I. WHAT IS PROPERTY?
TRESPASS
JACQUES V. STEENBERG HOMES case says.. (p.1)
- Intentional Trespass—D sold a mobile home to P’s neighbor, D asked permission of P to move it
across P’s land several times and he always said no. D did it anyway. P sued for trespass. Jury gave
Nominal Damages $1, Punitive Damages $100K. The ct set aside the punitive damages on the grounds
that state law didn’t allow punitive damages unless the jury also awarded compensatory damages (i.e.
actual harm). P appealed and won, so the punitive damages were confirmed.
- The actual harm is not damage done to the land, but in the loss of the individual’s right to exclude
others from his property. A landowner has the right to exclude others.
- Right to exclude is the most important property right. Very robust view of exclusion. In every trespass,
there’s the presumption of actual harm, because there’s an interference with the right to exclude.
- Violation of the law needs to be recognized, even if there is no tangible harm. The court needs to
punish those who intentionally violate the law, in the interest of peaceable possession. The law will have
no practical meaning if the state doesn’t enforce it.
- The court’s underlying motive might’ve been the need to maximize autonomy.
QUALIFIED TRESPASS
HINMAN V. PACIFIC AIR TRANSPORT case says.. (p.9)
- Ds fly planes repeatedly over P’s land at extremely low altitudes (-100ft), despite Ps requests not to. P
didn’t specify harm/damages done to his land, but sued for intentional trespass and injunction/damages.
- P lost, no trespass despite bringing up Ad Coelum: an owner has rights to the sky above and the depths
below his property. The court says it’s a legal fiction, and in this case it doesn’t apply anyway because
he doesn’t use the space, so he can’t control it. Possession of property is limited to what people have
dominion over, and you can’t have dominion over what you don’t use. Use of the airspace only
constitutes trespass if it interferes with possession or full enjoyment of the property. He needs to show
actual harm for there to be trespass.
- Factually, the court still adopted a right to exclude conception, but it moved away from an absolute
right to exclude, towards a more qualified conception where you can only exclude from what you
actually possess and use, or have dominion over.
- P’s request for injunction played a big role in the court’s conception. A party’s request for relief affects
how the court chooses to look at the case. The remedies sought influences the substantive element and
substantive decision of the actual claim.
- POLICY: The idea of property here required a balancing of multiple interests, not just of the P or D,
but the public at large. They’re motivated by how the airline industry would be affected, would create
very high transaction costs and flight restrictions. Efficiency/cost-benefit analysis—the opposite ruling
would put the airline industry at the mercy of landowners.
NUISANCE
HENDRICKS V. STALNAKER case says.. (p. 23)
- Nuisance—P wanted to put in septic tank, but when D found out, he beat them to it with a water well,
since the land was situated so there couldn’t be both. P sued for nuisance and lost, no nuisance.
- Hendricks balancing test: Private nuisance is “a substantial and unreasonable interference with the
private use and enjoyment of another's land that’s 1) intentional and unreasonable, or 2) negligent or
reckless, or that 3) results in abnormally dangerous conditions or activities in an inappropriate place.
- Def. not 2 or 3, so left with figuring out if it’s substantial and 1) intentional and 2) unreasonable. It was
substantial and intentional. There was no malice/bad faith just because he benefited from having well.
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- As for reasonableness: must weigh the gravity of the harm and the social value of the interference.
Shouldn’t look only at the harm, but the nature of the interference. The social value of the septic tank
and water well is relatively equal, if not leaning towards the well b/c of the septic potential for leakage.
So, it’s reasonable. COST/BENEFIT ANALYSIS! The gravity of the harm may be measured by the
extent of the harm, character of the harm, social value of the use/enjoyment violated, suitability of the
locality to the use and enjoyment invaded, and burden on the person of avoiding the harm (R2d Torts
827). The social value/utility of the action producing the interference may be measured by the social
value to the primary purpose of the conduct, suitability of the locality to the conduct, and
impracticability of preventing or avoiding the invasion. (R2d Torts 828).
REPEATED TRESPASS / equitable relief
BAKER V. HOWARD COUNTY HUNT case says.. (p. 42)
- Ps had farmland with rabbits and chickens. D, hunt club, used dogs that frequently ran across their
property. Dogs disturbed the Bakers’ animals and once bit Mrs. Baker. D apologized but made no real
effort to keep dogs off the land, so it happened again and P shot one of Ds dogs. Ps sued for an
injunction to keep the dogs off their property.
- P won, equitable remedy was appropriate because there was no adequate remedy at law.
- Injunctive relief is an equitable remedy, so many consequences flow from it. P had to show there was
no adequate remedy at law. Here, damages were intangible, not easily calculable/measured (fright to
Mrs. Baker, interference w/ experiments, quiet enjoyment) so monetary damages aren’t appropriate.
- Repeated trespass: stop those future cases through injunction. You can avoid multiple actions/series of
suits. It’s more practical and efficient in establishing justice than monetary.
- D kept trespassing, an injunction was the only way to stop them. D argued P didn’t have “clean hands”
because he shot the dog. Ct said P had “clean hands” since he was protecting his property.
- 4-factor/2-maxim test for when specific performance OK: 1) monetary damages inadequate to
compensate for injury, 2) irreparable injury, 3) balance of hardships b/w parties, 4) public interest not
harmed. And 1) He has to have ‘clean hands’ (good faith), and 2) the remedy at law must be inadequate.
- Equity/injunctive relief furthers peaceable possession, person’s ability to use the property without
harming anyone else.
BUILDING ENCROACHMENTS / absolute right to exclude as equitable relief
PILE V. PEDRICK case says.. (p. 50)
- D got bad measurements from surveyor, built their building and later turned out foundation of D’s
building underground was almost 2 inches over on Ps property. D offered to make the wall a ‘party wall’
(both sides have ownership of wall) or to compensate them for the amount they were over, but P only
wanted injunctive relief--wanted the wall taken down.
- P won, injunction was correct. The ct is adopting the absolute right to exclude conception of property.
Injunctive relief here represents owner autonomy, furthering the ideal of property owners. D, no matter
what, has no right to have his building on Ps land.
- However, the ct, in valuing autonomy, knows they’re putting extreme hardship on the D. They still
don’t let this influence their conception of property though, as the right to exclude. They recognize the
Ps right to force D to tear down the wall, but they also express their disapproval and sympathy for D by
dividing the costs of the equitable remedy of removing the wall.
- Equity has discretion built into it for the courts to determine how equitable relief is given.
BUILDING ENCROACHMENTS / shift to balancing test for equitable relief
GOLDEN PRESS V. RYLANDS case says.. (p.51)
- Similar to Pile v. Pedrick, accidental encroachment underground of few inches. P asked for injunction.
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- This time, P lost, injunction denied. For a good faith, unintentional encroachment, the ct should weigh
the circumstances (balance of convenience, consider the hardship to D).
- Shift from right-to-exclude approach of Pile to bundle of rights conception. The ct is recognizing that
property isn’t just about autonomy, but social calculus. Injunctive relief is conditional on weight of
circumstances. In basing decisions on the totality of circumstances, equity gives courts discretion.
- Here, the encroachment is unintentional and slight, Ps use isn’t affected, and damage is minimal, while
cost of removal would be substantial. If the encroachment had been intentional, the ct should order
injunction regardless of costs, but when unintentional, the ct should consider the hardship.
- P has bad faith against them—knew about encroachment before D was done but did nothing. Doctrine
of latches says a party shouldn’t sleep on their rights. If they do, it’ll be waived against their interest.
- Ct is valuing efficiency (waste) and morality (good/bad faith), in addition to autonomy, and saying
equitable relief requires balancing test case-by-case.
BUILDING ENCROACHMENTS / restitution relief
PRODUCERS LUMBER & SUPPLY CO. V. OLNEY BUILDING CO. case says.. (p. 68)
- D, in good-faith, built house on a land he forgot he sold to P. P and D couldn’t negotiate price for the
house, so D came in and destroyed building without Ps permission. Ps sued for damages for loss of
accidental improvement, and damage to land.
- P got the damages. D constructed in good faith, but his destruction was malicious and in bad faith, so
by resorting to self-help, he can’t come into court of equity with clean hands—he has unclean hands.
- Improver is never authorized to go onto the other's land without his consent and demolish; by doing so,
he commits waste, and must pay the landowner for such waste.
- D, as a good-faith accidental improver, had 4 remedies, but he needed to resort to ct system, not selfhelp. He could’ve 1) move the improvement to his land, if possible, and pay for damages that occur
because of removal, 2) be compensated for the improvement, 3) pay the pre-improvement value and buy
the land, 4) ct will auction off the property and divide the money accordingly.
- The ct is moving towards a bundle of rights conception of property, since Ds right to exclude P from
his accidental improvement is conditional. This is where the injection of equity into substances, modifies
our view of property. It’s a conditional entitlement that relates to a thing. The injection of equity doesn’t
just affect the remedy process, but it affects the entire process of deciding what property is.
II. ORIGINAL ACQUISITION-- determine who actually owned something for the very first time.
FIRST POSSESSION / introduction to notice
PIERSON V. POST case says.. (p. 81)
- This case is all about notice, more than possession. P was in active pursuit of a fox on un-owned land.
Before he could injure it or take possession, D (Pierson) intervened, killing the fox and taking it. P
brought suit, saying he acquired title to the fox when he began hunting it. D said P didn’t have control
over the fox and therefore had not acquired any property interest in it. P won, so D appeals.
- D wins. Method of acquiring a right in a wild animal is constructive possession: have to mortally
wound it, and be within reach. Req of constructive notice is met through constructive possession.
- In order to obtain title to a ferae naturae (wild animal), a person must acquire occupancy.. The “first to
kill and capture” is the superior rule of law. By merely pursuing fox, claim/possession isn’t established.
- Historical Conceptions of Occupancy: 1) Justinian's Institutes – must actually take the animal, even
wounding is not enough, 2) Puffendorf – actual corporal possession (traditional reading of Puffendorf),
or mortally wounded/greatly maimed while the inflicter continues to pursue (more relaxed reading), 3)
Bynkershoek – same as Puffendorf, 4) Barbeyrac – unclear, but not mere pursuit. Depriving him of his
natural liberty and brought within pursuer's certain control (mortal wounding, trapped in net).
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- Constructive possession: need not be actual/physical; but you need to mortally wound it and be in
unequivocal pursuit. You must have possession to use, and use is the basis for the right to exclude, so
you must have possession in order to have use, in order to have the right to exclude. Gives notice.
- Policy: If you could claim something yours just by pursuing it, there would be endless litigation and
ownership uncertainty. Also about NOTICE: having possession lets the rest of the world know that it’s
yours. Lockean interpretation: yes, pursuing the fox is labor, but until you capture the fox there has not
been a sufficient mixing of your labor with the ‘property’ to make it yours.
Livingston’s DISSENT says...
- In the name of public policy, Post (P) had a property right in the fox by beginning to hunt it. Foxes are
a plague on farmers/barnyards, so we should encourage their hunting/killing. Now, people won’t hunt
them if a lucky intervening party can just steal them from them last minute.
- Advocates Barbeyrac’s POV--no need for physical capture, should go to the hunter as long as he had a
reasonable prospect of taking it. He inevitably would’ve possessed it, so he has a right in it.
- The main diff. b/w majority and dissent is the establishment of notice. The absence of notice is the
absence of an ownership interest. There has to be some manifestation, notice to the rest of the world.
- POLICY: NOTICE was established and that’s important—lowers transaction costs by signaling to the
world that a person owns something. Notice also promotes law and order--a certain rule of property
needs to be adopted, or unnecessary violence/disputes will result. Gives people certainty over their
possessions. Ps right to the fox was good against the world at large, an in rem right. Notice places an
affirmative bind on the world. That’s the very nature of property rights; their ability to bind third parties
with whom we have no specific arrangement. Notice amounts to possession.
- Locke: Labor theory of property. If you mix your labor into something unclaimed—it’s yours. It’s not
yours if you mixed your labor with something that already belonged to someone else.
FIRST POSSESSION / notice via custom
GHEN V. RICH case says.. (p. 88)
- P killed whale with bomb lance that had identifying marker (constructive notice). It floated into
another town and was found by Ellis (3rd party). He didn’t follow the custom of putting info out so the
owner could claim it, but instead sold it to D. P sues D for whale.
- P wins, did establish property right. According to custom, P was the first taker—he did the only act of
appropriation that was possible in this case and this was the common custom of acquiring ownership.
- Custom is recognized to be binding under law when it satisfies immemorial antiquity. Literally, no one
should remember when it originated. If you can’t trace the point when it originated, then it’s binding.
This custom has served the industry very well so far, so it should be respected--utilitarian analysis.
- If this custom isn’t respected as law, the industry will die because no one will invest the time to kill
whales anyone else can claim. Similar to Jacques v. Steenberg, argument is that this rule is necessary
because it will establish law and order. It’ll bring “reasonableness” and “efficiency”.
- Concern over in rem rights created by custom, as applied to those who may not know the custom.
FIRST POSSESSION / notice
KEEBLE V. HICKERINGILL case says.. (p. 92)
- P made living by decoy duck pond to which fowl would come, and he would capture them w/ nets. Out
of malice, D continuously shot gun in vicinity to scare them away. P sued for trespass on the case.
- P collects more for nuisance than trespass, since D interfered with Ps ‘use and enjoyment’ of the land.
This is more about the hindrance of the P, rather than actual property interference. Since trespass
protects right to exclude, and nuisance protects the exclusive possession of use and enjoyment.
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- Considered “trespass on the case” because it was a malicious interference with the use and enjoyment
of property. There was no physical ownership over the ducks—he couldn’t say which ducks were
possessed and which flew away, so this isn’t about possession, but about disturbance. D not responsible
for lost income from lost fowl, since its indeterminate, and he had no ownership over them.
- Is applying ratione sole a notice-optimizing regime? The principle used to be that if there’s a violation
of a legal right, even if there’s no actual harm, the law should vindicate that right. Keeble agrees.
- POLICY: This case isn’t necessarily about property, but we’re protecting the use and enjoyment. The
ct will grant relief to a P that seems connected to property and is even connected to a resource, but the
legal relief for it has no connection to that kind of action. ‘Quasi-property’ case.
DISCOVERY
JOHNSON V. M’INTOSH case says.. (p. 110)
- P had title to land from Pankeshaw Native American tribe. The US later sold that same land to
M’Intosh, D. D wins, Pankeshaw didn’t have a title they could transfer to others, so U.S. govt title wins.
- Pankeshaw merely had a right of occupancy on the land. While England respected the Pankeshaw as
occupants of the land, they asserted ultimate dominion over it (discovery), and so could convey the land
however; this is how the US was established. Through treaties, the US’ title to land was subject only to
Native American right of occupancy, and the exclusive power to extinguish even that right was vested in
the US by title. Thus, any title to Native Americans isn’t transferrable, and is trumped by US title.
- Discovery gives right to take land by purchase or conquest; it gives title, and title gives sovereignty. It
doesn’t get rid of all indigenous rights, but it impairs them. Pankeshaw were impaired in that they could
no longer sell their lands since they didn’t have sovereignty—the land wasn’t theirs to sell.
- Sovereignty is the idea that a nation-state has exclusive jurisdiction and control over a territory
(absence of a higher authority), gives the exclusive right to extinguish the title of the occupants.
- Discovery gives entitlement. C.J. Marshall blends discovery as a principle of sovereignty and a
principle of property. Sovereignty: discovery gives exclusive title to the discoverer, and they have right
to do whatever w/ the land—the occupants therefore, are necessarily impaired. Property: In being
impaired as a result, the occupants no longer have the right to dispose of the property as they will.
Property and sovereignty are both elements of control, but diff.
- Might is right—the land was taken by conquest, which discovery allows. Sovereignty of England took
away Pankeshaw’s title. Interpreted any other way, it would unsettle a lot of the grounds on which the
property system was in place, and working. There’s nothing internal in the opinion that says the
sovereign is at liberty to say that their might is right, but just given that definition.
- It’s dubious whether discovery in and of itself gives right to a property right, but discovery gives rise to
whatever you think is right—and that includes might. Discovery is a principle of sovereignty, and the
discoverer, is not under the normative restrictions of anyone else, and so has entitlement to extinguish
any pre-existing normative framework, but that framework is immaterial and established by them.
CREATION / property rules as applied to intangibles
INTERNATIONAL NEWS V. ASSOCIATED PRESS case says.. (p. 135)
- INS, D, bribed APs members to release AP news to them before publication, and copied news from
their earlier East Coast publications and reprinted it in their own publications, selling it to subscribers.
- D loses. While news itself can’t have property rights because it’s inherently public, a ‘quasi-property’
right can be imposed between AP against INS only, and only for few hours to stop unfair competition.
- ‘Quasi-property’: not in rem, scope is limited to parties in direct competition, and is time-sensitive.
- The ct was very cautious about recognizing property in the news—instead, they based the opinion on
unfair competition because a full-blown in rem property right, would let news gathererer exclude public.
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- News itself can’t be copyrighted since facts are nobody’s property. INS didn’t copy expressions, but
facts. But, as competitors, each party must conduct his business so as not to injure the other unfairly.
Even though neither can have property rights over news against the public, they can against each other,
so news becomes quasi-property between them, property right in personam.
- POLICY: Because of the time and energy AP invested, unfair to let INS sow without reaping.
Somewhat Lockean justification, (ownership rights arise out of labor-mixing), but Locke didn’t care
about value. Here, the value of the news makes it relevant as property, otherwise it wouldn’t matter.
Holmes’ DISSENT says..
- There’s only property (copyright) in expression, not the underlying ideas of news. Property is a
creation of the law and it operates as an exclusionary framework—mere value doesn’t create property.
- Mixing labor that results in a valuable good (news articles) isn’t enough to create a property right.
- Locke’s “enough and as good” exception—what’s left in the common has to be ‘enough and as good’
for others to use.. in this case, they can’t use it at all.
- Unfairness would exist only if INS didn’t acknowledge AP as a source, and even then only for few
hours. So, force them to indicate where they got the news from.
Brandeis’ DISSENT says..
- Reaping without sowing isn’t so bad, it’s how innovation happens-we build on each other’s work.
- Worried that creating a property right here would have genuine free speech, 1st amendment restrictions,
and have a negative impact on the general public at large by restricting dissemination of news.
- INS’ acts might be improper, but not illegal. Mere labor doesn’t create a property right.
- Viewed property functionally in terms of exclusion, and said there’s no such thing as quasi-property.
- Against judicial lawmaking. Rule-making is for the legislature, since they can consider multiple issues
and perspectives outside of the parties alone to have more balance in creating property rights.
CREATION / right to publicity and appropriation of identity
MIDLER V. FORD MOTOR case says.. (p. 147)
- D wanted P to sing her song, which they had rights for, in their commercial. P refused, so D hired
someone to imitate P. Many told P they thought the imitation was really her, so she sued for publicity.
- P won, her voice is a protectable property right since it’s a unique trademark and expression of her
personality. Her voice is closely linked with her identity, and the Ds used that against her consent.
- Hegelian theory: personality theory of property—people inject their internal wills or personalities into
extrinsic things and the material world, thus creating property rights which can be transferrable outside
of context. It puts property in identity. In the context itself, there’s no property right—it’s not her actual
voice but utilitarian purpose of protecting her identity.
- Lockean theory: Ds using her “labor”. In this case, there is a commercial value in her fame.
- The ct uses Motschenbacher case to support them. Similar, but big diff is that he made part of his
living out of commercial endorsements, and his car/identity was physically used. Still, ct said the fact
that it was an appropriation of identity, there was harm. Publicity rights are important because they
reflect that IP law need not be motivated entirely/exclusively by market concerns/unfair competition, but
regular property normative values of autonomy, dignitary interest, efficiency, and certainty.
PRINCIPLE OF ACCESSION / through Doctrine of Accession and Increase
WETHERBEE V. GREEN case says.. (p. 166)
- D, Wetherbee, cut timber from P’s land in good faith, w/ permission from ppl he thought were right.
He turned the $25 wood into barrel-rings worth $800. P filed replevin (action to recover not just the
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value of the resource, but the resource itself if it can be tracked. You’re seeking to recover the actual
good, or at least its value) for the barrel-rings or their value.
- D wins, this is the doctrine of accession, which applies when there’s been conversion/transformation. It
applies when someone mistakenly (in good faith) takes a physical object that belongs to someone else
and transforms it through their labor into a fundamentally different object. The property that’s been
transformed in good faith belongs to the transformer if he’s significantly altered it into a fundamentally
different object with significantly greater value. When the right to the improved article is the issue at
hand, the question of how much the property or labor has contributed to make it what it is, must always
be the predominant factor. P can only get the value of the wood D used. Property owner whose property
has been taken has a right get it back, but when it’s been substantially altered/improved, they can only
collect the value for the property actually lost. If the improver took it intentionally, forfeiture applies-automatically loses it to the original owner.
- If it was in good faith/accident, they apply a test to see who gets it. Old test: Rule of Identifiability, can
you see the original resource in the new object, was arbitrary. New test takes 3 considerations: 1)
traceability, 2) relative value of the original v. transformed resource (might include dignitary interest of
owner, and 3) good/bad faith. So if the improvement in value of the transformed item is significantly
more than the value of the original resource, the transformer gets ownership, but they must compensate
the original owner for the property actually used. Comes down to two things—motive (in good or bad
faith) and value (in changing the identity).
- Lockean theory: the labor mixed has increased the value, and thus transferred ownership. However,
Locke was worried about the stability of ownership, and was talking about claiming unowned land.
- Concerns: how much value is enough to constitute transferred ownership? Also, might incentivize
‘improving’ something to gain ownership over it.
PRINCIPLE OF ACCESSION / through Ad Coelum
EDWARDS V. SIMS case says.. (p. 175)
- D, Edwards, discovered cave entrance on his property and turned it into a profitable tourist attraction.
P, adjoining landowner, claims parts of cave are under his land and asks ct to order a survey of the land.
- P wins, survey granted. Ad Coelum applies, P owns the land below his property and has right to be
protected against potential trespass, and survey would easily solve this issue of whether he is or not.
Logan’s DISSENT says..
- Utility should be the motivating factor here—ad coelum is useless because P has no way to use the
cave since the entrance is on Ds land. P only owns that which he can use (Hinman v. Pacific Air).
- Lockean theory: D put all the work into developing the cave, so it’s his.
DOCTRINE OF ACCESSION / through fixtures
STRAIN V. GREEN case says.. (p. 188)
- D, Green, sold P his house, but when P moved in, he realized D replaced water heater w/ crappier one,
took chandelier and 3 mirrors (2 were firmly attached to walls). P sued for money or return of property.
- Ct said the chandelier/2 wall mirrors were fixtures, so P won. Fixtures are chattel which, although
originally movable chattel, are by reason of their annexation to, or association in use w/ land, regarded
as part of the land. They’re part of the property, and if seller doesn’t intend to sell those as well, they
must make that expressed/generally known.
- Intent is important and has to be objective, unless the subjective intent is evidenced in facts/to the
party. You base intent on party’s actions, not their secret intent. This is a semi-contractual transfer, so
unless there’s a contractual modification that states your true intent, it’s presumed from your actions.
- 3-FACTOR FIXTURE test: 1) actual fixation of the chattel to the property (just cuz something can be
removed doesn’t mean it’s not ‘fixed’, its original physical attachment is still a factor), 2) evidence it
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was intended to be used in relation to the property (not just being stored), 3) party’s intention- objective
intent (def makes it a fixture) or subjective intent (must be documented). Intent = NOTICE.
- Opposite Legal Presumptions: 1) If owner introduces a fixture, we presume he intended to improve the
property—it becomes a fixture, enriching the ownership interest. 2) If tenant introduces fixture, the
presumption is the other way—didn’t intend to improve the property, so they reserve the right to chattel.
These are refutable if there’s sufficient evidence proving them invalid.
ADVERSE POSSESSION / possessory intent (make sure combine with Chaplin v. Sanders)
LESSEE OF EWING V. BURNET case says... (IMPORTANT CASE!!) (p. 194)
- Deed to same parcel of land was given to P in 1798, and then to D in 1803. P sued for ejectment
against D in 1834; D claimed AP for over 21 years, and won. Acts of visible and notorious ownership
under color of title for 21 years are sufficient to demonstrate adverse possession, 5-Factor test. (state)
- 5-Factor test: 1) Actual: Possession is actually using the land, and in this case it was useful only for its
sand/gravel, which is what D used. 2) Continuous: Paid taxes on it for all years, and all 5 factors were
consistent. 3) Exclusive: D claimed exclusive right to the sand/gravel and gave permission to others to
remove it; brought trespass against those who did w/out permission. 4) Open and Notorious: all
neighbors believed D was owner. 5) Adverse Under Claim/Color of Title/Right: AP-er must intend to
dispossess at time of entry, and to own exclusively, and doesn’t have to be directed at anyone.
- IMPT: #5, Intent is established objectively, looking at time and context of entry onto the land. Needs to
be ouster, not just trespasser. Ouster has 1) possessory intent, which is based at time of entry in coming
to occupy a certain piece of property, and discerned from objective context and circumstances or, they
have 2) subjective belief, which is the Q of what this person knew/should’ve known when forming his
beliefs before possession, like good/bad faith. The ct focuses on the 1st.
- Possessory intent is important, the intent behind entry fixes the character of the intent, and that
determines whether there’s an ouster. Subjective belief is irrelevant. However, finding distinction
between possessor and trespasser, reintroduces the idea of a state of mind indirectly.
- The Q of good/bad faith is whether D, knew or should’ve known of Ps title (subjective belief). The ct
avoids addressing Q of Ds bad faith, and they use the ouster concept, so they look at objective intent,
since the possession just needs to be actual, rather than adverse, since the type of use matters more than
the “belief” behind it. The ct eliminates treating adverse as an independent element, clubs it with actual,
and makes a new element of actual possession of, as part of the analysis. In so doing, it reintroduces the
question of state of mind, or the person’s objective intent, under the idea of the ouster.
- The ct said bad faith was irrelevant by looking at the factual, procedural record, and because there was
a SOL rule which would give the AP-er a complete bar independent of bad faith.
- POLICY: Evidence that P knew of Ds activity, but never opposed his entry, demanded possession, or
exercised ownership over the land. Doctrine of Laches—don’t sit on your rights, or they’ll be waived
against you. Good/bad faith of AP-er doesn’t matter, ct wants the most efficient use of land.
ADVERSE POSSESSION / considering character of use to determine intent
CHAPLIN V. SANDERS case says.. (online doc)
- Ds predecessors set up trailer park on their land and accidentally on a strip of land of the neighbors. D
bought the land with vague knowledge of this issue, and agreed not to claim that strip—but thought it
referred to a diff. piece of land. D kept up the land at issue, so P (who bought the land from those
neighbors) sued for encroachment, wanting to build on that strip. D won, had adverse possession.
- It doesn’t matter whether the APer intended to dispossess, as long as had intent to exclusively own.
Subjective belief (good/bad faith) is no longer relevant to the question of adverse—to determine whether
something is adverse, they consider the nature/character of the AP-ers use of the land.
- Subjective intent is thrown out. Courts should look at how the AP-er actually used the property, and if
it was as an owner. These externalities impute objective, possessory intent, though they don’t call it that.
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- Claim of right element requires only that the AP-er treat the land as his own against the world. True
owner’s permission will still negate the hostility element.
- Use here was open, notorious, and the true owner had actual notice. This case is about notice, as AP is
all about notice. Here, notice is from the AP-er to the true owner, and this falls under the element of #3
‘open and notorious’ and establishes ownership interest. This req is primarily for benefit of 3rd parties,
or the in rem nature of property demanding that anybody’s normative position who’s been altered should
have notice. Actual notice can override constructive notice, but it’s not sufficient that only the true
owner has notice, constructive notice is needed for all.
- Court said possession was hostile for 10 years. They used the evidence of the way Ds had actually
used, possessed, and managed the land, to conclude that it was sufficiently adverse based on this
extrinsic evidence. It disregards subjective belief, and instead, they use the nature and use of something
as the primary factor to conclude that the adverse element had been satisfied.
ADVERSE POSSESSION / tacking
HOWARD V. KUNTO case says.. (p. 208) (ON EXAM)
- Everyone had wrong deed. Ps traded w/ Moyers to get deed to Ds land, which Moyers actually owned.
It was used for summer occupancy—D only occupied for one year so far, but claimed AP against P.
- D proved AP. 1) The “continuous” element for AP is determined by how the land is generally used
(summer house). 2) Also, if there’s privity (reasonable connection) b/w AP-ers, the time of possession
can be tacked to satisfy statutory requirements.
- Privity in its traditional form: parties claim, through claim/color of title, a connection between the
parties by some common property, or privity of estate. Now, it’s all about privity as reasonable
connection. Ds are dealing with possessory interest in property they believed they came through
claim/color of title (deed). That’s reasonable enough to establish a connection, so tacking is allowed.
- When one party claims under title, and the two parties are linked by the same deed, it can be tacked.
- Also, Ds were acting in good faith.. overruled by Chaplin v. Sanders as irrelevant.
ADVERSE POSSESSION / for **chattels** and procedurally through SOL
SONGBYRD V. ESTATE OF GROSSMAN case says.. (p. 214)
- Byrd’s master recordings were done and left in a studio purchased by D. P, Byrd’s successor, requested
them back several times and never got responses. D eventually licensed certain recordings to a 3rd party,
P sued for rights in the tracks, D moved for SJ saying SOL had run out. SJ granted.
- SOL begins running at the time conversion takes place. AP has both procedural/substantive aspects.
- 2 tests to determine when SOL for AP starts. Sporn: starts at time of conversion, Guggenheim: starts
when true owner demands return of chattel and is refused. It applies only to GFPV of goods, so it
doesn’t apply here. Ct goes w/ Sporn and says SOL started when D first asserted dominion over Ps
property (notice to P that D asserted dominion is irrelevant). Possessory intent still relevant.
- Conversion is wrongful possession of chattel that denies the dominion of the original owner.
Good/bad faith is irrelevant for chattel, volition is all that’s necessary.
- Concerns: For chattel, apparently we don’t care about 5-factor test or notice. SOL should run when the
true owner, through exercise of reasonable diligence, could’ve discovered that conversion’s taken place.
This excludes the possibility of a secret beginning for the SOL, and gives constructive notice.
SEQUENTIAL POSSESSION / first finders
ARMORY V. DELAMIRIE case says.. (p. 220)
- P finds jewel, took it to be appraised, the apprentice gave him a price but P just wanted the jewel
back—D gave back the sack without jewel, P sues for it, and wins. P found it first, so he gets it.
- First finders have a right in rem except for against the true owner, so it’s a qualified property right.
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- 2 potential motivating factors: 1) balance of equities: Ps a finder and was in good faith, while Ds a
convertor in bad faith, so Ps preferred based on unclean hands or balancing of the equities. 2) Temporal
priority as operational principle. Finder is the first possessor, has nothing to do with good/bad faith.
- Hierarchy of principle of rights is set up: true owner, finder, then everyone else.
SEQUENTIAL POSSESSION / first and second finders, continuing hierarchy
CLARK V. MALONEY case says.. (p. 222)
- P found logs floating in river and secured them, they got loose and D found them. P wins.
- First finder has a property interest over a second finder; temporal priority matters.
- This rule promotes expectation interest—first finder gets security of knowing the property is theirs
against subsequent finders; allows them to rely on ownership to make efficient use of the resource.
- Modifies Armory v. Delamirie by adding to hierarchy: true owner, finder #1, finder #2, etc.. everyone.
SEQUENTIAL POSSESSION / first and second convertors
ANDERSON V. GOULDBERG case says.. (p. 224)
- P cut logs from 3rd party’s land (X) w/our permission. D thought the logs were from his land, so he
stole them from P. D found out the logs were from X’s land. P sued to get them back, and he won, even
though D said the logs were obtained illegally in the first place, so he shouldn’t have to give them back.
- Possession of property, though wrongfully obtained, is lawful against another bad faith converter.
- D can’t make jus tertii (“3rd party rights”, argument made which attempts to justify entitlement to
property based on the showing of legal title in another preson. By showing legitimate title in another
preson, jus tertii argues that the present possessor’s interest is illegitimate) claim that X has superior
claim than P, since that doesn’t mean P doesn’t have superior claim to D. Once obtained, the possessor
of property has legal title against all but real owner.
- “Lawfulness” and “title” become relative—lawfulness of the possession is only in relation to the two
parties at suit. Both bad faith, but the first converter’s possession merely has to be lawful against the
second converter’s appropriation of the property. Otherwise, continuous theft would be encouraged.
COMPETING ORIGINAL ACQUISITION PRINCIPLES
GODDARD V. WINCHELL case says.. (p. 229)
- P leased pasture upon which meteorite fell, burying 3 ft into the soil. A neighbor found and dug up the
meteorite w/ the pasture’s lessee’s permission, and sold to D. P claims ownership and gets it.
- P, as landowner, has the rights. Reasoning based on windfall—however your property is enhanced or
degraded randomly, it’s yours. Touches on ad coelum, you own your land from earth to sky that you
use/exercise dominion over. Also touches on rationae soli, by attachment to your soil, it’s yours.
- The competing acquisition principles at play are ratione soli (p.5 CL)/fixtures/accretion (p.2 CL) (P) v.
occupancy (D).
- Fixtures convert movable property into immovable property, and this connects directly to occupancy,
which usually gives rise to ownership. Occupancy says that movable property found
abandoned/unclaimed on that land, is subject to ownership via first possession. Court rejects and says
meteorite wasn’t movable property (effort to move it), nor was it abandoned/lost, so occupant doesn’t
get that first possession title.
- Utilitarian argument—they care about the ownership and exclusionary interests of the actual
landowner. Court is adopting autonomy-based, right to exclude conception of property.
- Competing acquisition principle cases are extremely context-specific and depend on the nature of the
resource in question. Normative values determine choice of competing acquisition principle.
III. VALUES SUBJECT TO OWNERSHIP
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These cases derive from the idea that property is more than just economic efficiency, or a utilitarian
encouragement for use of property—there are intangible variables and values at stake in the way in
which ownership is constructed, or the way it sets limitations on ownership.
ARTISTS’ MORAL RIGHTS
MOAKLEY V. EASTWICK case says.. (p. 277)
- P commissioned to create tile wall art portraying history of city for UU church. D, Baptist church
bought land later and tore some down and wanted to remove more, said objectional to their beliefs. P
sued to enjoin against further defacement under recent MT Art Preservation Act (protects droit moral).
- P lost, Act doesn’t apply, not intended to apply retroactively to works created before enactment.
- Ct avoided issue of religion v. droit moral by resorting to Act’s non-retrospectivity.
- Art doesn’t have a true property right (bundle of rights conception of property)—it’s inalienable and
non-transferrable, merely waivable through contract (won’t exercise your rights of integrity/paternity,
but you still have them). However, it is an expression of the artist’s personality, so it requires some
protection. The Act cares about the artist, so inalienability protects their individual right of protection.
- Act doesn’t apply to all art—depends on its subjective value, its quality measures the amount of
personality invested into it. Not specified how its measured.
- Droit moral is waivable in the sense where the creator of the art can waive the entitlement to sue the
person to whom they sell the work out to, but that doesn’t mean that in relation to the person who has
waived, that they can’t sell it to a third party. Inalienability and alienability is really about the creation of
an independent market, waivability is about the bilateral setting. (p. 5 CL FIRST!!!!!)
- Hegelian and Lockean theories of property both apply here in some way.
CULTURAL PATRIMONY
UNITED STATES V. CORROW case says.. (p. 284)
- D was scholar familiar w/ Navajo culture. Yei B’Chei were ‘inalienable’ Navajo spiritual masks said to
embody gods. D deceived widow and said he would give her Yei B’Chei to another Navajo, but instead
sold them to an undercover agent. D was charged under NAGPRA for trafficking ‘cultural patrimony’.
- ‘Cultural Patrimony’ items must: 1) have ongoing historical/cultural/traditional importance, and 2) be
considered inalienable by the tribe by virtue of the object’s centrality in tribal culture, aka its cultural
function precludes it from being any individual tribal member’s personal property.
- Ds defense—2nd point is unconstitutionally vague under due process clause. D lost since he knew
Navajo cultural, and deceived widow. NAGPRA deemed not unconstitutionally vague here.
- NAGPRA’s objectives: 1) protect Native American objects of cultural patrimony, 2) repatriate said
items from Federal agencies, museums, or wrongful holders.
- Congress’ version of inalienability is market inalienability—by making said items illegal, demand’s
reduced, and items protected. Con: just sends market underground and promotes illegal trade.
- Navajo’s version of inalienability is diff—cultural inalienability. Widows are allowed to sell Yei
B’Chei, so actually, we’re imposing our legal terminology of inalienability on them + D.
- Despite that, the ct is focused on the instrumental purpose of inalienability, which is to protect NA’s.
Inalienability also has intrinsic/extrinsic dimension: protects intrinsic personality interest of NA’s, and
has consequential, extrinsic results of limiting supply and demand.
PUBLIC TRUST DOCTRINE / establishing through public interest
ILLINOIS CENTRAL RAILROAD CO. V. ILLINOIS case says.. (p. 314)
- RR (D) had land on Chicago lakefront with stations, tracks, piers, and part of Lake Michigan. 1869 Act
of legislature gave to them under condition they couldn’t impair public’s right of navigation, or transfer
title. Act repealed in 1873 but D reclaimed it. IL (P) sues for land and wins.
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- Right to the land is vested in the state because of public trust, the navigable waters of Lake M are
‘inherently public’. Private rights are subordinate to ‘public trust’ rights. State is the trustee and retains
control of the property for the public, beneficiary. (public trust **P. 6 OF CL**
- Legislature wasn’t competent to deprive state of ownership, and consequent control of the waters by
granting them to D. STATE CAN’T ABDICATE ITS CONTROL OVER PUBLIC TRUST except 2
circumstances: 1) In the instance of parcels for the improvement of the navigation and use of the waters,
or 2) When parcels can be disposed of without impairment of the public interest in what remains.
- State can delegate its control to private party/municipality, but that delegation’s always revocable.
- First time public trust doctrine entered common law. No normative value given. Concern: was it a ruse
to get around the takings clause of the 5th amendment, so state wouldn’t have to pay to get land back?
Shiras’ DISSENT says..
- State should wait until there’s actual harm to the public trust and then take the land. Implies ‘wait’.
- State could just take the property and compensate the RR under the takings clause of 5th amendment,
this decision gets around that so IL doesn’t have to pay. Implies ‘cheating’. RR had no NOTICE.
PUBLIC TRUST DOCTRINE / establishing through custom
STATE OF OREGON EX REL. THORNTON V. HAY case says.. (p. 333)
- D, Hays, had beach-front tourist facility. Wanted to put up fence on dry-sand area between high-tide
line and vegetation to create private beach area. P sued to enjoin them from doing so.
- P wins, public trust can be established through custom (p.8 CL) to justify rights in land.
- Key: doesn’t divest people of their land/take title, simply limits their usage and ability to exclude.
- Blackstone’s 7-factor test when custom can create law: right to land must be 1) ancient (go back as far
as any can remember (immemorial antiquity), Cooley says “long and general” usage is sufficient. The
dry-sand area was primarily used by public, dating back to colonial times, for recreation) 2) exercised
w/out interruption, 3) peaceable, free from dispute, 4) reasonable (use is in a manner appropriate to the
land and usage of the community; not specified beyond that), 5) certain (visible boundaries that give
NOTICE), 6) obligatory (everyone recognizes/feels bound by it), 7) can’t be repugnant/inconsistent with
other laws.
- Lower cts said this was an easement appurtenant (p. 15 CL). The public had acquired the dry-sand area
as an easement appurtenant, meaning it was adjacent to public wet sand area, so it conferred its right to
the dry sand area (dominant tract).
- Lower cts also used doctrine of implied dedication, owner had intent to dedicate part of property for
public use, this intent estops them from later interfering w/ public use and prescriptive easements (p.15).
- Superior cts rejected both theories—no discernible intent here, and easements would need to be looked
at case-by-case very specifically, along with SOL, while custom would give a broader application easily
referenced by the region and can be viewed ex-ante.
- This dry-sand area is sui generis (unique)—shore owned by state, dry-sand area is Ds but used for
public recreational purposes, so neither owns full bundle of rights.
- Public trust doctrine, and as established through custom, are both retroactive doctrines, ex-ante.
IV. OWNER SOVEREIGNTY AND ITS LIMITS
We’ve looked at how the law recognizes and protects the rights of owners to exclude others, now let’s
look at exceptions to this right to exclude, which limit and modify owner sovereignty.
CRIMINAL REMEDY PROTECTING PERSONAL PROPERTY
PEOPLE V. OLIVO case says.. (p. 394)
- 3 cases, each where D stole from store, but was caught by P before actually leaving the store w/ item.
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- All guilty of larceny. Exercising rights in the property inconsistent w/ the rights, intentions, and
dominion of the owner amounts to a taking, and combined with specific intent, this is larceny.
- NY larceny history: used to be concerned w/ avoiding breach of peace and maintaining law&order
more than maintaining property, so it focused on actual takings, since that gave greater chance of
violence (self-help). Now, more concerned w/ protecting property, so focus on intent.
- When you exercise rights in the chattel inconsistent w/ rights of the owner, that amounts to a taking. So
physical aspect of taking isn’t important, but the inconsistency between owner’s rights and what’s done
by the person in possession of the chattel is important, and that goes to intent.
- Possessory intent is required. Need objective intent as seen through manifestation/actions, and
subjective intent of bad faith to steal. Ds furtive behavior, hiding goods under clothes, and walking
towards exits showed subjective intent to steal.
CRIMINAL REMEDY PROTECTING REAL PROPERTY
STATE V. SHACK case says.. (p. 401)
- P employed and housed migrant workers on his land. P told D, aid workers, they could only get access
to help the migrant workers if he was present. D refused, so P brought charges for criminal trespass.
- P lost, the aid workers had a right to see the migrant workers in their homes on the property.
- Property rights serve human values and don’t include dominion over the destiny of other people.
Human values trump property rights. Property standards can be maintained through balancing of values.
- P, farmer, had no right to deny migrant workers aid, or any dignitary right custom among citizens.
Implies property rights are highly contextual bundle of rights where cts determine property rights expost by balancing migrant worker’s rights against landowner’s right to exclude. When there’s conflict
between property owner’s right to exclude and human right, the necessity of the human right prevails.
- This case tries to flesh out what property means when there are competing normative values at stake.
- P said that criminal statute against trespass was constitutional. Ct wanted to keep this statute existing to
future situations, so they avoided the constitutional Q, since same decision could be reached independent
of constitutional reasoning. Consitutitonal challenge to a provision has 2 routes: ‘as applied’ or ‘facial’.
- ‘As Applied’: backward looking, the court looks at the constitutionality of the law as applied to the
facts of a case individually. ‘Facial’: An action brought not by reference to an individual case at hand,
but at a broader set of circumstances. P wanted ‘as applied’ challenge, court applied ‘facial’ challenge.
- This case can be used by 2 groups: 1) those who think that property has a bundle of rights containing
norms and obligations of a communitarian nature that connect to distributive justice, fairness,
independent of social welfare maximization, independent of owner autonomy, this case is great. 2) For
those who believe that property is all about autonomy, efficiency, and social welfare maximization, and
that other variables, though important, are external to the institution of property, this case isn’t good.
- This case has become a device as a way by which to construct theories of property depending on what
your priorities, preferences and normative values are for the institution.
CIVIL REMEDY PROTECTING PERSONAL PROPERTY
INTEL CORPORATION V. HAMIDI case says.. (p. 412)
- D, Ps ex-employee, sent anti-Intel emails to Ps employees thru Ps email system. Ppl could opt out of
them by request but P spent time trying to block them, which D got past anyway and continued emails.
- P sued for trespass to chattel, lost. D neither damaged Ps computer system, nor impaired functioning.
- §218 of Restatement (Tort) for trespass to chattel: 1) There must be dispossession, OR 2) actual injury
to the chattel’s physical condition, usability, value, or legal interest.
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- This differs from trespass to land, where actual harm need not be shown for liability. Epstein’s ‘live
and let live’, since chattel is movable, NOTICE shifts. Land has constant notice, so more liability than
chattel trespassers. Also, dignitary interest in land is thought to be greater than in chattel (questionable).
- Ct distinguished spam in Compuserve. Spam actually slowed down comps and caused reputational
harm among customers. P brings theory of ‘impairment by content’, and Epstein’s argument that Ps
intranet/server should be treated as physical, real property, so trespass to land would apply.
- Scholars Lemley and Hunter say it creates wrong social result; if you can sue for trespass on emails w/
unfavorable content, ppl would be afraid to email, creating anticommons (terms&conditions in emails,
free speech impediment, increase transaction costs so ppl will stop using the resource altogether).
- Solution under §218 is self-help. Chattel has movability, so there’s more control, so self-help is OK.
The dignitary interest in the inviolability of chattel is sufficiently protected by privilege of self-help.
Disconnect between self-help in IP v. physical property b/c of threat of physical confrontation.
Brown’s DISSENT says..
- Ds interference has been repetitive and Ps self-help ineffective. Property owners should have the right
to exclude unwanted interferences, so the inviolability of chattel can be preserved, just like land.
- §218 does say that when interference with chattel hasn’t created any damage there’s self-help, but if
that’s an inadequate remedy, injunction should be allowed. A right without a remedy is meaningless.
- Brown focuses on the analytical distinction between nominal damages, and injunctive relief, and says
§218 has to be seen in light of damages, and not injunctive relief.
Mosk’s DISSENT says..
- The ct fails to differentiate between a private server from the overall commons of the Internet.
- Concerned about autonomy arising from inviolability, and policy of certainty in the law.
- Very character as private property is dependent on ability to exclude—an exclusionary interest is made
of ability to exclude, so exclusion should be determined by factual/empirical reality of whether it can be
achieved. The ct’s decision does not let that be achieved.
SELF-HELP IN REAL PROPERTY
BERG V. WILEY case says.. (p. 428)
- D leased to P. P breached lease by making changes to building’s structure and not being clean—was
ordered by health dept. to close and fix issues. Lease allowed D to take building back upon breach. D
went w/ cop when P wasn’t there and changed Ps locks. P sued and won damages.
- Self-help is forbidden in real property because it can incite disruption of the peace. When self-help is
undertaken, the eviction is not lawful.
- D claimed Ps abandonment. Abandonment of lease gives lessor, ability to retake possession in order to
ensure the property is made efficient use of. Unreasonable for D to conclude that P had abandoned, sign
said ‘closed for remodeling’, and she asked D for more time to comply with Ds demands.
- Common law for when landlords can lock out tenants: 1) landlord’s legally entitled to possession, or
tenant breaches lease containing reentry clause, and 2) landlord's means of reentry are peaceable.
- D satisfied pt1, but not pt2—if P had been there, violence could’ve resulted. Cts very strict on pt2.
- Common law’s reqs are obsolete, modern trend is to say that it’s never legal to resort to self-help in
dispossessing a tenant. Self-help to repossess realty is considered inherently non-peaceable and resort to
the judicial process is considered the only means to lawfully dispossess a tenant.
SELF-HELP IN PERSONAL PROPERTY
WILLIAMS V. FORD MOTOR CREDIT CO. case says.. (p. 434)
- Ps car had default payments by her ex-husband, and woke up at 4:30 AM w/ D repossessing her car.
She was allowed to take her personal belongings from the car, and they were polite. P sued.
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- UCC §9: Self-help’s allowed when repossessing chattel from defaulted debtor, and no risk of violence.
- UCC provides for specific scenario where chattel’s provided as collateral, you can repossess it if it’s
peaceful. Helps creditors collect collateral w/out having to resort to judicial process, helps that market.
§9 is doing normative work here and promoting market policy, explanation for why diff from Intel.
- If there’s potential for violence, that can be interpreted as a breach of peace. Very fact-specific inquiry.
Heaney’s DISSENT says..
- There was no violence only because P chose not to. This allows for repossession unless and until
violence does in fact, result. If there’s confrontation, there should have to be adjudication.
EXCEPTIONS TO THE RIGHT TO EXCLUDE
NECESSITY / as a defense to trespass
PLOOF V. PUTNAM case says.. (p. 439)
- Ps boat got caught in storm, so P moored boat to Ds dock. Ds servant untied dock following orders,
and Ps boat and family was injured in storm as a result. P sued for trespass on the case and negligence.
- D was liable for trespass for untying boat for negligence to Ps property and family.
- P, as a matter of necessity, had a right to moor at Ds dock. We relax trespass under the defense of
necessity. Limitations: only applies when it’s required for the preservation of human life or property. If
the property’s a worthwhile investment to saving, then its identified with personhood.
- The necessity has to be a physical necessity and a simple cost-benefit analysis doesn’t fall under legal
defense of necessity. It requires “inability to control movements inaugurated in the proper exercise of a
strict right”, so there was only one way of doing something, or was one of the ways of doing something
under a time constraint that justifies it.
- Just because trespass is efficient/cost-effective, regardless of the value saved, doesn’t override
someone’s property interest. There’s only protection for human life, and property survival.
- Calabresi and Malamud: Is this property or liability rule at issue? Property rule protection vested in P
to exclude D from untying his boat. Liability rule protection in D, if Ds dock damaged, P’d have to pay.
Property rule protections not in D, liability rule protections not in P, or D could untie him and pay
damages.
CUSTOM
MCCONICO V. SINGLETON case says.. (p. 442)
- P told D not to hunt on his land, which was unenclosed. D hunted anyway. P sued for injunction, lost.
- Custom of hunting on unenclosed land is established and creates property right in D to hunt on Ps land,
as long as he doesn’t cause injury to P. Policy of promoting hunting which is good for society.
- Custom can give rise to real property rights, and can form legitimate limitations on the rights of a
property owner. (Ghen v. Rich).
- In Oregon v. Hay, the court laid out 7 factors so 3rd parties would have clear notice and to limit custom
as an exception to owner sovereignty. Here, custom is more utilitarian and policy-oriented, than
principle-oriented.
PUBLIC ACCOMODATIONS
USTON V. RESORTS INTERNATIONAL HOTEL case says.. (p. 448)
- D, casino, barred P because of his card-counting strategy, although Commission said it’s OK.
- Before, prevailing common law gave the absolute right to exclude. Here, the casino is a public
accommodation, so there’s a more qualified right to exclude. They can’t exclude arbitrarily or
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discriminatorily. They’re limited by the “right to reasonable access”—people have the right not to be
excluded w/out valid reason from that public accommodation.
- Ct cites State v. Schmid, which held that when property owners open their premises to the general
public in the pursuit of their own property interests (both commercial & non-commercial), they have no
right to exclude people unreasonably. Exception for people who cause disruption that interferes w/ the
essential purpose for which the property exists.
- Reasoning (multiple objectives/normative values at stake in each individual public accommodations
case): 1) quid pro quo: something for something. Businesses benefit from public’s presence, so once it
voluntarily opens its doors to the public, it loses its right to exclude individuals arbitrarily.
2) Economic: If a business has all the bargaining power, there’s no fair bargaining between them and
clients, and that encourages monopolies. (Innkeepers on remote highways)
3) Public trust: Casinos are public property, so discrimination’s bad. Civil Rights Act of 1964 prohibited
discrimination based on race, religion, and expanded public accommodation from just
innkeepers/carriers to hotels/restaurants/theaters, stadiums, etc. Very likely anything used for seemingly
benign public purpose, esp when it benefits property owner, will be viewed as public accommodation.
ANTI-DISCRIMINATION LAWS / for constitutionally protected classes (highest protection)
SHELLEY V. KRAEMER case says.. (p.456)
- Shelleys’s, black Ps, bought house in neighborhood with, unbeknownst to them, restrictive covenant
preventing renting/selling to blacks. Ps sue for covenant enforcement and dispossession of Ds. Ds lost.
- 14th amendment applies to state actions, but not b/w private individuals. Invoking the state to enforce a
private agreement that’s in and of itself discriminatory, however, involves a discriminatory state action
in violation of the 14th amendment. State action cannot violate the guaranteed rights of Constitution.
Courts will not enforce the right to exclude, where discrimination is the basis for that exclusion.
- Balance test between the nature of the class being discriminated/excluded, and the nature of the
property owner’s protectable interest: constitutional rights (14th amendment) v. property rights (Ds right
to exclude), property interest of seller to sell a property how he wants (autonomy) v. reliance interest of
buyer (certainty). There’s a hierarchy: constitutionally protected class, statutorily protected class,
everyone else arbitrarily excluded, like gamblers.
- This decision was the most broad, open-ended, limitless restriction on right to exclude. It can be
limited by saying it only applies when those being discriminated against already have a property interest.
- This case is also about permissible zoning—law’s always recognized zoning restrictions. Can’t use
contract law to get around zoning, which is what this restrictive covenant was trying to do.
- Distinction between indirect/direct property interest—the Ps here were non-owners seeking
enforcement of a clause between independent seller, and independent buyer.
ANTI-DISCRIMINATION LAWS / for statutorily protected classes (second highest)
ATTORNEY GENERAL V. DESILETS case says.. (p. 471)
- Unmarried couple, Ps, denied opportunity to lease apt by D, because it was against his religious beliefs
to condone unmarried people to live together. D wins, freedom of religion > marital discrimination.
- Yoder Balancing Test: Balancing the burden of the Ds right against the compelling state interest in
imposing the burden. If you substantially burden the free exercise of religion, there must be a
compelling state interest to impose that burden.
- Enforcement = substantial burden on D and lack of compelling interest. Marital status isn’t protected
by Constitution like religion (1st amendment, MAs constitution), crim statute against fornication. Nondiscrimination in marital status isn’t so important that it amounts to compelling state interest.
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- So, formal structure: religious freedom comes from Constitution, protection against marital status
discrimination only from state legislative enactment. Implies legislature thinks religion > marital status.
- Shelley v. Kraemer balancing test was between indirect private property right, and non-discrimination
principle. Here, balancing test is between religious right which indirectly implicates property interest,
against non-discrimination principle, so it’s more attenuated.
- For a lawyer, then, in any instance, the best argument to make is to situate your principle in a
Constitutional right. This pays dividends as a matter of hierarchy.
LICENSES / licenses are not contracts with grants, binary distinction between licenses and w/ grants
MARRONE V. WASHINGTON JOCKEY CLUB case says.. (p. 481)
- P refused entry to race track even w/ ticket. D removed P using “no more force than was necessary.”
- D wins, the ticket was a ‘mere license’ and therefore, revocable at will. Mere license is simply a waiver
of the property owner’s right to exclude—makes what would normally be a trespass, acceptable. It gives
permission to the holder to gain access to the property, and is temporary and revocable.
- Binary distinction between ‘license’ and ‘license coupled with a grant’. Coupled w/ a grant, its not
revocable, because a grant transfers an interest in the actual resource. (Wood v. Leadbitter).
- Grants are in rem rights to go on land for a certain amount of time for use of the resource (can’t be
revoked during that time frame), while licenses are in personam rights revocable at will.
- There are no property interests in licenses. They’re contracts, so no interests created unless there’s also
conveyances/grants that come w/ it, so no specific performance allowed. However, it’s still a contract,
so P can get damages if D breaches (like getting the ticket price back.)
- Here, the ticket doesn’t convey an interest in the race track itself, so there’s no property interest.
- Since there’s no property interest, self-help isn’t allowed.
LICENSES / licenses as contracts with grants and equitable relief
HURST V. PICTURE THEATRES case says.. (p. 483)
- D asked P to leave repeatedly for not buying ticket, P refused, D even picked him up so he walked out.
- Jury found P did buy ticket. Either way, D loses, ticket was a license coupled with a grant.
- Here, the license is a right to see the performance, and the grant is the right to enter the property in
order to further the license’s right. So P had an interest in the property for the time during the showing.
Therefore, Ps license to enjoy the show was irrevocable and he can get specific performance.
- Overruled Wood v. Leadbitter, which said tickets are mere licenses and so have no property interest.
The ct said that case wasn’t decided on the ground that the ticket doesn’t convey a right to see the show,
but that at the time, a grant of interest in property needed to be made in writing and under seal, so, no
grant was attributed due to that procedural wrinkle. Also, that ct was a ct of law and not equity, but now
there’s been a merger of courts of law and equity, so that procedural req is gone now.
- Here, there was a grant—the right to see the show from beginning to end. Therefore, P can sue for
specific performance if the license is revoked prior to the termination of the grant. Specific performance
decided by same 4-factor/2maxim standard in Baker v. Howard County Hunt: 1) inadequacy of
monetary damages, irreparable injury, balance of convenience, and not opposed to public interest.
- Buckley’s potential public policy related to public accomodations—don’t kick ppl out for no reason.
Phillimore’s DISSENT says..
- Under this interpretation, a ticket is always a license coupled with a grant, when in actuality, it’s a
mere license, and can’t be a grant of an interest in land. A grant must be a conveyance of interest that
includes ability to exclude others, because the right to exclude is contingent upon the right to use and
enjoy, and a ticket doesn’t give this ability. Therefore, the ticket is revocable, and specific performance
not allowed, only damages for breach of contract.
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- He brings up court’s reluctance to enforce non-land contractual conveyances, in which case specific
performance isn’t possible. Goes back to dignitary interest in land or be an efficiency concern. If one
party waives his right to exclude, that could amount to a license because there’s a waiver, but if it isn’t
accompanied by consideration, it isn’t a contract. Licenses are rather waivers of the right to exclude.
- Wood v. Leadbitter wasn’t decided on the procedural wrinkle. If it was, then the categories of license
and grant have no substantive content, but are merely procedural categories.
LICENSE / licenses as contracts
PROCD V. ZEIDENBERG case says.. (p. 491)
- P compiles info from telephone directories and sells them to trade and public at different prices. To
control the price discrimination, P uses contract via shrinkwrap license: “Enclosed license limits use of
program for non-commercial purpose.” D bought consumer package but sold info commercially. P won.
- Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to
contracts in general. By opening it, you’re agreeing to it. Although the terms aren’t printed outside
(impractical), they are inside, and you can get full refund if you find them unacceptable.
- Ds defense: 17 USC 301 prevents enforcement of the contract because it preempts rights under state
law that are equivalent to the exclusive rights granted by federal copyright law.
- Ct says: §301A, principle behind preemption is one of federalism—when fed law occupies a certain
field, state rights can’t be used to occupy fields that were consciously excluded (negative pregnant). 2
limitations: 1) subject matter limitation. Since copyright preemption is predicated on the idea that fed
law could’ve covered it but chose not to, we have to first ask whether fed law could’ve covered it as
subject matter under copyright law, and no, it couldn’t have here.
2) Equivalence: the idea that for something to be preempted, the rights granted need to be equivalent to
rights granted under copyright law. The rights granted by the license, were in personam contractual
rights, which are distinct from copyright laws, which are in rem property rights.
- The shrinkwrap license is a contract creating an in personam right, therefore the Federal Copyright Act
doesn’t preempt this contract. §301A only applies to property-like rights, rights against the world at
large, and the contractual rights created by the license are not that.
- This is a conceptual, not functional difference–both copyright and contract laws will protect the
software. Technically, the license with its contract here, is functioning like an in rem right because it
applies one-on-one, on an in personam basis, with each user, so its like an in rem right in that sense.
- Also, Feist v. Telephone is cited: mere sweat of brow doesn’t give someone copyright, so mere
telephone directory compilations doesn’t give you copyright protection under the originality standard.
- Formalism of conceptual difference between in rem and in personam, contract and copyright, was used
in service of a policy outcome in relation to copyright preemption.
BAILMENTS / delivery, possession, custody
ALLEN V. HYATT REGENCY – NASHVILLE HOTEL case says.. (p. 497)
-Ps car was stolen from Ds garage. D had ticket attendant who controlled exit via payment and roving
security. Tickets had disclaimers relieving D of liability for theft and didn’t ID car, but just time entered.
- P wins, bailments (P.7 OF CL) require 1) delivery of possession, and 2) custody/control of the
property. Here, Ds ticket, security, attendant, enclosed lot—these elements create bailment, D took
possession and had custody of the car.
- The ticket’s terms weren’t controlling because there was no constructive/actual knowledge over it—no
real expectation that the customer would even read them. Very fact-dependent inquiry.
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- Ct looks at precedents, Dispeker: P left car w/ valet D. Car could be operated w/out key, and P showed
D how. D damaged car, no bailment. Scruggs: P left car w/ D who gave ticket, yes bailment. Rhodes: P
parked in Ds outside, unattended lot, just put coins in meter, no bailment, just a license.
- Here, like in Scruggs, there was a delivery, and attendant and guards who took custody over it. Thus,
there was a bailment, and on nondelivery, Ps entitled to statutory presumption of negligence.
DISSENT says..
- Bailor’s delivery must be such that he has relinquished exclusive possession, control, and dominion
over chattel so that bailee can exclude all others from possession. That wasn’t the case here.
- Criticizes Scruggs as wrongly decided, and different from Dispeker—since the owner here kept the
keys, there was no transfer, since the chattel can’t be used, there’s no control over it!
- D, parking garage, is not an actual bailee, since bailees perform identification function of giving the
correct chattel back to the bailor. Here, the ticket gave no identification, so there’s no way to do that.
- Voluntary bailments require ‘acceptance’—and they didn’t accept to this kind of responsibility.
BAILMENTS / involuntary v. voluntary bailments
COWEN V. PRESSPRICH case says.. (p. 506) (DISSENT OVERRULES THIS)
- P delivered wrong bond to D. D realized mistake, but gave back to wrong person. P sues for bond.
- P wins. Yes, when D, the involuntary bailee, handed bond to stranger to return to P, that was an
exercise of dominion such that it effectively converted the involuntary bailment, into a voluntary
bailment, which results in absolute liability for misdelivery. Involuntary bailees are under no liability.
Voluntary bailees are under full liability, and for misdelivery there is absolute liability.
- Misdelivery is always premised on an action for conversion. Doing something to the chattel that seems
to negate someone else’s control/rights in it amounts to an exercise of dominion for the purposes of the
law of conversion.
DISSENT says.. (LATER OVERRULED MAJORITY)
- Under majority view, there’s no way for the involuntary bailment NOT to become voluntary.
- Mere act of returning bond through deliveryman in good faith doesn’t amount to an exercise of a right
that’s inconsistent with the owner’s rights, and therefore doesn’t give rise to liability for negligence.
- D volitionally returned bond, but you can’t equate volition, with exercising dominion. Dominion is
exercise of rights inconsistent with rights of the true owner, or conversion.
- Also, Ds window slot wasn’t an offer to accept all bonds, merely an invitation to make offer
(contractual analogy). As a contract, a bailment needs acceptance, so an involuntary bailment isn’t a
bailment just yet, but a nascent bailment that can become actual upon acceptance by dominion.
- There was no express or implied contract of bailment, so no responsibility to true owner. Intent is very
important here, but you have to distinguish between objective intent, and external manifestation.
BAILMENTS / third party possession
THE WINKFIELD case says.. (p. 513)
- Two ships collided—Mexican sank w/ some mail onboard, Winkfield didn’t. Postmaster sued the ship
for lost mail, in which postmaster had bailment interest, and won.
- A bailee can sue for damages to goods destroyed by a 3rd party while in the bailee’s custody, even
when he is not liable to the bailor. The bailee is the rightful owner with rights against all the world
minus one--the bailor, true owner. (Armory v. Delamirie).
- Old rule (Claridge): If bailee not liable to bailor, no action can be brought by bailee for loss of chattels.
- New Rule: A bailee can bring an action to recover the value of goods in his possession lost due to
negligence by a 3rd party, even when he isn’t liable to the bailor.
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- This gives bailee incentive to protect the asset by recovering the chattel, and aligns bailor/bailee
interests. It can also reduce transaction costs in cases where one bailee can represent multiple bailors.
- D cant make jus tertii defense: A tortfeasor who interferes with the bailee’s possession, cannot raise the
rights of a third party such as the bailor as a defense, because bailor can’t sue the tortfeasor. Bailment is
a contractual relationship, and theres no privity between the 3rd party and bailor. Only the bailee can sue.
ABANDONMENT
POCONO SPRINGS CIVIC ASSOCIATION, INC. V. MACKENZIE case says.. (p. 518)
- D bought vacant lot, but couldn’t put in septic system due to bad soil so can’t live there. No one
wanted it, so D tried abandoning it. P sued for fees required by the deed that he was not paying.
- D loses, failed abandonment. In order to abandon property and not be held liable for the
responsibilities of the property, the property holder must voluntarily relinquish all 1) right, 2) title, 3)
claim, and 4) possession, all with the intent to terminate ownership, and to not reclaim further
possession or resume ownership or enjoyment.
- D was still owner in fee simple, still had “perfect title” because they he had recorded deed in land
registries. Perfect title (valid deed + recorded by land registry) gives perfect notice, and it can’t be
abandoned. Real property can’t be abandoned, though chattel can. To be abandoned, you can’t vest
ownership in another person, but you can transfer it. That’s about it. All other attempts to abandon,
though show intent, is irrelevant because intent with perfect title remained.
- D turned over to P who refused, tried gifting to P, ceased paying real estate taxes so tax bureau could
offer land for sale, mailed notarized statements to all interested parties expressing his desire to abandon.
- Potential reasoning for strict abandonment rules: A) Notice, he can’t give to everyone cuz it would
need to be in rem, and notarized statements only give notice to those recipients. B) Dignitary Interest,
maybe land is so invested with self, you can’t divest yourself. C) Utilitiarian, the land will become a
liability to the community so the public interest requires that someone be a gatekeeper to take care of it.
ABANDONMENT / destruction and dead hand control
EYERMAN V. MERCANTILE TRUST CO. case says.. (p. 523)
- D, in will, wanted her home destructed and the land sold. P sued for injunction against it. P won.
- P said it was landmark, would devalue their homes, and it would create an economic waste. 40K loss to
estate from razing, 10K loss in property values to neighbors, 200K to replace. Cost/benefit analysis!
- Ct takes utilitarian pov and agrees w/ P. Demolition would result in unwarranted loss to the estate,
nobody would benefit from the destruction, goes against public policy (morals of the time).
- Ct’s concerned with ‘Dead Hand Control’, letting the land of the dead control the world of the living.
Interests of living society trumps wishes of dead individuals. When they’re alive, their self-interest
prevents against waste, when they’re dead, ct needs to consider public policy. When a will creates
economic waste for no apparent reason, and for nobody’s benefit, the community’s concern wins.
DISSENT says..
- Wills should be honored whether they make sense or not, unless violates law. Protect dignitary interest.
- You can’t bring up public policy, the public is not even a party in this suit. Public policy should rely on
precedents or statutes, and shouldn’t be a judge-made rule.
TRANSFER / delivery requirement in gifts
IRONS V. SMALLPIECE case says.. (p. 537)
- Dad, D, verbally promised son, P, 2 colts. P said hay’s expensive so D said he’d help supply hay too.
Only the hay was delivered months later, days before P died. D sued to get the colts and lost, no transfer.
- Without delivery through actual delivery, deed or instrument of gift, or at least start to performance, a
gift cannot be enforced. Hay delivery didn’t count, here, the gift was only verbal, so there’s no transfer.
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- Contractual analogy: A contract needs consideration, so there needs to be a benefit that flows from
either side to the other—showing an existence of a benefit that flows both ways = bilateral contract.
- Delivery’s functions, 1) Evidentiary Function: it’s signal of transfer (in personam) that gives NOTICE
to world at large (in rem). 2) Cautionary Function: by forcing a formal req on an act, it forces parties to
consider if that’s really what they intend. 3) Channeling Function: performs the role of legal language,
lets parties agree upon in terms of identifying what specific consequence will flow from what specific
action—both for the parties, and 3rd parties. This gives certainty and standardization.
TRANSFER / delivery requirement in donation mortis causa
FOSTER V. REISS case says.. (p. 539)
- P, before surgery, wrote letter to husband D telling where she’d hidden money, and who to give to. P
died. D did according to letter, but Ps actual will said diff things than it, so D got $1. P sued and won.
- Donation Mortis Causa: When someone on deathbed, delivers or causes to be delivered to another the
possession of personals to keep if they die. It requires actual, unequivocal, and complete delivery during
the lifetime of the donor, wholly divesting him of the possession, dominion, and control of the property.
- No actual delivery here, only a taking of possession by D after Ps death. Need strong evidence of intent
since DMC’s carry a high risk of fraud, and actual delivery is the strongest evidence.
- Policy: Ct adopts formalistic construct of delivery req to confine deathbed gifts from overriding wills.
A person might be induced last minute to give things differently than they did in a well thought out will,
so property might end up going where the deceased didn’t really want it to go.
- Wills require signatures and 2 witnesses to prevent fraud, while a DMC doesn’t have these
requirements. This is why the ct says there needs to be an affirmative act of delivery, to prove intent.
- Basically, the greater the risk of fraud, the more likely the ct adopts a higher standard of delivery.
DISSENT says..
- Majority’s rule is too formalistic. Can’t expect P on her deathbed to currently deliver items at home.
- Delivery req has its roots in seisin, and that has faded, so the delivery requirement is outdated.
- If you can establish that the gift is the act of a rational actor, DMC should be allowed. Ps wishes were
freely and clearly expressed in a written instrument, so public policy points towards upholding her gift.
V. FORMS OF OWNERSHIP
CONSERVATION OF ESTATES / many different interests with different consequences
WILLIAMS V. ESTATE OF WILLIAMS case says.. (p. 563)
- D, landowner, wills farm to 3 of his daughters for as long as they’re unmarried and alive, after which it
goes to the other 6 children. None married, and last living daughter, P, claims that she has a fee simple
absolute interest in farm, but Ds 6 other children say that once she dies, they get the interest.
- P loses, doesn’t have fee simple absolute, but a life estate. It’s clear from the language that the
daughters interests would terminate at marriage or death. Look at totality of circumstances for intent!
- You must analyze the predominant intent of the will to see which category the property right falls into.
Ds intent was that daughters would have shelter and support while unmarried. So, upon their death,
testator’s intent will be accomplished, and his heirs should inherit the property by intestate succession.
- D, Williams started out with fee simple absolute. Since getting married is an executory limitation on
each daughter, he created a life estate defeasible in each. Each has a life estate defeasible and executory
interest in the share of others getting married or not.
- Ds heirs get reversion in fee simple subject to the determinable life estates and executory interests in
the 3 daughters and possibility of reverter (if they all get married).
- Conservation of Estates Principle: Grantors may break up their interests and transfer the pieces, but
they must add up to what the grantor started out with. It’s impt to understand how a single transaction
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can give rise to 6 diff interests because of structure and how the law attaches consequences to each
classification.
CONSERVATION OF ESTATES / trying to uphold intent even with RAP issues
CITY OF KLAMATH V. BELL case says.. (p. 569)
- Corporation left land to City so long as City used it as library, then to Schallock, Daggett and heirs.
City stopped using it as library after corporation disbanded. Land went to Corp’s heirs/shareholders.
- When a condition in a fee simple determinable is violated, the property interest goes back to the
grantor via possibility of a reverter, and if grantor no longer around, then to the grantor’s heirs.
- Court says City has a fee simple determinable, while Balg says it’s a fee simple subject to executory
interest. The executory limitation was that it goes to the third party named in the will, which was
Schallock and Dagget. Schallock and Daggett’s interests are unenforceable and void “ab initio” (from
the outset) because hit by RAP (P.10 OF CL). (By ruling thus, the court recognizes that the remaining
interest was an executory interest and not a possibility of a reverter – as it would be if the original grant
actually was a fee simple determinable). If you invalidate an executory interest via RAP, it doesn’t mean
that the previous estate turns into a fee simple absolute, but becomes a possibility of reverter vested in
the grantor. So it went back to the Corporation, and since that was dissolved, its heirs got assets anyway.
- Law says corporation holds possibility of reverter, so the shareholders, who end up being the same
people whos interest was hit with the RAP, Schallock and Daggett’s heirs, actually get it anyway.
- The RAP derives from the idea that there shouldn’t be dead hand control if it vests after an extended
period of time, it’s then deemed void. So here, the executory interest here is deemed void by RAP.
- Wrinkle: Executory interest that tries to be alienated is destroyed, whereas possibility of reverter that
tries to be alienated is determined NOT to be. This is probably why the court decided to call City’s
interest fee simple determinable instead. As a legal personality, the Corporation has heirs.
- Conservation of Estates principle here: when a will attempts to break down an estate into multiple
parts, with a clearly identified purpose, if one of those parts is hit by a formal rule such as the RAP, the
law should make every effort to give effect to the intent behind the very bifurcation of the interest, and
so in this case, the court says, when there was a fee simple, subject to an executory interest, the
executory interest is hit by the RAP.. as a consequence it doesn’t disappear. It’s replaced by the
possibility of a reverter, not a reversion. As a consequence, the heirs can still get the land. The court is
trying to couch it in terms that won’t be invalidated by the RAP to serve Corporation’s intent.
NUMERUS CLAUSUS
JOHNSON V. WHITON case says.. (p. 587)
- P made deposit to purchase land from Ds grandkids. Ds will gave granddaughter Sarah “and her heirs
on her father’s side” 1/3 of Ds estate, and the other 2/3 was divided amongst Ds other grandkids. All
grandkids agreed to sell to P, but P refused to accept deed since Sarah couldn’t convey her land
completely (not a fee simple absolute) because of the “heirs on father’s side”. P sued for deposit return.
- Sarah’s restriction essentially function as a fee tail, which ensures that an estate remains in a family’s
bloodline, or it’s an attempt to have property or inheritance remain on one side of the family by
specifying certain kinds of heirs that can inherit, but fee tails are abolished in all jurisdictions.
- Therefore, her limitation is void and becomes a fee simple absolute. Ct rereads will, making “heirs on
her father’s side” to be words of limitation, not words of purchase.
- Under numerus clausus, which says you can’t create new interests that can operate as in rem property
rights, D cant create a new type of ownership, fee tail, which doesn’t exist since it’s abolished.
- If court allowed it to remain fee tail, it would interfere with alienability. The court can work within the
system to create the most desirable situation. D could also have done that for his own interests—he
could’ve given her a fee simple subject to executory interest, with condition being “if she dies intestate,
then to heirs on her father's side,” vesting executory interest in her father’s heirs.
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- Why numerus clausus (P. 21 OF CL)? While contracts always give sufficient notice, notice in property
is different because it’s in rem, not in personam, so you alter the normative position of 3rd parties when
property rights shift. This way, you promote standardization and certainty, which promotes owner
autonomy.
Since property rights by their very nature involve an incursion on the autonomy of third parties, the law
therefore in protecting individual autonomy places a limit on the kinds of interests that can be created.
- Also, it’s a principle of ‘optimal standardization’ about measurement externalities. The measurement
cost externality is the idea that by customizing these property rights, and by creating them, you are
forcing others in the world whose normative position has been altered, to actually spend an additional
amount of time and resources in figuring out what is contained in the bundle of rights. Typically, these
measurement costs are borne by those known within the ‘zone of privity’. It’s a cost imposed on 3rd
parties which isn’t transferred back, or isn’t borne by the person generating it.
NUMERUS CLAUSUS / violation of numerus clausus to uphold intent
GARNER V. GERRISH case says.. (p. 589)
- Gerrish, tenant D, leased land from landlord. Lease clearly stated D had right to rent for as long as he
wanted. After landlord’s death, executor Garner P tried to make D leave, D refused, lost, appealed, won.
- Lower cts ruled that lease "at the will" of the lessee automatically converts by default into also at will
of the lessor, since traditional common law presumption that will of the lessor = will of the lessee, or if
terminable at will of one, terminable at will of other. A right vested in tenant, is vested in both parties.
- Higher ct ruled since the livery of seisin has been abandoned, this traditional rule should be too, esp.
since it’s not a perpetual or indefinite lease—at latest, it’ll end at Ds death. Perpetual or indefinite leases
are generally not allowed by the law. However, for conveyance of life estate, you need livery of seisin,
and if not there, the law treats it as tenancy at will. Since there’s no seisin, you won’t treat it as tenancy
at will. Missing logical step is, seisin has nothing directly to do w/ tenancies at will, but w/ life estates.
- So the connection to abandonment of livery of seisin as reason for abandoning traditional rule doesn’t
flow logically. Treating a lease as a life estate is unheard of, this is aberrational. They create a new
interest and openly violate numerus clausus, by reason of trying to look at contractual intent/purpose.
- Ct held lease gave Gerrish a determinable life estate/tenancy, terminable at his will or upon his death.
- This case isn’t useful in terms of precedent but useful for showing how ct was forced to straightjacket
& constrain an issue to use a pre-established category of property, "determinable life estate," to describe
an interest that was actually a little different, due to numerus clausus, in trying to uphold Ps likely intent.
CONFLICTS OVER TIME / doctrine of waste
BROKAW V. FAIRCHILD case says.. (p. 596)
- Man gave each kid life estate in diff homes. Each life estate was followed by a remainder to issue of
life tenant, or if life tenant dies w/out issuing to anyone, it’d go to man’s remaining heirs aka 3 other
kids. D, Brokaw, has daughter and says due to economy and changed circumstances of neighborhood,
can’t rent his home and it’s a negative value asset. He wants to demolish mansion and build apt, which
will bring profit and increase property’s value, so in best interests of all, including remaindermen (in
case George outlives his daughter), who sue that the proposed demolition is waste.
- Any significant change to the property constitutes waste (P. 11 OF CL), even if it might increase its
value, ameliorative waste. The property needs to pass to the remainder/reversion holder resembling what
was received as nearly as practicable. You can make some changes, especially if reversible, but anything
materially or permanently changing the property is not allowed.
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- Ct’s trying to protect remaindermen’s property interest and autonomy, though they don’t have actual
possession, since they will later have fee simple. They don’t have right to use or exclude, but have right
to object to permanent changes.
- This suggests the ownership interest of a life estate is less than a full ownership interest and more
functionally like a tenant’s. Tenants have no right to exercise acts of ownership, can use the property but
can’t change it. Though owners of life estates have the right to exclude, and use and enjoyment, they
don’t have full dominion to make changes to the property.
- Different than Melms v. Pabst Brewing, where doctrine of changed circumstances gave the exception
to doctrine of waste. The whole area had changed, no residences/residential value remained at all and
alteration was made in good faith (Pabst thought they had fee simple). So looking ex-ante, before the
change has been done, the court will defer to autonomy of the remaindermen. But if ex-post, the court
will look to more factors, like circumstances and intent.
CONFLICTS OVER TIME / restraints on alienation
MOUNTAIN BROW LODGE V. TOSCANO case says.. (p. 607)
- Toscanos left property to MBL. Habendum clause (directly explains the scope of the property right
being transferred) said that 1) if it was ever sold or transferred, or 2) not used for purposes of MBL, it
would revert. MBL brought action for quiet title (declares that in relation to someone else, you have title
and your interest>theirs), saying this restrictive language is a restraint on alienation, and void.
- Ct distinguishes between 1st and 2nd pt of clause. 1st pt: valid as a fee simple subject to condition
subsequent 2nd pt: void ab initio (from the outset), it’s a restraint on alienation.
- The ct says clause should be severed/have no effect. The test for severability is if it can be interpreted
as two different things, and this clause is interpreted as both FSSC and restraint on alienation, so yes.
- This doesn’t void the whole grant tho, ct says the clause phrases the condition subsequent as a
restriction on use, not a restraint on alienation. They look at intent to give meaning to the ‘use’ clause,
and how grantors gave the land out of love. So though MBL can’t sell the land anyway because that
would violate the ‘use’ clause, it’s not considered an invalid restraint.
- Ct’s recognizes restraints on alienation are generally against public policy, so void, but policy
considerations can counterbalance that. Ct uses formalism (strict classifications of interests) to further
their realist, utilitarian goal of encouraging people to donate property. Functionalist approach would
require cts to strike down gift deeds from churches and other charitable institutions.
- You can put conditions on use such that alienation is theoretically possible, but practically impossible.
- Alienation: the capacity for property to be sold/transferred. Generally alienable, but subject to restraint,
on the idea that when a transfer is created in fee simple, it ensures that it’ll be used by the person best
suited to use it, hampering effective use of property if the buyer could put it to better use than the seller.
- Take-Away Principle: law disfavors restrains on alienation, when they’re in contractual transactions, or
from an interpretation of K. Acceptable when they further a policy reason (NAGPRA, droit moral).
DISSENT says..
- The clause can’t be severed. Also, a restriction on use amounts to a restraint on alienability anyway.
CONFLICTS OVER TIME / RAP, wait and see approach
SYMPHONY SPACE V. PERGOLA PROPERTIES case says.. (p. 620)
- Broadwest sold bldg (theatre+commercial space) as mortgage to NPO SS and “leased back” only the
commercial space for $1/yr to avoid taxes. Broadwest retained buyback option of whole property which
was transferable. Option could be exercised 1) at maturity, 2) at non-payment, 3) at termination of lease,
at 4) 1 or 4 periods in time. Broadwest sold its interest under the lease to X who transferred it to Pergola.
Pergola wants to exercise buyback option after SS defaults on a mortgage (P. 10 OF CL) payment.
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- SS argued that RAP made buyback option invalid. Pergola argued RAP doesn’t apply to commercial
options and even if it does, ct should use ‘wait and see approach’ to see if it actually vests past 21 years.
- RAP applies to commercial options, and ct won’t use wait and see because RAP is statutory in NY, so
there’s no flexibility. The buyback option said it remained open ended for 24 years, and there was no
measuring life in this case since there’s no human entity (unfair to corporations), so it starts from 21
years when the interest was created. Since it could vest after the 21 year limit of RAP, it’s void.
- Tho the buyback option is not a vested right, it’s a right to exercise that right in the future.
- Intent of the parties won’t be enforced here, since RAP works against it on the basis of public policy.
Also, the right of possession, which is essential to market transfer, is reduced here by that option.
- Option v. Option Appurtenant: Party in control of the option is also party in control of the lease, giving
them incentive to develop the land, since the tenant could purchase the property before lease terminates.
No Option Appurtenant here, since the option applies to both the commercial + theatre space, while
tenant only had lease in commercial, disincentiving them from working on the theatre space.
- Option v. Right of Preemption: Option must be sold to the holder, forces them to sell. Holder just
needs to have the ‘option’ of being first to buy, owner doesn’t have to sell. This case upholds
preemption rights against RAP, because it incentivizes improvement and efficient use of property. A
preemption clause allows it to be sold at the market price, just gives a party the preemptive option.
However, it’s a big restraint because it will encourage remote vesting.
- Court rejects remedy of rescission—if Ks entered into by mutual mistake, traditional remedy is to set
aside the K on the logic there was no consensus, which is necessary for K to come to existence. Logic
here cuts opposite—RAP is supposed to defeat intent of parties, as opposed to remedy of rescission.
CONFLICTS BETWEEN CO-OWNERS / tenancy in common, partitions by sale and in kind
DELFINO V. VEALENCIS case says.. (p. 637)
- Siblings have tenancy in common (p. 9 of CL), bro P has 99/144 interest in the land, and sis D has
45/144. Sis operates garbage disposal business and resides on her portion. P wants to sell all of land to
develop it into residential lots, which is arguably profitable, so wants partition by sale, D wants partition
in kind. Partitions are used in real property to describe an act, by court order or otherwise, to divide up a
concurrent estate into separate portions representing the proportionate interests of the tenants. Any cotenant can sue for a partition for any or no reason.
- Partition by sale is forced sale of the land followed by division of profits amongst tenants, partition in
kind is division of the property to create independent parcels of land. So D lost a lot of land by PIK.
- Ct considers interests of all tenants in common, and says partition by sale not allowed here.
- PIK is default rule, and PBS should only be allowed via a balancing test if its 1) impracticable (look at
nature and physical attribute of land), 2) inequitable (where the monetary value doesn’t necessarily track
the extent and value of the land that’s partitioned), and 3) not in the best interests of the parties to have
PIK. So, PIK is not a strict rule.
- 1) Land was rectangular and only 2 interests, very physically practicable. 2) Ct concluded Ds business
wouldn’t continue long, and Ps plans wouldn’t be approved because of nature of Ds business. 3)
Balancing of interests, if PBS, D would lose her home and livelihood would be jeopardized.
- Court can use discretion in this balance test, and they’re motivated by particular facts of case. Also, D
prob had ulterior motive—if lands sold by PBS, he could buy it at auction when it’s below market price
since itll go thru ct system. Also, he needed whole property. Rules of partition emphasize the connection
b/w ownership and property rule protection, ownership and subjective valuation of the tenant. So the
interest moves from property rule protection to liability rule protection, subjective to objective.
- Ct says by forcing PBS, tramps on tenants autonomy interests and dignitary interest of livelihood.
CONFLICTS BETWEEN CO-OWNERS / tenancy in common, ouster and right of contribution
GILLMOR V. GILLMORE case says.. (p. 645)
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- Cousins, 2 bros D and 1 sis P, tenants in common (p.9 of CL). P sought to exercise her legal
entitlement and sent letter stating she wanted to graze her livestock on the whole land which Ds were
already doing. Ds sheep grazed over all property. If P did too, land would’ve been overgrazed, so P
couldn’t use without notifying D, who didn’t respond, even tho D knew about the overgrazing potential.
P established ouster, so D owes part of the profits minus an offset for repairs to the property.
- When a co-tenant out of possession makes a clear, unequivocal demand of their rights to use land
that’s in the exclusive possession of another co-tenant and that co-tenant directly (locks out) or
indirectly refuses to accommodate them, they have established a claim for relief in damages for ouster.
- Elements for ouster in TIC: 1) demand (by assertion of legal right), 2) awareness (notice), and 3) denial
(nonaccommodation). It’s a fact-specific analysis to show D acted in a way capable of being interpreted
as a denial of Ps rights. Standard for exclusion here is lower than for AP.
- A co-tenant has a separate and undivided interest to possess and use the entirety of property, but D
acted as to exclude P so he ousted her from possession. There’s a diff b/w exclusive use and
exclusionary use that needs to be established.
- Right of Contribution: When there’s no consent from other cotenants for making repairs or
improvements, the cotenant undertaking it generally doesn’t have the right to seek contribution from
other cotenants. 2 exceptions: 1) cotenant acts in good faith believe they’re the true owner (unaware of
other cotenants), then other cotenants may be required to contribute, 2) if the repairs are objectively
essential to preserve the property. Here, the repairs are necessary, so it’ll offset Ds profits.
CONFLICTS BETWEEN CO-OWNERS / joint tenancy
HARMS V. SPRAGUE case says.. (p. 650)
- Will and John Harms had joint tenancy (p. 9 of CL). John mortgaged (p. 10 of CL) his share to
Sprague and cosigned for his loan w/ Simmons. He died, leaving Sprague as his heir, and Simmons tried
to claim title to John’s interest in land as collateral (borrower's pledge of specific property to a lender, to
secure repayment of a loan.)
- Issue was whether JT is severed and results in tenancy in common, so whether right of survivorship
disappears by the creation of the mortgage in favor of Simmons.
- 2 mortgage theories: Title Theory, mortgages are conveyances of a legal estate vesting title in the
mortgagee so the JT is severed when one of the JTs mortgages his interest to a 3rd party (in rem).
Lien Theory (main one), 2 part structure to mortgage. First, sets up trust deed which sets up obligations
of the mortgage, but not an actual conveyance, so it’s a mere lien. Then, when the property’s foreclosed,
master deed is executed which transfers title of property, severing JT. (in personam)
- No master deed here, so mortgage is lien, and not actual conveyance, so none of the 4 unities was
severed, so JT isn’t severed, and Will’s survivorshop is operative upon John’s death. You can’t take JT
property as collateral on a mortgage, because it operates as a lien and therefore dies w/ the person who
issued it. Because of Will’s acquisition of entire property through survivorship, joint cotenant Simmons
doesn’t acquire interest by virtue of relationship with decedent John.
- Notice played a role in court’s interpretation here, since Will had none.
VI. ENTITY PROPERTY
LANDLORD & TENANTS / independent covenant model
PARADINE V. JANE case says.. (p. 691)
- D rented land in agricultural lease but enemy invaders prevented him from accessing it. P sued for rent.
- Even if LL fails to perform his covenant, tenant must still continue their covenant to pay rent.
- Ct adopts independent covenant approach. Even if one side breaches, other side’s not absolved of his
duty to perform. Ds lack of access/possession to the land doesn’t exempt him from paying rent on it.
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- D argued lease didn’t explicitly specify rent payment was obligation, just set the rate. Ct says
obligation of payment’s implied because that’s standard in a lease. LL has obligation not to intentionally
interfere w/ tenant’s quiet use and enjoyment, but here the circumstances were outside his control.
- If a lessee is willing to take the change of benefits and windfall on the land, he must also take the risks.
LANDLORD & TENANTS / moving away from independent covenans thru constructive eviction
BLACKETT V. OLANOFF case says.. (p. 703)
- LL leased residential property to tenants, then another commercial property to lounge, which made
noise and tenants complained. Tenants vacated before lease’s end and refused to pay rent, claiming
constructive eviction. LL sued for rent and lost, no obligation on tenants to pay rent.
- LL argued intentional action to deprive tenants use and quiet enjoyment is required for constructive
eviction, but ct said LL had control over who he rented to and could look at natural and probable
consequences of his actions, so he was responsible for the constructive eviction and intent is irrelevant.
- LL brings in doctrine of common tenants, that if one tenant hurts another, LL not responsible. Here, LL
didn’t have nonfeasance (formalist distinction), but misfeasance (functional view) by affirmatively
acting by entering into lease w/ commercial tenant, knowing the tenancy might interfere w/ the
residential tenancy. You must look at the first step of creating the lease, not only issue of later control.
Ct’s will not perpetuate formalist distinction between misfeasance and nonfeasance—both can result in
same consequence and should be treated the same.
- Constructive Eviction: makes tenant’s payment of rent dependent upon LL’s performance of covenant
of quiet use and enjoyment. It’s dependent covenant concept used in independent covenant system.
LANDLORD & TENANTS / moving away from independent covenant thru surrender
IN RE KERR case says.. (p. 707)
- After bankrupt tenants stopped paying rent on a commercial lease, LL relet to other tenants (original
lease had clause that allowed this) so that there was an overlap in the old lease and new lease. No notice
of termination or reentry was given by the LL. LL sues for rent and loses, tenants don’t have to pay.
- Surrender (P. 13 OF CL): If there’s an “offer” (by vacating premises w/ intent to never return), and
“acceptance” (LL asserting dominion), the lease is terminated.
- Tenants had vacated (offered), and by reletting the property, LL exercised dominion (accepted).
- NY law says if an LL relets the property for longer than period of original lease, it amounts to an
acceptance of surrender, even when there’s a clause that allows it.
- The clause was confusing, but under rule of contra proferentem, if meaning in an agreement’s unclear,
it’s construed against its creator, since they had the ability to get rid of any ambiguity. Since LL drafted
it, it’s construed in favor of tenants. LL also had more market power, so ct is trying further policy of
protecting commercial tenants.
LANDLORD & TENANTS / dependent covenant model, moving to contract law
MEDICO-DENTAL BUILDING CO. V. HORTON AND CONVERSE case says.. (p. 712)
- LL owns MDB, entered into lease w/ H&C drugstore. Lease said lessor wouldn’t lease to anyone who
would be in direct competition w/ H&C, and lessee could only use property as drug store. 3rd party Dr. B
entered into lease w/ LL which said can’t open drug store, instead he opened drug room which supplied
MDB’s patients. He originally got drugs from H&C, but switched suppliers, so H&C complained. LL
tried to fix, but didn’t stop Dr. B. H&C refused to pay rent, claiming breach, LL sued for rent and lost.
- There was a breach of a dependent contract, so H&C relieved of obligation to pay rent.
- The breached term went to the whole of the consideration—tenant wouldn’t have signed lease w/out it.
Since the term goes to the whole of the contract, it’s a dependent covenant and material breach.
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- Since this is a set of reciprocal obligations, the terms must be considered dependent, like a contract.
Parts of a lease are interpreted contractually, others propetarian. Privity of contract: idea that only the
parties to a contract can sue under it. Privity of estate (applies here, indirectly applies contract law to
property rule protection): 1) parties must be bound so that one party’s interest is a subset of the other
party’s interest, 2) one of the parties must be in actual possession.
- LL is responsible for Dr. B’s activity—no distinction b/w nonfeasance and misfeasance.
- Both parties are commercial, but ct might still be motivated by policy concern that this rule will be
expanded beyond commercial leases/equal parties, to residential tenants and landlords.
DEPENDENT COVENANT / shift to contractual model
JAVINS V. FIRST NATIONAL REALTY CORP. case says.. (p. 719)
- Realty has residential lease to tenants Javins. The bldg became officially uninhabitable according to
housing code violations, but Javins stopped paying rent before that point, saying it was below-standard
housing. They claimed 1500 code violations that supposedly occurred after they took possession.
- Javins didn’t have to pay for rent after official violations, but did for time before. Impt the conditions
weren’t preexisting or lease would’ve been void ab initio, LL would be able to just eject the tenants.
- A warranty of habitability (measured by housing regulations) is implied in residential leases, and
breach of this warranty gives rise to usual remedies for breach of contract. Dependent covenant!
- 3 reasons for this shift from independent covenant model of property to dependent model of contracts:
1) Factual Changes: historically, leases were agricultural, so possession was most important in land.
Now, land is important for residential purpose of suitability of shelter. Tenants don’t have to invest time
and money into improving leases to be suitable for residential living, since people move a lot now.
2) Consumer Expectations: Requirement of merchantability. There’s an implied warranty that applies
not only at the beginning of the lease, but continues since there’s an ongoing relationship between LLtenant that’s renewed every month via rent. Tenants expect heat, ventilation, light, etc.
3) Policy Reasons: Unequal bargaining power due to a shortage in the housing market leads to a need to
protect tenants.
DEPENDENT COVENANT
SOMMER V. KRIDEL case says.. (p. 735)
- Kridel entered into lease w/ P, but due to circumstance change, had to back out—wrote letter to P who
never responded. P turned down potential renter (ready, willing, able to pay) and refused to show apt to
other prospective renters. P, LL, sued for rent due under the full 2-year lease, and lost. D no obligation.
- P had duty to mitigate damages by making reasonable efforts to relet the wrongfully vacated apt. Test
for reasonability, dictated by fairness: did P offer to show apt, and did he advertise?
- LL must treat apt as one of his vacated apts. Burden to prove efforts is on LL since he’s in the best
position to say what efforts he made. Even if tenant walks out, LL has duty to mitigate, like a contract.
- Ct had no real evidence that prospective tenant was ready, willing, able, showing ct was motivated by
push to change to dependant covenant model, so they used this theory instead of surrender doctrine.
- Policy: Dependent covenant contract rule should be implemented because of the increasing
complexities of life, landlord-tenant imbalances, and nature of housing market.
TRANSFERS OF INTERESTS / lease provisions
MULLENDORE THEATRES V. GROWTH REALTY INVESTORS CO. case says.. (p. 743)
- Original tenant Conner Theatres had lease w/ LL that included security deposit of $22,500 in case of
default payments, to be returned if there’s none. Conner transferred whole leasehold interest to
Mullendore and LL land, eventually transferred to Tacoma. Mullendore sued for return of deposit.
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- Lease provisions don’t run with the land unless they touch or concern the land, meaning it enhances
the value of the land and confers benefit on it. This is a mandatory rule that can’t be contracted around.
- Even though the original lease explicitly calls for deposit return, when LL sold the property, the new
owner’s not responsible for it, since the provision didn’t run w/ the land. The parties can’t stipulate they
intend for a covenant to run with the land, can’t bind future parties w/ a fancy, like numerus clausus.
- Unless the lease requires that the deposit, if forfeited, be used for the benefit of the leased property, the
deposit does not run with a land, so there’s no obligation to return it here. It’s just collateral and a mere
personal obligation on the lessor to return it if he wishes (so no obligation to return it in this case).
- Court is trying to interpret these transfers as objectively as possible, propetarian interpretation.
TRANSFERS OF INTERESTS / intent in deciphering between subleases and assignments
JABER V. MILLER case says.. (p. 750)
- Commercial lease provided that in the event that the bldg was destroyed by fire, tenant wouldn’t have
to pay rent. Prime tenant transferred lease to someone else, and bldg burned down.
- This transfer was an assignment (P. 11 OF CL), and thus the assignee must continue to pay rent. If this
transfer were a sublease, the sublease would end when the original lease ended, and thus end the
obligation to pay rent.
- Common law rule: if the transfer’s for the remainder of the term in its entirety, it operates as an
assignment, but if it ends even one day earlier than the lease’s end, it’s a sublease. This rule’s arbitrary
and unjust if parties wanted sublease that ran for rest of the term. This rule originates in the feudal nature
of land possession, so it’s no longer applicable.
- Instead, we must look at the objective intent of the parties in determining whether the transfer was an
assignment or a sublease. Here, intent was to be an assignment—it’s written on the title of the document
and the payment in addition to rent, was consideration. Thus, there’s privity of estate, but not contract.
- This term doesn’t run with the land, since it doesn’t touch and concern it.
- When it comes to transferring leases, the court returns to the conveyance model.
TRANSFERS OF INTERESTS / reasonability on alienation
KENDALL V. ERNEST PESTANA case says.. (p. 755)
- Lease contained provision that LL must give consent before tenant assigns his interest. Tenant
requested permission from Pestana, successor in interest to LL. Pestana refused, claiming absolute right
to arbitrarily exclude. He made several conditions, like higher rent, as a condition of consent.
- LL doesn’t have absolute right to arbitrarily exclude, must have a commercially reasonable basis for
withholding permission to an assignee/sublessor. LLs aren’t allowed to restrict lessor’s ability to alienate
his lease unless it’s for a reasonable purpose, they do not have absolute right to arbitrarily exclude.
- Reasonableness is determined by comparing the justification of the particular restraint on alienation,
against the costs of the restraint. Legitimate reasons include financial responsibility of subtenant, fitness
of property for proposed use, legality of proposed use, alteration of premises, and nature of occupancy.
- This applies equally to assignments and subleases, but only for commercial leases. Policy is due to a
shortage in commercial spaces, and promoting duties of good faith and fair dealing in contracts, and the
law generally disfavors restraints on alienation.
- 4 reasons against this rule: 1) leases are conveyances, LL should have personal choices in deciding
whom he gives his conveyance to (already restricted tho, by duty to mitigate), 2) don’t want to rewrite
the contract on behalf of the parties, in so doing altering the consideration, 3) stare decisis, 4) owner has
the right to get increased profits from any changes in the land’s value, and benefits should accrue to the
true owner, not the tenant. (but a tenant accepts risks, so should get windfalls too)
CONDOMINIUMS (P. 11 OF CL!!!!)
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NAHRSTEDT V. LAKESIDE VILLAGE CONDOMINUM ASSOCIATION case says.. (p. 782)
- P sued to prevent enforcement of rule in condo’s master deed which was against allowing pets, as
applied to her its ‘unreasonable’ since her cats don’t bother anyone & are w/in her 4 walls of ownership.
- Ct brings up bifurcated FL rule: Only governing board rules are subject to a reasonableness standard—
those in master deed aren’t subject to it (presumed valid and reasonable) and are only invalid if they’re
arbitrary or in violation of public policy or constitutional right, and adopts it, so P loses.
- “Reasonableness” under CA’s 1354: 1) arbitrary (open-ended, gives ct’s discretion), 2) imposes
burdens that outweigh the benefits of the collective (cost/benefit analysis, unclear whether the burden is
the indidividual’s or collective’s), 3) violates public policy (also open-ended).
-1354, in examining reasonableness, applies it to the community as a whole, not just an individual
owner. The common interest is what should be determined and analyzed, not a granular inquiry.
- The rule was in the master deed, so its recorded and is a part of public notice, so can’t really challenge.
Also, use restrictions are a characteristic feature of condos, so she should’ve expected them.
- Policy behind 1354: 1) The governance structures of condos must be respected so potential buyers can
know rules are valid and will be enforced if they purchase a unit, 2) to eliminate rising association dues
to cover costs of frivolous litigation, and 3) create stable shared ownership environments.
DISSENT says..
- Criticizes open-endedness of majority’s ‘reasonableness’ standard. The ct isn’t laying down legal tests,
merely creating more basis for imposing its own discretion. Presumption of validity has no basis in law.
- Applying cost/benefit analysis, says happiness conferred by pets outweighs their burdens.
- The dissent makes no legal valid arguments, also uses an open-ended test.
COOPERATIVES (P. 12 OF CL!!!!)
40 WEST 67TH STREET V. PULLMAN case says.. (p. 793)
- D, shareholder-tenant in Ps cooperative building was psycho. Co-op board called mtg, and
shareholders unanimously voted him out. P sent notice of lease termination and cancellation of Ds
shares, but he refused to leave. D sued, wants ct to review ‘de novo’ (look @ facts independently &
2ndguess bd’s decision), D wants ct to apply Business Decision Rule (defer to bd’s decision unless…)
- Ct applies modified Business Decision Rule by introducing a Competent Evidence standard to govern
co-ops decisions: traditionally BDR only checks for arbitrariness/malice, statute says co-ops must
present competent evidence supporting its decision to terminate the lease and evict him (like a
unanimous vote) but that’s not enough. You need a substantive examination of the legitimacy.
- So this is modified since it opens BDR up, requiring more ct review than normal corporations. Very
deferential rule which ensures that certain process safeguards are used, doesn’t examine deeper than that
unless there’s a reason to. For that, a tenant-shareholder must show 1) the bd acted outside scope of its
authority (determined by terms of actual lease/constitution of the corporation), 2) in a way that didn’t
legitimately further the co-ops purpose or welfare, or 3) in bad faith.
- Ct reconciles the competent evidence standard and BDR by saying the BDR CAN be comp. evidence.
- BDR is default since co-ops are formally a corporation. BDR allows for the protection of interests of
the entire community of residents in an environment managed by the board for the common benefit.
TRUSTS AND CORPORATIONS
BROADWAY NATIONAL BANK V. ADAMS case says.. (p. 804)
- Adams was left a spendthrift trust (trusts in which the settlor specifically makes the benefits of the trust
safe from the creditors of the beneficiaries (e.g. for their own benefit)) thru bro’s will. He was to receive
the interest made from investing the corpus of the trust. Adams got into debt, BNB creditors tried to use
trust’s income to pay it off. [p. 13 for CL of TRUSTS]
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- MA common law disfavors wills that try to protect assets from creditors, under the theory that
spendthrift trusts go against the preference for alienability of property. Ct here rejects that.
- They turn to settlor’s intent, and here it was expressly to protect the trust from creditors. The next Q is
whether the intent of a will can control. For spendthrift trusts, yes. Settlor’s intent to place beneficiary’s
trust beyond creditors’ reach should be apparent through statement of will, trust deed, or extrinsic
circumstances. Without contrary public policy concern, we should go w/ that expressed intent.
- Trusts are documented, so creditors can do research and not be fooled regarding assets of a potential
debtor. For creditors already owed money, this isn’t defrauding them—settlor had no obligation to
creditors, so he doesn’t need to make the trust available to them. Spendthrift trusts can keep them out.
TRUSTS AND CORPORATIONS
ROTHKO V. REIS case says.. (p. 809)
- Rothko had trust w/ paintings for benefit of family members. 3 executors R, S, L, dealt w/ all paintings
in 3 wks thru 2 contracts. 100 sold to MAG, rest consigned to MNY to sell up to 35/yr for 50%
commission, compared to contract w/ Rothko when alive w/ commission of 10%. R was an interest party
of MNY, S trying to curry favor w/ MAG as an artist. R,S,L breached fiduciary duties to beneficiaries.
- NY law says executor = trustee, and trustees have fiduciary duties (p. 13 of CL). They can’t be in a
conflict of interest, and if they are, they must recuse themselves, or otherwise be held liable for damages
to the beneficiaries. Conflicts of interest include being in a situation to benefit from the use of the corpus
of the trust, whether by employment/acceptance at 3rd parties entering into business transactions w/ the
trust, or being in position where personal interest conflicts w/ beneficiaries interest (self-dealing).
- R has conflict of interest in being MNY employed, S self-dealing, L guilty of willful blindness,
should’ve acted w/ due diligence/prudence. Ct awards appreciation damages, the diff. b/w current
market value of the corpus that was sold and market price @ time of sale. Appreciation damages not
normally awarded, but they are for the specific case where the breach of fiduciary duty is for selling for
too little. Also awarded as a policy measure—discourage this breach.
TRUSTS AND CORPORATIONS
WILBER V. OWENS case says.. (p. 817)
- Settlor left money in trust to have his random notes turned into book and published, wanted to further
scientific/philosophical research at Princeton. Notes were unintelligible/of no scientific value.
- Q was whether there was general charitable intent that would let Princeton keep the $ and use for
something else. Ct uses cy pres (P. 13 CL) to construe so charitable intent of party can continue.
- Cy Pres doctrine: If specific intent of the will can’t be carried out due to changed circumstances, the
general charitable intent can replace it. Here, his notes have no value, but will indicates general charity.
- Legal fiction in that the ct’s still construing the testator’s intent, but for public’s interest. Cy Pres could
be argued as a doctrine of waste—trying to ensure efficient use of property of the trust.
- Cy Pres now extends beyond charitable trusts, though in its strict sense it relates primarily to them. US
cts are willing to extend cy pres to non-charitable trusts, but then it’s called ‘doctrine of changed
circumstances, or ‘doctrine of equitable deviation’. Applies same principle of construing intent.
VII. RECORDS AND TRANSFER
NEMO DAT; GOOD FAITH PURCHASER
KUNSTSAMMLUNGEN ZU WEIMAR V. ELICOFON case says.. (p. 885)
- US soldier stole paintings by Durer during Allied occupation of Germany from castle museum.
Undisputed that he stole them since they weren’t transferred to anyone, just disappeared. Soldier sold to
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Elicofon in US, saying he bought them. When E found out they were stolen, went public w/ it, and castle
museum’s successor museum P sues to get them back—E argues he was a GFPV and has title. (p. 13 cl)
- Ds defense is lack of notice, but ct says nemo dat isn’t subject to notice—it’s irrelevant. Notice can
simply be overrun by the fact that a theft voids title to begin with, ab initio. Also, ct here was probably
suspicious cuz D did have reason to know beforehand something was wrong, paintings were too cheap.
- Title in US soldier was VOID, not voidable, because he stole them—GFPV exception doesn’t apply.
You can only transfer an interest that you have, so any transfer of an interest you don’t have is void.
- NY law is like common law in Armory v. Delamirie, a thief can only transfer the title he has, that is,
title against all but the true owner. Small exception to jus tertii rule because Ps true owner’s descendant.
NEMO DAT; GFPV FOR CHATTEL UNDER UCC 2-403
KOTIS V. NOWLIN JEWELRY case says.. (p. 891)
- Sitton bought Rolex from Nowlin by forged check. S sold to Kotis, who called N to see if they’d sold it
to S, but didn’t give his name. N found check was fake, so tries to get Rolex back from K, who says he
was a GFPV, and has good title, since S had voidable title, not void.
- S did have voidable title since he got the watch through fraud (voidable), not theft (void), but K wasn’t
a GFPV because he knew, or SHOULD HAVE known watch was wrongfully obtained when he got it,
since price was exorbitantly low (ct makes big deal of this) and he even called N to see if it was okay.
- For GFPV to apply under UCC 2-403, 3 conditions: 1) voluntary transaction (involuntary is theft,
bailee exceeding authority, this was voluntary), 2) voidable title, 3) GFPV, purchaser must not know or
suspect the goods were wrongfully obtained, good faith = “honesty in fact in the transaction concern.”
- Good faith here is then subjective belief of actual party, but the ct also adds objective and actual aspect
of notice by saying he also SHOULD have known, so they look at facts, and the purchaser’s belief.
- 3 types of notice, 1) Legal Notice: highest form, equivalent of constructive notice, when something’s
registered/recorded. 2) Subjective Notice, opposite end, which is actual notice. 3) Inquiry Notice,
between the two. This is when the facts are such that the law shifts burden on the person whose notice
we’re trying to examine, to go out and figure out whether something was void/voidable beforehand.
- The ct admits that maybe K didn’t have actual notice, but he did have inquiry notice and maybe the
low price could even count as legal notice. So, his purchase was no longer innocent.
- If GFPV under UCC 2-403 didn’t exist, anyone acquiring chattel would have the info cost of figuring
out the chain of title for that, would req enormous expenditure, so this is for the purchaser’s benefit.
NEMO DAT; GOOD FAITH PURCHASER UNDER CULPABLE NEGLECT
HAUCK V. CRAWFORD case says.. (p. 897)
- P, uneducated farmer, sold his mineral rights to D (D fraudulently told P to sign oil/gas lease, and
mineral deed, telling him 2nd part was nothing). D then sold Ps mineral rights to A and B, GFPV’s.
- Although contract normally entered upon fraud is void, here Ps negligence might be at fault. Ps
culpable neglect, another exception to nemo dat, brings estoppel and says a party is responsible for his
own actions, can’t claim nemo dat. Culpable neglect is determined by weighing the culpability of
original transferor against complete innocence of 3rd party purchaser.
- Ct will look at ‘fairness’ and who should bear the loss when determining if GFPV exception applies.
Ct says even when a title is void, they’ll look at GFPV and apply negligence test of due diligence.
- 2 types of fraud: 1) Fraud in the Factum, fraud that goes to the very existence of the transaction or
arrangement, there’s consent, brings void title. 2) Fraud in the Inducement, fraud that doesn’t go to the
basis, but to an issue that’s collateral/supportive of original arrangement. It induces contract, but isn’t
essence of it, brings voidable title.
- This was fraud in the factum. As a consequence, the transfer was void ab initio as a contract. Applying
nemo dat, D had nothing to give to 3rd parties, but culpable neglect provides exception.
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- P should’ve been more careful in what he was doing, should’ve read the whole document. P might be
estopped by culpable neglect from reclaiming the land from the innocent 3rd parties.
- Ct couches this in notice—A and B really had no idea, they shouldn’t suffer and lose their title. Ct is
balancing a 3-party relative wrongfulness question.
- GFPV exception in 2-403 doesn’t apply to land transactions. The fact that land always has recordation
requirement, legal notice, changes how the rule operates. Cts consciously understake a Q of relative
wrongfulness, relative good faith between all 3 parties in question, to determine who gets title. However,
just because UCC 2-403 itself doesn’t apply to land, it doesn’t mean that there is no good faith purchaser
exception for land transactions, and we see that here, where ct did equitable balance of all 3 parties
wrongfulness to decide who gets the property.
RECORDING ACTS / GFPV needs value/consideration
HOOD V. WEBSTER case says.. (p. 924)
- Hood executed her deed to P in 1913, her bro in law, but it’s not delivered to him, held by attorney in
escrow. There’s no recordation, obv since the deed hasn’t been delivered to him yet. In 1928, the grants
another deed for same land to her bro and nephew, Ds, and that deed is recorded shortly thereafter.
- This second deed, with its recording (p. 14 of CL), doesn’t negate the first deed, sitting in escrow,
because Ds deed had no valuable consideration, the deed was only for “$1 and other good & valuable
consideration.” The ct treats that w/ extreme suspicion, and it wasn’t consideration, and so doesn’t meet
the reqs for GFPV.
- When you’re interpreting whether someone is a GFPV, ct takes the “for value”/“consideration” req
very seriously. To meet that category of being a GFPV, you’re held to a very high standard. Reasoning
is that it lets a subsequent transfer dispossess an original person by reference to the idea of notice.
- Since the P is accusing the validity of the GFPV exception, the P ought to, by general logic, bear the
burden of proving the absence. The general rule is that the burden of proof should fall on those holding
the unrecorded deed when a subsequently recorded, with valid consideration, deed, is presented. But the
ct rejects that and shifts the burden.
- They shift the burden so the people w/ the recorded deed, those seeking to rely on the GFPV exception,
need to show by preponderance of the evidence that they did it in good faith, and bought for value, with
consideration, or establish all the elements that go to that status. They did not buy for value, so no!
- This is a question of Race Notice, and looking at the holistic nature of transfers, it’s a fairness
provision. The race notice derives from an incentive of notice. Because of that fairness concern, courts
treat and interpret ‘value or ‘consideration’ very closely. **SHELTER RULE** in concepts list.
DISSENT says..
- P was supposed to pay Hood $200/yr in exchange for land after she died, never fulfilled his end of the
bargain, so never fulfilled his consideration—ct is giving him the farm for nothing. We should look for
the value of consideration for his status of holding the deed too!
- It’s couched in fairness logic in the interpretation of consideration.
RECORDING ACTS / adverse possession v. GFPV
MUGAAS V. SMITH
- Mugaas has claimed land strip thru AP, and is claiming it against Smith. Smith is the transferee from
the true owner, so hes a bona fide purchaser of the land. Mugaas was successful in the claim against the
TO, and she’s bringing action for quiet title and to compel D to get rid of all encroachments on the land.
- D can’t rely on his record title-- AP is not the same as an unrecorded conveyance. AP-er does win
against the GFPV under the traditional common law rule. The GFPV exception under all these statutes
(race, notice) apply only to something which can be recorded, and AP, by its nature, can’t be.
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- D argued that the boundary marker, which existed for the period of the AP, fell down, as a
consequence of which, the possession which was open and notorious as against the TO, is no longer
open and notorious, so the AP-er no longer has possession (esp when haven’t recorded title).
- Ct brings up Tolls v. Hamilton, that if title is acquired by dispossessing someone else, then that title
can’t be abandoned by a mere verbal or oral statement. Something more needs to be done because by
that title, it becomes real title. The rules that apply apply in full measure. It assumes form of regular title.
- P is trying to hold the AP-er’s title to a higher threshold of notice than a regular title, to have a rule that
they have to “keep the flag flying high”, and have to be in AP past the period of SOL.
- Ct says this nullifies the entire purpose of the SOL, so that once they’ve satisfied the elements of AP
past the SOL, they don’t need to be continuing. The AP-er would otherwise be required to have open
and notorious possession forever, which makes the nature of the title very different, where the law
doesn’t impose that kind of obligation.
- The ct instead says that the AP-er has superior title over the GFPV. They can’t be expected to show
open and notorious possession into perpetuity, simply to protect against the GFPV exception. Here, it
applies only to transfers that can be recorded (race notice statute), because in the end it’s about a race,
and as against the AP-er, there’s nothing they can actually record. The race element of the race notice
statute can’t actually be satisfied and that logic being taken to it’s conclusion, the AP-er should win.
RECORDING ACTS
ZIMMER V. SUNDELL
- P and D have claim of same land, both are bona fide purchasers. D won because his chain of title was
recorded before Ps, even though Ps deed was recorded before Ds. Ps deed was a wild deed since the
grantor was a pure stranger to the title, didn’t have a recorded title. P got it because Gauge gave a “quick
claim deed” (tool that says I don’t know what I have, but what I have you can take)  X  P.
- All the transactions were in good faith and without actual notice of the other’s.
- GFPV exception doesn’t extend to a transferee from a stranger. It doesn’t create a subclass, it’s saying
that a transferee from a stranger is NEVER a GFPV under the Race Notice statute. It’s the WORDING
in the statute which creates the discrepancy in how it’s applied to the facts.
- Wild deeds are deeds that can’t be traced to original grantor and P has a wild deed since his chain of
title can’t be established. It’s crucial that in the fugitive deed, McCann is listed as the original owner—
it’s fugitive since he’s in the record book as the original owner, but it’s the quick claim deed from Gauge
to P that he got it. So, it’s wild. Also, this fact gave P notice he was taking from a stranger.
- P brings up Ballis case, ct says, those people are only affected by notice on the record—this statute is
to be construed as to exclude from its protection, the GFPV who purchases from strangers to the title.
It’s the most important principle the ct’s laying down as a recognized exception to a race notice
recordation statute. GFPV exception doesn’t apply to a transferee from a stranger.
- The ct says P had notice that the deed under which she was taking was from a stranger to the property
and therefore, the GFPV protection doesn’t apply, nemo dat does. Also, nothing in the record gave P
reason for reliance upon the transfer from Gauge that Gauge actually had title.
- In all of this, the ct is saying the logic for GFPV comes from actually being able to see a level of due
diligence. The GFPV rule, the ct’s saying implicitly, comes from the idea of notice. It comes from the
recognition that the GFPV has actually examined the record book.
- The logic underlying this is that when theres a fugitive deed that doesn’t sit with the person actually on
record, the GFPV shouldve relied on what was on the record, rather than just the transfer from the
stranger. It creates an exception to the GFPV rule by looking to the logic underlying it, which is the
absence of recordation.
VIII. THE LAW OF NEIGHBORS
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NUISANCE; INTRODUCTION TO EASEMENTS
ADAMS V. CLEVELAND-CLIFFS IRON COMPANY
- Ps sued for trespass and nuisance for dust, noise, and vibrations from D, mining company. Ps suffered
shock, nervousness, sleeplessness, and some said it diminished value of their homes.
- This ct tries to emphasize the main distinction between trespass and nuisance, because the modern
trend in lower courts has compressed the two by looking for actual harm in even trespass before
awarding even nominal damages, which has necessitated balancing exercise even for trespass, taking the
point of protecting the absolute right to exclude. It instead predicates the exercise of that right on the
owner’s ability to justify the exclusion, which is problematic because underlying property law and
ownership, is the reality that exclusion is central to property. Cts now try to keep them separate.
- Trespass is about exclusion and exclusive possession—nuisance is about use and enjoyment. This is a
crucial conceptual difference. Taking this distinction into its operational terms, 2 more reqs added to
both: Trespass needs to be 1) direct and 2) tangible. Nuisance requires 1) proof of actual and substantial
harm, and 2) balancing exercise (Hendricks).
- This ct goes back to Jacques v. Steenberg style, saying the centrality and unconditional nature of the
right to exclude merits protection under trespass law, and infusing trespass law with nuisance (via the
balancing test of proving actual/substantial harm) takes away the whole point of trespass law. The
presence or absence of harm shouldn’t interfere with a decision on trespass—it’s irrelevant.
- So, for trespass, the intrusion needs to be 1) direct and 2) tangible. 1) Directness: Ct adopts the
Restatement (2d 158?), the test for directness is ‘substantially certain’—reasonably knowing that one’s
actions will, w/ high level of certainty, will intrude on another’s land is sufficient for directness.
2) Tangible: An invasion is tangible when it occupies in a way that interferes with owner’s right to
exclude. They take a functional approach—dust particles are technically tangible from a purely scientific
point of view, but they’re not an interference w/ owner’s right to exclude, or by occupying space on Ps
property, but they’re interfering rather w/ the use and enjoyment of it, so it’s their effect, and not their
actual tangible presence that’s the issue, so they’re intangible, and so, this isn’t a trespass, jus nuisance.
- Also, nominal damages are sufficient for the purposes of establishing a trespass—if the invasion is
direct, and there’s even an intangible invasion, nominal damages should be given. If there’s actual harm
sustained, the ct can award actual damages, but they shouldn’t let the presence or absence of actual harm
interfere with its finding of actual trespass.
INTRODUCTION TO EASEMENTS / grants and licenses
BASEBALL PUBLISHING CO. V. BRUTON
- P has a grant of exclusive privilege to use the wall for billboard purpose in consideration for fixed
amount. Agreement gives P exclusive right and privilege to maintain billboard for 1 year, w/ privilege of
annual renewal. The agreement calls itself a lease, so on the formal face of things, this was a lease.
- D doesn’t validate his part of the agreement to let P display his billboard, takes it down, so P seeks
specific performance to keep the sign up.
- Specific performance plays a crucial role in this case, it forces cts to examine what’s going on. Lease
has 3 crucial elements: 1) must be conveyed in writing to comply with statue of frauds, 2) needs to
convey an interest in land, and 3) transfer or conveyance of possession of land. Here, the ct says the
possession of the wall was still with P, there was no transfer of conveyance of possession.
- A license is simply a waiver of the owner’s right to exclude. It converts into a lawful action what
would normally be a trespass. The ct says the essence of a license is its revocability.
- If ct says this is a license, than specific performance is problematic—if permission to use wall can be
revoked, then specific performance isn’t appropriate, it would effectively convert the license into an
irrevocable agreement by saying that you can force the D to specifically perform.
- Therefore, this agreement was not license, but an easement in gross. An easement in gross, by its
nature, is a grant of an interest in land and so for at least the duration of the easement, it’s irrevocable.
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- Easements (p. 15 OF CL!!) can also be created through a grant, which is a deed. A deed by its nature
requires it to be in writing and w/ a seal, it’s not enough to be just written—a deed has to comply w/
certain formalities.
- The ct applies another rule of equity—under equity, a seal isn’t necessary to the creation of an
easement. Equity treats acts as though they’ve been done, when there’s a duty to enforce it, so cts of
equity have developed this bizarre/circular idea that they will treat as done, that which ought to be done.
Basically, if a missing formality is the only reason why the ct won’t enforce a certain agreement, the cts
will deem the formality to have been complied with, and look at substance.
- Since this is an easement in gross, and not a license, specific performance is appropriate.
- Revocability is of essence in distinguishing b/wn a license and easement in gross.
- Sometimes the structure of the grant may simply be a waiver of the right to exclude, since that’s the
essence of what both licenses and easements are. The way to figure out whether something is a license
or a grant, is to look at the totality of circumstances, the nature of what is actually being conveyed, what
the intent of the parties were.
- In Marrone, what Holmes was getting at is that the common law adopts a totality of common law tests
to figure out whether revocability is okay or not. In doing that, they classify something as a license or an
easement in gross, and that explains what the ct was doing here.
- The cts decide not to classify this as a license, because they want to recognize it as a transfer of a
possessory interest, a use interest in the property that’s been granted to someone else. It wasn’t merely a
transitory entitlement, but was something permanent and granted that involved reliance and investment
of time, resembling a conveyance,so the ct treats it as an easement in gross, instead of a mere license.
FONTAINEBLEAU HOTEL CORP. V. 45/25
- P and D (Font) are luxury hotels in competition. D wants to construct tower that would cast shadow
physically on the Ps swimming pool, creating problem for their sunbathers.
- P brings COA as interference w/ a negative easement (light and air), and also say it’s a prescriptive
easement, which is an easement that comes into existence just like AP, w/ same 5 elements, it results in
the transfer of an easement from grantor to grantee.
- Lower ct uses legal maxim (not source of law) as basis for giving injunction, Sic utere tuo ut alienum
non laedas—you can use your property however as long as you don’t injure the lawful rights of another.
- Ct of appeals looks at where lawful rights come from, since that has to be shown as injured. Ct says 3
sources of lawful right which can sustain a COA are: 1) statutes, 2) contract, or 3) common law.
- No common law which upholds an easement to light and air—doctrine’s based on sunlight in terms of
blocking windows, and this shadow on a swimming pool is slightly different. Also, it’s not a prescriptive
easement, because the statutory period was for 20 years, and that hasn’t been satisfied.
- The ct’s reluctant to recognize a prescriptive, negative easement beyond what cts have already
recognized because they’d have to prove that over the 20 years, the non-interference w/ sunlight was
done out of a specified obligation, and not done just by chance. It’d only be an easement if it was not
interfered w/ because of obligation, and not just the happenstance absence of a construction. You can’t
say that just because someone hasn’t constructed something, that it results in a prescriptive grant, unless
they knew they couldn’t do it and consciously refrained. It’s an issue of NOTICE!
- The law is reluctant to expand this category of negative prescriptive easements, because it raises the
notice issue of why the person didn’t construct something. The ct refuses to let this be their COA here.
- Affirmative prescriptive easements on the other hand, provide some kind of action to the true owner
about what a person is doing, making it capable of being prevented, and if you don’t prevent, the
owner’s making a conscious decision, unlike a negative easement.
- P also can’t say ‘setback rule’ (has to do w/ how far buildings are from ocean)—D already built 8
floors, so they’re relying on setback rule to achieve an ulterior purpose. Not allowed to do this under
equitable doctrine of laches, one who sleeps on their rights shouldn’t be allowed to enforce it later on.
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CREATION OF EASEMENTS
SCHWAB V. TIMMONS
- P requested an easement by necessity or by implication over property owned by D in order to gain
access by public road to his landlocked property. P had split up his property and sold this portion of it.
- Creation of an easement through reservation—transfers property from one party to another, but the
grantor reserves an easement in the property before granting it.
- Easement by implication: 1) separation of title, single parcel of land divided into two or more, but 2)
there was a use in place before the parcel was severed, that 3) was so manifest over an extended period
of time before the actual separation, that intent that the grantor meant to keep using that part of the land
given away, is clear. This is similar to prescription--needs to be manifest in use, which indicates it’s
about notice, but in this case, unclear whether the notice is to the owner, or servient tract.
- Ct says original grantor didn’t use byroad enough that there was continuous use obviously manifest.
- Necessity: 1) it should be so clear/absolute that w/out easement, grantee can’t use the property granted
to him for which it was granted, and 2) the landowner has to sever landlocked part of his property.
- He says there’s no way to access the roadway, there’s a bluff which makes physical access, though
possible, very problematic cuz of the geographical construction. Construction of road to get around it
would be 750K, unreasonable, so they want easement instead. Ct says merely because there’s a
geographical constraint, doesn’t mean there’s no access—this isn’t sufficient to call for an easement.
- It needs to be landlocked starting from the point at which they were grantees—the conveyance needs to
be the basis by which a landlocked piece of property was created. Here, it was granted to them while it
wasn’t landlocked. It’s by subsequent grades they made that it became landlocked. So, it’s their fault,
and the ct won’t allow them to remedy what was essentially their own fault, by recognizing an easement.
- P wants an easement created not by reference to a voluntary agreement, but ex-post. Ct says no, that
would be a drastic expansion of common law, and against policy. Expanding easements to cover this
would result in hidden easements—we would retroactively, by doing an ex-post cost-benefit analysis,
impose an easement, so parties wouldn’t know beforehand there is one; no notice! Courts are reluctant
to treat the 3 elements for easement by implication, and 2 for easement by necessity, lightly—they’re
held to a higher standard before giving them out.
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