Supreme Court engaged in a detailed discussion of Hohfeld 's scheme of jural relations before concluding that a vendor ordinarily had the " power to terminate a contract upon a default by a subvendee, but had a"legal disability" to terminate the contract in the absence of notice and the opportunity to cure. The Oklahoma Supreme Court, in Fowler v Bailey, 844 P 2d 141, 150 n. 6 (OK 1992)(Simms, J. concurring), similarly discussed Hohfeld's jural relations at length in a case concerning financial mismanagement. In Sims v Century Kiest Apartments, 567SW2d 526 531-32& n. 2(Tex. Civ. App. 1978), a Texas court distinguished between a landlord's "right and power"to terminate a tenancy in a case of alleged retaliatory eviction. The Washington Supreme Court, in Seattle Sch. Dist. No. Iv State, 585 P 2d 71, 91& n 10(Wash. 1978)(en banc)held that the state 's constitutionally imposed "duty"to provide for children s education entailed a correlative right"of the children to an education. In Gutierrez v. Vergari, 499 F Supp. 1040, 1048 n 6 (S.D.N.Y. 1980), a federal district court in New York distinguished rights/duties from powers/liabilities under the Civil Rights law, 42 U.S.C.$ 1983. Most significantly, the Hohfeldian scheme of jural relations has been expressly adopted by the American Law Institute's highly influential Restatement of the Law of property (1936)(see Munzer 1990, p. 20). Section 1 of the Restatement defines"right as"a legally enforceable claim of one person against another. Aside from court decisions explicitly adopting Hohfeld's scheme, courts in many cases have cast doubt on the contra-Hohfeldian notion, prevalent in some of the economic literature on property ights, that"rights" can be established merely by initiating use without opposition or penalty. Consider, for example, the U.S. Supreme Court's decision in Hadacheck v. Sebastian, 239 U.S. 394(1915),in which the plaintiff alleged that new land-use regulations constituted a taking of his property without just
6 Supreme Court engaged in a detailed discussion of Hohfeld’s scheme of jural relations before concluding that a vendor ordinarily had the “power” to terminate a contract upon a default by a subvendee, but had a “legal disability” to terminate the contract in the absence of notice and the opportunity to cure. The Oklahoma Supreme Court, in Fowler v. Bailey, 844 P.2d 141, 150 n. 6 (OK 1992) (Simms, J. concurring), similarly discussed Hohfeld’s jural relations at length in a case concerning financial mismanagement. In Sims v. Century Kiest Apartments, 567 S.W.2d 526, 531-32 & n. 2 (Tex.Civ.App.1978), a Texas court distinguished between a landlord’s “right” and “power” to terminate a tenancy in a case of alleged retaliatory eviction. The Washington Supreme Court, in Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 91 & n. 10 (Wash. 1978) (en banc) held that the State’s constitutionally imposed "duty" to provide for children's education entailed a correlative "right" of the children to an education. In Gutierrez v. Vergari, 499 F.Supp. 1040, 1048 n. 6 (S.D.N.Y.1980), a federal district court in New York distinguished rights/duties from powers/liabilities under the Civil Rights law, 42 U.S.C. § 1983. Most significantly, the Hohfeldian scheme of jural relations has been expressly adopted by the American Law Institute’s highly influential Restatement of the Law of Property (1936) (see Munzer 1990, p. 20). Section 1 of the Restatement defines “right” as “a legally enforceable claim of one person against another.” Aside from court decisions explicitly adopting Hohfeld’s scheme, courts in many cases have cast doubt on the contra-Hohfeldian notion, prevalent in some of the economic literature on property rights, that “rights” can be established merely by initiating use without opposition or penalty. Consider, for example, the U.S. Supreme Court’s decision in Hadacheck v. Sebastian, 239 U.S. 394 (1915), in which the plaintiff alleged that new land-use regulations constituted a taking of his property without just
compensation. The record showed that Hadachek's brick-making operation had been in business for years, producing not only bricks but"fumes, gases, smoke, soot, steam and dust. [which] from time to time caused sickness and serious discomfort to those living in the vicinity However, until the city of Los Angeles passed an ordinance which prohibited brickmaking within the city limits, Hadachek was never penalized in any way. There was no question that he was engaged in brickmaking at the site(in the Pico Heights section of town) before anyone else resided in the area. a conflict only arose when others started moving into the area. Did his first use of the atmosphere as a depository for the noxious byproducts of his brickmaking operation give him a" right to pollute? Not according to the Court, which upheld the City's ordinance prohibiting Hadachek's operation within city limits as a valid nuisance regulation. Not only did Hadachek's first use not create a"right; " it violated a"duty which the public had a"right to enforce Similarly, in 1897 the Colorado Court of Appeals held that a prior appropriator does not acquire, as an incident of title, the right to pollute water to the detriment of downstream users, even if the prior appropriator was discharging pollutants into the water before the downstream users established their claims. The Suffolk Gold Mining Milling Co. v. The San Miguel Consolidated Mining& Milling Co., 9 Colo. App. 407( Colo. App. 1897). The first appropriator's prior use could not impose a duty on future downstream appropriators to suffer damages from the first appropriator's noxious discharges. More to the point, the subsequent downstream appropriators had a"Tight to be free from the prior upstream appropriators pollution, and could enforce his" duty not to discharg pollutants to their detriment. More recently, in Miller v. Cudahy, Co., 592 F Supp. 976, 1001 (D.C. Kan., 1984), the
7 compensation. The record showed that Hadachek’s brick-making operation had been in business for years, producing not only bricks but “fumes, gases, smoke, soot, steam and dust ... [which] from time to time caused sickness and serious discomfort to those living in the vicinity.” However, until the City of Los Angeles passed an ordinance which prohibited brickmaking within the city limits, Hadachek was never penalized in any way. There was no question that he was engaged in brickmaking at the site (in the Pico Heights section of town) before anyone else resided in the area. A conflict only arose when others started moving into the area. Did his first use of the atmosphere as a depository for the noxious byproducts of his brickmaking operation give him a “right” to pollute? Not according to the Court, which upheld the City’s ordinance prohibiting Hadachek’s operation within city limits as a valid nuisance regulation. Not only did Hadachek’s first use not create a “right;” it violated a “duty,” which the public had a “right” to enforce. Similarly, in 1897 the Colorado Court of Appeals held that a prior appropriator does not acquire, as an incident of title, the right to pollute water to the detriment of downstream users, even if the prior appropriator was discharging pollutants into the water before the downstream users established their claims. The Suffolk Gold Mining & Milling Co. v. The San Miguel Consolidated Mining & Milling Co., 9 Colo. App. 407 (Colo. App. 1897). The first appropriator’s prior use could not impose a duty on future downstream appropriators to suffer damages from the first appropriator’s noxious discharges. More to the point, the subsequent downstream appropriators had a “right” to be free from the prior upstream appropriator’s pollution, and could enforce his “duty” not to discharge pollutants to their detriment. More recently, in Miller v. Cudahy, Co., 592 F. Supp. 976, 1001 (D.C. Kan., 1984), the
defendant claimed a"right to pollute" groundwater partly by virtue of the fact that it had been doing so for a long time without penalty. The court ruled, however, that"[]egardless of when the polluting acts occurred, and regardless of society's changing views on the propriety of polluting the environment over the years, the defendants have never had a right to pollute the groundwater and they have never had a right to intentionally injure the surrounding landowners with impunity. In other words, the plaintiffs did not have a duty to suffer the groundwater pollution and resulting harm without compensation. Courts have similarly ruled that there is no right to pollute the air, no matter for how long the polluter acted with impunity before being regulated. As the Michigan Court of Appeals explained in Detroit Edison Company v. Michigan Air Pollution Control Commission, 167 Mich. App. 651 661 (Mich. App. 1988)(citations omitted ) To constitute a protectable right, a person must have more than an abstract need, desire or unilateral expectation of the right. Rather, there must be a legitimate claim of entitlement to it. It has been recognized that there exists no right to pollute. Since no such right exists, a polluter has not been deprived of any protected property or liberty interest when the state halts the pollution These various court decisions can, of course be criticized. Scholars may disagree with the outcomes and/or the courts reasoning. But the cases cannot be ignored because after all. what the courts decide is the law. a right is what these courts say it This simple fact is reflected in the modern law of nuisance, which makes the "right to pollute or be free from pollution turn on the precise circumstances of specific resource-use conflicts, particularly the"reasonableness"of the polluter's conduct and the parties' respective costs of abatement or 3 This is not to say, however, that what the courts decide is a"right"should be a "right
3 This is not to say, however, that what the courts decide is a “right” should be a “right.” 8 defendant claimed a “right to pollute” groundwater partly by virtue of the fact that it had been doing so for a long time without penalty. The court ruled, however, that “[r]egardless of when the polluting acts occurred, and regardless of society's changing views on the propriety of polluting the environment over the years, the defendants have never had a right to pollute the groundwater and they have never had a right to intentionally injure the surrounding landowners with impunity.” In other words, the plaintiffs did not have a duty to suffer the groundwater pollution and resulting harm without compensation. Courts have similarly ruled that there is no right to pollute the air, no matter for how long the polluter acted with impunity before being regulated. As the Michigan Court of Appeals explained in Detroit Edison Company v. Michigan Air Pollution Control Commission, 167 Mich. App. 651, 661 (Mich. App. 1988) (citations omitted): “To constitute a protectable right, a person must have more than an abstract need, desire or unilateral expectation of the right. Rather, there must be a legitimate claim of entitlement to it. It has been recognized that there exists no right to pollute. Since no such right exists, a polluter has not been deprived of any protected property or liberty interest when the state halts the pollution.” These various court decisions can, of course, be criticized. Scholars may disagree with the outcomes and/or the courts’ reasoning. But the cases cannot be ignored because, after all, what the courts decide is the law. A “right” is what these courts say it is.3 This simple fact is reflected in the modern law of nuisance, which makes the “right” to pollute or be free from pollution turn on the precise circumstances of specific resource-use conflicts, particularly the “reasonableness” of the polluter’s conduct and the parties’ respective costs of abatement or