Reconceptualizing the Law of Nuisance Through a Theory of Economic Captivity
illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiff‘s arrival. Whether the plaintiff‘s status should be considered a countervailing factor or argument to the defendant‘s affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity.
