Property Outline VillaZ

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    Property Outline (VillaZ)

    I. Propertybundle of rights

    right to excludethe strongest stick- (vs. access in easement, police,

    government services) right to transfer (not always, trusts)

    right to possess

    use (doctrine of quiet enjoyment)

    A. Theories of OwnershipFirst occupancy- sloppy b/c each self-motivated person would gobble up limited

    resources.

    Labor-Desert theory- you are entitled to the product of your work (digging out the

    snow in parking lot article).Utilitarianism- Bentham. Property as a means to an end, allocated in the manner

    that best promotes the welfare of society.

    State v. Shack - no prop rights are absolute. shack enters to aid migrant works.

    held no trespassing because right to property doesnt include the right to bar access to

    governmental services public policy safety/well being of migrant workers.

    criminal action

    RULES: Ownership of real property does not include the right to bar access to governmental

    services available to migrant workers. (p. 5)

    Title to real property cannot include dominion over the destiny of persons the owner

    permits to come upon the premises. (p. 6)Mans right to property not absolute. (p. 7)

    Right to exclude is protected by the law oftrespass- CL- unpriveledged intrusion on

    property possessed by another.

    (intent is satisfied by voluntary act of walking onto the propertymistaken entry on the

    land of another does not relieve the trespasser of liability.

    Criminal Trespass (by statute, state by state) - Any person who trespasses on any lands

    after being forbidden to do so by the owner.

    to trespass

    1. consent2. necessity

    3. public policy

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    What if consent is fraudulently obtained?

    DesnickNo trespass- consent was valid even if fraudulently obtained

    primetime crew gets acccess to Eye Center to see if Desnick is operating

    unnecessarily no invasion of specific interests trespass is meant to protect.

    Note: If he had signs up that said no testersor snoops, it may have been trespass.

    Food LionTrespass- consent was invalid because the conduct went beyond the scope

    of the consent when they started filming back rooms.

    Right of Reasonable Access to Property open to the Public

    Old school: Blackstoneif you served the public, you couldnt exclude (put a sign out,

    you offer to serve)assumpsitassumption of duties to the public.

    After Reconstruction, right to exclude without cause became very prominent.

    Tempered by Civil Rights laws.

    Majority rule: is a broad(not absolute) right to exclude. Majority rule today: places that are open to the public may exclude except if it violatescivil rights laws

    Applications of the majority rule:

    Madden v. Queens County Jockey Club

    the racetrack asserted their right to bar patrons (not hotel or transport), so they could bar

    whomever they want and it was not a race matter.

    Brooks v. Chicago Downs

    -this case provides the reasoning for the broad right to exclude

    because market forces would preclude outrageous excessesassumes proprietors arereasonable people who usually do not exclude their customers unless they have to.

    defense of traditionally broad right to exclude the race track owner must be able to

    control admission to its fascilities wihtout risk of lawsuit, and necessity of justification

    Inn keeper / common carrier rule: except hotels and transport carriers, must providereasonable access.

    Why special obligations for inns/carriers? more likely to be monopolies

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    place people at risk

    they hold themselves out as ready to serve.

    Minority Rule (uston, access for everyone that doesnt threaten security).

    Uston NJ 1982 - Casino kicks out this guy who allegedly had card counting skills.

    Issue: Right to exclude vs. 14

    th

    amendment equal protection, protecting unreasonableexclusions.

    Held: Allowed in, he doesnt threaten anyones security.

    Uston extended the right of reasonable access to all businesses open to the public.

    The only legislative limitations on the right to exclude in the majority of states are civil

    rights laws that prohibit discrimination on account of : race, creed, color, national origin.

    Public Accomodation Statutes canons of construction

    interpreting statues :

    1look to text first2- legislative purpose, context and previous applications.

    Public v. PrivatePrivateif it doesnt advertise & is completely secluded.

    Civil Rights Act of 1964, Title II

    (a) equal access [to] any place of public accommodation

    Prohibits discrimination based on race, color, religion or national origin (not sex)(b) definition of place of public accomodation

    1) inn, hotel, motel . . . Provides lodging

    2) restaurant, cafeteria, lunchroom . . . Engaged in selling food

    3) motion picture house, theater, concert hall, sports arena, stadium, and other place of

    exhibition or entertainment

    (4) establishment within the above establish.

    (e) Private establishments (exception)

    Provisions of this subchapter shall not apply to a private club or other establishment

    not in fact open to the public

    vs.

    Civil Rights Act of 1866 (regulates race only)

    1981all persons . . . shall have the same right . . .to make and enforce contracts . . . as is

    enjoyed by white citizens

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    1982all citizens . . . shall have the same right . . . as is enjoyed by white citizens . . . To

    inherit, purchase, lease, sell, hold and convey real and personal property

    this act was thought only to apply to state actions until 1964, when cases applied it to

    discrimination in selling property and private school exclusion cases.

    Which led to CRA 1991- which codified broader interpretation of CRA 1866 -> saying itgoverned private conduct and that it regulates the terms of contracts not to just the rightto make and enforce contracts/ (this fills the gap in CRA 1964).

    Jacques v. Steenberga mobile home company cuts across the Jacques land.

    they sue for trespass and the court emphasizes the importance of right to exclude.

    No excuses for the trespass: Consent, necessity, public policy

    Matthews v. Bay Head

    Public Trust Doctrineeveryone has access to the water. (ownership, dominion,

    sovreignty over land flowed by tidal waters).

    3 other ways for public to get use of private land: 1) dedication 2) presription-been used

    for a while and public gets rights by default 3) custom

    Pottiner v. City of Miami (homeless rights to live)

    judge orders the stop to arresting homeless people (everyone has a right to

    somewhere to go)

    Oyama v. California (alien land law bans japanese)

    Supreme Court said the provision of Alien Land Law that prevented noncitizens from

    owning land was unconstitutional, and although they didnt overturn it, they Californiastopped enforcing the Aliend Land law Oyama

    Commonwealth v. Fremont (predatory lending practices) injunction against Fremont for ARM loans and even though there was not one statutue

    that specifically criminalize the behavior, the governement said it was established policy

    that these loans are bad news (FDIC had ordered cease and desist)

    court asked Fremont to prove that he could do it.

    Labor & Investment

    INS v. AP- (is the news property?)

    AP seeks protection under labor desert theory- their people put work into the news sothey should own it.

    competitors have a special duty not to steal each others products

    if you are going to use another competitors stuff, you have to attribute it. news becomes property the instant of publication- but not btw. Them and the public,

    just quasi-propertyrights between themselves.

    keep competition fair to retain the incentive for getting news (public policy concerns) the illegal part is the fraudulent gain in competition between the two.

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    + law has clearly recognized unfairness in competition when fraud is used (ie. passing off

    your own goods as the plaintiffs)

    Possession1) intent to possess on the part of the possessorand 2) his actual controlling

    or holding the property.

    Pierson v. Post - Rule of Capturethe hunter possesses the fox when he mortally

    wounds it + deprives it of his freedom + intends to exclude

    Dissent- constructive possession -> intent to deprive (reasonable opportunity orexpectation of capture).

    Pierson was decided in a way that ignored local hunting custom.

    compare the outcome with the outcome under Social Utility Theoryif you want to

    encourage people to hunt, which rule would be better?

    Compared with

    Popov v. Hiyashi - court saw that Popov had a prepossesory interest in the dropppedball, and so Hiyashi acquired the ball with a cloud on its title

    Remedy-> split the ball through equitable distribution.

    relativity of titlequasi-propertyno one else has a right, but there is a right betweenthe two (the two have better title than all others).

    Groundwater waters collected in permeable rock, sand, grave = aquifiers

    surface owners may want to get at this water

    underground water diffused through soil is called groundwaters or percolating water

    1free use or absolute ownershipeach surface owner is free to withdraw as much wateras he likes from beneath the surface of his property without liability even if it has the

    effect of withdrawing water from under neighbors property.

    (I DRINK YOUR MILKSHAKE)

    minority of states follow this rule that you can extract as much water as you want from

    property , exceptionyou cant withdraw water in a way that wastes it.

    2

    American Reasonable Use Rule -

    Owners may withdraw to use solely on their overlying land if the use doesnt harm theirneighbors.

    only if reasonable use. (or off tracts, as long as reasonable)

    3 correlative rights

    allowing owners to withdraw in proportion to the aquifiers under their property.

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    Surface Water

    East of the Missippiriparian rights

    West ofprior appropriation doctrine

    1

    Riparian Doctrine

    Waters rights to owners of land bordering on surface water source

    (riparian land)

    when deciding issues between competing users of land, they apply a reasonable use rule

    consider and balance factors such as :

    relative social value

    extent of harm to the

    cost of the relative utility of competing uses and choosing the one most valuable to

    society.

    2

    Prior Appropriation Doctrine

    first in time, first in right -

    allocates water rights based on parties putting water to beneficial use. Such as irrigation,industrial uses, drinking water, and instream flows

    temporal priority.

    Proving Ownership : 1) evidence of title 2) possession.

    Wilcox v. Stroup (possession = ownership).

    sought declaratory judgement on the 444 documents he found at his stepmothers

    house, altho no evidence of title.

    Rule: Possession creates the assumption of ownership.

    Why:1) avoid Gordian Knots, party not in possession has the burden2) stability- the market rests on these basic presumptions.

    3) here, there is no public policy concern for overturning the presumption

    * in other words, sometimes public policy reasons can overturn the

    presumption of possession as ownership

    p.175lost, mislaid, abandonedPrivate Propertytrespasser will lose their claim

    Private property with consentcourts are wildly divided.

    Public propertyfinder has claim over abandoned, but not lost/mislaid.

    * only abandoned property can be found and kept

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    lost/mislaid property can still be recovered from the finder.

    tribal property property could belong to Indians, and thus, not abandoned, only lost or

    mislaid

    I. In disputes between the landowner and the finder. The landowner will win if the finder

    was trespassing at the time she found the object(2) Modern cases deny possessory right to those who obtained possession

    illegally

    (4) If an object is found in a place open to the public some courts grantownership to the finder and others to landowners.

    a. Some courts distinguish between lost and mislaid property awarding

    lost property to the finderand mislaid property to the owner of thepremises.

    ii. - Ownership is given to the finder rather than the owner of the land so long as the

    finder was not trespassing at the time it was found.

    (1) Finder statutes - generally require that the finder report the find to the police and

    generally award the property to the finder if it is not claimed after a reasonable period of

    time

    Treasure trove for jewels that were hidden, US rule, ownership goes to the finder rather

    than owner, as long as finder was not trespassing.

    Armory v. delamiriefinders have rights over everyone except the true owner (unless

    they were trespassing)chimney sweep finds jewel has more rights than the guy he gave

    it to for appraisal.

    II. Present Estates and Future Interests

    History

    System of land ownership developed since 1066

    All land owned by the king

    King allowed knights (and others under him) to use land during their lifetime or based

    on conditions

    Control of property by one or few people

    Restricted use of the land

    power to create future interests has two problems:

    1) dead hand controlclogging up the property market, and restricting the market in a

    non-efficient way.2)social hierarchydont want to create race exclusion or a caste system taking too

    much property off the market.

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    Seisenownership of land

    Alienabilitythe ability to transfer property between owners

    I. Estates in landOwnership Divisible by Time

    When we say one has an estate in land, we mean that one has an interest in land.

    An estate in land may be acquired by:Purchase

    Gift

    Inheritance

    Willintestate-dying without legal will.

    What is the state of the title?

    When asked this question, you are asked to state the:1) Possessory estate (present interest)

    2) Future interest

    A. Possessory estates (present interests)

    B. Future interests

    II. Two Categories of Estates

    A. Freehold estates (today - owning property)B. Non-freehold estates (todayleasing property)

    III. Freehold estates

    I.Types of freehold estatesA. Fee

    1. Indefeasible

    a. Fee simple absolute (FSA)

    O to A and her heirs.O to A in fee simple.

    O to A. (modern form)

    2. Defeasible - Estates that terminate at the happening of a specified event, other than

    the death of the current owner.Distinctions

    1-whether future interest is in grantor or 3rd party

    2-whether future interest becomes possessory automatically when the stated event occurs(or) only if the future interest holder chooses to assert his rights..

    a. Fee simple determinable (FSD)future interestpossibility of reverter.

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    Key words for FSD:

    Until, So Long As, While, During, Unless.

    b. Fee simple subject to condition subsequent (FSSCS)

    future interestright of entry/power of termination.Key words- But if, provided that, On Condition that, However.

    c. Fee simple subject to executory limitation (FSSEL)Grantor conveys property to grantee with a condition. If condition is violated, the

    property automatically goes to a third party.

    future interestexecutory interest (in FSA).keyfuture interest vests in a third party.

    B. Life estate-

    Two different types of future interests that follow a life estate:

    held by the grantor - Reversionheld by a third party - Remainder

    O to A for life.

    A: possessory estate in life estate

    O: reversion

    O to A for the life of B.

    A: possessory estate in a life estate pur autre B.

    O: reversion.

    O to A for life. Then A conveys to B.

    A: life estate

    O: reversion

    B: posssessory estate in a life estate pur autre A.

    C. Fee tail- Estates based on lineage (blood line).

    O to A and the heirs of his body.

    Abolished in most states and treated as a fee simple absolute.

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    Only recognized in 4 states (Delaware, Maine, Massachusetts, and Rhode Island). Even

    then, treated mainly as a fee simple absolute. Thus, no future interest.

    O to A and the heirs of his body.

    A: possessory estate in a fee tail

    As heirs (issue): none. Because abolished in the US, treated as a fee simple absolute.

    Key words Present Future future

    FSA O to A. P.E. F.S.A None.

    Life Estate For the life of,

    por autre

    P.E. in L.E. Reversion if

    back to thegrantor.

    Remainder if it

    goes to a thirdparty.

    FSD Until, So LongAs, While,

    During, Unless.

    P.E. in FSD Possibility ofreverter.

    FSSCS But if, provided

    that, OnCondition that,

    However.

    P.E. in FSSCS Right of Entry.

    FSSEL Interest goes to

    third party

    P.E. in FSSEL Executory

    Interest.

    Sub-categories of Future Interests:Remainders -

    I. Contingentremainder which:

    1. is given to an unascertained (to be determined) person

    O to A for life, then to As first child. (A has no children).

    OR2. has a condition precedent (event must occur before remainder gets vested).

    O to A for life, then to B if B has reached 21 years old.

    Destructability of Contingent Remainders: Traditional ruledestroy contingent remainders if condition did not happen in grantee

    (A)s lifetime.

    Modernhonor grantors intent (butconveyance must pass the rule against

    perpetuities).

    II. Vested Remainder.

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    1. Given to an ascertained (particular) person.

    2. There are no condition precedents.

    Absolutely vested.

    Vested remainder subject to open.

    Remainder is vested but there might be more members of the class who can get property.

    O to A for life, then to the children of B. (B has 1 child).

    - B can have more children after the conveyance.

    rule of convenience: Class closes upon As deathA: life estate

    Bs children: vested remainder subject to open.

    Vested remainder subject to divestment.Remainder that is vested butmay be taken away because of a condition subsequent.

    O to A for life, then to B, but if B has flunked out of law school, the property shall

    then go to C.

    - B has a vested remainder but he can lose the property if he does not pass law school[Put aside what C has at the moment].

    Different types of executory interests.

    Shifting-Follows an estate in a grantee.

    Springing-Divests an estate in the grantor.

    Shifting Executory Interest

    O to A, provided that if A ever allows the timber to be cut, then to B.

    A: possessory estate in FSSELB: shifting executory interest in fee simple absolute

    Property shifts from grantee (A) to B.

    Springing Executory Interest

    O to A for life, then to B five years after As death.

    A: possessory estate in life estate

    O: reversion subject to an executory limitationB: springing executory interest

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    Doctrine of Worthier TitleO to A for life, remainder in Os heirs.

    convert Os heirs remainder interest into a reversion.

    traditional rule applied because the above conveyance was thought to avoid inheritancetax

    today, most states lookto grantors intent

    Rule in Shelleys case:

    O to A for life, remainder to As heirs.

    Prevents a grantor from using the same document to convey a life estate to a granteeand a remainder to the grantees heirs.

    Converts the above to give A a fee simple absolute.

    Note: abolished in most states and will honor the grantees intent.

    IV. Non-freehold estatesA. Term of years

    B.Periodic tenancy

    C.Tenancy at willD.Tenancy at sufferance

    RAP

    If the interest will not vest within 21 years of a life in being at the time of theconveyance, RAP blocks it.

    B. Interpretation of Ambiguous Conveyances

    1) courts seek to implement the intent of the grantor (the document itself, possibly the

    circumstances)2) presumption against finding a future interest.

    Wood v. Board County

    Language in the deed suggesting the tract of land is conveyed for the purpose ofconstructing/maintaining a country hospital.

    not read to be a future interest because no provision will be interpreted to create such

    a condition if the language will bear any other reasonable interpretation or unless the

    language indicates an intention upon the part of the grantor that plainly admits of suchconstruction.

    Edwards v. Bradley

    rule against creation of new estates -Numerus Claususcant freely interpret what the

    grantor wantsmust make it fit at least into one of the preexisting categories.

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    Bradley (the child left out of a FSA interpretation) argues that the Grantors intent was a

    Life estate with a remainder to the children.

    the creation of a life estate was implied from the intent of the testator.

    Versus-Johnson v. WhitonRule: When a person tries to convey property in a way that does not conform to one of

    the traditional estates, the limitations in that conveyance will be invalid. This is to prevent

    restraints on alienation.

    Regulatory Guidance of Estate Creation/Transfer

    rule prohibiting new estates (Numerus Clausus)

    rule against unreasonable restraints on alienation rule against perpetuities

    interpretative rule prohibiting waste of the present estate

    prohibition of invalid racial conditions rule against unreasonable restraints on marriage

    Rule Against Perpetuities

    No interest is good unless it must vest and close, if at all, no later than 21 years after

    some life in being at the creation of the interest.

    4 concepts:

    1. interest must vest and close Or Fail.

    2. Must vest within the perpetuities period.

    3. Lives in being are persons who have an interest in the peroperty.4. Validating life is one of lives in being. She helps to prove that property is certain vest,

    and if not, then Fail.

    Will it vest more than 21 years after the death of someone in being at the creation of the

    interest?

    Policy: Avoidance of Dead Hand Control.Common law--COVE (applies to):

    a. Contingent remainderb. Option to purchasec. Vested remainder subject to opend. Executory interest

    i. Wait and See: don't invalidate future interests just because there's apossibility of vesting outside perpetuities, wait 21 years after the

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    end of the life of interested parties, and if it hasn't vested, it can

    stay with grantor.ii. Cy pres: equitable reformation; strike out offending language and

    get the conveyance as close as possible to the grantor's intent

    iii. Uniform Statutory RAP: rules defined by statute , validate transfersthat otherwise violate the rule against perpetuitiesif interest vestsat any time within 90 years.

    O to A for Life, then to B for life, then to O's widow.

    Subject to RAP (contingent remainder for O)

    O is the validating lifeknow at the end of Os life if he has a widow or not.

    Therefore, it doesnt violate the RAP.

    *******

    O to A for Life, then to B if B reaches 50. (B is 10).

    Does this violate?

    ********

    CDCA v. Greyhound (option to purchase subject to RAP)

    ambiguous conveyance is construed as an option to purchase an option to purchase that would vest 21 years later would violate the RAP.

    economic development and prosperity depends upon the free alienability of land.

    Moore v. Phillips (duty not to waste ) a life tenant is considered to be a quasi-trustee for the benefit of the remaindermen

    duty neither to commit waste or to allow waste to occur.

    Permissive waste- lack of ordinary care

    Voluntary -intent to destroy remainder does not have to until the life tenant dies to bring suit for damages from

    voluntary waste.

    Intellectual Property

    Trademarksymbols, identifier

    Copyright- artistic workPatentinvention /innovation

    Qualitex v. Jacobson (trademark of blu green pads)

    Qualitex patents the color of dry cleaning pads and pursues a trademark infringement

    suit against jacobson. Issue: Can a Color be trademarked?

    any word, name, symbol, or device or combo may be trademarked

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    secondary meaning is acquired when the public associate the feature with the source of

    the product

    Functionality Doctrine- prevents trademark law from inhibiting legitimate competition,where another producer uses a useful product feature but deosnt threaten the inventor-

    firms reputation.

    Dilution- tarnishmentinferior brand messing with a better one

    Blurringdistinctive mark losing association with a particular company

    Fed. TM dilution actprovides relief when a mark is likely to cause dilution. (no proofof actual economic harm needed.

    Copyright

    created the moment the work is created, limited by Fair use doctrine (ie. use for

    teaching).

    Patent- controlled by government office.

    Requirements

    1) machine, method or composition of matter

    2) invention must be novel3) nonobvious

    4) useful

    Moore v. Regents

    Moore underwent surgery for leukemia .

    he sues the doctors for conversionbecause they patented his cells.

    his claim was based on unwanted publicity cases. the court says the doctors put in their own work to create the cell line, and the

    conversion claims fails.

    Dissent- appeals to the basic sanctity of the human body/fairness.

    Personhood TheoryPersonhood theory justifies private property as essential to the full development of the individual. Under

    this approach, some items are seen as so closely connected to a persons emotional and psychological well-

    being that they virtually become part of the person, thereby justifying broad property rights over such

    items.

    4. Publicity Rights

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    Martin Luther King, Jr. Center v. American Her.

    Establishes a right to publicity as separate from a right to privacy. Right to publicity survives the death of its owners.

    Factors Etc. v. Pro ArtsBoxcar owned the right of publicity , assigned to Factors after

    he died.

    The celebrity doesnt need to have commercially exploited that right before he/she died

    for it to survive.

    Should MLKs reticence to use his image for commercial purposes, therefore allowexploiters to do so after his death without his permission?No, obvi.

    HELD: Right to Publicity after death and so they have a legit claim Injunction Upheld.

    Haelan v. Topps Chewing Gum-1953 right of PUBLICITY first recognized

    Ball players had a claim of pecuniary worth and could grant it , thus barring any other

    advertiser from using their pictures. Exclusive right to name/likeness.

    Dred Scott v. Sanford

    Slave sues for freedom under the Missouri Compromise. He had been a free man in the north, but he moved back to the south.

    Justice Taney said, yes all men were created equal but they werent referring to Black

    men. Is he a citizen? No.

    How does this effect property ? He was treated as property.

    The Antelope Justice John Marshall of the U.S. Supreme Court (10 Wheaton 66) ruled that the African slave trade wasnot contrary to the law of nations and that the American cutter had no right ofsearch and seizurein

    peacetime. Marshall directed that the slaves be restored to the foreigner in possession at the time of the

    capture.

    Relations Among Neighbors

    Adverse Possession

    Brown v. Gobble

    (remanded because the satisfied the statutory period by tacking the use of the previousowner).

    A. Standard of Proof for Adverse Possession Claims.

    http://www.answers.com/topic/search-and-seizurehttp://www.answers.com/topic/search-and-seizurehttp://www.answers.com/topic/search-and-seizurehttp://www.answers.com/topic/peacetimehttp://www.answers.com/topic/peacetimehttp://www.answers.com/topic/peacetimehttp://www.answers.com/topic/search-and-seizure
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    majority- A.P. must be shown by clear and convincing evidence.

    policy reasonAP claims involve the loss of a homestead, a family farm assoc with

    traditional family and societal values.

    party trying to show AP has burden of demonstrating by clear and convincing

    evidence.

    Elements :

    Ccontinuous

    H- hostile(is it against the owners wishes)

    A- actual

    Nnotorious and open

    C - claim of right (no deed)or-color of title (if successful under color of title, the whole

    land can be APd- not just the bit youve been using).

    E- exclusive

    S- statutory period- 20 years in general .

    s claim tackingadding together successive adverse possessorsto meet the Ten

    Year requirement. must have privity of estate (vertical) with previous owner to claim this.

    there is a presumption of non-permissive use which will satisfy hostility unless the true

    owner proves permission.

    Good faith/bad faith jurisdiction (subjective elements)

    in a good faith jurisdiction required to be accidental, without knowing that the landbelonged to someone)

    in a bad faith jurisdiciton, must have known you were against the owners wishes.

    Romero v. Garcia (spanish deed used for color of title with a sufficiently detaileddescrition of the parallelogram of the land).

    Nome2000 v. Fagerstrom

    Fagerstroms have been camping on the land for a long time issues : were they using the land exclusively ? successfully argues they were using

    the land in the way Native Alaskans would use it (not super exclusive, but that was the

    custom of the area) - (a tract of rural land has different standards that urban land).

    were they hostile to Nome2000- court argues this is an objective testdid they use theland as if they owned it

    other elements satisfied, but remanded to decide the scope of theirAP claim.

    Four Approaches to the Adverse Possessors State of Mind1) MAJORITY Objective test based on possession (majority rule)

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    A. Lack of Permissionall that matters is that the possessor lacked permission from the

    true owner.

    Subjective tests based on :

    2) claim of right- possessors intention to appropriate and use the land as his own to the

    exclusion of all others(looks subjective but is actually a derivation of 1)

    -different approaches by state that can include subjective

    3) intentional dispossession- bad faithmust be aware of being in someone elsesproperty + must intend to oust the true owner. (can be similar to claim of right)

    4) MINORITYgood faith- opposite of intentional dispossession- in some states

    require the opposite of an intent to oust the true ownermust be innocent and mistakenlyoccupy property owned by someone else.

    Justifications for Adverse Possession

    1) eliminates stale claims to land title

    (removing the risk that ownership will be based on the distanct past)

    2) encouraging maximum utitlization of land.3) Holmes - that the AP has roots and they would be displaced (personhood theory)

    4) Posners economic argument. The AP loses the property, thats very bad. The original

    possessor, who hasnt had the property gets a diminishing marginal utility fromreinstatement of the property.

    why protect the land pirate?

    1) rest on actual use instead of amorphous good faith

    2) failure of true owner to object might be understood as effective abandonment of the

    owners rights.3) statute of limitations ( if you couldnt bring it in a ten year period the encroacher

    develops legitimate interests).

    4) reliance.

    Class notes on justifications:

    1- CLcertainty of ownership

    - encourage maximum use of land2- economic justificationmarginal utlity of incomeAP really wanted it, doesntmean as much to the owner

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    3-Moralpersonhood theory- people becomes attached to property and eventually itbecomes an extension of them that should be protected by property interests.

    Prescriptive easements, are implied easements granted after the dominant estate hasused the property in a hostile, continuous and open manner for a statutorily prescribednumber of years. Prescriptive easements differ from adverse possession by not requiring

    exclusivity.

    Community Feed Store v. NE Culvert Corp.

    Continuous

    HostileActual

    Notorious and Open

    Claim of rightStat Period.

    small wholesale feed business, has been using area on the property for loading

    feed, and for customers to turn around in for ages, until a survey said the land was

    and he built a wall around the area.

    the area had been used open, notorious, and continuous

    Rule- open and notorious use will be presumed to be adverse.

    Claim of right has to be practiced regardless of the wishes of the owner of the land.

    *****Acquiscence?Based on initial permissive use lost grant

    owner must have known about land use initially and positively allowed it to continue.**** is this specfic to prescriptive easement?

    Riparian owners: Accretion and Avulsion

    Acretion slow build up of silt or sand on the border of the land by the river belong

    to the owner of the land.

    Avulsion-sudden changes like earthquakes, not held to be changes in the borders ofthe property.

    A.P. for personal property- Conversion.

    Statute of limitations for replevin actions, then when laches begins to run can be a

    very important consideration.

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    OKeefe v. Snyder

    Discovery- the statute of limitations should only start running when the true owner

    discovers or reasonably should have discovered where the stolen property is located.

    * UCC merchant exceptionclearing the title on goods once when a merchant receives

    them.

    Guggenheim v. Lubbell

    Demand Rule (favors the true owners)claim starts whenever you demand it.

    _____________________________________________________________________

    Defining Unreasonable Land Use

    Nuisanceneighbor is doing something lawful, however, impedes your ability to do use

    and enjoy your property.non-trespassory substantial and unreasonable interference on the right of neighbor to

    enjoy and use his property

    Nuisance Considerations:

    i. Unusually sensitive plaintiff (hyper-sensitive use)ii. Plaintiff comes to the nuisance (prior use-nuisance/lack of

    nuisance was there first)

    iii. Extent and character of harm (social value/social utility)Nuisance factors: substantial right, fairness, social value of conduct causing inference.

    Page county v. Honeywell (argued unusually sensitive plaintiff and lost for tv

    interference) question of factwhether the operation of a lawful trade consittutes a nuisance is the

    reasonable of conducting it in the matter, at the place, and under the circumstances.

    Priority of occupation and location who was there first is weighted honeywell

    came after Page County. (P appliance store was in the strip mall before D computer

    store; P did not "move into" the nuisance) standard Normal person in a particular localitybut the cannot be making a hyper

    sensitive use of his land that an otherwise harmless behavior by the becomes a tort.

    Fountainbleu- no easements for light and air. interlocutory appeal from a temporary order enjoining Fountainbleu from continuing its

    construction of 14 story addition ot the hotel

    problem during the winter, the addition will put the swimming pool in shadows at theEden Roc.

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    cis utere tuo ut alienum non laedas- one must use his property so as not to injure the

    lawful rights of another- ie. recognized and protected rights and doesnt cause a

    nuisance.

    1. Fountainebleau: Fountainbleu hotel was on Miami Beachbefore P hotel; one reason why the court held forFountainbleu.

    Extent and character of harm (social value)

    Prah: P's use of sunlight defeats the nuisance of neighbor building up to block his

    sunlight; social value to promoting alternative energy

    countervailing new policy concerns that suggest a protective easement for Light.

    1. society has increasingly regulated for general welfare

    2. access to light as energy changes its value3. the need for easy and rapid development is not as great today as it once was, while the

    value of sunlight has gone up. (the old policy was to promote unrestricted development of

    land, ie. wild west- but now with increasing urbanity not as essential, respectingneighbors more important).

    ancient lightsdoctrineenglish common lawa landowner could acquire a right tosunlight by express agreement or a negative prescriptive easement if the landowner had

    received lights for a long time. (old policy)

    American law doesnt usual protect easements for light and air, with the exception of a

    rule against spite fences (ie. building a light blocking fence just to screw over yourneighbors access to light).

    could you argue that solar is an unusually sensitive use?

    Majority Rule - Owners have absolute right to develop their property without liability for

    interference with neighbors interest in light/air. (Fountainbleu)

    Exceptions: Spite Fences-the nuisance is causes maliciously, a factor for ruling for the .and Public Policy concerns (Prah)

    Interesting Note: Tennessee v. 889- disagreed with no light/air nuisances in genera, but

    said that a building can block anothers light based on a typical amount of urban

    sunlightwith blocked adjacent structures

    Solar Shade statutesCal. Stat. 25982. After the installation of a solar collector, a person owning or in control

    of another property shall not allow a tree or shrub to be placed or, if placed, to grow on

    that property so as to cast a shadow greater than 10 percent of the collector absorptionarea upon that solar collector surface at any one time between the hours of 10 a.m. and 2

    p.m., local standard time.

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    Remedies for Nuisance

    damages, injunction, orpurchased injunction (paying off the )

    4 Key property rights:

    Exclude- trespass, public accomodation statutes, reasonable access, beach rights.

    Possess-estates in land, IP, adverse possession.

    Useeasements, nuisance, covenants, zoningTransfer-takings.

    Easements - right/privilege to use another persons land, usually for a particular purpose;

    you can revoke a license but not an easement

    A.Easement by Estoppel: Holbrook v. Taylor

    (built house along road, invested in reliance on license turns into easement)

    Easement by Estoppel: court grants an easement to the benefitted

    estate when the LL implicitly allows tenant to invest/improve theportion of the land used by the tenant; converts a license

    (revocable) to an easement (irrevocable)

    Facts: D granted a license to P on which he could build a house and

    built a road to transport construction materials, continued to use theroad after the house was complete, D wanted P to either buy the road

    or agree to relieve D of liability for the road, P refused and D tried to

    prevent P from using the road; court held that the license became an

    easement by estoppel, Ps improvement of the land by installing theroad and D's implicit permission to build and temporarily use the

    road entitled P to an easement

    B. Prior Use- (Granite v. Manns).

    Elementsa. Grantor had common ownership of the land and

    subsequently separated the propertyb. The single parcel was used previously by the prior

    owner and use was visible and continuous

    c. Easement is reasonably necessary and beneficial tothe enjoyment of the property

    d. Buyer knows of prior use of the property

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    made use of a large tract of land, or two adjoining parcels, and then conveys the part of

    the property without mention being made of the incidental uses.

    Rule- transfer imparts the property with all the benefits and burdens which existed at thetime of the conveyance.

    Facts:P owned property and sold part of it to D; D had a driveway that was used to service both

    Ps and Ds property, no record of an easement prior to selling part of the property, court

    held that P had an easement by prior use, P owned the land previously, P used the

    driveway, the driveway is the safest and most reasonable way to access the main road, Dknew of Ps prior use of the driveway

    C. Easement by Necessity ( Finn v. Williams)1. Elements

    a. At one time, there was Unity of title betweengrantor and purchasor (tracts had a common owner)

    b.

    Easement by necessity only applies to remainingland of the grantor, not to neighboring land

    generallyc. MUST BE Landlocked (no other outlet except over

    the lands of grantor)

    d. Necessary for ingress/egress2. Finn v. Williams: P acquired title of parcel from D, and the

    parcel was entirely landlocked; court held that: when an

    owner conveys a parcel which has no outlet except over the

    remaining lands of the grantor or over the land of strangers,a right of way by necessity exists over the remaining lands

    of the grantor.

    D. Express: created by explicit agreement of the parties; for burden to run w/ the land the

    express easement requires:

    1. In writing2. Grantor's intent that the easement run w/ the land3. Notice by owner of servient estate

    a. Actual: real knowledge of the easementb. Constructive: should go look in the deed if its in

    the deed , or on file .

    c. Inquiry: should realize there might be an easementand ask accordingly

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    Appurtenenant v. Gross Easement(presumption of appurtenant easement)

    Appurtenenant easement:benefit of the dominant estate intended to "run w/ the land,"

    such that the benefit of the easement will pass to any future owner of the dominant estateand continue to burden the servient estate.

    Gross easement: not intended to attach w/ the land; i.e. utility lines, sewer pipes, catered

    for a specific kind of tenant w/ special needs, etc

    Easement by Reservationgrantor reserves for herself

    v.

    Easement by Grant- grantor gives neighbor the right to use.

    Interpretation of Ambiguous Easementsi. Where the grantor's intent is unclear, the extent of the easement

    must be construed as broadly as necessary to carry out the

    purposes for which the grantor intended

    Modifying and Terminating Easements

    i. Easements last forever unless:1. by agreement2. by their own terms3. by merger (owner of servient estate becomes owner of

    dominant estate)4. by abandonment (owner of easement abandons it)5. adverse possession or prescription

    2. Marketable title acts require easements/encumbrances on property be re-recodredperiodically (every 30-50 years).

    _______________________________________________________________________

    Covenants -private agreements/promises concerning the use of land

    1. promise to restrict one's use of land for the benefit of another

    2. enforceable against each other and subsequent owner

    To be enforceable:

    1- in writing

    2- intended to run with the land (be binding on future owners).

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    3- Notice (actual, constructive, inquiry)

    4- Privity of Estate (vertical, horizontal)a. Horizontal Privity-between grantor and grantee

    b. Vertical Privity-between subsequent land owner

    5Touch & Concern

    a. Burdened/Serivent Estate: relates to the use of the land and is intended to benefit the

    the current and future owners of the dominant estateb. Benefitted/Dominant Estate: improves enjoyment of the land or increases its market

    value

    Vertical privity

    Common Law- formerly was not satisfied if the land was leased, and not sold.

    Modern approachleased land will satisfy vertical privity.

    (real covenents strict privity requirements v. equitable servitudes: looser requirement for

    privity)

    Express Covenant:Davidson Bros Inc v D Katz & Sons: (not enforcedbecause reasonableness replaces the

    touch and concern test)

    Facts: Ps conveyed property to D1 w/ a covenant not to operate a supermarket on the

    premises, Ps wanted to avoid competition w/ their own supermarket on another piece of

    property, Ps store profitted but the city (D2) claimed town residents were deprived of a

    convenient supemarket, D2 then bought the land from D1and leased it to C-Town, asupermarket chain, despite having actual notice of the covenant against a supermarket

    Damages: Monetary damages for Davidson, instead of injunction preventing the C-Town

    store from helping the old people that lived nearby.

    Whitinsville Plaza v. Kotseas: (another example of reasonableness trumping strict touch

    and concern)Ds sold parcel to a trust w/ a covenant against using the land as a discount store; an anti-

    competition covenant, trust then conveyed the parcel to P plaza which was subject to the

    benefit of the covenant, Ds later leased a portion of their adjoining property to CVS touse as a pharmacy and discount store, P sued to enforce the covenant; court held, like in

    Davidson, that a reasonableness test should be used to determine if the anti-competition

    covenant should be enforced.

    HeldAnti-Competitive covenant should be enforced. (injunction v. damages?)(doesn't strictly touch and concern the land but the reasonableness requirement trumps,

    and the restriction favors development of commerce etc.)

    Interpretation of Ambiguous Covenants

    i. Blevins v. Barry-Lawrence:

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    1. Covenant: real property for residential purpose only, Nobuilding built other than single or double familydwelling".

    2. Question: did use of property as a group home for peoplewith mental retardation violate the covenant.

    3.

    Held: operation of group home has residential purpose;interpret the ambiguous covenant to promote free use of the

    land; group home considered a residential purpose,

    restriction on single or double family dwelling applied toadding structures rather than using the property in a non-

    traditional family setting

    ii. Doctrinal Approaches1. Traditional Approach: "least burdensome"; free use of land2. Modern Approach: "Grantor's intent"; honor expectations

    of the parties who buy land w/ restrictions on them and the

    neighbors who rely on those restrictions

    Modifying and Terminating Covenants

    i. changed conditions ii. Relative hardship iii. Statutory/Constituational concerns.

    i. Changed Condition1. If benefit is still capable of being enjoyed, covenant will be

    enforced

    2. If benefit is no longer capable of being enjoyed, due tochanged condition, covenant is unenforceable

    3. El Di v. Bethany Beach: town sued to enjoin store ownerto enforce covenant against serving alcoholic beverages;

    court held the covenant was unenforceable, the nature of

    the community has changed from a quiet beach community

    to a commercially profitable beach town, covenantsrestricting commercial development has been ignored,

    "brown bagging" of alcoholic beverages has been allowed;

    the benefit of having a sober, quiet town is obsolete

    ii. Relative Hardship:1. If harm of enforcing the covenant substantially

    outweighs the benefit of not enforcing the covenant,covenant will not be enforced

    2. If harm of enforcement is less or only slightly worse thanbenefit of non-enforcement, covenant will be enforced

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    Racially Restrictive Covenants

    i. Shelley v. Kraemer: racially restrictive covenants cannot beenforced by the court; constitutes state action in discrimination;

    would violate the 14th Amendmentii. Evans v. Abney: court can follow the grantor's intent to restrict theproperty to whites and allow the conveyance to fail rather than

    enforce integration against the grantor's intent; racial motivationwas from a private person rather than the state

    Types of Leaseholdsi. Term of Years: lease lasts for a specified period of time agreed

    upon by the parties, usually at least a year, at the end of the lease

    term the property automatically returns to the LL

    ii.

    Periodic Tenancy: lease lasts for a specified period of time, usuallyless than a year or a month-to-month lease; at the end of the lease

    term the lease renews automatically unless the LL or T agrees toend the lease; notice is required before either party can terminate

    the lease

    iii. Tenancy at Will: similar to a periodic tenancy except that the leasecan be terminated w/o notice by either party; most states have

    effectively abolished this type

    iv. Tenancy at Sufferance: aka holdover T, tenant is rightfully inpossession of the property but wrongly stays after the lease hasexpired; LL still needs to go thru proper eviction procedures to get

    a T at Suff out of the property

    a. Covenant of Quiet Enjoyment: must constitute a significant interferencewith tenant's quiet enjoyment of their property; T must leave the premisesbefore making a claim or asserting a defense of quiet enjoyment; can

    claim rent abatement for the diff in value of the property w/ the breach

    and w/o the breach of the covenantb. Implied Warranty of Habitability: failure of landlord to comply with

    housing code; derived from contract law since leases are also contracts as

    well as property interests; T need not leave the premises before making aclaim or asserting a defense of breach of IWH; can claim punitive

    damages if violation of the housing code is particularly bad

    c. Constructive Eviction: living arrangements become so unbearable fortenant that they cannot live in the apt anymore; can be used to argue aviolation of quiet enjoyment AND implied warranty of habitability

    d. Minjak v. Randolph: Ts/Ds leased an apt in NYC for living and recordingmusic, LL's actions made the recording studio part unlivable and Tsrefused to pay full rent, only for the portion of the apt in which it was still

    ok to live, LL sued Ts for back rent, Ts defended on constructive eviction

    from breach of quiet enjoyment; court held that constructive eviction

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    can be used to defend against a breach of the covenant of quiet

    enjoyment in only a portion of the property; Ts properly left the portionof the apt that was unlivable

    e. Blackett v. Olanoff: Ts withheld rent from LL b/c the bar, also a T, wasplaying loud music and staying open late in contravention of LLs lease,

    LL sued for back rent, argued he himself did not breach Ts covenant ofquiet enjoyment and he is not chargeable w/ fellow Ts breach of QE; court

    held that even tho LL did not intend to violate Ts cov. of QE, he allowed

    the bar T to breach it by his lack of enforcement of the bar T's lease, thebar's actions flowed as the natural and probable consequence of what LL

    permitted them to do, thus LL could be held liable for constructively

    evicting Ts

    f. Javins v. First National Realty Corp.: Ts withheld rent and claimed LLviolated many provisions of the DC Housing Code, LL sued for back rent;

    court held that an implied warranty of habitability is present in every

    lease; value of a lease is no longer simply in the land but includes

    adequate housing w/ running water, electricity, and maintaining thepremises; Ts could withhold rent for breach of IWH and violation of

    the housing code

    Real Estate Transactions:

    Establishing Seller/Broker Agreement

    Deals with who can sell and commission rights

    1. Exclusive broker- gives the broker the right to collect commission if property is soldby her efforts or sold to anyone at all, even if owner found buyer without brokers

    help.

    2. Exclusive agency- broker gets commission if property is sold by her or any otherbroker, but not if the prop is sold by owner.

    3. Open or nonexclusive- broker only gets commission if she is the first to procure abuyer.

    Seller/Broker duties to Buyer Caveat emptor (let the buyer beware)

    Buyer finds house as is

    Traditional rule No duty to disclose defects in the house

    Today No duty to disclose apparent defects

    (Hole in the roof, crack on the wall, crack on the floor)

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    Seller has the duty to disclose material information that would not normally be available

    to the buyer.

    House had foundation problems- must disclose (latent defects)

    House is haunted- must disclose

    Next-door neighbor is registered sex offender- unclear whether need to disclose.

    Johnson v. DavisDuty to disclose

    (Johnson lies about peeling wallpaper. Davis then pays 26,000 deposit and takes title to

    the house)

    Davis wins, rescinding under a theory of fraud.

    Must disclose information that is

    Known to the seller/broker

    Reasonable buyer would want to know

    Affects the terms of the transaction or induced buyer to buy

    Misrepresentation vs. nondisclosureHere, there was both

    Nondisclosure was deemed fraudulent

    Purchasing the house1. Parties sign purchase and sale agreement (usually deposit made)

    2. Executory Period

    Inspection

    Financing

    Title search

    3. Closing

    Buyer agrees to pay entire amount

    Seller delivers deed to buyer

    Risk of Lossif the House burned down during the executory period, the risk of losswould be on the BUYER. (some courts opposite).

    DEED- Terms, Deliverty, Title Protection:

    Deeds terms:

    1. identify parties2. describe property being conveyed

    3. state grantors intent to convey

    4. contain grantors signature

    Delivery Deed must be delivered to grantee/donee or third party

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    Recording System

    Race

    First to record deed wins

    NoticeSubsequent purchaser prevails over earlier one only if did not have notice of earlierpurchase

    Race/Notice

    Subsequent purchaser wins over prior unrecorded only if

    Had no notice of prior sale and

    Records first

    Shelter Doctrine-

    Allows a bona fide purchaser to convey property to a 3rd

    party even if 3rd

    party is onnotice of an earlier conveyance.

    O to A (A does not record)

    O to X (has no actual notice of conveyance from O to A)X records

    A records

    X conveys to C (C has notice of conveyance from O to A)

    A v. C

    R: CN: C

    R/N: C

    How does the U.S. Constitution define ones ownership of property?

    The Constitution confers =>

    State govts with police powers (10th

    Amendment)

    Federal and state govts power of eminent domain (take property)

    The Constitution limits exercise of government

    5th

    Amendment, Takings Clause

    No person shall be deprived of life, liberty , or property, without due process of law; nor

    shall private property be taken for public use, without just compensation.

    Takings Clause

    1. Government taking2. For public use

    3. Just compensation

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    Kelo v. City of New London

    city used eminent domain to take some land as part of a development plan in Ct.

    question is whether the citys taking of property qualifies as a public use

    they used onn. Gen. stat. 8-188 to justify the taking of eminent domain.

    NLDC successfully acquired most of the land, but some failed, resulting in

    condemnation proceedings, which are the issue in this case.

    Kelo has lived in ft. Trumbull since 97, and made improvements, loves her water view.

    Petitioners own 15 properties in the area4 in parcel 3, and 11 in parcel 4A.

    p.1076

    proc historythey brought action in superior court, and they prohibited the takings in 4A

    the park or marina support but denied relief as to the propertyies located in parcel 3

    (office space)apeal to supreme court found that the takings were justified as for economic development

    relying onMidkiffandBerman(w dissent as to a heightened standard for econ. Devel.takings)

    Berman (public use unequivocally confirmed)btm 1077- upheld redevelopment of ablighted area,where most made into public facilities, with the remainder used for lowcost housing.

    Midkiffpurpose not mechanics decides public use

    p.1080 petitioners argue that using eminent domain for economic development blurs the

    boundary between public/private takings.

    1081 shoots down the idea that government has to show with reasonable certainty

    that the use will actually accrue public benefitssays better job for legislature or expertagencies to do that.

    Heldonce the state has decided to use land for economic development it is not up to thejudiciary to question them. The question of when/how state decides that must be debated.

    The petitioners case is dismissed.

    (taking should be upheld under Public Use Clause, const. Amendment 5, as long as it

    rationally relates to a conceivable public purpose )

    Kennedy concurrence 1083a court confronted with an accusation of impermissable

    favoritism to private parties should seriously consider it here the court took it

    seriously.

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    - a broad bright line rule saying no takings for econ devwould prohibit a largenumber of takings that would greatly benefit the public.

    -OConner Scalia Thomas Dissentp.1084

    espouses a judiciary check, even if limited, on determinations of public use.

    Oligoplya market dominated by a small number of sellers, and they take each others

    actions into accountthe court inMidkiffbroke up this type of cartel in a public taking

    This dissent distinguishes the necessity of the takings in Berman and Midkiff on p.1085-as instances ofproperty inflicting affirmative harm on society

    1086worried about broad ramifications if any land can be taken for possible benefit

    Thomas Dissent

    If this project is public use than any project is.

    The constitution came from the Common Law , and Blackstone said that public

    necessity is postponed tot eh sacred rights of private property

    back to the right to exclude.

    p.1087- states used em dom for quintessentially public servicesroads, ferries, canals,

    railroads and parks.p.1088 Mill Actsgranted rights to prive mills to other land.

    P.1089- public takings destroyed minority populations in downtown areas.