When a quarry ceases operation for more than one year, it lost protection as a prior nonconforming use and could not continue in violation of the zoning law. Dakota Constructors, Inc. v. Hanson Cnty. Bd. of Adjustment, 994 N.W.2d 222, 2023 SD 38 (S.D. 2023).
The Vermont Supreme Court held that “a sustained and intentional campaign to annoy a neighbor can amount to a private nuisance.” Jones v. Hart, 261 A.3d 1126, 2021 VT 61 (Vt. 2021). The court explained: “Although such campaigns primarily involve only discomfort and annoyance—and therefore cause relatively little harm, as compared to other categories of interferences—they qualify as a private nuisance because the harassment and annoyance is repeated over a prolonged period and the activity causing the interference has no utility.” In this case, there was sufficient evidence for a jury to find that the Joneses committed a private nuisance by engaging in a prolonged and intentional scheme to annoy and harass Hart over a six-year period.”
The Delaware Supreme Court held that Monsanto, the company that manufactured PCBs and sold them every though it allegedly knew they were dangerous, participated in creating a public nuisance even though others released the chemicals into the environment. State ex rel. Jennings v. Monsanto Co., 299 A.3d 372 (Del. 2023).
When a chemical plant release carcinogenic gas into the air, the increased risk of illness without physical harm is not an “injury” cognizable in tort law as nuisance or other tort. Baker v. Croda, Inc., 304 A.3d 191 (Del. 2023).
In a reaffirmation of a longstanding rule, the North Dakota Supreme Court held that there is no easement for light and air unless it is expressly created between the landowners. It is not a nuisance to block a neighbor’s view by building on your own land. Owners do “not have a right to sunlight and open space on adjacent properties.” Berger v. Sellers, 996 N.W.329, 2023 ND 171 (N.D. 2023).
In a somewhat surprising case, the Idaho Supreme Court has held that an irrigation system that oversprays to cover land and which intrudes onto neighboring property can ripen into a prescriptive easement if the water sprays intrude on the neighbor’s land for the statutory period. Chester v. Wild Idaho Adventures RV Park, LLC, 519 P.3d 1152 (Idaho 2022).
Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant. Despite that traditional approach, the Texas …
Do prescriptive easements have to be “exclusive”? Read More »
The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs. This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass. However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to …
Some states require a “claim of right” to obtain property by adverse possession. This supposed element of the claim is confusing because it is not clear what it adds to the other requirements: nonpermissive visible continuous exclusive possession for the statutory period. In general, this phrase simply differentiates ordinary adverse possession cases from ones based on “color of title” where a deed or other granting instrument is defective (and thus does not pass title to the grantee) while the grantee occupies the property for the statutory period. The Alabama Supreme Court clarified the claim of right idea by stating that it means that “an adverse possessor has an intention to claim title to the disputed property.” Phoenix East Ass’n, Inc. v. Perdido Dunes Condominium Owners Ass’n, 2024 WL 1514608 (Ala. 2024). And how does one show that? By showing that the adverse possessor “possessed” the property without permission—in other words …
“Claim of right” requirement for adverse possession explained Read More »
Normally, criminal trespass is proper only if someone knows they are on someone else’s land and have no permission or other right to be there. But Vermont allows prosecution for criminal trespass even when someone should have known they were not welcome, at least when the owner complies with state law by posting a sign prohibiting entrance. In such a case, it does not matter that the entrant was not aware of the sign. State v. Richards, 256 A.3d 94, 215 Vt. 1 (2021).
