The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis harms, a rule of strict liability applies, and the landholder can obtain an injunction to prevent future invasions. When the intrusion is governed by nuisance, however, then there will be no liability absent a showing of substantial harm, as a rule the landholder must show that the costs of the intrusion outweigh its benefits, and even then the party subject to the interference may be awarded only damages rather than an injunction for future harms. Thus, the right of a landholder to exclude means one thing with respect to certain intrusions – those subject to the law of trespass – but something altogether different with respect to others – those subject to the law of nuisance.
Thomas W. Merrill,
Trespass, Nuisance, and the Costs of Determining Property Rights,
J. Legal Stud.
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