Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
market of entitlements to their highest value users. The court’s injunction cuts through the failure
of the market and imposes the socially optimal outcome.
Or, at least what it hopes is the socially optimal outcome. Note that the existence of the
collective action problem means that the court had better be right in its judgment of what the right
outcome is. Once the entitlement is allocated to the neighbors, the owner of 13949 Dacosta is
unlikely to be able to buy it back, even if for some reason she values being a kennel owner in that
lot more highly than her neighbors value being free from the noise and smells and inconveniences.
The problem is the flip side of the same collective action problem that would have hindered the
neighbors from buying the right to run the kennel from her in the first place. If each neighbor
retains the right to enjoin her from running the kennel, she will have to acquire the right to run the
kennel from all the neighbors. But each neighbor will have a powerful incentive to hold out and
become the last obstacle to the kennel. The last hold out is in a powerful position to extract
virtually all the value of the project as a condition to his or her permission.
Collective action problems here mean that a mistake by the court will not likely be
remedied by the marketplace.
2. Coming to the nuisance. In nuisance cases, courts give priority in time significant weight.
For example, defendants who “move[] hog production to an established residential neighborhood”
are unlikely to escape liability. Similarly, a plaintiff who moves into “a neighborhood of small
factories” is unlikely to bring a successful nuisance claim. DOBBS, HAYDEN & BUBLICK, DOBBS’
LAW OF TORTS § 401 (2014). Priority in time, however, is not dispositive in nuisance cases. See
RESTATEMENT (SECOND) OF TORTS § 840D (1979) (“The fact that the plaintiff has acquired or
improved his land after a nuisance interfering with it has come into existence is not in itself
sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance
is actionable.”). As Ensign v. Walls illustrates, plaintiffs in nuisance cases may still recover if
they come to the nuisance (i.e., they move or acquire land after the alleged nuisance has come into
existence).
According to Professor Robert Ellickson, a majority of jurisdictions may award plaintiffs
damages or injunctive relief even though plaintiffs came to the nuisance. Ellickson observes that
remedies in such cases may be inappropriate where plaintiffs who build residences in close
proximity to a factory or feedlot have thereby “failed to mitigate damages.” On the other hand,
the rationale for remedies is that the existence of a first in time rule creates a race to develop lest
the use of Parcel A preclude certain uses of neighboring Parcel B. See Robert C. Ellickson,
Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI.
L. REV. 681, 759 (1973).
3. Social policy in a decentralized regime. Subsequent events suggest that the court’s
solution in Ensign was tragically but unforeseeably short-sighted. Not long after Ensign was
decided, Congress authorized funds to build an interstate highway near Dacosta Street. See
Federal-Aid Highway Act of 1956, 23 U.S.C. 48 (2012). Look back at the Google Maps image
you visited above. The interstate that resulted, known as I-96, passes within 200 feet of 13949
Dacosta Street. The noise and smell from the kennel would soon have been completely
overwhelmed by the noises and smells of massive eighteen-wheel trucks carrying the products of
industrial Detroit to the great American post war markets.
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