements is a mess. In one case, a property owner ends up with a landlocked parcel because, although he had a desperate need to traverse his neighbor’s land to access a public road, the necessity did not arise from the severance of a unified parcel. In another, a landowner’s basement frequently overflows with his neighbor’s sewage but he has no recourse because, a court says, he purchased the house knowing that it came equipped with plumbing. Weighed down with formalities, the law seems to have lost sight of the fundamental issue: whether a landowner’s need to access her property outweighs the burden imposed on a neighbor’s right to exclude.
I contend that the courts have lost their focus because they have made a category mistake, treating easements as a species of the law of trespass when they ought to treat it as a species of the law of nuisance. Under the law of trespass, any nonconsensual physical invasion of a landowner’s property must be enjoined. Hence, courts use a repertoire of legal fictions to infer consent in situations where they find that one landowner’s need for access outweighs the burden on the other landowner’s right to exclude. Those fictions, however, greatly constrain the courts’ ability to reach satisfactory results. By contrast, under the law of nuisance, courts weigh the productivity of one landowner’s conduct against the burden it imposes on an aggrieved neighbor largely free of such constraints. As it happens, easements bear far more similarity to nuisance settings. Although easement cases are similar to trespass cases in that they involve a physical invasion, they are functionally much closer to nuisance cases because they usually involve neighboring landowners whose property rights need to be balanced against each other. Treating easement cases as a species of nuisance would thus be consistent with an emerging movement in property law for courts to find that in disputes between neighbors, fixed ideas about the right to exclude must yield to a mutual accommodation of rights and responsibilities.
Keywords: Easements, Trespass, Nuisance, Law & Economics, Judicial Takings, Public Trust
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