'A Tort Against Land': Private Nuisance as a Property Tort
Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2011) 459-490
30 Pages Posted: 20 Dec 2017
Date Written: December 2, 2011
The thesis of this chapter is that private nuisance can only properly be understood as a tort which protects rights in land, and that, understood in this way, it is a thoroughly coherent cause of action. I begin by introducing this ‘property tort analysis’ of private nuisance and by providing a definition of the tort. The bulk of the chapter is then devoted to showing that the central doctrines of private nuisance law are consistent with the property tort analysis. In the remainder of the chapter, I look at the relationship between private nuisance and trespass to land, identify some sources of confusion which have served to obscure the underlying coherence of private nuisance and consider the implications of the property tort analysis for the traditional distinction between property and obligations. I finish off by making some more general observations about the value of a rights-based analysis of private law.
Keywords: private nuisance, rights in land, property law, law of obligations, trespass to land
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