If transactions costs are low, the law’s assignment of a property (or other type of legal) “right” to one claimant instead of the other will not ultimately determine whether the activity in question is continued or not.  Example:  If transactions costs are low in the Fontainebleau case, who wins there will not determine whether the Fontainebleau builds its new building or not.  Do you see why?

      If transactions costs are low, a property (or other type of legal) “right” will eventually wind up in the hands of the party that values it more highly than the other – regardless of which side the law favors, initially.

      Another way to look at it:  Most of the time, legal rules simply help set the parameters for settlement negotiations, by strengthening one side’s hand and weakening the other’s.

      All of the above statements are “positive” statements – that is, either true or false, based on fact rather than opinion.  Do they suggest to you any particular “normative” conclusion about how common law doctrines “should” or “ought to” look?
 

For more on Coase and the Coase Theorem, including his 1991 Nobel Prize, go to http://faculty.samford.edu/~medebow/web.htm and scroll down to the end of Section IV.

For more on the Fontainebleau-Eden Roc feud, see http://www.fontainebleaumiamibeach.com/ and http://boldnewedenroc.com/ (click on "Resort Images" tab, then on "Historic" -- you can see the shadow!)
 

This is indeed a novel application of the maxim sic utere tuo ut alienum non laedas. This maxim does not mean that one must never use his own property in such a way as to do any injury to his neighbor. Beckman v. Marshall, Fla.1956, 85 So.2d 552. It means only that one must use his property so as not to injure the lawful rights of another. Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L.R.A.1918A, 1034. In Reaver v. Martin Theatres, Fla.1951, 52 So.2d 682, 683, 25 A.L.R.2d 1451, under this maxim, it was stated that ‘it is well settled that a property owner may put his own property to any reasonable and lawful use, so long as he does not thereby deprive the adjoining landowner of any right of enjoyment of his property which is recognized and protected by law, and so long as his use is not such a one as the law will pronounce a nuisance.’ [Emphasis supplied.]

No American decision has been cited, and independent research has revealed none, in which it has been held that-in the absence of some contractual or statutory obligation-a landowner has a legal right to the free flow of light and air across the adjoining land of his neighbor. Even at common law, the landowner had no legal right, in the absence of an easement or uninterrupted use and enjoyment for a period of 20 years, to unobstructed light and air from the adjoining land. Blumberg v. Weiss, 1941, 129 N.J.Eq. 34, 17 A.2d 823; 1 Am.Jur., Adjoining Landowners, § 51. And the English doctrine of ‘ancient lights' has been unanimously repudiated in this country. 1 Am.Jur., Adjoining Landowners, § 49, p. 533; Lynch v. Hill, 1939, 24 Del.Ch. 86, 6 A.2d 614, overruling Clawson v. Primrose, 4 Del.Ch. 643.

There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite. See the cases collected in the annotation in 133 A.L.R. at pp. 701 et seq.; 1 Am.Jur., Adjoining Landowners, § 54, p. 536; *360 Taliaferro v. Salyer, 1958, 162 Cal.App.2d 685, 328 P.2d 799; Musumeci v. Leonardo, 1950, 77 R.I. 255, 75 A.2d 175; Harrison v. Langlinais, Tex.Civ.App.1958, 312 S.W.2d 286; Granberry v. Jones, 1949, 188 Tenn. 51, 216 S.W.2d 721; Letts v. Kessler, 1896, 54 Ohio St. 73, 42 N.E. 765; Kulbitsky v. Zimnoch, 1950, 196 Md. 504, 77 A.2d 14; Southern Advertising Co. v. Sherman, Tenn.App.1957, 308 S.W.2d 491.

We see no reason for departing from this universal rule. If, as contended on behalf of plaintiff, public policy demands that a landowner in the Miami Beach area refrain from constructing buildings on his premises that will cast a shadow on the adjoining premises, an amendment of its comprehensive planning and zoning ordinance, applicable to the public as a whole, is the means by which such purpose should be achieved. (No opinion is expressed here as to the validity of such an ordinance, if one should be enacted pursuant to the requirements of law. Cf. City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., Fla.App.1959, 108 So.2d 614, 619; certiorari denied, Fla.1959, 111 So.2d 437.) But to change the universal rule-and the custom followed in this state since its inception-that adjoining landowners have an equal right under the law to build to the line of their respective tracts and to such a height as is desired by them (in the absence, of course, of building restrictions or regulations) amounts, in our opinion, to judicial legislation. As stated in Musumeci v. Leonardo, supra [77 R.I. 255, 75 A.2d 177], ‘So use your own as not to injure another's property is, indeed, a sound and salutary principle for the promotion of justice, but it may not and should not be applied so as gratuitously to confer upon an adjacent property owner incorporeal rights incidental to his ownership of land which the law does not sanction.’

We have also considered whether the order here reviewed may be sustained upon any other reasoning, conformable to and consistent with the pleadings, regardless of the erroneous reasoning upon which the order was actually based. See McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323. We have concluded that it cannot.

The record affirmatively shows that no statutory basis for the right sought to be enforced by plaintiff exists. The so-called Shadow Ordinance enacted by the City of Miami Beach at plaintiff's behest was held invalid in City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra. It also affirmatively appears that there is no possible basis for holding that plaintiff has an easement for light and air, either express or implied, across defendants' property, nor any prescriptive right thereto-even if it be assumed, arguendo, that the common-law right of prescription as to ‘ancient lights' is in effect in this state. And from what we have said heretofore in this opinion, it is perhaps superfluous to add that we have no desire to dissent from the unanimous holding in this country repudiating the English doctrine of ancient lights.

The only other possible basis-and, in fact, the only one insisted upon by plaintiff in its brief filed here, other than its reliance upon the law of private nuisance as expressed in the maxim sic utere tuo ut alienum non laedas-for the order here reviewed is the alleged violation by defendants of the setback line prescribed by ordinance. The plaintiff argues that the ordinance applicable to the Use District in which plaintiff's and defendants' properties are located, prescribing ‘a front yard having a depth of not less than one hundred (100) feet, measured from the ocean, * * *,’ should be and has been interpreted by the City's zoning inspector as requiring a setback of 100 feet from an established ocean bulkhead line. As noted above, the addition to the Fontainebleau is set back only 76 feet 8 inches from the ocean bulkhead line, although it is 130 feet from the ocean measured from the mean high water mark.

*361 While the chancellor did not decide the question of whether the setback ordinance had been violated, it is our view that, even if there was such a violation, the plaintiff would have no cause of action against the defendants based on such violation. The application of simple mathematics to the sun studies filed in evidence by plaintiff in support of its claim demonstrates conclusively that to move the existing structure back some 23 feet from the ocean would make no appreciable difference in the problem which is the subject of this controversy. Cf. Taliaferro v. Salyer, supra. The construction of the 14-story addition is proceeding under a permit issued by the city pursuant to the mandate of this court in City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra, which permit authorizes completion of the 14-story addition according to a plan showing a 76-foot setback from the ocean bulkhead line. Moreover, the plaintiff's objection to the distance of the structure from the ocean appears to have been made for the first time in the instant suit, which was filed almost a year after the beginning of the construction of the addition, at a time when it was roughly eight stories in height, representing the expenditure by defendants of several million dollars. In these circumstances, it is our view that the plaintiff has stated no cause of action for equitable relief based on the violation of the ordinance-assuming, arguendo, that there has been a violation.

Since it affirmatively appears that the plaintiff has not established a cause of action against the defendants by reason of the structure here in question, the order granting a temporary injunction should be and it is hereby reversed with directions to dismiss the complaint.

Reversed with directions.