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    Paul Davis Blais Spring 2009Property OutlineTypes of Legal Arguments:

    a. Authority: custom, precedent, learned juristsb. Consequential/instrumental (policy): because we want a certain outcome

    c. Administrative ease (e.g. rules are simpler to apply than standards)d. Foundational principles (e.g. first in time; rewarding labor; fairness)e. Institutional competence (Pierson dissent: we have no expertise defer to sportsmen.)f. Institutional legitimacy (Sipriano: its for the legislature, not the court, to make that

    decision.)g. Legislature is more institutionally competent than court because courts can only settle

    disputes, legis can solve problems with any way that they need to

    I. The basis of property rightsa. Property: a definition of relationship between two parties with respect to a thingb. Theories on property rights

    i. Lockes labor theory because you own your own labor (a natural lawtheory), when you mix that labor with something unowned by anyone, youown the resulting mixture

    ii. Utilitarian theory we accept legal protection for others property becausewe desire the same protection for our own

    iii. Economic theory property is an efficient response to scarcity1. Externalities (costs produced by an activity, but not borne by the

    person reaping the benefits of the activity) are internalized to makethe production of goods needed for human life more efficient

    2. A farmer wouldnt go through the process of planting and harvestedcrops unless he knew that he would own the crop

    c.Discovery and conquesti. Valid title trumps possession, peaceable possession trumps other claims

    ii. Johnson v. McIntosh - Indian land case1. First in time claim v. discovery, conquest, and sovereignty2. Piankeshaw Indians were 1st in time because they discovered the

    land, but court held that they only had aboriginal title to the landmeaning right of occupancy only since they didnt makeimprovements to it, only wandered, hunting and gathering

    3. Marshall holds US derived valid title as successor to Europeandiscoverers and because US had conquered the Piankeshaws

    4. Conquest rights trump 1st in time Marshall relies on internationallaws of discovery and conquest

    5. M wins as a matter of law not fact J was actually FIT but M waslegally FIT

    iii. Important Themes fromJohnson (these are common issues in propertycases)

    1. Chain of titlea. You have to trace back how you got the land

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    b. P1P2P3P4: no one can pass forward better title thanthey had, so P4 cant have more than P3

    c. Indians couldnt convey the title because they didnt have it2. severability of title

    a. Ownership is an empty concept, its a BUNDLE of rights

    b. Major rightsi. use and enjoy,

    ii. possess,iii. convey,iv. exclude

    3. relativity of titlea. Your collection of rights DEPENDS on who is claiming

    against you4. possession is a matter of LAW, not fact

    a. Piankishaw LOOK like they have possession in laymansterms, USSC says no

    5. in assessing possession some facts matter more than others6. sources of property rightsa. Natural law: sometimes usedb. Positive law: more often used

    i. Through agreementii. From the sovereign

    iv. First in time very important concept1. Locke says that FIT is 1st person to invest resources in land2. FIT is important because it decreases altercations over property3. It encourages settlement of unoccupied land4. Has a longstanding tradition

    5. Drawbacks of FITa. Encourages people to do something to the land that mayactually devalue it just to prove that they were there

    b. Rewards the lucky finder when he may not have incentive toimprove the land

    d. Capturei. Rule of capture fromPierson v. Post

    1. To gain a property right in a wild animal, one must actually captureit or reduce it to certain control by either trapping or mortallywounding it and staying in continued pursuit (depriving it of itsnatural liberty)

    2. Mere pursuit is not enough3. Dissent argued from public policy standpoint that it was better to

    adopt the customs of the sportsmen in this case which was to let theparty in hot pursuit kill and possess the fox this would give betterincentive to more fox hunts because it is an expensive endeavor andbetter extermination of foxes we dont want Pierson to prevailwhen Post has done all the work

    ii. Custom from Gehn v. Rich

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    1. Court says that in this situation, we should look to custom ofindustry instead of rule of capture

    2. Ghen had constructive possession by leaving the distinctive lance inthe whale according to industry custom this served public policyby providing needed whale oil

    3. What circumstances makes this approach appropriate?a. When its application is limited to the industry and limited tothose working in it

    b. When the custom is recognized by the whole industryc. When the custom requires in the first taker the only act of

    appropriation that is possible (harpooning the whale andletting it sink to the ocean floor)

    d. When the custom is necessary to the survival of the industrye. When the custom works well in practice

    4. Few customs survive these tests courts are suspicious of customsbecause often they are self-serving and not beneficial to society

    5. Why does custom prevail here and not in Pierson?a. Efficiency not very efficient to make whalers wait aroundfor body to surface when they could be hunting

    b. Fairness salvages at least get a salvage feec. Survival of industry may depend on it Blais says this is BS

    consequentialist argument likely the economics of theindustry would simply change

    iii. Policy ends in property rights Keeble v. Hickeringill1. Keeble was running a socially useful business in putting ducks on

    English dinner tables2. H maliciously interfered with the business of K by scaring the ducks

    this was the main reason for the decision, not constructivepossession, H committed a tort against K by his maliciousinterference

    3. Court compare to starting a competing private school you can actin good faith to recruit teachers and students, but you cant lay inwait to scare them away with guns so they go to your school theducks can be lured away and they will be wild again, but H was amalicious interloper

    e. Application case Popov v. Hayashi (the baseball case)

    Barry Bonds home run ball, estimated at time to be worth 1 million. Hits Popovs glove, then hesmobbed and evidence unclear; ends up with Hayashi. Baseball team relinquishes ownership whenball flies into stands, so its wild and un-owned while in flight.

    Possible rules to apply:1. Rule of Capture (Pierson): first capture, or wounding plus continued pursuit.2. Keeble: the effort to secure property for socially useful purposes should be protected

    against malicious interference.3. Possible exception to 1.) to take account of particular customs.

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    Since Hayashi now has ball, Popov must sue to assert rights in it.

    Popov arguments: (from class)P arrested flight of ball, thus depriving it of its natural liberty (balls motion being what

    justifies analogy to wild animal). He attempted to continue pursuit of it, and would have capturedit but for malicious interference by mob. He acquires property right by first possession.

    Analogy: ownertrespasser 1trespasser 2 is like

    PopovmobHayashiMust the malicious interference be by the defendant(of which there was no evidence), or can itbe by third parties?

    Social interest: preventing/not rewarding mob violence.Sportsmen custom: no reason why rules of baseball as applied to players (catch and

    secure) should apply to spectators the stands are not the sport

    Hayashi arguments: (from class)

    The custom of the sport (baseball, and also most other sports that involve catching balls) isthat it only counts as a catch if it stays in the hand i.e. catch and secure it. Custom also bindsthose in the stands they behave a certain way when a home run is hit. (Also, its assumed thatthose in stands are baseball fans and therefore familiar with rules and customs of the sport).

    Analogy: ownertrespasser 1trespasser 2 is like

    Barry BondsPopovHayashiSocial interest: either way, someone gets a million dollars society doesnt really care

    who gets it. Typically there will be a mob scene in the stands regardless of whether the ball staysin first persons hand.

    Actual case:

    Judge found Hayashi possessed it, but Popov had quasi-property right in it. H was to sellit and split proceeds with P. Ball actually sold for only 450k (time had passed while case in court,and the then-record homerun had since been surpassed). Popov got 225k, but owed 475k to hislawyer, who sued him! (Ps lawyer on hourly, but Hs on contingency.)

    b. Hammonds v. Kentucky what happens when oil or NG is pumped back into acavern *NOT CURRENT RULE*, illustrates tragedy of commons

    i. It cant be trespass on anothers land because it returns to its wild statewhen pumped

    ii. It become like a wild animal again and landowner could capture it bydrilling and pumping it out

    iii. CURRENT RULE: modern oil and gas rights in most states allow the

    injecting company to continue to own the oil or gas and it is not a trespassiv. Kentucky Oil loses their oil because of the new rule, fair because the court

    has to rule to change law over timev. Kentucky should just go back to 1st principles and argue that the rule for

    trespass shouldnt apply here because it really isnt interfering withHammonds right to exclude. . . she isnt even using the underground, justwants rights to the oil

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    c. Tragedy of the commons basically means whatever resources you can capture,you can take full advantage

    i. When resources are commonly owned/un-owned and subject to rule ofcapture, sometimes incentives facing the owners leads to an overuse ofresources which is socially inefficient

    ii. Sum of privately efficient behavior makes society worse off. Individualshave incentive to use up common resources, not conserve them. Incentivesare efficient for each actor but inefficient in aggregate

    iii. Externality: cost or benefit of market transaction affects people who are notpart of transaction. Incentive is for each owner to pump as fast as possibleto maximize own share. But dumping too much on market at oncedepresses price, hurts all producers.

    iv. Not all externalities lead to tragedy of commons only if externalizedcost exceeds the overall social benefit of the resource use.

    v. Alternatives to commons:vi. Assign Divisible Property Rights : division of land into individual plots,

    separately fenced. Now that owner bears full cost of waste within ownland, will act more cautiously. This works e.g. for grazing on surface land(enclosure) but much more difficult for free-flowing or undergroundresources. In this regime, there are still enforcement costs but they areexternalized to society in general (upheld by the legal regime thatsupports private property rights).

    vii. State regulation ; limits to pumping.I. Delegates some sense of entitlement to common ownerII. Disadvantage: state regulators cant efficiently know what

    something ought to sell for without info communicated by markettransactions.

    III. Also costs of monitoring and enforcement; problems of regulatorycapture.

    viii. Private Agreement among owners: they can pay each other not to useresources.

    I. But the more parties involved, the more difficult to reach ageement.II. Enforcement and monitoring costs escalate because single cheater

    can wreck entire system.III. Last holdout to bargain can hold everything hostage, demand

    disproportionate compensation.IV. Strategic bargaining: not everyone will sell their interest forexactly

    what its worth to them, but will try to get more (rent seeking).Some will try to pay less than their share of the costs (free riding).

    ix. Sipriano v. Ozarka court uses precedent and appropriate authorityargument to hold off changing Texas water rule from rule of capture to ruleof reasonable use

    I. Types of Legal Argument:a. Authority: custom, precedent, learned juristsb. Consequential/instrumental (policy): because we want a

    certain outcome

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    c. Administrative ease (e.g. rules are simpler to apply thanstandards)

    d. Foundational principles (e.g. first in time; rewarding labor;fairness)

    e. Institutional competence (Pierson dissent: we have no

    expertise defer to sportsmen.)f. Institutional legitimacy (Sipriano: its for the legislature, notthe court, to make that decision.)

    II. Legislature is more institutionally competent than court becausecourts can only settle disputes, legis can solve problems with anyway that they need to

    d. Creation: Moore v. Regents of UCi. To what extent does a person have property rights in their own body?

    ii. Case of 1st impression and Moore argues from publicity laws saying thatyou own your persona and may be compensated for use of your likeness

    iii. The issue is a conflict between Moores right of first possession of his body

    parts (from Lockes premise that we own ourselves) with the scientistsright to own the unique cells developed from Moores voluntarily discardedspleen

    iv. Majority:I. Moore never had the right to sell his spleen anyway, so he didnt

    own it in the sense of having the right to profit from it after he haddiscarded it

    II. Policy reasons:a. 1) market for body parts which freaks out the courtsb. 2) conversion is SL and unknowing subsequent users of his

    cells would be on the hookc. 3) bad for biotech industry, would chill medical research

    Blais says that cell labs keep records of cell lines anywayIII. Why you dont own your spleen:

    a. 1) court cant extend from persona rules, not close enoughb. 2) no precedentc. 3) state stat limits patients right to removed body partsd. 4) even if you had property right in spleen, this is a cell line

    FROM your bodyIV. Reasons from body parts statutes couldnt keep his spleen for

    public health reasons anyway, so he doesnt own itv. Dissent argues that just because you take away some of the property rights

    sticks doesnt mean you have to take all of them awayvi. What should the legislature do about a market for organs? Would this be

    efficient?e. Finders

    i. FINDERS RULE: finder has superior claim as against anyone except thetrue owner (and prior peaceable possessors) fromArmory v. Delamirie

    ii. Why do we do the finders rule? - Protects TOs:

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    I. If you had to prove you were the TO to protect against theft,nobody could prove they owned anything, useless investment insecurity

    a. Opposite rule would incentivise theftII. Makes it more likely TO will get it back

    a. Honest finders are OK with returning to TOs but not othersIII. decrease constant takings by finders from other findersIV. preserve social orderV. encourage use of object by TO: dont fear theftVI. rewards and encourages honesty in finders

    iii. Applications:I. F1 vs. F2: if F1 loses it, and can prove prior possession, good claim

    vs. F2a. Finder 2 cant defend based on Finder 1 not having title

    reference to rights of third parties (jus tertii) disallowedunless you can prove you havesucceededto the title

    II. Thief v. F: if the thief had prior peaceable possession, will win vs.all but TOa. finders and current possessors should not have to bear

    burden of proving that theyre not thievesb. If thief keeps it, that keeps item one step closer to true owner

    who could recover it more easily from the thief (assumingtheft proven in court). If theres sufficient evidence toestablish the theft, then you can probably figure out who itwas stolen from.

    c. But in practice, judges dont want to knowingly reward athief and will probably look for ways not to

    III. Cant always tell who is honest, dont want to encourage chain oftheft

    IV. TNIP: transferee never in possession wins over finder/thief becausethey CAN use jus tertii claim of TO, TNIP has valid title

    V. B sells to C, C loses, D finds. Can B sue D as prior possessor? No when you transfer title, you give up all prior possessor claims.Once title transferred, seller/giver cant then make a claim on it,either against B or against a finder or thief nonderogation of thegrant.

    iv. Problems in Trover - What about Finder cases where money sought asremedy, rather than return of item? More complicated how to figuredamages?

    I. Armorie v. Delamiriea. Only the jeweller can show how much jewel was actually

    worth, but as D we cant take his word for it.b. So court will charge D for maximum possible value unless D

    produces actual jewel this compels/encourages D toprovide information and also serves as punishment if hedoesnt.

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    c. Can the TO sue D (the goldsmith) in Trover if D paid troverdamages to P (the sweep)?

    i. Yes, D will then acquire TOs rights to the jewelthrough subrogation and he can sue the sweep toput the parties back in status quo ante since the TO

    had superior claim to sweepii. Some courts may apply the Winkfield Doctrine andonly let TO sue the sweep to put parties back instatus quo ante

    iii. Do some jurisdictions let the TO choose? Ask BlaisII. The Winkfield Doctrine

    a. If bailor entrusts property to bailee, and then a wrongdoerinjures property, and bailee receives compensation, thenbailor must recover from bailee only. Wrongdoer has thedefense that hes already paidcompensation for what hetook. But thats if the bailment was voluntary it puts onus

    on owner to choose his bailees more carefully.b. So what if it was involuntary, resulting from loss or theft?Its still an incentive not to be careless with your stuff.

    v. Finders vs. Landowners - What rights to the owner of the locus in quo(owner of premises) where item found?

    I. Hannah v. Peela. Finder wins inHannah because court classified it as lost;

    assumed lost for long period of time;b. finder behaved honestly;c. premises owner never occupied premises (so no

    constructive possession) and never knew jewel was there.d. Implication is perhaps court would have decided differently

    if any of these factors had been differentII. Rules of Finder vs. Owner locus in quo

    a. If item is lost (the TO unintentionally and unknowinglydrops or loses it), finder wins unless (b/c we want toencourage finders to be honest and not hide their find so itmay make it back to TO):

    i. Finder is an employee acting for the benefit of theemployer

    1. Some courts award item to employer2. Other courts only require this if the item was

    found in a private and not a public area (ieitem was found in hotel room and not lobby)

    ii. Object was found by a visitor in a private area ofpremises (ie private office vs. sales floor) somecourts award these items to OLQ

    iii. Finder is a trespasser item goes to OLQiv. Invitee/licensees on property for limited purpose

    argument is that they were not there for the purpose

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    of recovering items and court may award to OLQ(this could cover everyone though, effectively theOLQ usually prevails against a finder)

    v. Item is found in a residence goes to OLQ (Hannahis an exception because no one was actually using

    the premises as a residence)1. We dont want guest finding theoccupants computer and claiming it as hisown

    vi. If object was embedded in soil and is not treasuretrove, it goes to OLQ

    b. If item is mislaid (intentionally placed in a location and thenleft), item goes to OLQ

    i. TO may return to premises to reclaimc. Treasure Trove means that the item has been buried or

    intentionally concealed for an OBVIOUSLY long time and

    it is clear that the TO is deadi. TT must be obvious or it is probably mislaidii. Goes to finder

    d. Abandoned property goes to finder (FIT argument?)i. 2 elements

    1. Act of abandonment2. Intent to abandon

    ii. Difficult to prove, mere passage of time does notgive rise to abandonment (Blais says court will lookat the passage of time as evidence though)

    e. Policy Rationale we try to do whatever seems most likelyto get the item back to the TO

    f. Adverse Possessioni. Element of an AP claim:

    I. Expiration of the SOLII. Adverse Possession

    a. Actual Possession SOL begins to run upon actual entryand possession

    b. Exclusive Possession did the AP possess the property tothe exclusion of the owner and the public? May givepermission to others and TO to enter, but has to treat theland as a TO would

    i. Two or more APers acting in concert can both APthe land in concurrent ownership

    ii. A prior AP can eject subsequent trespassers andoccupiers

    c. Open and Notorious Possession the AP must be readilyvisible to any inspector of the property so as to give notice tothe true owner of the AP

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    i. Some JDs hold that a minor encroachment, such asthe 15-inch steps inMannilo v. Gorski is not openand notorious

    ii. InMarengo v. Ross - the court held that theunderground use of a cave did not qualify as open

    and notorious since it is not readily visible to anyinspector of the propertyd. Adverse or hostile possession means without the owners

    permission, and a claim of righti. Claim of Right 3 standards for this:

    1. 1. Aggressive trespass: Maine Doctrinedoes not allow mistaken belief must bedeliberate. But why give more rights todeliberate wrongdoer than to good-faithmistake?

    2. 2. Good faith mistake. Why not follow this

    rule and always reward good faith? Becauseit would require inquiries into intent and stateof mind, which are often difficult to prove.Also, your state of mind probably evolvesover long period of time.

    3. 3. Objective intent irrelevant.Connecticut Doctrine: the act is enough,no inquiry into intent. But this could rewardwrongdoers in some cases.

    e. Continuous possession must occupy the property ascontinuously as would a reasonable and average true ownerof the property

    i. An AP using property as vacation home is still actingas a true owner of a vacation home would Howardv. Kunto

    ii. Purposes of CL elements: protect owner from losing property w/o notice,encourage APers to make reasonable investments, allow them to use it likeTO

    iii. Policy Reasons for API. To punish slothful sleeping ownersII. To reward those who use land productivelyIII. To settle disputes and quiet title for those who have occupied the

    land as if it were their owniv. Color of title good-faith use of a flawed written instrument.

    I. Usually brings benefits like shorter statute of limitations; thepossession could be constructive, not nec. actual.

    II. Usually, its when the AP has a deed to the property that is defectivein some way.

    III. Effects:

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    a. AP normally only gets title to the part of the property that hepossessed, but color of title means that he constructivelypossessed the entire propert

    b. Exception: if the TO possesses another part of the property,the TO has constructive possession and AP only gets to keep

    the part he actually possessedv. Tacking an AP can tack on to a previous AP if there is privity (reasonableconnection) between them (Howard v. Kunto)

    vi. DisabilitiesI. Types of disabilities:

    a. Minorityb. Mental Illness (incapacity)c. Prison Termd. Military Service (some jurisdictions)

    II. Effect the SOL tolls until the disability endsa. TO only gets 1 disability

    b. Disability must begin before the AP enters the landvii. Lifetime Ownership when the TO deeds the property to another, butspecifies that the property will pass to someone else (the remainderman)after that person dies

    I. If the AP enters after title passes to LTO, the SOL tolls until theremainderman takes title to the property

    II. If AP enters before title passes to LTO, the SOL runs against theLTO and then the remainderman if necessary

    III. Reasoning: we dont want the remainderman to find upon takingtitle that the APer actually has gained title, but if AP entered prior toLTO, the AP gets claim to the TOs title

    viii. AP of ChattelsI. when you apply the open and notorious standard for chattels, it

    doesnt work nearly as well as with real property:a. if you make the person use it like a similarly situated TO

    would, the real TO will never find itb. BUT if you do something else that gives more notice to the

    TO you may harm GF purchasers of lost/stolen propertyc. burdens the possessor if NOT the finderd. the current possessor MAY NOT know that they are not the

    TOe. with real property, the TO can just go look and see if

    somebody else has their property, BUT with chattels, if youhave lost it or it has been stolen from you, you have no ideawhere it is while SOL is running

    II. so SOL does not start to run until the action accrues: 2 rulesa. Demand and refusal the TO must demand the chattel back

    and the AP must refuseb. Due diligence the statute tolls for the period that the TO

    diligently searches for the chattel and the SOL runs when the

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    TO gives up the search the TO bears the burden of proofon the due diligence

    III. Even a thief can ripen possession into ownership if they outlast SOLII. The Scope of property rights

    a. The right to exclude

    i. Related to boundaries and trespassii. Pile v. Pedrick1895. the encroaching wallI. Encroachment was 1.5 inches, and underground! (Pile is clearly

    bothered by having a big factory next door.)II. Court gives P absolute right to exclude, no matter how trivial the

    encroachment; typical of 19c thinking.III. Court does not want to except or weaken the rule in any way. In

    20c, neighbors build houses on smaller lots much closer together,more need for compromise?

    IV. Options:a. Property rule: injunction. P could sell the injunction, i.e.

    sell D the right to encroach, or could demand removal.b. Liability rule: damagesc. Inalienability: court can give the right to one party or the

    other, but prohibit them from selling or transferring it.d. In practice, D would usually settle for anything less than the

    full cost of removal (in this case, full teardown/rebuild) butcourts wontforce such a compromise.

    e. Adverse possession issue doesnt arise, because P objectsimmediately while its still being built.

    iii. Jacque v. Steenberg Homes - J refuses Ss offer to pay him to drive acrosshis lawn to move a house, S waits til J isnt looking and does it anyway, Jsues S, wins $1 in actual damages, but $100K in punitives, upheld on appfor deterrence reasons

    I. Trespass was transitory and wont recur, so removal injunction notan available remedy. Presumably Steenberg already fixed anydamage to yard, or else damages would have been more thannominal.

    II. $100k punitives awarded as deterrence; trespass shouldnt pay.Compensatory damages should equal penalty times chance ofgetting caught;

    III. this should at least equal the cost that the trespass inflicts on society.But punitive is meant to over-deter, otherwise people could chooseto trespass and pay damages, and the property rule becomes aliability rule.

    IV. Applicable rulesa. Liability rule: $ (you have to put up with torts then get

    damages)b. Property rule: injunction (you do NOT have to sell the

    right, if you do want to sell it, you get to set your price)

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    c. Inalienability: not a saleable right even if you WANT tosell it (eg: right to vote)

    iv. Holden v. Lynn 1911I. Right to exclusion is not based on ownership, but on possessionII. Guy leasing land from Osage Indians is storing corn, another mans

    cattle escape and eat his corn, lease invalid, but even if he was atrespasser, he would still winIII. because Lynn didnt have a valid lease, does that mean he didnt

    have right to exclude? Court says: mere possession is enough toprevail over wrongdoers and trespassers, so as to protect true ownerswho cant readilyprove their right. Jus tertii: weakness of Psproperty right is not relevant to his case against D trespasser.

    IV. Why didnt Lynn just sue for damages to the crops, as personalproperty? Probably because trespass action with regard to landallows stronger remedies, more damages.

    v. Right to exclude is central to other property rights.Some other countries

    (e.g. Sweden) dont emphasize this public has general right of access toall outdoor land, subject to exceptions.)vi. Exclusion is not just about economics and efficiency privacy becomes

    more important as parcels shrink; small suburban backyard is much morelike part of your living space, so trespass feels much more intrusive, than onlarge agricultural parcels. Less emphasis now on productive value of land,more on intangible privacy value.

    vii. Exceptions to right to exclude: only a very few in common lawI. NecessityII. nuisance abatement

    viii. You can sell/license exceptions to let people in, but licenses usuallyrevocable.

    b. Limitations of the right to excludei. Right to exclude is not absolute, limited by CL, statute, Govt Action, State

    constit, Fed Constit - These exceptions dont come muchii. Common Law Limitations

    I. State v. Shack - Can govt workers in the course of implementingprogram for workers trespass on the private property of anagricultural company where workers live on their land? - Court: yes,since congress has mandated the programs the company may notexclude

    a. BUT they dont limit to govt employees: charitable workers,farm workers may have guests, information providers, pressmay also enter

    b. Balance between rights of company and rights of workersc. WHY: migrant workers LIVE there, poor, isolated, easily

    exploited, undocumented, unlikely to be able to prevent owninterests

    d. Also, here the farm has some functions like a municipality orat least a company town

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    e. Opinion does notgive us a clear rule for when accesswould/wouldnt be mandated.

    f. Here, fed statute establishes strong public policy interest inproviding services to these people. (Without statute,argument could still be made, but would have to work

    harder.)g. Migrant workers especially unlikely to be able to find theseservices without help, or even know about them. Thereforethere is no other way of delivering essential services withoutletting service-providers enter land and knocking on doors.(So, ground the decision not in individual rights but instates general duty and power to look after health andwelfare of citizens.)

    II. Public Trust Doctrinea. certain lands (tidal) considered to belong to the people

    claimed by state not for governmental use but because

    everyone wants to use it.b. Traditionally, navigable waters and adjacent lands.c. Original purpose was to keep it open for critical

    transportation (esp. before rail and hwy), fishing etc. atraditional natural law principle.

    d. Matthews v. Bayhead NJ 1984: Court had already ruledthat municipally owned beaches were open to all, not justlocal residents; and wet part of beach theoretically hadalways been open. But mustprivate owners allow accessthrough their land to reach the wet zone, or can they excludefrom their dry-sand areas? Recreational use would beimpractical if beach bums dont also have some dry-sandarea.

    i. Bayhead was an Assn, not individual owner itcontrolled (by title or by lease) 1.5 miles of beach.This was already used in quasi-public manner, soprivacy not as strong an argument as it might befor individual owner.

    ii. So what rights would individual owner have?Depends on:

    1. Nature of owners use how exclusive has itbeen?

    2. Whether other access routes to the tidal zoneare sufficient.

    3. Does owner provide amenities (showers,umbrellas etc) and charge for them; i.e. doesownermake a livingoff of beach use, like ahotel or resort?

    4. Extent of public demand: how great is theneed for this beach?

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    5. Location of drysand area in relation toforeshore: is there adequate space forrecreation without using the privately-owneddrysand?

    6. NJSC: if you dont allow public access to dry

    sand this right is less safe and less fun, youhave to be able to rest after swimming on thedry sand

    7. Bayhead is a group of landowners acting likea municipality, so court treats them like amunicipality

    8. BUT there is still a reasonable right toexclude, balancing of interests, eg is therepublic access nearby?, what is the TO using itfor?

    e. Other public trust policy issues:

    i. In Texas, on Gulf Coast: public trust extends tovegetation line, often much further inland than tide-mark, because beach itself is used as transportationroute (coast runs in straight line here, unlike Atlanticshores).

    1. What if youve built your house right on vegline, then storm wipes out veg another 100 ftback? Can state claim right of way throughyour house? What if veg then grows back?

    ii. Other public trust uses: California extends it tolakes that are used for drinking water.

    iii. Some advocates think it should extend to things likeviews (e.g. clear skies, being able to see all the wayto the mountains.

    iv. Legislature cant alienate public trust (seeIllinoisCtr. RR. v. Illinois 1892); Illinois could haveauthorized private co to build docks and warehouseson waterfront but cant sell waterfront itself.

    v. More recently, access forrecreation becomes moreimportant; now recognize public trust interest inrecreation. For this purpose, adjacent dry land andaccess routes overland are more important than theywere for navigation use.

    iii. Legislative limits on the right to excludeI. Maguire v. Yanke (Idaho cattle trespass, fence-in vs fence-out).

    a. Fence-in: rancher is responsible for keeping beasts fencedin; liable for damage they cause.

    b. Fence-out: farmers must fence land to keep cows out, orelse rancher not responsible.

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    c. Western cattle states have fence-out rule that reversestraditional English commonlaw fence-in rule.

    d. In Idaho, land arid so very large expanses of land needed tosupport cattle requiring these to be fenced would be veryburdensome for ranchers, esp where wood in short supply.

    e. Legal fence rule: so that farmers wont have to spend $$making fences absolutely impenetrable, law sets minimumstandards for fence: any properly maintained fence meetingthis minimum is good enough to shift liability onto therancher. Maguire had a fence, but it was in disrepair and nolonger met legal standard.

    f. Exception to rule: special Herd Districts could be created(by majority of landowners owning majority of land) inwhich rule is switched back to fence-in.

    g. No Herd District here, but Maguire argues that this area wasfence-in by custom, and lower court agreed. Statute says

    no herd district can be imposed on land that has been openrange, and this land was not open range. But AC says thisdoes notmean that any land not open-range is thereforefence-in, otherwise that would defeat the purpose ofrequiring herd districts to be expressly created by majorityvote. TC erred by believing that statutory def of openrange was a limiton area where cattle could wander, but infact it was intended to limitscope ofrestrictions on ranchers.

    h. Yanke was required by his lease to keep cows fenced in but the lease duty is only owed to his landlord by contract,not to the general public, so Maguire has no claim on this.

    i. Trespass across highway: rancher is responsible foraccidents caused by cows on road (unless road goes throughopen-range area). But again, this duty is owed only tomotorists on the road, and does not give Maguire a claim fordamages by cattle that had crossed road to get to his land.

    II. Coase Theorem: efficient bargaining, allocation of resources. Itdoesnt matter to society whether farmer or rancher gets theentitlement (assuming no transaction costs), because parties will justrenegotiate the costs. Assume crops worth $50, cows $100.

    Example:Right to Exclude (Fence-in) No Right to Exclude (Fence-out)

    Cows destroy crop Cows destroy cropRancher liable Rancher not liableR pays F $50 to compensate No compensation to FR gets $50 for cows R gets $100 for cowsF gets $50 F gets $0Society gets $100 worth of cattle Society gets $100 worth of cattle

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    Fence out regime:

    rancher not liable

    Fence in regime:

    rancher liable for $

    damages

    Fence in regime with

    injunction vs. rancher

    instead of damages:

    Rancher $100 of cattle $100 $100-$50=$50

    ($100 of cattle minus$50 damages for hay of

    farmer)

    Rancher pays $50+ tofarmer

    (enforceable injunction,so rancher will pay up tohis profits), does $100 of

    cattle

    Farmer $50 of hay $0 $50 (from rancher for damages)

    $50+ dollars

    Net to society $100 worth of cattle $100 worth of cattle $100 worth of cattle

    a. people will just transact around the legal rule and society

    will end up with the same net result (assume no transactioncosts)b. only works if there are no transaction costs and you dont

    care about fairness to the partiesc. f there ARE transaction costs, you have to see if they make

    the allocation sticky in one direction or anotherd. Coase wanted to show policy makers that they had to divide

    their inquiry into multiple componentse. given the allocation and distribution we want and the likely

    transaction cost, what should we do to create the result wewant

    f.allocation and distribution BOTH matteri. Allocation (what is used to produce what) is same,

    but. . .ii. Distribution (who gets benefits) is different:

    allocative efficiency vs distributive consequences.g. But in real world, there are always transaction costs look at

    how these do operate and what can be done to reduce them.iv. Constitutional limits on right to exclude

    I. Before mid 20c, fairly little jurisprudence on this. Early 20c (Lochnerera): greater emph on freedom of contract.

    II. Only in 1939 did court rule for first time thatpublic municipalitiescouldnt prohibit speech on streets and sidewalks.

    III. From 1940s to c.1985 (i.e. pre-Scalia): less concern for property rights.More for civil rights

    IV. Property rights were the dominant rights until the 1920s, freedom ofspeech emerged in the 20s, and gain prominence over property rightsafter the New Deal

    V. Constit limits dont normally apply vs. state actors, but when its privateland partly open to public we treat it differently (sometimes)

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    VI. Marsh v. Alabama (1946) Company town, pretty much like an entiretown, but wholly-owned by single private corp. Opinion by JusticeBlack.

    a. M is Js witness passing out lit in company town, refuses toleave when asked, charged with trespass

    b. Because the company town functions like a municipality, court

    treats it like a govt actorc. Residents of company town not treated differently than those of

    a normal town, the more you act like a municipality, the moreyou get treated like one

    d. WHY?

    i. 1) the reasons we allow the right to exclude dont applyhere

    1. Town is inviting public in to shop, cant excludeone person

    2. so the right to exclude is not fundamental totheir ownership here

    ii. 2) other interests at stake more important

    1. Shackwas a vulnerable population who neededservices here, religious speech which has aheightened manner of protection

    2. community also vulnerable because they arepaid in the right to shop in company town

    3. property interests very low, free speech

    interests very high

    e. It wasgenerally open to entire public, so right-to-exclude givenless weight.

    f. Citizens were isolatedwithin property (as in Shack, thoughpresumably not to such an extreme they spoke English, got

    newspapers, came and went freely) so can argue they needaccess and information.

    g. Isnt it contradictory to say that the town is open to the generalpublic but that its residents are isolated? The population herewas not as vulnerable, and their need for the service inquestion (Jehovahs Witness proselytizing) presumably not asserious, as in Shack.

    VII. Problem for owner: if you givesome of your property rights away (byallowing limited public use) does that put you at greater risk of forfeitingmore of your rights?

    VIII. State Action doctrine: Constitutional rights only place limitson the state, or on those acting on states behalf. Marsh court glosses

    over this. State-action doctrine can get very fuzzy in property law as todegree of state involvement, and importance of constitutional interest atstake.

    IX. Marsh was 1946, then no decisions on this issue until 1968 (LoganValley)

    X. Amalgamated Food Employees v. Logan Valley Plaza 1968a. Picketers go into parking lot of non union store

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    b. Open for lots of purposes, but fewer than above, notmunicipal

    c. Private property rights more important here than Marsh, butpolitical speech important

    d. Want to target an audience (speech more effective that way),

    dangerous if they have to stand in roade. Court pretends just followingMarsh, but Black who wroteMarsh says BS however, we dont give Blacks opinionmuch more weight than the others because SC opinions areusually the result of a compromise between justices

    f. seems to suggest, not only do you have right to protest, you haveright to protest in a place where your protest will bevisible/effective!

    XI. Lloyd v. Tanner 1972a. Vietnam war protestors cant protest in a mall, no need to

    speak HERE like inLogan Valleyb. Lloydis trying to limit the decision inLogan Valley on some

    sort of logical basisc. high property rights, high speech rights, but you dont have

    the same need to target these peopled. no particularized reason why they have to be theree. anti-war protesters in mall. Court allows mall to exclude them.f. Distinguishes fromLogan on grounds that in this case, the

    subject of protest has no particular connection to the mall itself(target of anti-war protest is the US government, so protestswould be equally effective in lots of other places.)

    g. Protesters claim might be stronger if (as inLogan) they weretargeting a specific store in the mall, e.g. labor dispute or

    boycott.XII. Hudgens (1976): followsLloydprecedent, but applies it back to a set offacts very similar to those inLogan, and reaches opposite result fromLogan.

    a. 1972-76: Logan andLloydin conflict. Only way to save both isto make distinction between protest on subject directly relatedtoactivities of mall, vs protest on unrelated issues.

    b. But that would be a content-baseddistinction, and if we treatmall owners as quasi-public then content-based restrictions onspeech are unconstitutional.

    c. So eitherLogan orLloydhas to go; court chooses to resolve thecontradiction in favor of the property rights rather than the

    speech rights.d. But thats just Fed Constitution. State Constitutions can stillgrant broader rights of access, e.g. New Jersey, where Princeton(private univ.) could not exclude protesters.

    e. Right-to-Life v. Aaron Womens Clinic 1987:i. Texas , inRight to Life case, cites NJ cases as persuasive;

    says there would be a right of access to shopping mallsin some circumstances (though not to the clinic in thiscase) - this right is based on TX constitution, not Fed.

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    Following NJ, TX uses test for balancing competinginterests:

    1. Nature of public use of property.2. Extent of invitation to the public to use it.3. Purpose of speakers expression relative to

    normal use of property.

    ii. Clinic wins on Prong 3; court says owner can chooseto limit access only to those who behave in wayconsistentwith the purpose for which access is allowed.(But wouldnt that also exclude strikers/boycotters?Like anti-abortion protesters, theyre trying toshut downthe target of their protest.)

    III. Nuisance - defined as interference with owners right to use and enjoy property. Butanti-nuisance restrictions limit what you can do with your own propertya. public nuisance - an interference with your enjoyment of a public good such as

    health or safetyi. you do NOT have to be a property owner or tenant

    ii. eg: on your walk to work, you must walk past a factory belching mercury,you have NO private nuisance claim, only a public oneiii. very hard to get standing as a P, generally suits brought by the govt

    b. Private nuisance substantial, non-trespassory invasion of interest in use andenjoyment of real property,

    i. must be a property owner or tenant (but remember: can be an easementholder)

    ii. Must be non-physical invasion like noise, light, odor, fumes, smoke, etc.iii. The Threshold Test: was there substantial interference? Meaning: would a

    person of normal sensitivities consider the interference to be substantial?I. Traditionally courts looked only at whether the interference from the

    Ds action was substantial and issued an injunction if it was afterthe industrial revolution, courts had to accommodate the socialutility of industries and so had to inquire into the reasonableness ofthe industrys nuisance

    II. Some courts still use only this test, but most move on to thereasonableness test under the R2d of Torts

    iv. 2 ways to find nuisance:I. Intentional and unreasonable conductII. Unintentional conduct that is either negligent, reckless, or so

    inherently dangerous that strict liability is imposed (ultrahazardousor abnormally dangerous) this is usually reserved to tort lawactions of negligence and strict liability

    v. Intentional conduct - conduct is intentional if the actor:I. Acts for the purpose of causing itII. Knows that it is resulting from or is substantially certain to result

    from his conductvi. Unreasonableness of the intentional conduct - courts use a balancing of the

    equities test from the R2d of Torts ( 825-831) See Blaiss handout on

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    the R2d approach - Defendants acts or the condition on defendantsproperty will be a private nuisance if either:

    I. The gravity of the harm to Ps use and enjoyment outweighs thesocial utility of defendants conduct or the condition on Dsproperty

    II. The harm to the P is sufficiently grave and greater than the P shouldbe required to bear without compensationIII. The harm to the P is sufficiently grave and the financial burden of

    Ds compensating for the harm and for similar harm to others wouldnot make the continuation of the Ds activities infeasible

    IV. The harm to the P is sufficiently grave and the D could avoid theinterference in whole or in part without undue hardship

    V. The harm to P is sufficiently grave, Ps use is well-suited to thecharacter of the locality, and the Ds conduct or property conditionis unsuited to the locality

    vii. Injunctions and damages most courts balance the equities to determine if

    an injunction is appropriate or damagesI. Injunctions are usually appropriate if:a. the harm to the P outweighs the social utility of Ds conduct

    orb. where the D can avoid the harm without undue hardship orc. where the Ps conduct is suited to the locale and the Ds

    activity is notII. Monetary damages are usually appropriate if the social utility of the

    Ds primary activity benefits the public at large rather than merelybenefitting the D personally (known as the rule of necessity or thestern rule of necessity)

    viii. Law and Econ vs. Corrective justicesI. Threshold: substantial is basically quantitative and one sided (NO

    balancing)II. Restatement: intentional and unreasonable; harm>utility (balancing)III. sometimes harm

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    III. Use and Enjoy Easement, covenant, equitable servitude -injunction

    IV. Convey optioniii. Restatement elements: an easement is an interest in land in the possession of

    another which

    I. Entitles the owner of such interest to a limited use or enjoyment ofthe land in which the interest existsII. Entitles him to protection as against third persons from interference

    in such use or enjoymentIII. Is not subject to the will of the possessor of the landIV. Is not a normal incident of the possession of any land possessed by

    the owner of the interest andV. Is capable of creation by conveyance

    iv. The easement holder and the landowner both may use the same area of land,but the landowners use may not unreasonable interfere with the easementholders use of the easement for its intended purpose

    v. Easement TerminologyI. Easement in gross (personal easement) an easement in gross is onebenefiting a person whether or not the person owns any specificproperty

    a. Ends at the holders death (unless its assignable)II. Easement appurtenant benefits the owner or possessor of a

    particular parcel of landa. Can continue indefinitelyb. Courts express a presumption for easement appurtenant in

    gross must be clear from the express grant or fromsurrounding circumstances

    III. Servient tenement/estate the property burdened by the easementa. Applies to property burdened by any kind of easement

    IV. Dominant tenement/estate the land benefited by the easementa. Applies only to appurtenant

    V. Affirmative easement gives the holder the right to go onto theservient estate for a specific purpose

    VI. Negative easement gives the holder the right to prevent thepossessor of the servient estate from doing some act on the servientestate. There were four negative easements at common law:

    a. Right of airflow duty to not interfere with airflowb. Right to light duty not to block light or the easement

    holders windowsc. Right to channeled water flow duty not to interfere with

    water flow in artificial streams to the dominant estated. Right to lateral support duty not to remove support from a

    house on the dominant estatee. American courts have recognized additional negative

    easements:i. Duty not to block view

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    ii. Solar easements protect access to solar energyiii. Conservation easements to protect or maintain

    historic/scenic areasiv. Other areas are generally restricted to covenants and

    equitable servitudes

    f. Negative easements can arise by prescription, so that is whyit is limited to these categoriesVII. Other non-possessory interests (distinct from easements)

    a. Leasehold interests contractual rights between a landholderand a tenant

    b. Profit a prendre (profit) the right to enter anothers landwithout liability for trespass and remove minerals, timber,wild animals, fish, soil, water, or other things constituting anatural part of the land

    c. License permission to use property that is revocable at thelandowners will

    i. Ex: persons invited to swim in his neighbors pool,tickets to see a concert or sporting eventii. Always revocable at will, sometimes called a

    revocable nonpossessory interest in landb. Creating an easement:

    1. Express grant (must be in writing Statute of Frauds)2. Implied grant by circumstances; courts will inferit was intended:

    a. Necessity: property useless/inaccessible without itb. Prior use

    3. Prescription (similar to adverse possession)4. Estoppel (owner allowed claimant to incur expenses in reliance)

    c. Express granti. Created through a grant, reservation or exception

    I. Grant: O can sell an easement to A (creating a new one or selling apreexisting easement in gross)

    II. reservation: O grants to A, but reserves (creates) easement forhimself. (Creates a new easement)

    III. exception: transfers property, except for apreexistingeasement.ii. Willard v. 1st Church of Christian Scientists - can a grantor reserve an

    interest to a third party stranger to the deed?I. Reservation to a stranger to the deed when a grantor is selling part

    or all of the property and wishes to provide that a 3rd party be givenan easement over the transferred land

    II. Common law did not recognize easements reserved for 3rd partiesbecause the deeds were not written but conveyed by the livery ofseisen feudal ceremony so it was difficult to do the majority ofmodern courts still follow this rule because it is the settled rule andcreates reliance, but there is a trend to abrogate it

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    III. McGuigan should have reserved the easement for herself and thendeeded it to the church or sold the easement separately to the churchfor $1 and then sold the land with exception for the easement

    IV. Courts presume an easement appurtenant because it would be a hugeCF with everyone moving around with easements in gross

    McGuigan didnt specify so court find easement appiii. For an express easement to bind bona fide purchases, it must be recorded inwriting

    iv. Most easements result from an express easement in a deedv. Reservations and exceptions if the grantor was to have an easement over

    the grantees land, the deed would incorporate a clause reserving orexcepting an easement

    d. Easements by estoppels (also called irrevocable licenses)i. A license is generally revocable at will at law, but some courts in equity

    will enforce the license under an easement by estoppelii. If you acquiesce to the others use of the property and they reasonably rely

    on it to their detriment, you cannot revokeiii. Elements of Easement by estoppel:I. Owner of the servient tenement consents to dominant holders useII. Servient owner knows or should know the dominant owner will

    materially change his position believing the permissive use will notbe revoked

    III. Dominant holder, in reasonable reliance that the permission willcontinue substantially changes his position by investing inimprovements on the servient or dominant tenement

    iv. Holbrook v. TaylorI. Court held no easement by prescription because Taylor had owners

    permission (like AP)II. Granted easement by estoppel because Taylor was encouraged to

    invest and build he relied on continuation of access; Holbrookknew he was relying and didnt stop him

    III. Why do we reward the unreasonable landowner (e.g.Jacque v.Steenberg) but punish the neighborly owner like Holbrook whoaccommodates?

    a. Once you open your property up and others start relying onyour relaxation, your right to exclude can be permanentlyreduced

    b. This is because the interest of others begin to weigh againstyour right to exclude

    v. The reality is that easements by estoppel are very rare, even with the exactfacts of Holbrook, it is still difficult to get a court to recognize

    vi. Claimant must act in justifiable reliance on the statement most courts willnot find an easement by estoppel if the claimant should have verified thefact

    vii. Generally, the courts will find an easement by estoppel where they feel theclaimant acted in good faith on the servient estate owners words or actions

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    and the servient owners words or actions are such that he rather than theclaimant should bear the consequences of any confusion

    viii. How long does the easement or irrevocable license last?I. Some courts hold that it is like an express easementII. Others say to the extent necessary for the dominant holder to

    amortize his expenditures but it is not clear how future repairs andimprovements affect duration or how to measure when amortizationis complete

    ix. Why should we permit easements by estoppels? The function is that oneparty has so substantially changed his position in reasonable reliance on theSOs consent that it seems unconscionable not to enforce the agreement

    e. Implied Easementsi. courts imply easements in two situations

    I. By necessity must be strict, e.g. no way in or out w/o easement.II. By prior use must be reasonably necessary. One portion had to be

    used for benefit of the other, in apparent and continuous way.

    ii. Requires shared ownership and severance (originally, both parcels under asingle owner, then divided.) It is impliedthat grantor and grantee wouldhave assumedit was included in conveyance.

    iii. While purchased easement is perpetual, implied easement disappears if bothproperties return to a single ownership you cant have an easement acrossyour own property.

    f. Easements implied from prior usei. Courts imply this easement when the use was in place at a time a single

    parcel of land was divided into two parcels by the ownerii. If the sellers did not discuss the matter the court may imply easement from

    prior use to reach results that reasonable parties would have reached hadthey discussed the matter

    iii. Emphasis is on parties likely intent at the time of severance the point is todetermine what the parties intended

    iv. Quasi-easement the owner cant have an easement over his own propertyso the court labels the use a quasi-easement

    I. Quasi-dominant estate the part of the estate benefitting from theeasement

    II. Quasi-servient estate the part of the estate burdened by theeasement

    v. Implied grant vs. implied reservationI. Implied grant when the owner retains the quasi-servient estate he

    grants the easement to the quasi-dominant estate (now dominant)II. Implied reservation when the owner retains the quasi-dominant

    estatevi. Elements of easement implied from prior use (5)

    I. The unity of ownership is severed by a common ownerII. The use was in place before the parcel was severed does not

    require use for years, some courts require continuous or permanentuse

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    a. Quasi-easement refers to the use of the land under unity ofland ownership, before the parcel was divided; quasi-dominant and servient also are used in this context

    III. The use must have been visible or apparent at the time of theseverance

    a. Must have actual, inquiry, or constructive noticei. Actual notice: knows.ii. Inquiry notice: knows enough that should

    investigate further.iii. Constructive notice: its on record (in the deed) so

    law will act as if you knewb. Includes roads, driveways, sewers (includes anything

    discoverable by a reasonable inspection)c. Van Sandt v. Royster the sewer was apparent because you

    have toilets, so apparent upon reasonable inspectiond. The standard of proving knowledge of the use are very low

    we want to give buyers the incentive to figure out what theirrights and burdens areIV. The easement is necessary for the enjoyment of the dominant estate

    - most complexa. Different depending on whether there was an implied grant

    or an implied reservationb. Reasonable necessity standard is used for an implied grant

    usually means reasonably necessary for enjoyment, somestates just say in means convenient

    c. Strict necessity is used for implied reservation demandsthat the owner of the dominant estate could not fairly enjoythe property without the easement

    i. Implied reservations are disfavored because its aderogation from the grant

    d. Some JDs subject the grantor and the grantee to thereasonable necessity standard

    V. The use must be continuousvii. Remember that the underlying rationale is to follow the presumed intent of

    the parties at the time of conveyance if something indicates that theydidnt intend an easement, no easement exists

    g. Easements implied by necessityi. An easement will be implied by necessity for any purpose if the easement is

    strictly necessary for the enjoyment of a parcel of land this is a verytough standard to meet

    ii. Always includes access to and from landlocked property landlocking aproperty destroys so much of its use that the law presumes, as a matter ofpublic policy or an implied contract that the parties to the landlockingtransaction could not have intended not to include a right-of-way onto theland

    iii. Elements for easement implied by necessity:

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    I. A common owner severed the propertyII. The necessity for egress and ingress existed at the time of the

    severance anda. This is based on the rationale that the owner couldnt have

    presumed an easement for egress and ingress if there was

    already one in place howeverb. The courts havent recognized this yet, but you could arguethat if the method of ingress/egress was destroyed by thegovt or an act of God, the owner certainly would haveintended for there to be another way of ingress/egress

    III. The easement is strictly necessary for egress from and ingress to thelandlocked parcel

    iv. The common owner must have conveyed part of the property to anotherperson, and in severing property caused one of the parcels to becomelandlocked

    v. Party seeking the easement must show that the easement is strictly

    necessaryvi. Lasts for only as long as the necessity lasts - ends if a new road is builtvii. Some courts say it must be absolutely necessary but others will still grant

    the easement if the alternative route goes over unusually inhospitable landviii. Generally the servient estate owner has the first opportunity to locate the

    easement if the SO delays or chooses an unreasonable location, the DHhas the right to locate the easement at a reasonable location, both must havedue regard for the interests of the other in locating the easement

    ix. Once an easement by necessity has been located, it can be moved only withthe consent of both parties

    x. Othen v. Rosier no easement by necessity because couldnt proveexistence of use at the time of severance

    I. Prescription failed too because the owner of the road also used it, soP failed to use it exclusively

    h. Prescriptive easements a person can gain an easement by prescription by long-continued adverse use

    i. Elements of prescriptive easement:I. Actual use demands a physical presence on the servient estateII. Open and notorious use use must be so open and visible that the

    landowner will or should notice the useIII. Hostile use (also adverse use or use by claim of right) means the

    claimant uses anothers property without permissiona. Use pursuant to a defective deed is by claim of right and

    satisfies the hostility elementb. Cannot get an easement if you have landowners permission

    to be on the propertyc. Acquiescence is not permissiond. No prescription if claimant admits wrongdoing and agrees to

    enter only as a licensee

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    e. Permissive use can become adverse if claimant acts beyondthe scope of the permitted use but expanded claim must beobvious to landowner

    f. Some courts have a rebuttable presumption in favor ofhostile and others in favor of permissive

    g. Many courts consider use of immediate family members tobe permissiveIV. Continuous and uninterrupted use claimants use must be

    consistent with that of a reasonable easement holders use askswhether the landowner effectively interrupted the claimants use ofthe easement

    V. Exclusive use most states ignore this factor and prefer thecontinuous and uninterrupted use factor states that use it use twomeanings:

    a. The claimants use is distinguishable from the general public must be unique to him or

    b. The landowner is not using the property in a way that wouldprevent the claimant from enjoying the easementVI. For the statutory prescriptive period

    ii. Color of title can also apply if a conveyance was faulty (like to a stranger tothe deed)

    i. Scope of Easementsi. Location easement owner must stay within the boundaries of the

    easement, once it is locatedI. Location is apparent from current use in prior use and by

    prescription casesII. If implied by necessity and cannot be ascertained from the deed, the

    servient owner will generally locate it reasonably with due regard todominant holder; if he cant or wont do this, then the dominantholder can locate it with due regard

    III. Most states do not allow location to be changed once establisheda. Some state and R3d permit servient owner to move it, as

    long as it doesnt inconvenience the DHii. Intensity of use the general rule is that a easement holder can use the

    easement as long as the use does not overburden the servient estateI. Courts look at the original parties intentII. Presumes that they intended the scope of the easement to evolve to

    accommodate reasonably foreseeable changes in the surroundingarea

    III. Ex if the original easement was for horse and buggy travels,automobile travel over the easement would not be precluded

    IV. Ex a dh can widen a dirt road into a modern road if it seemsconsistent with the original parties intent

    iii. No benefit allowed to nondominant property easement app may onlybenefit the dominant property extension to another property is a misuse

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    iv. Improvements, Maintenance, and repair an easement holder has the rightto make improvements to her easement as long as the improvementspromote the use of the easement within the scope of the easement and doesnot unreasonably burden the easement or the servient estate owners use orenjoyment of the property

    v. Termination of Easements an easement can potentially last forever, butcan be terminated:I. By the terms of the grantII. If the purpose of the easement endsIII. MergerIV. Forfeiture for misuseV. ReleaseVI. AbandonmentVII. EstoppelsVIII. PrescriptionIX. Recording Acts

    X. Eminent domainj. Real Covenants and equitable servitudes must run at law with the land to beenforced they benefit one parcel and burden another must be a writtenagreement to satisfy statute of frauds

    i. Remedies covenants can get damages or injunctions and servitudes onlyget injunctive relief

    I. The only difference between the two has to do with what remedyyou want in court, if you want damages you have to prove covenant,if you only want injunction then prove ES

    ii. Equitable servitudes to run with the land there must be:I. IntentII. Touch and ConcernIII. Notice

    iii. Covenants to run with the land there must be:I. IntentII. Touch and concernIII. Privity

    a. Horizontalb. Vertical

    iv. There are tougher requirements for a burden to run than for a benefit to runI. For a burden to run:

    a. Intentb. T&C: the covenant has to touch and concern both the

    benefitted land and the burdened landi. Some states still allow the burden to run even if the

    benefit is merely personalc. Horizontal privity: landlord-tenant, grantor-grantee, or

    shared ownership interest.

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    i. Some states have dropped this requirement and onlyrequire notice, thus merging covenants and equitableservitudes

    d. Vertical privity - successor must succeed to full estateII. For a benefit to run:

    a. Intentb. Touch and concern benefited parcelc. Vertical privity only, and looser standard: can be for any

    successor in interest, not nec. succeeding to full estate.v. The elements:

    I. Intent to bind successors parties must intend the covenant tobenefit/burden subsequent purchasers (run with the land) must beascertainable from the deed

    a. Intent is made clear by one of these phrases:i. Promisor agrees for himself, his heirs and assigns to

    be bound

    ii. This covenant shall run with the landiii. This covenant is appurtenant to the landb. Problem arises when deed states only that the burden will

    run with the land this leaves the issue of whether thebenefit runs with some other property or whether it isenforceable only by the original promisee

    i. Inference is that the benefit will run with the land ifthe promisee owns neighboring property

    ii. will be considered personal to the promisee if the Pretains no land near the burdened estate

    vi. Touch and ConcernI. What does it mean?

    a. asks whether the covenant would be sufficientlyeconomically beneficial that a reasonable person upon calmreflection and hindsight would have intended the covenant torun with the land

    i. it must benefit holder of covenant in use and enjoymentof land.

    b. Traditionally, it meant burdens and benefits that necessarilyinvolved the tangible use and enjoyment of the land

    c. Mostly you just have to look at whether the courts have heldthat the particular covenant does T&C

    II. For Burden to runa. Most courts require that promise must touch and concern

    both burdened and benefited landi. If the benefit is found to be personal it does not T&C

    the benefitted land and the burden will not runii. Some JDs ignore this rule though and still allow

    burden to runb. Examples of burdens that t&c: restricting the land to

    residential uses, a covenant that grantee not operate a

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    business that competes with the grantors nearby businessfor five years touches and concerns the burdened estate

    c. Covenants for the payment of money do not T&C except ifthe money is to be paid to a homeowners association sincethe money will be spent to maintain a common area

    (Neponsit)i. Note on HOAs: what if there is a restrictive covenantto be bound by the HOA rules and the HOA changesthe rules if the covenant allows the HOA to do this,then it is generally allowed because the landowneragreed by buying the land to be bound by thecovenant however courts usually have 2 rules onthese types of decisions

    1. If the rule existed at the time of the propertypurchase, the court will generally defer to theHOA unless the rule is wholly arbitrary and

    unreasonable or it violates public policy2. With regard to new rules, the court will lookmuch more carefully to see if the burdenoutweighs the benefit and that the rule isappropriate because the HOA could justsingle out homeowners that it doesnt like

    d. Policy reasons for this: courts do not want to overburdenproperty with affirmative covenants so that no purchaserwould buy the land

    III. Benefits that touch and concerna. Benefits that are personal to the individual owner generally

    do not touch and concern the land, but if they benefit ingeneral whoever owns the land, then they probably do

    b. Ex of benefits that touch: restricting land to residential use,the noncompete agreement, the homeowners fee

    c. Ex of benefits that dont: exclusive property managementcontract, water supply contract the money rule applies

    vii. Privity of EstateI. Horizontal Privity of estate majority holds that HP will be found

    only if the covenant is created when one original party to thecovenant transfers an interest in land (other than just the covenantitself) to another original party the transfer of the property and thecreation of the covenant must arise simultaneously

    a. Generally, can only be created in conjunction with grants ofeasements, leases, and freehold estates

    b. Some states have dropped the HP requirement and onlyrequire notice, merging the concept into equitable servitudes

    II. Vertical Privity of estate applies to subsequent property owners,remember: for burden to run must succeed to entire estate, but forbenefit all that is needed is a possessory interest

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    viii. Implied reciprocal servitude (or implied reciprocal negative easement, amisnomer)

    I. This theory was created to solve the problems that arise when youhave a common owner impose a burden on the first party to buy aproperty in a subdivision

    a. The covenant burdens the 1st

    estate sold and benefits the restof the landb. The problem was that if the owner sold the next lot with the

    same covenant (for example, only single family homesallowed), the 1st buyer would have no standing to sue the 2nd

    buyer to enforce the covenant because his property was notbenefitted by the 2nd buyers covenant

    c. The original lot owner could not benefit the 1st buyer in thetransaction with the 2nd because the 1st would be a stranger tothe deed

    d. So how does the 1st buyer show that the covenant is intended

    to benefit him?II. To solve this, the courts began to say that these covenants burdenedand benefitted all the lots in the subdivision if the covenants werepart of a common scheme

    III. How the courts determine if there is a common scheme (Sanborn v.McLean):

    a. Intent the developer needs to have intended for there to bea common scheme within the subdivision

    i. The court will look at the covenants in sequence forthe lots sold as well as the percentage of lots in thesubdivision that have the covenant in the deed

    ii. If early on, there is a pattern of the same covenant,the court will infer that the developer intended acommon scheme

    iii. If a high percentage of the total lots in thesubdivision have the covenant, the court may inferthe developers intent

    iv. Be careful, sometimes the developer will intend onescheme in one part of a subdivision and another in adifferent part

    1. Remember the example from the e and e withthe lots on the upper part of the hill nothaving a restriction and the lots on the lowerside having a restriction

    b. Touch and concern usually not a problem because thenegative covenant will be something that touches andconcerns the land like a restriction on building anythingother than single family homes

    c. The subsequent purchasers must have notice of the commonscheme

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    i. Actual evidence of actual notice (ie the developertold the buyer) always works

    ii. Constructive if the covenant is not in the deed, thebuyer may not have constructive notice, however:

    1. Most jurisdictions have subdivision

    ordinances that require a plat with a map ofall the lots and references to the covenantsthat are attached to those lots

    2. A few states require title searchers toresearch the deeds of other lots in the area tocheck for covenants

    3. In both of these situations, the buyer hasconstructive notice because of a duty tocheck these written records

    iii. Inquiry if the restriction is apparent from areasonable inspection of the subdivision (ie they all

    are single family residences, or are all 15 feet backfrom the property line), then the buyer of the lot hasinquiry notice of the common scheme

    ix. Scope of covenants Hill v. Damian of MolokaiI. Standard for interpreting text of these covenants pg. 774

    a. Resolve ambiguity in favor of free enjoyment of property,otherwise theres problem with notice. Generally,economics prefers unencumbered property to encumbered.

    b. Do not use implication to add new restrictions that werentspelled out. (Neighbors complain about traffic, but therewerent any traffic/parking restrictions in covenant. Butmaybe they assumed it didnt need to be spelled out?)

    c. Interpret language reasonably, not strictly.d. Assume words have their ordinary meanings, not special

    term-of-art meanings. (But normally the word familywouldnt include something like this)

    II. FHA Interpretationa. Fair Housing Act: 1968 bans race discrimination; 1974 adds

    gender; 1988 adds handicap or family status. Unlawful torefuse to sell or rent based on these categories. (Exemptsonly owner-occupied housing with 4 or fewer units; homesfor sale by owner but they cant advertise discrimination.)

    b. Constitution only covered state action, not private actors,and doesnt say anything about handicap/family status.

    c. Constitution only covers intentional discrimination, butstatute adds disparate impact, failure to reasonablyaccommodate.

    d. Why does court bother with FHA if already decided byinterpreting covenant? Because wants to make clear that

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    even if covenant language tweaked (no AIDS homes!) itstill wouldnt be allowed.

    e. So why bother interpreting covenant when court was goingto void it anyway with FHA? Because court wants to showoff its power to interpret language to mean what we want it

    to mean, not what the schlubs who wrote it wanted it tomean.III. Shelley v. Kramer Pre-FHA, court struck down racially restrictive

    covenant by saying that state action was involved since the partieshad to get the covenant enforced in a state court

    x. The Restatement (Third) ApproachI. Rejects a lot of the formalities and technicalities to say that if there

    is notice of the covenant, then it can be enforcedII. Favors creating rights in strangers to the deedIII. Relies on common scheme or general plan to create benefits and

    burdens

    xi. Termination of Covenants and ServitudesI. By the terms of the covenantII. Through merger if the lots are reunited under a single ownerIII. Release all benefitted lot owners must join the release for it to be

    effectiveIV. Rescission done by the developer, all with standing to enforce

    must join the recissionV. Unclean Hands of tne landowner cant enforce a covenant that

    they, themselves are violatingVI. Acquiescence if the P has allowed other violations, P can be

    estopped from enforcing the restriction against an additional violator the violations must be a little more prevalent than 1 or 2

    VII. Abandonment same as acquiescence, but this is when theviolations are so prevalent that it doesnt make any sense to enforcethe covenants

    VIII. Laches person with right to enforce waits too long to bringthe action that the D is unduly harmed by the action

    IX. Changed conditions if the conditions in the neighborhood havechanged so much that it doesnt make sense to enforce the covenant external changes dont matter, only changes within the actualneighborhood

    X. Relative hardship courts balance the benefits to the neighboringproperty against the hardship of the burdened property

    XI. Eminent DomainV. Zoning local use of land control

    a. Chaos reigned in city development in the 1920s it was a CF, so congress enactedthe Standard State Zoning Enabling Act

    i. Every state has enacted some form of the SSZEA

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    ii. The way it works is that that state legislature enacts an enabling statute thatgrants power to the local municipal governments to draft zoning ordinancesin accordance with the rules of the enabling statute

    iii. The municipal government then delegates administrative power to a localzoning board to make adjustments and that allows landowners to petition

    the board for redressb. Objectives of zoning:i. To prevent incompatible uses from occurring

    ii. To increase property values by minimizing use conflictsiii. To channel development into patterns that may serve larger social goals (ie

    reduce urban sprawl, air pollution, traffic congestion, etc.)c. Village of Euclid v. Ambler Realty was the first test case arising out of the zoning

    enabling actsi. Euclidean zoning is made up of cumulative zones the highest level has the

    most restrictions and the lower levels include everything allowed in thehigher levels the categories could define the use of the land (single family

    residences, commercial, etc) or height and area requirementsii. Ambler claims that the citys zoning plan will make them lose 75% of thevalue of their property and claim that the citys zoning ordinance is anunconstitutional violation of substantive due process under the 14th

    I. This was a facial challenge, Ambler claimed the law wasunconstitutional on its face, not as specifically applied harder toprove because court gives a lot of deference to the legislature andassumes constitutionality

    iii. This case established that the power to zone is based on the states policepowers to regulate the health, safety, morals, and general welfare of itscitizens the zoning ordinance must be reasonably related to one of thesegoals and Ambler said that it wasnt

    iv. The court upholds the constitutionality of the zoning and gives deference tothe legislature in saying that the height restrictions contribute to fire safety,the residential zoning scheme protects the welfare of children from havingto deal with the evils of living in close proximity to apartments and the needto keep traffic at a minimum where families with children live basicallythe court was thinking up valid reasons for the legislature to do this underthe police power because they wanted to defer to the legislature

    d. Non-conforming usei. If zoning is introduced and there is an existing land use that does not

    conform to the zoning, the nonconforming use will generally be allowed tocontinue

    I. The landowner cannot expand the use beyond the precise boundariesof the use ie cant make additions to a commercial structure in aresidential zone

    II. The right to nonconforming use runs with the landIII. LO cannot change from one type of nonconforming use to anotherIV. Voluntary abandonment of the use usually ends the right to it

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    V. In some JDs a destruction of the structure will end the right to theNCU like if the building burns down

    ii. Some jurisdictions allow for a rational period of amortization for a NCUI. The PA SC in PA Northwestern v. Zoning Hearing Board held that

    the nonconforming use provision requiring a 90 day amortization

    period was an unconstitutional taking the dissent said thatalthough this ordinance was unreasonable, a reasonable amortizationordinance would not necessarily be unconstitutional

    II. A rational amortization period would generally allow the landownerto recoup the cost of the structure over a period of many yearsbefore requiring the use to come to an end

    e. Achieving Flexibilityi. Zoning should be flexible because the municipal govt cant foresee

    everything and they want to allow dynamic use that they cant properly planfor

    ii. 2 ways the zoning ordinances are flexible

    I. Variances an administrative departure from the criteria set by theordinanceII. Special Exceptions legislative determination that a particular use

    will be acceptable in certain areasiii. Variances

    I. The idea is that they should be granted when compliance with thezoning law would impose such extreme burdens on the owner thatapplication of the law might be unconstitutional or other wiseinvalid

    II. Focuses on the burden on the LOIII. Usually a variance is granted upon a showing that compliance with

    the zoning law would impose undue hardship on the applicanta. The hardship must not be created by the ownerb. The owner must have tried to remedy the hardship in any

    possible wayc. The hardship must be a unique hardship - cant be the same

    hardship suffered by everyone in the zoneIV. The variance cant substantially impair the purpose of the zoning

    plan and it must not be against the public goodV. 2 types of variances:

    a. Use variance very hard to get one of these because the useof the land is essential to the character of the zoning district a lot of jurisdictions do not allow use variances at all

    b. Dimensional variance permits deviations from area, bulk,setback, street frontage, floorspace, height, and other non-use requirements

    VI. Commons v. Westwood Zoning Board of Adjustmenta. Commons owns undersized, undeveloped lot. The lot does

    not meet the size or frontage requirements and there is adeveloper that wants to build on it. The Board denied

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    Commons application for a variance saying there was nohardship and the variance would substantially impair thepurpose of the zoning regulation.

    b. Court found that board that there was a hardship here wherethe zoning regulation, enacted after Commons purchase of

    the lot virtually makes the lot unusable and that is not wantwe want in our zoning laws. This could be viewed as ataking.

    c. Court remanded the case to the board because the board didnot give any reasoning to explain its conclusion that thevariance would substantially impair the intent and purposeof the zone plan and ordinance.

    d. A zoning board must provide reasoning for their decisions todeny a variance

    e. Counterfactual: what if this was a covenant? The Commonswould have to argue for one of the ways that a covenant can

    terminate such as changed conditions or abandonmentiv. Special ExceptionsI. These are uses that are permitted by the zoning law but which might

    impose material external costs on neighbors the standards forexceptions set forth by the legislature must have specific parameters

    II. Cope v. Inhabitants of the Town of Brunswicka. Board denied Cope a special exception, but the court said

    that the exception parameters gave too much discretion tothe board, they must be specific because the legislaturecannot delegate the power to regulate private propertywithout a sufficiently detailed statement of policy to provideparameters to reasonably determine and owners rights andprevent arbitrariness.

    b. The exception parameters in this case merely permittedexceptions which did not adversely affect the health, safety,or general welfare of the public and which would not alterthe essential characteristics of the surrounding property too vague

    c. The bottom line is that the legislature cannot delegatematters related to the police power to a quasi-judicialauthority

    v. The question of deferential or strict scrutiny to municipal decisionsI. Are the zoning decisions made by a municipality legislative acts to

    be treated deferentially or quasi-judicial/administrative acts thatshould be subject to strict scrutiny? Arguments:

    a. If the decision appears to be adjudicative in nature, treat it assuch

    b. If the decision-making body is subject to public reviewthrough the election process, then treat it like a legislativeact

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    c. Remember that disparate impact does not by itself give riseto strict scrutiny

    II. State v. City of Rochestera. Third party neighbors challenge the granting of a rezoning

    application to change from low-density residential to high

    density, so that condominiums could be builtb. The court holds that the decision by the city council is alegislative decision and should be given deference as long asthe decision is supported by any rational basis related topromoting the public health, safety, morals, or generalwelfare. It cant be arbitrary or a taking without justcompensation.

    III. Courts diverge on this issue: some subject the municipal decisio