I Can’t Let September Go By Without a Nod to Earth, Wind & Fire

I know, I know—September 21 has come and gone, and I should have posted this blog on that iconic date. But I just couldn’t let the month slip away without giving a nod to Earth, Wind & Fire and their classic song, "September."

For those who may not know, the song’s opening lyric asks, “Do you remember the 21st night of September?” It’s a joyful, upbeat anthem that celebrates love and memories, with a melody that sticks with you long after the song ends. So, even though I missed the 21st, I’m making up for it now, one week later—because how could I possibly let September pass without paying tribute?

In the spirit of Earth, Wind & Fire, I’ve decided to break down some legal rules related to each element of the band’s name: Earth, Wind, and Fire. Let’s get into it!

“Earth”

The "Earth" in Earth, Wind & Fire immediately brings to mind trespass to land, which was one of the major issues tested in the Torts question on the July 2023 Multistate Essay Examination.

Trespass to land occurs when a person, or an entity that the person controls, intentionally enters or remains upon land in the possession of another without a privilege to do so. The intent requirement for trespass to land is the intent to enter—not the intent to trespass.

What does that mean? A person doesn’t have to know they’re trespassing or intend to violate someone’s property rights—they only need to intend to enter the land. Even if they mistakenly believe they have permission, or if they didn’t know it was someone else’s property, they can still be held liable for trespass.

So, if you’re walking across your neighbor’s yard thinking it’s a public park, it doesn’t matter—you’ve still committed trespass!

“Wind”

When I think of "Wind," another legal concept that comes to mind is nuisance—particularly in situations where wind carries things like debris, dust, pollutants, or odors from one property to another, interfering with someone’s use or enjoyment of their land. Nuisance can be categorized as either private or public, both of which are tested concepts on the bar exam.

Private nuisance involves interference with an individual’s use and enjoyment of their own property. For example, if wind consistently blows smoke, dust, or toxic fumes from a factory onto a neighboring property, causing significant interference, the affected party could bring a private nuisance claim. (Additionally, if the wind carries physical particles, such as dust or debris, that settle on the neighbor’s land, the property owner could also bring a trespass to land claim due to the physical invasion of their property.)

Key elements of private nuisance include: (i) substantial interference (i.e., the interference must be real and significant, not just a minor inconvenience); and (ii) unreasonableness (i.e., the interference isn’t something that people living in the area should have to tolerate based on normal use of their land).

Public nuisance, on the other hand, occurs when the nuisance affects the public at large or a significant number of people. For example, if strong winds regularly carry industrial pollutants into a public park or a residential area, making the air unhealthy for the public, this could give rise to a public nuisance claim. Public nuisance usually involves an action that interferes with public health, safety, or comfort.

Nuisance claims, whether public or private, often arise when someone’s activities create harmful conditions that spread via wind, making it a great tie-in to this element.

“Fire”

Of course, "Fire" leads us straight to arson—a criminal offense involving the intentional burning of property.

For bar exam purposes, common law arson is malice burning of the dwelling house of another. Modern statutes expand house to personal property, structures other than dwelling houses, and certain forestland.

So, while I missed the 21st night of September, I hope this legal breakdown of Earth, Wind & Fire gives you something memorable to carry with you. Until next time, may your legal studies be as smooth and enduring as that groovy "Ba-dee-ya" chorus!