3. Preemption – e.g., preemption by environmental regulation schemes. See n. 19, p. 697.(a) permanent damages for future damages, usually in form of reduction in market value of land. Criticisms:1) eliminates incentive to eliminate impact2) a form of “inverse condemnation” for a private purpose (See dissent in Boomer at p. 688)IV. RylandsA. Two different expressions of “rule”0 1. AIf a person brings, or accumulates, on his land anything which, if it shouldescape, may cause damage to his neighbour, he does so at his peril.@ (p.512)2. Persons who engage in a Anonnatural@ use of land do so Aat their own peril@if [harmful effects] Aescape@ their land. (p. 512).B. There is a jurisdictional split on:1. Whether to adopt the “rule.”2. How to apply the rule—for example, in determining what is “nonnatural.”PROPTORTS.132013TORTS OUTLINE B HUBBARDTOPIC: PROPTORTSIntroduction“Proptorts” involves the overlap of property law and tort law. As a general matter, property law focuses on the rights of ownership or control of property while tort law focuses on the obligations. Rights and duties are correlative in a sense that if a person has a right, someone has a duty to respect that right.Given the emphasis of torts on duties, the course thus far has focused on people’s duties, particularly the duty of due care. For example, the issue of “To whom is the duty owed?” focuseson things like foreseeability from the point of the person with the duty of due care, rather than on the rights and point of view of the person to whom the duty is owed.With proptorts, however, it is often more useful to think in terms of the rights of a person who owns or controls property. More specifically, trespass focuses on the right to exclusive possession and nuisance focuses on the right to use and enjoyment of land. Thus, our analysis willfocus on these rights. The doctrines of Rylands and abnormally dangerous activities also recognize a right to use your land. However, they also impose an obligation that goes with certain uses of land. If one uses land to conduct an ADA or uses land in the ways identified by Rylands, you have an obligation/duty to pay for the harm caused by the uses identified by ADA and Rylands.Underlying most proptorts issues is the conflict between two policies: (1) the negligence scheme’s concern for dynamic efficiency that allows an actor to injure others without liability if the actor uses due care; and (2) the right of property owners and possessors (and, at times, the rights of all other persons) not to have their rights taken simply because it is efficient. In short, the issue is which trumps: efficiency or rights?I. Abnormally Dangerous Activity (ADA)Introduction. ADA is included in proptorts because most of the activities involving ADAinvolve activities conducted on land – for example, dynamite blasting or keeping wild animals. NOTE: Some jurisdictions have adopted ADA, some have not adopted it, and some have adopted a broader approach (See n. 4, p. 527 (imposing strict liability regardless of value to community)).A. Test1. Factors (See n. 6, p. 520 [Restatement (2d)]; n. 3, p. 527 [Restatement (1st) and Restatement (3d)].Page 1 of 132. The judge determines whether ADA applies. See Indiana Harbor R.R. Co.at 521.B. Scope of Liability The scope (i.e., range of things covered by ADA) could matter because transporting dynamite may be treated the same as blasting with dynamite. (See n. 4, p. 527; n. 6, p. 528). If there is strict liability for transportation, it wouldonly apply to explosions (not to ordinary motor vehicle collision) because the scope of strict liability for ADA is limited to the abnormally dangerous risks associated with the activity.C. Defenses (see n. 9, p. 530)1. Restatement (2d): Assumption of risk is a defense if it is unreasonable.2. Restatement (3d) uses comparative.D. Examples1. Dynamite 2. Wild animals (See n. 2, p. 526; n. 7, p. 681)3. Airplanes (n. 5, p. 528)II. Trespass (pp. 674–681)A. Duty/Breach: Elements1. Interference with right of exclusive possession of landa. Right of exclusive possession does not require ownership. In addition, where tenant has exclusive right to possess, owner/landlord could be a trespasser.b. Note disagreement as to what things interfere with exclusive possession. (Martin, p. 676; See nn. 4–5, 7, pp. 680–681)c. The right of exclusion is basic to the concepts of possession andownership. In the context of “takings” doctrine under the FifthAmendment to the U.S. Constitution, the Supreme Court has referred to the right to exclude as “one of the most essentialsticks in the bundle of rights that are commonly categorized as property.”2. The interference is Aintentional@ B i.e., the act of entry on to the land is not done inadvertently. Page 2 of 13a. Definition of “intent”: Consequences of an act are intentional if the act is done with the purpose or knowledge (substantial certainty) that consequences will result. (Rest. 3d § 1, p. 897)b. Knowledge of boundary line is not required and reasonable care to determine the boundary is irrelevant. (See p. 675)c. Due care concerning preventing a known boundary crossing is also irrelevant. See n. 2, p. 680.B. Causation/Damages: Remedy1. Damages: actual, nominal and punitivea. Under the common law, actual damages are not an element of this tort. (See pp. 674–675; Martin at pp. 678–679) However, some cases suggest that actual damages are required. (See Restatement (Second) § 165 at p. 675 (unintended intrusions); n. 5, p. 680 (intangible intrusions)).b. Because nominal damages are awarded for interference with the proprietary or dignitary interest involved, punitive damages may also be awarded in an appropriate case even if no actual damages.2. Injunction: Where appropriate, trespass can be enjoined. (See p. 683 – “continued trespassory activity;” Part III-F-2-a below)C. Defenses: Referred to as privileges. Examples include consent and authorization(pp. 675–676).NOTE: Where personal property is involved, interference with the right of exclusive possession could involve: (1) trespass to chattel, which involves only exclusive possession; or (2) conversion,which requires that defendant Aconvert@ the chattel to his use B i.e., treat it as his own. (See part VI below)III. NuisanceA. Types1. Public nuisance2. Private nuisanceB. Elements of private nuisance1. UnreasonablePage 3 of 132. Interference with