“No Man Is an Island” is a well known saying that seems to advance the thought that all persons are connected to each other by common goals and obligations. The same can be said for real property: “No land exists in isolation.” If one owns land, one must deal with all the people that surround the land and who own land that gives access to one’s land. This simple fact has led to a thousand years of common law followed by statutory law as to the rights and obligations of property owners whose lands abut.
Most statutes and case law as to real property are based on state law, but federal law as to hazardous wastes, protection of the environment and various non-discriminatory accommodation requirements can also be imposed. Further, almost all the states have common themes in their laws as to the rights and obligations of adjoining landowners, most deriving from English common law, and all sharing a basic understanding as to the underlying right of the landowner to enjoy use of the property - within certain “reasonable” limits. The balancing of the reasonable use of property with the right of adjoining owners to reasonably use their own property forms the underlying tension in this area of the law.
This article shall briefly survey the basic issues and rights that concern adjoining landowners, concentrating on the usual state law. The reader is advised to read our articles on this website on the issues of Private Nuisance on the Land, Encroaching Trees, Adverse Possession and Prescriptive Easement.
The Basic Rights and Definitions
Adjoining landowners are those persons, such as next-door neighbors, who own land that share common boundaries and thus have mutual rights, duties, and liabilities. The reciprocal rights and obligations of adjoining landowners existed at common law but have been invariably altered or expanded by various state laws and court decisions.
In general, the underlying theme is that adjoining landowners are expected to use their property reasonably without unduly interfering with the rights of the owners of contiguous land. Actions taken by a landowner that appropriate adjoining land or substantially deprive an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property.
Adjoining landowners carry certain mutual rights, duties and liabilities. Landowners are expected to use their property reasonably without injuring the rights of adjoining landowners. The enjoyment should not unreasonably interfere or disturb the rights of adjoining landholders or create a private nuisance. Subject to this general requirement, a landowner can use his/her property according to his/her will upon the condition that such use will not injure any adjoining landowner (and does not violate the plethora of state and federal laws as to zoning, environmental hazards, etc. etc.)
A landowner is relieved from liability for injuries caused to an adjoining owner if the landowner makes a “reasonable use” of his/her property. However, the rule which allows a person to use his/her own property in such a manner to cause injury to another’s property without any liability will be limited and is carefully defined in the courts and by statute.
A landowner’s use of his/her property becomes unreasonable and unlawful if it constitutes an appropriation of the adjoining land and if it deprives the reasonable enjoyment of the adjoining owner of his/her property to a material degree. Brownsey v. General Printing Ink Corp., 118 N.J.L. 505 (Sup. Ct. 1937).
Note that if the acts of a landowner are within his/her legal rights, the motives that compel him/her to do certain things on his/her own land is immaterial. At the same time, a landowner does not have the right to relieve his/her own property of an adverse condition by causing a similar condition on the land of a neighbor.
In Abbinett v. Fox 103 N.M. 80 (N.M. Ct. App. 1985) the general law of most states is put well: In that case it is observed that a landowner is entitled to use his/her property in a manner that maximizes his/her enjoyment. However, the enjoyment must not unreasonably interfere or disturb the rights of adjoining landholders or create a private nuisance.
In Southwest Weather Research, Inc. v. Duncan 319 S.W.2d 940 (Tex. Civ. App. El Paso 1958), the court held that the reasonable use and enjoyment of property includes the right to natural rainfall. The court observed that all forms of natural precipitation are elements of the natural condition of the land. Precipitation like air, oxygen, sunlight, and soil are essential to many reasonable uses of the land. To the extent that rain is important to the use of land, the landowner is entitled to the natural rainfall.
It is the duty of the landowner to utilize his/her property in a reasonable manner avoiding injury to the adjoining property or causing unreasonable harm to others in the vicinity. Accordingly, liability may be imposed on an adjoining landowner or lessee if that individual creates a dangerous condition.
The test of the permissible use does not solely depend on factors such as the use or whether the act causes injury, or if the injury resulted from natural consequence or nuisance. Rather, the test of permissible use is determined by considering factors like reasonable exercise of dominion over the property, interests affected of the property owner and his/her neighbors and public policy.
The principles of the law of negligence may also pertain to the question of reasonable use. The reasonable use of land by an adjoining landowner is determined by considering the circumstances on a case by case basis.
A landowner can use his/her property in a manner that can lead to some inconvenience to his/her neighbor. However, a landowner has no right to cause damage to his/her neighbor. If the landowner’s use satisfies the test of reasonableness, any incidental injury to the landowner’s neighbor is “damnum absque injuria” which means loss without injury. What is “incidental” is decided by the Court examining all the circumstances of the situation.
Typically, one neighbor complains about the sound of construction, but so long as the construction is during reasonable business hours, it is allowed. Conversely, if the construction spreads dangerous dust onto the neighbors land, liability would lie. It is all about balancing reasonable use.
Note that in Sussex Land & Live Stock Co. v. Midwest Refining Co 294 F. 597 (8th Cir. Wyo. 1923), the downstream property owner alleged that he was affected by pollution from the upstream oil driller. The upstream oil driller contended there were damages without a wrongful act. The court observed that if the use of the land affects others, such use has to be reasonable to escape liability. The court held that the rule which allows a person to use his/her own property in such a manner to cause injury to another’s property without any liability should be narrowly limited and carefully defined.
The court added that the term “reasonable” depends with regard to all affected interests of both the landowner and his/her neighbor and also public policy. However, there are certain limitations beyond which it cannot be extended. One of the limitations that is unreasonable and unlawful is to physically invade the land of one owner by another owner. There can be “no damnum absque injuria” where there is such a trespass. Thus, an owner who physically invades the land of another will be held liable.
In most jurisdictions, compliance with a zoning ordinance will not immunize one from the consequences of an unreasonable use of one’s property that results in the invasion of the private rights of his/her neighbor. Invariably, however, violation of zoning ordinances is powerful evidence that the use is unreasonable and, of course, liability for violation of zoning ordinances can be imposed independent of legal actions by the adjoining landowners.
A statute can allow a neighbor temporary access to an adjoining landowner’s property to make necessary repairs. For example, in South Carolina, an owner is temporarily allowed to access the adjoining landowner’s property to improve, repair or maintain the owner’s property. However, the property must not fall into such disrepair as to threaten the health and safety of the public.
Most jurisdictions, especially in urban areas, have passed numerous laws restricting use of land, regulating construction and construction noise, etc. etc. These laws may be state or local and must be consulted by a landowner before any action is taken. Violation of any of those ordinances will almost always grant legal relief to an injured adjoining property owner.
An ultra hazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured.
The following factors determine an activity as ultra hazardous:
- The relative possibility of harm.
- The level of seriousness of potential harm.
- If the possibility of harm is decreased with the utmost care.
- Whether the risk of the activity outweighs its social value.
- Inappropriateness of the activity in the area it is commenced
In some jurisdictions liability for damages to an adjoining owner from ultra hazardous activities on one’s land is predicated upon negligence rather than strict liability which imposes liability even if no negligence is involved. See Klostermann v. Houston Geophysical Co., 315 S.W.2d 664 (Tex. Civ. App. San Antonio 1958). Most jurisdictions impose a non delegable duty of reasonable care if a land owner knows or should know that inherently dangerous activities are being performed on his or her property even by independent contractors, (see for example Kinsey v. Spann, 139 N.C. App. 370, 533 S.E.2d 487 (2000)) and thus any negligence on the part of the workers may be imputed to the property owner.
Mutuality of Obligations and Rights
Adjoining landowners, who own lands that share common boundaries, have mutual rights, duties, and liabilities. The reciprocal rights and obligations of adjoining landowners existed at common law but have been modified by various state laws and court decisions. Strict liability and absolute liability are examples of liabilities between adjoining landowners. In tort law, strict liability makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of negligence or culpability. Strict liability is distinct from absolute liability. In absolute liability, only a guilty act, or actus reus is required.
Some jurisdictions follow the English law Rayland v Fletcher doctrine under which a person who, for his/her own purposes, brings on his/her land and collects and keeps there anything likely to do mischief, then it must be kept on his/her own premises at his/her peril, and is strictly liable for all the damage which is the natural consequence of its escape, even in the absence of negligence or other culpable conduct on the part of the defendant. Rylands v. Fletcher, 1868 WL 9885 (HL 1868).
Closely related to the Rylands v Fletcher doctrine is the doctrine of strict liability for injuries resulting from ultra hazardous activities and abnormally dangerous activities. Even without negligence, one who uses something inherently dangerous on his/her own lands that is likely to damage his/her neighbor’s property is liable for such damage. However, the doctrine of strict liability for ultra hazardous activities has often been limited to injury to adjoining property and to persons on adjoining property.
Construction on Land
A landowner, while constructing buildings and other structures, must make reasonable and proper use of his/her property. In Ainsworth v. Lakin, 180 Mass. 397 (Mass. 1902), the Court held that a landowner has a duty to use reasonable care to prevent structures from becoming dangerous to adjoining owners. However, a landowner has the right to build up a foundation for a proposed building to any height. In the absence of a party wall, a foundation should be laid and built upon and supported by its own premises. Additionally, with regards to a fill made on landowner’s premises above the natural surface, the landowner cannot use the wall on land of adjoining owner as an artificial support.
In Miller v. McClelland, 173 N.W. 910 the plaintiff and defendants were the owners of adjoining lots. Plaintiff constructed on her lot a building and a party wall. Defendant, while constructing on his lot, piled the filling material against the plaintiff’s wall without making any provision for the protection of her wall or building. The defendant’s lot sloped down bringing injury to plaintiff’s wall and building. The Court held that the defendant was liable for causing injury to plaintiff’s wall. The Court observed that defendant is entitled to build up a foundation for his proposed building to such height as he pleased. But in the absence of a party wall such foundation should be supported by defendant’s own premises. Also, defendant has no right to use the party wall as an artificial support for a fill made on his premises above the natural surface of his lot.
In Long v. Magnolia Hotel Co, 227 Miss. 625 (Miss. 1956) the Court held that an owner should use his land so as not to injure the legal rights of his neighbors. An owner who maintains or permits the existence of something potentially dangerous to an adjoining property must take precautions that no injury there from befalls his neighbor. The Court observed that, every owner must use his/her land in a reasonable manner with due regard to the rights and interests of others. An owner who negligently does an act on his/her property is liable for the damages so caused. The act may be lawful of itself but potentially injurious to adjoining property. And the fact that the adjoining injured building is substandard is not a valid defense. An imperfectly constructed building or building condemned by municipal authority is not a defense to an action for negligently injuring an adjoining building. The failure of an owner to exercise reasonable care to prevent injury to adjoining property from the fall of a dangerous wall or parts of it will make him/her liable in negligence.
A structure or wall in a dilapidated condition and one that threatens to fall upon and injure the adjoining premises is regarded as a continuing nuisancePennsylvania R. Co. v. Kelley, 77 N.J. Eq. 129 (Ch. 1910)
In Hevel v. Stangier, [238 Ore. 44 (Or. 1964) the Court held that in the absence of a statute, the jury should fix the time at which an owner of a hazardous structure becomes liable for a failure on his or her part to exercise reasonable care in causing the removal of the hazard.
If the owner hires an independent contractor for work or construction and damages adjoining property, then the property owner is liable to adjoining owners for damages to their property caused by contractor’s negligence. In Pumphrey v. J. A. Jones Constr. Co, the Court held that an independent contractor engaged by a landowner for work or construction is liable to adjoining owners for damage to their property caused by his/her negligence. A contractor is also liable for the damage caused by the contractor’s employees in performance of the work or construction. Even if there is no negligence by the contractor, he/she is held liable for damage to adjoining property caused by inherently dangerous instrumentalities employed in the work.
In Ohio Cas. Ins. Co. v. Davey Tree Expert Co, 173 N.E.2d 412 (Ohio Mun. Ct. 1959) the Court held that a contractor is liable for damage to adjoining property from negligence in felling a large tree. The Court observed that the contractor is liable even though the tree did not fall on the adjoining land but rather on the street because it broke utility lines in its fall, thereby disrupting service on the adjoining property.
In Divicent v. Sanderson, 239 La. 51 (La. 1960) the Court held the landowner liable for damages caused to adjoining property from pile-driving operations performed by a contractor.
In some cases the Courts have held that a landowner is not liable for damage to adjacent property from work at a construction site if the method, manner, and operative details of the work are not under his/her control.
Realistically speaking, in California particularly, if your contractor injures the adjoining land, both the contractor and you should plan on litigation against both of you being commenced.
Themes and Conclusion
It was Robert Frost who wrote: “Good fences make good neighbors.” But he also wrote that there is something unnatural about fencing off a neighbor.
The mixture of cooperation and right to maintain sole control of one’s own property is the essence of “living with one’s neighbors” but the long, long list of cases and statutes indicates that this mixture is often a matter of controversy with adjoining owners, the government, and the owner contesting who can do what. Emotions have a way of overcoming common sense when one’s property rights are contested and this writer has seen dozens of cases in which the economic cost benefit to the parties was ignored as tempers flared and lawyers were the only ones to benefit from the dispute.
But sometimes no matter how reasonable an owner may be, he or she must confront a neighbor who simply will not be reasonable and the courts inevitably are the only forum in which the matter can be resolved. In such cases, however reluctantly the fight is begun, one must confront the neighbor with vigor since the value of the land can be permanently adversely altered if one’s rights are not protected. The doctrines of waiver and estoppel as well as adverse possession and prescriptive easement may allow a neighbor to achieve rights to one’s land by failure to contest the claim in a timely fashion. Failure to act may be sufficient action to lose rights and value.
For example, one client of this office did not protest the building of a road over a remote part of the land owned by owner which the neighbor built without permission or consent but which the owner allowed for ten years without protest. When the time came to sell the property, the neighbor had a fully mature prescriptive easement across a portion of the land which the prospective buyer wished to use for a guest house. The sale collapsed.
Thus, one must combine reasonable friendly relations with clear and practical protection of one’s rights. Only by that method can adjoining owners create a long term, appropriate and mutually beneficial relationship on property.