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The Antidote for Zoning: Bringing Objectivity to the Land Development Process (Part 3)

“Coming to the Nuisance” means exactly what it sounds like: if a property owner is using his property so as to cause a nuisance to another property owner, then the property owner who was the earlier to start his particular use is the one who has the right to continue his use.

The other property owner, who started his use subsequently on his own property, has lower priority and thus must either yield or quit complaining, since he came to the nuisance and therefore could have stayed away.

For example: if a farmer has on his property a feedlot for his animals that is being properly operated1 and yet which still causes bad odors, a developer who later constructs single-family residences on a nearby parcel can’t complain about the feedlot’s odor, effluent, or other negative attributes (nor can the purchasers of the residences); if he does, he won’t prevail in a nuisance action against the farmer because of Coming to the Nuisance — i.e., because the feedlot was there first.

It is important to emphasize that the Coming to the Nuisance Doctrine does not give a property owner priority to engage in any and all uses of his property; it only gives him priority to engage in particular uses of property — namely, only those uses which one starts prior to the uses made by other property owners.

For example, if I purchase a piece of land and use it solely as a residence, I have a right to continue using it as a residence as against the rights of all newcomers. Let’s assume that, subsequent to my purchase and commencement of use as a residence, someone moves in next door to me on a vacant piece of land and uses it as his residence. Then, subsequent to that, I open a hog farm on my land which causes a nuisance to my neighbor. I do have the right to use my property as a residence as against the rights of my neighbor, since my residence was there first, before his residence was.

However, I do not have the right to use my property as a hog farm as against the rights of my neighbor if doing so causes him a nuisance, since his residence was there before my hog farm was. When I opened the hog farm, I started a new use — and thus my hog farm has lower priority than the uses of other property owners which commenced before my hog farm. (Other factors, such as when I bought my property, etc., are for the most part irrelevant. It is when I started my particular use which matters.)

“Coming to the Nuisance” is a corollary of the right to keep and use property. One must have the ability, without permission from others, to use property indefinitely (unless, of course, one voluntarily agrees to use it only for a specific time period, such as with a lease). If one does not have such an ability — meaning, in essence, that someone can come along at any time and arbitrarily demand that one no longer may use his property — then all use of property in effect ends up being by permission of those who have the power to stop its use, and the right to property in effect vaporizes.

For example, if the government decides to stop a particular owner’s use of his property simply because a majority of people in the area find it offensive for one reason or another, then ultimately everyone’s use of property is no longer by right but rather by permission.

Because the right to property means the right to use it indefinitely, it follows that, once a property owner has started using his property in a particular fashion, he has the right to stop others from interfering with that particular use. This is the rationale behind the Coming to the Nuisance doctrine’s requirement that, when uses of two properties conflict with each other, the use which has priority is the one started first, and the owner has the right to stop others from interfering with this prior use (the “first in time, first in right” rule).

Since the right to property necessarily implies the right to use it indefinitely, and since the right to use property indefinitely implies the first in time, first in right rule, it follows that respecting property rights ultimately means respecting the Coming to the Nuisance doctrine too. The two are inseparable.

Also, because the only objective means by which men can properly deal with one another is for them to respect each other’s rights, then in the appropriate context the Coming to the Nuisance doctrine is the only objective means for men to deal with one another as well.