Nuisance and Trespass Law

Nuisance and trespass are two of the oldest and most elemental of torts, dating back over nine hundred years. For much of their history, they have been looked down upon, thought of as simple disputes among neighboring landowners or an antidote to various quasi-criminal offenses — the province of pig farms, concrete plants, prostitution, and drugs. In the past decade though, they have became two of the central battlefields in tort law — at the center of disputes ranging from climate change to lead paint to both air and water contamination. Indeed, the U.S. Supreme Court as well other federal appellate courts have wrestled with the nuisance tort over the past two years in high-profile environmental contamination cases including the 2011 decision in American Electric Power v. Connecticut, making it one of the hottest topics in the law right now. In short, public nuisance has become a candidate for the next great all-encompassing tort theory. It is a cause of action particularly attractive to the plaintiff's bar because of its circumvention of the traditional requirements of tort law. Numerous states, counties, and municipalities, in association with the plaintiff's bar, have filed nuisance suits against various corporate defendants (including product manufacturers), seeking damages in the millions, and sometimes billions, of dollars. Furthermore, private nuisance and trespass have become weapons of environmentalists seeking new ways to fight what they see as pollution by big business. More and more plaintiffs are pleading these causes of action as a means to stop and/or recover for environmental contamination. And these plaintiffs have had quite a bit of success.

Unfortunately, the increased exposure of these torts has not lead to a greater understanding of them, and courts and legal commentators still find it difficult to wrap their hands around these torts. There is precious little out there attempting to make sense of either nuisance or trespass law. A number of legal scholars and judges have bemoaned both the lack of clarity surrounding these torts as well as the lack of any attempt at clarity on the part of legal writers. Nuisance and Trespass Law is designed to be the first treatise in over a century that comprehensively examines these two areas of the law and is expected to fill a huge gap in legal scholarship.

This treatise will discuss all aspects of each of these torts, including both statutory and common law variations, elements, defenses, remedies, damages, and particular applications. However, this treatise is designed to be more than just a nuts-and-bolts recitation of the law. One of the most fascinating aspects of these subjects is how they have evolved over time from run-of-the-mill torts to cutting-edge weapons envisioned to both influence public policy as well as redistribute wealth in a massive way. This treatise will trace this evolution, and in doing so, place the current law in context for readers. By analyzing the forces that shaped these two torts, this treatise will permit readers to gain a deeper understanding of nuisance and trespass law. Furthermore, this treatise will also objectively address the policy implications behind the rise of these two torts. Law cannot be analyzed in a vacuum, and it is important to understand the policy and politics that have impacted nuisance and trespass law.