Nuisance and the Decline of Quiet Enjoyment

The utilitarian character of antebellum property law also appeared in the law of nuisance. Nuisance suits became more numerous from the mid-1830s to the end to the Civil War as the pace of technological change quickened. Most of these suits sought injunctive relief based on equity principles in which a judge would enjoin a person from some activity, such as operating a steam engine over a particular portion of track.

-118-

Property owners in the path of economic expansion claimed that their right to the quiet enjoyment of their property had to be sustained against the sparks, noise, and filth belched forth by railroads and factories.

A nuisance can be either public or private. Typically, relief was provided only for private rather than public nuisances, and the way in which courts fitted certain kinds of economic activities into these categories substantially affected the susceptibility of risk-taking entrepreneurs to the costs of lawsuits.

Courts favored the defendants in these suits. They often invoked the doctrine of prescriptive rights to protect what was a private nuisance at the same time they used the same doctrine in riparian and eminent domain cases to fuel economic development. The Massachusetts Supreme Judicial Court in 1842, for example, rebuffed homeowners' claims that the owners of a soap and candle factory, which had burned down, should be enjoined from rebuilding because its "noisome, noxious and offensive vapors, fumes and stenches" had made their homes unlivable and unsellable. ⁴⁴ The court held that because the plaintiffs had countenanced the factory before it burned down, they could not subsequently demand that it not be rebuilt. The factory, despite its offensive nature, had by its previous operation created a prescriptive right to operate.

Antebellum courts also applied balancing tests to weigh the social utility of an alleged nuisance against private rights. Judges invariably limited private rights if the nuisance involved the slightest hint of using property in an economically efficient and publicly beneficial way. In Grey v. Ohio & Pennsylvania Railroad Co. ( 1856), for example, the Pennsylvania Supreme Court was asked by a farmer to enjoin the construction of a railroad. The court refused to do so, concluding after balancing "the inconveniences . . . incurred by the respective parties" that the railroad was more important than the farmer. ⁴⁵

State judges also regularly denied injunctive relief by declaring that what seemed to be a private nuisance, such as the sparks generated by a railroad engine, was actually public. Lemuel Shaw took the position that a railroad, even though privately owned and financed, was "no less a public work; and the public accommodation is the ultimate object." ⁴⁶ Only the legislature could provide compensation for the damage created by a public nuisance.

Antebellum judges treated property as a dynamic commodity to be employed for productive uses deemed in the interest of the public. By the 1840s a reasonableness and balancing test had displaced the older doctrine of absolute domain. Vested property rights and quiet enjoyment suffered as a result, although they were not completely extinguished. The judicial formulation of the common law of property hastened economic growth in the name of the public good.

Date: 2015-01-29; view: 750