Chapter

The complaint alleges that the residence has a solar

From Property: Volume 1 Christian Turner Assistant Professor of Law University of Georgia School of Law eLangdell® Press 2012 by Christian

Concepts

1. System Includes

   "system which includes collectors on the roof to supply\n\n113 energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and

2. 114 Reach

   "114 to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee and the Planning Commission of the City of Muskego approved th

3. 115 Consider

   "115 We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited

4. 116 Nuisance

   "116 nuisance set forth in the Restatement (Second) of Torts. The Restatement defines pr ivate nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” R

5. 117 Restatement

   "117 Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977) Although the defendant’s obstruction of the plaintiff’s access to sunlight ap pears to fall within the Restatement’s broad conce

6. 118 Easement

   "118 easement and could prevent the adjoining landowner from obstructing access to light. 3 Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the En

7. 119 Unsightly

   "119 unsightly sixteen-foot spite fence four feet from his neighbor’s windows, Metzger v. Hochrein , 107 Wis. 267 (1900), the legislature enacted a law specifically defining a spite fence as an action

8. 120 Deference

   "120 deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy…. Strict limitation [on the recognition of easements of light and air over adjace

9. 121 Invests

   "121 who invests in solar collectors and to a society which has an interest in developing alternative sources of energy. 6 Third, the policy of favoring unhindered private development in an expanding

10. 122 Invades

    "122 invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977) This court concluded that the common enemy rule which served society “well

11. 123 Disregarding

    "123 and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do. 8 Private nuisance law, the law traditionally used to adjudicate conflicts between priva

12. 124 Hold

    "124 We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasona

13. 125 Balance

    "125 to balance the utility of the defendant’s conduct with the gravity of the harm. Sec. 826, Restatement (Second) of Torts (1977). 11 The defendant urges us to accept the circuit court’s balance as

14. 126 Circuit

    "126 The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reason

15. 127 Reasons

    "127 For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

16. 128 Cases

    "128 cases, as their name implies, require malice which is not claimed in this case. The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunli

17. 129 Ordinances

    "129 ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold. As

18. 130 Plaintiff

    "130 the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant. I know of no cases repudi

19. 131 Private

    "131 private benefit. I note that this court in Deetz stated: “The reasonable use rule retains … a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. I find it signif

20. 132 Declare

    "132 declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defi

21. 133 Definition

    "133 under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts , sec.

22. 134 Even

    "134 even though the idiosyncrasies of the particular plaintiff may make it unendurable to him.” Id. Comment d. 16 I conclude that plaintiff’s solar heating system is an unusually sensitive use. In ot