C. The Actio Negatoria: Cases 134–135

Chapter 4: Protection and Limitations of Ownership

Cases 134–135. The actio negatoria (“action to deny”) is a suit available to the owner of land who seeks to prohibit what the common law would call an ongoing nuisance or trespass.  In the civil law tradition, the permissibility of the acts complained of turns on whether they are within a servitude that burdens the affected property.  The “action to deny” the putative servitude is therefore conceptually somewhat analogous to the common law action “to quiet title.”  At common law, “nuisance” and “trespass” (now mostly regulated by statute) are torts that can be sued on for damages, but an estate holder who seeks to block further invasions of his or her property rights must seek equitable relief, such as an injunction and/or decree of restitution.  See Restatement 2nd of Torts § 821D (1979). As will be seen in the next chapter of the Casebook, a servitude can be acquired by prescription.  So too at common law the failure to seek legal redress against an ongoing nuisance or trespass can ultimately lead to the acquisition of a prescriptive easement.

Chapter 4: Introduction | A. Cases 121–129 | B. Cases 130–133
C. Cases 134–135 | D. Cases 136–141

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