Robbins: Coming to the nuisance | VailDaily.com
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Robbins: Coming to the nuisance

Let me share a fairy tale with you in two iterations in order to illustrate a point …

Once upon a time, along the I-70 Corridor in a land not-so-far-away, stood a lovely little cottage situated in a fertile place where eagles plied skies so blue it hurt your eyes.

A young couple — newly wed with a baby on the way — knew that they should buy a home before real estate prices soared once again following the cruel pandemic. There they would raise their baby, add a puppy, and eat pizza and drink beer on the weekends. They would proudly fly a Broncos flag at the end of their driveway beside a tidy little yard.

In this land, there were no zoning regulations and the neighborhood association had no restrictive covenants. 

To the east and west of them were neighbors who raised their handsome children, fed their puppies Eukanuba, mowed their lawns and ate pizza and drank Coors on the weekends.

One day, something changed. 

The Happy Couple in the Happy Valley along the I-70 Corridor woke to a strange and frightening sound. It was the sound of tractors tearing at the fertile earth in the green patch just behind their cozy little cottage. The happy couple kicked on their mukluks, kissed the baby, fed the puppy, and marched off to investigate.

What they saw, beside John Deeres ripping at the earth, was a big truck full of squealing pigs, their inquisitive pink snouts, probing through small portals in the side panels of the big truck.

What they learned was that a pig farm would soon become their neighbor.  Just behind the little cottage, there were soon a million-million-million squealing, stinky pigs. The pig farm made the little cottage in the happy valley along the I-70 corridor nearly unlivable. The puppy barked from dawn till dusk and the baby never slept. The beer and pizza they downed on the weekends was befouled by the stench of pig. Their ears were ceaselessly assaulted with the squeal of a million-million-million porkers.

So, what was the happy couple to do?

First, they called the mayor, all-knowing and all-powerful, but the mayor could do nothing. And so, they hired an attorney and they went to court.

Befor the judge, high on her mighty bench, the happy couple pled their case.  The pigs, they said, were making their lives miserable.

The judge thought, and then she thought some more. She considered and she ruminated. She weighed, and balanced, and deliberated. She consulted the wise texts of the law.

And then, she leaned upon her elbows on the high bench where she sat and awarded the happy couple damages. They were, she said, after a deep, meaningful, and all-knowing breath, entitled to be compensated for the losses the pig farm had cruelly inflicted upon them. She ordered the pig farm disassembled and peace restored to the land.

And there was joy throughout the land. Except, of course, for the pig farmer who gathered his pigs into thick burlap pokes and shuffled off never to be heard of again.

OK, the same story now, but with a little twist.

Before they bought, the happy couple, being so blinded by love for one another, failed to notice a pig farm being constructed behind the tiny manse where they would raise their puppy and their bouncing baby. They failed to notice the pens that would one day contain a million-million-million squealing pigs just a stone’s throw from their bedroom window. So consumed with love for one another, the bliss of nutritious Eukanuba for the puppy, Graco Remi furnishings for the baby, and beer and Molson on the weekends, they somehow missed the rising pig farm, just beyond the crisp white pickets of the tidy yard.

One day, however, suddenly they noticed. The husband woke to the squeal of a million-million-million pigs. He stirred his lovely bride, and said, “Dear, there appears to be a pig farm rising just beyond our tidy yard.”

Together, they peered through the curtains. They were aghast.

“What are we to do?” the man’s bride, flat-footed in her mukluks asked.

They went first to the mayor, all-knowing and all-powerful but he could, he said, do nothing.

And so, they hired an attorney and they went to court.

Before the judge, high on her mighty bench, the happy couple pled their case. They woke up, they said, just a morn or two ago, only to notice that a pig farm had risen just beyond their well-kept yard. So as not to offend the judge, high on her mighty bench, they whispered in a stage voice, “Your honor, you would not believe the stench!”

The judge thought, and then she thought some more. She considered and she ruminated. She weighed, and balanced, and deliberated. She consulted the wise texts of the law.

And then, she leaned forward on her elbows on the high bench where she sat and said, “What fools you are, happy couple. The pig farm was already being built when you bought the little cottage with the tidy yard. The nuisance,” she said, wagging a long and knowing finger, “was there before you. 

“You,” she said, “came to the nuisance. This precept of the law,” she said, “has been known since time immemorial.”

The happy couple’s jaws fell to their knees.

And because the happy couple came to the nuisance, the judge advised, no damages could be awarded and there was sorrow throughout the Land.

The moral to the story? 

It is this: “If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue.”  —Blackstone, 1766.

Just some food — and beer — for thought.


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