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).
Risk of illness not enough to constitute a nuisance Read More »
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).
No easement for light and air unless expressly created Read More »
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).
Irrigation spray can ripen into a prescriptive easement Read More »
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).
Criminal trespass is proper even if the entrant did not see the sign denying access Read More »
The Maine Supreme Court held that a landowner may remove encroaching non-boundary tree branches or roots using self-help even if the removal damages the tree. Atkins v. Adams, 301 A.3d 802 (Me. 2023).
Maine allows destruction of encroaching branches or roots even if it destroys the tree Read More »
The Iowa Supreme Court upheld the conviction of a person under a trespass statute criminalizes trespass with the intent to commit a hate crime, State v. Geddes, 998 N.W.2d 166 (Iowa 2023). See Iowa Code §716.8(3); §729A.2. The defendant targeted homes with rainbow flags or decals and taped anonymous notes saying “burn that gay flag”. The Court rejected the argument that the defendant had a first amendment right to place stickers on someone else’s home. The court found that the statute did not criminalize speech but conduct: trespassing because of the owner’s sexual orientation or association with persons of a certain sexual orientation.
Criminal trespass to commit a hate crime against supporters of gay rights Read More »
The Ohio Supreme Court held that a tenant has a right to receive visitors. Landlords have no right to stop third parties from entering the leased premises at the invitation of a tenant. A visitor who has a tenant’s permission to enter has not committed a criminal trespass just because the landlord has sought to bar that person from the property. State v. Randolph, 2023 WL 9007535 (Ohio 2023). Oddly, however, the court seemed to suggest that the landlord might have the power it the landlord retained the power in the lease. This later point, however, was dicta and the court was not confronted with a landlord who doesn’t want tenants to have friends. Most courts would find such a covenant to violate public policy. The landlord has the right to exclude people for valid business reasons but has no power to determine who tenants invite into their homes.
Tenant right to receive visitors Read More »
