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									                                              OUTLINE - PROPERTY
                                          Professor Doremus - UC Davis 1997
                                                                                                                     Prepared by Keith G. Wagner
                                                                                                                     USE AT YOUR OWN RISK


                            SUMMARY OF OUTLINE
I. The Concept of Property Law ...................................................................................................7
   A. Why have Property Rights? .................................................................................................7
   B. Types of Property Rights ......................................................................................................7
      1. Liberty to Use.......................................................................................................................7
      2. Right to Exclude ..................................................................................................................7
      3. Power to Transfer .................................................................................................................7
      4. Power to Devise or Bequeath ...............................................................................................7
      5. Immunity from Damage .......................................................................................................7
      6. Immunity from Expropriation ..............................................................................................7
   C. Theories of Property .............................................................................................................8
      1. Traditional Native American Concepts................................................................................8
      2. First Possession and Labor ...................................................................................................8
      3. Positivism and Legal Realism ..............................................................................................8
      4. Natural Rights, Social Contract and Human Flourishing ....................................................8
      5. Consequentialism, Utilitarianism and Efficiency ................................................................8
      6. Social Relations Approaches ...............................................................................................9
   D. Where do property rights come from?................................................................................9
      1. The Legislature ....................................................................................................................9
      2. Legislative Action v. Judicial Action ...................................................................................9
   E. WHY do we create the rules we do--What is the BASIS? .................................................9
      1. Maintain Order ...................................................................................................................10
      2. Stability ..............................................................................................................................10
      3. Social Policy ......................................................................................................................10
      4. Maintain Power Structure ..................................................................................................10
      5. Facilitate Commerce/Markets ............................................................................................10
      6. Fairness ..............................................................................................................................10
      7. Clarity.................................................................................................................................10
II. Initial Allocation of Property Rights .....................................................................................10
   A. Conquest / Discovery ..........................................................................................................10
      2. Property Rights Derived From the Sovereign ....................................................................11
      3. Forced Seizure of Property from Native American Nations ..............................................11
   B. Capture / First Possession ...................................................................................................11
      1. Wild Animals .....................................................................................................................11
      2. Oil and Gas ........................................................................................................................12
   C. Labor / Investment ..............................................................................................................12
      1. News and Information ........................................................................................................12
      2. Copyright vs. Fair Use (VCR's) .........................................................................................13
      3. FACTS vs. ORIGINALITY in copyright ...........................................................................13
   D. Property and Human Flourishing .....................................................................................14
      1. Some basic "elements" of being human. ............................................................................14
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     2. Legal Rights to Shelter and Welfare ..................................................................................14
     3. The Right to Be Somewhere (p. 100 et. Seq.)....................................................................14
     4. The origins of homelessness (for providing shelter to homeless) (Rossi, p. 104-109) ......15
     5. The Homeless Muddle (against providing shelter to homeless) (Ellickson, p. 109-111) ..15
     6. "Everything in its place" (R 8-13) ......................................................................................16
   E. Addressing Novel Claims ....................................................................................................16
     1. Human Genes .....................................................................................................................16
III. REDISTRIBUTING PROPERTY .......................................................................................17
   A. Finding .................................................................................................................................17
     1. Generally ............................................................................................................................17
     2. Categories of "Found" Property .........................................................................................17
     3. Who owns found property? ................................................................................................17
     4. Why have all these rules?...................................................................................................18
     5. LOST PROPERTY STATUTES .......................................................................................18
     6. Why distinguishing TYPE of found property is important. ...............................................18
     7. Burial Items and Artifacts ..................................................................................................18
     8. Accretion ............................................................................................................................19
   B. Adverse Possession ..............................................................................................................19
     1. Generally ............................................................................................................................19
     2. ELEMENTS OF ADVERSE POSESSION .......................................................................19
     3. Vacant Land .......................................................................................................................20
     4. Border Disputes .................................................................................................................21
     5. TACKING..........................................................................................................................21
     6. Arguments in favor of Adverse Possession .......................................................................21
     7. Arguments against Adverse Possession .............................................................................22
     8. Government owned lands. .................................................................................................22
     9. Squatters.............................................................................................................................23
     10. Freed Slaves .....................................................................................................................23
     11. Modern Squatters .............................................................................................................23
   C. Eminent Domain (Condemnation).....................................................................................24
     1. Police Power vs. Eminent Domain Power .........................................................................24
     2. Market and Political Failures .............................................................................................25
     3. Public Use ..........................................................................................................................25
     4. Just Compensation .............................................................................................................27
IV. PROPERTY RIGHTS...........................................................................................................28
   A. Right to Exclude ..................................................................................................................28
     1. Generally ............................................................................................................................28
     2. Trespass..............................................................................................................................28
     3. Common Law and Unreasonable Exclusion ......................................................................29
     4. Statutes - CIVIL RIGHTS ACT of 1964 ...........................................................................29
     5. Statutes - Civil Rights Act of 1866 ....................................................................................30
     6. Statutes: Federal vs. State .................................................................................................30
     7. Constitution: First Amendment .........................................................................................30
     8. Labor Picketing ..................................................................................................................32
   B. PUBLIC TRUST DOCTRINE ...........................................................................................32

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     1. PUBLIC TRUST - Beach Access ......................................................................................32
     2. Other COMMON LAW doctrines used for Beach Access ................................................32
  C. ENVIRONMENTAL PROTECTION ..............................................................................33
     1. PUBLIC TRUST - Restrictions on use ..............................................................................33
  D. Land Use Conflicts ..............................................................................................................34
     1. Trespassory v Nontrespassory invasions............................................................................34
     2. Four basic methods of resolving land use conflicts ...........................................................34
     3. Four basic REMEDIES for land use conflicts (p. 271-2) ..................................................35
     4. Land use problems are usually RECIPROCAL .................................................................35
     5. Surface Water; Flooding ....................................................................................................35
  E. Nuisance ...............................................................................................................................36
     1. General Definitions ............................................................................................................36
     2. Elements of NUISANCE: Unreasonable Conduct; Substantial Harm...............................36
     3. Nuisance DOES NOT require negligence..........................................................................36
     4. Nuisance v. Trespass:.........................................................................................................37
     5. Normal Person is standard .................................................................................................37
     6. "Coming to the nuisance" ..................................................................................................37
     7. No nuisance against Unusually Sensitive Use. ..................................................................37
     8. Ultra-hazardous activity as nuisance. .................................................................................37
     9. R2d Torts §826(a) - "Unreasonable" land use ...................................................................38
     10. R2d Torts § 827 - Gravity of Harm - Factors Involved ...................................................38
     11. R2d Torts § 828 - Utility of Conduct—Factors Involved ................................................38
     12. MAJORITY VIEW: NO easement for LIGHT and AIR ................................................38
     13. MINORITY VIEW: Nuisance doctrine APPLIED to LIGHT .........................................38
  F. PUBLIC Nuisance (p. 334-335) ..........................................................................................39
     1. Definitions..........................................................................................................................39
     2. Distinguishing PUBLIC from PRIVATE nuisance ...........................................................39
     3. Who may sue for Public Nuisance? ...................................................................................39
     4. Examples of PUBLIC NUISANCE. ..................................................................................40
  G. REMEDIES FOR NUISANCE ..........................................................................................40
     1. Three TYPES of REMEDIES in nuisance cases (p. 331) ..................................................40
     2. Alternate approach: "comparative nuisance" ....................................................................41
     3. Effects of distribution of ENTITLEMENT as compared to RULE selected. (chart, p. 332)41
     4. Balancing of the Equities ...................................................................................................41
     5. NECESSITY of others may force  to take $$ instead of injunction. ...............................42
     6. MUST CHOOSE between INJUNCTION and $$ damages for continued nuisance. .......42
     7. Outline of CURRENT NUISANCE LAW in the courts (p. 333) ......................................42
     8. ECONOMICS:  may purchase injunction to continue nuisance. ....................................42
     9. APPLICATION of ABOVE INFORMATION. .................................................................43
V. LAW and ECONOMICS (p. 338-356) ..................................................................................44
  A. Serves TWO functions. .......................................................................................................44
     1. Descriptive: Explaining existing patterns. .........................................................................44
     2. Normative: Describing the world that SHOULD be. .........................................................44
  B. THEORY BEHIND L&E: The law should establish EFFICIENT rules ......................44
     1. Maximizing Social Utility..................................................................................................44

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     2. Value based on what people are WILLING and ABLE to pay. .........................................44
  C. Requires ACCURATE analysis of ALL costs. .................................................................44
     1. Each party MUST bear full cost of their activities for truly EFFICIENT" result. .............44
     2. EXTERNALITIES .............................................................................................................44
  D. If L&E analysis is accurate, it wont matter who gets the entitlement. ..........................44
     1. Efficiency results directly, or through bargaining. .............................................................44
     2. But DISTRIBUTION of WEALTH is NOT THE SAME. ................................................45
  E. If TRANSACTION COSTS too high, INEFFICIENCY may result. .............................45
     1. Too many parties ................................................................................................................45
     2. Strategic Bargaining ...........................................................................................................45
     3. Lacking Relevant Information ...........................................................................................45
  F. Typical LEGAL soultions to UNCERTAINTY in analysis .............................................45
     1. Burden shifted to party who could avoid conflict most easily ...........................................45
  G. COASE THEOREM: .........................................................................................................45
     1. PREMISE: All conflicts in land use are RECIPROCAL. .................................................45
     2. PART I: With no TRANSACTION COSTS any decision is efficient. .............................45
     3. PART II: With TRANSACTION COSTS, choice by court may affect efficiency ............45
  H. CRITICISMS of L&E and COASE THEOREM ............................................................45
     1. EFFICIENCY doesn't indicate WHO right should be awarded to. ....................................45
     2. EFFICIENCY ASSUMES initial distribution of WEALTH and PROPERTY is correct. 45
     3. L&E should be based on ASKING PRICE not PURCHASE PRICE................................46
     4. Economics does not address MORAL concerns ................................................................46
VI. POLICY ARGUMENTS in Property Disputes (See pg. 279-285, and 365-374)..............46
  A. Rights: Freedom of Action v. Security ..............................................................................46
     1. Based on CURRENT INTERESTS of parties involved in dispute. ..................................46
     2. Justice and Fairness in Social Relationships ......................................................................46
     3. Rights as freedom of action ...............................................................................................46
     4. Rights as security ...............................................................................................................46
     5. Altruism, GOLDEN RULE................................................................................................46
     6. Individualism, SELF RELIANCE......................................................................................46
     7. COMPENSATION ............................................................................................................46
     8. No LIABILITY without fault .............................................................................................46
     9.:  Should FORESEE consequences of their own conduct. ...............................................47
     10.:  should FORESEE and PROTECT against future uses. ...............................................47
     11. REASONABLE EXPECTATION that newcomers will adjust to current usages ...........47
     12. REASONABLE EXPECTATION to be able to develop. ...............................................47
     13. Value judgments ..............................................................................................................47
  B. Social Utility: based on FUTURE EFFECTS of rule IF ADOPTED. ............................47
     1. BUZZ WORDS:  Competition,  Secure Investment .....................................................47
     2. Promoting the general welfare by enacting appropriate incentives ...................................47
     3. Promoting Competition......................................................................................................47
     4. Protecting the Security of Investment ................................................................................47
     5. Balancing Interests .............................................................................................................47
  C. JUDICIAL ROLE: separation of powers, defining proper sphere of influence. ..........47
     1. ROLE OF PRECEDENT ...................................................................................................47

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     2. INSTITUTIONAL ROLE ..................................................................................................47
  D. Formal Realizability or Administrability: Rigid Rules v. Flexible Standards ..............47
     1. Predictability v. Justice in the Individual Case ..................................................................47
     2. RIGID Rules ......................................................................................................................48
     3. FLEXIBLE Standards ........................................................................................................48
     4. Formal Realizability and Social Utility..............................................................................48
VII. ESTATES IN LAND: A FAST PRIMER .........................................................................48
  A. Fee Simple Absolute ............................................................................................................48
  B. Defeasible Fees .....................................................................................................................48
     1. FUTURE INTEREST in GRANTOR ................................................................................48
     2. Future Interest in 3rd Party..................................................................................................49
  C. LIFE ESTATE ....................................................................................................................49
     1. Current interest: Life estate ................................................................................................49
     2. Future interest ....................................................................................................................49
VIII. ESTATES IN LAND ..........................................................................................................49
  A. Special Notes on Effects of Estates ....................................................................................49
     1. ASSUMPTION is Fee Simple Absolute unless specified otherwise. ................................49
     2. SALE of LIFE ESTATE ....................................................................................................49
     3. RIGHT of ENTRY is TRANSFERRABLE and INHERITABLE (p. 540) .......................49
     4. Reverter v. Right of Entry: .................................................................................................49
     5. LACHES: no recovery even under RIGHT of ENTRY if GRANTOR waits too long (p.
     540) ........................................................................................................................................50
     6. Destructibility of Contingent Remainder (p. 544) .............................................................50
     7. DOCTRINE of WORTHIER TITLE (p. 545) ...................................................................50
     8. RULE in SHELLY'S CASE ...............................................................................................50
  B. Fee Tails (p. 546)..................................................................................................................50
     1. Designed to keep property in family dynasty. ....................................................................50
  C. REGULATION of FUTURE INTERESTS ......................................................................51
     1. Presumption Against Forfeitures .......................................................................................51
     2. No Creation of New Estates ...............................................................................................51
     3. Rules regulating SUBSTANCE .........................................................................................51
IX. Trusts (p. 547) ........................................................................................................................51
  A. Equitable Interest In Property...........................................................................................51
     1. Trust managed for beneifit of beneficiaries .......................................................................51
     2. Trustee holds LEGAL title .................................................................................................51
     3. Trustee under Fiudciary Obligation ...................................................................................51
     4. EXAMPLE .........................................................................................................................51
X. LIFE ESTATES and WASTE ...............................................................................................51
  A. Conflicts between Owners of CURRENT interests and FUTURE interests. ................51
     1. WASTE ..............................................................................................................................51
     2. Forms of waste ...................................................................................................................52
     3. TEST of waste....................................................................................................................52
     4. COURT MAY ORDER SALE of LAND held as Life Estate with Future Interest. ..........52
XI. INTERPRETING CONVEYANCES ..................................................................................52
  A. Two IMPORTANT policies................................................................................................52

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     1. Implement the intent of the Grantor ...................................................................................52
     2. Presumption AGAINST finding future interest .................................................................52
  B. Other considerations in interpretation ..............................................................................53
     1. Order of Preference of Future Interest ...............................................................................53
     2. Conditions as COVENANTS ............................................................................................53
  C. Trusts and Cy Pres Doctrine ..............................................................................................53
XII. RULES REGULATING RESTRICTIONS ON USE .......................................................53
  A. Rule Against Creation of New Estates ..............................................................................53
     1. General Rule ......................................................................................................................53
  B. Rule Against Unreasonable Restraints on Alienation ......................................................53
     1. Total Restraints on Alienation are VOID (note 1. P. 571). ................................................53
     2. Partial restraints are valid if reasonable. ............................................................................54
     3. Temporary Restraints on Alienation ..................................................................................54
     4. Restraints on HOW property is alienable may be permitted ..............................................54
     5. Restraint on Alienation of LIFE ESTATE is generally permitted. ....................................54
     6. Restraints of alienability based on MARRIAGE may be valid .........................................54
XIII. RULE AGAINST PERPETUITIES .................................................................................54
  A. Generally ..............................................................................................................................54
     1. The RULE stated ................................................................................................................55
     2. Justifications for the RAP ..................................................................................................55
     3. FIVE STEP process for assessing a conveyance................................................................55
     4. EXAMPLE of the five step process (Connectituct Bank and Trust v. Brody.) .................55
  B. Reforms of the RAP ............................................................................................................56
     1. WAIT and SEE or SECOND LOOK test ..........................................................................56
     2. UNIFORM STATUTORY RULE AGAINST PERPETUITIES (CA rule) ......................56
     3. EQUITABLE REFORM or Cy Pres ..................................................................................56
  C. OPTIONS to PURCHASE under the RAP.......................................................................56
     1. Option to purchase without time limit is VOID under the RAP ........................................56
     2. Fee simple with OPTION to repurchase is subject to the RAP .........................................56
     3. Lease with option for lesee to PURCHASE is not subject tothe RAP ..............................57
  D. PREEMPTIVE RIGHTS under the RAP .........................................................................57
     1. Generally Preemptive Rights do not violate the RAP ........................................................57
XIV. STATUTORY CONSTRUCTION....................................................................................57
  A. Construction of CONSTITUTIONS vs STATUTES .......................................................57
     1. Judicial Power varies (p. 255) ............................................................................................57
     2. Federal vs State Constitutions (p. 255) ..............................................................................57
  B. Cannons of Construction ....................................................................................................57
XV. CURRENT THROUGH ALL NOTES & READING, FALL '97. ..................................58




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                                                                                                                                    Property
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                            OUTLINE - PROPERTY
                         Professor Doremus - UC Davis 1997
                                                                          Prepared by Keith G. Wagner
                                                                          USE AT YOUR OWN RISK
I.   The Concept of Property Law
     A.    Why have Property Rights?
                  a)     Maintaining order.
                  b)     Minimize conflicts.
                  c)     Protect investments and expectations.
                  d)     Because its "fair." Fairness can be described as protecting the fruit
                         of peoples' labor and possession against intruders.
                  e)     ECONOMIC THEORY: Posner would reject fairness as fuzzy and
                         unnecessary because markets will best resolve such issues.
                  f)     SOCIAL POLICY: Property rights are developed to encourage
                         uses and development that we deem valuable. Penalties are levied
                         to minimize waste and tax breaks are given to encourage
                         appropriate action.
                  g)     MAINTAIN POWER STRUCTURE: Property law is important
                         because it defines who has power, wealth, control and influence
                         over others.
                  h)     MARKET FACILITATION: Private ownership is justified in our
                         society because it creates the ability for markets and trade.
                  i)     DIFFERING SETS OF RIGHTS: There are different models and
                         practices of property relationships in the family, housing, business,
                         charitable organizations and public authorities.
     B.    Types of Property Rights
           1.     Liberty to Use
                  a)     Right to use property as owner sees fit as long as they do not
                         violate the rights of others.
           2.     Right to Exclude
                  a)     Owner has right to exclude others from use
                  b)     Also has right to grant and revoke access.
                         (1)     However, discrimination is not allowed.
                         (2)     May be limited by placing property in the public domain.
           3.     Power to Transfer
                  a)     Right to determine when and whom to sell or give property to.
                         (1)     Once again, no discrimination allowed.
           4.     Power to Devise or Bequeath
                  a)     Right to leave property to whoever owner wants when they die.
                         (1)     Some states require a minimum amount left to surviving
                                 spouse regardless of owner's wishes.
           5.     Immunity from Damage
                  a)     Right to not have property damaged by others.
                  b)     establishes protection under the law.
           6.     Immunity from Expropriation
                  a)     Right to prevent others from taking property against the owner's
                         will.
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            b)     Force of Sale: The government can, for reasons of public policy,
                   force one to sell their property. Owner must be compensated at
                   reasonable rate.
C.   Theories of Property
     1.    Traditional Native American Concepts
           a)      Viewed land as spiritual, and thus land cannot be "owned." (you
                   cannot buy what is not yours to sell).
           b)      Systems developed to promote sharing. Property rights not
                   exclusive and allowed overlap (incomprehensible to us).
     2.    First Possession and Labor
           a)      The concept that ownership can be established by establishing first
                   occupancy and mixing one's labors with raw materials.
           b)      "Finders keepers" theory of property.
           c)      Must show a specific use of the land.
           d)      Locke: Natives not owners because they hunt and fish, rather than
                   engaging in agriculture. Native possession equated with "state of
                   nature" and thus not owned.
           e)      people own their labor and so should own that which they make
                   with their labor.
           f)      Employees have sold their labor to their employer, who then owns
                   what they produce.
     3.    Positivism and Legal Realism
           a)      Property rights are a function of the commands of the sovereign.
           b)      Separates law and morals. Not all moral duties are enforced by
                   legal sanctions. Ownership rights are enforced by law, not by
                   moral right.
           c)      Rights can only be determined by statutory interpretation and
                   analysis of precedent.
     4.    Natural Rights, Social Contract and Human Flourishing
           a)      Certain natural rights are so morally important that they may
                   override general considerations of public policy. Such rights
                   cannot be legitimately sacrificed for the good of the community.
           b)      Rights which are inherent in simply being human.
           c)      Focuses on role that property rights plays in developing individual
                   autonomy and satisfying human needs.
           d)      Suggests that personal interests (place to live) should sometimes
                   take precedence over investment interests (the mortgage).
           e)      Also examines the role that current property rights systems play in
                   promoting inclusion and exclusion of minorities and other
                   disadvantaged groups.
     5.    Consequentialism, Utilitarianism and Efficiency
           a)      Economic theory of property rights
           b)      Examines the consequences of alternative legal rules, and selects
                   the "best" alternative based on a cost benefit analysis which seeks
                   the maximum aggregate level of human satisfaction (social utility).

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            c)   Clear property rights create clear understanding of ownership and
                 this facilitate exchange and utilization.
     6.   Social Relations Approaches
          a)     Analyzes property rights as relations among persons regarding
                 control of valued resources.
          b)     Every legal right in one person creates a vulnerability in another;
                 every entitlement is limited by competing rights of others.
          c)     Since property rights delegate sovereign powers to owners, these
                 right should be defined to accommodate the conflicting interest of
                 all the parties affected.
          d)     Examples include feminist legal theory, critical race theory, law
                 and society and critical legal studies.
          e)     Recognizes that property rights involve complicated networks of
                 relationships with others.
          f)     Shifts question from "who owns this?" to "what relationship has
                 been established?"
D.   Where do property rights come from?
     1.   The Legislature
          a)     All property rights are ultimately initiated by the government.
          b)     Rights are defined by statutes, ordinances and regulations at the
                 federal, state and local levels which provide protection of property
                 interest.
     2.   Legislative Action v. Judicial Action
          a)     BROAD RULES are handled better by legislature.
          b)     INDIVIDUAL DISPUTES handled best through courts.
          c)     Legislature has better PUBLIC ACCESS to process.
          d)     Courts can handle issues in a more TIMELY fashion.
          e)     Issue of POLITICAL INFLUENCE can be played out on both
                 sides.
                 (1)      Judges want to stay on the bench.
                 (2)      Legislature influenced by PACs.
          f)     Courts also have historical roots of making law through common
                 law process.
          g)     Legislature has power to OVERRIDE court decisions, provided
                 that the enactment is CONSTITUTIONAL.
          h)     Courts give meaning to vague language or gaps in statutes.
                 Sometimes there may be a fine line between "clarifying" a statute
                 and creating a new rule.
          i)     Legislature is better at creating broad frameworks of detailed
                 legislation. Courts can only treat the issue at bar.
          j)     Enforcement:
                 (1)      Courts can impose fines/jail for contempt.
                 (2)      Legislature can also mandate fines/jail time AND create
                          agencies for oversight.
E.   WHY do we create the rules we do--What is the BASIS?

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             1.      Maintain Order
                     a)      If we know who owns what & state backs up claims, then conflicts
                             will be minimized.
              2.     Stability
                     a)      Protects investments.
                     b)      Protects expectations.
                     c)      Sense of fairness.
              3.     Social Policy
                     a)      Encourages uses & development that we deem valuable
                     b)      Penalties minimize waste in development/extraction.
                     c)      Tax breaks encourage "appropriate" actions.
              4.     Maintain Power Structure
                     a)      This could be problematic, depending on point of view.
                     b)      Those in power value this. Those who seek change do not.
              5.     Facilitate Commerce/Markets
                     a)      By economic theory, this will ultimately increase wealth overall.
              6.     Fairness
                     a)      Is subjective and fuzzy. Depends very much on point of view.
                     b)      Economics theorists (POSNER) suggest that fairness is not needed.
                             Markets will determine what is "fair" best.
                     c)      Nevertheless, an ILLUSION of fairness is necessary to maintain
                             good relations between the gov't & citizenry.
                     d)      "Fairness" tends to look at protecting
                             (1)     The fruit of peoples LABOR
                             (2)     POSSESION against intruders.
                     e)      Fairness is related to stability in that changing the rules may be
                             viewed as good or bad, depending on where you start and where
                             you wind up.
              7.     Clarity
                     a)      Creating rules that can be UNDERSTOOD is important.
                     b)      This way, one understands what to EXPECT before engagement.
                     c)      BUT, when UNANTICIPATED situations arise, then the rule
                             needs to be examined to see if it fits.
II.   Initial Allocation of Property Rights
      A.      Conquest / Discovery
                     a)      Conquest confers ownership to victor.
                             (1)     Fairness is not a consideration in these cases.
                             (2)     European conqueror's right to "discovered" lands was
                                     recognized by other European nations because of similar
                                     customs and land use patterns.
                             (3)     Native American's rights to land ignored because their
                                     cultural and "land ownership" policies were foreign.
                             (4)     Discovery = "Dibs doctrine"
                             (5)     When land was claimed by discovery, ownership went to
                                     sovereign sponsoring discoverer, not to discoverer directly

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                                    (did Neil Armstrong have a claim to the moon because he
                                    was the first person there?)
                                    (a)    Financing for discovery provided by sovereign.
                                    (b)    Sovereign's army had power to back up claim.
              2.     Property Rights Derived From the Sovereign
                     a)    Basis for ownership is in having TITLE.
                     b)    Title must be traced to "civilized" gov't (European, Russian, U.S.
                           etc.) to be recognized.
                     c)    Civilized includes
                           (1)      Cultivators of land (not hunter-gatherers)
                           (2)      "Like us." (similar customs)
                           (3)      System of individual land ownership
                     d)    Johnson v. M'Intosh, pg. 25 (Sale of land by Native Americans to
                           Whites declared insufficient to grant title to buyer. Native
                           Americans only recognized as having right of occupancy,
                           terminable at the US government's will, and so that was the most
                           they could confer upon others.)
              3.     Forced Seizure of Property from Native American Nations
                     a)    Native Population's claim to ownership of land will not be
                           recognized by the courts unless Congress has specifically conferred
                           ownership to natives.
                     b)    Conquest does not have to be by bloodshed.
                           (1)      Some say this is a good policy because it avoids
                                    unnecessary violence.
                     c)    Tee Hit Tons, pg. 36 (Alaskan natives challenge "taking" of timber
                           from "their" lands. HELD: Tee-hit-tons only had right to use the
                           land (right of occupancy) because they were conquered [although it
                           is never really specified by whom or how])

What if Congress had granted ownership to tribes of the lands which they occupy? This is a
tough call to make. What lands did they "occupy"? Just the lands they lived on? Or the entire
area they roamed. Also, what time frame? When first "discovered"? At the time Congress made
the grant? Or, at the time the lawsuit is brought?

       B.     Capture / First Possession
              1.    Wild Animals
                    a)      The first person to capture a wild animal owns it.
                    b)      Implies a "moral right" of people to own nature.
                    c)      Encourages productive use and social utility.
                    d)      Rule is clear (possession = ownership).
                            (1)     Courts avoid resolving every dispute.
                    e)      Pierson v. Post, p. 51 (Plaintiff and his hounds chase fox on beach,
                            only to have the fox snatched away at the last moment by a saucy
                            intruder. HELD: Wild animals are "owned" once physically


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                            possessed, or when, through hunters skill, the animal is deprived of
                            its liberty (mortally wounded, trapped).)
                     f)     DISSENT: First person to join pursuit with REASONABLE
                            chance of success should be owner. Fairness is not served by the
                            "easy" rule. Courts should leave it to sportsmen ensure that those
                            who put labor into pursuit are not deprived of their just gain.

QUESTION: What if the hunt was on Post's land? The interference by Pierson would have been
a trespass. Landowners generally have a right to decide the fate of wild animals on their own
property, and so Post's claim would have been much stronger against the saucy intruder.

              2.     Oil and Gas
                     a)     Each party owns what is under their land.
                     b)     Each party also owns whatever they can extract, even if it flows
                            from adjacent land.
                     c)     BUT, in gaining access extreme waste or lawless disregard for
                            right of others is not allowed.
                     d)     Elliff v. Texon, p. 56 (Elliff owns producing gas well on their
                            property. Texon taps into same pool from their property. Texon's
                            rig blows out causing massive waste and eventually destroying
                            Elliff's rig, and causing damage to cattle and land as well. HELD:
                            Texon had a right to access the pool because it extended under
                            their land too, BUT they were liable to Elliff for loss of Elliff's
                            share because Texon did not have the right to WASTE the gas.
                            [However, if they simply had CAPTURED it before Elliff, no
                            harm, no foul.].)
                     e)     Why do owners of land above oil get exclusive access?
                            (1)      Perhaps they bought the land in anticipation of the value of
                                     the oil below.
                            (2)      Perhaps they should have a right to reserve the ground
                                     under their land for other uses (basement of a skyscraper).

QUESTION: What kind of rule might be made for minerals which are locked in place below the
ground?

                    f)      Modern View on Oil and Gas
       C.     Labor / Investment
              1.    News and Information
                    a)      There can be differing property rights between different parties
                            over the same property.
                    b)      This exemplifies the connotation that property is about
                            relationships between people, and that property can be viewed as a
                            bundle of sticks, or rights. Some sticks apply to some groups, but
                            may not apply to others.


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                      c)      News, as in the factual event that occurs, is not subject to
                              copyright. News is public property.
                      d)      However, courts do recognize that there is an interest in protecting
                              news from unfair competition between news gatherers so that there
                              is incentive to collect news.
                      e)      INS v. AP, p. 66 (INS is taking AP stories from east coast feed,
                              and printing them in competition with AP in west coast market.
                              HELD: AP has a quasi-property right which protects it from unfair
                              competition by INS, but which does not extend to the public's use
                              and sharing of its information. DISSENT (Oliver Wendell
                              Homes): INS should be able to take as it pleases, but should be
                              required to give credit to AP as the source. (Brandeis): News isn't
                              property. Period.

What if a person scans a newspaper into a website and allows free access? This might be unfair
competition, but it is unlikely. We would need to know when they are posted (is it in
competition? Or a day later?). Also, it could even be argued that by scanning the paper
readership (and thus advertising revenue) might increase, thus leaving the newspaper better off.

               2.     Copyright vs. Fair Use (VCR's)
                      a)    TIME SHIFTING: Since VCR's can are primarily used for time-
                            shifting (recording something broadcast earlier to view it later) this
                            has minimal negative impacts on the companies which hold
                            copyrights to the materials.
                      b)    If the court did hold VCR manufacturers vicariously liable for
                            copyright infringement, broadcaster's ability to reach the "time-
                            shifted" audience would be unduly hampered.
                      c)    Noncommercial uses, such as time-shifting, have not been shown
                            to sufficiently infringe upon the rights of the creator of the
                            copyrighted material.
                      d)    See: Sony Corp. v. Universal City, p. 78.
               3.     FACTS vs. ORIGINALITY in copyright
                      a)    FACTS are not copyrightable
                      b)    ORIGINALITY is copyrightable.
                      c)    In factual compilations, only the originality of form is
                            copyrightable, and then only if sufficiently original to warrant
                            protection.
                      d)    Hard work alone is NOT enough to create a right of protection.
                      e)    Feist v Rural Telephone, R 1-7 (Defendant "steals" names,
                            addresses and phone numbers from plaintiff's phone book for
                            publishing in their own phone book. HELD: Phone book
                            arrangement is so lacking in originality that no copyright
                            infringement exists in transferring factual information.)



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Perhaps Rural made wrong claim (copyright). What if, instead, they had based their claim on
unfair competition?

                     f)    Distinguishing Feist from INS
                           (1)     TIMING: News has timing issue, white pages do not.
                           (2)     Nature of Business: white pages are not the primary
                                   business of Rural, whereas news was for AP & INS (But,
                                   similarity exists in the fact that each one took something
                                   produced by the other in order to compete for the same
                                   market (yellow pages/subscriptions).)
                           (3)     LABOR and CREATIVITY: In INS there was certainly
                                   more involved in gathering and posting the news than in
                                   Rural's efforts in compiling the white pages.
                    g)     Copyright
                           (1)     Government is the source of copyright law.
                           (2)     Mere labor is not enough to generate a claim to copyright
                           (3)     However, creativity is.
                    h)     BOTTOM LINE: It is simply not true that all "valuable interests"
                           are protected by the legal system. Some interests are not protected
                           at all (Feist v. Rural), and almost all are given less that absolute
                           protection. The greater the legal interest granted to the "owner,"
                           the more valuable the property interest is to her.
       D.     Property and Human Flourishing
              1.    Some basic "elements" of being human.
                    a)     SHELTER: If you don't have it, then where do you do the most
                           basic human functions (sleep, go to bathroom, etc.)
                    b)     STABLE EXPECTATIONS of control over at least some resource
                           is a "basic part" of the human experience.
                    c)     HOMEOWNERSHIP allows us to feel there is a place where we
                           can do whatever we want, stability, return on investment.
                    d)     CULTURAL CONDITIONING Why do we really want houses?
                           Because we are supposed to want them.
                    e)     HOMELESSNESS AS A CRIME because many of the things we
                           do in private are regulated in public (taking a dump, sleeping)
                           homelessness tends to create criminals out of otherwise innocent
                           people.
              2.    Legal Rights to Shelter and Welfare
                    a)     Normally when we speak of "property rights" we are talking about
                           the right to keep property. But, is there a legal RIGHT to OBTAIN
                           property?
                    b)     Rights to obtain property have not been universally recognized.
                           (1)     Consider conditions of women and minorities through
                                   history.
              3.    The Right to Be Somewhere (p. 100 et. Seq.)


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     a)     The rules of private property prohibit the homeless from doing
            basic acts in private, but the rules of public property prohibit them
            from doing basic acts in public.
            (1)     Thus, sleeping is prohibited. Urinating is prohibited.
     b)     Except in rare circumstances people rarely CHOOSE to be
            homeless.
     c)     Homelessness can be exacerbated by the unavailability of
            government services.
            (1)     Shelter space is limited.
            (2)     SSI, Social Security and AFDC only available under certain
                    conditions.
            (3)     The only benefit which is widely available to homeless is
                    food stamps.
     d)     The harmless conduct for which homeless are arrested is
            INSEPERABLE from the condition of simply BEING homeless.
     e)     Pottinger v. City of Miami, p. 100 (Court orders city to stop
            arresting homeless people for "innocent harmless, and inoffensive
            acts" such as sleeping and bathing in public, and orders city to set
            up "safe zones" for homeless.)
4.   The origins of homelessness (for providing shelter to homeless) (Rossi,
     p. 104-109)
     a)     HOUSING: Market is limited because homeless have no money.
     b)     LABOR: Lack of unskilled labor positions leave little opportunity
            for homeless to earn wages.
     c)     LIMITS of KINSHIP: At some point, family members are strained
            beyond being able to care for homeless family members.
     d)     EROSION of BENEFITS: Gov't cuts in aid programs have
            undermined income position of extremely poor and inflation has
            exacerbated this situation.
     e)     SHORT TERM SOLUTIONS: Aid the homeless in obtaining
            benefits for which they are already eligible.
     f)     LONG TERM SOLUTIONS: Create job opportunities, possibly
            through public-sector employment (besides armed forces).
            Implement subsidized housing programs. Stabilize the welfare
            dollar, stabilize welfare benefits across the states, and provide
            assistance to families who subsidize their destitute members.
5.   The Homeless Muddle (against providing shelter to homeless)
     (Ellickson, p. 109-111)
     a)     Requests for more gov't funding are adding to the homeless
            problem.
     b)     As more shelters open, people in homes move into streets because
            friends and family members kick them out.
     c)     This argument is supported (supposedly) by the fact that cities with
            the most shelters and aid have the most homeless. (?)


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                      d)    Opening shelters just draws in people who would be living in
                            houses otherwise.
                      e)    Most homeless individuals suffer from mental illness, substance
                            abuse, or both.
                      f)    Thus homeless should be given specially tailored financial
                            assistance and help in managing their lives. But not shelter.
              6.      "Everything in its place" (R 8-13)
                      a)    Housing is more than just shelter. It is a way of structuring
                            economic, social and political relationships.
                      b)    Average people use to be able to reasonably expect to own a
                            single-family home. Now this is an increasingly elusive goal.
                      c)    Because of the central role that homeownership plays in family
                            wealth, the disparities in homeownership between whites an blacks
                            helps explain the dramatic differences in accumulated wealth.
                            (1)     Home loan systems were set up to "rate" neighborhoods.
                                    Black neighborhoods couldn't qualify for loans under this
                                    system with private banks.
                            (2)     FHA refused to guarantee loans in "undesirable"
                                    neighborhoods. And actually REQUIRED deed restrictions
                                    to bar blacks from neighborhoods.
                            (3)     Although these systems are no longer legal, their effects are
                                    still entrenched across the country.

PROBLEM, pg. 50. Summary: City owns foreclosed building where squatters want to take
possession. What are some considerations for either side? (For really fun reading see East 13th
St. Homesteaders v. Lower East Side 646 NYS 2d 324.)

CITY: Squatters do no own the property, but kicking out homeless people could be bad
publicity. Issues of liability for injury to squatters; who will maintain the building?

SQUATTERS: City is not using building properly (Johnson v. M'Intosh). Persons improving
building should get possession (labor theory).

       E.     Addressing Novel Claims
              1.    Human Genes
                    a)    Moore v. UC, pg. 82. (Doctor induces patient to have spleen
                          removed without disclosing his economic interest in spleen for
                          research. Using spleen genes, Dr. creates, and patents with UC, a
                          cell line worth millions. HELD: Although patient can sue Dr. for
                          breach of fiduciary duty, patient still has no property right in the
                          excised spleen and so no conversion exists.)
                    b)    Patient asserts this case is similar to taking likeness of famous
                          persons. BUT celebrities are already selling their likeness, so there
                          is an unfair competition issue not present here. Also, Dr. argues


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                        that lymphokines (the end result) are NOT unique to Moore. (But
                        then why was it so important to have Moore?)
                  c)    STATORY LIMITS. The court states that H&S Code regulations
                        drastically limit property rights in excised human tissues so as to
                        virtually extinguish them. BUT, if so, why doesn't this apply to the
                        Dr. as well?
                  d)    POLICY CONSIDERATIONS. The court wants to protect patient
                        autonomy and informed decisions while making sure that
                        researchers are not discouraged from useful medical research.
                  e)    Difficulty in valuation. How does one calculate the value of the
                        removed body part? Is there an offset for any benefit received
                        (prolonged life, improved health)?
                  f)    FUTURE USE. Should patients be able to limit the types of
                        research conducted with their excised tissues?
                  g)    What effect would granting property rights have on existing cell
                        lines?
                  h)    Should people be rewarded for having bizarre spleens?
III.   REDISTRIBUTING PROPERTY
       A.   Finding
            1.    Generally
                  a)    Laws regarding finding property are developed to try to balance
                        protecting owners rights to their property, even when they are
                        careless with it, against a desire to make sure that found items are
                        put to efficient use.
            2.    Categories of "Found" Property
                  a)    Abandoned Property
                        (1)     Owner intends to get rid of it. (the stuff in the garbage can
                                on the corner.)
                  b)    Lost Property
                        (1)     Owner unintentionally, involuntarily parts with property.
                                (Wallet left on top of car, and then it falls off.)
                  c)    Mislaid Property
                        (1)     Something intentionally place by owner, but then owner
                                can't remember where they placed it.
                  d)    Treasure Trove (not covered in class).
            3.    Who owns found property?
                  a)    LOST PROPERTY
                        (1)     Finder's claim is better than everybody except original
                                owner.
                  b)    MISLAID PROPERTY
                        (1)     The owner of the premises where property is found has a
                                better claim than finder, but original owner has best claim.
                                (a)     This is because if the original owner wants to find
                                        the property, they will try to trace the location to the


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                            premises (such as car or plane) rather than people
                            who may have come into contact with the premises.
     c)     ABANDONED PROPERTY
            (1)     Finder has best claim. Owner has relinquished claim.
4.   Why have all these rules?
     a)     Reduces incentive for people to behave badly
            (1)     Maybe people will start finding things that aren't lost at all.
     b)     If we allowed first person to find to take whatever they find, results
            in people having to be chained to all of their possessions.
     c)     Mistakes are inevitable (keys left on top of car, lost car at airport).
5.   LOST PROPERTY STATUTES
     a)     Modern statutes typically require finders of property to take some
            specific measures to find the owners of the property and prescribe a
            waiting period before the finder can assert his claim of ownership.
     b)     Provides a procedure for people who lose property to find it.
     c)     Provides incentive to finder in that finders fees are rewarded or and
            time until they get to keep property is defined.
     d)     Statutes typically ONLY applies to LOST Property. (In the absence
            of specific legislation to combine the types of found property into
            one category, FOUND property statutes usually ONLY apply to
            LOST property.)
6.   Why distinguishing TYPE of found property is important.
     a)     Benjamin v. Lindner Aviation, R 15-21. (Mechanic finds money
            tucked away in wing of airplane. He, the owner of the hangar, and
            the owner of the plane each claim the money. HELD: Because of
            the circumstances under which the money was discovered
            (wrapped in foil, there for about 30 years and obviously forgotten
            for some time) court finds it was mislaid property. Court also finds
            that the "premises" was the Plane and not the Hangar. Possession
            of money goes to owner of plane.)
7.   Burial Items and Artifacts
     a)     PUBLIC POLICY: Items buried with remains are not what we
            want to have people claiming as found property.
     b)     STATUTORY PROHIBITION: Statute states that burial items
            cannot be considered abandoned.
     c)     HISTORICAL CONSIDERATION: Also, wouldn't the conditions
            under which the burial grounds were "abandoned" possibly make a
            difference?
            (1)     Do tribes really ever "abandon" burial grounds?
     d)     STRIKING A BALANCE: At some point, the property interest
            may sufficiently "fade" and the scientific interest grow sufficiently
            strong to allow tribal ownership to be preempted. But how long is
            "long enough"?
     e)     Charrier v. Bell, p. 115. (2.5 tons of Native American burial
            artifacts "found" by Charrier on land where he had permission from

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                              caretaker to explore. HELD: Burial artifacts are not abandoned.
                              Ownership goes to tribe's descendants.)
               8.      Accretion
                       a)     Natural items deposited by natural processes upon ones property
                              become part of that property. (Except in extreme cases such as
                              floods).
                       b)     PUBLIC POLICY and SCIENTIFIC INTEREST: At some point,
                              these considerations may outweigh the general rule.
                       c)     Goddard v. Winchell, R 23-27. (Meteorite falls on Goddard's
                              property. It is dug up by person permitted onto land by tenant and
                              sold to Winchell. HELD: Meteorite became a part of Goddard's
                              and so was his property).

Suppose an ATT satellite falls on your property. Do you get to keep it? If no claim is made by
ATT, it is likely that you will have the best claim. Of course, the meteorite is a "natural object"
where the satellite is not, and so an interloper might be able to make a claim if he can show that
this item did not become a part of the land and thus your property (although the interloper would
probably have to show that there was not a trespass in the original taking as well).

       B.      Adverse Possession
               1.    Generally
                     a)     Provides a process by which a saucy interloper can assert
                            ownership over the lawful owner.
               2.    ELEMENTS OF ADVERSE POSESSION
                     a)     Continuous possession
                            (1)    Control and dominion over the property for the statutory
                                   period.
                            (2)    GENERAL POSESSION is an indicator: area fenced off,
                                   or accepting a deed mistakenly identifying area as part of
                                   the land acquired.
                            (3)    However, courts will typically look to see if one is acting
                                   like an owner as judged by setting and community
                                   standards (very fact sensitive, Alaska will be different than
                                   New York City).
                            (4)    Land use need only be typical for the type of property.
                            (5)    Structures are usually pretty good evidence.
                            (6)    LIMITED POSESSION is NOT sufficient for adverse
                                   possession (difference is between "actual possession" and
                                   "actual use"). Where possession is merely limited an
                                   easement may be granted, but transfer of legal ownership
                                   through adverse possession is not allowed.
                     b)      Open and Notorious
                            (1)    Does not require giving notice to owner. Only acting in a
                                   way that a reasonably prudent owner would realize what is
                                   going on.

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                               (2)    Community Standards. If acts make you appear to be
                                      owner to the community then element satisfied.
                               (3)    Building a cabin is pretty solid evidence. Other structures
                                      which are consistent with the ways that the community
                                      would use the property can be enough too.
                               (4)    To save property
                               (5)    True owner can file an ejectment action if before statute of
                                      limitations.
                               (6)    Also they can tell the people to get out.
                       c)      Hostile
                               (1)     The actions in possessing the property are non-permissive
                               (2)     If owner has given PERMISSION, then no adverse
                                       possession exists. It is OVER.

Example: If helicopter pilot comes and tells people to get out, but they don't, the possession is
still adverse. In fact this makes it CLEAR that possession is adverse.

But if helicopter pilot lands and says "Hey! I give you permission to use this land." Then adverse
possession is OVER.

                               (3)   SILENT OWNERS The usual presumption is that there is
                                     no permission. Burden is on the owner to prove that
                                     permission was granted.
                       d)    Exclusive
                             (1)     Does NOT require EXCLUSION of all other people.
                                     Simply means acting as if they were owner in permitting
                                     others to use or excluding their use.
                             (2)     Is one way of showing that you have control and dominion
                                     exclusive of others.
                       e)    Statutory Period
                             (1)     10 years in AK and VA.
                             (2)     5 years in CA.
                             (3)     Statute of limitations may be tolled (placed in "stasis")
                                     where one is incapacitated to such an extent as to not be
                                     able to defend their claim.
               3.      Vacant Land
                       a)    Nome 2000 v. Fagerstrom, p. 136 (Fagerstroms take over a portion
                             of property owned by Nome. Use begins in 1944 as base camp,
                             structures are built through the '70's, and a cabin built in '78. In '87
                             Nome files suit to eject. HELD: Fagerstroms are OWNERS
                             through adverse possession of area where cabin and other
                             structures built, but not owners of areas used for hiking and
                             gathering. [because they did not use these areas in such a way to
                             put the owner on notice (open and notorious element, and
                             exclusive element also].)

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              4.     Border Disputes
                     a)    Brown v. Gobble, p. 141. (Brown bought land in 1989, and
                           discovered that their neighbor, Gobble's, fence was 2' over Brown's
                           property line. Gobble had bought the house in 1985, but the fence
                           had been in place since 1937, and the chain of title had been
                           continuous across three owners since that time. Brown sued, T.
                           Court found that Gobble had not had the property long enough.
                           Gobble appealed. HELD: Since chain of title was continuous, the
                           years from the previous owners were added on to Gobble's claim
                           (see "Tacking," infra). Land awarded to Gobble under adverse
                           possession.)
              5.     TACKING
                           (1)     Adding on previous adverse possessor's time to your own.
                           (2)     Only applies where previous adverse possessor gave the
                                   land in privity. (e.g. the predecessor sold the adversely
                                   possessed land to the new adverse possessor). See Brown
                                   v. Gobble, supra.
                           (3)     Did the Gobbles need to tack in order to win possession?
                                   (a)     Probably not. The previous owner had already
                                           filled the statutory requirement. (So, Gobbles could
                                           have based their entire argument on the previous
                                           owners adverse possession).
                           (4)     HONESTY is NOT REQUIRED: Even if the new
                                   possessor knows that property is not theirs, they can still
                                   continue the claim and tack on the previous trespassers
                                   time: BAD FAITH is not penalized.
                           (5)     If there is any break between claims, clock starts over
                                   again.

Suppose you have a lease. It runs out, but you stay on land for ten years afterward. Can you
claim adverse possession? NO. Since the original entry onto the land was with permission, the
continued stay later remains permissive. Element of "hostility" is not present.

              6.     Arguments in favor of Adverse Possession
                     a)   Allows people without resources to obtain and use property which
                          is otherwise unused.
                     b)   RELIANCE: Gives possessors stable expectation of a place to be
                          in the future.
                     c)   CERTAINTY: After a certain amount of time no lawsuit will be
                          able to challenge ownership. This provides certainty as to who
                          owns the property (promotes economic stability).
                     d)   REDISTRIBUTION of WEALTH: At some point those who own
                          huge amounts of property wont care about 1 acre as a person who
                          has none.


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     e)    Long statutory period provides that owner needs to alt least have
           minimum contacts with their property.
     f)    10 years is a LONG time to not check.
7.   Arguments against Adverse Possession
     a)    Its not fair that some people have to pay to obtain property and
           others can just squat.
     b)    RELIANCE revisited: shouldn't owner's reliance that they will
           continue to own the property be protected.
     c)    CERTAINTY revisited: if documentation of ownership can be
           challenged by possessors, then potential buyers may be less certain
           that when they buy they actually own the property.
     d)    How do we know they will actually put the land to use if they are
           not even willing to pay for it.
     e)    Passively taking occupancy is unfair. Interlopers should have to
           take measures to find the owner and ask permission.
     f)    Perhaps the bottom line is that rights do come with responsibilities
           (such as responsibility to look after it).
8.   Government owned lands.
     a)    Time does not run against the King: At common law, adverse
           possession could not defeat the state's title.
           (1)      Often the bar against adverse possession of state land is
                    statutory.
           (2)      If the state cannot otherwise grant land to a private
                    individual, then adverse possession should not be allowed.
     b)    Due to extent of the government's holdings, it would not be
           reasonable to expect them to watch over it all the time.
           (1)      BUT, why do we then require private owners to do just this
                    very thing?
     c)    Bottom Line: the state doesn't have to look after its property like a
           private owner does.
     d)    Hinckley v. New York, R 28-34. (New York wants Hinkley's land
           for a highway. Hinkley agrees, but wants just compensation. On
           examining the deed, the city realizes that a part of the land was
           NEVER conveyed. It had been filled into the river in 1920.
           Hinkley claims land based on adverse possession. HELD: All
           owners along river had legal right, granted by the city, to fill land
           to make a landing or pier. This right amounts to permission, and
           so adverse possession is not possible in this case. [Court goes on to
           add that some state property, if held for use of a private nature,
           may be subject to adverse possession, but that land held in public
           trust is not subject to adverse possession.]).
     e)    Congressional Action: USCA tit. 43, §1068 (1986) allows
           Secretary of interior to issue patents for up to 160 acres of land
           where the claimant can show
           (1)      peaceful, adverse possession

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            (2)      under claim or color of title
            (3)      in good faith
            (4)      for more than 20 years, and
            (5)      improvements or partial cultivation.
      f)    In these cases the Secretary must charge not less than $1.25 per
            acre. This section also gives the Secretary discretionary power to
            issue a patent on claims dating from before 1901 and where the
            claimant has paid taxes on the land. (R 33)
9.    Squatters
      a)    In the 19th century US, some people began moving into lands
            which had not yet been surveyed by the US government. They
            were squatters, or, less sympathetically, trespassers.
      b)    In many cases these groups would form local governments in the
            form of claim associations in order to keep a record of each
            persons claim and to settle border disputes (rather than resorting to
            arms).
10.   Freed Slaves
      a)    When they were emancipated, the question among blacks was not
            WHETHER the land belonging to former slave owners would be
            distributed to them, it was only a matter of when.
      b)    Where the slave owners had fled, the slaves took over the land for
            themselves. In some cases Federal troops had to be called in to
            dislodge them.
      c)    The slaves were informed that the government did not own the
            land, and so it could not grant it to them. They would have to work
            hard and save in order to buy their own land.
      d)    President Andrew Jackson pardoned the plantation owners after the
            civil war and gave them back their property.
      e)    Some land owners actually filed suit for damages for any
            alterations and back rents against their former slaves.
11.   Modern Squatters
      a)    Today, in urban Detroit, people are taking over abandoned houses
            and fixing them up to claim for their own.
      b)    This trend is not only in US cities, but is occurring in other
            countries as well.
      c)    In many cases, others who live in the neighborhoods actually
            SUPPORT this activity because it improves the neighborhood and
            keeps gang activity down.
      d)    In fact, neighbors may even allow the squatters to shower and cook
            meals at their houses until the squatter can get their "own" house
            into good enough shape for such activities.
      e)    The Detroit city council even passed an ordinance allowing such
            take-overs, but the mayor wont implement it fearing that the city
            will be sued by legal property owners for allowing the taking.


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            f)   Two major obstacle preclude these squatters from claiming adverse
                 possession:
                 (1)     In many cases, title is owned by the city, and so adverse
                         possession cannot run.
                 (2)     Statute of limitations is too long. Squatters fear the true
                         owner will return and evict them, taking advantage of the
                         improvements made to the property.
          g)     Tompkins Square Park: In 1994 police attempted to evict squatters
                 from three city owned buildings which they had occupied for over
                 10 years. They had rebuilt burnt-out roofs, replace stripped out
                 plumbing and wiring. The city wanted them out because they
                 wanted to renovate the buildings. The squatters claim that if it
                 wasn't for them there would be no buildings to renovate. A trial
                 court judge granted a preliminary injunction allowing the squatters
                 to stay, holding that they had demonstrated a reasonable chance of
                 prevailing in a claim for adverse possession.
          h)     PRACTICAL CONSIDERATION: How can a GROUP of people
                 show EXCLUSIVITY of ownership? Perhaps if they establish an
                 association they can say that they are seeking ownership as a group.
C.   Eminent Domain (Condemnation)
     1.   Police Power vs. Eminent Domain Power
          a)     Fifth amendment prohibits FEDS from taking private property for
                 public use without just compensation. Due process clause of 14th
                 amendment levies same prohibition against states.
          b)     Police Power is the governments ability to pass legislation.
                 EVERY exercise of Police Power affects property interests in some
                 way.
                 (1)     When feds reduced speed to 55, some truckers went out of
                         business.
                 (2)     Environmental laws similarly affect business profitability.
          c)     Exercise of police power DOES NOT require just compensation
                 for any taking of property rights.
          d)     Eminent Domain is the power of the states/feds to condemn private
                 property, pay just compensation, and transfer the property to some
                 use designed to further the public welfare.
          e)     Regulatory takings occur where state actions intended to regulate
                 private conduct have a disproportionate effect on private property
                 owners. In some cases such takings can render property all but
                 valueless to owner.
          f)     Takings clause MEDIATES between POLICE POWER and
                 EMINENT DOMAIN. Takings clause requires that there is
                 (1)     A taking
                 (2)     for public use
                         (a)     S Ct had defined this to mean "public purpose."


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                                      (b)     Government may not take, where there is no
                                              recognized public purpose.
                              (3)     without just compensation.
                       g)     If these elements are met, the government must provide just
                              compensation to owner.
               2.      Market and Political Failures
                       a)     Sometimes the government must be allowed great latitude because
                              owners might otherwise "hold up" the public for use of their land.
                              (example: person who owns the last 1/2 acre needed for a highway
                              demands $10 million.)
                       b)     However, there can also be political failures in the exercise of
                              eminent domain (see Poletown, below).
               3.      Public Use
                       a)     Public use (read "public purpose") does not require that land be
                              owned by public or for use by public. It can have broader social
                              and economic considerations.
                       b)     In examining these situations, the court will not examine whether
                              the taking will ACTUALLY result in a public purpose, rather, they
                              only require that the State RATIONALLY BELEIVES that a
                              public purpose is the result. Thus the court will not interfere in the
                              legislature's plan unless it is all but impossible that the result they
                              desire will be realized.
                       c)     Only the taking's PURPOSE and not its mechanics must pass
                              scrutiny under the Public Use Clause.
                       d)     Also, it doesn't matter if some individuals WILL benefit as long as
                              there is a conceivable PUBLIC PURPOSE in the state's act.
                       e)     In some states a very strict approach is taken: Unless the PUBLIC
                              is going to be the owner, eminent domain will not be permitted
                              (minority view).
                       f)     Hawaii Housing Authority v. Midkiff, p. 1296 (Hawaiian
                              legislature decides to break up oligopoly owner ship of land in
                              Hawaii by allowing groups of land tenants to petition to have land
                              condemned and then sold to them. Owners of land are given fair
                              market value and avoid taxes of outright sale. Midkiff files suit
                              asking that this practice be declared unconstitutional. HELD:
                              Although lands are being sold into private ownership, the plan
                              serves the public purpose of breaking up the oligopolic ownership
                              of land creating a functional market in real estate in Hawaii.)

What other options did the Hawaii Legislature have? Was eminent domain the only solution?
The Legislature could have turned over government owned land, but perhaps that land was not
suitable for housing. Also, they could have passed strict rent controls or possibly an escalating
tax structure, either of which could have been designed to encourage oligolopic land owners to
divest their holdings.


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g)   Recently, many critics have said that "public use" has gone
     haywire, allowing private takings at the cost of the general public.
     Such takings have only a tenuous connection to public necessity or
     public purpose, and often serve to simply transfer ownership from
     one private owner to another.
h)   THE COURT says that they will apply heightened scrutiny where
     specific, identifiable private interests are going to benefit.
i)   "The determination of what constitutes a public purpose is
     primarily a legislative function, subject to review by the courts
     when abused. And the determination of the legislative body of that
     matter should not be reversed except in instances where such
     determination is palpable and manifestly arbitrary and incorrect."
     (Gregory Marina v. Detroit, p.1301)
j)   Poletown v. City of Detroit, p.1301 (City of Detroit condemns 465
     acre area, and forces 4,300 people to move in order to satisfy GM,
     who is threatening to pull out of Detroit otherwise. HELD:
     Detroit had a "rational" public purpose in mind of saving jobs and
     the economy of the City, and so the taking is constitutional)
k)   Poletown DISSENT: Finds that the City is simply acting as GM's
     pawn. GM conceived the project, determined the cost, allocated
     the financial burden, selected the site, established the mode of
     financing, imposed specific deadlines for delivery, and demanded
     12 years of tax concession. "With this case the Court has
     subordinated a constitutional right to private corporate interests."
l)   Poletown AFTERMATH: GM promised 5,400 jobs. Only 3,000
     materialized (remember, 4,300 people were dislocated). Land
     acquisition costed over twice the expected amount; after four year
     no taxes had been paid to the city; and the plant is self contained
     and provides no support to the surrounding community. A clear
     case of public (ab)use.
m)   Other cases include: Oakland raiders (Held that city could
     condemn a football team for "public use"); World Trade Center (10
     city blocks condemned for project promising to revitalize city's
     harbor activity. But only 1 in 3 tenants of the proposed site have
     anything to do with the harbor); Boeing (Seattle attempts to
     condemn "marginal" farming land for Boeing's use, WA S Ct
     denies attempt as not being a public use); Charleston convention
     center (SC S Ct declares that no matter how attractive the proposal
     form a municipal planning standpoint, condemnation for such use
     runs into owners right to use land as they please).
n)   Poletown and Midkiff: The main difference between these two
     cases is who benefits. In Midkiff, the land is ultimately
     redistributed to residents of the area. In Poletown, it is given to
     one large corporation. However, in both instances, ownership has


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                                                             Page 26 of 59
            been transferred by the government from one private owner to
            another.
     o)     TURNING THE TABLES: In some cases, municipalities are
            investigating the use of imminent domain to keep businesses from
            moving away:         In Pittsburgh a quasi-governmental agency
            threatened to condemn Nabisco's factory if they moved away. One
            official stated that "Pittsburgh will learn how to make its own
            Oreos." Nabisco stayed.
     p)     MOTIVES: In some cases, land has been condemned for parks or
            other public use, where officials heard that minorities might
            purchase the land or houses.
4.   Just Compensation
     a)     DEFINED: Just compensation means the full monetary value of
            the property taken. This is equated by the courts to the MARKET
            VALUE at the time of the taking. Market value is defined as "what
            a willing buyer would pay in cash to a willing seller."
     b)     Relocation costs are occasionally allotted to owners of condemned
            property, but only rarely.
     c)     HIGH NON-MARKET VALUES:                    Sometimes, the simple
            allotment of market value does not take into consideration value
            based on other factors. In these cases, the "fairness" of only
            allowing market value comes into question.
     d)     Almota Farmers Elevator v. US, p. 1286. (Government initiates
            condemnation proceedings against land leased on an ongoing basis
            by Almota. Almota has built structures which could be sold, along
            with lease rights, for a substantial sum. Almota claims it should be
            compensated on this basis. Government contends that it only
            needs to pay remaining value on current lease and no compensation
            for structures. HELD: Almota could have sold the leasehold at a
            price which would have reflected the continued ability of the buyer
            to use Almota's improvements over their lifetime, and so should be
            compensated for this value.)
     e)     Almota DISSENT: States that in previous lease cases only the
            value of the current lease has been paid.              Reasoning is
            exceptionally POOR. In the case cited as president the
            STRUCTURE was the subject of the lease (they couldn't have sold
            the structure if they wanted to). In this case plaintiff OWNS the
            structure, but is leasing the land.
     f)     CALCULATION OF MARKET VALUE often boils down to
            looking for similar transactions in real estate in the recent past.
            Absent this type of evidence, it can come down to a battle of the
            experts in court.
     g)     Fair market value is selected as price in takings because it is
            thought to strike a fair "balance between the public's need and the
            claimant's loss."

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                    h)  But, where value is too difficult to find, or when application of
                        "fair market value" results in manifest injustice to public or owner
                        courts have fashioned other standards.
                 i)     Nontransferable values in the owners land (such as grandfathered
                        exemptions from regulations); goodwill value; and going concern
                        value are NOT compensable.
                 j)     CA EXCEPTION: Compensation for goodwill IS allowed when
                        business is inextricably tied to location, and loss cannot be avoided
                        by relocation after condemnation.
                 k)     PRACTICAL PROBLEM of REPLACEMENT VALUE: If we
                        decide to give replacement value, the owner may have to install
                        "upgraded" facilities, and so may wind up with property which is
                        MORE valuable than the land they loose. Is this fair to taxpayers?
                        But, if we don't give replacement value, then owners may not have
                        resources to replace what they have lost.
                 l)     IN CA if you are non-profit, and you do have special use value, and
                        the market is insufficient then replacement will be granted (by
                        LEGISLATIVE directive).
                 m)     US v. 564.54 acres of land More or Less. (Private campground
                        owned by non-profit organization is condemned for public park.
                        Owners claim $5.8 million because that is what it will take them to
                        build new campground under new regs (old campground did not
                        have to comply because it was grandfathered in). Gov't claims
                        value is $485K. HELD: Grandfathered regs cannot be considered.
                        Taking will proceed at government's price.)
IV.   PROPERTY RIGHTS
      A.  Right to Exclude
          1.     Generally
                 a)     Possessors of property may exercise this right, or waive it to allow
                        others onto property.
                 b)     The right to exclude IS NOT ABSOLUTE. In some cases non-
                        owners may have rights to access.
                 c)     In general, the more an owner has opened her property to the
                        public, the more likely the courts will find public rights of access.
          2.     Trespass
                 a)     A Trespass is an unprivileged physical intrusion onto property
                        possessed by someone else. (p. 269)
                 b)     Title to real property cannot grant dominion over the destiny of
                        persons the owner permits to come upon the premises.
                 c)     MAXIM of Common Law: One should so use ones property as not
                        to injure the rights of others.
                 d)     NECESSITY, public or private, may justify entry upon the lands of
                        another.
                 e)     Employer/landlords have a right to their own security and the
                        security of their workers.

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                                                                                  Page 28 of 59
     f)     BUT, employer/landlords may not deny the worker his privacy or
            interfere with his opportunity to live with dignity and to enjoy
            associations customary among our citizens.
     g)     State v. Shack, p.186. Defendants Shack and Tejeras work for
            non-profit, government funded entities which provide assistance to
            migrant farm workers. Plaintiff Tedesco offers to allow them to
            visit his workers, but only while he is present. Defendants refuse
            his offer and refuse to leave. Tedesco has them arrested. HELD:
            Under state laws of New Jersey, the ownership of real property
            does not include the right to bar access to governmental services
            available to migrant workers, and thus defendants were not
            trespassing within the meaning of NJ's criminal trespass statute.
3.   Common Law and Unreasonable Exclusion
     a)     Traditional common law typically ALLOWS unreasonable
            exclusion from property such as places of amusement.
     b)     EXCEPT for innkeepers and common carriers.
     c)     NJ Exception: UNREASONABLE exclusion from public places
            will not be allowed.
     d)     DECIDING WHAT IS "REASONABLE" is a balancing act
            between the owner's interests and the interests of the public.
     e)     Uston v. Resorts International, p. 196. (Gambler excluded from
            casino because he is a card counter. HELD: When property owners
            open their premises to the public in pursuit of their own property
            interests, they have no right to exclude unreasonably. (MINORITY
            VIEW)) NOTE: In Nevada, USTON was DENIED access
            because the relationship was not one of innkeeper and patron, but
            rather of casino owner and prospective gambler. Thus he could be
            excluded. (MAJORITY VIEW).
     f)     Argument against holding in USTON: Undue infringement of
            property owners' rights to exclude. Holding affects Not just
            USTON. The casino will have to justify every exclusion in the
            future.
4.   Statutes - CIVIL RIGHTS ACT of 1964
     a)     CIVIL RIGHTS ACT of 1964, Title II (p. 205)
     b)     Prohibits discrimination based on race, color, religion or national
            origin
     c)     Entitles all persons to full enjoyment of goods, etc.
     d)     In a "place of public accommodation."
     e)     Arguments exist over whether list of establishments in section (b)
            was intended to be EXCLUSIVE (only those establishments) or
            ILLUSTRATIVE (just showing examples of the types of
            establishments).
     f)     PRIVATE CLUBS: not covered by CRA of 1964. (see section (e),
            pg. 206.


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     g)     NO $$ DAMAGES: Plaintiffs bringing charges under the CRA of
            1964 are only entitled to declaratory or injunctive relief. Attorney's
            fees may be recovered if plaintiff prevails. (pg. 207).
     h)     PROBLEM: PLACE of ACCOMODATION:                             There is
            disagreement among the states as to what constitutes a place of
            public accommodation. Some states interpret this term very
            narrowly with its ordinary meaning. Other courts give terms
            "technical" meanings in order to make their results consistent with
            what they feel is the INTENT behind the legislation.
     i)     Interference with RIGHT of ASSOCIATION versus
            DISCRIMINATION: US S Ct. has held that an interference with
            rights of association may be justified in the interest of treating the
            more compelling state interest of eliminating discrimination.
     j)     US Jaycees v. McClure, p.209 (Jaycees of Minnesota allow women
            to purchase limited memberships, but not to enjoy full benefits of
            membership. Noting that the organization viewed its members
            more as customers than owners; was not selective in its solicitation
            of membership; and that the Jaycess constituted a "place" of
            business wherever they met the MINNESOTA S Ct. Held that the
            Minnesota Human Rights Act of 1991 required the Jaycees to
            provide women with the same privileges of membership as men.
            DISSENT: Notes that the court has gone beyond simply
            construing the words of the statute according to their ordinary
            meaning.)
5.   Statutes - Civil Rights Act of 1866
     a)     Section I of CRA of 1866 provides that "all persons…shall have
            the same right…to make and enforce contracts as is enjoyed by the
            white citizen." AND allows for awards of $$ damages. (p. 207)
     b)     S Ct has held that CRA of 1866 applies to PRIVATE CONDUCT
            as well as to legislation passed by legislatures.
     c)     CRA of 1866 has recently been interpreted to prohibit retail
            establishments for intentionally refusing to deal with an individual
            based on race.
6.   Statutes: Federal vs. State
     a)     Due to the Supremacy Clause, where a state statute and federal
            statute disagree, the federal statute takes priority.
     b)     State statutes may grant more protections than federal statutes, and
            such provisions are enforceable, provided that they do not conflict
            with federal statute.
     c)     INTERPRETATION: BE CAREFUL, Even when a state and
            federal statute have IDENTICAL wording, the state courts may
            have INTERPRETED their own statute more broadly than the
            federal statute, thus granting BROADER protection, even though
            the wording is the same. (p. 221)
7.   Constitution: First Amendment

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a)   The general rule is that First Amendment rights do not extend to a
     trespasser or an uninvited guest on private property which is used
     non-discriminatorily for private purposes only. (Lloyd v. Tanner, p.
     239-40)
b)   FREEDOM of SPEECH can be a means of gaining access to
     private property. Ordinarily a business owner's decision to not
     allow people onto their property does not apply to constitutional
     issues, BUT when private property begins to take the PLACE of
     private property in our communities exceptions may be carved out.
c)   The effect of these types of rulings is that the government has
     essentially "condemned" a free speech easement over the private
     owner.
d)   Lloyd Corp v. Tanner, p. 236. (Defendant distributed anti-Vietnam
     war handbills at Plaintiff's mall in Portland. Plaintiff files suit
     seeking injunction to allow handling. T Court and Appeals court
     find for plaintiff, granting injunction. S CT. REVERSES (5-4
     opinion), "Property [does not] lose its private character merely
     because the public is generally invited to use it for designated
     purposes.)
e)   Lloyd DISSENT: Marshall: Citing Marsh, feels that such
     decisions require a balance be struck between freedom of speech
     and freedom of private property owner to control his property.
     Because citizens who shop at Lloyd's mall have little reason to go
     anywhere else for goods or services, Marshall feels that free speech
     at the mall should be allowed.
f)   Marsh v. Alabama, p. 236 (Company town, wholly owned by the
     local shipbuilding company, is required by court to allow Jehovah's
     Witness to distribute literature in the downtown area, which is
     actually privately owned).
g)   New Jersey Coalition v. J.M.B., p 243. (Defendant shopping mall
     refuses to allow Gulf War protesters to distribute handbills. The
     mall encourages a variety of non-shopping activities on the
     premises, including speech, political and community issues events.
     Reasoning that "malls are where the people can be found today"
     the NJ S Ct. (In interpreting the NEW JERSY Constitution's free
     speech provision) holds that the FEDERAL interpretation of Free
     Speech (in Lloyd) is worthless; that the NJ State Constitution
     grants substantive freedom of speech rights; and that the mall
     owners act of prohibiting leafleting violated the plaintiffs free
     speech rights.)
h)   LIMTATION on HOLDING: The NJ court SPECIFICALLY
     limited its holding to leafleting and associated speech in support of,
     or in opposition to, causes, candidates and parties. Commercial
     free speech is not covered. (NJ Coalition v. JMB at pg 252)


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            i)  NJ Standard for Free Speech (p. 248): In deciding whether free
                speech should be allowed on private property three factors should
                be considered:
                (1)     Nature, purpose and primary use of the private property.
                (2)     Nature and extent of the public's invitation to use the
                        property.
                (3)     The purpose of the expressional activity in relation to the
                        private and public use of the property.
          j)    PUBLIC INTEREST IN THE PROPERTY: If the public has an
                interest in the mall (tax credits, other concessions by the city) the
                courts may find it easier to grant access for free speech.
          k)    CA RULE: CA does find the right of access for free speech.
     8.   Labor Picketing
          a)    "In determining whether a right of access should be provided, the
                courts must balance the employer's property rights against the
                employees' rights…to be free of unfair labor practices." (p. 257)
B.   PUBLIC TRUST DOCTRINE
     1.   PUBLIC TRUST - Beach Access
          a)    Conflict over dry sand area of beaches can arise. Such property is
                a limited resource.
          b)    PUBLIC TRUST DOCTRINE (Common Law): Ownership,
                dominion and sovereignty over land flowed by tidal waters…is
                vested in the State in trust for the people. (Matthews v. Bay Head,
                p 258)
          c)    "It is the settled law of this country that the ownership of and
                dominion and sovereignty over lands covered by tide
                waters…belong to the respective states in within which they are
                found." (Central Railroad v. Illinois, p. 265)
          d)    The public trust doctrine, "dictates that the beach and the ocean
                waters must be open to all in equal terms and without preference
                and that any contrary state or municipal action is impermissible."
                (Matthews, quoting Avon, p. 261).
          e)    "[W]here use of dry sand is essential or reasonable necessary for
                enjoyment of the ocean, the doctrine [of public trust] warrants the
                public's use of the upland dry sand area subject to an
                accommodation of the interests of the owner." Matthews v. Bay
                Head, p. 262)
          f)    MASS courts hold the opposite, finding that a statute which allows
                public to walk across beach on tidal lands was a physical invasion
                of the beachowners property rights.
          g)    POWER OF QUASI-PUBLIC ENTITY TO EXCLUDE: "Where
                an organization is quasi-public, its power to exclude must be
                reasonably and lawfully exercised in furtherance of the public
                welfare related to its public characteristics." (Matthews v. Bay
                Head, p. 263)

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            h)  Matthews v. Bay Head, p. 258. (Improvement association found to
                be operating as a quasi-public body. As such, the NJ S Ct. held
                that they could not limit beach access permits for use only by
                residents and guests. Although permits could still be sold, they had
                to be offered generally).
     2.   Other COMMON LAW doctrines used for Beach Access
          a)    DEDICATION: a gift of real property from a private owner to the
                public at large. Requires offer by owner and acceptance by public.
                Long standing acquiescence in beachfront use can be interpreted as
                IMPLIED dedication. (Gion v. city of Santa Cruz, later overturned
                by statute, p. 266-7).
          b)    PRESCRIPTION: A PRESCRIPTIVE EASEMENT may be
                granted where the elements of adverse, open and notorious, and
                continuous use are established. (p. 267)
          c)    CUSTOM: Long standing, uninterrupted, peaceable, reasonable,
                uniform use of the beachfront by the public for recreational
                purposes of itself establishes a continued right to such access. (p.
                267)
C.   ENVIRONMENTAL PROTECTION
     1.   PUBLIC TRUST - Restrictions on use
          a)    "It is the settled law of this county that the ownership of and
                dominion and soverignty over lands covered by tide waters, within
                the limits of the several states, belong to the respective states
                within which they are gound, with the consequent right to use or
                dispose of any portion thereof, when that can be done without
                substantial impairment of the interst of the public in the waters."
                (Illinois Central RR v. State of Illinois, US S Ct. p. 82, preader.)
          b)    FEDERAL RULE: based on necessity of protecting access to
                navigable waters (Illinois Central RR, p. 82, reader.)
          c)    States may not grant "Public Trust" lands to private owners.
                (Holding, US S Ct. in Illinois Central RR. P. 83, reader)
          d)    Illinois Central v. State of Illinois, p. 82, reader. ( railroad was
                granted lands by State of Illinois in 1869. In 1873,  State of
                Illinois took back the grant. US S Ct. HOLDS that original grant
                was invalid because state did not have ability to grant away the
                lands and so  never owned them in the first place.)
          e)    CA Rule: Any lands granted by state are subject to a reserved
                easement in the state for trust purposes. (HOLDING of CA S Ct. in
                Marks v. Whitney, p. 86, reader.)
          f)    CA Rule: Public use is flexible in meaning to serve the changing
                needs of society (see Marks v. Whitney, p. 87). These uses include
                preservation for scientific study, as ecological habitat, and for
                favorable scenery. This is a wide expansion of the utilitarian
                meaning of public trust as described in the Illinois RR case
                (navigation and fishing)

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            g)     CA Rule: PRIVATE CITIZENS may bring suit for violations of
                   public trust doctrine. (Marks v. Whitney, p. 88, reader.)
            h)     MONO LAKE: Nat'l Audobon v. S Ct Alpine County, note 3, p. 93,
                   reader. Under Public Trust Doctrine CA S Ct. Tells LA to go fuck
                   itself if it thinks it can suck Mono Lake dry, even if they own the
                   water rights.
            i)     NJ Rule: Similar to CA. Public Trust viewed as flexible doctrine
                   to suit societies needs. (see Matthews v. Bay Head, supra.
            j)     WI Rule: BY STATUTE, Owners may not drain and fill shorelands
                   without a permit. WI S Ct. Holds that owners thus restricted are
                   not due "just compensation" for a taking. (See Just v. Marinette
                   County, p. 91, reader).
            k)     POLICY ARGUMENT FOR no compensation in PUBLIC
                   TRUST: See "Liberating the Public Trust Doctrine", p. 92, reader.
            l)     POLICY ARGUMENT AGAINST not compensating owners in
                   PUBLIC TRUST. See "Avoiding the Takings Clause Through the
                   Myth of Public Rights", p. 92, reader.
           m)
D.   Land Use Conflicts
     1.    Trespassory v Nontrespassory invasions
           a)    A Trespass is an unprivileged physical intrusion onto property
                 possessed by someone else. (p. 269)
           b)    A Nontrespassory interference with the use and enjoyment of
                 property involve use of one's own property in ways that harm the
                 property interests of one's neighbors. (p. 269) EXAMPLES:
                 excavation undermining lateral and subadjacent support, flooding,
                 pollution. Noise, odors, criminal activity, access to light and air.
           c)    "This…does not mean that one must never use his own property in
                 such a way as to do any injury to his neighbor. It means only that
                 one must use his property so as not to injure the lawful rights of
                 another." (Fountainbleau, p. 337)
     2.    Four basic methods of resolving land use conflicts
           a)    Defendants Privilege (p. 270)
                 (1)     Court holds that defendant is at liberty to engage in activity
                         even though it harms the property interests of the plaintiff.
           b)    Plaintiff's Security (p. 270)
                 (1)     Plaintiff granted absolute right not to suffer harm. $$
                         damages and/or an injunction may be ordered. Defendant
                         may later pay plaintiff to buy the right to engage in the
                         harmful activity.
                 (2)     Gives plaintiff "VETO" power over defendant's activity.
           c)    Reasonableness Test (p. 270-1)
                 (1)     Strikes a middle position between the previous two.
                         Authorizes defendant to engage in activity only if it is
                         deemed to be reasonable.

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            (2)    Judgment will focus on issues such as fairness or social
                   consequences of regulating or not regulating the conduct.
           (3)     In UTILITY analysis, the judge may consider
                   (a)      Extent of harm to plaintiff and social utility of
                            plaintiff's activity.
                   (b)      social benefits of the defendant's activity, measured
                            by what society would lose by preventing the
                            defendant from freely engaging in the harmful
                            activity
                   (c)      the overall relative social costs and benefits of the
                            conflicting land uses of P & D.
                   (d)      The availability of alternative means to mitigate or
                            avoid the harm
                   (e)      defendant's motive
                   (f)      which use was established first.
     d)    Prior Use (p. 271)
           (1)     Sometimes entitlements are granted on who established the
                   first use.
           (2)     PRIOR APPROPRIATION grants a right to commit the
                   harmful activity to the person who established first use.
           (3)     PRESCRIPTION or ADVERSE POSESSION grant the
                   right to commit the harmful activity only after it has
                   continued for a period of time established by statute.
                   (p.271)
3.   Four basic REMEDIES for land use conflicts (p. 271-2)
     a)    DISMISSAL: If the harmful use is privileged, the court may
           dismiss the complaint altogether. Defendant can also stop an
           impending law suit by filing its own case for a DECLARATORY
           JUDGEMENT permitting the harmful use.
     b)    DAMAGES: Most common form of damages are $$ for
           restoration—the cost of repairing the damage and bringing the
           property back to its prior condition—and diminution in the market
           value of the property.
     c)    INJUNCTION: Ordering the defendant to do, or to not do certain
           acts.
     d)    PURCHASED INJUNCTION: In this case the court sets a price
           that the plaintiff must pay in order to obtain the desired injunction.
4.   Land use problems are usually RECIPROCAL
     a)    In solving one land owners problems, we are imposing additional
           burdens on the other owner. The owners uses are not problems in
           and of themselves. They are only a problem because they conflict
           with each other. "The real question that has to be decided is:
           should A be allowed to harm B or should B be allowed to harm
           A?" (Coase, p. 273)
5.   Surface Water; Flooding

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            a)     Three different approaches to surface flooding:
                   (1)     COMMON ENEMY RULE: Possessor is privileged to rid
                           his lands of surface water at will, regardless of detriment to
                           others. (Defendant is ABSOLUTELY privileged) (p. 278)
                           Protect UPSTREAM property owners.
                   (2)     NATURAL FLOW RULE: Person who causes disturbance
                           in natural flow onto another's land will be liable if damages
                           result. (Plaintiff is ABSOLUTELY protected). (p. 278-9)
                           Protects DOWNSTREAM owners property rights.
                   (3)     REASONABLE USE TEST: Requires a factual evaluation
                           of the harm caused, foreseeability of harm which results,
                           the purpose of the actor, and other relevant matters. Will
                           permit an alteration in run-off if it is "reasonable." (p. 279)
            b)     Armstrong. v. Francis Corp., p 273. (Surface run-off is diverted
                   into new tract development drainage system. This increases flows
                   in downstream area. P Armstrong is downstream, and has land
                   being cut away as a result of D, developer's actions. Also the water
                   has become silted and foul smelling, and no fish are left. T Court
                   decides that Francis should pipe water all the way to the lake. In
                   its review the NJ Supreme Court adopts the Reasonableness test in
                   order to assign liability.)
E.   Nuisance
     1.    General Definitions
           a)    R2d § 821D (1977) Nuisance defined as "a nontrespassory
                 invasion of another's interest in the private use and enjoyment of
                 land." This phrase is broadly defined to include any disturbance of
                 the enjoyment of property. (Prah v. Maretti, p. 358.)
     2.    Elements of NUISANCE: Unreasonable Conduct; Substantial Harm
           a)    Protects owners or occupiers of land from conduct by other
                 property owners that is UNREASONABLE and causes
                 SUBSTANTIAL HARM to the use and enjoyment of real property.
                 (p 323)
           b)    "REASONABLENESS is a function of the manner in which and
                 the place where defendant's business is conducted and the
                 circumstances under which defendant operates. Additional factors
                 include priority of location, character of the neighborhood, and the
                 nature of the alleged wrong." (Page Co Ap Ctr v. Honeywell, p.
                 328.)
           c)    The test for reasonableness has two parts. The plaintiff must prove
                 that the harm is SUBSTANTIAL—such that the plaintiff's security
                 right has been invaded—and that the conduct is
                 UNREASONABLE from a SOCIAL WELFARE point of view.
                 (p.329)
     3.    Nuisance DOES NOT require negligence


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     a)    "[C]onduct that is NOT negligent…may constitute a nuisance." (p.
           324, citing Prosser and Keeton on Torts). "The existence of a
           nuisance is not affected by the intention of its creator not to injure
           anyone." (Page Co. Appliance Ctr. v Honeywell, p. 327).
     b)    Nuisance law applies where there is not a specific rule (such as
           surface water rules) to cover situation.
     c)    Although environmental problems used to be under nuisance, there
           are environmental statutes which often are more direct now.
4.   Nuisance v. Trespass:
     a)    Trespass protects against exclusive right to possess and requires a
           physical intrusion. Nuisance, on the other hand, protects enjoyment
           rights.
5.   Normal Person is standard
     a)    "NORMAL PERSON in locality" serves as standard where
           nuisance is claimed to be offensive to the person. (Page Co Ap
           Center v. Honeywell, p 327)
6.   "Coming to the nuisance"
     a)    PRIORITY OF USE: We tend to give some priority to the person
           who engaged in activity first.
     b)    "Moving to the vicinity of a nuisance does no completely bar a suit
           for damages or injunctive relief, but it is a 'relevant factor.'" (note
           2, p. 79, reader).
     c)    RIGHT to FARM STATUTES: some agricultural areas have
           enacted statutes protecting farms from encroaching suburbs. (see
           footnote 7, p. 79, reader)
     d)    Where developer brings PUBLIC to the NUISANCE, the public
           nuisance may be enjoined, but developer may be liable for
           reasonable relocation costs of 's activities. (see Spur v. Del Webb,
           infra.)
7.   No nuisance against Unusually Sensitive Use.
     a)    UNUSUALLY SENSITIVE USE: "the plaintiff cannot, by
           devoting his own land to an unusually sensitive use…make a
           nuisance out of conduct of the adjoining defendant which would
           otherwise be harmless," (Page Co Ap Ctr, quoting Prosser, The
           Law of Torts. P. 327. See also, Prah v. Maretti DISSENT, p.
           363.)
     b)    Page County Appliance Ctr. v Honeywell, p. 325. (Appliance store
           sells TV's which are tuned to local stations for display. Honeywell
           installs computers two doors down. P's TV reception becomes bad
           due to leaking radiation from computers. Two years later
           Honeywell finally fixes the problems.             JURY finds both
           compensatory and punitive damages. Court remands case on bad
           jury instruction).



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      c)     PUBLIC GOOD: But, we can also look at what the behavior is,
             REGARDLESS of the plaintiff. (Is it really in the public's interest
             to be bombarded by radiation from computers?)
      d)     Nuisance is very FACT SENSITIVE: Requires an examination of
             the particular situation, the customs of the area, who was there
             first, and the utility of the "nuisance" causing behavior. Many
             times, both claims may have validity.
8.    Ultra-hazardous activity as nuisance.
      a)     STRICT LIABILITY: May be assigned where landowners engage
             in "ultrahazardous activities" which cause harm to neighboring
             land. In these cases liability may result without a need to prove
             unreasonableness or substantial harm elements.
9.    R2d Torts §826(a) - "Unreasonable" land use
      a)     Land use is unreasonable when the gravity of the harm outweighs
             the utility of the actor's conduct. The factors to be considered in
             determining the gravity of the harm and the utility of the conduct
             are:
10.   R2d Torts § 827 - Gravity of Harm - Factors Involved
      a)     The extent of the harm involved;
      b)     The character of the harm involved;
      c)     the social value that the law attaches to the type of use or
             enjoyment invaded;
      d)     the suitability of the particular use or enjoyment invaded to the
             character of the locality; and
      e)     the burden on the person harmed of avoiding the harm.
11.   R2d Torts § 828 - Utility of Conduct—Factors Involved
      a)     The social value that the law attaches to the primary purpose of the
             conduct;
      b)     the suitability of the conduct to the character of the locality; and
      c)     the impracticability of preventing or avoiding the invasion.
12.   MAJORITY VIEW: NO easement for LIGHT and AIR
      a)     ANCIENT LIGHTS DOCTRINE: Doctrine from Engaland which
             established an onwers legal right to the not have the light which
             fell ontheir property blocked. This doctrine IS NOT accepted in
             American courts.
      b)     AMERICAN RULE: In the absence of some contractual or
             statutory obligation a land owner has no legal right to the free flow
             of light and air across the adjoining land of her neighbor.
             (Fountainbleau, p. 338)
      c)     Foutainbleau Hotel v. 45-25, Inc., p. 336. (, Eden Roc Hotel, had
             obtained a temporary order enjoining their neighbor ,
             Foutainbleau, from building a 14 story addition onto their hotel
             which would block light to  swimming pool. FLA Ct. App.
             LIFTS INJUNCTION finding that  's shading of 's swimming
             pool did not interfere with 's legal rights, where 's building

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                 serves a useful and beneficial purpose, and it incurred no violations
                 of local building codes.)
     13.  MINORITY VIEW: Nuisance doctrine APPLIED to LIGHT
          a)     SPITE FENCES: Landowners are entitled to protection against
                 malicious obstruction of light by neighbors. (Prah v. Maretti, p.
                 359.)
          b)     Prah v. Maretti, p. 357. ( has a house with solar heating.  buys
                 property next door and makes plans to build house which will
                 shade 's solar access.  sues for injunctive relief. S Ct. WI
                 REVERSES T. Court decision to non-suit plaintiff, stating that old
                 justifications for denying such protection (need for economic
                 development, expasionism, and protection of neighbors only from
                 physical damage) are no longer valid. Noting 1) that society has
                 already increasingly regulated land use for the general welfare, 2)
                 that using the sun as a source of energy is of interest to society, and
                 3) that unhindered development is no longer in the best interest of
                 society, the court notes that "times have changed" and  should
                 have his day in court.)
          c)     EXAMPLES of ARGUMENTS EMPLOYED: In Prah, the policy
                 arguments of both  and  show that "there are two sides to every
                 coin":
                 (1)      argues: 1)  should be allowed to build because all rules,
                         codes etc have been followed. 2)  should have foreseen
                         that somebody would have built on the neighboring lot. He
                         could have defended his right by buying the next door lot;
                         or he could have built his house in a better location. 3)
                         "Unusually Sensitive Use" by  should not be allowed,
                         because solar panel on a roof is not what people expect.
                         Why should  have to foresee such circumstances? 4) How
                         much would it cost for  to just move the panels? 5) The
                         decision should not be make by the court, it should be made
                         by the legislature who can better consider the broader social
                         impacts of such a changed rule.
                 (2)      argues: 1)  was on notice before construction had
                         started.  could move his house a little bit. 2) CHANGING
                         CONDITIONS of SOCIETY have shifted tratditional
                         priorities in land use. (Less emphasis on land exploitation
                         and development, more emphasis on development of
                         alternative energy sources), 3) SOCIAL UTILITY:
                         Protecting people who are generating solar power is
                         something society should support.
F.   PUBLIC Nuisance (p. 334-335)
     1.   Definitions
          a)     A public nuisance is "an unreasonable interference with a right
                 common to the general public." R2d § 821B(I)
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                       b)     "A public nuisance is one affecting the rights enjoyed by citizens as
                              a part of the public. To constitute a public nuisance, the nuisance
                              must affect a considerable number of people or an entire
                              community or neighborhood…." (Spur v. Del Webb, p. 75, reader.)
               2.      Distinguishing PUBLIC from PRIVATE nuisance
                       a)     "Public nuisance protects public rights; private nuisance protects
                              rights in the use and enjoyment of land." (note 1, p. 78 reader)
                              This view means that some nuisances may be both Public and
                              Private at the same time (such as the feedlots in Spur v. Del Webb,
                              infra.)
               3.      Who may sue for Public Nuisance?
                       a)     TRADITIONAL VIEW: Such suits can only be brought by Public
                              Officials.
                       b)     MODERN VIEW: R2d Torts 821C provides any member of the
                              public can bring charge for public nuisance. (see note 1, p. 78,
                              reader)
               4.      Examples of PUBLIC NUISANCE.
                       a)     EXAMPLE: Obstruction of public highways.
                       b)     EXAMPLE: Citizens sue to shut down a public nuisance, court
                              grants injunction on landlord forcing him to evict tenants using
                              property for crack cocaine sales. (Kellner v. Capelini, p. 334.)
                       c)     Lew v. Superior Court, p. 335 (court enforces state statute
                              providing that landlords could be held liable for nuisance when the
                              landlord's apartment complex had become a hub of drug activity
                              and the landlord did not act reasonably in dealing with the
                              problem.)
                       d)     DeSario v. Industrial Excess Land Fill, Inc., p. 336. (Jury awards
                              owners of noncontaminated property within two miles of a toxic
                              waste dump $6.7 million in damages for the loss of their property
                              value cause by the "stigma" of being near the dump.)
                       e)     See also, Spur v. Del Webb, infra.

PROBLEM, PAGE 335: A half-vacant apartment building is used by drug traffickers. Some are
tenants who deal. Others are squatters in vacant apartments. The activities have turned the
neighborhood into a drug market. The landlord has in no way encouraged these activities, but
has also failed to curtail the problem. Twenty neighbors bring a lawsuit against the landlord.
What arguments can be made for damages and injunctive relief?

The neighbors deserve compensation for any diminution in the value of their property as a result
of the landlord's failure to control the situation. Also, an injunction ordering the landlord to evict
the drug dealers is needed. There is no social utility in allowing the landlord to take no action
against drug dealing. Besides an injunction would ensure the right to a safe decent
neighborhood.



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Landlord can argue in response that they agree there is no social utility in drug dealing, but that is
irrelevant because THEY are not dealing drugs. Also can argue social cost of either driving up
costs of rents for added security or of some landlords being put out of business and a loss of low
income housing. Besides, even if there is no major effect on the housing market, the landlord is
still forced to pay the cost, and bear the liability, in any eviction proceedings. Also, some
landlords may selectively abandon low income property if the burdens become to substantial.

       G.       REMEDIES FOR NUISANCE
                1.  Three TYPES of REMEDIES in nuisance cases (p. 331)
                    a)     Property Rules:
                           (1)     Fix an absolute entitlement either to engage in the conduct
                                   or to be free from the harm.
                           (2)     In either case, parties are free to bargain for the opposite
                                   result.
                    b)     Liability Rules:
                           (1)     Prohibit each party from interfering with the interests of the
                                   other unless the party is willing to pay damages determined
                                   by a court of law.
                           (2)     Defendant may choose to go ahead with harmful conduct if
                                   the benefit of the conduct is greater than the expected
                                   liability.
                           (3)     PURCHASED INJUNCTION: Allows plaintiff to force
                                   defendant to halt harmful activity, but requires plaintiff to
                                   pay defendant a preset amount in compensation for lost
                                   profits caused by plaintiff's interference.
                    c)     Inalienability Rules:
                           (1)     Assign entitlements and PROHIBIT those entitlements
                                   from being sold or exchanged.
                2.  Alternate approach: "comparative nuisance"
                    a)     "Under such an approach, a court might provide injunctive relief
                           but also require a plaintiff whose share of the responsibility for the
                           nuisance was 20% to pay 20% of 's compliance costs." Jeff
                           Lewin, 54 Alb. L. Rev. 189, 276-291 (footnote 8, p. 80, reader.)
                3.  Effects of distribution of ENTITLEMENT as compared to RULE
                    selected. (chart, p. 332)

                     Entitlement to Plaintiff                  Entitlement to Defendant
Property Rule        P can get injunction ordering D to        D has liberty to commit the harm
                     stop harmful conduct. If D wishes to      without liability. If P wants to
                     continue conduct she can negotiate        prevent harm, P will have to pay D
                     with P.                                   to stop.




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Liability Rule      P can get damages from D for            P can stop D's conduct with a
                    committing the harm, but no             purchased injunction.
                    injunction. D is free to commit the
                    harm as long as they are willing to
                    pay the damages.
Inalienability Rule D has no right to commit the harm.      D has the right to engage in the
                    Any agreement by P to allow the         protected activity. Any agreement
                    harm is not enforceable.                by D to give up the conduct is
                                                            unenforceable.

                 4.   Balancing of the Equities
                      a)     "Even though a jury finds facts constituting a nuisance,…there
                             should be a balancing of the equities in order to determine if an
                             injunction should be granted," (Estancias, p. 59, reader.)
                      b)     CONSIDERATIONS: Court must weigh injury to public and  if
                             injunction is granted versus injury to  if only $$ damages are
                             granted.
                      c)     CRITICISM of Balancing Equities: "One of the chief problems
                             with this doctrine is that it compares the general loss to the public,
                             such as job loss, while it only considers specific loss to the private
                             land owner, i.e., the specific money damage to his property,
                             notwithstanding he may be damaged in many general ways which
                             cannot be translated into specific damages." (Mahoney v. Walter, S
                             Ct. W VA, p. 69 reader.)
                      d)     Normal assumption is that  will get an injunction UNLESS  can
                             show that there is a strong argument for PUBLIC NECESSITY for
                             's activities to continue.
                 5.   NECESSITY of others may force  to take $$ instead of injunction.
                 6.    MUST CHOOSE between INJUNCTION and $$ damages for
                      continued nuisance.
                      a)     EXAMPLE: Estancias. Although  could recover for actual
                             damage due to nuisance,  had to CHOOSE between allowing
                             nuisance to continue and taking $$ damages, or taking injunction.
                             (BECAUSE, once injunction is granted, nuisance is no longer
                             present, and so the property value is no longer diminished.)
                 7.   Outline of CURRENT NUISANCE LAW in the courts (p. 333)
                      a)      may obtain an INJUNCTION against 's conduct when:
                             (1)      conduct is unreasonable (causes more social harm than
                                     good) and  causes substantial harm to .
                      b)     P may obtain $$ damages but no injunction if:
                             (1)     's conduct is reasonable (causes more social good than
                                     harm, and therefore should be allowed), but the harm to  is
                                     SUBSTANTIAL so that it is unfair to burden P with the
                                     costs of D's socially useful conduct.

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     c)   P is entitled to NO remedy if
          (1)     The harm to  is not substantial; or
          (2)     's conduct causes more social good than harm, and it is
                  not unfair to impose the costs of 's activity on , or
          (3)     the imposition of damages would put  out of business and
                  avoiding this result (because of social good of 's conduct)
                  is more important than preventing the harm to .
     d)   P is entitled to a PURCHASED INJUNCTION if:
          (1)     's conduct causes more harm than good; but it is fair to
                  impose the cost of shutting down 's activity on  (for
                  example when  comes to the nuisance).
8.   ECONOMICS:  may purchase injunction to continue nuisance.
     a)   EXAMPLE: In Estancias, once  obtained the injunction,  was
          free to negotiate with  for the right to continue operating the air
          conditioner.
     b)   BUT, this may lead to STRATEGIC BARGAINING and
          inefficient results. (What if Estancias demands $1 million to allow
          nuisance?)
9.   APPLICATION of ABOVE INFORMATION.
     a)   Estancias v. Schultz, p. 59 Reader. (, Estancias, installed an
          extremely noisy air-conditioning unit for large apartments located
          ~70' from , Schultz's, home.            obtained PERMANENT
          INJUNCTION against .  could have designed a different system
          on installation for $40,000. They claim to remediate the system
          now would cost $150,000 to $200,000. 's experts testified value
          of 's property had dropped $10,000 to $12,500. And  claimed
          $10,000 in personal harm. T. Court forces  to CHOOSE between
          devaluation of property and injuntion, because with one, the other
          is not necessary.  on appeal claims T. Court FAILED to
          "BALANCE the EQUITIES" Ct. App. TX UPHOLDS injunction
          as appropriate remedy in this case.)
     b)   Boomer v. Atlantic Cement, p. 64 reader. ( operates large cement
          plant which caused damage to  neighboring land owners for
          smoke, dust and vibration. Previously NY precedent had held that
          where a nuisance was found and any substantial damage to 
          shown the nuisance MUST be enjoined. S Ct. NY upholds App.
          Ct. decision which finds that the total damage to 's properties is
          relatively small when compared to value of  operation (only
          economic considerations), and that closing the plant would cause
          undue hardship to . Court CONSIDERS applying a "postponed
          injunction" to allow  time to install cleaning devices, but notes
          that there was no assurance that technology could be developed to
          abate pollution. Instead, the court grants a "PURCHASABLE"


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                        INJUNCTION.  will be allowed to continue nuisance provided it
                        pays a one time fee as set by the court. )
                 c)     DISSENT in Boomer: "In permitting the injunction to become
                        inoperative upon the payment of permanent damages, the majority
                        is, in effect, licensing a continuing wrong." (Boomer, p. 68 reader.)
                 d)     PUBLIC v. PRIVATE nuisance in Boomer. In the Boomer case,
                        the court was careful to note that it was only settling the question
                        of private nuisance and still left open the possibility that PUBIC
                        OFFICIALS could bring an action against the plant for PUBLIC
                        NUISANCE.
                 e)     Copart v. Consolidated Edison, p. 69, note 2, reader. (On
                        essentially same facts, the NY Ct. of App. Concluded that neither
                        intent nor negligence had been established and so denied that there
                        was any nuisance at all. [This is, of course, ridiculous considering
                        the fact that ALL FIRST YEAR LAW STUDENTS know that a
                        nuisance does not have to result from negligence.])
                 f)     Spur v. Del Webb, p. 71, reader. (Spur is first in the area, they
                        build feed lots. Later  Webb comes along and develops
                        residences nearby.  later brings suit against  for PUBLIC
                        NUISANCE. S Ct. AZ agrees that by AZ statute, the problem does
                        constitute a public nuisance. Court holds that  must move its feed
                        lots, but that must pay a reasonable amount of the costs of
                        relocation for 's operation since  is the one who brought the
                        "public" to the "nuisance."
V.   LAW and ECONOMICS (p. 338-356)
     A.   Serves TWO functions.
          1.     Descriptive: Explaining existing patterns.
                 a)     Describes past legal decisions based on their economic
                        consequences.
          2.     Normative: Describing the world that SHOULD be.
     B.   THEORY BEHIND L&E: The law should establish EFFICIENT rules
          1.     Maximizing Social Utility
                 a)     Defined as the maximum amount of benefits for society as a whole.
                 b)     BASED ON AGGREGATE EFFECTS: If there is more total gains
                        for society than loss then the result is "efficient."
          2.     Value based on what people are WILLING and ABLE to pay.
                 a)     Example: if you want to know how valuable a TV is to societ, find
                        out how much people will pay for it.
     C.   Requires ACCURATE analysis of ALL costs.
          1.     Each party MUST bear full cost of their activities for truly
                 EFFICIENT" result.
          2.     EXTERNALITIES
                 a)     EXAMPLE: Factory which doesn't cover the social cost of the
                        pollution it spews into the community.


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            b)    Fountainbleau case: By avoiding injunction at App. Ct.,
                  Fountainbleau is permitted to block Eden Roc's light without
                  paying ANY of the costs for doing so. Of course, in reverse, we
                  could say that Eden Roc is trying to keep a sunny pool without
                  paying for the social costs of limiting building opportunities.
D.   If L&E analysis is accurate, it wont matter who gets the entitlement.
     1.    Efficiency results directly, or through bargaining.
           a)     EXAMPLE: ASSUME: The Foutainbleau is worth $10 million
                  more by building the addition; and ASSUME that Eden Roc will
                  lose $6 million in lost revenues. If we allow Fountainbleau the
                  right to build, then Eden Roc would have to buy the right away.
                  Since the value of the tower is greater than Eden Roc's lost
                  revenue, Eden Roc will not be able to pay enough to stop the
                  construction. And, if we give Eden Roc the right to sunlight,
                  Fountainbleau will purchase the right for $6million, and the tower
                  will still be built.
     2.    But DISTRIBUTION of WEALTH is NOT THE SAME.
           a)     Returning to the above example: If Fountaibleau is awarded the
                  right, it KEEPS its $10 million, while Eden Roc eats $6 million.
                  BUT if Eden Roc is awarded the right, and then sells it,
                  Fountainbleau must pay $6 million. This Fountainbleau only
                  realizes $4 million while the deal is a wash for Eden Roc.
E.   If TRANSACTION COSTS too high, INEFFICIENCY may result.
     1.    Too many parties
           a)     If too many parties are involved the costs of negotiation may cause
                  inefficient results.
           b)     HOWEVER: "Studies, based on further experiments, suggest that
                  enven in situations involving up to forty parties post-litigation
                  bargaining can be expected to lead to efficient solutions with no
                  problems if free-riding or holding out whatsoever." (Reader, p. 70.)
     2.    Strategic Bargaining
     3.    Lacking Relevant Information
F.   Typical LEGAL soultions to UNCERTAINTY in analysis
     1.    Burden shifted to party who could avoid conflict most easily
           a)     This usually means that the party moving in, or engaging in the
                  new activity will lose, and the right will be awarded to the other
                  party.
           b)     HOWEVER, in some instances, the court will find that  should
                  have ANTICIPATED and FORESEEN future activities, and
                  bought the rights in advance. In this case the right will be awarded
                  to  (like in Fountainbleau.)
G.   COASE THEOREM:
     1.    PREMISE: All conflicts in land use are RECIPROCAL.
     2.    PART I: With no TRANSACTION COSTS any decision is efficient.


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             3.   PART II: With TRANSACTION COSTS, choice by court may affect
                  efficiency
                  a)      COURT may INCREASE efficiency by assigning entitlements to
                          the party who would purchase them in the absence of Transaction
                          Costs.
      H.   CRITICISMS of L&E and COASE THEOREM
           1.     EFFICIENCY doesn't indicate WHO right should be awarded to.
           2.     EFFICIENCY ASSUMES initial distribution of WEALTH and
                  PROPERTY is correct.
                  a)      REMEMBER, L&E is based on not only willingness, but
                          ABILITY to pay. A poor neighborhood may be very willing to pay
                          almost any price to keep a local factory from spewing dust and
                          smoke, but if they cannot raise enough money to offset the factory's
                          cost of installing the proper scrubbers, then the factory will
                          continue to choke the neighborhood.
                  b)      Also, if the going rate of a desireable, but non-necessary
                          commodity is $20, it is more likely that a person with $100,000
                          will be willing to buy the good, while a person with $25 to their
                          name would not.
           3.      L&E should be based on ASKING PRICE not PURCHASE PRICE.
                  a)      This would lift limits unfairly umposed on the poor. Thus, in the
                          factory example above, rather than the neighborhood having to
                          decide what it is willing and able to pay for clean air, they would
                          be permitted to decide what the FACTORY would have to PAY
                          THEM to be allowed to pollute their neighborhood.
                  b)      CRITICISM: Use of this system of valuation could create "hold
                          ups" in the market where persons INFLATE their asking price in
                          an attempt to employ STRATEGIC BARGAINING or simply
                          REFUSE to SELL at any price.
           4.     Economics does not address MORAL concerns
                  a)      EXAMPLE: Is it really a good idea to say that slavery is bad just
                          because it is economically inefficient? Should we still permit it if
                          the aggregate economic gain to society was a net positive?
VI.   POLICY ARGUMENTS in Property Disputes (See pg. 279-285, and 365-374)
      A.   Rights: Freedom of Action v. Security
           1.     Based on CURRENT INTERESTS of parties involved in dispute.
           2.     Justice and Fairness in Social Relationships
                  a)      Such argument appeal to FAIRNESS or JUSTICE in social
                          relationships. "[R]ights of neighboring landowners are relative; the
                          uses of one must not UNREASONABLY impair the uses or
                          enjoyment of the other." (Prah v. Maretti, p. 280)
           3.      Rights as freedom of action
                  a)      These arguments are based on the idea that a property owner has
                          the right to do whatever they want with their property. To require
                          the owner to foresee and prevent all harm to others would

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                     unreasonably limit the property owners right to enjoy his own
                     property.
     4.      Rights as security
            a)       Security rights are the opposite of rights of freedom of action.
                     Security rights is the right to have one's property protected from
                     harm.
     5.      Altruism, GOLDEN RULE
            a)       It is MORALLY wrong for owners to use property in a way that
                     damages neighbors interests.
     6.      Individualism, SELF RELIANCE
            a)       Neighbors have no MORAL duty to one another. It is up to each
                     owner to FORESEE future uses of neighbors and to protect oneself
                     against such uses.
     7.      COMPENSATION
            a)       Between two innocents, whoever causes damage should pay.
     8.      No LIABILITY without fault
            a)       No liability should be assigned if  does nothing wrong.
     9.     :  Should FORESEE consequences of their own conduct.
            a)        should take precautions against harming neighbors.
     10.    :  should FORESEE and PROTECT against future uses.
     11.     REASONABLE EXPECTATION that newcomers will adjust to
            current usages
     12.     REASONABLE EXPECTATION to be able to develop.
     13.    Value judgments
            a)       In balancing the above rights, one must look to see whether the
                     interests claimed are legitimate and just. Even so, there will be
                     times when choosing between conflicting legitimate claims will
                     arise.
B.   Social Utility: based on FUTURE EFFECTS of rule IF ADOPTED.
     1.     BUZZ WORDS:  Competition,  Secure Investment
     2.     Promoting the general welfare by enacting appropriate incentives
            a)       By making a particular decision, the court can encourage or deter
                     social conduct of other actors.
     3.      Promoting Competition
            a)       Lawyers often argue that social welfare is maximized when
                     government deregulates economic activity.
     4.      Protecting the Security of Investment
            a)       In contrast to competition, Security of investment arguments state
                     that no one will want to invest in property if their neighbor can
                     cause that investment to be insecure.
     5.     Balancing Interests
            a)       In evaluating social utility arguments, one must consider how
                     people will actually respond to the new rule; and the costs and
                     benefits of the rule.

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       C.   JUDICIAL ROLE: separation of powers, defining proper sphere of
            influence.
            1.     ROLE OF PRECEDENT
                   a)     Broad v. Narrow Interpretation of Precedent
                   b)     Distinguish or Reconcile conflicting Precedent
                   c)     Enforce or Overrule Precedent
                          (1)      Stare decisis v. Promoting justice
            2.     INSTITUTIONAL ROLE
                   a)     Judicial restraint v. Judicial Activism
                   b)     Broad "purpose" based statutory construction v. Narrow "language"
                          based construction.
                   c)     Competence of Institution to properly consider consequences.
                          (1)      Judges see policy case by case
                          (2)      Legislature provides for broader consideration
                          (3)      Judicial action swift and sure, but blunt.
                          (4)      Legislative action slow, unclear but methodical.
       D.   Formal Realizability or Administrability: Rigid Rules v. Flexible Standards
            1.     Predictability v. Justice in the Individual Case
                   a)     These types of arguments tend to look at manner in which rules are
                          expressed and implemented.
                   b)     In other words, Will courts and people be able to understand the
                          rule in the future?
            2.     RIGID Rules
                   a)     Rules are good because they provide certainty in actions and
                          transactions.
                   b)     However, rigid adherence can create injustice.
                   c)     Also, well defined rules allow the badman to walk the line.
            3.     FLEXIBLE Standards
                   a)     Standards are more flexible than rules. They allow better
                          administration of justice in INDIVIDUAL cases. Court are able to
                          respond to each case on its own terms.
                   b)     However, standards can lead to uncertainty as to what is
                          permissible and what is not. Also may grant judges too much
                          power and invite abuse of discretion.
            4.     Formal Realizability and Social Utility
                   a)     The selection of whether rules or standards should be adopted is
                          affected by the substantive goal of developing rules which have a
                          desirable social effect. (p. 284)
VII.   ESTATES IN LAND: A FAST PRIMER
       A.   Fee Simple Absolute
                   a)     O to A
                   b)     O to A and her heirs
                   c)     O to A in fee simple
       B.   Defeasible Fees
            1.     FUTURE INTEREST in GRANTOR

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            a)   Automatic Transfer
                 (1)     Current interest: Fee Simple Determinable
                         (a)     Magic Words: "so long as"; "while"; "during";
                                 "until"; "unless."
                 (2)     Future interest: Possibility of Reverter
                         (a)     O to A so long as used for residential purposes
                         (b)     O to A while used for residential purposes
                         (c)     O to A during residential use
           b)    Transfer only if future interest owner asserts her interest
                 (1)     Current interest: Fee Simple subject to Condition
                         Subsequent
                         (a)     Magic Words: "provided that"; "on condition"; "but
                                 if."
                 (2)     Future interest: Right of Entry
                         (a)     O to A on the condition that the property be used for
                                 residential purposes; in the event it is not so used, O
                                 shall have a right of entry.
                         (b)     O to A, but if used for non residential purposes, O
                                 shall have a right of entry.
                         (c)     O to A provided that the property is used for
                                 residential purposes; if this condition is violated, O
                                 shall have a right of entry.
     2.    Future Interest in 3rd Party
           a)    Current Interest: Fee Simple subject to executory limitation
                 (1)     Magic Words: "until (or unless)…, then to …"; "but if
                         …then to…."
           b)    Future interest: Executory interest
                 (1)     O to A so long as used for residential purposes, then to B.
C.   LIFE ESTATE
     1.    Current interest: Life estate
     2.    Future interest
           a)    In GRANTOR: Reversion
                 (1)     O to A for life.
           b)    In 3rd Party: Remainder
                 (1)     vested remainders
                         (a)     absoluteley vested remainder
                                   (i)    O to A for life, then to B.
                           (b)     vested remainder subject to open
                                   (i)    O to A for life, then to B's children
                           (c)     vested remainder subject to divestment
                                   (i)    O to A for life, then to B, but if B does not survive A,
                                          then to C.
                    (2)    contingent remainders
                           (a)    condition precedent
                                   (i)    O to A for life, then to B if she survives A, otherwise
                                          to C.

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                                             (ii)    O to A for life, then to B if B has graduated from law
                                                     school.
                                     (b)     unascertained person
                                             (i)     O to A for life, then to the heirs of B
VIII.   ESTATES IN LAND
        A.   Special Notes on Effects of Estates
             1.     ASSUMPTION is Fee Simple Absolute unless specified otherwise.
             2.     SALE of LIFE ESTATE
                    a)     One can ONLY sell the interest one has in an estate. Thus, if A
                           has a life estate, all that A can sell is that estate. When A dies,
                           whoever bought the property looses it to wherever the remainder or
                           reverter is supposed to go.
                    b)     Life estate pur Autre Vie: Where B buys A's life estate, B is said
                           to have a "Life Estate pur Autre Vie" (for the life of another).

               3.     RIGHT of ENTRY is TRANSFERRABLE and INHERITABLE (p.
                      540)
               4.     Reverter v. Right of Entry:
                      a)     REVERTER: MAGIC WORDS: "so long as," "while," "during,"
                             "until," "unless."
                      b)     Right of Entry: MAGIC WORDS: (conditional) "provided that,"
                             "on condition," "but if,"
                      c)     ADVERSE POSESSION (p. 540) If Grantor retains a
                             REVERTER, the Statute of Limitations on ADVERSE
                             POSESSION begins IMMEDIATELY when the condition
                             triggering the reverter occurs. HOWEVER, under a right of entry,
                             this DOES NOT occur.
               5.     LACHES: no recovery even under RIGHT of ENTRY if GRANTOR
                      waits too long (p. 540)
               6.     Destructibility of Contingent Remainder (p. 544)
                      a)     TRADITIONAL VIEW:             Contingent remainder destroyed if
                             remainder does not vest by end of LIFE ESTATE
                      b)     MODERN           APPROACH:                Contingent       remainders
                             INDESTRUCTIBLE.
                             (1)     EXAMPLE: O to a for life, then to B if she becomes
                                     president of the U.S. In this case if B is not president of the
                                     US by the time A dies the remainder reverts to O or O's
                                     heirs (and that would be all under traditional view, the
                                     contingent remainder was destroyed).              But, under
                                     MODERN APPROACH, if B LATER became president of
                                     the US, the remainder would SPRING from O or O's heirs
                                     to B upon that event.
               7.     DOCTRINE of WORTHIER TITLE (p. 545)
                      a)     TRADITIONAL RULE: Converts remainder of a life estate to
                             Grantors Heirs into a reverter to the grantor.


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                             (1)    Example: O to A for life, remainder to O's heirs is
                                    translated to mean: O to A for life.
                    b)      Typical reason for this type of grant was to avoid inheritance taxes.
                    c)      MODERN APPROACH: Does not transfer remainder to O as a
                            reverter. Language must be sufficiently clearly drafted to make it
                            clear that O intends for her HEIRS to be the beneficiaries of the
                            conveyance after A's death.
             8.     RULE in SHELLY'S CASE
                    a)      Similar to Doctrine of Worthier Title
                    b)      TRADITIONAL RULE: Converts life estate in A with a
                            remainder going to A's heirs into a Fee Simple Absolute in A.
                            (1)     EXAMPLE: O to A for life, then to A's heirs translated into
                                    O to A.
                    c)      MODERN APPROACH: Rule abolished.
      B.     Fee Tails (p. 546)
             1.     Designed to keep property in family dynasty.
                    a)      Denoted by language: O to A and the heirs of her body.
                    b)      This sets out a set of life estates in A and her descendants. When
                            A's last heir dies, the property reverts to O or O's heirs.
                    c)      Only four states recognize fee tails: DE, ME, MA, RI.
                    d)      CA Rule: Fee tail translated into fee simple absolute.
      C.     REGULATION of FUTURE INTERESTS
             1.     Presumption Against Forfeitures
             2.     No Creation of New Estates
             3.     Rules regulating SUBSTANCE
                    a)      Rule Against Restraints on Alienation
                    b)      Rule Against Perpetuities.
IX.   Trusts (p. 547)
      A.     Equitable Interest In Property
             1.     Trust managed for beneifit of beneficiaries
                    a)      Grantor (called "settlor") creates property to "trustee" who manages
                            property in interest of beneficiaries.
             2.     Trustee holds LEGAL title
                    a)      Thus the trustee can sell the property and reinvest the proceeds if in
                            the beneficiaries best interests.
             3.     Trustee under Fiudciary Obligation
                    a)      Trustee is labile to benficiaries for mismanagement of trust assets.
             4.     EXAMPLE
                    a)      Trusts can be created in forms corresponding to regular estates.
                    b)      EXAMPLE: O to X in trust for A for life, then to A's children.
X.    LIFE ESTATES and WASTE
      A.     Conflicts between Owners of CURRENT interests and FUTURE interests.
             1.     WASTE



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     a)    "It has been generally recognized that any act of the life tenant
           which does permanent injury to the inheritance is waste." (Brokaw
           v. Fairchild, p. 100, reader.)
     b)    "The tenant has no right to exercise an act of ownership." (Brokaw,
           p. 100, reader.)
     c)    Brokaw v. Fairchild, p. 98, reader. (Isaac built the house in the late
           1800's. When he dies he leaves a life estate to  George, his
           youngest son. George wants to take the mansion down because he
           can make more money if he builds apartments there. NY App. Ct.
           says that he can't because this would be waste of the estate, which
           the court specifically interprets to be the RESIDENCE not just the
           property. [Note that ECONOMICALLY the overal property would
           have been worth more as apartments. City politics probably drove
           this decision].)
     d)    STATUTORY AFTERMATH: In NY, after the Brokaw ruling,
           the legislature passed a law allowing a tenant to alter the premises
           if there is economic benefit to the property.
     e)    DAMAGES for WASTE: about half of the states allow multiple
           (treble) damages or forfeiture for waste.
     f)    Also, the Restatement says that things should be allowed to change
           when times change.
2.   Forms of waste
     a)    Voluntary, ameliorative acts.
     b)    Voluntary, destructive acts (active waste)
     c)    Voluntary inaction which is destructive (passive waste)
     d)    Failure to prevent wasteful conduct of 3rd party.
     e)    Equitable waste.
3.   TEST of waste
     a)    Good husbandry or Prudent owner test.
4.   COURT MAY ORDER SALE of LAND held as Life Estate with
     Future Interest.
     a)     But there must be "necessity" before such an order is rendered.
           (see Baker v. Weedon, p. 109, reader.)
     b)    Baker v. Weedon, p. 106, reader. ( Wife with LT wants to sell
           farmland because of need. Grandchildren with FI want to block
           sale because of rising values. Wife is only getting $1,000 per year
           from farm rental. In this case, even though the land is worth a lot
           now, it will be worth a LOT more a few years later when the
           highway is completed. S Ct. MI HOLDS  can't sell all of it. She
           can only sell what is necessary to provide for her. The rest to be
           kept for the FI interest holders' speculative value.)
     c)    In the above case, if John Weedon had created a trust with his wife
           as the beneficiary the whole suit probably could have been
           avoided. Since the trustee holds legal title, she would have the


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                        ability to sell the property as needed to care for the wife if that was
                        in the wife's best interest.
XI.   INTERPRETING CONVEYANCES
      A.   Two IMPORTANT policies
           1.     Implement the intent of the Grantor
                  a)    Intent is examined at the TIME of CONVEYANCE, not when
                        grantor or other brings suit.
                  b)    Understanding og grantee at time of conveyance may also help to
                        establish the grantor's intent.
           2.     Presumption AGAINST finding future interest
                  a)    "The presumption is against loss of the property by the current
                        owner." (note 1, p. 557.)
                  b)    "The general rule is well settled that the mere expression that
                        property is to be used for a particular purpose will not in and of
                        itself suffice to turn a fee simple into a determinable fee." (Roberts
                        v. Rhodes, p. 557, note 1.)
                  c)    Courts will read the conveyance for the "magic words." If the
                        "magic words" are not present, no future interest will be found.
                        (see Wood v. Board of County Comissioners.)
                  d)    Wood v. Board of County Commisioners, p. 550. (Woods convey
                        land to the county (it was probably a philanthropic gift). Per the
                        deed, the county builds a hospital, operates it for a while, then sells
                        to a private company who operates hospital for a while, then the
                        private company decides to move the hospital and sell the land.
                        Woods sue claiming that they intended to get land back if use for
                        hospital ever stopped. S Ct. WY holds that no language in the
                        deed suggests either a fee simple determinable or a fee simple
                        subject to condition subsequent. Since grantors intent is not clear
                        in the language, the presumption against future interests wins. 's
                        lose).
                  e)    Forsgren v. Sollie, p. 553. (magic words "on the condition"
                        appear.  wins.)
      B.   Other considerations in interpretation
           1.     Order of Preference of Future Interest
                  a)    "If the choice is between a fee simple determinable, and a fee
                        simple subject to condition subsequent, the latter is preferred
                        because the current interest is not automatically forfeited. If the
                        chilce is either a life estate or a fee simple, a fee simple interest is
                        preferred." (note 1, p. 557.)
           2.     Conditions as COVENANTS
                  a)    "If the choice is either a covenant or a future interest, the
                        presumption is against the future interest and in favor of the
                        enforceable covenant." (note 1, p. 557)
      C.   Trusts and Cy Pres Doctrine


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                     a) For charitable trusts which become impracticable or impossible to
                        distribute as specified, CY PRES DOCTRINE is applied: If court
                        finds the settlor's intent was GENERAL, the court will find an
                        alternate charity. If the settlor's charitable intent is no longer
                        possible to accomplish, then court must decide to whom the trust
                        assests should be distributed. (p. 558-59.)
XII.   RULES REGULATING RESTRICTIONS ON USE
       A.  Rule Against Creation of New Estates
           1.    General Rule
                 a)     "A conveyance that does not fit within any of the established
                        categories must be interpreted to create the most analagous estate."
                        (p. 561)
                 b)     The rules above regarding interpretation generally apply in this
                        exercise (grantor's intent, presumption against forfeiture, most
                        complete estate, etc.)
       B.  Rule Against Unreasonable Restraints on Alienation
           1.    Total Restraints on Alienation are VOID (note 1. P. 571).
                 a)     THREE KINDS of RESTRAINTS: Disabling, promissory and
                        forfeiture restraints.
                 b)     JUSTIFICATIONS: 1) promoting dispersal 2) encouraging
                        autonomy of current interest holder 3) promoting efficiency by
                        allowing transfer to most efficient use.
                        (1)     Also, keeps down the formation of "family dynasties."
                 c)     CRITICISMS of JUSTIFICATIONS: promissory and forfeiture
                        restraints do not eliminate transferability. And in some cases (such
                        as low income housing) restraints may actually serve rather than
                        hinder social utility.
                        (1)     Argument about dynasties is garbage because if restraint is
                                violated, property will go to future interest holder (heirs of
                                grantor, or other assigned interest holder).
           2.    Partial restraints are valid if reasonable.
           3.    Temporary Restraints on Alienation
                 a)     TRADITIONAL VIEW: UNENFORCEABLE
                        (1)     Hankins v. Mathews, p. 563. (Nephew receives land from
                                Uncles will with a condition that he not sell it for 10 years.
                                S Ct. TN finds this temporary restraint "repugnant to the
                                fee" and voids it.)
                 b)     MODERN VIEW: May be enforced if not unreasonable.
           4.    Restraints on HOW property is alienable may be permitted
                 a)     Not permitted where based on race or gender bias.
                 b)     Restraints based on right of first refusal or preemptive right
                        generally are upheld (note 3, p. 574.)
                        (1)     Condo associations may be able to enforce preemptive
                                rights (note 5, p. 575)
                 c)     But, may be permitted on religious grounds

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                             (1)   Example, "O to A so long as A never sells to anybody
                                   named Kelly," is Okay.
             5.    Restraint on Alienation of LIFE ESTATE is generally permitted.
                   a)      Mostly because life estates aren't worth a whole lot anyway.
             6.    Restraints of alienability based on MARRIAGE may be valid
                   a)      Where intent of testator is to provide for unwed person until
                           married, restraint may be enforeced. (see Lewis v. Searles, p.645)
                   b)      Where intent is to PREVENT marriage altogether, restraint is
                           invalid. (R2d property § 6.1(1)) (p.650)
                   c)      Where intent is to only prevent certain marriages, restraint is valid
                           if it does not unreasonably limit interest holder's opportunity to
                           marry. (R2d property §6.2) (p. 650)
                           (1)     Shapira case, p. 651. (Conveyance is conditioned on son
                                   marrying woman with jewish parents within 7 years of
                                   parents death. Court upholds conveyance.)
                   d)      Where intent is to deprive widow(er) of opportunity to remarry
                           restraint is valid (R2d property §6.3) (p.650).
XIII.   RULE AGAINST PERPETUITIES
        A.   Generally
             1.    The RULE stated
                   a)      "No interest is good unless it must vest, if at all, no later than 21
                           years after the death of some life in being at the creation of the
                           interest" (p. 590.)
             2.    Justifications for the RAP
                   a)      Limiting dead hand control
                   b)      Preventing dynasties
                   c)      Making the property marketable
                   d)      Encouraging improvement by the person on the land
             3.    FIVE STEP process for assessing a conveyance
                   a)      Identify the interests the conveyance creates
                   b)      Are there FUTURE interests?
                           (1)     Note, any future interest which revert to the grantor are
                                   NOT subject to the RAP.
                   c)      Are any of the FUTURE interests CONTINGENT?
                   d)      When do the contingent interests VEST?
                   e)      Check the relationship between the vesting event and the lives in
                           being.
                           (1)     If the vesting event might occur more than 21 years after
                                   the death of the other persons mentioned in the will, the
                                   interest is invalid.
             4.    EXAMPLE of the five step process (Connectituct Bank and Trust v.
                   Brody.)
                   a)      Conveyance (a will) essentially reads: "O to the bank in trust, to
                           pay the proceeds of the trust in equal thirds to O's children; then,
                           upon the death of the last of O's children to be paid in equal shares

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                  to O's grandchildren; then, upon the death of the last grandchild for
                  the trust to be dissolved and paid out equally to O's great-
                  grandchildren."
           b)     IDENTIFY: The three children each have a life estate; the grand
                  children receive a remainder in life state; and the great
                  grandchildren receive a remainder in fee simple absolute.
           c)     PRESENT/FUTURE?: The children's interest is a present interest
                  (RAP doesn't apply); The grandchildren and great grandchildren
                  have FUTURE interests
           d)     VESTED/CONTINGENT?: The grandchildren's interest is vested
                  subject to open (a contingent type remainder); the great
                  grandchildren's interest is a contingent remainder.
           e)     VESTING EVENT: For grandchildren: death of the last child. For
                  great-grandchildren: death of the last grandchild.
           f)     CHECK against LIVES IN BEING at creation of will: For the
                  grandchildren interest vests on death of last child, all of whom
                  were living at the time the will was executed—therefore the
                  grandchildren's interest is valid. But, for the great grandchildren,
                  the vesting event is the death of the last grandchild. In this case, all
                  of the grandchildren are not necessarily living at the time of the
                  conveyance (another grandchild could be born AFTER the will is
                  executed) because a new grandchild could live 21 years beyond
                  the death of the grandchildren who are alive at the time the will is
                  executed. This means the great grandchildren's interest would not
                  vest within 21 years of the lives in being at the time the will is
                  executed and so their interest is INVALID.
           g)     In this case, the great granchildren's remainder is lopped off.
                  (NOTE: In the actual case, the court also lopped off the
                  grandchildren's interest because it declared that they were simply
                  "placeholders" for the great grandchildren. HOWEVER, this is
                  very unusual. Most courts would have simply stopped with the
                  great grandchildren.)
           h)     SEE HANDOUTS & pgs 597 to 602 for more examples of
                  calculating the RAP
B.   Reforms of the RAP
     1.    WAIT and SEE or SECOND LOOK test
           a)     "Under the wait and see test, the courts will not hold that a future
                  interest violates the rule until the perpetuities period has passed
                  and they are certain that the future interest has not vested within
                  that period."
     2.    UNIFORM STATUTORY RULE AGAINST PERPETUITIES (CA
           rule)
           a)     Under the USRAP, any interest which vests within 90 years after
                  the creation of the interest is valid,any interest which does not is
                  stricken.

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            b)   The 90 year rule ONLY applies to interestest which would have
                 been invalidated under the standard RAP.
     3.   EQUITABLE REFORM or Cy Pres
          a)     Under the cy pres doctrine, a court might alter the conveyance to
                 make it fit within the 21 year period, rather than invaidate the
                 future interest altogether.
C.   OPTIONS to PURCHASE under the RAP
     1.   Option to purchase without time limit is VOID under the RAP
          a)     If no time limit is stated, the option violates the traditional rule and
                 is void. (Note 1, p. 611)
          b)     UNDER WAIT AND SEE: If a corporation holds the option, the
                 court will wait 21 years from the conveyance to see if the option is
                 exercised. If not, it is invalid. (Note 1., p. 611)
     2.   Fee simple with OPTION to repurchase is subject to the RAP
          a)     Central Delaware County Authority v. Greyhound Corp., p. 602.
                 (Predecessor to  sells land to  for $5,500 with a condition that if
                 the property ceases to be used for public purposes, the  can buy it
                 back for the same amount. After using the land for public purposes
                 for approximately thirty years,  sues for outright ownership.
                 Noting that the RAP applies to options to repurchase, the PA S Ct
                 declares "the rule against perpetuities is a 'peremptory command of
                 law' that 'is to be remorselessly applied.'  loses.)
     3.   Lease with option for lesee to PURCHASE is not subject tothe RAP
          a)     Texaco v. Samowitz, p. 606 ( leases land to  Texaco for 15 years
                 with three 5 year options to renew. The lease also had a term
                 which provided that  could purchase the land outright for
                 $125,000 after the 14th year of the lease. 23 years after the lease is
                 started  notifies  they which to exercise the option to purchase.
                  refuses to convey. S Ct CN HOLDS, the policy reasons for the
                 RAP do not apply here, and so the option to purchase is valid.)
D.   PREEMPTIVE RIGHTS under the RAP
     1.   Generally Preemptive Rights do not violate the RAP
          a)     Cambridge Co. v. East Slope Investment Corp., p 607. (Condo
                 association has clause in terms of ownership which allow other
                 members of condo association to purchase a sellers condo first at
                 the offer price being made to the seller by an outside entity. East
                 Slope  receives an offer from a third party.  Cambridge, a condo
                 owner, decides to preempt the sale. After  conveys the unit to its
                 original purchaser,  sues.  argues that the preemption clause
                 violates the RAP. S Ct. CO HOLDS "the rule against perpetuities
                 is not merely a technical rule to be mechanically applied. The rule
                 was created by judges to serve important considerations of public
                 policy, and should be applied with those policies in mind." The
                 preemtive clause is upheld, judgement for .)

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                       b)         NOTE: Although it is true that such preemeptive clauses do not
                                 violate alienability per se, it is important to consider the effects
                                 which such clauses might have on concentration of wealth.
XIV. STATUTORY CONSTRUCTION
        A.      Construction of CONSTITUTIONS vs STATUTES
                1.      Judicial Power varies (p. 255)
                        a)       In interpreting statutes, legislatures can correct judicial
                                 overreaching by passing a new law or amending or repealing the
                                 statute.
                        b)       In contrast, construction of Constitutional law is more difficult for
                                 the legislature to alter. Amending the Constitution is much more
                                 difficult.
                2.      Federal vs State Constitutions (p. 255)
                        a)       State constitutions cannot provide less protection to citizens, but
                                 the may provide MORE. (See NJ Coalition v. JMB, supra.)
                        b)       Federal law only states a minimal level of protection for property
                                 rights that the states may not infringe. As long as a State does not
                                 infringe on the core protections of the Federal Constitution, it can
                                 define and restrict property rights as it sees fit. (p 256)
        B.      Cannons of Construction
                        a)       The following is a list of "rules" regarding statutory interpretation.
                                 Because every "rule" has an "anti-rule" it is necessary to use more
                                 than just the cannons when construing statutory language.
                    THRUST                                                   PARRY
A statute cannot go beyond its text.                   To effect its purpose a statute may be
                                                       implemented beyond its text.
Statutes in derogation of the common law will Such acts will be liberally construed if their
not be extended by construction                        nature is remedial
Statutes are to be read in the light of the            The common law gives what to a statute which
common law and a statute affirming a common is inconsistent with it and when a statute is
law rule is to be construed in accordance with         designed as a re-vision of a whole body of law
the common law.                                        applicable to a given subject if it supersedes
                                                       the common law.
Titles do not control meaning; preambles do            The title may be consulted as a guide when
not expand scope; section headings do not              there is doubt or obscurity in the body;
change language                                        preambles may be consulted to determine
                                                       rationale, and thus the true construction of
                                                       terms; section headings may be looked upon as
                                                       part of the statute itself.
If language is plain and unambiguous it must           Not when literal interpretation would lead to
be given effect.                                       absurd or mischievous consequences or thwart
                                                       manifest purpose.




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Words are to be taken in their ordinary       Popular words may bear a technical meaning
meaning unless they are technical terms or    and technical words may have a popular
words of art.                                 signification and they should be so construed
                                              as to agree with evident intention or to make
                                              the statute operative.
Every word and clause must be given effect.   If inadvertently inserted or if repugnant to the
                                              rest of the statute, they may be rejected as
                                              surplusage.
Exceptions not made cannot be read in.        The letter is only the "bark." Whatever is
                                              within the reason if the law is within the law
                                              itself.
Expression of one thing excludes another.     The language may fairly comprehend many
                                              different cases where some only are expressly
                                              mentioned by way of example.

XV.    CURRENT THROUGH ALL NOTES & READING, FALL '97.




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