Coming to the Nuisance: An Economic Analysis from an Incomplete Contracts Perspective

We construct a model in which an investment opportunity arisesfor a first mover before it knows the identity of a second moverand in which joint location results in a negative externality.Contracts are inherently incomplete since the first mover cannotbargain over its ex ante investment decision with the anonymoussecond mover. Given this departure from the setting of the Coasetheorem, the allocation of property rights over the externalityhas real effects on social welfare. We investigate the relativeefficiency of property rights regimes used in practice: injunctions,damages, the ruling in the Spur Industries case, etc. The firstbest can be obtained by allocating property rights (in particularthe right to sue for damages) to the second mover. Allocatingproperty rights to the first mover, as a "coming to the nuisance"rule entails, leads to overinvestment. In contrast to conventionalwisdom, this inefficiency persists even if a monopoly landownercontrols all the land on which the parties may locate.