Also known as: non-usus · non-use · nonuse
Written by attorneys — see sources below.
A basis for extinguishing servitudes or similar rights through prolonged failure to exercise them. The doctrine requires neglect of use over time, often accompanied by additional evidence of intent to abandon the right permanently.
Nathaniel Newman purchased a lot in Maple Ridge subdivision subject to recorded covenants requiring monthly assessments for the greenbelt and clubhouse. He rented the home to tenants who never used the facilities and stopped paying the assessments. The homeowners association sued for the unpaid amounts. The court held that the obligation could not be avoided by nonuse, so Nathaniel remained liable.
Natasha Nielsen received use immunity in exchange for testimony but later refused to answer questions. Prosecutors sought to revoke the immunity on grounds of nonuse of the protection. The court rejected the argument because the immunity grant itself barred further prosecution regardless of whether she exercised the right to remain silent.
In February 1971 petitioners were subpoenaed to appear before a United States grand jury in the Central District of California investigating violations of federal gambling and related laws. The government believed that petitioners were likely to assert their Fifth Amendment privilege against self-incrimination. Prior to the scheduled appearances, the government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002-6003. Petitioners opposed issuance of the order, contending that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity. Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions notwithstanding the grant of immunity. The court found both in contempt and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired. The Court of Appeals for the Ninth Circuit affirmed the contempt findings. The Supreme Court granted certiorari to resolve whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom or whether transactional immunity is necessary.
View caseNathan Nguyen developed a manufacturing process but never commercialized it. Years later he sued a competitor for misappropriation. The court found that prolonged nonuse of the process supported an inference of abandonment, defeating the claim.
Harshaw Chemical Co., an unincorporated division of petitioner Kewanee Oil Co., commenced research in 1949 into the growth of synthetic crystals useful in the detection of ionizing radiation and was able to produce one less than two inches in diameter. By 1966, as the result of expenditures in excess of one million dollars, Harshaw was able to grow a seventeen-inch crystal, something no one else had done previously. Harshaw had developed many processes, procedures, and manufacturing techniques in the purification of raw materials and the growth and encapsulation of the crystals which enabled it to accomplish this feat. Some of these processes Harshaw considers to be trade secrets. The individual respondents are former employees of Harshaw who formed or later joined respondent Bicron. While at Harshaw the individual respondents executed, as a condition of employment, at least one agreement each, requiring them not to disclose confidential information or trade secrets obtained as employees of Harshaw. Bicron was formed in August 1969 to compete with Harshaw in the production of the crystals, and by April 1970 had grown a seventeen-inch crystal. Petitioner brought this diversity action in United States District Court for the Northern District of Ohio seeking injunctive relief and damages for the misappropriation of trade secrets. The District Court, applying Ohio trade secret law, granted a permanent injunction against the disclosure or use by respondents of twenty of the forty claimed trade secrets until such time as the trade secrets had been released to the public, had otherwise generally become available to the public, or had been obtained by respondents from sources having the legal right to convey the information. The Court of Appeals for the Sixth Circuit held that the findings of fact by the District Court were not clearly erroneous and that the District Court properly applied Ohio law relating to trade secrets. Nevertheless, the Court of Appeals reversed the District Court, finding Ohio's trade secret law to be in conflict with the patent laws of the United States. The Supreme Court granted certiorari to resolve a question on which there is a conflict in the courts of appeals: whether state trade secret protection is preempted by operation of the federal patent law.
View caseNigel Nelson's utility company ceased all promotional advertising after a regulatory ban. When the ban was challenged, the court noted that the company's years of nonuse of the advertising right did not forfeit its constitutional claim to resume the speech.
In December 1973, the Public Service Commission ordered electric utilities in New York State to cease all advertising that promoted the use of electricity because the interconnected utility system lacked sufficient fuel stocks for the 1973-1974 winter. The order rested on the Commission's finding that the system did not have sufficient fuel stocks or sources of supply to meet customer demands. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp. opposed the ban on First Amendment grounds. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses into promotional and institutional categories. It permitted informational advertising designed to encourage shifts of consumption from peak demand times to periods of low electricity demand. The Commission banned promotional advertising because additional electricity would be more expensive to produce and promotional advertising would give misleading signals to the public. Central Hudson challenged the order in state court. The order was upheld through the New York Court of Appeals. The Supreme Court noted probable jurisdiction and reversed.
View caseNaomi Norton, a student editor, stopped publishing certain articles after the principal's prior restraint. When she later challenged the policy, the court held that her temporary nonuse of the publication right did not waive the First Amendment claim.
The Hazelwood School District operated Hazelwood East High School in St. Louis County, Missouri. During the 1982-1983 school year, students enrolled in the Journalism II class wrote, edited, and published the school newspaper Spectrum approximately every three weeks. More than 4,500 copies were distributed to students, school personnel, and community members each year. The Board of Education provided funding for printing, supplemented by newspaper sales. The journalism teacher selected editors, assigned stories, reviewed content, and determined grades for the course that awarded academic credit to students. On May 10, 1983, the journalism teacher submitted page proofs for the May 13 issue to Principal Robert Reynolds. The proofs included an article describing three students' experiences with pregnancy that discussed sexual activity and birth control. Another article on the impact of divorce quoted a student by name regarding her father's behavior. Reynolds objected to the pregnancy article because it might be inappropriate for younger students and could identify the students despite the use of false names. He also objected to the divorce article because the named student's parents had not been given an opportunity to respond to the comments. Reynolds ordered the deletion of the two pages containing these articles, resulting in the publication of a four-page newspaper rather than the planned six-page edition. The deleted material occupied approximately one full page. Three former student staff members of Spectrum then brought suit against the school district and officials in the United States District Court for the Eastern District of Missouri. After a bench trial, the District Court denied injunctive relief and monetary damages. The Court of Appeals for the Eighth Circuit reversed that decision. The Supreme Court granted certiorari to review the case.
View caseNeville Norton, a federal official, never exercised a statutory power to sequester funds. When Congress later sought to reclaim the authority, the court ruled that mere nonuse did not extinguish the official's statutory role.
On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, known as the Gramm-Rudman-Hollings Act. The statute sets a maximum deficit amount for each fiscal year from 1986 through 1991. It requires across-the-board cuts in specified federal programs if the deficit exceeds the target by more than a specified sum. These cuts, called sequestrations, are made by the President on the basis of a report prepared by the Comptroller General. The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. The Comptroller General must use the more pessimistic of the two sets of estimates, may make adjustments he deems appropriate, and must specify the precise reductions required on a program-by-program basis. The President is then required to issue a sequestration order that incorporates the Comptroller General's report without modification. The Comptroller General is an officer of the Legislative Branch. He is appointed by the President, with the advice and consent of the Senate, for a 15-year term. The Comptroller General is the head of the General Accounting Office (GAO), which is an independent office in the legislative branch of the Government. He is removable not only by impeachment, but also by joint resolution of Congress at any time for permanent disability, inefficiency, neglect of duty, malfeasance, or a felony or conduct involving moral turpitude. He is required to make such investigations and reports as shall be ordered by either House of Congress or by any committee of either House. He is to make recommendations to the Congress and to the heads of Federal agencies on legislation and other measures to improve the efficiency and economy of Government operations. Within hours of the Act's signing, Congressman Mike Synar, who had voted against it, and eleven other Members of Congress filed suit in the United States District Court for the District of Columbia seeking a declaration that the Act is unconstitutional. The National Treasury Employees Union filed a parallel action alleging injury to its members from suspended cost-of-living benefit increases. A three-judge District Court, appointed pursuant to 2 U. S. C. § 922(a)(5), invalidated the reporting provisions. The District Court held that the role of the Comptroller General in the deficit reduction process violated the Constitution's command that Congress may not retain the power to remove an officer charged with the execution of the laws except by impeachment. The court therefore held that the reporting requirements of the Act were unconstitutional. It declared the presidential sequestration order based on those reports to be without force and permanently enjoined the Secretary of the Treasury from implementing the sequestration order. The parties appealed directly to the Supreme Court, which noted probable jurisdiction and expedited consideration.
View caseNo. Nonuse alone is seldom sufficient. Courts normally require additional evidence of intent to abandon, such as affirmative acts inconsistent with continued existence of the right or unequivocal statements of relinquishment.
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No. The payment obligation is created by a recorded servitude that runs with the land and cannot be avoided by nonuse or withdrawal. Owners remain liable for assessments as long as they hold title to the burdened lot.
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Prolonged nonuse combined with conduct such as building a substitute facility elsewhere, explicit statements that the servitude is no longer needed, or acquiescence in permanent improvements that block the servitude area can establish intent to abandon.
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It applies to both. Servitudes imposing payment obligations in common-interest communities expressly provide that the duty cannot be avoided by nonuse, and traditional easements may be lost when nonuse plus other evidence shows permanent relinquishment.
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…626 F. Supp. 1374, 1392 (DC 1986). The Impeachment Clause of the Constitution can hardly be thought to be undermined because of nonuse. : Congress adopted this provision in 1980 because of "the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to…