CASES IN PROPERTY
Page
Number
Case
1.
Sturges v. Bridgman
2
2.
Johnson v. M'Intosh
10
3.
Treasure Salvors, Inc. v. Unidentified Wrecked Sailing Vessel
15
4.
Armory v. Delamirie
20
5.
Hannah v. Peel
21
6.
Anderson v. Gouldberg
25
7.
Wolfenbarger v. Williams
26
8.
Van Valkenburgh v. Lutz
30
9.
Monroe v. Rawlings
38
10. United States v. 564.54 Acres of Land, More or Less
41
11. City of Oakland v. Oakland Raiders
46
12. Poletown Neighborhood Council v. City of Detroit
51
13. Agins v. City of Tiburon
63
14. Ploof v. Putnam
67
15. Katko v. Briney
69
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Case 1: Externality and Efficient Use Illustrated
Sturges v. Bridgman
11 C.D. 852 (1879)
The plaintiff in this case was a physician. In the year 1865 he purchased the lease of a house in
Wimpole Street, London, which he occupied as his professional residence.
Wimpole Street runs north and south, and is crossed at right angles by Wigmore Street. The
Plaintiff's house was on the west side of Wimpole Street, and was the second house from the north side of
Wigmore Street. Behind the house was a garden, and in 1873 the Plaintiff erected a consulting-room at the
end of his garden.
The Defendant was a confectioner in large business in Wigmore Street. His house was on the north
side of Wigmore Street and his kitchen was at the back of his house, and stood on ground which was
formerly a garden and abutted on the portion of the Plaintiff's garden on which he built the consulting-room.
So that there was nothing between the Plaintiff's consulting-room and the Defendant's kitchen but the partywall. The Defendant had in his kitchen two large marble mortars set in brickwork built up to and against the
party-wall which separated his kitchen from the Plaintiff's consulting-room, and worked by two large wooden
pestles held in an upright position by horizontal bearers fixed into the party-wall. These mortars were used
for breaking up and pounding loaf-sugar and other hard substances, and for pounding meat.
The Plaintiff alleged that when the Defendant's pestles and mortars were being used the noise and
vibration thereby caused were very great, and were heard and felt in the Plaintiff's consulting-room, and such
noise and vibration seriously annoyed and disturbed the Plaintiff, and materially interfered with him in the
practice of his profession. In particular the Plaintiff stated that the noise prevented him from examining his
patients by auscultation for diseases of the chest. He also found it impossible to engage with effect in any
occupation which required thought and attention.
The use of the pestles and mortars varied with the pressure of the Defendant's business, but they were
generally used between the hours of 10 A.M. and 1 P.M.
The Plaintiff made several complaints of the annoyance, and ultimately brought this action, in which
he claimed an injunction to restrain the Defendant from using the pestles and mortars in such manner as to
cause him annoyance.
The defendant stated in his defence that he and his father had used one of the pestles and mortars in
the same place and to the same extent as now for more than sixty years, and that he had used the second
pestle and mortar in the same place and to the same extent as now for more than twenty-six years. He
alleged that if the Plaintiff had built his consulting-room with a separate wall, and not against the wall of the
Defendant's kitchen, he would not have experienced any noise or vibration, and he denied that the plaintiff
suffered any serious annoyance, and pleaded a prescriptive right to use the pestles and mortars under the
[appropriate articles of English law].
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Issue was joined, and both parties went into evidence. The result of the evidence was that the
existence of the nuisance was, in the opinion of the court, sufficiently proved; and it also appeared that no
material inconvenience had been felt by the plaintiff until he built his consulting-room. . . . .
Waller, Q.C. and S. Dickinson, for the Plaintiff, contended that noise should be put in the same
category as light and air, and the Defendant had not acquired a prescriptive right to interfere with the
Plaintiff's enjoyment of his own property. . . .
Chitty, Q.C. and Methold, for the Defendant, contended that he had acquired an uninterrupted right
to use his mortars as he had done; that the nuisance, if it was in fact a nuisance, had been legalised by
prescription; and that, if necessary, a lost grant might be presumed. . . .
JESSEL, M.R.-I think this is a clear case for the Plaintiff. There is really no dispute as to this being a nuisance; in
fact, the evidence is all one way, and has been often said in these cases, the Plaintiff is not bound to go on
bringing actions for damages every day, when he is entitled to an injunction.
The only serious point which has been argued for the Defendant is that by virtue of the statute, or by
prescription, he was entitled as against the Plaintiff to make this noise and commit a nuisance. Now the facts
seem to be that until a very recent period it was not a nuisance at all. There was an open garden at the back
of and attached to the Plaintiff's house, and the noise, it seems, if it went anywhere, went over the garden,
and, of course, was rapidly dispersed. . . . The actionable nuisance began when the Plaintiff did what he had
a right to do, namely, build a consulting-room in his garden, and when, on attempting to use the consultingroom for a proper purpose, he found this noise too great for anything like comfort. That was the time to
bring an action for nuisance.
Now, under those circumstances, it appears to me that neither the defence of the statute, nor the
defence of the right by prescription, can possibly avail. I pass over technical grounds, for it appears that in
fact both the Plaintiff and the Defendant are lessees under the Duke of Portland, the Defendant having a lease
in 1845 and the Plaintiff in 1854. On what theory of law I am to presume a grant as against the Duke of
Portland's lessee I do not know.
I will state the authorities as shortly and in as few words as I can. There are a great many authorities
on the subject, but there is one authority which I have been looking at for another purpose, to which I shall
refer. That is the case of Webb v. Bird, which states the law as explicitly as it possibly can be stated. There
Justice Wightman, who delivered the judgment of the court, says "We think, in accordance with the Court of
Common Pleas, and the judgment of the House of Lords in Chasemore v. Richards, that the presumption of a
grant from long-continued enjoyment only arises where the person against whom the right is claimed might
have interrupted or prevented this exercise of the subject of the supposed grant."
Now in the case before me that was simply impossible. The noise was made on the Defendant's own
premises--in his kitchen. Of course you could not go into his kitchen without being a trespasser. Your could
not interrupt it there, nor could you interrupt it on your own land, because you have no control over the
waves of sound; nor could you even have interrupted it by an action, because there was originally no
actionable nuisance. It did not hurt anybody as long as the Plaintiff's premises remained as a garden. It did
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not hurt anybody until the room was built. Therefore it is quite plain that independent of the technical
ground, namely the fact of there having been two leases, there would have been no ground for presuming a
grant. That puts an end to any notion of prescription.
Then the only other question is whether the Defendant can claim any defence under the statute
[which] says "that no claim which may be lawfully made at the common law, by custom, prescription, or
grant, to any way or other easement,... to be enjoyed or derived upon, over, or from any land... when such
way or other matter... shall have been actually enjoyed by any person claiming right thereto without
interruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way
or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim
may be defeated in any other way by which the same is now liable to be defeated."
Now I get rid of this claim at once by saying that, from its nature, I do not presume a lost grant. So
that the statute really has no application at all. It seems to me it is quite unnecessary to discuss the question;
but inasmuch as the case may possibly be taken elsewhere, I think it just as well to give my reason for saying
why the 2nd section of the statute can have no application, and that is this: the easement there referred to is
an easement to be enjoyed or derived "upon, over, from" the land of the servient tenement. That is what it
means; and it is to be actually enjoyed by a person claiming a right without interruption for the full period of
twenty years.
There are really all sorts of difficulties in the Defendant's way. In the first place the easement must be
an easement "upon, over, from." Now the noise in question, in my opinion, is not properly described in that
way. No doubt the waves by which the sound is distributed pass over the Plaintiff's land; there is no question
about that. But is than an easement enjoyed "upon, over, or from any land?" Well, I think it is not. that
appears not only from the natural meaning of the words, but from authority. In the report of Webb v. Bird,
Lord Chief Justice Erle says, "I do not think the passage of air over the land of another was or could have
been contemplated by the Legislature when framing that section." Now, what he means by the passage of air
is the passage of air in motion, the waves of air; for the ground of action in that case was wind: that is, what
was wanted was not the air but the wind, for still air would have been of no use. The Plaintiff complained
that his windmill would no longer turn, and therefore he claimed a right to the passage of air in motion. Then
the Lord Chief Justice proceeds: "They evidently intended it to apply only to the exercise of such rights upon
or over the surface of the servient tenement as might be interrupted by the owner if the right were disputed."
Then he goes on to say: "I am clearly of opinion that the 2nd section of the statute meant to include only such
easements upon or over the surface of the servient tenement as a re susceptible of interruption by the owners
of such servient tenement, so as to prevent the enjoyment on the part of the owner of the dominant tenement
from ripening into a right." Then, in another passage he says, "The Legislature evidently considered the
passage of light-- which bears a very close analogy to that of air-- to stand upon a different footing from the
other easements with which it had been dealing in the preceding section; and, if it had intended to extend the
right to the uninterrupted passage of wind and air, it would have done so in express terms."
Now it must be recollected that all the defendant claims here is a right of the uninterrupted passage of
air or ether-- nothing else. He claims the right of setting the air or ether in motion by something or other that
he does upon his own property. It is exactly, therefore, within the principle as laid down by Chief Justice
Erle, as a case to which the Act does not apply. But Mr. Justice Willis, in the same case, put it very plainly;
and what he says applies both to the Act of Parliament and to the presumption of lost grant or prescription.
He first of all says . . . "That which is claimed here amounts to neither more no less than this-- that a person
having a piece of ground, and building a windmill upon it, acquires by twenty years' enjoyment a right to
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prevent the proprietors of all the surrounding land from building upon it, if by so doing the free access of the
wind from any quarter should be impeded or obstructed." It comes to the same thing here. It prevents a man
building upon it so as to enjoy his building. "It is impossible to see how the adjoining owners could prevent
the acquisition of such a right except by combining together to build a circular wall round the mill within
twenty years. It would be absurd to hold that men's rights are to be made dependent on anything so
inconvenient and impracticable." Then he says, as regards light, "All that can be said, however, of these
cases, is that, as compared with the general law, they are anomalous. In general,"--and this applies, as I said,
to lost grants--"a man cannot establish a right by lapse of time and acquiescence against his neighbour, unless
he shews that the party against whom the right is acquired might have brought an action or done some act to
put a stop to the claim without an unreasonable waste of labour and expense."
That puts the thing, if I may say, on what is really a sensible ground. If a man has a noisy business in
the middle of a barren moor which belongs to somebody else to whom the business carried on does no injury,
the owner of the moor cannot bring an action and he cannot interrupt. Take the case of putting a
blacksmith's forge in the middle of a moor: you cannot enter the blacksmith's forge, inasmuch as that belongs
either to him or to his landlord, and the owner of a moor which has no game upon it has nothing which can
be injured by the noise. There is no remedy whatever, because it is a barren moor. Presently, this which is
useless as a barren moor becomes available for building land by reason of the growth of a neighbouring town;
it is to be said that the owner has lost the right to this barren moor, which has now become worth perhaps
hundreds of thousands of pounds, by being unable to build upon it by reason of this noisy business? The
answer would be simply, "I could not stop you: I could not interrupt. It is physically impossible, because it
would be a trespass; legally impossible, because I had suffered no damage and could not maintain an action.
How could you therefore acquire a right to deprive me of the fair and ordinary use of my property?"
That seems to me to be an answer to all the cases put. You must have regard to the position of the
property and all the surrounding circumstances to see if you can presume any grant. A man cannot presume
a grant of that to which, so far as he is concerned, he has no right. You have no occasion to presume a grant.
It is not a license to use a thing, because the use does not injure you. When you find a man doing an act
which is a manifest injury to another, such as fouling a stream by pouring the refuse of a manufactory into the
bright trout stream of his neighbour, and his neighbour allows that to go on for a great number of years, it is
not unreasonable to presume that he did it under some right. If he has done it openly and his neighbour does
not complain of that injury, although it is a very serious injury, it is not unreasonable to suppose that they did
come to terms at some antecedent period for granting a right. But here, in the case I have before me, I
cannot see a pretence for it. The fact that the man has made a noise which has not injured me or interfered
with my comfort or enjoyment in any way, cannot deprive me of my right to the land, or interfere with my
right to come to the Court when it does seriously interfere with my comfortable enjoyment.
It seems to me that, neither on the theory of lost grant nor on the statute, can the Defendant claim to
do what he has done, and therefore the Plaintiff is entitled to an injunction; but as it would be somewhat hard
upon a confectioner to alter his mode of business at the height of the London season, I will give him a
reasonable time, say until the 1st of August, to alter the position of his mortars.
From this decision the Defendant appealed. The appeal came on to be heard on the 13th of June
1879.
CHITTY, Q.C., and METHOLD, for the Appellant:--
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In the case of analogous easements it has always been laid down that a right is acquired by twenty
years' user, a grant being presumed: . . . as to right to pollute water; . . . as to noise and smell ...
The effect of the decision under appeal, if upheld, might be most disastrous in London. Suppose a
printing-press established for more than twenty years, the neighbours not complaining. Another person
purchases one of the adjoining properties and applies it to a new purpose, such that the noise and vibration of
the presses are found a nuisance; according to this decision he can stop them.
{THEISINGER, L.J.-- How can an adjoining owner stop the noise here complained of, as he had no house
on the ground and suffered no inconvenience?}
We apprehend that a person might set up a tent close to the wall, and bring an action on the ground
that he could not sleep in it for the noise. ... twenty years would give a right. [In one case] ... it was
intimated that twenty years' user would confer a right of sending out bad smells. ... In [another] ... the Lord
Chancellor treats noise as standing on the same footing with other nuisances, and as legalised by twenty
years... Twenty years user gives a right of support to a house... though there is no right of action in the
meantime. If a grant is presumed after twenty years, how can that presumption be rebutted in the twenty first
year by an alteration in the servient tenement? The Master of the Rolls relied on Webb v. Bird... but that was
an exceptional case, where an attempt was made to claim an easement of access to a wind, a kind of right
which had never been heard of before. This is a case in which a grant may fairly be presumed. It is not a
question whether such a grant is probable, but whether it is possible ... It is not correct to say that the
Plaintiff might not have interfered before. There was always some noise and vibration which might, if a right
were established, become a nuisance, and that was an injury to the property which might have been stopped
by an action ...
WALLER, Q.C. and S. DICKINSON, for the Plaintiff:-The Defendant cannot have acquired a right to an easement over the Plaintiff's land by prescription;
for no grant can be presumed where the owner of the servient tenement had no power to prevent the
easement either by physical interference or by an action. In order to acquire a right by prescription the
exercise of the right must not be secret, but palpable and adverse to the owner of the servient tenement. In
the present case the Plaintiff could not have entered the Defendant's house to stop the noise and vibration,
nor could he have brought an action, because there was nothing that amounted to a nuisance till the
consulting-room was built ... If the Defendant's contention is correct, a person who is subject to acts by his
neighbour which he fears may grow into a nuisance is in a serious difficulty. If he bring an action at once, he
is told there is no nuisance; if he waits till the acts amount to a nuisance, he is told that a title by prescription
has been acquired. It is true that the Plaintiff experienced no nuisance till he built his consulting-room; but
every man has a right to the free use of his property for whatever purpose he pleases, provided he does not
annoy his neighbours, and he is entitled to be protected in such use.
1879, July 1. THESINGER, L.J. delivered the judgment of the Court (JAMES, BAGGALLAY, AND
THESINGER, L.JJ.) as follows:-...
In deciding this question one more fact is necessary to be stated. Prior to the erection of the
consulting-room no material annoyance or inconvenience was caused to the Plaintiff or to any previous
occupier of the Plaintiff's house by what the Defendant did. It is true that the Defendant in the 7th paragraph
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of his affidavit speaks of an invalid lady who occupied the house upon one occasion, about thirty years
before, and requested him if possible to discontinue the use of the mortars before eight o'clock in the
morning; and it is true also that there is some evidence of the garden wall having been subjected to vibration,
but this vibration, even if it existed at all, was so slight, and the complaint, if it could be called a complaint, of
the invalid lady, and can be looked upon as evidence, was of so trifling a character, that, upon the maxim de
minimis non curat lex, we arrive at the conclusion that the Defendant's acts would not have given rise to any
proceedings either at law or in equity. Here then arises the objection to the acquisition by the Defendant of
any easement. That which was done by him was in its nature such that it could not be physically interrupted;
it could not at the same time be put a stop to by action. Can user which is neither preventible nor actionable
be found an easement? We think not. The question, so far as regards this particular easement claimed, is the
same question whether the Defendant endeavours to assert his right by Common Law or under the
prescription act. That Act fixes periods for the acquisition of easements, but, except in regard to the
particular easement of light, or in regard to certain matters which are immaterial to the present inquiry, it
does not alter the character of easements, or of the user or enjoyment by which they are acquired. This being
so, the laws governing the acquisition of easements by user stands thus: Consent or acquiescence of the
owner of the servient tenement lies at the root of prescription, of the fiction of a lost grant, and hence the
acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law,
nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to acquiesce in the
acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or
constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere
extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to
hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence.
Upon this principle it was decided in Webb v. Bird that currents of air blowing from a particular quarter of
the compass and in Chasemore v. Richards that subterranean water percolating through the strata in no
known channels, could not be acquired as an easement by user; and in Angus v. Dalton a case of lateral
support of buildings by adjacent soil, which came on appeal to this Court, the principle was in no way
impugned, although it was held by the majority of the Court not to be applicable so as to prevent the
acquisition of that particular easement. It is a principle which must be equally appropriate to the case of
affirmative as of negative easements; in other words, it is equally unreasonable to imply your consent to your
neighbour enjoying something which passes from your tenement to his, as to his subjecting your tenement to
something which comes from his, when in both cases you have no power of prevention. But the affirmative
easement differs from the negative easement in this, that the latter can under no circumstances be interrupted
except by acts done upon the servient tenement, but the former, constituting, as it does, a direct interference
with the enjoyment by the servient owner of his tenement, may be the subject of legal proceedings as well as
of physical interruption. To put concrete cases-- the passage of light and air to your neighbour's windows
may be physically interrupted by you, but gives you no legal grounds of complaint against him. The passage
of water from his land on to yours may be physically interrupted, or may be treated as a trespass and made
the ground of action from damages, or for an injunction, or both. Noise is similar to currents of air and the
flow of subterranean and uncertain streams in its practical incapability of physical interruption, but it differs
from them in its capability of grounding an action. Webb v. Bird and Chasemore v. Richards are not,
therefore, direct authorities governing the present case. They are, however, illustrations of the principle
which ought to govern it; for until the noise, to take this case, became an actionable nuisance, which it did
not at any time before the consulting-room was built, the basis of the presumption of the consent, viz., the
power of prevention physically or by action, was never present. It is said that if this principle is applied in
cases like the present, and were carried out to its logical consequences, it would result in the most serious
practical inconveniences, for a man might go-- say-- into the midst of the tanneries of Bermondsey, or into
any other locality devoted to a particular trade or manufacture of a noisy or unsavoury character, and, by
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building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether.
The case also is put of a blacksmith's forge built away from all habitations, but to which, in course of time,
habitations approach. We do not think that either of these hypothetical cases presents any real difficulty. As
regards the first, it may be answered that whether anything is a nuisance or not is a question to be
determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances;
what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a
locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a
particular and established manner not constituting a public nuisance, judges and juries would be justified in
finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private
or actionable wrong. As regards the blacksmith's forge, that is really an idem per idem case with the present.
It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right
of action for acts which are not in the present condition of the adjoining land, and possibly never will be any
annoyance or inconvenience to either its owner or occupier; and it would be on the other hand in an equally
degree unjust, and, from a public point of view, inexpedient that the use and value of the adjoining land
should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of
acts incapable of physical interruption, and which the law gives no power to prevent. The smith in the case
supposed might protect himself by taking a sufficient curtilage to ensure what he does from being at any time
an annoyance to his neighbour, but the neighbour himself would be powerless in the matter. Individual cases
of hardship may occur in the strict carrying out of the principle upon which we found our judgement, but the
negation of the principle would lead even more to individual hardship, and would at the same time produce a
prejudicial effect upon the development of land for residential purposes. The Master of the Rolls in the Court
below took substantially the same view of the matter as ourselves and granted the relief which the Plaintiff
prayed for, and we are of opinion that his order is right and should be affirmed, and that this appeal should be
dismissed with costs.
QUESTIONS AND COMMENTS
1. Meticulous attention to the workings of economic, social and legal institutions is a hallmark of the work
of Ronald Coase, who won the Nobel Prize in economic science in 1990. Coase used Sturges v. Bridgman
(S-B) in two of his papers ca. 1960, "The Federal Communications Commission" and "The Problem of Social
Cost," both published in The Journal of Law and Economics.
2. Why are we interested in the case? What does it disclose about the nature of litigation, about the nature
of property law, about the way that problems of externality show up in property litigation? In what sense is
the judicial finding an assignment of property rights? How does traditional economic analysis of externality
describe the nature of the controversy in S-B? Does the judicial finding leave room for further gains of
efficiency through bargaining? Had the finding gone the other way, in favor of Bridgman, would there have
been possible gains from further bargaining? Does the finding affect the way that subsequent bargaining will
proceed, or the way that bargaining will "turn out"?
3. It seems that this case is but a small dispute between neighbors over who came first, and whose right to
be free of noise supersedes another's right to go on making noise. The financial stake here can't be very high;
at the cost of moving two mortars and pestles, or at worst, that plus the cost of building a double wall
between the kitchen and the examining room, the whole problem would go away. Why, then, apart from a
narcissistic love of one's own prose, perhaps, does the decision continue at such infernal length? (Unlike the
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cases to follow, I have edited this one only by removing citations to the legal texts.) The answer, I think, is
that the court sees many such cases erupting in the future as London grows and land uses are changed from
rural to urban, or from residential to manufacturing, or from manufacturing to residential. The decision takes
great pains to limit the nature of the right of prescriptive use, and to clarify what shall govern in such disputes
(the last couple of pages, covering hypotheticals involving a residence in Bermondsey and a blacksmith's
forge in a newly developed residential district, being instructive as to intent). If in fact the appeal court did
not include such detailed description of the testimony and such thorough statement of finding, the case would
be vastly less useful to us as a learning tool.
4. Consider those two hypotheticals about the blacksmith and Bermondsey. Do they add up to more than
the statement: when a use entails very high external costs, it shall be terminated or prohibited? How would
"very high" be determined? Notice the reciprocal nature of externality suggested in the hypotheticals. The
blacksmith inflicts nuisance on his neighbors, but the neighbors, in complaining, inflict costs on the
blacksmith. The householder in Bermondsey, by putting himself in the way of nuisance from the tanneries,
imposes costs on the tanneries.
5. At one point in the decision, immediately after reference to "the London season" on the fourth page, first
full paragraph of text, it is recognized that a likely effect of a finding for the Plaintiff will be that the
Defendant will take steps to curtail his noise by moving his mortars. Is that the right outcome?
6. Suppose the finding had been for the Defendant. What changes would the Plaintiff have been induced to
make in order to adjust? If it had been the case that doubling the wall was vastly more expensive than moving
the mortars, might the plaintiff have tried to bargain with the defendant to let the plaintiff pay to move the
defendant's mortars away from the party wall?
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Case 2: Acquisition by Discovery or Conquest
Johnson v. M'Intosh
21 U.S. (8 Wheat.) 543 (1823)
Error to the District Court of Illinois. This was an action of ejectment for lands in the State and
District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians,
and by the defendant, under a [later] grant from the United States. It came up on a case stated, upon which
there was a judgment below for the defendant....
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. The plaintiffs in this cause
claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and
the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations;
and the question is, whether this title can be recognized in the Courts of the United States?
The facts, as stated in the case agreed, show the authority of the chiefs who executed this
conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for
whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a
great measure, confined to the power of Indians to give, and of private individuals to receive, a title which
can be sustained in the Courts of this country.
As the right of society, to prescribe those rules by which property may be acquired and preserved is
not, and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend
entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine,
not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his
creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose
perfect independence is acknowledged; but those principles also which our own government has adopted in
the particular case, and given us as the rule for our decision. On the discovery of this immense continent, the
great nations of Europe were eager to appropriate to themselves so much of it as they could respectively
acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and
religion of its inhabitants afforded an apology for considering them as a people over whom the superior
genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in
convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on
them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of
nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with
each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition,
which they all asserted, should be regulated as between themselves. This principle was, that discovery gave
title to the government by whose subjects, or by whose authority, it was made, against all other European
governments, which title might be consummated by possession. The exclusion of all other Europeans,
necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and
establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which
all asserted for themselves, and to the assertion of which, by others, all assented.
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Those relations which were to exist between the discoverer and the natives, were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the
establishment of these relations, the rights of the original inhabitants were, in no instance, entirely
disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to
their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied
by the original fundamental principle, that discovery gave exclusive title to those who made it. While the
different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate
dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a
power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to
convey a title to the grantees, subject only to the Indian right of occupancy. The history of America, from its
discovery to the present day, proves, we think, the universal recognition of these principles.
The States of Holland also made acquisitions in America, and sustained their right on the common principle
adopted by all Europe.... The claim of the Dutch was always contested by the English; not because they
questioned the title given by discovery, but because they insisted on being themselves the rightful claimants
under that title. Their pretensions were finally decided by the sword.
No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The
documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a
commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of
them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and
discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery
the English trace their title.
In this first effort made by the English government to acquire territory on this continent, we perceive a
complete recognition of the principle which has been mentioned. The right of discovery given by this
commission, is confined to countries "then unknown to all Christian people"; and of these countries Cabot
was empowered to take possession in the name of the king of England. Thus asserting a right to take
possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time,
admitting the prior title of any Christian people who may have made a previous discovery. The same
principle continued to be recognized....
Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves,
and have recognized in others the exclusive right of the discoverer to appropriate the lands occupied by the
Indians. Have the American States rejected or adopted this principle? By the treaty which concluded the
war of our revolution, Great Britain relinquished all claim, not only to the government, but to the "propriety
and territorial rights of the United States," whose boundaries were fixed in the second article. By this treaty,
the powers of government, and the right to soil, which had previously been in Great Britain, passed
definitively to these States. We had before taken possession of them, by declaring independence; but neither
the declaration of independence, nor the treaty confirming it, could give us more than that which we before
possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United
States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty,
subject only to the Indian right of occupancy and that the exclusive power to extinguish that right, was vested
in that government which might constitutionally exercise it. Virginia, particularly, within whose chartered
limits the land in controversy lay, passed an act, in the year 1779, declaring her exclusive right of pre-emption
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from the Indians, of all the lands within the limits of her own chartered territory, and that no person or
persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation,
except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony,
and lately for the Commonwealth.
The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the
purchasers....
Although we do not mean to engage in the defence of those principles which Europeans have applied to
Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people
whose rights have been wrested from them.
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity,
however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.
Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the
government with which they are connected. The new and old members of the society mingle with each other;
the distinction between them is gradually lost, and they make one people. Where this incorporation is
practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property
should remain unimpaired; that the new subjects should be governed as equitably as the old, and that
confidence in their security should gradually banish the painful sense of being separated from their ancient
connexions, and united by force to strangers. When the conquest is complete, and the conquered inhabitants
can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even
the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to
his fame, and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose
subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the
country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as
high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans were under the necessity
either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims
by the sword, and by the adoption of principles adapted to the condition of a people with whom it was
impossible to mix, and who could not be governed as a distinct society, or of remaining in their
neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued.
European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians
necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them.
The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the
crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out
according to the will of the sovereign power, and taken possession of by persons who claimed immediately
from the crown, or mediately, through its grantees or deputies. That law which regulates, and ought to
regulate in general, the relations between the conqueror and conquered, was incapable of application to a
people under such circumstances. The resort to some new and different rule, better adapted to the actual
state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great
difficulty. However extravagant the pretension of converting the discovery of an inhabited country into
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conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a
country has been acquired and held under it; if the property of the great mass of the community originates in
it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant
principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while
in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to
others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet,
if it be indispensable to that system under which the country has been settled, and be adapted to the actual
condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by
Courts of justice....
It has never been contended, that the Indian title amounted to nothing. Their right of possession has never
been questioned. The claim of government extends to the complete ultimate title, charged with this right of
possession, and to the exclusive power of acquiring that right... . [But] ... the Court is decidedly of opinion,
that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that
there is no error in the judgment which was rendered against them in the District Court of Illinois.
Judgment affirmed, with costs.
QUESTIONS AND COMMENTS
1. Be sure you understand the issue at stake in this case (and every case in this folio), and that you
understand the outcome.
2. Can you think of efficiency reasons why the Court is justified in upholding the right of the nation to be a
monopolistic negotiator of land rights with the Native American occupants? Let your mind wander over
questions like: How is date of title conclusively established, in the event of conflicting claims? In instances
where different Indian tribes cannot agree on whose claim is primary, how do private negotiators reconcile
the claims of different tribes? Does the national government, acting as a negotiator, exemplify the benefit of
"monopolization of force," and serve in any way to protect the rights of the Indians, as against, for example,
private armies bent on conquest or seizure of rights?
3. The opinion clearly lays out the doctrine of "first in time:" "discovery" establishes a claim of ownership.
But is "conquest" a more accurate description of what took place than "discovery"? With respect to original
ownership of things otherwise in a state of nature, the law has held that taking possession of unowned things
is the only possible way to acquire ownership of them. Is the doctrine of conquest consistent with this
assertion? Conquest is the forceful seizure of enemy territory, followed by formal annexation by the
conqueror. In America, conquest gives possession because the Indians had title by virtue of first possession:
a forced and not a voluntary transfer. But did Indian occupancy take the land out of "a state of nature?"
Even in the eighteenth century, conquest was an uncomfortable idea to the English. The Spanish were
unabashed and unapologetic conquerors through much of South America, but the English portrayed the
Indians as something less than legitimate owners, as mere occupants who happened to be on (rather than
holding any title to) the lands discovered and not conquered. The settlers could righteously support this view
by imposing their own ethnocentric concepts of what amounted to actual possession; the Indians, after all,
had not generally cultivated and improved their lands the way a European would. There is visible discomfort
over the question of discovery versus conquest in Chief Justice Marshall's opinion. He seems to justify the
view of discovery on the ground that the Indians did not behave as a proper conquered people should: by
assimilation into the body of the conqueror: and hence the land must have been discovered.
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In many instances, Indian land was obtained by means other than conquest and eviction. England claimed
title to all the lands in North America that it had discovered. But the title recognized a right of exclusive and
perpetual possession on the part of the Indians. If the Indians abandoned the land in question, it then
belonged fully to the claimant of the title; if the Indians wished to sell their possessory rights, they could sell
only to the holder of the title. The settlers recognized, in other words, that the tribes had some legitimate
(though limited) rights. These matters are hinted at in Johnson v. M'Intosh.
Much of the land in North America once used by the Native Americans and eventually coming into the
possession of the United States was conveyed by grant from the Indians under treaty provisions and in
exchange for promises from the U.S. government. Some of those lands were conveyed after the tribes lost
wars with the U.S. and in those instances their best deal usually was promise of protected title to a portion of
their former land claim, which established what we call Indian reservations. Those reservation lands are
protected by the full range of constitutional protections, unlike the claims that existed on behalf of the Indians
before conquest. If the government subsequently takes reservation land, it must pay just compensation.
Today it is hard to ignore the sheer audacity with which the superior claims of the Europeans were asserted
by force. But what efficiency arguments can be made on behalf of what happened: could alternative property
arrangements have led to less bloodshed on the one hand, and an equally or more productive use of the
contested land on the other?
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Cases 3, 4 and 5: Finding Lost or Abandoned Property
3. Treasure Salvors Inc. v. Wrecked and Abandoned Sailing Vessel
United States Court of Appeals, Fifth Circuit
640 F.2d 560 (1981)
[THIS SUMMARY IS FROM THE FIRST CASE INVOLVING TREASURE SALVORS TO REACH
THE U.S. COURT OF APPEALS, THREE YEARS BEFORE THE CASE IN THE HEADING]
Treasure Salvors, Inc., and Armada Research Corp., Florida corporations, sued for possession of and
confirmation of title to an unidentified wrecked and abandoned vessel thought to be the Nuestra Senora de
Atocha. The Atocha sank in the sea off the Marquesas Keys in 1622 while en route to Spain. The United
States intervened, answered, and counterclaimed, asserting title to the vessel.
Summary judgment was entered for the plaintiffs, 408 F. Supp. 907(S.D.Fla.1976), and the government
appealed. We modify the district court's judgment, and affirm.
This action evokes all the romance and danger of the buccaneering days in the West Indies. It is rooted in
an ancient tragedy of imperial Spain, and embraces a modern tragedy as well. The case also presents the
story of a triumph, a story in which the daring and determination of the colonial settlers are mirrored by
contemporary treasure seekers.
In late summer of 1622 a fleet of Spanish galleons, heavily laden with bullion exploited from the mines of
the New World, set sail for Spain. Spain, at this period in her history, was embroiled in the vicious religious
conflicts of the Thirty Years' War and desperately needed American bullion to finance her costly military
adventures. As the fleet entered the Straits of Florida, seeking the strongest current of the Gulf Stream, it
was met by a hurricane which drove it into the reef-laced waters off the Florida Keys. A number of vessels
went down, including the richest galleon in the fleet, Nuestra Senora de Atocha. Five hundred fifty persons
perished, and cargo with a contemporary value of perhaps $250 million was lost. A later hurricane shattered
the Atocha and buried her beneath the sands.
For well over three centuries the wreck of the Atocha lay undisturbed beneath the wide shoal west of the
Marquesas Keys, islets named after the reef where the Marquis of Cadereita camped while supervising
unsuccessful salvage operations. Then, in 1971, after an arduous search aided by survivors' accounts of the
1622 wrecks, and an expenditure of more than $2 million, plaintiffs located the Atocha. Plaintiffs have
retrieved gold, silver, artifacts, and armament valued at $6 million. Their costs have included four lives,
among them the son and daughter-in-law of Melvin Fisher, plaintiffs' president and leader of the expedition.
...
Our brief historical summary is based in part on Lyon, The Trouble with Treasure, 149 National
Geographic 787 (June 1976).
[THIS BEGINS THE TEXT OF THE 1981 CASE]
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OPINION: RANDALL. This appeal marks the third time that Treasure Salvors and its efforts to retrieve
treasure from the remains of the Spanish sailing vessel, Nuestra Senora de Atocha, have been before this
court. The Nuestra Senora de Atocha sank off the coast of Florida in 1622 while carrying gold and silver
bullion from Havana to Cadiz. In 1971 Treasure Salvors located an anchor from the Atocha; since then,
Treasure Salvors has continued to conduct salvage operations in the wreck area and has retrieved gold and
silver bullion, artifacts and armaments.
The first legal battle over Treasure Salvors' rights to the remains of the Atocha began when Treasure
Salvors filed an in rem action in the United States District Court for the Southern District of Florida seeking
possession of and confirmation of title to the remains of the vessel and its cargo. The United States
intervened and counterclaimed for title to the vessel. The district court entered an order granting judgment
for Treasure Salvors as against the United States and also decreed that Treasure Salvors had sole title to, and
right to immediate and sole possession of, the vessel and its cargo "wherever the same may be found."
On appeal, we affirmed the district court's judgment insofar as it resolved the competing title claims of
Treasure Salvors and the United States; however, we modified the district court's order by refusing to
approve that portion of the order which purported to hold that Treasure Salvors had exclusive title to, and
the right to immediate and sole possession of, the vessel and cargo as to other claimants, who were not
parties or privies to the action. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing
Vessel, 569 F.2d 330, 336 (5th Cir. 1978) (Treasure Salvors I ).
The second legal battle over rights to the wreckage of the Atocha involved Treasure Salvors and the State
of Florida. In 1971 Treasure Salvors and the State entered into the first of a series of contracts which
granted Treasure Salvors the right to conduct underwater salvage operations on the Atocha and gave the
State a right to receive 25% of the property recovered as a result of such operations. Both parties entered
into these agreements in the belief that the Atocha rested on a submerged reef owned by the State of Florida.
Both parties were mistaken in that belief. In 1975, the Supreme Court rejected Florida's claim to ownership
of that portion of the continental shelf where the remains of the Atocha rest, United States v. Florida, 420
U.S. 531, 95 S. Ct. 1162, 43 L. Ed. 2d 375 (1975). Thereafter, Treasure Salvors instituted an action to
recover from the State the artifacts which had been transferred to it pursuant to the terms of the contracts.
The district court again entered judgment for Treasure Salvors reasoning, first, that the State of Florida was
bound by the earlier judgment in Treasure Salvors I, and alternatively, that the suit to establish title to the
artifacts was not barred by the Eleventh Amendment and that, under the law of contracts, the State had no
meritorious claim to ownership of the artifacts in its possession. While specifically declining to affirm or
reverse the district court's ruling that the State was bound by the holding in Treasure Salvors I, we agreed
with the district court's conclusion that the suit was not barred by the Eleventh Amendment and affirmed the
judgment of the district court on the alternative contract law theory of mutual mistake. State of Florida,
Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir. 1980) (Treasure Salvors II ).
This appeal (certain to be christened Treasure Salvors III) arose not out of Treasure Salvors' difficulties
with a sovereign but from a controversy between Treasure Salvors and another salvor. In its original action
seeking a declaration of possessory and ownership rights to the Atocha, Treasure Salvors had defined the
location of the wreck in terms of a circle having a radius extending 2500 yards from a point at coordinates
24o 31' 5 North Latitude and 82o 50' West Longitude. On May 10, 1979, Treasure Salvors filed an amended
description of the wreck site claiming that the remains of the Atocha were scattered throughout a corridor
3,000 yards wide which extended from 24o 27' North Latitude and 82o 18' West Longitude, to 24o 33' 42
North Latitude and 82o 27' 42 West Longitude. Treasure Salvors again amended its description of the
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vessel's location on December 11, 1979, when it declared that it had found another anchor belonging to the
Atocha at 24o 30' North Latitude and 82o 15' West Longitude and announced that it was continuing to
conduct salvage operations in the area between this point and the site of the first anchor at 24o 31' 50 North
Latitude and 82o50' West Longitude. Treasure Salvors continues to claim title to all remains of the vessel
and the exclusive right to conduct salvage operations in the area between these points.
On December 11, 1979, Treasure Salvors also filed a motion for a temporary restraining order claiming
that Olin Frick, John Gasque, William Riley and the Masters of the Motor Vessels "Juniper" and "Seaker"
were wrongfully interfering with Treasure Salvors' right to possession and salvage of the Atocha by
conducting salvage operations within 1500 yards of the point where the second anchor had been recovered.
Treasure Salvors also claimed that threatening shots had been fired by someone aboard one of the defendants'
vessels. The district court granted Treasure Salvors' request for a temporary restraining order and later
issued a preliminary injunction prohibiting the defendants from interfering with Treasure Salvors' search and
salvage operations within an area extending 2500 yards from either side of a line drawn between the two
points contained in Treasure Salvors' latest description of the wreck site. Frick and his co-defendants have
brought this appeal from that injunction.
On appeal two jurisdictional issues, one concerning our ability to review the order entered by the district
court at this time and the other involving the district court's power to resolve this dispute, require our
consideration. We conclude, however, that neither of these jurisdictional questions bars our consideration of
the merits of the injunction. For the reasons set forth herein, we affirm the district court's injunctive order
but modify it to provide that it shall expire no later than 90 days following the issuance of our mandate in
order to speed resolution of the merits of this unusual dispute. [SECTION ON APPEALABILITY OF
INJUNCTION OMITTED]
FEDERAL COURT JURISDICTION OVER THE PRESENT CONTROVERSY
In the course of the extended legal proceedings in which Treasure Salvors has attempted to assert and
protect a legal claim to the remains of the Atocha, this court has encountered and resolved numerous
jurisdictional puzzles. The original complaint filed by Treasure Salvors was an in rem proceeding in
admiralty seeking possession of and confirmation of title to the wreck. The answer and counterclaim filed by
the United States asserted first, that the district court lacked in rem jurisdiction over that portion of the
wreck which remained under the sea because it was not located within the district (and thus could not grant
exclusive possession or title of it to Treasure Salvors) and second, that the United States had valid title to the
sunken remains of the Atocha pursuant to the Antiquities Act... and the Abandoned Property Act ... . The
district court, apparently concluding that the location of the sunken wreck did not limit its power to grant an
in rem decree affecting it, entered an order granting Treasure Salvors title, as against the whole World, to the
vessel and its remains, "wherever the same may be found."
On appeal, although acknowledging that the usual predicate for in rem jurisdiction the presence of the res
within the territorial jurisdiction of the court was not met, we found that the district court had jurisdiction to
adjudicate the interests of Treasure Salvors and the United States in the vessel. We rested that determination
on alternative grounds. First, we observed that the situation in Treasure Salvors I was similar to that in
several other cases in which courts had reasoned that the absence of the res from the territorial jurisdiction of
the court was not fatal to jurisdiction to adjudicate a controversy where the contending parties consented to
the court's jurisdiction over their interest in the absent res. In Treasure Salvors I, however, it was not
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necessary to determine whether to employ this exception to the usual prerequisite for in rem jurisdiction
because in that case the claim of the United States was based on federal statutes ...
[The U.S. Code] grants federal courts jurisdiction of all cases involving admiralty or maritime claims.
Claims arising out of salvage operations efforts to rescue or recover ships disabled or abandoned at sea or to
retrieve their cargo are, unquestionably, within the admiralty jurisdiction of the federal courts. The subject
matter jurisdiction granted by this statute is not limited to causes of action arising from events or occurrences
on the territorial waters of the United States. ...
The most common type of legal claim arising from salvage operations and asserted in the admiralty courts
involves a salvor's assertion of his right to a monetary award which the maritime law provides as an incentive
to encourage persons to assist distressed or endangered vessels. The performance of salvage services, like
the furnishing of other services to a ship, gives rise to a maritime lien. Thus, a salvor may assert his right to a
salvage award either in an in rem proceeding against the salved vessel or cargo or in an in personam
proceeding against the owner of the salved property. Awards for performance of salvage services are not
limited to a strict quantum meruit measure of the value of the services performed. Rather, the award is
calculated to include a bounty or premium based upon the risk involved in the operation and the skill with
which it was performed.
A salvor thus has a valuable interest in his salvage operation which the law protects by vesting in the salvor
certain rights. Among the most important of these rights are the right to exclude others from participating in
the salvage operations, so long as the original salvor appears ready, willing and able to complete the salvage
project, and the right to possession of the salved property, a right exclusive even of the owner, until such
time as the salvage lien on the property is extinguished or adequate security for this obligation is given.
Although the law of salvage grants the salvor a right to possession of the property, the salvage of a vessel or
goods at sea, even when the goods have been abandoned, does not divest the original owner of title or grant
ownership rights to the salvor, except in extraordinary cases, such as this one, where the property has been
lost or abandoned for a very long period. Under these unusual circumstances the maritime law of finds
supplements the possessory interest normally granted to a salvor and vests title by occupancy in one who
discovers such abandoned property and reduces it to possession. ...
This type of claim to title by occupancy can, of course, be asserted in an in rem proceeding instituted once
the goods have been recovered and brought to shore within the jurisdiction of the court. However, since the
law of maritime salvage and finds also protects the right of a salvor who undertakes a project to carry it to
completion without interference from others who seek to share in the enterprise and the reward, we think
that the admiralty and maritime jurisdiction of the federal courts also encompasses the power to entertain a
salvor's claim that another is wrongfully interfering with his ongoing endeavors and to grant such relief as
may be appropriate in order to protect a salvor's right to pursue his salvage endeavor exclusively, even
though the property which is the subject of the salvage effort might not be within the territorial jurisdiction of
the court. The fact that the property which is the subject of the salvage effort is not within the territorial
jurisdiction of the court, and thus not subject to an in rem decree, is irrelevant because the salvor's claim is
not one in rem seeking to recover against the vessel for salvage in which the in rem fiction is used to
personify the vessel and treat it as a party to the litigation. Although rights to the vessel may be the subject
of the dispute, the adverse parties in this situation are the competing salvors. Thus, since the court has
jurisdiction over them, and the subject involves claims based on the maritime law of salvage and of finds, the
court is fully competent to adjudicate the dispute regardless of the location of the salvage operations.
...
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Although cases involving the principles of the law of finds are few and far between, we think that a basic
principle emerges with some clarity from the cases which have considered problems similar to the one
presented here. Persons who actually reduce lost or abandoned objects to possession and persons who are
actively and ably engaged in efforts to do so are legally protected against interference from others, whereas
persons who simply discover or locate such property, but do not undertake to reduce it to possession, are
not. This principle reflects a very simple policy: the law acts to afford protection to persons who actually
endeavor to return lost or abandoned goods to society as an incentive to undertake such expensive and risky
ventures; the law does not clothe mere discovery with an exclusive right to the discovered property because
such a rule would provide little encouragement to the discoverer to pursue the often strenuous task of
actually retrieving the property and returning it to a socially useful purpose and yet would bar others from
attempting to do so.
These cases also suggest that in determining property rights in lost or abandoned objects, some equitable
considerations come into play in determining the legal protection afforded a finder. For example, in Eads v.
Brazelton, the court noted that the location of the wreck in controversy was well known. Although
Brazelton had marked the site, it did not appear that Eads had relied on those markings in finding the wreck.
Thus the court did not think Brazelton's actions in marking the site represented such an investment of skill
and effort that equity would suggest that he be afforded some special protection or priority in the conduct of
salvage operations on the vessel. In Rickard v. Pringle, by contrast, the court suggested that Pringle had
relied on Rickard's buoys and markers in order to find the propeller. Thus, the court may well have been
influenced not only by the extent of Rickard's salvage endeavors, but also by some notion of unjust
enrichment, i.e., a sense that Pringle in retrieving the propeller, had unfairly appropriated the fruits of the
labor Rickard invested in discovering the propeller. We think that, in determining the extent of Treasure
Salvors' right vis-a-vis the defendants, the district court in this case should examine the facts concerning
Treasure Salvors' discovery and salvage of the Atocha from the perspective of these equitable considerations
as well as in light of the legal doctrines defining the acts necessary to constitute possession of lost or
abandoned property.
The judgment of the district court is MODIFIED, AND AS MODIFIED, AFFIRMED. The case is
REMANDED for further proceedings not inconsistent with this opinion.
QUESTIONS AND COMMENTS
1. The cases arising out of the activity of Treasure Salvors Inc. are dealing with big issues monetarily. The
Atocha was carrying 47 tons of gold and silver bullion and objects when she went down. The 1978 estimate
holds the value of the cargo at $250 million. At that time gold traded for less than $200 per ounce.
2. Be sure you understand the incentive effects and economic logic of salvage rules, at least insofar as the
court touches on those issues in the above opinion.
3. Treasure Salvors, in its dollar magnitude, stands in interesting contrast to the cases discussed in the
opinion of Hannah v. Peel (Case 6).
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4. Armory v. Delamirie
King's Bench
1 Strange 525 (1722)
The plaintiff being a chimney sweeper's boy found a jewel and carried it to the defendant's shop (who was a
goldsmith) to know what it was, and delivered it into the hands of the apprentice, who under pretence of
weighing it, took out the stones, and calling to the master to let him know it came to three halfpence, the
master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the
apprentice delivered him back the socket without the stones. And now in trover against the master these
points were ruled:
1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership,
yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently
may maintain trover.
...
3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water
that would fit the socket would be worth; and the Chief Justice directed the jury, that unless the defendant
would produce the jewel, and shew it not to be of the finest water, they should presume the strongest against
him, and make the value of the best jewels the measure of their damages: which they accordingly did.
QUESTIONS AND COMMENTS
1. This oldie-but-goodie has several interesting dimensions, mainly, the assignment of an unequivocal right of
ownership to the finder (where was the owner of the chimney in all of this-- was the ring found in a
chimney?) and the manner in which the jewel taken from the ring was valued, a method that assured that if
there were any error in valuing the jewel, it would be an error in favor of the finder.
2. If the ring was indeed found in a chimney (a question on which our brief summary is silent), then it
constitutes a very close parallel to case 5 which follows. Armory is only briefly cited in case 5.
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5. Hannah v. Peel
King's Bench Division, 509 (1945)
On December 13, 1938, the freehold of Gwernhaylod House, Overton-on-Dee, Shropshire, was
conveyed to the defendant, Major Hugh Edward Ethelston Peel, who from that time to the end of 1940 never
himself occupied the house and it remained unoccupied until October 5, 1939, when it was requisitioned [for
quartering soldiers], but after some months was released from requisition. Thereafter it remained unoccupied
until July 18, 1940, when it was again requisitioned, the defendant being compensated by a payment at the
rate of £250 a year. In August, 1940, the plaintiff, Duncan Hannah, a lance-corporal, serving in a battery of
the Royal Artillery, was stationed at the house and on the 21st of that month, when in a bedroom, used as a
sick-bay, he was adjusting the black-out curtains when his hand touched something on the top of a windowframe, loose in a crevice, which he thought was a piece of dirt or plaster. The plaintiff grasped it and
dropped it on the outside window ledge. On the following morning he saw that it was a brooch covered with
cobwebs and dirt. Later, he took it with him when he went home on leave and his wife having told him it
might be of value, at the end of October, 1940, he informed his commanding officer of his find and, on his
advice, handed it over to the police, receiving a receipt for it. In August, 1942, the owner not having been
found the police handed the brooch to the defendant, who sold it in October, 1942, for £66, to Messrs. Spink
& Son, Ltd., of London, who resold it in the following month for £88. There was no evidence that the
defendant had any knowledge of the existence of the brooch before it was found by the plaintiff. The
defendant had offered the plaintiff a reward for the brooch, but the plaintiff refused to accept this and
maintained throughout his right to the possession of the brooch as against all persons other than the owner,
who was unknown. By a letter, dated October 5, 1942, the plaintiff's solicitors demanded the return of the
brooch from the defendant, but it was not returned and on October 21, 1943, the plaintiff issued his writ
claiming the return of the brooch, or its value, and damages for its detention. By his defence, the defendant
claimed the brooch on the ground that he was the owner of Gwernhaylod House and in possession thereof....
BIRKETT, J. There is no issue of fact in this case between the parties. As to the issue in law, the rival
claims of the parties can be stated in this way: The plaintiff says: "I claim the brooch as its finder and I have a
good title against all the world, save only the true owner." The defendant says: "My claim is superior to
yours inasmuch as I am the freeholder. The brooch was found on my property, although I was never in
occupation, and my title, therefore, ousts yours and in the absence of the true owner I am entitled to the
brooch or its value." Unhappily the law on this issue is in a very uncertain state and there is need of an
authoritative decision of a higher court. Obviously if it could be said with certainty that this is the law, that
the finder of a lost article, wherever found, has a good title against all the world save the true owner, then, of
course, all my difficulties would be resolved; or again, if it could be said with equal certainty that this is the
law, that the possessor of land is entitled as against the finder to all chattels found on the land, again my
difficulties would be resolved. But, unfortunately, the authorities give some support to each of these
conflicting propositions....
[In] ... Bridges v. Hawkesworth...the facts appear to have been that in the year 1847 the plaintiff, who was
a commercial traveller, called on a firm named Byfield & Hawkesworth on business, as he was in the habit of
doing, and as he was leaving the shop he picked up a small parcel which was lying on the floor. He
immediately showed it to the shopman, and opened it in his presence, when it was found to consist of a
quantity of Bank of England notes, to the amount of £651. The defendant, who was a partner in the firm of
Byfield & Hawkesworth, was then called, and the plaintiff told him he had found the notes, and asked the
defendant to keep them until the owner appeared to claim them. Then various advertisements were put in the
papers asking for the owner, but the true owner was never found. No person having appeared to claim them,
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and three years having elapsed since they were found, the plaintiff applied to the defendant to have the notes
returned to him, and offered to pay the expenses of the advertisements, and to give an indemnity. The
defendant refused to deliver them up to the plaintiff, and an action was brought in the county court of
Westminster in consequence of that refusal. The county court judge decided that the defendant, the
shopkeeper, was entitled to the custody of the notes as against the plaintiff, and gave judgment for the
defendant. Thereupon the appeal was brought which came before the court composed by Patteson, J., and
Wightman, J. Patteson, J., said: "The notes which are the subject of this action were incidentally dropped, by
mere accident, in the shop of the defendant, by the owner of them. The facts do not warrant the supposition
that they had been deposited there intentionally, nor has the case been put at all upon that ground. The
plaintiff found them on the floor, they being manifestly lost by someone. The general right of the finder to
any article which has been lost, as against all the world, except the true owner, was established in the case of
Armory v. Delamirie,... which has never been disputed. This right would clearly have accrued to the plaintiff
had the notes been picked up by him outside the shop of the defendant and if he once had the right, the case
finds that he did not intend, by delivering the notes to the defendant, to waive the title (if any) which he had
to them, but they were handed to the defendant merely for the purpose of delivering them to the owner
should he appear." Then a little later: "The case, therefore, resolves itself into the single point on which it
appears that the learned judge decided it, namely, whether the circumstance of the notes being found inside
the defendant's shop gives him, the defendant, the right to have them as against the plaintiff, who found
them." After discussing the cases, and the argument, the learned judge said: "If the discovery had never been
communicated to the defendant, could the real owner have had any cause of action against him because they
were found in his house? Certainly not. The notes never were in the custody of the defendant, nor within the
protection of his house, before they were found, as they would have been had they been intentionally
deposited there; and the defendant has come under no responsibility, except from the communication made to
him by the plaintiff, the finder, and the steps taken by way of advertisement. ... We find, therefore, no
circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to
it as against all persons except the real owner, and we think that rule must prevail, and that the learned judge
was mistaken in holding that the place in which they were found makes any legal difference. Our judgment,
therefore, is that the plaintiff is entitled to these notes as against the defendant."
...
With regard to South Staffordshire Water Co. v. Sharman... the first two lines of the headnote are: "The
possessor of land is generally entitled, as against the finder, to chattels found on the land." I am not sure that
this is accurate. The facts were that the defendant Sharman, while cleaning out, under the orders of the
plaintiffs, the South Staffordshire Water Company, a pool of water on their land, found two rings embedded
in the mud at the bottom of the pool. He declined to deliver them to the plaintiffs, but failed to discover the
real owner. In an action brought by the company against Sharman in detinue it was held that the company
was entitled to the rings. Lord Russell of Killowen, C.J., said: "The plaintiffs are the freeholders of the locus
in quo, and as such they have the right to forbid anybody coming on their land or in any way interfering with
it. They had the right to say that their pool should be cleaned out in any way that they thought fit, and to
direct what should be done with anything found in the pool in the course of such cleaning out. It is no doubt
right, as the counsel for the defendant contended, to say that the plaintiffs must show that they had actual
control over the locus in quo and the things in it; but under the circumstances, can it be said that the Minster
Pool and whatever might be in that pool were not under the control of the plaintiffs? In my opinion they
were.... The principle on which this case must be decided, and the distinction which must be drawn between
this case and that of Bridges v. Hawkesworth, is to be found in a passage in Pollock and Wright's Essay on
Possession in the Common Law, p.41: 'The possession of land carries with it in general, by our law,
possession of everything which is attached to or under that land, and, in the absence of a better title
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elsewhere, the right to possess it also...'" and it makes no difference that the possessor is not aware of the
thing's existence....
Then Lord Russell cited the passage which I read earlier in this judgment and continued: "It is somewhat
strange"--I venture to echo those words--"that there is no more direct authority on the question; but the
general principle seems to me to be that where a person has possession of house or land, with a manifest
intention to exercise control over it and the things which may be upon or in it, then, if something is found on
that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of
that thing is in the owner of the locus in quo." It is to be observed that Lord Russell there is extending the
meaning of the passage he had cited from Pollock and Wright's essay on Possession in the Common Law,
where the learned authors say that the possession of "land carries with it possession of everything which is
attached to or under that land." Then Lord Russell adds possession of everything which may be on or in that
land. South Staffordshire Water Co. v. Sharman, which was relied on by counsel for the defendant, has also
been the subject of some discussion. It has been said that it establishes that if a man finds a thing as the
servant or agent of another, he finds it not for himself, but for that other, and indeed that seems to afford a
sufficient explanation of the case. The rings found at the bottom of the pool were not in the possession of the
company, but it seems that though Sharman was the first to obtain possession of them, he obtained them for
his employers and could claim no title for himself.
The only other case to which I need refer is Elwes v. Brigg Gas Co., in which land had been demised to a
gas company for ninety-nine years with a reservation to the lessor of all mines and minerals. A pre-historic
boat embedded in the soil was discovered by the lessees when they were digging to make a gasholder. It was
held that the boat, whether regarded as a mineral or as part of the soil in which it was embedded when
discovered, or as a chattel, did not pass to the lessees by the demise, but was the property of the lessor
though he was ignorant of its existence at the time of granting the lease. Chitty, J., said: "The first question
which does actually arise in this case is whether the boat belonged to the plaintiff at the time of the granting
of the lease. I hold that it did, whether it ought to be regarded as a mineral, or as part of the soil within the
maxim above cited, or as a chattel. If it was a mineral or part of the soil in the sense above indicated, then it
clearly belonged to the owners of the inheritance as part of the inheritance itself. But if it ought to be
regarded as a chattel, I hold the property in the chattel was vested in the plaintiff, for the following reasons."
Then he gave the reasons, and continued: "The plaintiff then being thus in possession of the chattel, it follows
that the property in the chattel was vested in him. Obviously the right of the original owner could not be
established; it had for centuries been lost or barred, even supposing that the property had not been abandoned
when the boat was first left on the spot where it was found. The plaintiff, then, had a lawful possession,
good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in
these circumstances, that the plaintiff was not aware of the existence of the boat." A review of these
judgments shows that the authorities are in an unsatisfactory state. It is fairly clear from the authorities that a
man possesses everything which is attached to or under his land. Secondly, it would appear to be the law
from the authorities I have cited, and particularly from Bridges v. Hawkesworth, that a man does not
necessarily possess a thing which is Iying unattached on the surface of his land even though the thing is not
possessed by someone else. A difficulty, however, arises ... because the rule which governs things an
occupier possesses as against those which he does not, has never been very clearly formulated in our law. He
may possess everything on the land from which he intends to exclude others, ... or he may possess those
things of which he has a de facto control... . There is no doubt that in this case the brooch was lost in the
ordinary meaning of that term, and I should imagine it had been lost for a very considerable time. Indeed,
from this correspondence it appears that at one time the predecessors in title of the defendant were
considering making some claim. But the moment the plaintiff discovered that the brooch might be of some
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value, he took the advice of his commanding officer and handed it to the police. His conduct was
commendable and meritorious. The defendant was never physically in possession of these premises at any
time. It is clear that the brooch was never his, in the ordinary acceptation of the term, in that he had the prior
possession. He had no knowledge of it, until it was brought to his notice by the finder. A discussion of the
merits does not seem to help, but it is clear on the facts that the brooch was "lost" in the ordinary meaning of
that word, that it was "found" by the plaintiff in the ordinary meaning of that word, that its true owner has
never been found, that the defendant was the owner of the premises and had his notice drawn to this matter
by the plaintiff, who found the brooch. In those circumstances I propose to follow the decision in Bridges v.
Hawkesworth, and to give judgment in this case for the plaintiff for £66.
QUESTIONS AND COMMENTS
1. Did Major Peel lose because he did not have prior possession, of the brooch, or of the house? Did Sgt.
Hannah win because his behavior was exemplary? What can you conclude from J. Birkett's opinion, other
than that the law on ownership of found property is unsettled?
2. Hannah v. Peel is a good example of judicial reasoning, or rather, attempted judicial reasoning, based on
precedent. Note that there is a nesting of cases: the Birkett opinion in Hannah quotes the Patteson opinion in
Bridges v. Hawkesworth, where that opinion quotes the landmark opinion of Armory v. Delamirie.
3. Not mentioned in the opinion on Hannah v. Peel, but perhaps worth notice, is that the brooch obviously
had been hidden (recall how it was found) and not lost. It seems likely that it was hidden by a previous
occupant of the house, perhaps a previous owner. Is there reason to think that title to chattels contained in
real property should go to purchasers of that property? Alternatively, should incentives be created to search
vacated property for chattels overlooked by previous occupants at the time of the move?
4. As regards the Bridges v. Hawksworth decision, suppose an effort is made to shape the law so as to
maximize the chances of recovery by the true owner of lost property. Would a finder be likely to turn lost
cash into a shopkeeper, after finding it on the shop floor, if he knew that his action meant that either the true
owner or the shopkeeper would eventually come into posession? Does the same consideration hold in South
Staffordshire v. Sharman?
5. The unsettled nature of the law depicted in these cases is in sharp contrast to the clear-cut incentives that
the admiralty law of salvage seeks to impose. What kind of clear-cut incentive structure can you imagine that
would point to consistent outcomes int the several cases cited and decided in Hannah v. Peel?
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Case 6. Possession and Relativity of Title
Anderson v. Gouldberg et. al.
Supreme Court of Minnesota
51 Minn 294 (1892)
Replevin by Sigfrid Anderson against Hans J. Gouldberg and others, partners as Gouldberg and Anderson, to
recover certain logs. Verdict for plaintiff. A new trial was denied, and defendants appeal. Affirmed.
OPINION BY: Mitchell, J. It is settled by the verdict of the jury that the logs in controversy were not cut
upon the land of the defendants, and consequently that they were entire strangers to the property. For the
purposes of this appeal, we must also assume the fact of this appeal, we must also assume the fact to be (as
there was evidence from which the jury might have so found) that the plaintiffs obtained posession of the logs
in the first instance by trespassing upon the land of some third party. Therefore the only question is whether
bare posession of property, though wrongfully obtained, is sufficient title to enable the party enjoying it to
maintain replevin against a mere stranger, who takes it from him. We had supposed that this was settled in
the affirmative as long ago, at least, as the early case of Armory v. Delamirie, . . . so often cited on that
point. When it is said that to maintain replevin the plaintiff's posession must have been lawful, it means
merely that it must have been lawful as against the person who deprived him of it; and posession is good title
against all the world except those having a better title. Counsel says that posession only raises a presumption
of title, which, however, may be rebutted. Rightly understood, this is correct; but counsel misapplies it. One
who takes property from the posession of another can only rebut this presumption by showing a superior title
in himself, or in some way connecting himself with one who has.) One who has acquired the posession of
property, whether by finding, bailment, or by mere tort, has a right to retain that posession as against a mere
wrongdoer who is a stranger to the property. Any other rule would lead to an endless series of unlawful
seizures and reprisals in every case where property had once passed out of the posession of the rightful
owner. Order Affirmed.
QUESTIONS AND COMMENTS
1. This case may seem strange to you-- a first theft carries a property interest protection against subsequent
thefts. But think about it. What alternative system carries a larger chance of property restoration to rightful
owners? Do we actually want to encourage theft, even when the victim of theft is himself a thief?
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Case 7.
Possession and Relativity of Title
Wolfenbarger v. Williams
United States Court of Appeals for the Tenth Circuit
826 F.2d 930 (1987)
OPINION: BARRETT, Circuit Judge. ... On August 15, 1980, Police Officer Clancy Williams visited Shady
Sam's Pawn Shop in Lawton City, Oklahoma, and discovered various items of stereo equipment that had
been reported stolen. Officer Williams placed a "hold" on the items officially requesting Margaret
Wolfenbarger, owner and operator of Shady Sam's Pawn Shop, not to sell or otherwise dispose of the
equipment because it might be needed as evidence in a criminal investigation and prosecution.
On October 30, 1980, District Attorney Dick Tannery wrote a letter to Lawton City Police Chief
Robert Gillian advising him that when police officers discover stolen property in pawn shops, they should
"seize the property and place on property receipt in the custody of the police department ..." to await a
determination of ownership by a magistrate. Gillian promulgated Tannery's letter to all members of the police
department. Acting pursuant to the instructions in this letter, and without a warrant, Officers Williams and
Loy Bean went to Shady Sam's Pawn Shop, seized the stereo items that had previously been placed on hold,
and removed the items to the property vault at the Lawton City Police Station. On November 13, Assistant
District Attorney Robert Perrine sent a memorandum to Officer Williams directing him to release the stereo
items to Louie Loggins, the true owner of the property. Officer Williams turned the items over to Loggins
the following day.
The procedures described in the November 13 memorandum from Perrine and, arguably, the October
30 memorandum from Tannery, deviated from prior police department procedures for the handling of stolen
items found in pawn shops and differed from the procedures provided for by Oklahoma statutes. Oklahoma
law requires pawn brokers to permit police officers and others to inspect goods in their store that may have
been stolen or embezzled. ... Oklahoma law further provides, however, that when police officers come into
custody of stolen property, they must deliver the property to a magistrate who, upon satisfactory proof of
title of the owner of the property, may order that the property be delivered to the owner. ...
Wolfenbarger received no notice that Williams would release the property to Loggins and no judicial
determination of ownership of the property was made. Wolfenbarger filed a replevin action against Williams
in state court immediately after Williams seized the two items. The district court, however, dismissed the
action as moot after Williams gave the items to Loggins.
Wolfenbarger then brought suit in federal district court ... alleging that the defendants had violated
her constitutional rights by seizing the property in her shop without a warrant and turning it over to Loggins
without a judicial determination of ownership. The district court initially ruled that Wolfenbarger had no
constitutionally protected property interest in the stolen items and granted summary judgment in favor of the
defendants. We reversed that ruling in Wolfenbarger I and remanded the case for further proceedings. On
remand, the defendants again moved for summary judgment, this time arguing that they were protected from
suit by qualified immunity. The district court denied the defendant's motion, reasoning that since Oklahoma
statute required the participation of a magistrate in the return of stolen property to the purported owner, the
defendants had acted in violation of clearly established law.
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In this appeal, the defendants ... urge that Wolfenbarger's property interest was not clearly
established[, and] ... they maintain that the seizure of the stereo items without a warrant did not violate the
United States Constitution. ...
Qualified immunity is an affirmative defense that must be raised by defendants seeking its protection.
... In Harlow v. Fitzgerald, 457 U.S. 800, the Supreme Court fashioned an objective test out of the doctrine
of qualified immunity and held that "government officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known."... As the defendants point out, the
Supreme Court has emphasized the importance of granting summary judgment on the basis of qualified
immunity in suits against government officials as a means of screening out insubstantial claims and shielding
government officials from the costs and burdens of trial and discovery. ... Thus, unless the "essentially legal
question" of whether the defendant's conduct violated clearly established law can be resolved affirmatively,
the action should be dismissed. ...
...
To determine whether Wolfenbarger had a clearly established property interest in the stereo items, we
must consider whether "existing rules or understandings" stemming from an independent source such as state
law operated to "secure certain benefits" and to "support claims of entitlement to those benefits." ... In
Wolfenbarger I, we evaluated several Oklahoma cases in reaching our conclusion that Wolfenbarger had a
property interest in the stereo items. We now hold that by the weight of those cases, as well as certain
Oklahoma statutory provisions in effect at the time of the incident in question, it was clearly established that
Wolfenbarger had a property interest in the items.
In Wolfenbarger I, ... we observed that under Oklahoma law a pawn broker does not hold title to
property received in pledge, ... that one cannot transfer better title than one has, ... and that even an honest
pawn broker cannot hold stolen property as against the true owner. ... We also noted, however, that in
Oklahoma a pawn broker's property interest will support an action for replevin, ... that in such an action the
question of ownership and right of possession must be decided by a trier of fact, ... and that possession is
prima facie proof of ownership. ... The picture that emerges is consistent with the Oklahoma Supreme
Court's holding in Miller v. Horton, 170 P.2d at 511, in which the court observed that on a pledge or pawn
of personal property, though legal title does not pass, the pledgee takes a " 'special property interest in the
thing pledged.'" ...
These Oklahoma cases are consistent with the well recognized common law doctrine that a good faith
purchaser of stolen goods has superior claim to those goods as against all the world except the true owner.
As the court explained in the textbook case of Anderson v. Gouldberg, ... "one who has acquired the
possession of property, whether by finding, bailments, or by a mere tort, has a right to retain that possession
as against a mere wrong doer who was a stranger to the property." There are ample policy reasons for this
rule. ... "To allow the defendant, in an action in which his wrongful conduct is in question, to raise doubts as
to the plaintiff's title to the property, would raise collateral issues, sharply interfering with the principle point
in the case -- the defendant's wrongdoing." Furthermore, as the court in Anderson explained, "Any other rule
would lead to an endless series of unlawful seizures and reprisals in every case where property had once
passed out of possession of the rightful owner." ...
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This common law principle is so well established that it should have come as no surprise that, in 1983,
the Oklahoma Supreme Court noted, as a general rule of law, that a good faith purchaser under a defective
title has "lawful possession against all the rest of the world" except the true owner. ...
Thus it is clear, ... that pawn brokers and other good faith purchasers of stolen property have a
variety of protected interests including, but not necessarily limited to, the right to possess, replevy, and prove
ownership of the goods. The fact that they do not have title to the goods does not extinguish these rights.
As the Supreme Court observed in Fuentes v. Shevin, 407 U.S. 67, (1971), "the Fourteenth Amendment's
protection of 'property,' ... has never been interpreted to safeguard only rights of undisputed ownership." The
procedural protections of the fourteenth amendment are invoked whenever "a significant property interest is
at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use
of the goods." ...
...
Wolfenbarger also contends that the defendants violated her constitutional rights by seizing the stereo
equipment without a search warrant. The defendants argue, and Wolfenbarger concedes, that the police
officers were in a place they had a right to be, that they had probable cause to believe that the stereo items
were stolen, and that the items were in plain view. Defendants urge that the seizure of the stereo items thus
satisfies the "plain view" exception to the warrant requirement. It appears that the district court agreed with
the defendants. The court seemed to find it inconsistent, "in view of plaintiff's admission" that there was
probable cause, for the plaintiff to argue that the officers should have had a warrant before seizing the stereo
equipment. ...
...
In this case, the police officers returned to Shady Sam's Pawn Shop several weeks after they had first
discovered the stereo items. They knew the items would still be there because they had placed a hold on
them. Acting on the instructions of the district attorney, and without a warrant, they seized the items and
removed them from the pawn shop. Under the circumstances, they can hardly claim that their rediscovery of
the items was inadvertent or that they did not have time to obtain a warrant. In such a situation, the
defendants were not entitled to rely upon the plain view exception and they should have known that clearly
established law did not sanction such activity.
QUESTIONS AND COMMENTS
1. This case is a more sophisticated version of case 6. There, a thief was protected against other thieves.
Here, a pawn shop owner, whose security for a loan is supposed to have been stolen (by the borrower?) is
protected against appropriation by the police. Consider the wisdom of this finding. Should the police, on the
supposition that goods are stolen, but unarmed with any complaint from the rightful owner of the goods, be
permitted to remove goods from a pawnshop? Why or why not: defend your answer.
2. A personal anecdote: in 1985 or thereabout, my son, on his way to prep school, packed our car the night
before. The car was broken into, and his stereo was stolen. I reported the theft to the police, who several
days later found the stolen goods in an unused garage. Had I not reported the theft, would the police have
been justified in removing the goods from their posessor (who was identified and arrested?) Other goods,
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including a riding lawnmower, were recovered also; suppose I had been the only one who had not reported
loss of property. Where should my son's stereo equipment have gone?
3. Probably most of the stolen property that finds its way to a pawnbroker is not redeemed. Comment on the
impact that this has on the cost and riskiness of doing business as a pawnbroker; and then answer: what effect
does the presence of stolen property in a pawnshop have on the riskiness of purchasing from a pawnbroker?
Would you expect a pawnbroker's merchandise to be expensive or inexpensive?
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Case 8. Adverse Possession
Van Valkenburgh v. Lutz
Court of Appeals of New York
304 N.Y. 95 (1952)
In 1912, Mary and William Lutz bought at auction two wooded lots in Yonkers, a suburb of New York,
taking title in the husband's name. The lots, numbered 14 and 15, were situated high on a hill above Leroy
Avenue, at the time an unimproved "paper" street. To the west was a wooded triangular tract--consisting of
lots 19, 20, 21, and 22--the ownership of which is at issue in this case. Instead of climbing the steep grade
from Leroy Avenue to reach lots 14 and 15, the Lutzes found it easier to cross the triangular tract which they
did not own; Lutz cleared a "traveled way" near the northern boundary of the tract to reach Gibson Place on
the west.
With the help of his brother Charlie and his wife Mary, William Lutz cleared lots 14 and 15 and built a
house for his family on them. The Lutzes also partially cleared the triangular tract and built for Charlie a oneroom structure on lot 19. By 1920 the buildings were occupied. ...
In 1928 the city graded Leroy Avenue and broke the private water line leading to the main Lutz
house. Lutz, who was working in New York City at the time, went home to repair it. As a result, he lost his
job; thereafter Lutz stayed home tending a garden on the triangular property, selling vegetables, and doing
odd jobs for neighbors. ...
In 1937 Joseph and Marion Van Valkenburgh bought lots west of Gibson Place and built a new home
there. Some nine years later, in 1946, bad blood developed between the Lutzes and the Van Valkenburghs.
In April of that year Mary Lutz was annoyed by the presence of the Van Valkenburgh children in her garden,
and she called her husband over. The Van Valkenburgh children ran home, Lutz behind them brandishing an
iron pipe and crying, "I'll kill you." Van Valkenburgh then appeared and began a heated argument with Lutz.
He subsequently swore out a complaint of criminal assault, and Lutz was arrested, jailed, then released on
bail.
A year later, in April 1947, the Van Valkenburghs bought lots 19, 20, 21, and 22 from the City of
Yonkers at a foreclosure sale for nonpayment of taxes; no personal notice of the proceedings was given the
Lutzes. The purchase price was $379.50. On the following July 6, Van Valkenburgh, accompanied by two
policemen, visited the triangular tract and, in his words, "took possession" of it. He called to Mrs. Lutz to
come out of her house and told her that the Lutzes were to clear from the property all buildings that belonged
to them. On July 8 the Van Valkenburghs' attorney sent Lutz a registered letter informing him that the
triangular tract was now owned by the Van Valkenburghs and that he should remove any of his property
from the land. ...
Van Valkenburgh had the property surveyed. In response to another letter from the Van
Valkenburghs' attorney, Lutz returned to the attorney's office on July 21, this time accompanied by his own
lawyer. At this meeting Lutz agreed to remove his sheds, junk, and garden within thirty days, but he claimed
a prescriptive right to use the traveled way to reach his property. [Prescriptive use again, as in Sturges v.
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Bridgman. Prescription differs from adverse possession only in the sorts of interests that can be acquired.
Adverse possession is concerned with title, prescription with another's rights in the land, such as easements
(e.g., rights of way). The elements of the two doctrines are essentially identical.] Lutz then removed the
chicken coops and junk. Shortly thereafter the Van Valkenburghs invited legal action by erecting a fence
across the traveled way that Lutz claimed a right to use. Lutz joined battle by bringing an action against the
Van Valkenburghs to enjoin them from interfering with his right of way. In the suit Lutz alleged that Marion
Van Valkenburgh was the owner of the property, but that Lutz had a right of way over it. In January 1948
the trial court handed down a judgment in Lutz's favor, awarding him a right of way over the traveled way;
this judgment was affirmed in June 1948 (Lutz v. Van Valkenburgh, 274 App. Div. 813, 81 N.Y.S.2d 161).
The action in this case was commenced against the Lutzes on April 8, 1948. Perhaps realizing the blunder
made in the prior lawsuit (the admission that Marion Van Valkenburgh owned lots 19-22), Lutz fired his
Yonkers lawyer and hired one from Wall Street. Not to be outdone, the Van Valkenburghs also sought out
and employed a Wall Street firm. In August 1948 William Lutz died, devising all his property to his wife
Mary. The Van Valkenburghs' suit was tried in June 1950. The testimony in the case totaled some 250
pages, and in addition there were 56 exhibits consisting of deeds, surveys, and photographs. Several
neighbors who had lived in the area a long time testified for the Lutzes. Not one testified for the Van
Valkenburghs, who lost in the trial court and appealed.
DYE, J. These consolidated actions were brought to compel the removal of certain encroachments
upon plaintiffs' lands, for delivery of possession and incidental relief. ... At that time that part of the Murray
subdivision was covered with a natural wild growth of brush and small trees. The defendants interposed an
answer denying generally the allegations of the complaint and alleging as an affirmative defense, and as a
counterclaim, that William Lutz had acquired title to the subject premises by virtue of having held and
possessed the same adversely to plaintiffs and predecessors for upwards of thirty years.
The issue thus joined was tried before Hon. Frederick P. Close, Official Referee, who found that title
to said lots "was perfected in William Lutz by virtue of adverse possession by the year 1935" and not
thereafter disseized. The judgment entered thereon in favor of the defendants was affirmed in the Appellate
Division, Second Department, without opinion, one Justice dissenting on the ground that the evidence was
insufficient to establish title by adverse possession. To acquire title to real property by adverse possession
not founded upon a written instrument, it must be shown by clear and convincing proof that for at least
fifteen years (formerly twenty years) there was an "actual" occupation under a claim of title, for it is only the
premises so actually occupied "and no others" that are deemed to have been held adversely ... . The essential
elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually
cultivated or improved ...
[In 1948 the N.Y. Civil Practice Act 34, 38, 39, and 40 provided:
34. An action to recover real property or the possession thereof cannot be maintained by a party other
than the people, unless the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the
premises in question within fifteen years before the commencement of the action....
38. For the purpose of constituting an adverse possession, by a person claiming a title founded upon a
written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of
the following cases:
1. Where it has been usually cultivated or improved.
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2. Where it has been protected by a substantial inclosure.
3. Where, although not inclosed, it has been used for the supply of fuel or of fencing timber, either
for the purposes of husbandry or for the ordinary use of the occupant. Where a known farm or single lot has
been partly improved, the portion of the farm or lot that has been left not cleared or not inclosed, according
to the usual course and custom of the adjoining country, is deemed to have been occupied for the same
length of time as the part improved and cultivated.
39. Where there has been an actual continued occupation of premises under a claim of title, exclusive
of any other right, but not founded upon a written instrument or a judgment or decree, the premises so
actually occupied, and no others, are deemed to have been held adversely.
40. For the purpose of constituting an adverse possession by a person claiming title not founded upon
a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either
of the following cases, and no others:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.]
Concededly, there is no proof here that the subject premises were "protected by a substantial
inclosure" which leaves for consideration only whether there is evidence showing that the premises were
cultivated or improved sufficiently to satisfy the statute.
We think not. The proof concededly fails to show that the cultivation incident to the garden utilized
the whole of the premises claimed. Such lack may not be supplied by inference on the showing that the
cultivation of a smaller area, whose boundaries are neither defined nor its location fixed with certainty, "must
have been ... substantial" as several neighbors were "supplied ... with vegetables." This introduces an element
of speculation and surmise which may not be considered since the statute clearly limits the premises adversely
held to those "actually" occupied "and no others..."
Furthermore, ... the proof fails to show that the premises were improved. ... According to the proof
the small shed or shack (about 5 by 10 ½ feet) which, as shown by survey map, was located on the subject
premises about 14 feet from the Lutz boundary line, ... was built in about the year 1923 and, as Lutz himself
testified, he knew at the time it was not on his land and, his wife, a defendant here, also testified to the same
effect.
The statute requires as an essential element of proof, recognized as fundamental on the concept of
adversity since ancient times, that the occupation of premises be "under a claim of title" (Civ. Prac. Act, 39),
in other words, hostile ..., and when lacking will not operate to bar the legal title ..., no matter how long the
occupation may have continued ... .
Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply
proof of occupation by improvement. Lutz himself testified that when he built the garage he had no survey
and thought he was getting it on his own property, which certainly falls short of establishing that he did it
under a claim of title hostile to the true owner. The other acts committed by Lutz over the years, such as
placing a portable chicken coop on the premises which he moved about, the cutting of brush and some of the
trees, and the littering of the property with odds and ends of salvaged building materials, cast-off items of
house furnishings and parts of automobiles which the defendants and their witnesses described as "personal
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belongings," "junk," "rubbish" and "debris," were acts which under no stretch of the imagination could be
deemed an occupation by improvement within the meaning of the statute, and which, of course, are of no
avail in establishing adverse possession.
We are also persuaded that the defendant's subsequent words and conduct confirm the view that his
occupation was not "under a claim of title." When the defendant had the opportunity to declare his hostility
and assert his rights against the true owner, he voluntarily chose to concede that the plaintiffs' legal title
conferred actual ownership entitling them to the possession of these and other premises in order to provide a
basis for establishing defendant's right to an easement by adverse possession--the use of a well-defined
"traveled way" that crossed the said premises. In that action (Lutz v. Van Valkenburgh, 274 App. Div. 813),
William Lutz, a defendant here (now deceased), chose to litigate the issue of title and possession and, having
succeeded in establishing his claim of easement by adverse possession, he may not now disavow the effect of
his favorable judgment... or prevent its use as evidence to show his prior intent. Declarations against interest
made by a prescriptive tenant are always available on the issue of his intent (6 Wigmore on Evidence, 1778).
On this record we do not reach the question of disseisin by oral disclaimer, since the proof fails to
establish actual occupation for such time or in such manner as to establish title. What we are saying is that
the proof fails to establish actual occupation for such a time or in such a manner as to establish title by
adverse possession ... The judgments should be reversed, the counterclaim dismissed and judgment directed
to be entered in favor of plaintiff Joseph D. Van Valkenburgh for the relief prayed for in the complaint
subject to the existing easement (Lutz v. Van Valkenburgh, 274 App. Div. 813), with costs in all courts.
FULD, J. (dissenting). In my judgment, the weight of evidence lies with the determination made by
the court at Special Term and affirmed by the Appellate Division. But whether that is so or not, there can be
no doubt whatsoever that the record contains some evidence that the premises here involved were occupied
by William Lutz, defendant's late husband, for fifteen years under a claim of title--and that, of course, should
compel an affirmance. ...
Wild and overgrown when the Lutzes first moved into the neighborhood, the property was cleared by
defendant's husband and had been, by 1916, the referee found, developed into a truck farm "of substantial
size." Lutz, together with his children, worked the farm continuously until his death in 1948; indeed, after
1928, he had no other employment. Each year, a new crop was planted and the harvest of vegetables was
sold to neighbors. Lutz also raised chickens on the premises, and constructed coops or sheds for them. Fruit
trees were planted, and timber was cut from that portion of the property not used for the farm. On one of the
lots, Lutz in 1920 built a one-room dwelling, in which his brother Charles has lived ever since.
Although disputing the referee's finding that the dimensions of Lutz's farm were substantial, the
court's opinion fails to remark the plentiful evidence in support thereof. For instance, there is credible
testimony in the record that "nearly all" of the property comprised by the four lots was cultivated during the
period to which the referee's finding relates. A survey introduced in evidence indicates the very considerable
extent to which the property was cultivated in 1950, and many witnesses testified that the farm was no larger
at that time than it had ever been. There is evidence, moreover, that the cultivated area extended from the
"traveled way" on one side of the property to a row of logs and brush--placed by Lutz for the express
purpose of marking the farm's boundary--at the opposite end of the premises. According to defendant's
testimony, she and her husband, knowing that they did not have record title to the premises, intended from
the first nevertheless to occupy the property as their own. Bearing this out is the fact that Lutz put down the
row of logs and brush, which was over 100 feet in length, to mark the southwestern boundary of his farm;
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this marker, only roughly approximating the lot lines, extended beyond them into the bed of Gibson Place.
The property was, moreover, known in the neighborhood as "Mr. Lutz's gardens," and the one-room
dwelling on it as "Charlie's house"; the evidence clearly indicates that people living in the vicinity believed the
property to be owned by Lutz. And it is undisputed that for upwards of thirty-five years--until 1947, when
plaintiffs became the record owners--no other person ever asserted title to the parcel.
With evidence such as that in the record, I am at a loss to understand how this court can say that
support is lacking for the finding that the premises had been occupied by Lutz under a claim of title. The
referee was fully justified in concluding that the character of Lutz's possession was akin to that of a true
owner and indicated, more dramatically and effectively than could words, an intent to claim the property as
his own. Recognizing that "A claim of title may be made by acts alone, quite as effectively as by the most
emphatic assertions" ... we have often sustained findings based on evidence of actual occupation and
improvement of the property in the manner that "owners are accustomed to possess and improve their
estates." ...
That Lutz knew that he did not have the record title to the property --a circumstance relied upon by
the court--is of no consequence, so long as he intended, notwithstanding that fact, to acquire and use the
property as his own. As we stated in Ramapo Mfg. Co. v. Mapes..., "the bona fides of the claim of the
occupant is not essential and it will not excuse the negligence of the owner in forbearing to bring his action
until after the time in the Statute of Limitations shall have run against him to show that the defendant knew
all along that he was in the wrong.... "
Quite obviously, the fact that Lutz alleged in the 1947 easement action--twelve years after title had,
according to the referee, vested in him through adverse possession--that one of the plaintiffs was the owner
of three of the lots, simply constituted evidence pointing the other way, to be weighed with the other proof
by the courts below. While it is true that a disclaimer of title by the occupant of property, made before the
statutory period has run, indelibly stamps his possession as nonadverse and prevents title from vesting in him
..., a disclaimer made after the statute has run carries with it totally different legal consequences. Once title
has vested by virtue of adverse possession, it is elementary that it may be divested, not by an oral disclaimer,
but only by a transfer complying with the formalities prescribed by law. ... Here, Official Referee Close, of
the opinion that the 1947 admission was made by Lutz under the erroneous advice of his attorney, chose to
rest his decision rather on evidence of Lutz's numerous and continual acts of dominion over the property-proof of a most persuasive character. Even if we were to feel that the referee was mistaken in so weighing
the evidence, we would be powerless to change the determination, where, as we have seen, there is some
evidence in the record to support his conclusion.
In view of the extensive cultivation of the parcel in suit, there is no substance to the argument that the
requirements of sections 39 and 40 of the Civil Practice Act were not met. Under those provisions, only the
premises "actually occupied" in the manner prescribed--that is, "protected by a substantial inclosure" or
"usually cultivated or improved"-- are deemed to have been held adversely. The object of the statute, we
have recognized, "is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile
claim and be thereby called upon to assert his legal title." ... Since the character of the acts sufficient to afford
such notice "depends upon the nature and situation of the property and the uses to which it can be applied," it
is settled that the provisions of sections 39 and 40 are to be construed, not in a narrow or technical sense, but
with reference to the nature, character, condition, and location of the property under consideration.
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Judge Dye considers it significant that the proof "fails to show that the cultivation incident to the
garden utilized the whole of the premises claimed." There surely is no requirement in either statute or
decision that proof of adverse possession depends upon cultivation of "the whole" plot or of every foot of the
property in question. And, indeed, the statute--which, as noted, reads "usually cultivated or improved" --has
been construed to mean only that the claimant's occupation must "consist of acts such as are usual in the
ordinary cultivation and improvement of similar lands by thrifty owners." ... The evidence demonstrates that
by far the greater part of the four lots was regularly and continuously used for farming, and, that being so, the
fact that a portion of the property was not cleared should not affect the claimant's ability to acquire title by
adverse possession: any frugal person, owning and occupying lands similar to those here involved, would
have permitted, as Lutz did, some of the trees to stand--while clearing the bulk of the property--in order to
provide a source of lumber and other tree products for his usual needs. The portion of the property held
subservient to the part actively cultivated is as much "occupied" as the portion actually tilled. The nature of
the cultivation engaged in by Lutz was more than adequate, as his neighbors' testimony establishes, to give
the owner notice of an adverse claim and to delimit the property to which the claim related. The limits of the
parcel in suit were indicated in a general way by boundaries natural as well as man-made: the declivity to
Leroy Avenue, the "traveled way," and Gibson Place. Apart from that, however, the evidence discloses that
the bulk of each of the four lots was cultivated, and --even putting to one side the fact that the cottage, called
"Charlie's house," had been actually occupied and lived in for upwards of thirty years--such substantial use
was enough to put the owner on notice that his whole lot was claimed. In short, there is ample evidence to
sustain the finding that William Lutz actually occupied the property in suit for over fifteen years under a claim
of title. Since, then, title vested in Lutz by 1935, the judgment must be affirmed. To rule otherwise, on the
ground that the weight of evidence is against that finding--a view which I do not, in any event, hold --is to
ignore the constitutional provision that limits our jurisdiction to the review of questions of law. ... I would
affirm the judgment reached by both of the courts below.
Lewis, Conway and Froessel, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Loughran,
Ch. J., and Desmond, J., concur.
QUESTIONS AND COMMENTS
1. The text of the case suggests that adverse possession is established in New York simply by conforming to
conditions laid down in statutes--"possessing" land for the prescribed time, under a "claim of title," by
protecting the land with a "substantial inclosure" or cultivating or improving it in the "usual" manner. (The
claim of title can be implicit; it need not be explicit. An implicit claim would be made by behaving as an
owner normally would.) Despite this suggestion in the text of the case, no American jurisdiction, New York
included, would the foregoing list of conditions be sufficient for adverse possession; in all jurisdictions, the
courts have developed a series of requirements of their own. These all stipulate that there must be (1) an
actual entry giving exclusive possession that is (2) open and notorious, (3) adverse and under a claim of right,
and (4) continuous for the statutory period. What is the substance and purpose of each of these
requirements? Can you see how the facts that show satisfaction of one of them might show that others have
also been met? Which requirements were in issue in Van Valkenburgh v. Lutz?
2. The adverse possession that gives title requires the actual use of property as the average owner would use
it, so that the neighbors would regard the occupant as exercising exclusive dominion. The degree of control
necessary varies with the character of the property. (See our next case, Monroe v. Rawlings.) Adverse
possession may exist if the average owner would use the particular type of property in the same manner as
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the occupant, even though the occupant does not reside on the property and for long periods does not appear
to use it at all.
3. In several states, principally in the West, the adverse possessor must pay taxes on the land in order to
prevail. This requirement is the essence of "political economy." It was lobbied for by railroad companies in
state legislatures in the nineteenth century. Owning vast tracts of undeveloped land, the companies found it
difficult to discover squatters who might adversely possess their holdings. The requirement that taxes be
paid--and recorded in the tax assessor's office--provided the railroads a way of tracking down the squatters.
4. The issue as to whether there is claim of title (see comment 1 above) is a controversial one. The
requirement that adverse possession be accompanied by a claim of title (sometimes called a claim of right)
was embodied in the New York Revised Statutes referred to by the court in Van Valkenburgh v. Lutz.
Courts in other jurisdictions, where the statutes of adverse possession do not expressly require a claim of
title, have sometimes read such a requirement into the statutes. But what does claim of title require of the
adverse possessor's state of mind? There are held to be three different views, but two of them are effectively
equivalent: (1) state of mind is irrelevant; (2) the required state of mind is, I thought I owned it; (3) the
required state of mind is, I thought I did not own it and intended to take it. These are called the objective
standard, the good-faith standard, and the aggressive trespass standard.
The first view is firmly held in England, where the statute of limitations begins to run as soon as the
true owner is dispossessed by someone taking possession inconsistent with--not subordinate to--his title. (A
tenant or bailee--the latter being someone who is there with permission--exemplify roles subordinate to that
of the title holder.) The point behind this view is simple: once there is an entry against the true owner, he has
a cause of action. Given that, shouldn't the statute of limitations be running, whatever the entrant's state of
mind? That view describes what prevails in most of the United States. The second view, requiring a goodfaith claim, is voiced from time to time in American decisions; some judges misunderstand the efficiencyenhancing role of adverse posession and see it as theft. In Jasperson v. Scharnikow,... the court, quoting the
trial court with approval, said, "This idea of acquiring title by larceny does not go in this country. A man
must have a bona fide claim, or believe in his own mind that he has got a right as owner, when he goes upon
the land that does not belong to him, in order to acquire title by occupation and possession." The third view,
that of the aggressive trespasser, is operationally indistinguishable from the first view in terms of influence on
court decisions. Neither asks whether the adverse possessor could credibly be portrayed as knowing of
another person's ownership as a condition of deciding against the adverse possessor.
Which of the three approaches surveyed above do you favor, and why? Which of the three
approaches is consistent with assigning property to the owner who will put it to the most economically
valuable use? Which approach was applied by the majority in Van Valkenburgh v. Lutz? On the reasoning
of the majority in that case, could anyone ever adversely possess anything?
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Case 9.
Monroe v. Rawlings
Supreme Court of Michigan
331 Mich. 49 (1961)
DETHMERS, JUSTICE. This is ejectment, brought in 1949, to recover possession of a section of land in
Kalkaska county. Plaintiff relies on what she claims to be an unbroken chain of title tracing back to
government patent. Defendants deny that plaintiff ever had title, and claim (1) title in themselves under a tax
deed, (2) title by adverse possession, and (3) that plaintiff's action is barred by [Michigan code.] A finding
favorable to defendants on any one of these theories requires affirmance of the judgment in their favor from
which plaintiff appeals. We think defendants established title by adverse possession. Accordingly, we need
not pass on the other questions.
The land is wild, undeveloped, covered with scrub oak and some pine, not suitable for farming or the
production of crops, but there are some deer there, and it is suitable for hunting and fishing and recreational
purposes, not "worth leaving outdoors *** unless it has some value for oil leasing purposes", but at one time
pulpwood on parts of it was of some value.
In 1926 some of defendants built a hunting cabin on the land and used the premises for hunting and
fishing. In 1928 they bought the tax title to the entire section for the 1924 taxes, recorded the tax deed, and
in 1929 attempted service of notice to redeem upon the person whom defendants claim to have been the one
then appearing to be the owner of record (and recorded a copy with sheriff's return of service),... which
procedure plaintiff claims to have been a nullity for failure to make service upon the proper persons.
Defendants have paid the taxes on the premises for every year from 1924 until date of trial in 1949, except
for the year 1945, when it was paid by an undisclosed person. After the hunting season in 1932 the cabin
was destroyed and in 1933 defendants built a new one upon the premises, at a cost for materials of $300,
placed it on a cement foundation, painted it, cleared the brush and planted grass around it and erected a sign
at the crossroads bearing the name of the camp. This cabin remained to the time of trial and it, together with
the land, has been used by defendants every year for hunting, fishing and vacations. Defendants kept a
register of camp guests which showed the visits of defendants and their guests from 1934 to 1949, indicating
occupancy of the cabin by them for such purposes on an average of six times each year, including each of the
hunting seasons. In 1939 defendants sold the pulpwood on the entire section for $2,150, the purchaser
having thereafter engaged in cutting and removing it over a period of five years, during which time his
loggers occupied temporary cabins and camps on the land visible from the road. From 1907 until 1948, when
plaintiff acquired a deed to the premises, only one conveyance was recorded by plaintiff's predecessors in
chain of title, which was a deed recorded shortly after the above mentioned service of notice to redeem.
During the entire period from 1926 to 1949 defendants used the property as above indicated with no one
challenging or questioning their use or possession thereof, nor insofar as shown by the record, did plaintiff or
her predecessors in title ever enter upon or pay any attention to the premises or assert title or right to
possession, offer to pay taxes, or in any way indicate anything other than abandonment of their rights.
During that time defendants sold a portion of the land to the county road commission for road purposes and
executed and had recorded a number of oil leases and mortgages and also certain conveyances between
themselves, all covering the land in question.
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Plaintiff stresses that defendants have never improved the land, fenced it, posted it, attempted to keep
off others, or lived on it. She relies on cases holding that mere payment of taxes for years, removal of timber
and gravel, cutting of hay, and occasional squatting on the premises, do not suffice to establish title by
adverse possession ... .
In Whitaker v. Erie Shooting Club, ... defendant had a tax deed to premises "valuable for little else
than shooting". He occasionally cut hay on the premises, planted trees and rented the land for hunting to a
hunting club which posted the premises and undertook to keep off others. In holding that defendant had
acquired title by adverse possession this court said: "The established rule of this court is, 'It is sufficient if the
acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as
are consistent with the character of the premises in question.' ...Pedes possessio is not indispensable. The
land need not be fenced. Buildings are not necessary. Where the possession claimed was by cutting grass
and pasturing cattle each year during the season, and planting trees, it was held to be evidence of a practically
continuous, exclusive, and hostile possession. ... Openly and notoriously claiming and using land in the only
way it could be used without fencing or cultivation was held to establish adverse possession. ...
Appropriate here is the following from [an Illinois case] Burns v. Curran... . "Neither actual
occupancy, cultivation, nor residence is necessary to constitute actual possession of land. Where property is
so situated as not to admit of permanent useful improvements, the continued claim of the party, evidenced by
public acts of ownership such as he would exercise over property which he claimed in his own right and
would not exercise over property which he did not claim, may constitute actual possession."
...
Application of the above leads to the conclusion that defendants acquired title by adverse possession
for over 15 years consisting of such open and public use, acts of ownership and assumption of control as
were consistent with the character of the premises and to which alone the land was adapted.
That the title thus acquired by defendants extends to the entire section of land in question follows
from the fact that they went into possession under color and claim of title (tax deed) to the entire section and
paid the taxes on the whole of it continuously thereafter. ...
Affirmed, with costs to defendants.
QUESTIONS AND COMMENTS
1. Monroe v. Rawlings turned on the question whether the defendants had maintained "actual" possession
of the land in question for the requisite statutory period. The nature of this relation is explained and applied
by the court in Monroe v. Rawlings. The standard announced there would be considered adequate by most
courts. Suppose the contested property were a fishing boat on Lake Huron, not real estate, and the doctrine
of adverse possession could be invoked to claim ownership on behalf of a user who had found the boat when
it apparently had been abandoned. Would the fact that during the statutory period the boat had not been
used during winter due to a frozen lake surface have any material bearing on the intelligent disposition of the
case?
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2. Monroe v. Rawlings might be thought of as a case in which adverse possession of "wild and unoccupied"
land is claimed. Such cases present serious problems of "actual" possession, because due to the nature of
such land, the claimant's acts upon it are usually light and seasonal, which poses an issue of "continuous"
possession. If a court, like the Michigan Supreme Court in Monroe, stresses the test of whether the acts are
such as an owner would make of land of this nature, then sufficient acts of "actual" possession are more likely
to be found. On the other hand, if a less flexible standard is imposed (requiring continuous occupation, say)
then possession is apt not to be awarded. Van Valkenburgh v. Lutz exemplifies an opposite finding on similar
facts.
3. What do you make of the court's concluding statement that the title acquired by defendants "extends to
the entire section of land in question [one square mile]" because "they went into possession under color and
claim of title (tax deed) to the entire section and paid the taxes on the whole of it continuously thereafter"?
The usual explanation is that, when an adverse possessor holds under color of title, he is deemed to have
constructive possession of the entire tract described in the instrument or document constituting his color of
title although he has been in actual possession of only part of that tract. This doctrine is limited to cases
where the adverse possessor has actual possession of part (some cases require the part to be a substantial
fraction) of a single tract which is adequately described in the written instrument or document upon which the
adverse possessor relies. The doctrine is generally applied even if the applicable statute of limitations does
not provide for a reduced limitation period when there is color of title, as is sometimes done. The underlying
theory seems to be that possession under color of title makes clear to the "true owner" the extent of the
adverse possessor's claim, and puts him on notice that failure to bring an action to recover possession within
the statutory period will result in extinguishment of his title to the entire tract. Many courts refuse to apply
the color of title doctrine in favor of an adverse possessor unless the adverse possessor believes in good faith
that the instrument or document constituting his color of title actually gives him ownership of the land in
question. There must be some limit on how large a parcel may be constructively possessed. Suppose, for
instance, an adverse possessor actually occupied one acre of ground but had a colorable deed to a 5,000 acre
ranch that included the acre. While case authority is slight, the rule must be that constructive possession is
limited to an area that bears a reasonable relationship to the area actually possessed.
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Case 10: Eminent Domain-- Just Compensation
United States v. 564.54 Acres of Land
Supreme Court of the United States
441 U.S. 506 (1979)
MR. JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case is the proper measure of compensation when the Government condemns property
owned by a private nonprofit organization and operated for a public purpose. In particular, we must decide
whether the Just Compensation Clause of the Fifth Amendment requires payment of replacement cost rather
than fair market value of the property taken.
Respondent, the Southeastern Pennsylvania Synod of the Lutheran Church in America, operates three
nonprofit summer camps along the Delaware River. In June 1970, the United States initiated a condemnation
proceeding to acquire respondent's land for a public recreational project. Before trial, the Government
offered to pay respondent $485,400 as the fair market value of its property. Respondent rejected the offer
and demanded approximately $5.8 million, the asserted cost of developing functionally equivalent substitute
facilities at a new site. This substantial award was necessary, respondent contended, because the new
facilities would be subject to financially burdensome regulations from which existing facilities were exempt
under grandfather provisions....
[In a pretrial ruling, the district court held that the "substitute facilities," or replacement-cost, measure of
compensation was available only to governmental condemnees, and that the respondent was therefore entitled
only to the fair market value of its property. The court of appeals reversed, holding that the same measure of
compensation should be used in the case of private owners if there was no ready market for the condemned
property and if the facilities in question were reasonably necessary to the public welfare. On remand to the
district court, the jury found that the respondent was not entitled to substitute facilities compensation.
Thereafter, a different panel of the court of appeals reversed on the ground that the district court had erred in
its instructions to the jury. ...]
In giving content to the just compensation requirement of the Fifth Amendment, this Court has sought
to put the owner of condemned property "in as good a position pecuniarily as if his property had not been
taken." Olson v. United States, 292 U.S. 246, 255 (1934). However, this principle of indemnity has not
been given its full and literal force. Because of serious practical difficulties in assessing the worth an
individual places on particular property at a given time, we have recognized the need for a relatively objective
working rule. The Court therefore has employed the concept of fair market value to determine the
condemnee's loss. Under this standard, the owner is entitled to receive "what a willing buyer would pay in
cash to a willing seller" at the time of the taking. United States v. Miller, [317 U.S. 369, 374 (1943)].
Although the market-value standard is a useful and generally sufficient tool for ascertaining the compensation
required to make the owner whole, the Court has acknowledged that such an award does not necessarily
compensate for all values an owner may derive from his property. Thus, we have held that fair market value
does not include the special value of property to the owner arising from its adaptability to his particular use.
... As Mr. Justice Frankfurter wrote for the Court ...
"The value of property springs from subjective needs and attitudes; its value to the owner may
therefore differ widely from its value to the taker. Most things, however, have a general demand which gives
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them a value transferable from one owner to another. As opposed to such personal and variant standards as
value to the particular owner whose property has been taken, this transferable value has an external validity
which makes it a fair measure of public obligation to compensate the loss incurred by an owner as a result of
the taking of his property for public use. In view, however, of the liability of all property to condemnation for
the common good, loss to the owner of nontransferable values deriving from his unique need for property or
idiosyncratic attachment to it, like loss due to an exercise of the police power, is properly treated as part of
the burden of common citizenship."
In short, the concept of fair market value has been chosen strike a fair "balance between the public's
need and the claimant's loss" upon condemnation of property for a public purpose. ...
But while the indemnity principle must yield to some extent to the need for a practical general rule,
this Court has refused to designate market value as the sole measure of just compensation. For there are
situations where this standard is inappropriate. As we held ...
When market value has been too difficult to find, or when its application would result in manifest
injustice to owner or public, courts have fashioned and applied other standards. ... Whatever the
circumstances under which such constitutional questions arise, the dominant consideration always remains
the same: what compensation is "just" both to an owner whose property is taken and to the public that must
pay the bill?
Hence, we must determine whether application of the fair-market-value standard here would be
impracticable or whether an award of market value would diverge so substantially from the indemnity
principle as to violate the Fifth Amendment.
The instances in which market value is too difficult to ascertain generally involve property of a type
so infrequently traded that we cannot predict whether the prices previously paid, assuming there have been
prior sales, would be repeated in a sale of the condemned property. ... This might be the case, for example,
with respect to public facilities such as roads or sewers. But respondent's property does not fall in this
category. There was a market for camps, albeit not an extremely active one. The Government's expert
witness presented evidence concerning 11 recent sales of comparable facilities in the vicinity, and estimated
that respondent's camps could have been sold within six months to a year after they were offered for sale. ...
Indeed, respondent's own expert testified that he had prepared an appraisal of the camps' fair market value as
of the date of the taking. ... And the Court of Appeals implicitly acknowledged that the market value of
nonprofit property is ordinarily ascertainable since application of the court's "ready market" criterion requires
assessment of fair market value. ... Thus, it seems clear that respondent's property had a readily discernible
market value. The only remaining inquiry is whether such an award would impermissibly deviate from the
indemnity principle.
Emphasizing that the primary value of the condemned property lies in the use to which it is put,
respondent argues that compensating only for market value would be unjust in the present context. Because
new facilities would bear financial burdens imposed by regulations to which the existing camps were not
subject, an award of market value would preclude continuation of respondent's use. ...
Respondent therefore concludes that such a recovery would be insufficient to indemnify for its loss.
However, it is not at all unusual that property uniquely adapted to the owner's use has a market value on
condemnation which falls far short of enabling the owner to preserve that use. Such a situation may often
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arise, for example, where a family home has been built to the owner's tastes, but is old and deteriorated, or
where property, like respondent's camps, is exempt from regulations applicable to new facilities. Yet the
Court has previously determined that nontransferable values arising from the owner's unique need for the
property are not compensable, and has found that this divergence from full indemnification does not violate
the Fifth Amendment....
We are unable to discern why a different result should obtain here. That respondent is a nonprofit
organization may provide some basis for distinguishing it from business enterprises, since the uses to which
commercial property is put can often be valued in terms of the capitalized earnings produced. But there is no
reason to treat respondent differently from the many private homeowners and other noncommercial property
owners who neither derive earnings from their property nor hold it for investment purposes. Unless the Just
Compensation Clause mandates a Government subsidy for nonprofit organizations, a proposition we find
patently implausible, respondent's nonprofit status does not require us to reject application of the fair-marketvalue standard.
Nor is it relevant in this case whether respondent's camps were reasonably necessary to the public
welfare. In condemnations of property owned by public entities, lower courts have applied the reasonable
necessity standard to determine if the entity has an obligation to continue providing the facilities taken. ...
This duty may be legally compelled or arise from necessity. ... If the condemnee has such a duty to replace
the property, these courts have reasoned that only an award of the costs of developing requisite substitute
facilities will compensate for the loss.
Whatever the merits of this reasoning with respect to public entities, ... it does not advance analysis
here. For respondent is under no legal or factual obligation to replace the camps, regardless of their social
worth. As a private entity, respondent is free to allocate its resources to serve its own institutional
objectives, which may or may not correspond with community needs. Awarding replacement cost on the
theory that respondent would continue to operate the camps for a public purpose would thus provide a
windfall if substitute facilities were never acquired, or if acquired, were later sold or converted to another
use. Finally, that the camps may have benefitted the community does not warrant compensating respondent
differently from other private owners. The community benefit which the camps conferred might provide an
indication of the public's loss upon condemnation of the property.... The guiding principle of just
compensation, however, is that the owner of the condemned property "must be made whole but is not
entitled to more." ... Respondent did not hold its property as the public's trustee and thus is not entitled to
be indemnified for the public's loss. Moreover, many condemnees use their property in a manner that confers
a benefit on the community, and there is no sound basis for considering this factor only in condemnations of
property owned by nonprofit organizations. And to make the measure of compensation depend on a jury's
subjective estimation of whether a particular use "benefits" the community would conflict with this Court's
efforts to develop relatively objective valuation standards. In sum, we find no circumstances here that require
suspension of the normal rules for determining just compensation. Respondent, like other private owners, is
not entitled to recover for nontransferable values arising from its unique need for the property. To the extent
denial of such an award departs from the indemnity principle, it is justified by the necessity for a workable
measure of valuation. Allowing respondent the fair market value of its property is thus consistent with the
"basic equitable principles of fairness," United States v. Fuller, 409 U.S. 488, 490 (1973), underlying the Just
Compensation Clause. The judgment of the Court of Appeals is reversed.
QUESTIONS AND COMMENTS
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1. Did the forced sale in this case result in far greater loss to the seller--relative to what a voluntary
transaction would yield? Does the measure of that loss hinge on something more than "subjective value?"
2. Just compensation, which ordinarily contemplates payment of the fair market value of condemned property
in its highest and best use, is a fundamental feature of the law of eminent domain and of expropriation law in
much of the world. In the course notes, we considered the reasons for the just-compensation requirement.
One reason, as the phrase just compensation itself suggests, is justice or fairness. Does the compensation
awarded in the 564.54 Acres case strike you as just? (Consider that compensation might be unjustly high. As
noted in the 564.54 Acres case, the question might be: " What compensation is 'just' both to an owner whose
property is taken and to the public that must pay the bill?" Concerns with the efficient use of resources can
also be thought to underlie (or at least to justify) the just-compensation requirement. The requirement of
compensation helps to assure that property taken by eminent domain is more valuable to the condemnor than
to the erstwhile owner; it also promotes security of ownership and hence incentives to make improvements.
Do these comments suggest, however, that just compensation should not be limited to "fair market value"?
Suppose an owner values his property more than that objectively determined amount--he attaches subjective
value to it. (Would someone even own property if he valued it less than fair market value?) In such cases,
does not the just-compensation requirement, measured in objective terms of fair market value, promote or at
least tolerate transfers of property to lower-valued uses?
3. In the 564.54 Acres case the Court states that "subjective" "nontransferable values" are not compensable
because of "serious practical difficulties in assessing the worth an individual places on particular property at a
given time."... What are these "practical difficulties," and how might the legal system deal with them? For
instance, compare the approach taken in Canada. If a business loses its location through condemnation,
compensation is made for loss of goodwill. In addition, allowances over and above market value have been
made to compensate for the compulsory nature of the taking. And if a condemnee can prove that his use of a
tract of land generates "special advantages" that would not be captured in fair market value, he is entitled to
compensation for these "special economic values" (sentimental value is not compensable). Also compare
England, where a condemnee was, until 1957, awarded fair market value plus 10 percent to soften the blow
of compulsory taking. The 10 percent extra is no longer allowed, but a person displaced from a dwelling is
entitled to a home loss payment ascertained by an arbitrary formula.
4. According to a recent empirical study, high-value parcels condemned under eminent domain systematically
receive more than fair market value, while low-value parcels systematically receive less. Can you figure out
why?
5. There is a widespread practice, mandated by numerous legislatures and validated by the courts in nearly all
cases, of calculating the presumed gains (benefits) to the individual which were attributable to construction of
the public enterprise in question, and offsetting the value of such benefits against the losses suffered by that
individual in eminent-domain takings. How does such a practice affect the distribution of wealth in a society?
Suppose, for example, that I own ten acres, and the government takes nine for a project that elevates the
value of the tenth on the market (but not to me subjectively) to equal or surpass the earlier value of the ten.
In effect, I donate nine acres to the government. Compare to the standard of compensating on ex ante
market value.
6. In direct contrast, suppose that the government condemns part of a tract of land and that the government's
use of the land will result in damage to the balance remaining in the condemnee's hands. How should just
compensation be computed in such a case?
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7. May a city downzone property (zone so as to restrict permissible uses), then be liable in a subsequent
condemnation action only for fair market value in light of the restrictive zoning? Should the city's motive in
downzoning be relevant? Suppose there has been no downzoning, but that future zoning changes, reasonably
likely to take place, will increase the value of condemned property. How might this bear on the measure of
just compensation?
8. Questions 5-7 deal with "windfall" gains and losses that accompany government transactions in land. For
example, when a freeway interchange is built, it raises property values in the vicinity because access is easier.
Is there any way that the government can capture a part of that increased value?
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Case 11: Eminent Domain-- Intangible Property and Public Purpose
City of Oakland v. Oakland Raiders
Supreme Court of California
Cal., 646 2d 835 (1982)
RICHARDSON, Justice. The City of Oakland (City) appeals from a summary judgment dismissing with
prejudice its action to acquire by eminent domain the property rights associated with respondent Oakland
Raiders' (the Raiders) ownership of a professional football team as a franchise member of the National
Football League (NFL). We conclude that the trial court erred in granting the summary judgment and we
reverse and remand the case for a full evidentiary trial of the issues on the merits.
The Raiders limited partnership is comprised of two general partners, Allen Davis and Edward W.
McGah, and several limited partners, all of whom are individual respondents herein. In 1966 the Raiders and
the Oakland-Alameda County Coliseum, Inc., a nonprofit corporation, entered into a five year licensing
agreement for use of the Oakland Coliseum by the Raiders. Having been given five three-year renewal
options, the Raiders exercised the first three, and failed to do so for the football season commencing in 1980
when contract negotiations for renewal terminated without agreement. When the Raiders announced its
intention to move the football team to Los Angeles, City commenced this action in eminent domain.
The trial court granted summary judgment for all respondents and dismissed the action. The legal
confrontation between the parties is sharply defined. City insists that what it seeks to condemn is "property"
which is subject to established eminent domain law. City contends that whether it can establish a valid
"public use" must await a determination of the court after a full trial at which all relevant facts may be
adduced. In answer, respondents argue that the law of eminent domain does not permit the taking of
"intangible property not connected with realty," thereby rendering impossible City's condemnation of the
football franchise which respondents describe as a "network of intangible contractual rights." Further,
respondents claim that the taking contemplated by City cannot as a matter of law be for any "public use"
within City's authority. Thus, two issues are herein presented, the first dealing with the intangible nature of
the property proposed to be taken, and the second focusing on the scope of the condemning power as limited
by the doctrine of public use. We consider them sequentially after acknowledging some accepted eminent
domain principles of broad application.
We have held that "The power of eminent domain is an inherent attribute of sovereignty." ... This
sovereign power has been described as "universally" recognized and "necessary to the very existence of
government." ... When properly exercised, that power affords an orderly compromise between the public
good and the protection and indemnification of private citizens whose property is taken to advance that
good. That protection is constitutionally ordained by the Fifth Amendment to the United States Constitution,
which is made applicable to the states by nature of the Fourteenth Amendment. ... Because the power to
condemn is an inherent attribute of general government we have observed that "constitutional provisions
merely place limitations upon its exercise." ... The two constitutional restraints are that the taking be for a
"public use" and that "just compensation" he paid therefor. ... No constitutional restriction, federal or state,
purports to limit the nature of the property that may be taken by eminent domain. In contrast to the broad
powers of general government however, "a municipal corporation has no inherent power of eminent domain
and can exercise it only when expressly authorized by law."...
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"A city may acquire by eminent domain any property necessary to carry out any of its powers or
functions." As newly defined, "'Property' includes real and personal property and any interest therein." In
implementation of the foregoing right to take, the new code also authorizes any "person" empowered to take
property for a particular use to exercise certain additional power to condemn other property "necessary to
carry out and make effective the principal purpose involved. ... Within this context, "person" includes "any
public entity"; and "public entity," in turn, includes a "city." The constitutional obligation to pay
compensation for property so taken also is codified. The new law appears to impose no greater restrictions
on the exercise of the condemnation power than those which are inherent in the federal and state
Constitutions. Further, the power which is statutorily extended to cities is not limited to certain types of
property. In discussing the broad scope of property rights which are subject to a public taking under the new
law, the Law Revision Commission comment notes that [it] "is intended to provide the broadest possible
definition of property and to include any type of right, title or interest in property that may be required for
public use." To that end the commission eliminated the "duplicative listings of property types and interests
subject to condemnation" which had appeared in the earlier eminent domain statutes. ...
Over 125 years ago, the United States Supreme Court rejected a similar claim that intangible property
could not be condemned. In The West River Bridge Company v. Dix et al.... the high court carefully
explained: "A distinction has been attempted ... between the power of a government to appropriate for public
uses property which is corporeal ... and the like power in the government to resume or extinguish a franchise.
The distinction thus attempted we regard as a refinement which has no foundation in reason, and one that, in
truth, avoids the true legal or constitutional question in these causes; namely, that of the right in private
persons, in the use or enjoyment of their private property, to control and actually to prohibit the power and
duty of the government to advance and protect the general good. We are aware of nothing peculiar to a
franchise which can class it higher, or render it more sacred, than other property. A franchise is property,
and nothing more; it is incorporeal property." ...
...
For eminent domain purposes, neither the federal nor the state Constitution distinguishes between
property which is real or personal, tangible or intangible. Nor did the 1975 statutory revision. Bearing in
mind that the Law Revision Commission, after an extensive national study, made its legislative
recommendations, including a definition of condemnable property which it characterized as "the broadest
possible," we conclude that our eminent domain law authorizes the taking of intangible property. Had that
the trial court based its summary judgment on a contrary conclusion, it would have erred.
In fairness however, it must be said that the trial court fully acknowledged "the intent of the
Legislature to allow the taking of any type of property, real or personal, if it was in fact necessary for a public
use." But the court concluded as a matter of law that (1) no statutory or charter provision specifically
authorized the taking of a professional football franchise, and (2) the operation of such a franchise is not a
recognized public use which would permit its taking under general condemnation law. Assuming, for
purposes of discussion, the propriety of the first premise, this fact alone is insufficient to support summary
judgment; and we cannot agree with the second premise, which we now explore.
While broad, the eminent domain power is not entirely unlimited, section 1240.010 cautioning: "The
power of eminent domain may be exercised to acquire property only for a public use." ... Further, a public
entity's taking may be challenged on the grounds that it (1) reflects a "gross abuse of discretion," is arbitrary,
capricious, totally lacking in evidentiary support, or in violation of the procedural requirements of the
eminent domain law; or (3) was the result of bribery. On the other hand, the statutory authorization to utilize
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the power of eminent domain for a given "use, purpose, object, or function" constitutes a legislative
declaration that the exercise is for a "public use."
Is it possible for City to prove that its attempt to take and operate the Raiders' football franchise is for
a valid public use? We have defined "public use" as "a use which concerns the whole community or
promotes the general interest in its relation to any legitimate object of government." On the other hand, "It is
not essential that the entire community, or even any considerable portion thereof, shall directly enjoy or
participate in an improvement in order to constitute a public use." Further, while the legislature may
statutorily declare a given "use, purpose, object or function" to be a public use," such statutory declarations
do not purport to be exclusive.
...
The United States Supreme Court established years ago in another context, that "what is a public use
frequently and largely depends upon the facts and circumstances surrounding the particular subject matter in
regard to which the character of the use is questioned." ... Further, "Public uses are not limited, in the
modern view, to matters of mere business necessity and ordinary convenience, but may extend to matters of
public health, recreation, and enjoyment."
...
The examples of Candlestick Park in San Francisco and Anaheim Stadium in Anaheim, both owned
and operated by municipalities, further suggest the acceptance of the general principle that providing access
to recreation to its residents in the form of spectator sports is an appropriate function of city government. In
connection with the latter stadium, the appellate court upheld the power of the City of Anaheim to condemn
land for parking facilities at the stadium on the ground that "the acquisition, construction, and operation of a
stadium by a county or city represents a legitimate public purpose."
...
...
From the foregoing we conclude only that the acquisition and, indeed, the operation of a sports
franchise may be an appropriate municipal function. If such valid public use can be demonstrated, the
statutes discussed herein afford City the power to acquire by eminent domain any property necessary to
accomplish that use.
We caution that we are not concerned with the economic or governmental wisdom of City's
acquisition or management of the Raiders' franchise, but only with the legal propriety of the condemnation
action. In this period of fiscal constraints, if the city fathers of Oakland in their collective wisdom elect to
seek the ownership of a professional football franchise, are we to say to them nay?
Respondents advance the additional argument that even if it is proper for City to own a sports
franchise, it cannot condemn an established team. While some statutes do explicitly prohibit the acquisition
of an ongoing enterprise, there is no such provision in present law which would preclude the taking
contemplated by City. The Legislature knows how to be specific on the point. Government Code section
37353, subdivision (c), for example, provides that while a municipality may condemn land for use as a golf
course, an existing golf course may not be acquired by eminent domain. By necessary implication, this
statute would seem to suggest that the Legislature has recognized a municipality's broad eminent domain
power to acquire an existing business unless expressly forbidden to do so.
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The Raiders' legal final contention is that because a city is statutorily barred from condemning any
property which is not "within its territorial limits," City cannot acquire the partnership rights involved here
which are not "located" in Oakland.
...
Even assuming its applicability here, however, any such restriction would appear to be met on the
record before us. Oakland is the principal place of business of the partnership. It is the designated NFLauthorized site for the team's "home games." It is the primary locale of the team's tangible personalty. We
readily acknowledge that there may be similar or additional factors which would be relevant in determining
the appropriate scope of a city's power of condemnation. In fairness, that power must have reasonable
limitations. Prima facie, however, such territorial restrictions seem to be satisfied, although we most certainly
do not preclude a trial court, on an appropriate factual record, from concluding otherwise.
Whether the action proposed by City here ... falls within the territorial limitation or the exception
thereto, like the other factual and legal issues hereinabove noted, are matters which require a trial court's
inquiry. Such issues are clearly material in determining whether City's proposed exercise of its power of
eminent domain is proper and reasonable.
...
BIRD, Chief Justice, concurring and dissenting.
The power of eminent domain claimed by the city in this case is not only novel but virtually without
limit. This is troubling because the potential for abuse of such a great power is boundless. Although I am
forced by the current state of the law to agree with the result reached by the majority, I have not signed their
opinion because it endorses this unprecedented application of eminent domain law without even pausing to
consider the ultimate consequences of their expansive decision.
...
There are two particularly disturbing questions in this case. First, does a city have the power to
condemn a viable, ongoing business and sell it to another private party merely because the original owner has
announced his intention to move his business to another city?... Second, even if a city were legally able to do
so, is it proper for a municipality to drastically invade personal property rights to further the policy interests
ascribed here? The rights both of the owners of the Raiders and of its employees are threatened by the City's
action. ...
At what point in the varied and complex business relationships involved herein would this power to
condemn end? In my view, this court should proceed most cautiously before placing a constitutional
imprimatur upon this aspect of creeping statism. ...
[A] review of the pertinent case law demonstrates that decisions as to the proper scope of the power
of eminent domain generally have been considered legislative, rather than judicial, in nature. Therefore, in the
absence of a legislative bar to the use of eminent domain in this manner, there appears to be no ground for
judicial intervention.
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NOTES AND QUESTIONS
1. As most victims of NBC are aware, the Raiders ended up moving to Los Angeles subsequent to further
court perusal of the issues raised in this decision, and subsequently, ten years later, turned around and went
back to Oakland.
2. Since the Dodgers moved from Brooklyn to Los Angeles in 1958, Brooklyn has deteriorated miserably.
Can a sports franchise galvanize and unite a community so as to retard the spread of decay and lawlessness?
If so, is that an argument for preventing moves as Oakland sought to do? (And if so, how come lawlessness
and decay have spread in Los Angeles since 1958?)
3. In the nineteen thirties, some of the heavily unionized New England states tried to prevent textile
manufacturers from moving their manufacturing operations to the Carolinas and Georgia. Both the reasons
for moving and the argument against it are obvious, and I might invite you to prove that on an exam. Show
how an argument (by Massachusetts, say) for an injunction to prevent such a move by a Massachusetts
manufacturer would have anticipated elements of both the Poletown case (in the book) and this case. (Unlike
these included cases, the New England efforts did not seek to apply eminent domain.)
4. Movement of sports teams threatens to become a major issue; in 1995-1996, four NFL teams will threaten
to move (to Baltimore, Nashville, St. Louis, and Los Angeles.) Clearly, however, eminent domain is not the
key to prevention of such moves. Imagine economic reasons why a team might leave a major city (Houston
or Los Angeles) for a lesser one (Nashville or St. Louis).
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Case 12: Scope of Public Purpose
Poletown Neighborhood Council v. City of Detroit
Supreme Court of Michigan
410 Mich. 616 (1981)
OPINION: Per Curiam. This case arises out of a plan by the Detroit Economic Development Corporation to
acquire, by condemnation if necessary, a large tract of land to be conveyed to General Motors Corporation as
a site for construction of an assembly plant. The plaintiffs, a neighborhood association and several individual
residents of the affected area, brought suit in Wayne Circuit Court to challenge the project on a number of
grounds, not all of which have been argued to this Court. Defendants' motions for summary judgment were
denied pending trial on a single question of fact: whether...the city abused its discretion in determining that
condemnation of plaintiffs' property was necessary to complete the project.
The trial lasted 10 days and resulted in a judgment for defendants and an order ... dismissing plaintiffs'
complaint. The plaintiffs filed a claim of appeal with the Court of Appeals on December 12, 1980, and an
application for bypass with this Court on December 15, 1980.
We granted a motion for immediate consideration and an application for leave to appeal prior to
decision by the Court of Appeals to consider the following questions:
Does the use of eminent domain in this case constitute a taking of private property for private use ...?
Did the court below err in ruling that cultural, social and historical institutions were not protected by
the Michigan Environmental Protection Act?
We conclude that these questions must be answered in the negative and affirm the trial court's
decision.
I
This case raises a question of paramount importance to the future welfare of this state and its
residents: Can a municipality use the power of eminent domain granted to it by the Economic Development
Corporations Act... to condemn property for transfer to a private corporation to build a plant to promote
industry and commerce, thereby adding jobs and taxes to the economic base of the municipality and state?
Const 1963, art 10, @ 2, states in pertinent part that "[private] property shall not be taken for public
use without just compensation therefor being first made or secured in a manner prescribed by law". Art 10,
@ 2 has been interpreted as requiring that the power of eminent domain not be invoked except to further a
public use or purpose. Plaintiffs-appellants urge us to distinguish between the terms "use" and "purpose",
asserting they are not synonymous and have been distinguished in the law of eminent domain. We are
persuaded the terms have been used interchangeably in Michigan statutes and decisions in an effort to
describe the protean concept of public benefit. The term "public use" has not received a narrow or inelastic
definition by this Court in prior cases. ... Indeed, this Court has stated that "'[a] public use changes with
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changing conditions of society'" and that "'[the] right of the public to receive and enjoy the benefit of the use
determines whether the use is public or private'". ...
The Economic Development Corporations Act is a part of the comprehensive legislation dealing with
planning, housing and zoning whereby the State of Michigan is attempting to provide for the general health,
safety, and welfare through alleviating unemployment, providing economic assistance to industry, assisting
the rehabilitation of blighted areas, and fostering urban redevelopment.
Section 2 of the act provides:
"There exists in this state the continuing need for programs to alleviate and prevent conditions of
unemployment, and that it is accordingly necessary to assist and retain local industries and commercial
enterprises to strengthen and revitalize the economy of this state and its municipalities; that accordingly it is
necessary to provide means and methods for the encouragement and assistance of industrial and commercial
enterprises in locating, purchasing, constructing, reconstructing, modernizing, improving, maintaining,
repairing, furnishing, equipping, and expanding in this state and in its municipalities; and that it is also
necessary to encourage the location and expansion of commercial enterprises to more conveniently provide
needed services and facilities of the commercial enterprises to municipalities and the residents thereof.
Therefore, the powers granted in this act constitute the performance of essential public purposes and
functions for this state and its municipalities." ...
To further the objectives of this act, the Legislature has authorized municipalities to acquire property
by condemnation in order to provide industrial and commercial sites and the means of transfer from the
municipality to private users.
Plaintiffs-appellants do not challenge the declaration of the Legislature that programs to alleviate and
prevent conditions of unemployment and to preserve and develop industry and commerce are essential public
purposes. Nor do they challenge the proposition that legislation to accomplish this purpose falls within the
constitutional grant of general legislative power to the Legislature in Const 1963, art 4, @ 51, which reads as
follows:
"The public health and general welfare of the people of the state are hereby declared to be matters of
primary public concern. The legislature shall pass suitable laws for the protection and promotion of the
public health."
What plaintiffs-appellants do challenge is the constitutionality of using the power of eminent domain
to condemn one person's property to convey it to another private person in order to bolster the economy.
They argue that whatever incidental benefit may accrue to the public, assembling land to General Motors'
specifications for conveyance to General Motors for its uncontrolled use in profit making is really a taking for
private use and not a public use because General Motors is the primary beneficiary of the condemnation.
The defendants-appellees contend, on the other hand, that the controlling public purpose in taking this
land is to create an industrial site which will be used to alleviate and prevent conditions of unemployment and
fiscal distress. The fact that it will be conveyed to and ultimately used by a private manufacturer does not
defeat this predominant public purpose.
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There is no dispute about the law. All agree that condemnation for a public use or purpose is
permitted. All agree that condemnation for a private use or purpose is forbidden. Similarly, condemnation
for a private use cannot be authorized whatever its incidental public benefit and condemnation for a public
purpose cannot be forbidden whatever the incidental private gain. The heart of this dispute is whether the
proposed condemnation is for the primary benefit of the public or the private user.
The Legislature has determined that governmental action of the type contemplated here meets a
public need and serves an essential public purpose. The Court's role after such a determination is made is
limited.
" 'The determination of what constitutes a public purpose is primarily a legislative function, subject to
review by the courts when abused, and the determination of the legislative body of that matter should not be
reversed except in instances where such determination is palpable and manifestly arbitrary and incorrect.'" ...
The United States Supreme Court has held that when a legislature speaks, the public interest has been
declared in terms "well-nigh conclusive". ...
The Legislature has delegated the authority to determine whether a particular project constitutes a
public purpose to the governing body of the municipality involved. The plaintiffs concede that this project is
the type contemplated by the Legislature and that the procedures set forth in the Economic Development
Corporations Act have been followed. This further limits our review.
In the court below, the plaintiffs-appellants challenged the necessity for the taking of the land for the
proposed project. In this regard the city presented substantial evidence of the severe economic conditions
facing the residents of the city and state, the need for new industrial development to revitalize local
industries, the economic boost the proposed project would provide, and the lack of other adequate available
sites to implement the project.
As Justice COOLEY stated over a hundred years ago "the most important consideration in the case of
eminent domain is the necessity of accomplishing some public good which is otherwise impracticable, and ...
the law does not so much regard the means as the need".
When there is such public need, "[the] abstract right [of an individual] to make use of his own
property in his own way is compelled to yield to the general comfort and protection of community, and to a
proper regard to relative rights in others". Id. Eminent domain is an inherent power of the sovereign of the
same nature as, albeit more severe than, the power to regulate the use of land through zoning or the
prohibition of public nuisances.
In the instant case the benefit to be received by the municipality invoking the power of eminent
domain is a clear and significant one and is sufficient to satisfy this Court that such a project was an intended
and a legitimate object of the Legislature when it allowed municipalities to exercise condemnation powers
even though a private party will also, ultimately, receive a benefit as an incident thereto.
The power of eminent domain is to be used in this instance primarily to accomplish the essential
public purposes of alleviating unemployment and revitalizing the economic base of the community. The
benefit to a private interest is merely incidental.
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Our determination that this project falls within the public purpose, as stated by the Legislature, does
not mean that every condemnation proposed by an economic development corporation will meet with similar
acceptance simply because it may provide some jobs or add to the industrial or commercial base. If the public
benefit was not so clear and significant, we would hesitate to sanction approval of such a project. The power
of eminent domain is restricted to furthering public uses and purposes and is not to be exercised without
substantial proof that the public is primarily to be benefited. Where, as here, the condemnation power is
exercised in a way that benefits specific and identifiable private interests, a court inspects with heightened
scrutiny the claim that the public interest is the predominant interest being advanced. Such public benefit
cannot be speculative or marginal but must be clear and significant if it is to be within the legitimate purpose
as stated by the Legislature. We hold this project is warranted on the basis that its significance for the people
of Detroit and the state has been demonstrated.
II
Plaintiffs' complaint also alleged that the proposed project violates the Michigan Environmental
Protection Act (MEPA),... because it "will have a major adverse impact on the adjoining social and cultural
environment which is referred to as Poletown". The trial court dismissed this claim, stating that "'social and
cultural environments' are matters not within the purview of the MEPA and outside its legislative intent". We
agree.
[Michigan law] ... permits maintenance of an action for declaratory and equitable relief against the
state, its political subdivisions, or private entities, "for the protection of the air, water and other natural
resources and the public trust therein from pollution, impairment or destruction". (Emphasis supplied.) The
reference to "air, water and other natural resources" is also made in other sections of the act and in its title.
Given its plain meaning, the term "natural resources" does not encompass a "social and cultural
environment". Moreover, under the principle of ejusdem generis, where a statute contains a general term
supplementing a more specific enumeration, the general term will not be construed to refer to objects not of
like kind with those enumerated. ... The decision of the trial court is affirmed.
Ryan, J. (dissenting). This is an extraordinary case.
The reverberating clang of its economic, sociological, political, and jurisprudential impact is likely to
be heard and felt for generations. By its decision, the Court has altered the law of eminent domain in this
state in a most significant way and, in my view, seriously jeopardized the security of all private property
ownership.
This case will stand, above all else, despite the sound intentions of the majority, for judicial approval
of municipal condemnation of private property for private use. This is more than an example of a hard case
making bad law -- it is, in the last analysis, good-faith but unwarranted judicial imprimatur upon government
action taken under the policy of the end justifying the means.
My separate views are set down some days after the Court's 5-to-2 decision has been made and
announced and the controlling and dissenting opinions of my colleagues released. I take this unusual step for
a number of reasons:
-- The speed with which this case was submitted, argued, considered and decided has meant
preparation of opinions which, in my view, do not adequately address the constitutional issues involved.
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-- The ever-broadening audience for which we write may profit from a longer and more detailed
analysis of the unique facts which generated this litigation in order to appreciate the economic, social, and
political context in which, in my view, our constitutional precedents have been disregarded.
-- Because this case so remarkably alters our jurisprudence, it is worthwhile to trace our precedent
from the beginning and to note with care where and how, from this dissenting perspective, the Court
departed from it.
-- Finally, it seems important to describe in detail for the bench and bar who may address a
comparable issue on a similarly stormy day, how easily government, in all of its branches, caught up in the
frenzy of perceived economic crisis, can disregard the rights of the few in allegiance to the always disastrous
philosophy that the end justifies the means.
I
The real controversy which underlies this litigation concerns the propriety of condemning private
property for conveyance to another private party because the use of it by the new owner promises greater
public "benefit" than the old use. The controversy arises in the context of economic crisis. While
unemployment is high throughout the nation, it is of calamitous proportions throughout the state of
Michigan, and particularly in the City of Detroit, whose economic lifeblood is the now foundering automobile
industry. It is difficult to overstate the magnitude of the crisis. Unemployment in the state of Michigan is at
14.2%. In the City of Detroit it is at 18%, and among black citizens it is almost 30%. The high cost of doing
business in Michigan generally has driven many manufacturers out of this state and to the so-called sunbelt
states on a continuing basis during the past several years. Nowhere is the exodus more steady or more
damaging than from the Metropolitan Detroit area. It is appropriate to take judicial notice of the fact that the
view is widely held that the Chrysler Corporation, headquartered in Detroit, is "on the ropes", surviving only
because of hundreds of millions of dollars of federally insured loans. It is likewise appropriate to note
judicially the commonly known and readily verifiable fact that the Ford Motor Company, the American
Motors Corporation and the General Motors Corporation have all, within days, reported for the previous
year the largest financial losses in their histories.
A new national administration and a reconstituted Congress are struggling to find acceptable means to
assist the American automotive industry to compete with the overseas automobile manufacturing competition
which is largely accountable for domestic automobile industry losses. To meet that competition, domestic
manufacturers are finding it necessary to construct new manufacturing facilities in order to build redesigned,
lighter and more economical cars. That means new factories and new factory locations.
...
It was, of course, evident to all interested observers that the removal by General Motors of its
Cadillac manufacturing operations to a more favorable economic climate would mean the loss to Detroit of at
least 6,000 jobs as well as the concomitant loss of literally thousands of allied and supporting automotive
design, manufacture and sales functions. There would necessarily follow, as a result, the loss of millions of
dollars in real estate and income tax revenues. The darkening picture was made even bleaker by the
operation of other forces best explained by the social sciences, including the city's continuing loss of its
industrial base and the decline of its population.
Thus it was to a city with its economic back to the wall that General Motors presented its highly
detailed "proposal" for construction of a new plant in a "green field" location in the City of Detroit. In
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addition to the fact that Detroit had virtually no "green fields", the requirements of the "proposal" were such
that it was clear that no existing location would be suitable unless the city acquired the requisite land one way
or another and did so within the General Motors declared time schedule. The corporation told the city that it
must find or assemble a parcel 450 to 500 acres in size with access to long-haul railroad lines and a freeway
system with railroad marshalling yards within the plant site. As both General Motors and the city knew at the
outset, no such "green field" existed. Unquestionably cognizant of its immense political and economic
power, General Motors also insisted that it must receive title to the assembled parcel by May 1, 1981.
In a most impressive demonstration of governmental efficiency, the City of Detroit set about its task
of meeting General Motors' specifications. Nine possible sites were identified and suggested to General
Motors. Only one was found adequate -- a parcel consisting of 465 acres straddling the Detroit-Hamtramck
border that has come to be known as Central Industrial Park (CIP).
In July, 1980, the general outlines of the proposal to condemn property to meet General Motors'
demands were submitted to the Detroit Common Council, which promptly approved the boundaries of CIP.
The city had already begun to purchase property in contemplation of CIP's establishment. Approval of the
CIP boundaries by the Common Council set in motion other activities: surveying in the area was begun,
appraisals of the affected properties were made, and two major documents were prepared: "Project Plan:
Central Industrial Park" and "Draft Environmental Impact Statement: Central Industrial Park, The Cities of
Detroit and Hamtramck, Michigan" (EIS). On September 30, 1980, the completed project plan was
approved by the Detroit Economic Development Corporation. Two weeks later a public hearing was held on
the then proposed CIP and the next day, October 15, 1980, the Environmental Impact Statement was issued.
On October 29, 1980 the Detroit Community and Economic Development Department, ... sent a letter to the
Detroit Common Council recommending that the council approve the project plan with suggested
amendments for the CIP. Two days later, the council followed the recommendation, passed a resolution
approving the project plan with minor modifications, and declared in the resolution "that said project
constitutes a public purpose" and "is hereby determined to be for the use and benefit of the public". On
November 3, 1980 the mayor of the City of Detroit signed the resolution.
Behind the frenzy of official activity was the unmistakable guiding and sustaining, indeed controlling,
hand of the General Motors Corporation. The city administration and General Motors worked in close
contact during the summer and autumn of 1980 negotiating the specifics for the new plant site. The
negotiations culminated in a letter dated October 8, 1980 from Thomas A. Murphy, Chairman of the Board
of Directors of General Motors, to Mayor Coleman A. Young and Mr. Howard Woods, Chairmen of the
Economic Development Corporations of the cities of Detroit and Hamtramck, respectively.
...
Attached to the letter from Mr. Murphy were eight pages of "site criteria requirements", all
established by General Motors, to which the cities of Detroit and Hamtramck were required to agree, as a
condition precedent to General Motors' "[entering] into a mutually satisfactory development agreement with
the Economic Development Corporations". The cities agreed.
Among the more publicized of the criteria imposed by General Motors was the requirement that
"[title] to the entire site and the rail marshalling yard must be vested in the City of Detroit by May 1, 1981".
In light of that demand, the uncommon speed and efficiency with which the city moved to establish CIP and
initiate proceedings to condemn the affected property is more understandable.
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It is the less publicized site criteria prescribed by General Motors, however, and incorporated in the
approved project plan by the City of Detroit, which suggest the withering economic clout of the country's
largest auto firm. An example is the requirement that the economic development corporations, which are
nothing more than the alter egos of the municipalities involved, must "provide for the construction and
upgrading of site perimeter roads". This entails relocation and extension of East Grand Boulevard, which
now runs through CIP; the widening of existing roads and construction of new roads to form a ring road
around CIP; "[appropriate] modification of I-94 access ramps and service roads"; and erection of an
"[appropriate] street lighting system around the perimeter road". The projected cost of these improvements
is $ 23.5 million. In addition, it was decreed that "General Motors will not be responsible for absorbing the
penalty of approximately $ 3.5 million for underground [utility] service versus overhead service, as required
by the Public Lighting Department of the City of Detroit". Furthermore, the economic development
corporations agreed "[to] dispose of, at their expense, hazardous and toxic waste materials which are found
on the site". Of course, the cities are also required by law to pay just compensation to those dislocated by
CIP. In all, the projected public cost of preparing a site agreeable to the board of directors of General Motors
is over $ 200 million. Remarkably, the site will be sold to General Motors for little more than $ 8 million. ...
The long shadow of this public accommodation of a private manufacturing development was adumbrated by
a provision in the site criteria document, attached to GM Chairman Murphy's letter, which states:
"Taxes
"The Cities of Detroit and Hamtramck shall establish a Plant Rehabilitation District...
which shall include maximum allowable tax abatement under said law for a period of 12
years."
The evidence then is that what General Motors wanted, General Motors got. The corporation
conceived the project, determined the cost, allocated the financial burdens, selected the site, established the
mode of financing, imposed specific deadlines for clearance of the property and taking title, and even
demanded 12 years of tax concessions.
From the beginning, construction of the new assembly plant in Detroit was characterized by the city
administration as a do or die proposition. Accordingly, the city, aided by the Michigan "quick-take" statute,
... marshalled and applied its resources and power to insure that CIP was a fait accompli before meaningful
objection could be registered or informed opposition organized. Faced with the unacceptable prospect of
losing two automotive plants and the jobs that go with them, the city chose to march in fast lock-step with
General Motors to carve a "green field" out of an urban setting which ultimately required sweeping away a
tightly-knit residential enclave of first-and second-generation Americans, for many of whom their home was
their single most valuable and cherished asset and their stable ethnic neighborhood the unchanging symbol of
the security and quality of their lives.
It is easy to underestimate the overwhelming psychological pressure which was brought to bear upon
property owners in the affected area, especially the generally elderly, mostly retired and largely PolishAmerican residents of the neighborhood which has come to be called Poletown. As the new plant site plans
were developed and announced, the property condemnation proceedings under the "quick-take" statute
begun and the demolitionist's iron ball razed neighboring commercial properties such as the already
abandoned Chrysler Dodge Main plant, a crescendo of supportive applause sustained the city and General
Motors and their purpose. Labor leaders, bankers, and businessmen, including those for whom a new GM
plant would mean new economic life, were joined by radio, television, newspaper and political opinion-56-
makers in extolling the virtues of the bold and innovative fashion in which, almost overnight, a new and
modern plant would rise from a little known inner-city neighborhood of minimal tax base significance. The
promise of new tax revenues, retention of a mighty GM manufacturing facility in the heart of Detroit, new
opportunities for satellite businesses, retention of 6,000 or more jobs, and concomitant reduction of
unemployment, all fostered a community-wide chorus of support for the project. It was it was in such an
atmosphere that the plaintiffs sued to enjoin the condemnation of their homes.
The judiciary, cognizant of General Motors' May 1 deadline for the city's taking title to all of the
property, moved at flank speed. The circuit court conducted a trial on defendants' motion to dismiss
plaintiffs' complaint from November 17 to December 2, 1980, and the decision to dismiss the complaint was
made on December 9, 1980. Application for leave to appeal prior to decision by the Court of Appeals was
received in this Court on December 15, 1980. However, the trial transcript was not received by us until
January 5, 1981. We promptly convened, conferred, and granted leave to appeal on January 29, 1981. The
case was argued on March 3, 1981.
In less than two weeks, the lead opinions were filed by this Court and released. It is in such
circumstances that we were asked to decide, and did decide, an important constitutional issue having
towering implications both for the individual plaintiff property owners and for the City of Detroit and the
state alike, to say nothing of the impact upon our jurisprudence.
I now turn to set down separately my understanding of the law which governs this case and the
outcome it ought to have dictated. My disagreement with my colleagues in the majority, while vigorous, is
nonetheless respectful. Vigorous, because I think the unintended jurisprudential mischief which has been
done, if not soon rectified, will have echoing effects far beyond this case, and respectful because the crushing
burden of litigation which this Court must address daily did not afford adequate time for sufficient
consideration of the complex constitutiona issues involved within the two-week deadline the Court set for
itself for submission, consideration, and decision of the case.
II. The Issue
Stripped of the justifying adornments which have universally attended public description of this
controversy, the central jurisprudential issue is the right of government to expropriate property from those
who do not wish to sell for the use and benefit of a strictly private corporation. It is not disputed that this
action was authorized by statute. The question is whether such authorization is constitutional.
The Economic Development Corporations Act, enacted in 1974, provides for the formation of
municipal economic development corporations. The corporations serve as conduits for effectuation of the
salutary purposes of the act... :
"There exists in this state the continuing need for programs to alleviate and prevent conditions of
unemployment, and that it is accordingly necessary to assist and retain local industries and commercial
enterprises to strengthen and revitalize the economy of this state and its municipalities; that accordingly it is
necessary to provide means and methods for the encouragement and assistance of industrial and commercial
enterprises in locating, purchasing, constructing, reconstructing, modernizing, improving, maintaining,
repairing, furnishing, equipping, and expanding in this state and in its municipalities; and that it is also
necessary to encourage the location and expansion of commercial enterprises to more conveniently provide
needed services and facilities of the commercial enterprises to municipalities and the residents thereof.
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Therefore, the powers granted in this act constitute the performance of essential public purposes and
functions for this state and its municipalities."...
The act empowers the corporations, among other things, to acquire "by gift or purchase" the necessary
property for a "project", borrow money and issue revenue bonds to finance a project, and lease or sell a
project. The corporations do not hold the power of eminent domain. That remains in the hands of
municipalities.
III. Public Use and Public Purpose Distinguished
...
Well over a century ago, a clear line of demarcation was drawn between the powers of eminent
domain and taxation, setting the jurisprudences of the taking clause and, if you will, the "taxing clause" on
separate, independent courses. What is "public" for one is not necessarily "public" for the other:
"Reasoning by analogy from one of the sovereign powers of government to another, is exceedingly
liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general
sense and for other purposes, it would be idle and misleading to apply the same term. All governmental
powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of
public interest. ... The sovereign power of taxation is employed in a great many cases where the power of
eminent domain might be made more immediately efficient and available, if constitutional principles would
suffer it to be resorted to; but each of these powers has its own peculiar and appropriate sphere, and the
object which is public for the demands of one is not necessarily of a character to permit the exercise of
another."...
The distinction ... has been consistently maintained by this court ... until now. It is in failing to make
this distinction that, in my view, the Court loses its way.
...
As a general proposition then, in the realm of aid to private corporations, "public purpose" (taxation)
has been construed less restrictively than "public use" (eminent domain). The distinction is fully justified.
The character of governmental interference with the individual in the case of taxation is wholly different from
the case of eminent domain. The degree of compelled deprivation of property is manifestly less instrusive in
the former case: it is one thing to disagree with the purpose for which one's tax money is spent; it is quite
another to be compelled to give up one's land and be required, as in this case, to leave what may well be a
lifelong home and community.
IV Eminent Domain and Private Corporations
As a general rule, when the object of eminent domain is to take land for ultimate conveyance to a
private corporation to use as it sees fit, the state constitution will forbid it as a taking for private use.
"Land cannot be taken, under the exercise of the power of eminent domain, unless, after it is taken, it
will be devoted to the use of the public, independent of the will of the corporation taking it." Berrien Springs
Water-Power Co v Berrien Circuit Judge, 133 Mich 48, (1903).
Accordingly, land may not be condemned for private corporations engaged in the business of waterpower mills, Ryerson v Brown, 35 Mich 333 (1877); cemeteries, Board of Health v Van Hoesen, 87 Mich
-58-
533; (1891); or general retail, Shizas v Detroit, 333 Mich 44; (1952). In this case, land has been condemned
solely for a private corporation engaged in the business of manufacturing automobiles.
A
It is plain, of course, that condemnation of property for transfer to private corporations is not wholly
proscribed. For many years, and probably since the date of Michigan's statehood, an exception to the general
rule has been recognized. The exception, which for ease of reference might be denominated the
instrumentality of commerce exception, has permitted condemnation for the establishment or improvement of
the avenues of commerce -- highways, railroads, and canals, for example -- and can be traced to the common
law where it was considered an exception to a general rule:
"This right, it has been held, may be exercised on behalf of railways in the hands of private parties.
But there can be no doubt, I think, that this holding was a considerable modification of common law
principles." People ex rel Detroit & Howell R Co v Salem Twp Board, 20 Mich 452, 479 (1870).
...
This Court has never hesitated to permit the use of eminent domain by or for private corporations so
long as the land condemned served thereafter as an instrumentality of commerce. ...
It cannot for an instant be maintained, however, nor has anyone suggested, that the case before us
falls within the instrumentality of commerce exception.
...
B
As discussed above, land may not be condemned for a private corporation save for those cases falling
within what I have called the instrumentality of commerce exception. This has been the unwavering rule in
this state for well over a century. It may be argued, however, that the fact that the case before us lies outside
the exception does not end the inquiry if the reasons justifying the existing exception are present here. I turn
now to determine whether such reasons exist.
Examination of the cases involving the instrumentality of commerce exception reveal that three common
elements appear in those decisions that go far toward explicating and justifying the use of eminent domain for
private corporations: 1) public necessity of the extreme sort, 2) continuing accountability to the public, and
3) selection of land according to facts of independent public significance.
1. Public Necessity of the Extreme Sort Otherwise Impracticable: The Indispensability of Collective Action
To justify the exception, this Court has relied on a principle expressed in varying phraseology such as
"overriding public necessity", "necessity otherwise impracticable", and "necessity of the extreme sort". The
principle has to do not so much with public benefit, which is to a greater or lesser extent invariably present,
as with the indispensability of compelled expropriation of property to the very existence of the enterprise
pursued by the private corporation. The principle, as valid today as when stated years ago, is that "[every]
branch of needful industry has a right to exist"... . With regard to highways, railroads, canals, and other
instrumentalities of commerce, it takes little imagination to recognize that without eminent domain these
essential improvements, all of which require particular configurations of property -- narrow and generally
straight ribbons of land -- would be "otherwise impracticable"; they would not exist at all. "A railway cannot
run around unreasonable landowners". ...
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Thus, the exercise of eminent domain for private corporations has been limited to those enterprises
generating public benefits whose very existence depends on the use of land that can be assembled only by the
coordination central government alone is capable of achieving.
The production of automobiles certainly entails public benefits. Nevertheless, it could hardly be contended
that the existence of the automotive industry or the construction of a new General Motors assembly plant
requires the use of eminent domain.
Instead, what defendants are really claiming is that eminent domain is required for the existence of a new
General Motors assembly plant within the city limits of Detroit in order to comply with the specifications of
General Motors. This is an altogether different argument, acceptance of which would vitiate the requirement
of "necessity of the extreme sort" and significantly alter the balance between governmental power and private
property rights struck by the people and embodied in the taking clause. Just as ominously, it would work a
fundamental shift in the relative force between private corporate power and individual property rights having
the sanction of the state.
2. Continuing Accountability to the Public: A Condition for the Use of Public Power
...
One of the reasons advanced by the defendants as justification of the taking in this case, and adopted by the
majority, is the claim of alleviation of unemployment. Even assuming, arguendo, that employment per se is a
"necessity of the extreme sort", there are no guarantees from General Motors about employment levels at the
new assembly plant. General Motors has made representations about the number of employees who will
work at the new plant, and I certainly do not doubt the good faith of those representations. But the fact of
the matter is that once CIP is sold to General Motors, there will be no public control whatsoever over the
management, or operation, or conduct of the plant to be built there. General Motors will be accountable not
to the public, but to its stockholders. Who knows what the automotive industry will look like in 20 years, or
even 10? For that matter, who knows what cars will look like then? For all that can be known now, in light
of present trends, the plant could be fully automated in 10 years. Amid these uncertainties, however, one
thing is certain. The level of employment at the new GM plant will be determined by private corporate
managers primarily with reference, not to the rate of regional unemployment, but to profit.
By permitting the condemnation in this case, this Court has allowed the use of the public power of eminent
domain without concomitant public accountability.
...
V. Conclusion
...
Consideration of the general prohibition against the taking of private property for private
corporations with the principles justifying exception thereto reveals that a more general principle, consonant
with prior decisions of this Court and entirely contrary to the holding of the majority here, is contained in the
state taking clause: the right to own and occupy land will not be subordinated to private corporate interests
unless the use of the land condemned by or for the corporation is invested with public attributes sufficient to
fairly deem the corporate activity governmental. It is a principle consistently honored in the decisions of this
Court, until now. In addition to its precedential weight, it reflects a common-sense balance struck in the
Constitution for governance of the triangular relationship between government and two competing private
parties. Now, however, that balance is fundamentally upset.
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The majority opinion stands in contravention of the well-established and constant jurisprudence of the
taking clause of the Michigan constitution. Present economic conditions notwithstanding, I can discern no
principled ground on which their decision can be reconciled with the body of law interpreting the state taking
clause. Their decision would be less dangerous were there a sound basis for the change in the law, or even
claim of one. However, since the arguments were directed toward justifying the condemnation in question on
the basis of present law, understandably no reasons for a change in the law were offered....
QUESTIONS AND COMMENTS
1. Recall the earlier comment at the end of the Raiders case, about New England mills moving south to
avoid taxes, unionized labor, and high wages. In many respects this is an identical situation.
2. Contrast the emphasis on the difference between public use and public purpose in Justice Ryan's
dissenting commentary on Michigan law, to the virtually unrestricted application of eminent domain
permitted in the California Code, as spelled out in the Raiders case.
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Case 13: Inverse Condemnation
Agins v. City of Tiburon
Supreme Court of the United States
477 U.S. 255 (1990)
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
POWELL, J., delivered the opinion for a unanimous Court.
The question in this case is whether a municipal zoning ordinance took appellants' without just
compensation in violation of the Fifth and Fourteenth Amendments.
I.
After the appellants acquired five acres of unimproved land in the city of Tiburon, Cal., for residential
development, the city was required by state law to prepare a general plan governing both land use and the
development of open-space land. ... In response, the city adopted two ordinances that modified existing
zoning requirements. ... The zoning ordinances placed the appellants' property in "RPD-1," a Residential
Planned Development and Open Space Zone. RPD-1 property may be devoted to one-family dwellings,
accessory buildings, and open-space uses. Density restrictions permit the appellants to build between one
and five single-family residences on their 5-acre tract. The appellants never have sought approval for
development of their land under the zoning ordinances.
The appellants filed a two-part complaint against the city in State Superior Court. The first cause of
action sought $ 2 million in damages for inverse condemnation. The second cause of action requested a
declaration that the zoning ordinances were facially unconstitutional. The gravamen of both claims was the
appellants' assertion that the city had taken their property without just compensation in violation of the Fifth
and Fourteenth Amendments. The complaint alleged that land in Tiburon has greater value than any other
suburban property in the State of California. ...The ridgelands that appellants own "possess magnificent views
of San Francisco Bay and the scenic surrounding areas [and] have the highest market values of all lands" in
Tiburon. ... Rezoning of the land "forever prevented [its] development for residential use. ..." Therefore, the
appellants contended, the city had "completely destroyed the value of [appellants'] property for any purpose
or use whatsoever...."
[Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a
legal proceeding in which a government asserts its authority to condemn property. ... Inverse condemnation
is "a shorthand description of the manner in which a landowner recovers just compensation for a taking of his
property when condemnation proceedings have not been instituted." ]
[The appellants also contended that the city's aborted attempt to acquire the land through eminent
domain had destroyed the use of the land during the pendency of the condemnation proceedings.]
The city demurred, claiming that the complaint failed to state a cause of action. The Superior Court
sustained the demurrer, and the California Supreme Court affirmed. ... The State Supreme Court first
-62-
considered the inverse condemnation claim. It held that a landowner who challenges the constitutionality of a
zoning ordinance may not "sue in inverse condemnation and thereby transmute an excessive use of the police
power into a lawful taking for which compensation in eminent domain must be paid." ... The sole remedies
for such a taking, the court concluded, are mandamus and declaratory judgment. Turning therefore to the
appellants' claim for declaratory relief, the California Supreme Court held that the zoning ordinances had not
deprived the appellants of their property without compensation in violation of the Fifth Amendment.
The California Supreme Court also rejected appellants' argument that the institution and abandonment
of eminent domain proceedings themselves constituted a taking. The court found that the city had acted
reasonably and that general municipal planning decisions do not violate the Fifth Amendment....
The Fifth Amendment guarantees that private property shall not "be taken for public use, without just
compensation." The appellants' complaint framed the question as whether a zoning ordinance that prohibits
all development of their land effects a taking under the Fifth and Fourteenth Amendments. The California
Supreme Court rejected the appellants' characterization of the issue by holding, as a matter of state law, that
the terms of the challenged ordinances allow the appellants to construct between one and five residences on
their property. The court did not consider whether the zoning ordinances would be unconstitutional if
applied to prevent appellants from building five homes. Because the appellants have not submitted a plan for
development of their property as the ordinances permit, there is as yet no concrete controversy regarding the
application of the specific zoning provisions. ... Thus, the only question properly before us is whether the
mere enactment of the zoning ordinances constitutes a taking.
The application of a general zoning law to particular property effects a taking if the ordinance does
not substantially advance legitimate state interests..., or denies an owner economically viable use of his
land.... The determination that governmental action constitutes a taking is, in essence, a determination that
the public at large, rather than a single owner, must bear the burden of an exercise of state power in the
public interest. Although no precise rule determines when property has been taken,... the question
necessarily requires a weighing of private and public interests. The seminal decision in Euclid v. Ambler Co.,
272 U.S. 365 (1926), is illustrative. In that case, the landowner challenged the constitutionality of a
municipal ordinance that restricted commercial development of his property. Despite alleged diminution in
value of the owner's land, the Court held that the zoning laws were facially constitutional. They bore a
substantial relationship to the public welfare, and their enactment inflicted no irreparable injury upon the
landowner....
In this case, the zoning ordinances substantially advance legitimate governmental goals. The State of
California has determined that the development of local open-space plans will discourage the "premature and
unnecessary conversion of open-space land to urban uses." ... The specific zoning regulations at issue are
exercises of the city's police power to protect the residents of Tiburon from the ill effects of urbanization.
Such governmental purposes long have been recognized as legitimate. ...
[The City Council of Tiburon found that "[it] is in the public interest to avoid unnecessary conversion
of open space land to strictly urban uses, thereby protecting against the resultant adverse impacts, such as air,
noise and water pollution, traffic congestion, destruction of scenic beauty, disturbance of the ecology and
environment, hazards related to geology, fire and flood, and other demonstrated consequences of urban
sprawl." ...]
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The ordinances place appellants' land in a zone limited to single-family dwellings, accessory buildings,
and open-space uses. Construction is not permitted until the builder submits a plan compatible with
"adjoining patterns of development and open space."... In passing upon a plan, the city also will consider
how well the proposed development would preserve the surrounding environment and whether the density of
new construction will be offset by adjoining open spaces. The zoning ordinances benefit the appellants as
well as the public by serving the city's interest in assuring careful and orderly development of residential
property with provision for open-space areas. There is no indication that the appellants' 5-acre tract is the
only property affected by the ordinances. Appellants therefore will share with other owners the benefits and
burdens of the city's exercise of its police power. In assessing the fairness of the zoning ordinances, these
benefits must be considered along with any diminution in market value that the appellants might suffer.
Although the ordinances limit development, they neither prevent the best use of appellants' land,... nor
extinguish a fundamental attribute of ownership... . The appellants have alleged that they wish to develop the
land for residential purposes, that the land is the most expensive suburban property in the State, and that the
best possible use of the land is residential. ... The California Supreme Court has decided, as a matter of state
law, that appellants may be permitted to build as many as five houses on their five acres of prime residential
property. At this juncture,the appellants are free to pursue their reasonable investment expectations by
submitting a development plan to local officials. Thus, it cannot be said that the impact of general land-use
regulations has denied appellants the "justice and fairness" guaranteed by the Fifth and Fourteenth
Amendments...
.
[Appellants also claim that the city's precondemnation activities constitute a taking. ... The State
Supreme Court correctly rejected the contention that the municipality's good-faith planning activities, which
did not result in successful prosecution of an eminent domain claim, so burdened the appellants' enjoyment of
their property as to constitute a taking. ... Even if the appellants' ability to sell their property was limited
during the pendency of the condemnation proceeding, the appellants were free to sell or develop their
property when the proceedings ended. Mere fluctuations in value during the process of governmental
decisionmaking, absent extraordinary delay, are "incidents of ownership. They cannot be considered as a
'taking' in the constitutional sense." ...
III
The State Supreme Court determined that the appellants could not recover damages for inverse
condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and
declaratory judgment are remedies available to such a landowner. Because no taking has occurred, we need
not consider whether a State may limit the remedies available to a person whose land has been taken without
just compensation. The judgment of the Supreme Court of California is Affirmed.
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QUESTIONS AND COMMENTS
1. This case nicely illustrates the view that "highest and best" use of property need not be that use which
yields highest market value. Appellants are found to be able to develop their property in a manner consistent
with state and municipally defined public purpose, and are denied the right to create higher density housing,
to the detriment of their wealth.
2.
Whose property interests are protected by this state-enforced view of highest and best use?
3. You might enjoy looking at a very important recent case that bears superficial similarity to this one:
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The issue in Lucas is slightly different:
South Carolina sought to prevent the owner from building a residence on an expensive piece of beachfront
property. The Lucas opinion, with dissents, is more than 100 pages long. It does contain reference to Agins
v. Tiburon and it is interesting to see how the differences of circumstance are weighed.
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Case 14: Rights of and Duty to "Trespassers"
Ploof v. Putnam
81 Vt.471 (1908)
MUNSON, J. It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant
was the owner of a certain island in Lake Champlain and of a certain dock attached thereto, which island and
dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon
said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there
then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed
in great danger of destruction; that to save these from destruction or injury the plaintiff was compelled to,
and did, moor the sloop to defendant's dock; that the defendant by his servant unmoored the sloop,
whereupon it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its
contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the
shore, receiving injuries.
This claim is set forth in two counts: one in trespass, charging that the defendant by his servant with
force and arms wilfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of
the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain
so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this
duty, negligently, carelessly and wrongfully unmoored the sloop. Both counts are demurred to generally.
There are many cases in the books which hold that necessity, and an inability to control movements
inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with
personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient
to illustrate the doctrine. In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the
defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them
out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the
defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them
into the next ground. But the court considered that the defendant might drive the sheep from his land with a
dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant
had done his best to recall the dog trespass would not lie. In trespass of cattle taken in A, defendant pleaded
that he was seized of C, and found the cattle there damage feasant, and chased them toward the pound, and
that they escaped from him and went into A, and he presently retook them; and this was held a good plea. ...
If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed
the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass
will not lie. ... A traveller on a highway, who finds it obstructed from a sudden and temporary cause, may
pass upon the adjoining land without becoming a trespasser, because of the necessity. [Citing cases.] An
entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a
trespass. ...In Proctor v. Adams. 113 Mass. 376, the defendant went upon the plaintiff's beach for the purpose
of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being
carried off by the sea; and it was held no trespass.
This doctrine of necessity applies with special force to the preservation of human life. One assaulted
and in peril of his life may run through the close of another to escape from his assailant. ... One may sacrifice
the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the
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defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the
ferryman of Gravesend took forth seven passengers into his barge to pass to London, among whom were the
plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so
that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast
out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to
save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's
casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the
surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of
God, as by tempest, without fault of the ferryman, every one ought to bear this loss, to safeguard the life of a
man.
It is clear that an entry upon the land of another may be justified by necessity, and that the declaration
before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the
counts because they do not negative the existence of natural objects to which the plaintiff could have moored
with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled
the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is
complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the
details of the situation which created this necessity, whatever the legal requirements regarding them, are
matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable
irrespective of circumstance, and the question must be left for adjudication upon proceedings had with
reference to the evidence of the charge...
Judgement affirmed and cause remanded.
NOTES AND QUESTIONS
1. Ploof v. Putnam is here offered as an illustration of the rights of trespassers. Katko v. Briney (next case)
makes an even stronger case that property rights are subservient to rights of physical safety. Ploof is
normally viewed as a tort case, and when it is treated as "trespass," the trespass is in the old fashioned sense
of harm inflicted on the person of another. It is an interesting bit of history that long before the tort of
battery was recognized, the same hostile behavior could result in a court charge of trespass.
2. Mouse's case (cited in Ploof) is a famous case in the law of Admiralty, which law governs litigations on
navigable waterways. It embodies an early clear statement of the rule of general average, which provides that
in a catastrophe or potential catastrophe not of the making of the owner or captain of a vessel, cargo may be
jettisoned to diminish the risk of loss of life, and everyone on board as shipper or passenger shares in the
value of the loss on a pro rata basis.
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Case 15: Rights of and Duty to "Trespassers"
Katko v. Briney
Supreme Court of Iowa
183 N.W. 2d, 657 (1971)
MOORE, Chief Justice.
The primary issue presented here is whether an owner may protect personal property in an
unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death
or serious injury.
We are not here concerned with a man's right to protect his home and members of his family.
Defendants' home was several miles from the scene of the incident to which we refer infra. Plaintiff's action is
for damages resulting from serious injury caused by a shot from a 20 gauge spring shotgun set by defendants
in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion,
Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which
they considered antiques.
At defendants' request plaintiff's action was tried to a jury consisting of residents of the community
where defendants' property was located. The jury returned a verdict for plaintiff and against defendants for
$20,000 actual and $10,000 Punitive damages.
After careful consideration of defendants' motions for judgment notwithstanding the verdict and for
new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus
we have this appeal by defendants.
In this action our review of the record as made by the parties in the lower court is for the correction
of errors at law. We do not review actions at law de novo. ... Findings of fact by the jury are binding upon
this court if supported by substantial evidence. ...
Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents' farm
land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where
her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward,
attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.
For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events
with loss of some household items, the breaking of windows and "messing up of the property in general". The
latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.
Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions.
They had posted "no trespass" signs on the land several years before 1967. The nearest one was 35 feet from
the house. On June 11, 1967 defendants set "a shotgun trap" in the north bedroom. After Mr. Briney
cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old
house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with
wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed
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the gun so an intruder would be hit in the stomach but at Mrs Briney's suggestion it was lowered to hit the
legs. He admitted he did so "because I was mad and tired of being tormented" but "he did not intend to
injure anyone". He gave no explanation of why he used a loaded shell and set it to hit a person already in the
house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No
warning of its presence was posted.
Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven
miles from the old house. He had observed it for several years while hunting in the area and considered it as
being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered
with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found
several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date
about 9:30 p.m. they made a second trip to the Briney property. They entered the old house by removing a
board from a porch window which was without glass. While McDonough was looking around the kitchen
area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun
went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was
blown away. Only by McDonough's assistance was plaintiff able to get out of the house and after crawling
some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the
hospital 40 days.
Plaintiff's doctor testified he seriously considered amputation but eventually the healing process was
successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was
required to keep the injured leg in a cast for approximately a year and wear a special brace for another year.
He continued to suffer pain during this period.
There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a
shortening of the leg.
The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital
service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court
submitted to the jury the question of damages for pain and suffering and for future disability.
Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and
fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property
of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during
good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff's first brush
with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal
charge against him.
The main thrust of defendants' defense in the trial court and on this appeal is that "the law permits use
of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or
thief." They repeated this contention in their exceptions to the trial court's instructions 2, 5 and 6. They took
no exception to the trial court's statement of the issues or to other instructions.
In the statement of issues the trial court stated plaintiff and his companion committed a felony when
they broke and entered defendants' house. In instruction 2 the court referred to the early case history of the
use of spring guns and stated under the law their use was prohibited except to prevent the commission of
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felonies of violence and where human life is in danger. The instruction included a statement breaking and
entering is not a felony of violence.
Instruction 5 stated: "You are hereby instructed that one may use reasonable force in the protection
of his property, but such right is subject to the qualification that one may not use such means of force as will
take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and
is in violation of the law himself."
Instruction 6 stated: "An owner of premises is prohibited from willfully or intentionally injuring a
trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning
a premise is prohibited from setting out 'spring guns' and like dangerous devices which will likely take life or
inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting
in violation of the law does not change the rule. The only time when such conduct of setting a 'spring gun' or
a like dangerous device is justified would be when the trespasser was committing a felony of violence or a
felony punishable by death, or where the trespasser was endangering hum all life by his act."
Instruction 7, to which defendants made no objection or exception, stated: "To entitle the plaintiff to
recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the
evidence each and all of the following propositions:
"1. That defendants erected a shotgun trap in a vacant house on land owned by defendant, Bertha L. Briney,
on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers
and thieves.
"2. That the force used by defendants was in excess of that force reasonably necessary and which persons are
entitled to use in the protection of their property.
"3. That plaintiff was injured and damaged and the amount thereof.
"4. That plaintiff's injuries and damages resulted directly from the discharge of the shotgun trap which was set
and used by defendants."
The overwhelming weight of authority, both textbook and case law, supports the trial court's
statement of the applicable principles of law.
Prosser on Torts, Third Edition, pages 116-118, states:
" * * * the law has always placed a higher value upon human safety than upon mere rights in
property, it is the accepted rule that there is no privilege to use any force calculated to cause
death or serious bodily injury to repel the threat to land or chattels, unless there is also such a
threat to the defendant's personal safety as to justify a self-defense. ... [S]pring guns and other
man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They
are privileged only against those upon whom the landowner, if he were present in person
would be free to inflict injury of the same kind."
Restatement of Torts, section 85, page 180, states:
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"The value of human life and limb, not only to the individual concerned but also to society, so
outweighs the interest of a possessor of land in excluding from it those whom he is not willing
to admit thereto that a possessor of land has ... no privilege to use force intended or likely to
cause death or serious harm against another whom the possessor sees about to enter his
premises or meddle with his chattel, unless the intrusion threatens death or serious bodily
harm to the occupiers or users of the premises. ... A possessor of land cannot do indirectly
and by a mechanical device that which, were he present, he could not do immediately and in
person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land
from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical
device whose only purpose is to inflict death or serious harm upon such as may intrude, by
giving notice of his intention to inflict, by mechanical means and indirectly, harm which he
could not, even after request, inflict directly were he present."
...
In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting
from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this
statement is made: "This court has held that a mere trespass against property other than a dwelling is not a
sufficient justification to authorize the use of a deadly weapon by the owner in its defense; and that if death
results in such a case it will be murder, though the killing be actually necessary to prevent the trespass. The
State v. Vance, 17 Iowa 138." At page 617 this court said: "[T]respassers and other inconsiderable violators
of the law are not to be visited by barbarous punishments or prevented by inhuman inflictions of bodily
injuries."
The facts in Allison v. Fiscus, 156 Ohio 120, ... l951, are very similar to the case at bar. There
plaintiff's right to damages was recognized for injuries received when he feloniously broke a door latch and
started to enter defendant's warehouse with intent to steal. As he entered a trap of two sticks of dynamite
buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the
question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser
engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court
recognized plaintiff's right to recover punitive or exemplary damages in addition to compensatory damages....
In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or
homicide caused by spring guns or other set devices. In Wisconsin, Oregon and England the use of spring
guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388....
The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and
supported by tile authorities cited and quoted supra. There is no merit in defendants' objections and
exceptions thereto. Defendants' various motions based on the same reasons stated in exceptions to
instructions were properly overruled.
Plaintiff's claim and the jury's allowance of punitive damages, under the trial court's instructions
relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not
allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed
to stand.
We express no opinion as to whether punitive damages are allowable in this type of case. If
defendants' attorneys wanted that issue decided it was their duty to raise it in the trial court.
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The rule is well established that we will not consider a contention not raised in the trial court. In
other words we are a court of review and will not consider a contention raised for the first time in this court.
...
In our most recent reference to the rule we say in Cole v. City of Osceola, Iowa, 179 N.W.2d 524,
527: "Of course, questions not presented to and not passed upon by the trial court cannot be raised or
reviewed on appeal."
Under our law punitive damages are not allowed as a matter of right. Sebastian v. Wood, 246 Iowa
94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and
reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant
and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his
recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it.
The jury's findings of fact including a finding defendants acted with malice and with wanton and
reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by
substantial evidence. We are bound thereby.
This opinion is not to be taken or construed as authority that the allowance of punitive damages is or
is not proper under circumstances such as exist here. We hold only that question of law not having been
properly raised can not in this case be resolved.
Study and careful consideration of defendants' contentions on appeal reveal no reversible error.
Affirmed.
All Justices concur except LARSON, J.. who dissents.
LARSON, Justice....
I personally have no objection to this court's determination of the public policy of this state in such a
case to ban the use of such devices in all instances where there is no intruder threat to human life or safety,
but I do say we have never done so except in the case of a mere trespasser in a vineyard. Hooker v. Miller,
37 Iowa 613 (1873). To that extent, then, this is a case of first impression, and in any opinion we should
make the law in this jurisdiction crystal clear. Although the legislature could pronounce this policy, as it has
in some states, since we have entered this area of the law by the Hooker decision, I believe it proper for us to
declare the applicable law in cases such as this for the guidance of the bench and bar hereafter. The majority
opinion utterly fails in this regard. It fails to recognize the problem where such a device is installed in a
building housing valuable property to ward off criminal intruders, and to clearly place the burden necessary to
establish liability....
My second reason for this dissent is the allowance of an award of punitive damages herein. Plaintiff
claimed a remedy which our law does not allow, and the trial court should not have submitted that issue to
the jury. Like the law establishing liability for installing a spring gun or other similar device, the law
recognizing and allowing punitive or exemplary damages is court made law, not statutory law. As to the
property owner's liability for exemplary damages where one is engaged in a serious criminal offense at the
time of his injury, we also have a case of first impression. We have never extended this right to such a
claimant, and I would not do so now. Unless we do, or there is a compelling reason or authority for such a
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right, which I fail to find, the trial court erred in submitting that issue to the jury. Like the case where a
judgment is entered without jurisdiction of the subject matter, I would hold the award of $10,000 to plaintiff
is void. ...
In the case at bar the plaintiff was guilty of serious criminal conduct, which efent gver rise to his claim
against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the
law is concerned redresses him and places him in the position he was prior to sustaining the injury. The
windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because
it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or
any measurement of his worthiness for the award.
When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the
result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal
would be permitted by operation of law to profit from his crime. ...
NOTES AND QUESTIONS
1. This case received national media attention, and caused considerable outrage nationwide. After the
judgment was announced, the Brineys received cash and checks in an amount more than $10,000 from
around the nation, including from prison inmates. Neighbors also rallied to help the Brineys. When Katko
sought to have the Briney land auctioned so as to collect his award, a "Briney Defense Committee"
purchased the land and leased it back to the Brineys for a rent that just covered interest and taxes. The land
appreciated in value, however, and the "Defense Committee" forced the Brineys off the land, and sold it to a
member of the committee. Briney and Katko ended up filing a joint suit against members of the Committee.
(Katko's interest lay in the fact that the price paid by the Committee did not suffice to enable recovery of his
full claim.) A lesson here, maybe, about the power of economic interest. The Committee was charitable so
long as the cost of being charitable wasn't too high; and Katko and Briney presumably hated each other, until
a common economic interest took them to hire a lawyer in pursuit of that interest. The case aftermath is
discussed in the Chicago Tribune, April 25, 1975, p. 1.
2. An old English case, Bird v. Holbrook, discussed in the class notes, sets a sensible rule for the use of
spring guns: warning of their use must be prominently posted. Had the court been more economically
sophisticated, it might also have stipulated that the economic value of the property so protected should be
significant. Explain why that is true.
3. An economic note: as the cost of storing chattels, particularly valuables (in safe deposit boxes or rental
lockers), diminishes relative to the costs of the valuables, the desirability of self-designed protection
mechanisms diminishes. Explain why that is true.
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