Emergency takings.

• Author: Lee, Brian Angelo
• Position: Compensation for government confiscated private property to address emergencies - III. Justifying Noncompensation B. Shifting Responsibility 3. The Property Owner Is Responsible for a "Nuisance" through Conclusion, with footnotes, p. 420-454

3. The Property Owner Is Responsible for a "Nuisance"

   A variant of the responsibility-shifting argument seeks to defend the noncompensation principle by attributing responsibility for the threatening condition--for example, the threat caused by a conflagration--to the owner of the demolished property. The assertion is not that the owner started the fire or otherwise created the dangerous condition, but that the owner nevertheless participates in the existence of that condition by maintaining property that could transmit the threatening condition to neighboring properties.

   This argument commonly takes the form of analogies to the doctrine of nuisance or, more generally, of invocations of the state's "police power." The Supreme Court in Mugler v. Kansas provided a classic statement of this general doctrine in the context of takings law:

   The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not--and, consistently with the existence and safety of organized society, cannot be--burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. (104) At first glance, application of this general principle to emergency-destruction situations might seem natural. For example, Dana and Merrill assert that one possible explanation for the noncompensation principle in fire cases "is based on an extension of the nuisance exception. Although an inert building is ordinarily not a nuisance, when approached by a raging fire it can be said to take on the characteristics of a tinder box, and thus poses a nuisance-like threat to other buildings." (105)

   Before considering the normative foundations of such a comparison, it is worth noting that as a doctrinal matter, Dana and Merrill are correct to treat this sort of argument as an "extension" of the nuisance exception. Ordinary nuisance doctrine in fact would not be likely to justify uncompensated destruction in such circumstances, and it useful to pause a moment to understand why that is. (106)

   There are two standard categories of nuisance--public and private--and although they have certain important differences, they also have much in common. One key element shared by both is the idea that property owners may be liable for their "unreasonable" property-related activities that cause harm, or pose a risk of harm, to other members of the community. In the case of private nuisance, the concern is unreasonable interference with other property owners' use and enjoyment of their own property. (107) In the case of public nuisance, the concern is unreasonable interference with a public right, such as a general right to health or safety. (108)

   One central question that naturally arises in nuisance contexts--and that is the focus of much nuisance law and commentary--is what sorts of acts are in fact "unreasonable." The Restatement (Second) of Torts offers a prominent, and controversial, example of a very broad, utilitarian conception of "unreasonable" activity. Among the "[c]ircumstances that may sustain a holding that an interference with a public right is unreasonable," the Restatement authors include "[w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience." (109) Moreover, the Restatement authors assert, if the activity in question was intentional rather than accidental, the activity will qualify as "unreasonable" if "the gravity of the harm outweighs the utility of the actor's conduct." (110) If the relevant conduct is unintentional, then under the Restatement approach a private nuisance will arise only if the activity was "otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities." (111)

   In the context of takings law, such a broad understanding of nuisance, if taken literally, invites a straightforward comparison between an abatable nuisance and a building destroyed to create a firebreak, or a petroleum depot destroyed to slow an invading army. Such destruction typically occurs when the public safety is at stake, and when the social benefit of engaging in such destruction clearly outweighs the destruction's social costs. Keeping the building or factory intact in such circumstances might, at first glance, seem clearly to qualify as an "unreasonable" interference with the property interests of others and therefore as either a public or a private nuisance. (112) And since a basic principle of nuisance law is that those who commit nuisances are not owed compensation for being required to cease their commission, a justification for likewise denying compensation in emergency-destruction cases would follow automatically. (113)

   It is unlikely, however, that emergency destruction would qualify as abating a "nuisance" even under the broad Restatement understanding of nuisance. It is scarcely plausible that a property owner's decision not to demolish a building is "intentional" if a conflagration or other sudden emergency arises while the owner is away from the property, and therefore lacks the ability to interact with the property or perhaps does not even know that an emergency exists. Moreover, merely maintaining a building on a lot that one day turns out to be in the path of a fire or an invading army is neither "negligent or reckless conduct" nor an "abnormally dangerous condition [] or activity]." (114) So the "invasion" caused by the risk of the spread of fire or aid to the enemy would not qualify as a nuisance under either the intentional invasion prong of the Restatement test or under the "unintentional and otherwise actionable" prong, or any plausible extension of that particular prong.

   Moreover, there is a deep general difficulty with adopting a conception of nuisance that is so broad as to encompass property destroyed to address emergencies. If such a conception of nuisance is applied in the takings context, then even ordinary exercises of eminent domain would be immune from demands for compensation. If the government wishes to raze a tall building on privately owned property, or fell trees on that property to clear airspace for a new nearby airport, or occupy that property to construct a new prison or fire station, the owner's refusal to allow that destruction or use might create "a significant interference with ... the public safety, the public peace, the public comfort or the public convenience." (115) Moreover, the utility of the private owner's keeping those trees and buildings intact, or excluding the government from his property may well not outweigh the social cost of those activities. Hence, according to this broad conception of "nuisance," forcing the owner to cease those activities would merely be abating a nuisance, and the government would owe that owner no compensation for the loss that he suffers as a result. However, those are quintessential examples of situations in which the government would be expected to exercise its power of eminent domain to take the land, and therefore to pay compensation. This incompatibility with a basic constitutional principle of eminent domain law renders this version of the nuisance analogy implausible. (116)

   Because the source of the difficulty is that the analogy's criteria for what constitutes a "nuisance" are simply too broad, the natural solution would be to narrow those criteria. And in fact, that is what the law generally does. Not every interference with "public convenience" constitutes an abatable nuisance, nor does every act or omission that fails to maximize overall social utility. Instead, nuisance liability is ordinarily limited to activities that either are inherently wrongful or are unusual in the locality where they are conducted. Letting buildings decay into disrepair or accumulating garbage that can attract vermin and disease are examples of the former category of activity. (117) Conducting generally legitimate but exceptionally loud or noxious activities in a quiet residential neighborhood is an example of the latter. As the Supreme Court famously observed, "[a] nuisance may be merely a right thing in the wrong place,--like a pig in the parlor instead of the barnyard." (118)

   These restrictions avoid the implausible implications noted above, since ordinary exercises of eminent domain often involve taking property that is well-maintained and completely harmonious with its neighborhood. (119) Thus, such exercises would no longer be miscategorized as instances of "nuisance" abatement. (120) But this shrinking of the universe of abatable nuisances has the simultaneous effect of excluding the sorts of "activities" that emergency destruction addresses. Consider, for example, the goods owners in the Great New York Fire of 1835, or Caltex during the invasion of the Philippines. Neither was out of place in its locality: the goods owners were storing their perfectly ordinary goods in ordinary warehouses located in what was then New York City's warehouse district. Indeed, the entire reason that a firebreak was needed was that neighboring owners also had property that might burn. Likewise, Caltex was operating an industrial facility in an area suitable for industrial activity. It was a factory in a factory district, a pig...