Kenneth Stahl, ‘The Trespass/Nuisance Divide and the Law of Easements’

Abstract
The law of easements is a mess. In one case, a property owner ends up with a landlocked parcel because, although he had a desperate need to traverse his neighbor’s land to access a public road, the necessity did not arise from the severance of a unified parcel. In another, a landowner’s basement frequently overflows with his neighbor’s sewage but he has no recourse because, a court says, he purchased the house knowing that it came equipped with plumbing. Weighed down with formalities, the law seems to have lost sight of the fundamental issue: whether a landowner’s need to access her property outweighs the burden imposed on a neighbor’s right to exclude. I contend that the courts have lost their focus because they have made a category mistake, treating easements as a species of the law of trespass when they ought to treat it as a species of the law of nuisance …

Stahl, Kenneth, The Trespass/Nuisance Divide and the Law of Easements (October 17, 2017). George Washington Law Review, forthcoming.

First posted 2017-10-19 06:25:36

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