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					POSESSION & OWNERSHIP OUTLINE
                                                                       POSSESSION and OWNERSHIP (Property) – Prof. Shaffer
                                                                             Southwestern University School of Law – SCALE I
                                                                                                       January – March, 2004
                                                                                                                Ted Finamore
Text: None; Handouts Only



                                                               TABLE OF CONTENTS



   Administrative ............................................................................................................................................ 9
        Recommended Texts ............................................................................................................................. 9
        Required Reading .................................................................................................................................. 9
        Daily Assignment ................................................................................................................................... 9
PART II: THE ELEMENTS OF OWNERSHIP ............................................................................................ 10
A. BOUNDARY: WHAT CAN BE OWNED ............................................................................................... 10
        Tuesday, January 20, 2004 ................................................................................................................. 10
        Overview – Property Rights = Basis for Societal Hierarchy ................................................................ 10
        Inviolability of Property Boundaries ..................................................................................................... 10
        Property in the Animal World ............................................................................................................... 10
        Individual Liberty versus Social Order ................................................................................................. 10
        Three Basic Concepts to this Course .................................................................................................. 10
        1.       Boundary.................................................................................................................................... 10
        2.       Claim .......................................................................................................................................... 11
        3.       Control ....................................................................................................................................... 11
        Thursday, January 22, 2004 ................................................................................................................ 11
        Self-Ownership – The Fundamental Principle of Property .................................................................. 11
        Dred Scott v. John F. A. Sandford (1857) p. 51 .................................................................................. 11
        Monday, January 26, 2004 .................................................................................................................. 13
        International News Service v. Associated Press (US, 1918) p.59 Doctrine of Misappropriation ........ 13
        Edwards v. Sims (1929) p. 85 ............................................................................................................. 14
        Whose Cells Are They? p. 113 ........................................................................................................... 14
        Tuesday, January 27, 2004 ................................................................................................................. 15
        Board of Regents v. Roth, 408 U.S. 564 (U.S. , 1972) p. 91 ............................................................... 15
B. CLAIM OF OWNERSHIP....................................................................................................................... 16
   1)        How Claim Is Established .............................................................................................................. 16
        Pierson v. Post, (1805) p. 115 (He Stole My Fox!) ............................................................................. 16
        Destruction Test ................................................................................................................................... 16

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POSSESSION and OWNERSHIP OUTLINE

       Ownership Rule ................................................................................................................................... 16
       Keeble v. Hickeringill p. 121 (The Duck Pond Case) .......................................................................... 16
       Young v. Hichens p. 123 (Billy Budd The Timeless Tortfeasor) ......................................................... 17
       Johnson v. McIntosh (1823) p. 127 (I Bought the Brooklyn Bridge From Some Indians) ................... 17
  2)        How Claim is Defined ..................................................................................................................... 19
C. PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES. ...................................................... 19
  A. Easements .......................................................................................................................................... 19
       7. Three ways to form an Easement .................................................................................................... 19
       a. Express Easement ........................................................................................................................... 19
       b. Implied easement............................................................................................................................. 19
       c. Prescription ...................................................................................................................................... 20
       8. Reservation ...................................................................................................................................... 21
       9. Exception ......................................................................................................................................... 21
       10. Condemnation................................................................................................................................ 21
  B. Negative Easements ........................................................................................................................... 22
  C. Licenses .............................................................................................................................................. 22
  D. Assignability ........................................................................................................................................ 22
       4. Prescriptive Easements ................................................................................................................... 23
  E. Covenants Running with the Land ...................................................................................................... 23
       1. Difference between a covenant and an easement .......................................................................... 23
       2. 3 requirements for a Real Covenant ................................................................................................ 23
       3. PRIVITY ........................................................................................................................................... 24
  F. Equitable Servitudes ........................................................................................................................... 26
       1. 3 Requirements For Equitable Servitude: ........................................................................................ 26
       3. Difference between covenants and servitudes ................................................................................ 26
       8. Restraint on Alienation ..................................................................................................................... 27
  TERMINATION ........................................................................................................................................ 27
       9. Change in Conditions ...................................................................................................................... 27
       12. Abandonment................................................................................................................................. 28
       14. Direct v. Indirect Restraints ............................................................................................................ 28
  G. Fee Language to control servitudes ................................................................................................... 28
  a. The Creation of Limited Interests in the Land of Others .................................................................... 29
       Easements by Grant, Reservations and Exceptions ........................................................................... 29
       Coon v. Sonoma Magnesite Co., 182 Cal. 597, 598 (Cal. , 1920) p. 135 ........................................... 29
       Easement ............................................................................................................................................. 29
       Profit a prendre: ................................................................................................................................... 29
       Easements Defined.............................................................................................................................. 30

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POSSESSION and OWNERSHIP OUTLINE

       Affirmative Easements and Negative Easements ............................................................................... 30
       Appurtenant Easements and Easements in Gross .............................................................................. 30
       Example: Easements Appurtenant ..................................................................................................... 32
       Example: Easements in Gross ........................................................................................................... 33
       Challenges in Distinguishing Easements Appurtenant from Easements in Gross .............................. 33
       Statutory Interpretation ........................................................................................................................ 34
       Common Enemy Doctrine .................................................................................................................... 34
       Adams v. Cullen, (1954) p. 139 Implied Easement by Continuous Prior Use ..................................... 34
       Hunt Land Holding Co. v. Schramm, (1960) p. 143 Adverse Possession ........................................... 35
       Lindsey v. Clark, (1952) p. 147 Non Use of Easement ≠ Abandonment. ........................................... 35
       Marrone v. Washington Jockey Club, (1913) p. 153 License ............................................................. 36
       License Coupled w/ an Interest ........................................................................................................... 37
       Cooke v. Ramponi, (1952) p. 157 Equitable Estoppel–Implied Easement Through Continuous Use 37
       Stoner v. Zucker, 83 P. 808 (1906) p. 163 Parol License.................................................................. 37
  b. Restrictive Covenants and Equitable Servitudes ............................................................................... 39
       Eagle Enterprises, Inc. v. Gross, (1976) p. 167 Covenant Running w/ Land: Privity of Estate ........... 39
       Neponsit Property Owners' Ass'n v. Emigrant Industrial Sav. Bank, (1938) p. 179 ............................ 40
       Citizens for Covenant Compliance v. Anderson, (1995) p. 185 Restrictive Covenants ...................... 41
       Interests not shown of record .............................................................................................................. 42
       Snow v. Van Dam, 291 Mass. 477 (Mass. , 1935) p. 221 ................................................................... 42
       Downs v. Kroeger, 200 Cal. 743 (Cal. , 1927) p. 229 .......................................................................... 44
       Monday, February 09, 2004 ................................................................................................................. 45
  3)        How Claim Can Be Owned By More Than One Person ................................................................ 46
  a. Concurrent Interest and Multiple Ownership ...................................................................................... 46
  II. CREATION OF JOINT INTEREST. .................................................................................................... 46
       Hoag v. Hoag, p. 245 Partition of Interests in Land / Determing Form of Ownership ........................ 49
       Tenancy in Common ............................................................................................................................ 49
       Joint Tenancy....................................................................................................................................... 49
       Tenancy by the Entirety ....................................................................................................................... 49
       Baird v. Moore- p. 247 Tenancy in Common (Duties of Tenants in Common) .................................... 49
       People v. Nogarr- p. 257 Mortgage Impact on Joint Tenancy ............................................................. 50
  III. Marital Estates ................................................................................................................................... 50
       The Common Law................................................................................................................................ 50
       Curtesy ................................................................................................................................................. 51
       Dower ................................................................................................................................................... 51
       Reasons for the abolition of dower ...................................................................................................... 51
       Statutory Changes in Marital Estates .................................................................................................. 51

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POSSESSION and OWNERSHIP OUTLINE

        Community Property ............................................................................................................................ 52
        How much about community property is it fair for you to know? ......................................................... 52
        Homestead Rights ............................................................................................................................... 52
        Wilcox v. Wilcox, (1971)p. 265 Community Property (Right to Manage Community Property) .......... 52
        Tuesday, February 10, 2004 ................................................................................................................ 54
   IV. Concurrent Estates ............................................................................................................................ 54
   Basic Characteristics ............................................................................................................................... 54
        Joint tenancy ........................................................................................................................................ 54
        Tenancy in common............................................................................................................................. 54
        Hypothetical comparing joint tenancy with tenancy in common .......................................................... 55
        What are the benefits of the statutes that presume tenancy in common? .......................................... 55
        Tenancy by the entirety........................................................................................................................ 55
   The Creation of Concurrent Tenancies ................................................................................................... 55
        Creation of joint tenancy: ..................................................................................................................... 56
        Relations among Concurrent Tenancies ............................................................................................. 56
   The Termination of Concurrent Tenancies .............................................................................................. 56
        Concurrent tenancies come to an end when the property subject to them is conveyed to a third
        person .................................................................................................................................................. 56
        a.       The Risk of Loss ........................................................................................................................ 58
        Tarling v. Baxter, (1827) p. 267 (Burning Hay Case) Risk of Loss ...................................................... 58
        Skelly Oil Company v. Ashmore, (1983) p. 269 Risk of Loss .............................................................. 58
        Doctrine of Equitable Conversion ........................................................................................................ 59
   4)        How Claim Can Be Transferred to Another ................................................................................... 60
        a. Equitable Conversion ...................................................................................................................... 60
   b. Gifts .................................................................................................................................................... 61
        Irons v. Smallpiece, (1819) p. 283 (To Give a Gift, You Must GIVE) (A Horse Named Trover) .......... 61
        Gift Hypo .............................................................................................................................................. 61
        In Re Mills’ Estate, (1916) p. 285 (Taxable Transfer of Stock ............................................................ 61
Personal Property ....................................................................................................................................... 63
   Wild Animals ............................................................................................................................................ 63
        Elements of possession ....................................................................................................................... 63
        Rights of a Sovereign........................................................................................................................... 64
        Other Animals ...................................................................................................................................... 64
   Classifying Property as Real or Personal ................................................................................................ 64
        Personal Property v. Real Property ..................................................................................................... 64
        Rules .................................................................................................................................................... 64
   Acquiring Abandoned Property ............................................................................................................... 65


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POSSESSION and OWNERSHIP OUTLINE

      Doctrine of abandonment .................................................................................................................... 65
      Notes on Law of Finds and Law of Salvage ........................................................................................ 65
      Law of Finds ......................................................................................................................................... 65
      Law of Salvage .................................................................................................................................... 65
   Finder’s Rights ......................................................................................................................................... 65
      Trespasser Rights ................................................................................................................................ 66
      Trespass by Necessity ......................................................................................................................... 66
      Accession ............................................................................................................................................. 66
   Modern law of conversion:....................................................................................................................... 66
   Bailments ................................................................................................................................................. 67
      What is not a bailment? ....................................................................................................................... 67
   Gifts ......................................................................................................................................................... 67
      Overview .............................................................................................................................................. 67
      Elements to make a gift effective: ........................................................................................................ 68
      Gifts Inter Vivos .................................................................................................................................... 68
      Gifts Causa Mortis ............................................................................................................................... 68
   Unauthorized Possession and Bona fide Purchasers ............................................................................. 69
      Law of bona fide purchasers ................................................................................................................ 69
   Fixtures .................................................................................................................................................... 70
      Wednesday, February 11, 2004 .......................................................................................................... 71
      Shaffer handout on conveyance of watch............................................................................................ 71
      Hypo Causa Mortis p. 70 in E&E. ........................................................................................................ 72
      Stone v. French, (1887) p. 291 Delivery of a Gift ................................................................................ 72
      In Re Totten, (1904) p. 295 (Totten Trust) .......................................................................................... 73
      Berl v. Rosenberg, (1959) p. 301 (Gifts Causa Mortis) ....................................................................... 75
      In Re Marriage of Pashley, (1974) p. 307 (Marital Estates) ................................................................ 76
      Quitclaim deed ..................................................................................................................................... 76
5) How Claim Can Be Lost ......................................................................................................................... 78
   a. Adverse Possession ........................................................................................................................... 78
      Belotti v. Bickhardt, (1920) p. 309 ........................................................................................................ 79
      Ewing v. Burnet, (1837) p. 317 ............................................................................................................ 79
      Mendonca v. Cities Service Oil Co., (1968) p. 323 .............................................................................. 79
      West v. Tilley, (1970), p. 327 ............................................................................................................... 80
      O’Keeffe v. Snyder, (1980), p. 331 ...................................................................................................... 80
   b. Abandonment ..................................................................................................................................... 82
      Edgar H Wood Associates Inc. v. Skene (1964) page 359 ................................................................. 82
   c. Eminent Domain ................................................................................................................................. 83

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POSSESSION and OWNERSHIP OUTLINE

      United State v. Causby (1946) page 369............................................................................................. 83
      In re Forsstrom (1934) page 381 ......................................................................................................... 84
      Courtesy Sandwich Shop v. Port of New York (1963) page 395 ......................................................... 85
PART III: POSSESSION AND OWNERSHIP ............................................................................................ 86
C. CONTROL ............................................................................................................................................. 86
1) The importance of control by owner ...................................................................................................... 86
2) Possession without Ownership .............................................................................................................. 87
   a. Possession and Rights to Lost Chattel ............................................................................................... 87
      Hannah v. Peel (1945) page 407 Protecting Locus Owners ............................................................... 87
      HYPO (My chattel is on your land) ...................................................................................................... 88
      NOTE: Lost vs. Mislaid ....................................................................................................................... 88
     1.
   a “Finders, Keepers”.............................................................................................................................. 88
      McAvoy v. Medina (1866) (Wallet Mislaid but NOT Lost) .................................................................... 88
      Armory v. Delamirie ((Eng. 1722), p417 .............................................................................................. 89
      Zech v. Accola (1948) page 419 .......................................................................................................... 90
   b. Possession and Criminal Responsibility............................................................................................. 92
      Queen v. Ashwell (1885) page 423 ..................................................................................................... 92
      State v. Cox (1919) page 453 .............................................................................................................. 92
      State v. Schingen (1865) page 475 (The Beer Wagon Case) ............................................................. 92
      Law review article- Distinctions Between Possession and Custody (1969) page 479 ........................ 92
      California Penal code page 483 ........................................................................................................... 92
   c. Bailments ............................................................................................................................................ 93
      Peet v. the Roth Hotel Company (1934) page 487 .............................................................................. 93
      George v. Bekins Van and Storage Company (1949) page 491 ......................................................... 93
      Fireman’s Fund American Insurance Company v. Captain Fowler’s Marina (1971) page 507 ........... 93
      Cowen v. Pressprich (1922) page 511 ................................................................................................ 94
   d. Remedies of Possession .................................................................................................................... 95
      Anderson v. Goldberg (1892) page 525 .............................................................................................. 95
      Tapscott v. Cobbs (1854) page 527 .................................................................................................... 95
      Winchester v. City of Stevens Points (1883) page 533 ....................................................................... 95
3. Possession without Ownership: The Bona fide Purchaser ................................................................... 96
   a. Cases.................................................................................................................................................. 96
      Hessen v. Iowa Automobile Mutual Insurance Co. (1922) page 535 .................................................. 96
      Morgan v. Hodges (1891) page 539 .................................................................................................... 96
      O’Connor Administratix v. Clark (1895) page 541 ............................................................................... 96
      Hurd v. Bickford (1892) page 543 ........................................................................................................ 97
      UCC sections … .................................................................................................................................. 97

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POSSESSION and OWNERSHIP OUTLINE

      Wooden-Ware Co. v. US (1882) page 547 .......................................................................................... 97
      Hypo – Bona Fide Purchasers & Doctrine of Accession. .................................................................... 97
Interface With Control ................................................................................................................................. 99
   a. Trespass by Private Persons ............................................................................................................. 99
      Dougherty v. Stepp (1835) page 551................................................................................................... 99
      Herrin v. Sutherland (1925) page 553 ................................................................................................. 99
      Martin v. Revnolds Metals Company (1959) page 559 ****A Shaffer Favorite.................................. 100
      Randall v. Shelton (1956) page 569 .................................................................................................. 100
   b. Regulation by the State .................................................................................................................... 101
   § 39.02 The Takings Clause of the Fifth Amendment: “Nor Shall Private Property Be Taken For Public
   Use, Without Just Compensation” ......................................................................................................... 101
      I.       Government Power of Eminent Domain .................................................................................. 101
      II.      What Is a ‘Public Use’? ............................................................................................................ 101
      III.     What Is a ‘Taking’? .................................................................................................................. 101
      IV. How to answer a takings question posed by Shaffer .................................................................. 102
      Yick Wo v. Hopkins (1886) (in book) ................................................................................................. 102
      Pennsylvania Coal Co. v. Mahon (1922) page 573 ........................................................................... 103
   Rights of Lateral and Subjacent Support ............................................................................................... 104
      Ancient rules ...................................................................................................................................... 104
      Lateral Support .................................................................................................................................. 104
      Helmholz’s characteristics of lateral support cases: .......................................................................... 104
      Modifying the Duty to Support by Statute .......................................................................................... 104
      Subjacent Support ............................................................................................................................. 104
      Hudgens v. National Labor Relations Board (1976) page 581 .......................................................... 105
      Right to Trespass – Case Recap ....................................................................................................... 105
      Shelly v. Kramer (1948) page 603 ..................................................................................................... 106
      Note: the White Park Case page 617 ................................................................................................ 106
      § 38.04 Exclusionary Zoning [628-633] ............................................................................................. 107
      Village of Euclid v. Ambler Realty Co. (1926) page 619 .................................................................... 107
      Nollan v. California Coastal Commission (1987) page 631 ............................................................... 108
      Lucas v. So. Carolina Coastal Coucil (1987) page 661 MAJOR CASE ............................................ 108
      TAKINGS Summary ........................................................................................................................... 109
   c. The Doctrine of Nuisance ................................................................................................................. 114
      Rogers v. Elliot (1888) page 719 (The “Quasimoto Must Stop” Case) .............................................. 114
      Tedescki v. Berger (1907) page 723 ................................................................................................. 115
      Culwell v. Abbott Construction Co (1973) page 727 .......................................................................... 115
      Torts readings page 733 .................................................................................................................... 116


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POSSESSION and OWNERSHIP OUTLINE

     Morgan v. High Penn Oil Co. (1953) page 737 ................................................................................. 116
     How To Analyze A NUISANCE Case For Shaffer ............................................................................. 117
     Carter v. Lee (1973) page 743 ........................................................................................................... 117
     Torts readings page 751 .................................................................................................................... 118
     Christopher v. Jones (1964) page 753 .............................................................................................. 118
     Nuisance = intentional and unreasonable. ........................................................................................ 118
     § 29.05 Defenses to Liability for Private Nuisance [477-478] ............................................................ 118
     Spur Industries, Inc. v. Del E. Webb (1972) p. 759 (Coming to the Nuisance) TRESPASS &
     NUISANCE ........................................................................................................................................ 119
     Torts readings page 765 .................................................................................................................... 119
     Nestle v. City of Santa Monica (1972) page 767 ............................................................................... 119
     McFarlane v. City of Niagara (1928) page 789 (Heel Caught in Sidewalk) ....................................... 120
     Torts readings page 795 .................................................................................................................... 120
     Abatement of a Nuisance (1976) page 797 ....................................................................................... 120
     **Puritan Holding Co., Inc. v. Holloschitz (NY 1975) page 799 ......................................................... 120
     Hammonds v. Central Kentucky Natural Gas Co. (KY 1934) page 801 ............................................ 121
  § 17.09 Fixtures [258-259]..................................................................................................................... 123
     Cameron v. Oakland County Gas & Oil Co (1936) page 805 (Fixtures) ........................................... 123
  Final Exam ............................................................................................................................................. 124




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POSSESSION and OWNERSHIP OUTLINE


Administrative

Recommended Texts
Cunningham Stoebuk and Whitman hornbook on property is recommended.
Smith and Boyer – good on problems and hypos.

Required Reading
Law for the Elephant, John Phillip Reid

Daily Assignment
30 pages per class session
For Thursday, 1/22 – read through Regents v. Roth.




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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)


PART II: THE ELEMENTS OF OWNERSHIP

A. BOUNDARY: WHAT CAN BE OWNED

Tuesday, January 20, 2004

Overview – Property Rights = Basis for Societal Hierarchy
This course goes hand-in-hand with jurisdiction (civil procedure). B/C the key to both is “Who gets to
make decisions?” Property is the basis of societal value. How is property owned and controlled. Who
makes the decisions?
All property courses start with Pierson v Post. But Shaffer starts w/ Dred Scott. Can we figure out why?
What are the political issues? Can we find a similar situation with a modern-day environmental case? Is
it really a pollution question? Or is it simply a property and trespass question?
Entropy is energy otherwise unavailable for productive use. It is the fate of every closed system to go
from order to disorder. I have no f*ing idea what any of this has to do with property. Many things you
own and you paid money for that you no longer want. B/c of entropy, you no longer want these items so
you toss them. Duh. Steer manure to fertilize your lawn was entropy to the steer.

Inviolability of Property Boundaries
If you own property but you fail to confine your decision making to your own property … then a claim
arises. Nothing is holy about water. But, if you are the industrial polluter, you’ve poisoned water that
does not belong to you. Justice Douglass once suggested that trees and rocks should have standing.
Abortion is a property question not a reproductive life issue. Embryos have their own DNA. So, pro-life
say it’s another being and has its own rights. Pro-choice say it’s owned by the woman. If you live in a
free society, you are free to kill but you must minimize cost to others or pay the consequences that
society imposes.

Property in the Animal World
When two animals fight it out, the one with the prior territorial claim usually wins. Animals are attracted to
other animals which possess property. Same is true of humans. No Beverly Hills woman would be w/ a
guy who had no property.

Individual Liberty versus Social Order
Not a balancing concept. It’s a property concept. Property is the world. We live for property. As long as
we confine our decision making to what we own and have rights to, then we will never have difficulty with
others.
If Shaffer says that he can do whatever he wants with his property, it is a self limiting principle b/c he does
not own the guys window. So if Shaffer has a brick, he can’t throw it through someone’s window b/c the
window is not Shaffer’s property. So, the conflict arises from the definintion of property: Which is
Shaffer’s and which is the other guy’s property? This is the basis of social conflict. Once, a U.S. coin
was minted with the motto “leave me alone.”

Three Basic Concepts to this Course

    1. Boundary
          a. Example: chattel is anything that is owned. The chattel defines its own boundary.
             b. Birds chirp to mark territorial boundary; humans build fences
             c.   Who are we in terms of boundaries?
             d. What are some tohers:


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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)

                        i. Patent
                       ii. Copyright
                       iii. Computer rights
                       iv. Reputational – libel & slander

    2. Claim
           a. Not enough just to say we own it. We say “I choose to be an owner” b/c I am a worthy
              enough being to be an end in itself. I am a self-owning person b/c there is nothing or
              anything on the planet more important than myself. I am not just someone else’s
              resource.

    3. Control
          a. What does it mean if you’ve identifed some segment of property and those who assert
               ownership? Who is controlling the property? What are the implications.

Thursday, January 22, 2004

Self-Ownership – The Fundamental Principle of Property
Organize your notes according to the index of the class materials. We are now covering boundaries.
Then Claim – what does it mean to assert ownership – to be a claimant. Then control – what happens
once the owners and boundaries identified.
Future interests will be on the final exam as part of equitable servitudes.

Dred Scott v. John F. A. Sandford (1857) p. 51
Was Scott a freeman by virtue of entry into the Northwest Territory? His owner took him from Missouri
into Fort Snelling, Minnesota. What the U.S. bought from France was not real estate; it was political
control. France gave up its claims and the U.S. gained political sovereignty. Jefferson’s first proposal
was to begin buying up claims of ownership from the Indian Tribes in the territory. But he also owned
slaves. He wrote the Declaration of Independence and wanted to buy land from the Indians (not take it by
force) but he was a slave owner. Hmmm. Still not sure what the f* we are talking about.
Everyone knew slaves were human beings. The question was whether they were subject to self
ownership or ownership by others? That is why the language in the Declaration was not “life, liberty, and
right to own property” because property cannot own other property. Only persons can own property. This
is why corporations are fictional persons – so they can own property. Slave states didn’t want slaves to
get the right to own property, otherwise that would mean that they were freemen.
Anyway, Scott is now in the Northwest Territory (Minnesota) where the local politicans have declared that
slavery is prohibited. So, how did this case come to court? Some more babble about the Confederate
flag. But anyway, the case came to court b/c Scott brought an action. The  pleaded that Scott was not
a citizen of Missouri and therefore did not have standing b/c he was not a person.  said only persons
can bring actions, and that since Scott was not a person, the court had not jurisdiction.
Scott asserted his personhood based on the Act of Congress which made it unlawful to own slaves in that
area. Scott’s case was this:
    1. I’m in the Northwest Territory.
    2. Congress says that no one may own a slave in the Northwest Territory.
    3. Therefore, I am a person, because to say otherwise would make me contraband.
Do we have self ownership today? (to be answered later).
 said that the only people protected by the constitution were people born in the U.S. or people who came
here as freemen. The Court agreed, stating that a property owner does not lose his ownership rights just



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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)

because his property is moved. The Court also said that Congress may not pass laws contrary to the
constitution.
Justice Taney had a great reputation as one with high moral character. He stood up to Lincoln when he
suspended habeus corpus and took other oppressive measures during the Civil War. Lincoln had the
military arrest Taney. He said that Congress may not, under the guise of legislation, remove someone’s
property rights just because their property is moved somewhere else in the U.S.
So, if it’s legal to own a machine gun in state A and you move it to state B where it is not lawful to own,
could Dred Scott be invoked to protect your property rights in the machine gun?
If you wanted to know what the law is today, you could just look up the case on Lexis and then
Shepardize.
If Congress wanted to enforce a law nationwide, they would have to look to Article I, Sec. 8 and probably
invoke the Commerce Clause. What was commerce in 1850? Laundry list approach back then –
transportation, instrumentalities, navigation. Local activities such as production, manufacturing, mining,
farming were not considered commerce. So, therefore the Supreme Court would have ruled that slaves
were for working on farms which was not commerce at that time, so therefore Congress could not pass
the law.
Hamer v Dagenhart - Supreme Court ruled that transportation of goods was not commerce. Congress
can’t regulate production of products by child labor by barring shipment of goods. So Congress bars the
interstate shipment of goods made by child labor. Held: that is a PRETEXT USE of the commerce power
and is unconstitutional. (Furniture shipped is intrinsically harmless!)
So, Scott, not being a citizen b/c property owners do not lose their property interests by moving the
property into different states. Dred Scott raises the fundamental question of ownershp. To assert
ownership, you must be able to trace the property back to your person. If you don’t have self-ownership,
you do not have the right to own anything.
My right to exist derives from my nature, not from your authorization. We all must occupy space and
consume resources. Positivist view: All people should be free. Normative legalist view: you must follow
the law even if it conflicts with your morals.
Self control = I do what I want with mine and I leave yours alone. Self responsibility.




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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)


Monday, January 26, 2004

International News Service v. Associated Press (US, 1918) p.59 Doctrine of Misappropriation
Doctrine of Misappropriation – Systematic misappropriation of “hot news” stories results in
injunction for misappropriation.
INS Rule: Even though there is no clear boundary, since there is value, effort & a financial stake
there is a quasi property interest.
F: The π, Associated Press, sought an injunction to restrain certain activities on the part of its competitor
in the news gathering business, INS; during WWI people relied on newspaper almost exclusively for info
in the absence of TV and radio; the owner of Associated Press wished to establish to try to establish the
concept of “ ppty in news”, and sued in part to prevent INS’s practice of “copying” news from early
editions of AP newspaper on the east coast of US and then selling it to customers of INS on the west
coast
I: Are there property rights in the news?
J: The Supreme Court agreed to enjoin INS to some extent in relation to its practice, although there was
no agreement that there was “property in the news”, even though labour and money had been expended
to create it.
Reasoning: The news should be protected; ’s appropriation amounted to unfair competition; π was
allowed to appropriate the earlier labours of others at no cost and in due course its work could be
exploited in the same way.
N.B.: Brandeis J dissented and his decision was relied on by Dixon in VPR (his comments about the
nature of ppty as well as the role of courts in defining new kinds of ppty interests, remain relevant): →
- the fact that a product of the mind has cost its producer money and labour, and has a value for which
others are willing to pay, is not sufficient to ensure to it the legal attribute of ppty
- the creations which are recognized as ppty by the common law are literary, dramatic, musical and other
artistic creations; and these have also protection under the copyright statutes
- he maintained that it’s more appropriate for the legislature to create new ppty and the judges are not
well-placed to consider such claims
N.B.: similarities and differences b/n VPR and INS v. AP:
- news = to a public in general; whereas races = to a concrete # of people
Class
News organizations band together and form association to handle distribution of news information. Use
property law to try and stake claim to news as property. At CL, copyright was a property right in your
writings; only good as long as your work was unpublished. Published meant to make public. So, it did
not necessarily have to be printed up and distributed. Under that old CL, AP could not maintain its
prpoperty interest in the news since it had already been made public.
The AP could also have tried federal copyright law. You send off $10 to the copyright office and copyright
your stories. But, they did not do that. So, AP made its stories public to its subscribers, thereby waiving
CL copyright protection. And they did not seek protection of federal copyright law. Why didn’t they seek
the federal protection.
So, what protection does AP have? Tokien books not authorized by Tolkien did not sell due to word-of-
mouth. Also, Harry Potter sold by playground word-of-mouth. Strictly speaking, AP should have no
property claim. So, the court created a quasi-property right. AP waived their rights b/c by the time the
news got out, it was old news and no sense wasting time and money trying to copyright it.
What is a boundary? Where does your personal boundary begin and end? If you get too close to me, I
might back away b/c you’ve invaded my personal boundary. Manners are a way in which we deal with
one another when we are in settings with no real property boundaries but in which we choose to

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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)

recognize boundaries. AP discovered that some of the things they thought they had a property right to
were not even recognized by the court. But, the court did recognize a quasi-property right. And then they
talked about unfair competition.
Boundary is the important issue in this case.

Edwards v. Sims (1929) p. 85
Facts: π owns land that is directly above a sub-terrainian cave. ∆ is a judge who ordered the cave
entered to determine the facts of another case (Edwards v. Lee), as to whether the cave travels under
Lee's land as well, and therefore π would be trespassing on Lee's property while exploiting the cave. π
seeks a writ of prohibition to prevent ∆ from enforcing his order.
Issue(s): Is the ∆ proceeding erroneously within its jurisdiction in entering and enforcing the order
directing the survey of the cave under π's land in order to resolve the issues in Edwards v. Lee?
Holding(s): A court of equity has the transcendent power to invade the property of a private citizen for the
purpose of ascertaining the facts of a separate matter before the court.
Reasoning: The right to enjoyment and possession of property is limited in so far as the state has a right
to infringe upon those rights when it believes that those rights are being used to the detriment of other
private citizens. Court cited a similar decision involving the determination of trespass in a sub-terrainian
mine.
Dissent(s): You only have rights to underground property which you can exploit, and since the cave
opening was on Edward's land, there was no way that Sims could exploit the cave, and so he should
have no rights. This is based on the social utility theory.
Class
Entire dispute is over the boundary of the cave. A says it is his cave by right of discovery. B says, no, it
runs under my property so I own a piece of it from the centre of the earth up to my property line. Court
sided with B. Mineral rights under property can be severed from title to the property. Who else has a
property interest in you land? Public utilities will have easements. Your insurance company will have a
right as the insurer insofar as you can’t burn your house down deliberately.
So the guy, B, he owns the rights to the minerals under his house. He may have sold those rights to a
mining company. Kentucky is a big mining state. So, if the Court ruled against B, they would have
messed up all those mining contracts. So, B won.

Whose Cells Are They? p. 113
John Moore sues Ca. Regents over his spleen which was removed and then they sold his spleen for cell
research. Court ruled against him and said he had no property interest in his spleen. The value of his
spleen at the time it was taken was pretty low. Shaffer says they should have valued the spleen at what it
was worth upon removal.
1. Boundary
2. Claim
3. Control
So, did Moore abandon his claim to his spleen? Probably not. Shaffer says the Court screwed up. Court
rationale: No expectation of continued interest in small body parts removed during surgery. Also,
societal interest in medical research outweighs patient’s interests. But, patient does have right to insist
upon informed consent before any body parts are used in medical research.




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Part II: The Elements Of Ownership
Section A: Boundary (What Can Be Owned)


Tuesday, January 27, 2004

Board of Regents v. Roth, 408 U.S. 564 (U.S. , 1972) p. 91

PROCEDURAL POSTURE: Petitioner, a board of regents of state colleges, sought review of a
decision from the United States Court of Appeals for the Seventh Circuit, which held that
respondent professor was wrongfully terminated from his teaching job in violation of his
Fourteenth Amendment right to due process.


OVERVIEW: The professor was hired for his first teaching job as an assistant professor at a
state-run university. He was hired for a fixed term of one year and was not re-hired the
following year. The professor brought suit against the university alleging that he was denied his
Fourteenth Amendment right to due process because the university never gave him a reason
for their decision not to re-hire him and further he had no opportunity to challenge their decision
at a hearing. The lower court granted summary judgment on the procedural issue and ordered
the university to provide the professor with reasons and a hearing. The appellate court affirmed
and the board of regents sought review. On review, the Court held that the professor had no
protected interest in continued employment, as he had completed his contracted for term,
therefore, there could be no Fourteenth Amendment protection. The decision of the lower court
and the appellate court was reversed and the case was remanded.


OUTCOME: The Court reversed the lower court's grant of summary judgment in the
professor's favor.


Class
Property interest only runs with your contract; when the K terminates, so does your property interest in
the matter. What are the limits to your property interest? If he had been fired during his period of
guaranteed employment then maybe. But, you are entitled to constitutional due process if life liberty or
                                         th       th
property are being affected under the 5 and 14 amendments. Is there a property interest in
employment? How does this compare to Haddle v. Garrison – the Healthmaster case from CivPro? In
order to find out if he had a continued property interest, we need to look at the agreement to see if
anything in his contract gave him a continued property interest. Did he have tenure? The scope of his
rights is defined by the scope of his K.




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Part II:        The Elements Of Ownership
Section B:      Claim To Ownership
Topic 1:        How Claim is Established

B. CLAIM OF OWNERSHIP

             1) How Claim Is Established

Pierson v. Post, (1805) p. 115 (He Stole My Fox!)
PROCEDURAL POSTURE: Defendant interceptor appealed a decision of a district court (New
York), which held that plaintiff hunter had rights to a fox he was chasing and suffered injury
when defendant shot and killed it, knowing it was being chased.


OVERVIEW: Plaintiff hunter was out with his hounds chasing a wild fox when defendant
interceptor, knowing the fox was being chased, shot and killed it. Plaintiff brought an action
against defendant for trespass, and the trial court ruled in his favor. Defendant appealed,
arguing that plaintiff had no rights in the fox merely because he was chasing it. The court
reversed, holding that mere pursuit did not give plaintiff a legal right to the fox, but that it
became the property of defendant, who intercepted and killed him. The court held that however
uncourteous or unkind defendant's conduct was toward plaintiff, it produced no injury or
damage for which a legal remedy could be applied.


OUTCOME: The court reversed the decision in favor of plaintiff hunter because mere pursuit
did not give plaintiff a legal right to the fox. The court held that the fox became the property of
defendant interceptor when he killed it, and his uncourteous conduct did not produce an injury
or damage for which there could be a legal remedy.


Class
Pierson shot the fox, but did not do it on Post’s land. “Trespass on the Case” is an indirect invasion of a
property interest. The Court held that a property interest in wild animals only arises upon possession of
same. If you abandon your claim of ownership, then someone else may intervene and assert ownership.
Sea Lion and Giraffe hypo – if you see a Sea Lion in New York City or a Giraffe in Nebraska, you can
pretty much assume that (since those animals are not indigenous to those areas) the animals belong to
someone else and there is no indication that it was abandoned. But if they are generic, indigenous wild
animals, you could probably assert ownership.
Destruction Test – can you destroy the property without someone else’s permission? If yes, you
probably own the property.
Decisions – Control. Who makes the decisions. The decision maker usually is a property owner.
Most crimes involve a property trespass. Murder, prostitution, etc. all involve property interests.
Identifying and respecting property is the first step to living in harmony.
Ownership Rule: This is the most important case in the history of the world because it says posession or
control determines ownership when dealing with items not previously owned.

Keeble v. Hickeringill p. 121 (The Duck Pond Case)
           th
In early 18 C. England, landowners created elaborate decoy ponds that were designed to trap large
quantities of ducks and other waterfowl to be killed and consumed as food. Keeble maintained such a
pond. Hickeringill, his neighbor, frightened the ducks away from Keeble’s pond by discharging a shotgun
nearby. The English courts ruled that such conduct was actionable, on the theory that Hickeringill was
maliciously interfering with Keeble’s lawful activity. The court distinguished this case from fair
competition, noting that it would be perfectly proper for a schoolmaster to lure students away from
another school by offering better instruction but unlawful to frighten them away. The distinction is


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Part II:        The Elements Of Ownership
Section B:      Claim To Ownership
Topic 1:        How Claim is Established
bottomed on the notion that fair competition improves society (e.g., better schools) whole Hickeringill’s
conduct was a dead-weight drag on societal improvement; (e.g., fewer ducks for the table). In a society
in which killing wild ducks for food is regarded as inappropriate (e.g., to preserve biodiversity)
Hickeringill’s conduct might be lawful. It depends on the public policies that the law is supposed to serve.
Class
 “Trespass on the Case” b/c  never went on π’s land. But, the noise and vibration from the gunshots
did intrude upon the π’s land. The  has interfered with π’s ability to use his property in the manner he
wishes. He is interfereing with Keeble’s efforts to acquire property rights in the ducks while on his own
land. Compare to Pierson & Post: That case took place on public ground. Post did not interfere with an
activity, he just took the fox. It was not as though he played loud music to distract Pierson. Trespass by
noise. Do you have a property interest in your reputation?

Young v. Hichens p. 123 (Billy Budd The Timeless Tortfeasor)
Fisherman had fish in the net. Other fisherman rowed over and disturbed the net, allowing the fish to
escape, some of which died, were injured, escaped, or were taken by the other fisherman. The captured
fish are sold and the parties sue each other in court. Court rules for the  because the π did not have
capture, occupation, or custody of the property. Also, π was slow to assert some of his claims and
should have “stated his views on that subject in last Hilary vacation when the case was decided.”

Johnson v. McIntosh (1823) p. 127 (I Bought the Brooklyn Bridge From Some Indians)
Facts: π claims the land granted to him under two separate grants, one in 1773 and the other in 1775,
made by two separate Native American Indian chiefs. The chiefs were acting under proper authority of
the tribes they represented, and had possession of the land which they sold under the grant. π wished to
have these grants recognized by U.S. courts.
Issue(s): Can a title given by an American Indian and received by a private citizen be recognized in U.S.
courts?
Holding(s): No. The United States holds the ultimate title to the land of the country, and has the
exclusive right to acquire the right of possession from the American Indians.
Reasoning: The nature of the U.S. right derived from the unquestioned European right of possession by
discovery, and when the U.S. obtained independence, the treaty with England to end the war explicitly
conveyed the "proprietary and territorial rights of the United States" to the new U.S. government. By
conquest, the U.S. has exercised it's exclusive right to acquire the right of possession from the Native
Americans occupying the territory.
Class
We took possession by force and therefore only we can sell it or give it away. When the British settled
the land, they gave no rights to the Indians. So, when we beat the British, no reason to give rights to the
Indians. But, in the Florida case (that Shaffer babbled about in class), the property rights of the Spanish
survived a war. Shaffer says it was Dred Scott all over again b/c the property rights went to the Spanish
b/c they were European Christians but not the Indians. Or, maybe it was b/c there was a treaty in place
that granted rights to the Spanish. Anyway, who knows since we don’t have the case to read. Point is,
Shaffer wants us to droan on about human rights, blah blah blah.
Johnson v. M'Intosh, 21 U.S. 543 (U.S. , 1823)


PROCEDURAL POSTURE: Plaintiffs requested review of a decision of the District Court of
Illinois, granting title to property in that state to defendants on the basis of a land grant from the
United States.


OVERVIEW: Plaintiffs, mostly British subjects and their heirs, claimed title to property

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Part II:        The Elements Of Ownership
Section B:      Claim To Ownership
Topic 1:        How Claim is Established
conveyed to them by the Piankeshaw Indians prior to the American Revolution. Plaintiffs
contended that their title ran directly from the Native Americans who owned the property and
therefore it was superior to defendants' title. Defendants' land grant came directly from the
United States government and the district court held that defendants' claim was superior. The
court based this decision on the idea that the Piankeshaw were not actually able to convey the
land because they never "owned" it in the traditional sense of the word. The Court agreed and
upheld the defendants' title by land grant.


OUTCOME: The Court upheld the decision of the lower court and treated defendants' claim to
the contested property to be superior to plaintiffs' claim.




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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




               2) How Claim is Defined

C. PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES.

         A. Easements: An affirmative right to go on someone else’s land to use it.
                1. Analyze each easement in terms of 1)creation, 2)scope, 3)termination
                2. Difference between a lease and an easement: With a lease you have sole
                possession, with an easement both servient and dominant landowners have the right to
                use the land.
                3. Profit a prendre: CL predecessor of easement, the right to take off the land things that
                were though of a “part” of the land (timber, minerals, etc.) Today’s profits work the same
                way: A is given the right to enter upon B’s land to remove something attached to it.
                4. An easement can be in fee simple, or for life, or for a term of years.

                  CREATION

                  5. Affirmative Easements: Give another the right to enter or perform an act on the
                  servient land.
                          a. easement appurtenant: an easement that benefits the owner of the
                          easement in the use of land belonging to the servient owner.
                                   i. access easement: Typical easement for access to another property
                                   (often redundantly stated "access and egress," since entry and exit are
                                   over the same path),
                                   ii. Dominant tenement/ servient tenement appurtenant attaches to
                                   the dominant tenement, and cannot be detached without the consent of
                                   both dominant and servient owners.
                                              Ambiguity? The law presumes appurtenant.
                          b. Easement in gross: does not benefit the owner of the easement in the use of
                          land belonging to the owner (of the land), but benefits the owner of the easement
                          without regard to ownership of the land. (Eg. Power lines that run across your lot)
                  6. Negative Easements: Forbid one landowner from doing something on his land that
                  might harm a neighbor.
                          a. Scenic Easement: The holder of the easement has the right to know that the
                          landowner will not develop or destroy a tract of land.
                  7. Three ways to form an Easement:
                          a. Express Easement: Created like any other interest in land. The extent of the
                          right acquired is to be determined from the terms of the grant properly construed
                          to give effect to the intention of the parties.
                                   i. Willard v. First Church of Christ, Scientist CL RULE: One cannot
                                   “reserve” an interest in property to a stranger to the title.
                                              required two pieces of paper: a deed of easement and a deed
                                             for the property. Here, she tried to do it with one piece of paper.
                                              Many courts find ways around this rule, a handful of
                                             jurisdictions have abandoned it. (Restatement provides that an
                                             easement can be created in favor of a third party)
                          b. Implied easement .
                                   i. implied from a prior existing use On the basis of an apparent and
                                   continuous (or permanent) use of a portion of the tract existing when the
                                   tract is divided. (quasi-easement: see Van Sandt v. Royster)



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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                                                 Quasi Easement: An owner cannot have an easement over
                                                his own land. However, an owner may make use of one part of
                                                his land for the benefit of another part: quasi easement.
                                                 RULE: If the owner of land, one part of which is subject to a
                                                quasi easement in favor of another part, conveys the quasi
                                                dominant tenement, an easement corresponding to such quasi
                                                easement is ordinarily regarded as thereby vested in the grantee
                                                of the land.
                                                         (i) Provided the easement is of an apparent,
                                                         continuous and necessary character.
                                                         (ii) Necessity, Prior Use, Notice (3 most important
                                                         requirements)
                                                         (iii) MAJ RULE: (?) Strict necessity required for implied
                                                         easements in favor of grantor.
                                                         (iv) Necessity: to do anything else would be
                                                         economically disruptive.
                                    ii. easement by necessity The claimed easement is necessary to the
                                    enjoyment of the claimant’s land and that the necessity arose when the
                                    claimed dominant parcel was severed from the claimed servient parcel
                                    (see Othen v. Rosier) Here necessity is required…necessity is only a
                                    factor in determining prior existing use.
                                                 RULE: Where a vendor retains a tract of land which is
                                                surrounded partly by the tract conveyed and partly by the
                                                lands of a stranger, there is an implied reservation of a right
                                                of way by necessity over the land conveyed where grantor
                                                has no other way out.
                                                 Requirements: 1) There was unity of ownership of the alleged
                                                dominant and servient estates; 2) the easement is a necessity,
                                                not a mere convenience; 3) the necessity existed at the time of
                                                the severance of the two estates.
                                                         (i) The mere fact that the claimant’s land is completely
                                                         surrounded by the land of another does not, of itself,
                                                         give the former a way of necessity over the land of the
                                                         latter, where there is no privity of ownership.
                                    iii. **If the dominant and servient tenement come into the same
                                    ownership, the easement is extinguished.
                                    iv. The easement endures only so long as it is necessary.
                                    v. Difference between easements implied from prior existing use
                                    and necessity:
                                                 More strict necessity required for easement by necessity
                                                 The use of the land that is the subject of an easement by
                                                implication existed at the time that the dominant estate was
                                                severed from the servient estate.
                                                 On the other hand, the use of the land that is the subject of an
                                                easement by necessity arose when the dominant estate and
                                                servient estate were severed from one another.
                           c. Prescription: Created when the owner of a tenement to which the right is
                           claimed to be appurtenant, or those under whom he claims title, have openly,
                           peaceably, continuously, and under a claim of right adverse to the owner of the
                           soil, and with his knowledge and acquiescence, used a way over the lands of
                           another for as much as 15 years.
                                    i. “The foundation of prescriptive title is the presumed grant of the party
                                    whose rights are adversely affected; but where it appears that the

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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                                    enjoyment has existed by the consent or license of such party, no
                                    presumption of grant can be made.”
                                               The presumption of the court is critical. Presumption of
                                              permission when use not exclusive. Always ask if there is a
                                              presumption of acquiescence in this jurisdiction.
                                    ii. Can apply to allow an easement in gross to ripen into a title, or a
                                    restricted easement to ripen into a less restricted easement. (Miller v.
                                    Lutheran Conference)
                                    iii. Public use: The landowner must be put on notice by the kind and
                                    extent of the use, and the use must be claimed by the general public, not
                                    just individuals.
                                    iv. Use by the public is considered a permissive use, and it is therefore
                                    absent the element of an adverse claim of right and can rarely or never
                                    ripen into a prescriptive right. – not exclusive.
                                    v. Difference between easement by prescription and adverse
                                    possession: Mostly the same requirements MAJ RULE: Exclusive
                                    use is required for presecription, but definition is different from the
                                    adverse possession requirement. “Exclusivity does not require a showing
                                    that only the claimant made use of the way, but that the claimant’s right
                                    to use the land does not depend upon a like right in others”
                           d. fiction of the lost grant: Stemmed from the early CL prescriptive easement
                           based upon as use from time immemorial when Parliament enacted a statute
                           prohibiting challenges to rights of possession enjoyed since the accession to the
                           throne of Richard I in 1189. But time passed, and it became harder to prove
                           possession since 1189, so Parliament passed statutes that presumed
                           possession from time immemorial (any living person could remember, 20 yrs.,
                           etc.). But this was still a presumption and could be rebutted by actual proof.
                           Therefore judges created the fiction of the lost grant.
                                    i. If a use was shown to have existed for 20 years, it was presumed that
                                    a grant of an easement had been made and that the grant had been lost.
                                               Could not be rebutted by evidence that a grant had in fact been
                                              made.
                                               Owner of the land is presumed to consent or acquiesce in the
                                              use, therefore, to secure a prescriptive easement under lost
                                              grant theory, the claimant must show that the use was not
                                              permissive and also that the owner acquiesced (did not object).
                                                       (i) Don’t presume this, no longer the majority rule.
                                                       Hostile and adverse.
                                                       (ii) Owner in a non lost grant jurisdiction must effectively
                                                       interrupt of stop the adverse use to prevent a
                                                       prescriptive easement from being acquired.
                  8. Reservation: Allows a grantor’s whole interest in the property to pass to the grantee,
                  but revests a newly created interest (which did not exist before as an independent
                  interest) in the grantor.
                           a. Written provision in a deed. (Willard v. First Church of Christ, Scientist)
                                                                            rd
                           b. Could theoretically vest an interest in a 3 party, but early CL rejected this
                           possibility.
                  9. Exception: Prevents some part of the grantor’s interest from passing to the grantee.
                  Since it comes from the grantor’s pre-existing possession, it cannot vest an interest in a
                    rd
                  3 party since the excepted interest remains in the grantor.
                  10. Condemnation: A judicial proceeding where the landowner must pay damages to the
                  owner of the land where the easement is sought. Under these statutes it doesn’t matter


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004              Page 21 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                 how the landlocking occurred; prior common ownership of the dominant and servient
                 estates is not required.
         B. Negative Easements: The right of the dominant owner to stop the servient owner from doing
         something on the servient land.
                 1. CL: 1) blocking your windows, 2) interfering with the air flowing to your land in a
                 defined channel, 3) removing the support of your building, 4) interfering with the flow of
                 water in an artificial stream.
                          a. Judges were hesitant to permit the creation of new types of easements,
                          especially negative. Where there is no public recording system, a purchaser
                          could protect themselves by viewing the land in order to discover an affirmative
                          easement, this is not the case with negative easements. Promotes
                          unencumbered title.
                 2. Modern: Solar, Scenic
         C. Licenses: A license is permission given by the occupant of land allowing the licensee to do
         some act that otherwise would be a trespass. This privilege A resembles an easement, but it is
         revocable by the licensor at any time.
                 1. However, a license coupled with an interest cannot be revoked (ie O A the right to
                 take timber from O’s property); a license may come irrevocable under the rules of
                 estoppel. A license that cannot be revoked is something very akin to an easement.
                 2. A license may be created orally
                 3. Irrevocable License due to Estoppel: Normally the change that triggers application
                 of the rule stated in this section is an investment in improvements either to the servient
                 estate or to other land of the investor.
                          a. Licensee may continue the use “to the extent necessary to realize upon his
                          expenditures.
                          b. Where a license is not a bare, naked right of entry, but includes the right to
                          erect structures and acquire an interest in the land in the nature of an easement
                          by the construction of improvements thereon, the licensor may not revoke the
                          license and restore his premises to their former condition after the licensee has
                          exercised the privilege given by the license and erected the improvements at
                          considerable expense.
                                   i. Holbrook v. Taylor: Merely fixing a road probably wouldn’t be enough,
                                   it’s the fact that they built a house on the property.
                                   ii. There has to be knowledge by the owner that the person using the
                                   property in question is improving the land.
                          c. Not possible in Michigan.
         D. Assignability.
                 1. Appurtenant v. In gross: both benefits and burdens pass automatically to assignees
                 of the land. Different for the benefit in gross: the burden of the servient tenement isn’t
                 limited by the needs of the dominant tenement, therefore American courts have
                 attempted to prevent the burden on the servient tenement from increasing beyond what
                 was intended by the original parties.
                          a. Under modern statutes, however, about the only easements in gross that are
                          not assignable are recreational easements.
                          b. Restatement: All in gross easements are assignable unless they
                          unreasonably increase the burden on the servient estate.
                          c. MAJ RULE: Commercial easements in gross are assignable
                          d. Divisibility: If there is a division of the easement in gross, the easements
                          must be used or exercised as an entirety.
                                   i. Use as “one stock” (Miller)

         SCOPE


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004         Page 22 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                2. Increased burden: Restatement: The beneficiary of an easement is entitled to make
                any use of the servient estate that is reasonably necessary for the convenient enjoyment
                of the servitude. The beneficiary’s use of the servient estate may change over time to
                take advantage of developments in technology and to accommodate normal development
                of the dominant estate.
                         a. No unreasonable damage: Eg a private easement of right of way does not
                         usually permit the easement owner to install above or underground utilities.
                                  i. Preseault v. United States: The scope of an easement may be
                                  adjusted in the fact of changing times to serve the original purpose, so
                                  long as the change is consistent with the terms of the original grant.
                                             Reasonably foreseeable at the time of the easement
                                             Nature of the use/ Nature of the burden
                         b. You do not have a right to go outside of the easement, increasing the burden
                         is only strictly within the boundaries of the easement.
                         c. Question: Does use of an easement by the servient owner interfere with the
                         purpose of the easement.
                                  i. The servient owner still has fee simple, therefore he can use the land
                                  so that it doesn’t interfere with the use of the easement.
                         d. Remedy: The owner of a servient estate has a right to a non-overburdened
                         easement. But the court has the authority to negate an easement all together if
                         the overuse cannot be separated from the regular use.
                3. Movement of the Easement: RULE: The location of an easement, once fixed by
                the parties, cannot be changed by the servient owner without permission of the
                dominant owner.
                         a. RULE: (Brown v. Voss) An easement appurtenant to one parcel of land
                         may not be extended by the owner of the dominant estate to other parcels
                         owned by him, whether adjoining or distinct tracts, to which the easement
                         is not appurtenant.
                                  i. Any extention is a misuse of the easement. More an issue of the rights
                                  of the parties, rather than a burden on the servitude.(MAJ RULE:
                                  opposite of equitable position taken in Brown)
                4. Prescriptive Easements: Are not as broad in scope as grant, implication or necessity.
                The uses made of a prescriptive easement must be consistent with the general kind of
                use by which the easement was created and with what the servient owner might
                reasonably expect to lose by failing to interrupt the adverse use.
                5. Grant: If you have an expressly created easement, but the necessity for the easement
                is lessened, it does not negate the easement.
                6. Abandonment: Upon an act of abandonment, the then owner of the fee estate is
                relieved of the burden of the easement.
                         a. Easements, like other property interests are not extinguished by simple non-
                         use.
                         b. Preseault: Acts by the owner of the dominant tenement conclusively and
                         unequivocally manifesting either a present intent to relinquish the easement or a
                         purpose inconsistent with its future existence.
         E. Covenants Running with the Land.
                1. Difference between a covenant and an easement: An easement gives you a right to
                go do something on someone else’s land, a covenant either tells you to do something on
                your own land or tells you that you can’t do something in your land.
                         a. A covenant is a contractual right.
                         b. Must be created by a written instrument signed by the covenantor.
                                  i. SOF rule: If the deed isn’t signed by the grantee, the grantee is bound
                                  by accepting the deed.
                2. 3 requirements for a Real Covenant:

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004         Page 23 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                          a. The intention of the parties for the covenant to run with the land
                          b. The restriction must touch and concern the land
                                   i. However, the benefit can run, even if the burden is in gross, not vice
                                   versa though.
                          c. Privity of estate between the party claiming benefit of the covenant and the
                              right to enforce it, and the party who rests under the burden of the covenant.
                  3. PRIVITY:
                          a. Horizontal: Privity of estate between the original covenanting parties Does
                          not apply in California.
                                   i. CL: Simultaneous interest in the land
                                   ii. MAJ RULE: Successory interest (grantor/ grantee relationship in most
                                   courts)
                                   iii. Transfer of Land
                                   iv. Not required for the benefit to run ? Emanuel’s (Restatement takes
                                   the opposite view), required for the burden to run.
                                              This mainly means that if the original parties are “strangers to
                                             title” the burden will not run
                                                       (i) Thus A and B, neighboring landowners, agree in
                                                       writing that neither will tear down his house to erect a
                                                       new structure. B sells his property to X, who tears down
                                                       that house. A cannot sue X for damages, because the
                                                       burden of the covenant does not run with the land. This
                                                       is so because there was never any land transfer
                                                       between A and B, and thus no horizontal privity between
                                                       them.
                                                       (ii) However, A owns two parcels, each with a house on
                                                       it. He sells one of the parcels to B. In the transfer
                                                       agreement, A and B each promises the other that he will
                                                       not tear down the house to build a new structure. B then
                                                       re-conveys his parcel to X, who tears down the house.
                                                       Now, A can sue X for damages, because there was
                                                       horizontal privity between A and B, in the sense of a land
                                                       transfer between them.
                                   v. Benefit or Burden: B – C enter into an agreement and have privity of
                                   contract, but not privity of estate. Now, C – R. No privity of contract
                                   between B and R. So, B cannot enforce his contract with R. Courts have
                                   a bias against burden covenants. So, the court will say that B cannot
                                   enforce the action against R but R can enforce against B because this
                                   does not put B in any worse postion. B had already covenanted against
                                   C, so the fact that the same promise transfers to R doesn’t really impact
                                   him. This is a relaxation of the horizontal privity rule in some
                                   jurisdictions. If the benefit is at issue, courts will allow it to be enforced.




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004              Page 24 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




    "Horizontal privity" usually has two components converging simultaneously: privity of
    estate and privity of contract. The privity of estate arises from the transfer of interest in
    property, either in a landlord-tenant relationship or a grantor-grantee relationship. The
    privity of estate arises from the simultaneous promise(s) made by the promisor in the
    instrument transferring the property interest.

    Of note, however, is the debate surrounding this requirement. Some courts and the
    Restatement of Servitudes take the position that this factor is not required for the
    running of the benefit to run. Under this view, even neighbors could covenant with one
    another and have the benefits run to the promisee's successors.




                          b. Vertical Privity: between one of the covenanting parties and a successor in
                          interest. 2/3/04 Every jurisdiction requires vertical privity of estate. You
                          must succeed to the entire estate. So, if you lease, no vertical privity b/c you
                          don’t get the entire estate. You must secceed one of the original parties to the
                          transaction.
                                    i. Subsequent assignees
                                    ii. Traditional Authorities agree that vertical privity is required for a
                                    covenant to run at law.
                                               Not required for the burden to run in equity
                                    iii. Runs with an estate in land Restatement: for the burden to run the
                                    successor must have an estate of the same duration as the promisor had
                                    (although this applies to any interest)
                          c. Adverse Possession: The adverse possessor has a new title, therefore there
                          is no privity because the old chain of title goes away.Adverse Possession would
                          also be an instance where there is no vertical privity. He did not acquire the
                          estate of the person who made the promise; he got the land but not the estate.
                  4. Running of the benefit: running of the benefit does not require horizontal privity in
                  many jurisdictions. Restatement: A benefit runs to a successor of any interest in the
                  land, not only to a successor of the whole estate.
                  5. Shaffer Note 2/3/04: Don’t forget that if you enter into a covenant or contract with
                  your neighbor, it will be enforceable. Here, we are talking about covenants that run with
                  the land. But, you can always enter into new agreements under local law.

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004          Page 25 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



         F. Equitable Servitudes: A covenant respecting the use of land enforceable against successor
         owners or possessors in equity regardless of its enforceability at law.
                 1. 3 Requirements For Equitable Servitude:
                          a. the parties intended the promise to run,
                          b. subsequent purchaser had actual or constructive knowledge of the covenant
                          (unless there was no consideration),
                          c. the covenant touches and concerns the land
                                                      st
                          d. Tulk v. Moxhay: (1 equitable servitude case) RULE: If an equity is
                               attached to the property by the owner, no one purchasing with notice of
                               that equity can stand in a different situation from the party from whom
                               he purchased.
                          e. Touch and Concern the Land: CL: An affirmative covenant (to pay money for
                          use in connection with, but not upon, the land which it is said is subject to the
                          burden of the covenant) does not touch and concern the land.
                                    i. Eg: Neoponsit Property Owner’s Association: covenant to pay a
                                    fixed sum of money to be devoted to the maintenance of the
                                    neighborhood.
                                    ii. English Rule: Only covenants which compel the covenanter to submit
                                    to some restriction on the use of his property touches or concerns the
                                    land. (Court in Neoponsit says this is too strict)
                                               Test: Must substantially affect the legal relations – the
                                              advantages and the burdens – of the parties to the covenant, as
                                              owners of particular parcels of land and not merely as members
                                              of the community in general.
                                    iii. Negative Covenants have almost always been held to touch and
                                    concern the land.
                                    iv. Restatement: Discards the requirement of touch and concern the
                                    land, rather the appropriate question is whether the servitude
                                    arrangement violates public policy.
                                    v. RULE of construction: Incursions on the use of property will not be
                                    enforced unless their meaning is clear and free from doubt, if not, they
                                    are not construed to impair the alienability of the subject property.
                                    vi. When the burden is to property but the benefit is personal, the burden
                                    is generally held not to run with the land at law. (Caullett: Burden πs
                                    can’t build their house unless they use Δ, Benefit  Δ gets the sale.)
                 2. Property Theory: “sinks its tentacles into the soil”
                 3. Difference between covenants and servitudes:
                          a. The remedy for breach of a real covenant is damages in a suit at law. The
                          remedy for breach of an equitable servitude is an injunction or enforcement of a
                          lein in a suit at equity. 2/2/04
                          b. An equitable servitude can be implied in equity under certain circumstances
                          and cannot be obtained by prescription (since it arises out of a promise)
                                    i. A real covenant must be expressly created (contractual)
                          c. No requirement of privity with equitable servitude
                 4. ( Sanborn v. McLean)If the owner of two or more lots, so situated as to bear the
                 relation, sells one with restrictions of benefit to the land retained, the servitude
                 becomes mutual, and, during the period of restraint, the owner of the lot or lots
                 retained can do nothing forbidden to the owner of the lot sold.
                          a. Must start with the common owner
                 5. The benefit cannot run to a person from a previously conveyed plat who wouldn’t have
                 to conform to the restrictive covenant.
                 6. There is no public policy against the running of the benefit since it is presumed to help
                 rather than hinder the alienability of the property.

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 26 of 124
Part II:            The Elements Of Ownership
Section B:          Claim of Ownership
Topic 2:            How Claim is Defined
Subtopic a.:        The Creation of Limited Interests in the Land of Others



                    7. Civil Rights: Fair Housing Act: A person cannot be denied housing because of “a
                    physical impairment which substantially limits one or more of a persons major life
                    activities” (doesn’t include current drug users, but does include recovering addicts)
                              a. Shelly v. Kramer: Recorded covenant that provided that the land may not be
                              occupied by anyone of Negro or Mongolian Race.
                                      i. State supreme court found that b/c this was a private agreement, it did
                                                         th
                                      not violate the 14 Amdt.
                                      ii. SC overturns Judicial enforcement = state action = violation of equal
                                      protection clause.
                                                Example of the evolution of law because of a change in public
                                               policy
                                      iii. Today a clause like this would just be treated as a historical footnote
                                      to be disregarded
                    8. Restraint on Alienation: not legal. Example: O  A, his heirs and assigns, except
                    he cannot sell it without talking to me first. But, rights of first refusal have been upheld.




Equitable Servitudes                                         Covenants
Intent of Parties                                            Intent of Parties
Touch & Concern Land                                         Touch & Concern Land
Subsequent Purchaser must have actual or                     Privity of Estate
constructive knowledge
Remedy of Breach – Specific Performance                      Remedy of Breach - Damages




         TERMINATION

                    9. Change in Conditions.
                           a. Western Land Co.: Whether a restrictive covenant can continue to be
                           enforced in a community where population, traffic, and commercial activity have
                           all increased yet the area is still suited for residential purposes.
                                    i. RULE: Even though nearby avenues may become heavily traveled
                                    thoroughfares, restrictive covenants are still enforceable if the single-
                                    family residential character of the neighborhood has not been adversely
                                    affected, and the purpose of the restrictions has not been thwarted.
                                              As long as the original purpose of the covenants can still be
                                             accomplished and substantial benefit will inure to the restricted
                                             area by enforcement
                           b. For a covenant to be terminated it must be pretty clear that the character of
                           the neighborhood has changed and that no one has objected to it.
                                    i. Must be “so general as to frustrate the original purpose of the
                                    agreement.” Kent v. Koch.
                           c. The changed conditions doctrine is a stringent one, in most cases where
                           conditions change, the court continues to enforce the covenant by injunctive
                           relief. The analysis will turn on whether any useful purpose will be served. Is
                           there still a benefit in continued enforcement? The covenant cannot be contrary
                           to law.

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004              Page 27 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



                             d. The person attacking an ordinance must overcome a presumption of
                             reasonableness.
                                      i. Reasonableness standard
                                                 Harm caused by the restriction is so disproportionate to the
                                                benefit produced.
                                                 Bears no relationship to the land
                                                 Violates some fundamental policy inuring to the public at large
                                                 Arbitrary: not tied to anything
                                      ii. The court doesn’t look to whether its reasonable as the individual, but
                                      rather whether the rule is reasonable on the “project as a whole.”
                   10. Zoning Ordinances: Will not terminate a covenant…they cannot override privately
                   placed restrictions.
                   11. Hold Outs: It is not a matter of balancing the equities…nor does the fact that Δ is the
                   only one who has refused to release the covenants make Δ’s insistence upon the
                   enforcement of the covenants no less deserving of the court’s protection and
                   safeguarding of her rights.
                   12. Abandonment: RULE: Abandoned property is that to which an owner has
                   voluntarily relinquished all right, title, claim and possession with the intention of
                   terminating his ownership, but without vesting it in any other person and with the
                   intention of not reclaiming further possession or resuming ownership, possession
                   or enjoyment.
                             a. Most commonly, abandonment involves personal property or railway lines not
                             owned in fee simple
                             b. Options: Some sets of covenants have statutes of termination built into them,
                             some say that the covenant shall remain in effect for X amount of years and then
                             a vote to set them aside (used to allow people to renew them, but not anymore
                             cause then you’re imposing them against another and it doesn’t come from a
                             common grantor)
                   13. Common Interest Communities
                             a. Condos: Each unit in a condominium is owned separately in fee simple by an
                             individual owner. The exterior walls, the land beneath, the hallways, and other
                             common areas are owned by the unit owners as tenants in common. Ownership
                             of a condo automatically makes you a member of the association, which keeps
                             up the grounds, tennis courts, etc.
                                      i. Entry level into fee simple ownership
                                      ii. Covenants vs. By-laws (subsequently adopted by the association):
                                      (There is usually a covenant to comply with the by-laws) Court in
                                      Nahrstedt hints greater judicial defference to the former
                                      iii. Some courts say you are obligated to all the covenants unless the
                                      grantor changes them if he still maintains a property right in the
                                      community. Other courts question whether you actually have a common
                                      community if the covenants can keep changing. Of course, you cannot
                                      violate the constitution (Shelly v Kramer).
                   14. Direct v. Indirect Restraints: Direct Restraints: Interfere with the operation of the
                   free market economy valid if reasonable. (Restatement) / Indirect Restraints: Limit
                   the potential market for the property  invalid only if “lacking in rational justification” (use
                   restrictions, pet restrictions, etc.)
         G. Fee Language to control servitudes: Steer clear… A defeasible fee differs from a servitude
         in that the remedy for its breach is forfeiture, whereas the remedy for breach of a servitude is
         damages, injunction, or enforcement of a lien. 2/2/04 Depends on the timing of the
         conveyance. Court may rule FSD if it’s a recent conveyance; but if it’s a hundred years
         old, probably it’s a covenant.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004               Page 28 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



a. The Creation of Limited Interests in the Land of Others

Easements by Grant, Reservations and Exceptions

Coon v. Sonoma Magnesite Co., 182 Cal. 597, 598 (Cal. , 1920) p. 135

PROCEDURAL POSTURE: Defendant corporation appealed a decision of the Superior Court
of Sonoma County (California) finding that plaintiff landowner held the title to disputed property
and that the corporation had no rights to that property. Both the landowner and the corporation
claimed conveyances in the property from a common grantor; the corporation sought to
construct a railroad and phone line along the property.


OVERVIEW: A corporation sought to build a railroad and phone line along certain property
claimed by a landowner. Both the corporation and the landowner claimed conveyances from a
common grantor. (The grantor had saved and excepted in his grant to the landowner certain
property to be used for a road.) The trial court found that the corporation had no rights to build
on the property, but the court reversed that decision, finding that the railroad had the right to
build a wagon road on the property. In its decision, the court noted that under Cal. Civ. Code §
1069, an exception in a grant is construed in favor of the grantor. The court attempted to
interpret the conveyance according to the grantor's intent, and determined that while
construction of a road had been contemplated by the grantor, construction of a railroad was
not.


OUTCOME: The court reversed the trial court's decision, finding that the corporation was
entitled to a right of way on the property for use as a wagon road.


Class
You can have a claim of ownership in a parcel of land and still have it subject to the claims of interest of
others. Issue: Whether or not the conveyance by Meeker was a reservation or an exception.
Exception is a FSA “except for “ a certain piece. A reservation reserves conveys the entire parcel but
reserving piece for an easement. So, you convey and then the grantee conveys back the reserved piece.
But, an exception, the grantor never conveyed that piece.
Language in deed tells you if it’s a reservation or exception. In this case, the deed said “saving and
excepting …” B/c the grantor put conditional language in the deed , the Court ruled that it was not an
exception in FSA but rather a restricted conveyance.


Easement gives you a right to USE, not necessarily possession.

Can be created by Grant or Reservation,
Grant ex: "A conveyed right of way across A's land to B"
Reservation: "A conveys a fee simple to B, but expressly reserved for herself a right of way across the
land" In some states the grantor may do this for a third party.


Profit a prendre:



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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004          Page 29 of 124
Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



CL predecessor of easement, the right to take off the land things that were though of a “part” of the land
(timber, minerals, etc.) Today’s profits work the same way: A is given the right to enter upon B’s land to
remove something attached to it.



Easements Defined
Easements: An affirmative right to go on someone else’s land to use it.
Analyze each easement in terms of 1)creation, 2)scope, 3)termination
An easement can be in fee simple, or for life, or for a term of years.
The Restatement Third of the Law of Property describes easements in this way:
"an easement creates a non-possessory right to enter and use land in the possession of another and
obligates the possessor not to interfere with the uses authorized by the easement." § 1.2.1.
Put more simply, A is given a right to enter onto B's land and B may not interfere with that right.
Easements are often spoken of as "the privilege to use the land of another in a particular manner and for
a particular purpose." Russakoff v. Scruggs, 400 S.E.2d 529 (Va. 1991).
Difference between a lease and an easement: With a lease you have sole possession, with an
easement both servient and dominant landowners have the right to use the land.




Affirmative Easements and Negative Easements
The law differentiates between affirmative easements and negative easements. In most of the
Lessonettes that follow we will be examining affirmative easements because they are by far the more
common. Negative easements receive special attention in another CALI Lessonette. For now, it is enough
to know that an affirmative easement entitles the holder to enter and use another's land while a negative
easement gives the holder the right to prevent an owner of land from using that land in a certain way.



Appurtenant Easements and Easements in Gross

Easement in Appurtenant – an easement which is attached to the tract of land itself
Easement in Gross – an easement which is attached to a person for a particular use. These are
typically utility easements, e.g., AT&T has an easement to come on your land to repair the telephones (an
easement for the use of AT&T).(by far the most common type)
The law also distinguishes between what are called easements appurtenant and easements in gross.
CALI Lessonette Easements Appurtenant and in Gross explains the differences between the two. For
now it is enough to know that an easement appurtenant involves two parcels of land: one that is benefited
by the easement and one that is burdened by it. In the scenario we examined in the introduction, Sheila
wanted to use the adjacent property of Unger and Thomas to benefit her property. Sheila therefore would
want an easement appurtenant.
An easement in gross involves only one piece of land, the burdened piece. The benefit in an
easement in gross inures to a person rather than to a piece of property.




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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



Exclusive Easements and Non-Exclusive Easements
Easements may be exclusive or non-exclusive. Let's think again about Sheila and the need she had for
easier access to her property. What Sheila wants is the right to travel on Unger's driveway. She probably
does not want to deny to Unger the right to use his own driveway. In other words, she is hoping that
Unger will be willing to share. What Sheila wants is something that the law calls a non-exclusive
easement, one in which she does not have the right to exclusive use. Her desires with respect to the
water pipe are a bit different. Here she is likely to want sole use of the pipe and not to want Unger to
share in that use. Put in legal terms, she wants an exclusive easement.



Express Easements and Implied Easements
Finally, and most importantly, the law distinguishes between express easements and implied easements.
We examine express easements in CALI Lessonette PPL18L. Express consent is how most easements
are created.
Implied easement can only come when both parcels have unity of title and at the time of severance there
is a sufficient need of use at that time so as to imply an easement at that timeThe law recognizes three
kinds of implied easements:
1. the implied easement from prior existing use (CALI Lessonette PPL38L),
2. the implied easement by necessity (CALI Lessonette PPL36L) and
3. the implied easement by prescription (CALI Lessonette PPL37L).
Easement by prescription. Similar to adverse possession. Put up a sign, “permission to pass revocable
at any time” and document it in a photo w/ affadavit every year. Does not have to be exclusive.




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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




Example: Easements Appurtenant

An easement appurtenant is an easement over the servient parcel that benefits the land the dominant
parcel. The key here is that the easement links two parcels of land, almost always adjacent parcels of
land.
When the law says that the easement benefits a piece of land, this is not, strictly speaking, true because
it is not really the land that owns the benefit. Rather, the owner of the land owns the benefit. What is
important here is that the owner of the land is benefited in his status as the owner. When he transfers
his ownership of the land the benefit of the easement will transfer with the land to the new owner; it will
not stay with the former owner. This will happen even if the deed from the old owner to the new owner
does not mention the easement at all. The law describes this as the benefit of the easement running with
the land.

An example: A and B are neighboring landowners. B's land abuts a large lake stocked with fish. A's land
also abuts the lake but does not easily allow boat access onto it. At A's request, B deeds "to A, his heirs
and assigns" an easement of access to the lake over B's
land.




                                                                                                         T
his is an easement appurtenant to B's land. B's land is the burdened or servient parcel; A's land is the
dominant parcel.
Because this is an easement appurtenant, when A sells his property, the new owner will have the benefit
of the easement because he now owns the dominant estate. A will lose the benefit because he no longer
owns the dominant estate.




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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




Example: Easements in Gross

An easement in gross exists when the easement over the servient parcel is for the benefit of a person
(human or corporate) without reference to his ownership of land. The classic example of easements in
gross are those held by utility companies. The electric company, the gas company, the oil company, the
phone company and the cable company hold easements in gross to run lines or pipes over or under the
property of their customers and others. These companies do not own adjacent land. They hold the
easement for their commercial benefit.

Easements in gross may exist in a non-commercial context as well. To continue our fishing access
example, if B were to grant an easement to his friend C, who lived across town, allowing C to park on and
travel across B's property to gain access to the lake, C's easement would be personal to him. It would be,
in the language of the law, an easement in gross. B's parcel is the servient parcel. Note that there is no
dominant parcel.




Challenges in Distinguishing Easements Appurtenant from Easements in Gross

While easements in gross and easements appurtenant may be easy to define, it is occasionally difficult to
determine which kind of easement is intended by the parties. In cases where the easement holder does
not own land adjacent to, or at least in the vicinity of, the servient parcel, the characterization of the
easement as an easement in gross is a relatively straightforward matter.

This is not always the case where the grantee of the easement holder is an adjacent landowner, however.
Such an easement is an easement appurtenant if the intended benefit was intended to flow to an adjacent
owner because she is the owner. If it is intended to flow to her personally it is an easement in gross even
though she owns adjacent land.
Where the proper characterization is not obvious, the starting point for determining whether an easement
is in gross or appurtenant is to focus on the intention of the parties at the creation of the easement.


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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




Statutory Interpretation

Most states impose a presumption that the easement is appurtenant so the question will be whether the
parties intended an easement in gross instead. This is the position of the Restatement Third as well.
Often the language of the easement will give some indication of the parties' intent. For example, the deed
might expressly state that the easement is held in gross or held personally by the grantee. In such a case,
the intent to create an easement in gross is clear.

Where the intention is not clear from the language courts will look to the circumstances surrounding the
creation of the easement, e.g., when the easement is given "to A, my neighbor". Of particular interest is
the extent to which the easement is a useful and valuable enhancement to the adjoining property. The
greater the usefulness or enhancement, the stronger is the presumption that the easement is
appurtenant.
Note that subsequent events do not change the characterization of the easement as appurtenant or
in gross. For example, suppose that B gives his friend C, an easement of access across B's land to reach
the lake. At the time the easement is created C does not own any land in the vicinity of B's property. Two
years later, C buys a parcel adjoining B's property. C retains his easement over B's property as an
easement in gross. It is not transformed into an easement appurtenant.


Common Enemy Doctrine – you can drain the rain water off of your property in any manner you choose.



Adams v. Cullen, (1954) p. 139 Implied Easement by Continuous Prior Use


PROCEDURAL POSTURE: Appellant, owners of the servient estate sought review of a
judgment of the Superior Court for Spokane County (Washington), which found that
respondent owners of the dominant estate had an easement by implication across the lands of
the servient estate.


OVERVIEW: The owners of the servient estate sought review after the trial court granted an
implied easement across their land. On review, the court found that prior to severance, there
existed a definite, apparent, quasi easement for the benefit of one part of the land to the
detriment of the other. The easement was in the form of a driveway. The continuous prior use
of the driveway, the degree of proof of its necessity for the enjoyment of the dominant estate,
and the knowledge of its existence, were sufficient to establish an easement by implication by
implied reservation. The degree of necessity required to create an easement by implied grant
was only that of reasonable necessity, the creation of such an easement did not require
absolute necessity.


OUTCOME: The court affirmed the judgment of the trial court in favor of the owners of the
servient estate.




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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



Hunt Land Holding Co. v. Schramm, (1960) p. 143 Adverse Possession

PROCEDURAL POSTURE: Defendant developers challenged the judgment of the circuit court
(Florida), which granted the injunctive relief requested by plaintiff developer and plaintiff
individual lot owners and which directed defendants to remove a dam which they had
constructed across a ditch that provided drainage to plaintiffs' land.


OVERVIEW: Plaintiff developer and plaintiff individual lot owners sought injunctive relief to
require defendant developers to remove a dam they had constructed across a ditch that
provided drainage for plaintiffs' land. The circuit court granted plaintiffs' request for injunctive
relief based on the theory of mutual drain, the theory that the legal character of the artificial
ditch was changed to that of a natural water course by virtue of its long use and the theory that
an easement by prescription had been created. Defendants appealed, claiming that because
there was no proof of adverse use, no easement by prescription could be created. On appeal,
the court affirmed. Plaintiffs overcame the presumption that the use was permissive. The long,
continuous, uninterrupted, open, and notorious use of the ditch for drainage of plaintiffs' land
was conceded to have existed for more than 45 years without any objection. The ditch was
improved and serviced by the state road department and served to drain surface waters from
the highway. Also, the ditch was declared as necessary by the county health department, the
county commission, the county engineer, and the planning and zoning board.


OUTCOME: The court affirmed the order which granted the injunctive relief requested by
plaintiff developer and plaintiff individual lot owners and which required defendant developers
to remove the dam they had constructed across the ditch that provided drainage for plaintiffs'
land. The clear and positive evidence offered by plaintiffs was sufficient to overcome the
presumption that the use was permissive rather than adverse.



Lindsey v. Clark, (1952) p. 147 Non Use of Easement ≠ Abandonment.
Facts: Clark owned a lot which he granted to Lindsey’s predecessors in title. Clark reserved an easement
in the grant to the southern 10 ft of the lot to be used as a driveway for a rental property he constructed in
the rear. However, Clark and the grantee both mistakenly assumed that the easement was actually on the
north side of the lot. The grantee built a house on the property which extended 2 ft into the right of way.
Clark has been using the north driveway continuously since then. Lindsey owns the property now, and
seeks to have Clark enjoined from using the easement because it is in the wrong spot, and has not been
used, and has therefore been abandoned. Lindsey wanted to avoid prescriptive easement. Boundary,
claim, control. Be sure to address all property questions in those terms. You can abandon a claim of
ownership. A garbage can is a “claim abandonment center.” But, Lindsey’s house encroached on the
easement, so Lindsey couldn’t use it. Remedy: Lindsey is given a choice: remove the protruding part of
the house or give Clark an easement across the North part of the property.
Procedural Posture: The trial court constructed an equitable remedy whereby the Clarks relinquish their
claim to the southern easement, which would require reconstruction of the house, in return for use of the
northern easement.
Issue: Where there is a mistake as to the location of an easement, is the non-use of the easement for a
period of time sufficient to terminate the easement by abandonment?
Holding: No. The mere non-user of an easement created by a deed will not result in abandonment
unless there is clear evidence of intent to abandon.


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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



Reasoning: The court reasoned that since the driveway on the north had been used mistakenly, that
there was not an intent to abandon. They assumed that if the parties knew where the actual location of
the easement was in the grant, that they would have taken step accordingly. They refused the argument
that Clark was estopped from claiming the right of way still existed because he knew that the house was
being built.
Notes: 2. Where a person owns an easement over property, and then acquires fee title to that property,
the easement is merged with the fee and is destroyed. Thus, the user no longer must follow the
restrictions of the use. 3. An easement created by implication or prescription is generally not recorded.
However, it may still be valid against a subsequent bona fide purchaser of the servient estate.


PROCEDURAL POSTURE: Appellants challenged the decision of the Corporation Court of the
City of Waynesboro (Virginia) in an action by appellants to enjoin appellees from using a
driveway and to have themselves adjudged the fee simple owners of two lots.


OVERVIEW: Appellees were the owners of four adjoining lots with their residence on two of
the lots. Appellees conveyed the front two-thirds to an individual while maintaining the rear
one-third where appellees erected a dwelling and garage for rental purposes. In the deed,
there was a reservation of a right of way for the benefit of the rear property. Appellee continued
to use the right of way until appellants initiated an action to enjoin appellees from using a
driveway on the north side of the property and to have themselves adjudged the fee simple
owners of the two lots claimed by them. The trial court found in favor of appellees and the
supreme court affirmed the decision. In reaching its decision, the court found that appellees
had specifically reserved a right of way over the lots and that there was no intention of
abandoning that right of way.


OUTCOME: The supreme court affirmed the decision of the lower court when the court found
appellees had specifically reserved a right of way over the lots owned by appellants and they
had no intention of abandoning that right of way.



Marrone v. Washington Jockey Club, (1913) p. 153 License
Licenses: A license is permission given by the occupant of land allowing the licensee to do some
act that otherwise would be a TRESPASS. This privilege A resembles an easement, but it is
revocable by the licensor at any time.
Facts: The π bought a ticket to the horse races at the ∆'s track. However, the ∆ forcibly prevented him
from entering the gate. The next day they threw him out after he had already put his ticket into the box.
Procedural Posture: The π is suing for trespass for preventing his entry into the track. [This implies that
the π had a property right upon buying the ticket.]
Issue: Does the buyer of a ticket for a horse track have a right of property in the track?
Holding: No. The ticket binds the seller in contract, but it does not create a property interest in the holder.
Reasoning: [Holmes] reasoned that the ticket was simply a contract of license, which wsa subject to
revocation. Thus, the π did not have an action in trespass, only a contract action for breach [he could get
his money back]. The common understanding was that tickets to horse races are not a conveyance of a
property interest in the land. For there to be an irrevocable right of entry, the π must have had a interest
in the property or some goods on the property. [A license coupled with an interest might be irrevocable.]


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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others



Notes: 1. In Hurst v. Picture Theaters, Ltd., the english court found for a π who was ejected from a
theater after paying for his ticket. They held that the ticket was a contract to view the whole show, so his
license was irrevocable because it was coupled with the contractual interest to view the whole show. 4.
The general rule is that a licensee does not have rights to protection against interference by a third party.
Thus, a person who has a license from one party to cut ice on his pond may not recover damages from a
third party owner of a dam if he lowers the water maliciously to destroy the licensees benefit from the
license.
License Coupled w/ an Interest: arises where you have some kind of chattel and you wish to enter the
property to remove your chattel, the owner of the land may not revoke your right of access until you have
removed your chattel.

Cooke v. Ramponi, (1952) p. 157 Equitable Estoppel–Implied Easement Through Continuous Use
Continuous use creates an easement and may be a preferable theory for recovery than equitable
estoppel. But no evidence of prior singular ownership, so no way to claim continuous prior use.
No express – nothing in writing.
PROCEDURAL POSTURE: Defendant landowners appealed a judgment of the Superior Court
of Sonoma County (California), which decreed that plaintiff easement holders had an
irrevocable license to use the road over defendants' property and enjoined defendants from
obstructing plaintiffs' use thereof.


OVERVIEW: Plaintiff easement holders were permitted by defendant landowners'
predecessors to use a road on their property, which was the only access from the public
highway to plaintiffs' property. When defendants bought the property, they allowed plaintiffs to
use the road but refused to contribute to its upkeep. Thereafter, defendants blocked the road.
Plaintiffs filed an action to enjoin defendants from interfering with their use of the road. The trial
court found in favor of plaintiffs and issued an injunction. On appeal the court affirmed and
ruled that the judgment need not rest on the estoppel of defendants because plaintiffs had an
executed, irrevocable parol license as the result of their agreements with defendants'
predecessors in interest, and plaintiffs and the predecessors performed thereunder. The court
held that plaintiffs had reached the same kind of agreement with defendants, except that
defendants did not agree to contribute to the road's upkeep. The court ruled that plaintiffs
performed under the agreement and that it would work an injustice to allow defendants to
repudiate the agreement after they had reaped its benefits by using the road.


OUTCOME: The court affirmed the judgment in favor of plaintiff easement holders and held
that plaintiffs had an irrevocable license to use the road on defendant landowners' property
under prior agreements with defendants' predecessors. The court ruled that defendants had
agreed to plaintiffs' use, plaintiffs had fully performed, and it would work an injustice for
defendants to repudiate the agreement after they had reaped its benefits.


Stoner v. Zucker, 83 P. 808 (1906) p. 163 Parol License
Oral License Converted to a grant through estoppel.


PROCEDURAL POSTURE: Plaintiff sought review of an order of the Superior Court of
Riverside County (California) that denied plaintiff's request for an injunction and claim for
trespass holding that the license plaintiff granted to defendants to construct a ditch for water
access was continuous and irrevocable.


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Part II:          The Elements Of Ownership
Section B:        Claim of Ownership
Topic 2:          How Claim is Defined
Subtopic a.:      The Creation of Limited Interests in the Land of Others




OVERVIEW: Plaintiff granted an oral license over plaintiff's land to defendants for construction
of a ditch. The ditch was used for water for defendants' land. Plaintiff served notice to
defendants revoking the license. Defendants disregarded the notice and continued to use the
ditch and expended money in its construction and repair. Plaintiff brought a claim for trespass
and a request for an injunction. The trial court found for defendants and denied the injunction
holding where there was consideration to use the right a way, plaintiff had granted defendants
a right of way. The reviewing court affirmed holding where defendants had expended
substantial money in the construction and repair of the ditch, an irrevocable license for the
duration of the ditch's use had been created and defendants had a right to use the ditch a
presumption of release arose.


OUTCOME: Affirmed the trial court's denial of plaintiff's request for an injunction and dismissed
plaintiff's trespass claim holding where defendants expended money in the construction and
repair of ditch built upon plaintiff's land, license to do so was irrevocable during period of use
and until presumption of release arose.




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes

b. Restrictive Covenants and Equitable Servitudes
Land developers are the ones who put in the restrictive covenants. They want to keep the area in the
condition they think their target audience will want. It’s a marketing device; we’ll sell you a house where
no one can own a horse so you don’t have to smell horse dung all day long.

Eagle Enterprises, Inc. v. Gross, (1976) p. 167 Covenant Running w/ Land: Privity of Estate
Facts: Eagle is the successor in title to a grantor who granted a subdivision of land to Gross’ predecessor
in title. The original grant contained a covenant that stated that the grantor would supply water to the
grantee for use on the land each summer and fall, and that the grantee would buy the water. The
covenant stated that it would run with the land. However, Gross built his own well, and lived there year-
around and refused to pay for the water. None of the deeds in the chain of title restate the covenant, and
Gross'’ deed does not state that it is subject to any previous covenants.
Procedural Posture: Eagle brings suit to compel Gross to pay for the water, claiming that the covenant
runs with the land. The lower trial courts found for Eagle, but the Appellate Court found for Gross.
Issue: Is a covenant for the supply of water for personal use of the landowner binding against
subsequent purchasers without notice?
Holding: No.
Reasoning: The court reasoned that the covenant did not affect the rights of the landowners in the
subdivision. The lands would not be waterless if Gross did not pay for water (he had dug his own well,
even). There was no claim that the other property owners would suffer any loss if Gross did not buy water
from Eagle. The covenant therefore resembled a personal, contractual promise rather than a significant
interest that attached itself to the land as it did in Neponsit (where the failure of an individual owner to pay
homeowner’s dues did affect the rights of the other owners because the dues were used for maintenance
of the common areas.) Thus, the covenant to supply water did not “touch and concern” the land itself.
Additionally, these personal covenants are disfavored in law because they impose an “undue restriction
on alienation or an onerous burden in perpetuity.” As opposed to the Neponsit covenant, which expressly
dissolved itself in 1940, the water covenant did not have a limit, and thus would be a burden in perpetuity.
Class
Doesn’t touch the land b/c it is only for 6 months of the year.
PROCEDURAL POSTURE: Appellant sought review of an order of the Appellate Division of
the Supreme Court in the Second Judicial Department (New York) reversing the Appellate
Term of the Supreme Court in the Second Judicial Department which affirmed a judgment of
the Justice Court, Town of Monroe (New York) for appellant.


OVERVIEW: Respondent purchased land under a deed containing a covenant whereby the
owner of the land would purchase water from appellant. Respondent constructed a well and
refused to buy appellant's water. The trial court's judgment for appellant was reversed on
appeal. The Court of Appeals of New York affirmed the appellate court's dismissal of the
complaint, holding that the covenant for water supply did not sufficiently touch and concern the
land to be enforceable.


OUTCOME: The Court of Appeals of New York affirmed, holding that the covenant for water
supply did not sufficiently touch and concern the land to be enforceable.


Kent v. Koch, 166 Cal. App. 2d 579 (Cal. App. , 1958) p. 171



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes

PROCEDURAL POSTURE: Defendant lot owner appealed from a judgment of the Superior
Court of Marin County (California), which granted plaintiff developer an injunction that restricted
the lot owner from constructing a green fiberglass fence on his property without conforming to
subdivision restrictions. The developer no longer owned any building lots in the subdivision.


OVERVIEW: Defendant lot owner purchased a subdivision lot, and applied for permission to
erect a six-foot green fiberglass fence around the property. Permission was refused, and
plaintiff developer brought an action to enjoin the lot owner from erecting the fence in violation
of the subdivision restrictions. The developer owned a small parcel of land in the subdivision,
but no longer owned any lots or property suitable for the erection of a house. The trial court
granted the developer injunctive relief and the lot owner appealed. The court held that the
restrictions were for the benefit of owners of lots in the subdivision only, and that restrictive
covenants made for the benefit of other property retained by the developer could not be
enforced by the developer because he no longer owned any of the property benefited.


OUTCOME: The judgment for plaintiff developer, which granted injunctive relief against the
building of a fence by defendant lot owner in violation of the subdivision restrictions, was
reversed.



Neponsit Property Owners' Ass'n v. Emigrant Industrial Sav. Bank, (1938) p. 179
Facts: Emigrant owns a parcel of land in a residential subdivision. The original grant to the land
contained a covenant for the payment of homeowner’s fees to the Neponsit Company, or that a Property
Owner’s Ass’n, a corporation that existed solely as a conduit for collecting the homeowner’s fees and
spending them as it saw fit for the benefit of the collective homeowners, would be created. The original
grant stated that the covenant was binding upon the grantee, his heirs and assigns, and that it would run
with the land. If the fees were not paid, they would become a lien against the individual homeowner’s
property until paid.
Procedural Posture: Neponsit is suing to foreclose the lien on Emigrant’s property for liquidation of the
back homeowner’s fees in default. Emigrant claims that the covenant is not binding upon them because
Neponsit Property Owner’s Ass’n is not in privity of estate with them (has no direct interest in the land
itself), being only a corporation acting on behalf of the parties that are in privity of estate.
Issue: Is a covenant to pay homeowner’s fees to a corporation acting as an agent of the parties in privity
of estate binding, when the corporation is acting for the benefit of the homeowners (a homeowner’s
association), even though the association has no legal interest in the property (no privity of estate)?
Holding: Yes.
Reasoning: The court reasoned that normally the requirements for a covenant to run with the land are 1)
that the parties intended that the covenant run with the land; 2) the covenant “touches” or “concerns” the
land; and 3) there is privity of estate between the party claiming the benefit of the covenant, and the right
to enforce it and the promisor who is under the burden of the covenant. However, since the enforcement
of such covenants rests in equity, that blind adherence to the rule requiring actual privity would deprive
the plaintiff in this case of what is equitable. The association existed only for the benefit of the property
owners. Thus, it was a technicality that they did not actually hold any interest in the land as a corporation.
Notes: 2. Traditionally, a covenant would not run unless it benefited land as well as burdening land. In
other words, the covenant would not run with the land if it was “in gross”. This seems to be inconsistent
with the rule allowing easements to run with the land against a subsequent purchaser, even though they
were only for the benefit of one party. This may be explained by the fact that most easements are positive
and limited in scope (like the laying or sewer lines), rather than negative (enjoining another property
owner from doing something). 3. The defendant in the above case argued that the covenant did not

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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes
“touch and concern” his land because the payment of the fee was to be used for maintenance of the
neighborhood areas and not his land specifically. However, the court reasoned that the improvement of
the surrounding lands did increase the value of the defendant’s land to some degree. Thus, although it
did not technically touch the land, the purpose for the touch and concern rule was satisfied in that the
covenant provided for the maintenance of common areas which increased the enjoyment of the
defendant’s own land.


PROCEDURAL POSTURE: In plaintiff's action to foreclose upon a lien against real property
owned by defendant, defendant sought review of an order of the Appellate Division of the
Supreme Court (New York), which affirmed the trial court's denial of defendant's motion for
judgment on the pleadings. The trial court's decision to strike defendant's counterclaim and
defenses was also affirmed.


OVERVIEW: A realty company conveyed by deed several parcels of land developed by it for a
residential community. The deeds contained a covenant, that by its own terms was a lien that
ran with land, and bound all subsequent to an annual fee for the purposes of maintaining the
community's public amenities. Plaintiff was assigned the interest in a covenant; defendant
obtained land subject to the covenant from a judicial sale. In plaintiff's action to foreclose upon
its lien, the trial court struck defendant's various defenses, its counterclaim against plaintiff, and
denied defendant's motion for judgment on the pleadings. On appeal, the court affirmed,
holding that: (1) defendant's defenses were properly struck as redundant of plaintiff's
allegations in its complaint; and (2) plaintiff's covenant ran with the land as it was clearly
intended to run with the land, touched and concerned the land, and there was privity of estate
between the parties.


OUTCOME: Judgment affirmed; defendant was properly denied judgment on the pleadings as
the evidence showed that plaintiff's lien was a valid and enforceable covenant that ran with the
land. Additionally, defendant's defenses were properly struck from its answer as redundant
because they were merely argumentative denials of allegations plaintiff's complaint.



Citizens for Covenant Compliance v. Anderson, (1995) p. 185 Restrictive Covenants
Constructive knowledge of restrictions before purchase indicates acceptance of the burdens and
benefits of such restrictions.
PROCEDURAL POSTURE: Plaintiff neighbors sought review of a judgment from the court of
appeal (California), which held that covenants, conditions and, restrictions limiting defendant
property owners' property to residential use were not enforceable because they were recorded
before any of the subdivided properties that they purported to govern were sold and were not
also mentioned in a deed when the property was sold to defendants.


OVERVIEW: Plaintiff neighbors brought an action claiming that operating a winery and keeping
llamas on property purchased by defendant property owners was prohibited by covenants,
conditions, and restrictions which had been recorded prior to the sale in a declaration that
established a common plan for the ownership of property in a subdivision. Defendants
countered that restrictions were not enforceable because the deed to the property had not
mentioned them. The court of appeals found in defendants' favor, and plaintiffs sought review.
The court reversed and found that because the restrictions had been recorded as a uniform
plan of restrictions intended to bind and benefit every parcel alike, all buyers, including


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes

defendants, had constructive notice of the restrictions in existence prior to the sale of property.
Therefore, the court held that defendants' purchase of the property with constructive
knowledge of the restrictions had evinced defendants' intent to accept the burdens and
benefits of the restrictions.


OUTCOME: The court reversed a judgment that held covenants, conditions and restrictions
limiting defendant property owners' property were not enforceable. Although the deed had not
mentioned the restrictions when defendants purchased the property, defendants had obtained
constructive knowledge of the restrictions because a declaration containing the restrictions had
been recorded before the execution of the contract of sale.


Class
Go to the recording office and look up your parcel to find out the restrictions on your property. Title
insurance company and verify the status of the property.
Interests not shown of record
         1. won’t be at the recording office.
         2. Implied and prescriptive easements would not show up.
         3. Adverse possession claims too.
         4. Property surveys
         5. Restrictive covenants
To find the restrictive covenants you would check the CC&R’s. Assuming it was the intent of the
developer and the grantees to have these covenants be binding upon successors, then the subsequent
purchasers of that property are bound by the covenants.
If these have not been enforced in a long time, it could be a situation where estoppel would dictate that
you don’t enforce them. I think. But I’m not sure. If you seek injunctive relief, the doctrine of laches
might apply. You cannot seek equitable remedies when you have contributed to the problem. So, if you
sit back and don’t do anything to enforce the covenants, then laches (sitting on your rights) might demand
that you be barred from enforcing the covenants.
What if the grantor put the restrictions into each deed? If we have a binding restrictive covenant and then
one of the parties tries to breach, we could sue for specific performance. And if it’s a matter of record, we
could seek specific performance on each parcel which was sold with the restrictive covenant.

Snow v. Van Dam, 291 Mass. 477 (Mass. , 1935) p. 221
Facts: Snow is one of several residential homeowners in a subdivision. Van Dam owns a lot which is at
the entrance to the subdivision, and was commonly owned by the subdivider. In 1907, the lots of land
owned by the πs were sold individually, with most containing a provision that they were to be restricted for
residential use. The lot owned by Van Dam was finally granted to one Clark in 1923, subject to the same
restriction. Van Dam now wants to build an ice-cream shop on the land.
Procedural Posture: πs sued to enjoin Van Dam from erecting the ice cream shop, claiming that it would
be in violation of the covenant in his predecessor's deed. However, Van Dam claims that under Sprague
v. Kimball, he is not bound because the covenant did not expressly provide that it would run with the land
to a subsequent purchaser.
Issue: Will a covenant to use land that is part of a residential subdivision for residential purposes only
attach itself to the land if such a common scheme for the subdivision can be shown?



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes
Holding: Yes. A common scheme of development of a subdivision, as evidenced by a substantial number
of the grants to the lots containing substantially the same restrictions, is sufficient to show that a burden
on one lot with a corresponding benefit to the remaining lots was intended to be appurtenant to the
remaining lots, thus becoming enforceable against a subsequent purchaser of any lot in that subdivision.
Reasoning: The court reasoned that although the statute of frauds prevented a restriction on land from
being enforceable against the grantor if not in writing, the existence of a scheme could still be used to
show intent to make a covenant run with the land. Thus, the real question was whether the land belonging
to Van Dam was intended to be part of the overall scheme of the development. Since it was at the
entrance to the development, and anyone passing to other parts of the subdivision would have to pass it,
it would have a substantial impact on the perception of the subdivision as a whole. So the restriction to
Clark (Van Dam's predecessor in title) was part of that scheme, making the covenant run with his land.
Furthermore, it was to be limited by statute to 30 years after the date of his grant.
Notes: 2/3/04.
1. If A grants a lot to B with a covenant which is expressly stated to be for the benefit of C, then C may
   bring an action to enforce that covenant against a subsequent purchaser from B, even though they
   are not part of a common scheme for development. This is because the covenant was explicit in
   stating that the benefit was for C, and thus appurtenant to C's land; it did not have to be implied into
   the grant. Vogeler v. Alwyn Improvement Corp..
2. If A grants a parcel to B with a covenant to use it only for residential purposes, but A owns no other
   land in the area, if B then subdivides the land and sells it off to individual purchasers with no
   restrictions in the deeds, can one of the subsequent purchasers enforce the covenant against another
   who wishes to convert his lot to commercial use? [Probably not. When B sudivided the land, he
   became the common grantor, and there was no evidence of such a scheme because none of the
   deeds contained the restriction. However, A might be able to enforce the restriction if he could prove
   that it ran with the land.]
3. Where a common grantor includes restrictions on land which he denotes "covenants and conditions",
   and reserves a right of re-entry to enforce them the courts have construed the language to be
   covenants only, enforceable by injunction, and not conditions subsequent which would cause
   forfeiture.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed from a judgment of the Superior Court,
Middlesex County (Massachusetts), granting plaintiffs an injunction to prevent defendant from
operating a commercial business on his property.


OVERVIEW: The entrance to tract of land was at the northwesterly corner. When tract was
registered, the northerly part was not divided into lots. Road was a public way. Tract, except
the part north of road, was divided into building lots. Each plaintiff owned a building lot upon
which each built a summer residence. The deeds contained restriction that only one dwelling
house could be erected on the lot. The entire unsold remainder of the land south of road was
conveyed subject to similar restrictions. The land north of Road was then divided under revised
plan, which covered the whole tract. The northern lots were sold, and the deeds contained a
similar restriction. Defendant purchased a northern lot and erected a commercial building.
Plaintiffs sought an injunction claiming violation of the restrictions. The trial court entered
judgment for plaintiffs. The supreme judicial court affirmed holding the restrictions applied to
defendant.


OUTCOME: Judgment affirmed; plans for the entire tract was a building scheme, which
imposed the restrictions upon the lot owned by defendant, and defendant violated the


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes

restrictions by operating the commercial building.



Downs v. Kroeger, 200 Cal. 743 (Cal. , 1927) p. 229
If conditions of the property are permanently changed, restrictive covenants may be void when
their original purpose is no longer applicable.
PROCEDURAL POSTURE: Appellants challenged the judgment of the Los Angeles County
Superior Court (California) which denied their request for a permanent injunction to refrain
respondent from completing a store building in a residential neighborhood with restrictive
covenants.


OVERVIEW: Appellants, owners of lots in a tract originally subdivided as residential property,
commenced action seeking a permanent injunction to restrain respondent from completing a
store building upon one of the lots. Appellants alleged that erection of a store would violate the
restrictive covenants inserted in all deeds by which parts of the tract was conveyed, including
that of the respondent. Respondent's property was a border lot which abutted a main road and
faced an unrestricted business area. Respondent maintained that character of the
neighborhood had so changed and that enforcement of the restrictive covenants would be
inequitable and oppressive. Appellants challenged the trial court's denial of a permanent
injunction. The court affirmed because it was inequitable to enforce the restrictions since the
condition of the neighborhood was so altered as to render respondent's property a business
property.


OUTCOME: The court affirmed the judgment because the court properly ruled that it was
inequitable to enforce the restrictions since the condition of the neighborhood was so altered
as to render it business property.


Class
Subsequent owners can enforce the covenant assuming privity of estate. What about the developer?
California Courts say that the developer can continue to enforcde the covenants as long as the developer
still has lots for sale on the property that will be benefited by the enforcement of the coventants. If not, he
has no interest and cannot enforce. See Kent v. Koch. Sometimes the developer will keep an outlot for
the purposes of maintaining an interest for enforcement of covenant purposes. You can convey an
interest in an outlot, but usually these are less desirable plots that the developer retains simply for the
purpose of keeping an interest in the development.
What about the property owners themselves? Yes, b/c these are property intersts that attach to the land.
CALIFORNIA OFFICIAL REPORTS HEADNOTES
CA(1)
      (1) Deeds--Building Restrictions--Change of Neighborhood. --Where a tract of land was
subdivided and laid out for residential purposes and restrictive covenants running with the land were
inserted in all deeds by which parts of said tract were conveyed, prohibiting until a certain time the
construction of any structure but residences in the restricted area, a change in the uses to which the
property in the neighborhood is being put of such nature that it is no longer residence property renders it
unjust, oppressive, and inequitable to give effect to the restrictions, if such change has resulted from
causes other than their breach.
CA(2)
    (2) Id.--Injunction. --In such a case an injunction will not issue to restrain the defendant from
completing a store building upon his lot, where the evidence shows, and the court finds, that defendant's


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 2:          How Claim is Defined
Subtopic b.:      Restrictive Covenants and Equitable Servitudes
property is essentially business property, and that if he is restrained from using it for the only purpose for
which it is now suitable and available, he will be irreparably damaged and deprived of any use
whatsoever thereof.
CA(3)
       (3) Id.--Judgment--Scope and Effect of. --In determining the scope and effect of a judgment, the
entire judgment-roll may be looked to for the purpose of its interpretation; and it is held in this case that
the judgment is supported by the findings when examined and considered with the record as a whole and
it can only be construed to harmonize with them.

Monday, February 09, 2004
Restrictinve Covenenats – privity of estate
Equitable servitude – doesn’t need privity of estate.




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership

               3) How Claim Can Be Owned By More Than One Person

a. Concurrent Interest and Multiple Ownership

II. CREATION OF JOINT INTEREST.


VOCAB

        Entirety: The whole, undivided interest in property.
        Survivorship: the right to receive full title or ownership due to having survived another person.
        Undivided interest: title to real property held by two or more persons without specifying the
         interests of each party by percentage or description of a portion of the real estate.
        Probate: the process of proving a will is valid and thereafter administering the estate of a dead
         person according to the terms of the will.
              o A joint tenancy gets around this pain in the butt procedure.
        Moiety: half. Generally a reference to interest in real property, moiety is seldom used today.




         H. Tenancy in common as coparcenors: If a decedent had only daughters, the daughters took
         as coparcenors
         I. Partnership: Too important to discuss here…business law
         J. Tenancy in Common: separate but undivided interests in the property; the interest of each is
         descendible and may be conveyed by deed or will. There are no survivorship rights between
         tenants in common. Each person’s interest in the property goes to their heirs when they die.
                 1. Most flexible tenancy.
                 2. Attributes of this ownership: Right of partition, also sale and will.
                 3. Adverse Possession: in order for a tenant in common to acquire rights by adverse
                 possession they have to physically inform the other possessors.
         K. Joint Tenancy: Joint tenants have the right of survivorship and are together regarded as a
         single owner (per my et per tout: by the share or moiety and by the whole). In theory, each owns
         the undivided whole of the property, therefore when one joint tenant dies, the estate simply
         continues without the interest of the decedent.
                 1. Requirement of Unities:
                           a. Time: The interest of each joint tenant must be acquired or vest at the same
                           time.
                           b. Title: All joint tenants must acquire title by the same instrument or by a joint
                           adverse possession. A joint tenancy can never arise by intestate succession or
                           act of law.
                           c. Interest: All must have equal undivided shares and identical instruments
                           measured by duration.
                           d. Possession: Each must have a right to possession of the whole. After a joint
                           tenancy is created, however, one joint tenant can voluntarily give exclusive
                           possession to the other joint tenant.
                 2. If the unities are severed, the joint tenancy turns into a tenancy in common when the
                 unities cease to exist.
                           a. One joint tenant can unilaterally break the tenancy by conveying his interest to
                           a third party.
                 3. A creditor cannot touch the joint tenants property after they have died (cause their
                 interest is gone)


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
                  4. Riddle v. Harmon: Allows for one party to unilaterally sever a joint tenancy without the
                  use of a strawman, by conveying the land to herself. (Majority Rule)
                           a. Overrules the previous “two to transfer” requirement.
                  5. RULE: A joint tenancy between three parties, subsequently broken by one party, does
                  not break the joint tenancy between the other two parties. When one of the remaining
                  party dies, the third party gets a survivorship interest, and the property then becomes
                  tenancy in common.
                  6. Harms v Sprague: Do we look at a mortgage as a lien on the title, or do we say that the
                  mortgagee has a temporary title to the interest in the land? (Courts look at it both ways)
                  The court in this case chooses to look at it as a lein, and thus, once on holder in the joint
                  tenancy dies, then the other holder gets survivorship and the creditors can’t touch the
                  property.
                  7. MI Rule: “Joint tenancy with right of survivorship” is the equivalent of a tenancy by the
                  entirety between two people other than a husband and wife. (Minority Rule)
                  8. CL Rule: You can’t have unequal shares in the property for joint tenancy.
                  9. A contract or a lease will not sever survivorship rights.
                  10. Murder: Murder severs a joint tenancy and converts it into a tenancy in common.
                  11. Joint Death: If A and B, joint tenants, die in a common disaster and there is “no
                  sufficient evidence” of the order of death. The Uniform Simultaneous Death Act
                  provides that ½ of the property is distributed as if A survived and ½ as if B survived.
         L. Adverse Possession: Can be found, but it is very hard to prove. Some courts look at a
         composite of activities which result in one party generally treating the land as if it were owned in
         fee, other courts find the assertion of complete ownership from more overt activities.
                  1. Essence: a denial of the cotenancy relationship by the occupying cotenant.
         M. Tenancy by the Entirety: Can be created only in a husband and wife. Thus it requires the
         four unities, plus a fifth (marriage). Husband and wife are considered to hold as one person at
         common law. Per tout et non per my (don’t hold by the moieties, but rather both are seized of the
         entirety). Neither the husband nor wife can defeat the right to survivorship by a conveyance to a
         third party, only a conveyance by husband and wife together can do so.
                  1. Social rule to reinforce the wholeness of the marriage.
                  2. Divorce terminates the tenancy, ‘cause the fifth unity is terminated.
                  3. Only exists in less than half of the states.
         N. Presumption where language is ambiguous: CL: favored joint tenancies (they didn’t like to
         divide land into smaller parcels), Modern: the opposite is true.
         O. Joint Tenancy Bank Accounts:
                  1. true joint tenancy
                  2. payable on death account: Intention is only to give survivorship rights.
                  3. convenience account: Intention is only that A have the power to draw on the account
                  to pay O’s bills and not have survivorship rights.
                           a. Generally The agreement signed with the bank is not controlling.
                           b. Maj. Rule: The surviving joint tenant takes the sum remaining on deposit in a
                           joint account unless there is clear and convincing evidence that a convenience
                           account was intended.
                                     i. BOP: Person challenging the surviving joint tenant.
                           c. Maj. Rule: During the lifetime of the parties the presumption is that the joint
                           account belongs to the parties in proportion to the net contribution of each party.
         P. Repair vs. Improvement: A repair is necessary, an improvement is voluntary. Legally though,
         the result is the same…the cotenant making the repairs has no affirmative right to contribution
         from the other, however no credit for the cost of improvement is given in partition or accounting
         actions (which they would be in repairs).
                  1. But the interests of the improver are to be protected if this can be accomplished
                  without detriment to the interests of the other cotenants.
                           a. Improver bears the downside and the upside of the improvements.



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
         Q. Taxes: All cotenants are equally liable for taxes, unless one tenant is in sole possession of the
         property, and the value of the use and enjoyment which he has had equals or exceeds such
         payments, then only he would be liable for the taxes.
         R. Profits and Rent from Third Parties: All parties have a right to their fare share of this. **
         Some jurisdictions allow a cotenant to sue for waste with respect to extraction of minerals or
         cutting of timber **
                  1. Swartzbaugh v. Sampson: RULE: You have a right to unilaterally enter into a lease
                  when you are a joint tenant. All the cotenant can do is request a partition, or try for
                  ouster, or an action for accounting for the cost of the rent.
         S. Partition: Equitable action available to any joint tenant or tenant in common, but unavailable to
         tenants by the entirety. Any party can ask for a partition.
                  1. Partition in kind: Physical distribution of the land according to each parties
                  proportional share in it.
                           a. Always start here: allows the parties to have a least a portion of the land which
                           they had before.
                  2. Partition in sale: More drastic measure (Delfino) Must only occur when 1) the
                  physical attributes of the land are such that a partition in kind is impracticable or
                  inequitable, and 2) the interests of the owners would better be promoted by a partition by
                  sale. (BOP on the requesting party)
         T. Action for Accounting: equitable action by one cotenant to recover the value of their interest
         in the property collected from the rent of a third party lessee, taxes, mortgage payments, and
         other necessary carrying charges, and reasonable repairs.
         U. Rent from Co-Owner: Spiller v. Mackereth RULE: In absence of an agreement to pay rent or
         an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his
         use and occupation of the property.
                  1. Ouster: (1) The beginning of the running of the statute of limitations for adverse
                  possession and (2) the liability of an occupying co-tenant for rent to other cotenants.
                           a. (2) The occupying cotenant refuses a demand of the other cotenants to be
                           allowed into use and enjoyment of the land.

Joint tenancy                    Tenancy in common                   Tenancy by entireties
Right of survivorship            No right of survivorship            Right of survivorship
(tenant dies  tenant)           (tenant dies  heirs)               Not inheritable or devisable
Not inheritable or               Is inheritable or devisable         No right to partition
devisable
                                 Conveyable                          Conveyance by single spouse is ineffective
Conveyable
                                 Grantee is also tenant in           No right to partition
Grantee is a tenant in           common
common
                                 Right to partition
Right to partition


                                      Concurrent Estates - Requirements
         Joint Tenancy                                                                  Tenancy In Common
    1. Unity of Possession                                                              1. Unity of Possession
       each must receive identical rights of possession and enjoyment
    2. Unity of Time
       each cotenant must receive its interests in the property at the same
       time
    3. Unity of Interest
       each must receive identical fractional interests in the property

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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
    4. Unity of Title
       each must receive its interests in the property from the same title

Joint Tenancy – you can have many tenants. One of the tenants can convey their interest to another
party. So, if she does that, she has severed the joint tenancy between herself and the others. The
person who bought her interest is now the joint tenant for her share.

Hoag v. Hoag, p. 245 Partition of Interests in Land / Determing Form of Ownership


Π ξ Δ were married and under a deed took some property. The deed was unclear as to how the 2 would
own the property. Unless there is express wording otherwise, the presumption when a conveyance is
given to a husband and wife is a tenancy in entirety. ω/συτ the express wording, the court can look to the
intent of the grantor to see if they intended to create a property holding of the estate in common (be able
to separate) or jointly (can’t separate). What is the form of the estate? Tenancy in Common? Joint
Tenancy? Tenancy by the Entirety? Each of these requires 2 or more owners. So, what is the
difference?
Tenancy in Common – each owns an undivided half interest in the property. I don’t have the East half
and you have the West half. It’s an undivided half interest. It is fully alienable, divisible, inheritable.
AND/OR = TIC.
Joint Tenancy – 2 or more people who have an undivided interest in the entire parcel. That means that
you and your wife have a undivided 100% interest in the property.
Tenancy by the Entirety: Can be created only in a husband and wife. Thus it requires the four unities,
plus a fifth (marriage). Husband and wife are considered to hold as one person at common law. Per tout
et non per my (don’t hold by the moieties, but rather both are seized of the entirety). Neither the husband
nor wife can defeat the right to survivorship by a conveyance to a third party, only a conveyance by
husband and wife together can do so.
         1. Social rule to reinforce the wholeness of the marriage.
         2. Divorce terminates the tenancy, ‘cause the fifth unity is terminated.
         3. Only exists in less than half of the states.



Baird v. Moore- p. 247 Tenancy in Common (Duties of Tenants in Common)
Tenancy in Common for a leasehold estate. But, the leasehold is for 99 years. So, this is probably even
better than a life estate. Π wants to partition it. She wants to take out her half interest. One way to do
this is to physically split it – you take the east and I take the west. But, the normal way is to set a price
and one side buys out the other side.
So, they have a sale, but the issue is that they don’t want to just split the proceeds of the sale. The
tenant in possession wants an accounting for the maintenance costs. Before he died, the brother had
moved away. He was never really in possession and she was in charge of the property and she handled
all the upkeep. So, in comes the brother’s widow and she says to split it right down the middle. But the
sister says no, I want to be compensated for your share of the common expenses.
The Court points out an interesting feature. Let’s say the sister shelled out $2k for a new roof. If the
brother was still alive, would she be able to sue her brother for $1k (half the cost)? Would she be able to
recover? Prior to making the expense, she could apply for a writ ordering him to join in the expense. But
if she fronts the money, she has to eat the expense. But, after she pays for the roof and he’s paid
nothing, she acquires a lien on the leasehold to the extent of $1,000. So, if there ever is an accounting,
she is reimbursed. Same for all upkeep expenses. If she has obtained any rents on the property, the
brother is entitled to half of that, and in the accounting it would offset the amounts due to her.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 49 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
So, now the brother’s widow comes in and says that she wants the sister to account for her use and
enjoyment of the property. In-other-words, she wants the sister to pay half rental value. But, the sister
says she doesn’t have to because the brother wasn’t deprived of the property (no ouster) AND because
it’s her property. Tenants in common – she has a right to be there. Court says tenant in common
normally does not have to account if they are in possession UNLESS they have asked for an accounting.
In-other-words, you can’t have it all one way. If you want to be paid for the expenses, you may be
required to account for your use of the property. The obligations of tenancy in common to one another.
Of course, the obligations could be addressed by contract. But, in the absence of an agreement, the
Court will tell you what to do.

Π ξ Δ jointly owned property ξ Δ moved away. Ϡ expended money in the upkeep of the property ξ wants
Δ to indemnify her. A tenant in common who is in sole possession of the property is under a duty to his
co-tenants to preserve the property by making needful ordinary repairs, paying property taxes…however,
the co-tenant is required to be held accountable for their share of the maintenance costs of the property



People v. Nogarr- p. 257 Mortgage Impact on Joint Tenancy
Elaine & Calvert are joint tenants. Calvert mortgaged his interest and died before the mortgage was paid
off. The Court held that Elaine took full possession of the property upon Calvert’s death because a
tenancy in common isn’t created by a mortgage. Mortgages only create a lien upon the person’s interest
in the property, it does not vest that person w/ title, or else the unities would be severed creating a
tenancy in common. However, in other jurisdictions (title theory jurisdiction) does vest the mortgagor w/
title creating a tenancy in common that survives if the mortgagee dies. The mortgage severed the unity of
title.
Nogarr: Hubby and Elaine were joint tenant, and then they separated. Hubby executed a promissory
note to his parents and delivered a mortgage to them. Then the hubby died. Parents arg the mortgage
severed the joint tenancy, and created a cotenancy. Did the mortgage sever the joint tenancy?
Lien Theory Jxn (California): Some jxn hold a mortgage only transfers the interest that the joint tenant
had.
         When a creditor has a lien on prop in joint tenant, he can immediately sell the interest and sever
         the joint tenancy, or he can wait until the joint tenancy is severed by death. He assumes the risk
         of losing the loan if the debtor dies first.
Title Theory Jxn: Other jxn hold a mortgage passes title or possession. In that case, the joint tenancy is
severed right away.



III. Marital Estates

The Common Law
    Husband and wife hold title individually to property brought into marriage or acquired during
      marriage. Income and property purchased with that income belong to them individually.
    Exceptions:
         o Iure uxoris: husband has right to control property wife has legal title to; wife loses
             immediate control of property until he dies; husband can alienate property as well. In
             turn, wife is entitled to support from husband.
         o At death of spouse, survivor took a life estate in property of deceased, although was not
             an heir.
                   Widow entitled to 1/3 share of any land the husband has been seised of at any
                      time during their marriage (i.e., if H sold land to A, then H’s widow owned life
                      estate in 1/3 of A’s land)

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004         Page 50 of 124
Part II:             The Elements Of Ownership
Section B:           Claim To Ownership
Topic 3:             How Claim Can Be Owned By More Than One Person
Subtopic a.:         Concurrent Interest and Mutiple Ownership
                            Widower entitled to a life estate in any land the wife held in fee simple or fee tail
                             during the marriage (as long as a child had been born alive during the marriage)


Curtesy
    Husband gets life estate in all lands which wife had fee interest in while they were married
    Must have been issue born alive, capable of inheriting, to qualify

Dower
    Dower only attaches to fees, not to life estate (which is not a state of inheritance).
    Wife got life estate in 1/3 of husband’s lands, and issue aren’t relevant

Reasons for the abolition of dower
       Reasons:
              o Cloud on title: meant that property could not be conveyed without attaching a burden
                  on the purchaser of a present estate of 1/3.
              o Both only attach to land and not to chattel, which is not the normal form of wealth in
                  modern society.
              o Both are easy to beat
       Difference between dower (widow’s right) and curtesy (widower’s right)
              o For curtesy to attach a child had to have been born alive.
              o For dower, a child was not necessary to attach.
       They still exist today, but in limited form.


         Class discussion: should we have curtesy and dower at all?
              Yes:
                  o      It privileges marriage over other relationships, which is good.
                  o      The property belongs to the family, so they shouldn’t have to prove need. It is their
                         property.
                     o   We wouldn’t want the spouse to be able to leave nothing to the survivor. Most young
                         couples don’t plan for survivor.
              No:
                     o   It privileges marriage over other relationships, which is bad.
                     o   It doesn’t have anything to do with need.
                     o   Restraint on alienation is bad.
                     o   Women now have more earning capacity and so don’t need to be protected.
                     o   We do want the spouse to be able to leave nothing to the survivor.
                     o   Holdover from a patriarchal age

         Dower only applies to land husband seised of during marriage
         Melenky v. Melen: father conveyed land to son (Δ) with oral promise from son to reconvey upon
         demand. Son was asked to reconvey and returned only a life estate, not a fee simple as he was
         given. Father accepted deed. Stepmother sued for being deprived of her dower.

Statutory Changes in Marital Estates
     Common changes to the common law
           o Making the surviving spouse an heir upon intestacy
           o Widening coverage to include both personal and real property
           o Equalizing the rights of husband and wife
           o Restricting the property subject to them to that held at death
           o Changing the estate taken from a life estate to a fee simple interest in a percentage of
              the decedent’s estate


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004               Page 51 of 124
Part II:           The Elements Of Ownership
Section B:         Claim To Ownership
Topic 3:           How Claim Can Be Owned By More Than One Person
Subtopic a.:       Concurrent Interest and Mutiple Ownership
               o Giving the surviving spouse an election to take under the will of the first to die, or to take
                 a statutory share as the decedent’s heir
        Statutes
             o Ohio: 1/3 estate default unless will barred it
             o Connecticut: survivor may elect either 1/3 or will
             o Uniform Probate Code: survivor may elect either sliding scale share or will

Community Property
    Community property
         o Property that is earned by either spouse during the marriage belongs to a marital
             community of which each is half owner.
         o Eight states use this
    Separate property
         o Property owned prior to marriage
         o Property acquired by inheritance, devise, or gift during the marriage

How much about community property is it fair for you to know?
    Only 8 states, but should know something about it for the migrating couple
    Should recognize its basic characteristics
         o It excludes property acquired prior to the marriage
         o It excludes gifts and devises acquired during the marriage
         o Difficult areas:
                   Gains from separate property, such as dividends from separate shares – look at
                     case law and statutes in jurisdiction
                   Tracing the assets
                   Personal injury awards: one spouse is run down by a bus and collects from the
                     bus company; is that part of the community property?
    The facts of Kessler are quite unusual. Why so few cases like this?
         o Common law lawyers are ignorant about community property law.
         o Problems of tracing are too great.
         o Real property causes the most problems, but inheritance to that hinges on the situs, or
             the place of the death.

         Spouse owns ½ interest in community property, so other half gained at survival is taxable
         In re Kessler’s Estate: under community property widow has to pay tax on ½ of property because
         she is gaining property; dissent: she already owned the property, so it shouldn’t be taxed

Homestead Rights
    Right to a homestead exemption from the claims of creditors of either spouse
    A property interest that cannot be defeated by the conveyance of one spouse without the other’s
      consent
    In some states, homestead must be recorded to have effect
    Loans to purchase or improve the homestead itself are not exempted, however.



Wilcox v. Wilcox, (1971)p. 265 Community Property (Right to Manage Community Property)
Community property must be managed in good faith.
By statute the husband is entitled to manage the community property. But by running off with the money,
the wife didn’t embezzle, but she interfered with his statutory right to manage the community property.
The Court agrees. But, the statute changed in 1975. Now, either spouse has right of mangement, not
just the husband. Either spouse may manage the estate as long as they act in good faith. So, now if the
wife runs off with the money, his cause of action is bad faith.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004             Page 52 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
In a default situation, community property, if you have a business that is run by one of the spouses, that
particular spouse is entitled to the sole management of that business. So, if you have a law practice, and
your spouse has a community property interest in that firm, you are entitled to sole management of the
law practice. She is not entitled to come in and start participating in the management of the firm. This is
particularly compelling in business that require special licenses such as law or medicine.
Wilcox v. Wilcox- Husband and wife owned $30,000 as community property & wife ran off w/ it. Husband
sued claiming he had the power of management, disposal & control of the property & court agreed. At
common law, between husband and wife, community property was owned as tenancy in common which
gives both parties right to possession. However, the husband was the one who had the decision making
powers over it, he could manage, dispose & control the property and had a right to sue his wife if she
interfered w/ that right. Modernly, the rule is that either spouse can manage the property, but they must
act in good faith of one another.


                                                ROGER W. WILCOX
                                 v. IDA M. WILCOX, Defendant and Respondent

                                                 November 19, 1971

DISPOSITION: The judgment is reversed.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Appellant husband challenged the order of the Superior Court of
San Diego County (California), which dismissed his action for violations of his right to manage,
control, and dispose of community funds, following an order sustaining defendant wife's
demurrer without leave to amend.


OVERVIEW: Plaintiff husband alleged that defendant wife took exclusive possession of
community funds, that he demanded the money back, and she refused to pay the money to
him. Wife's demurrer to the complaint contended that the court did not have jurisdiction over
the subject matter of the action and that there was no statutory authority which allowed a
spouse to sue the other for mismanagement of community funds.


TRIAL COURT -- The trial court sustained the demurrer without leave to amend and dismissed
husband's complaint.


HOLDING: On appeal, the court reversed, because it found that the right of a husband to
maintain an action for a violation of his rights to manage, control, and dispose of
community funds was not dependant on statutory authority to sue his wife.


OUTCOME: The dismissal of appellant husband's action following an order sustaining
defendant wife's demurrer was reversed, because husband had a cause of action against wife
for a violation of his rights to manage, control, and dispose of community funds.




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004         Page 53 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership


Tuesday, February 10, 2004
LE + Rev. = FSA
FSD + PR = FSA
FEL + Ex I = FSA
Property Transactions – you will need to deal with future interests.
This is a boundary question – it is the definition of the estate.
What if you have 2 people, X and Y, who own Blackacre in FSA as Joint Tentants? It does not make the
estate any less. So, tenancy in common, in the entirety, community property, just tells you how the estate
is owned, but it does not diminish the estate.
Does the creation of the easement sever the estate and create a tenancy in common from a joint
tenancy?
What is a joint tenancy? What is a tenancy in common? What unilateral acts of a tenancy in the entirety
will sever the estate? (none, can’t do it unilaterally). What impact will a license have?
Will an easement sever unity of title? Always know what type of questions to ask? Know the rules of law.

IV. Concurrent Estates

Basic Characteristics
    Co-ownership of land by two or more persons
    Each tenant has a right to possess the whole (such as a house, where each family member may
       legally enter the others’ rooms
    Each tenant has a right to partition the property, to divide it into parts (partition in kind) or sell the
       whole (partition by sale)
    Four types

Joint tenancy
     Marriage irrelevant
     Owned per my et per tout, by the half and by the whole
     Each owned an undivided interest in the whole
     Right of survivorship: on death of one, property automatically passes to survivor(s) without
        formalities of inheritance (or probate)
            o Known as ius accrescendi
     Has four necessary unities
            o Title: acquire title by same instrument or joint adverse possession
            o Time: interest acquired at the same time
            o Interest: shares of each must be equal, undivided, and identical in duration
            o Possession: all have equal rights to possess the whole, unless express agreement
                 otherwise
     If one violates a unity, others continue in joint tenancy among themselves and have tenancy in
        common with the violator.
     Can be created by conveyance “to A and B as joint tenants, and not as tenants in common”

Tenancy in common
    Marriage irrelevant
    Only requires unity of possession
    Have an undivided interest in the property
    Tenants do not have a survivorship right (i.e., if tenant A dies, tenant A’s land might go to
      someone other than tenant B)


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004            Page 54 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
        Conveyance “to A and B” generally creates a tenancy in common
        No adverse possession occurs without ouster; not adverse since both entitled to possession of
         the whole
        No rent is payable to the tenants occupying by the ones not occupying
        One cotenant can recover possession of the property against a wrongdoer without impleading the
         others
        Cannot exclude the cotenants
        Statute of Anne: rent must be shared by cotenants

Hypothetical comparing joint tenancy with tenancy in common
      O  A, B & C
         AD
         D dies, X as heir
         B dies, Y as heir


              Joint tenancy
                   o A, by conveying, severs the joint tenancy, making it a tenancy in common between A
                        and B&C (joint tenants)
                   o X takes tenancy in common
                   o When B dies, B’s share survives to C, and does not devise to Y
                   o Outcome: X and C are tenants in common
                             X has 1/3 and C has 2/3 (yet each is entitled to possession of the whole)
                                    In family, all get possession of the entire house, although one may
                                        have a larger interest
              Tenancy in common
                   o Outcome: X and Y and C are tenants in common

What are the benefits of the statutes that presume tenancy in common?
        Joint tenancy means more land in the hands of fewer people
        Divorce does not necessarily sever a joint tenancy. A tenancy in common keeps the interests
           separate.

Coparency
    Obsolete
    Where lands passed to two or more female descendants by operation of law
    Marriage irrelevant

Tenancy by the entirety
    Marriage required
    Husband and wife hold as one person
    Surviving spouse takes the whole upon the death of the other
    Have to act together to sever the tenancy by the entirety
    No individual right to partition
    Divorce, since it terminates the marriage, terminates this too
    Conveyance commonly by “to A and B, husband and wife, as tenants by the entirety”

The Creation of Concurrent Tenancies
    Current default/presumption is tenancy in common




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004       Page 55 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
Creation of joint tenancy:
    Need all 4 unities to create under common law
           o If A owned property and wanted to bring B into a joint tenancy, would need to convey to
                C and then C convey back to both A & B
    Now, need only to create a joint tenant by A & entering it
    Symmetry in the law
           o If you can create a joint tenancy without the four unities, you should also be able to sever
                without the four unities.

         If deed is clear, can’t allow parol evidence; if contradictory language, that which comes
         first governs
         Camp v. Camp: deed gives mother and son tenancy in common with rights of survivorship; son’s
         widow sues for ½ property interest;

         Parol evidence rule:
          Types of contracts:
                 o Clear and unambiguous: no parol
                 o Ambiguous: parol okay to clear up ambiguity, but if it contradicts, then the parol
                    inadmissible
          Parol can clear up attendant circumstances (deaths, etc.), but not contradict the written terms
          In property, parol evidence is allowed only for these attendant circumstances; for the written
            instrument itself, the four corners approach is more commonly followed

Relations among Concurrent Tenancies
    Under the Statute of Anne (England, 1704), a cotenant who receives rent must pay the others
       their share.
    Cotenants may not exclude other cotenants from enjoying the right to possession of the whole.
    Examples of waste:
            o Extracting natural gas without the consent of the others
            o Cutting timber
    Cotenants can produce oil but cannot exclude the others from producing oil.
    If one of the cotenants acquires the title by tax sale or paying off a mortgage, he acquires it for
       the benefit of all and all owe him their share of the cost.

The Termination of Concurrent Tenancies

Concurrent tenancies come to an end when the property subject to them is conveyed to a third
person

Difference between severing joint tenancy and partitioning the land:
         Severance: you are seeking to create a tenancy in common
         Partition: you are seeking to divide the real estate into parts; sometimes means selling it and
           dividing the proceeds
                o It is a right for joint tenants and tenants in common. May require going to court to
                    enforce that right, but not necessary

Can unilaterally terminate a joint tenancy by conveying to oneself as tenant in common
       Riddle v. Harmon: wife conveys joint tenancy property to herself as tenant in common to destroy
       right of survivorship

Act of severance must not allow severer to retreat from severing the joint tenancy
        Allison v. Powell: joint tenant commences an action to sever a joint tenancy, but dies; the action
        does not survive to executrix and title passes to joint tenants

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004         Page 56 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic a.:      Concurrent Interest and Mutiple Ownership
Danger of one joint tenant defrauding the other
        If A & B in a joint tenancy, A could defraud B by
               o Secretly executing a deed conveying his interest to someone, C, and putting it in his
                   safe deposit box to be found after he dies as a valid transfer inter vivos that severed
                   the joint tenancy and ended the right of survivorship
               o However, if B dies first, he could destroy the deed and no one would know he
                   shouldn’t have been able to take by survivorship

Hypotheticals on severing a joint tenancy:
       Can a will sever a joint tenancy?
               o Won’t work because the right of survivorship
               o Unusual outcome because clear intent in a written document does not govern
                       Intent doesn’t matter with a right
       Entering into a contract of sale
               o Again, not final and can retreat from
               o What about inference of no enforceable agreement – points to possibility of
                  enforceable agreement
               o Equitable conversion: when a binding contract of sale is agreed to, the title is
                  equitably held
       Long term lease
               o Title does not change, so doesn’t sever
               o A & B are joint tenants
                       A  C for 5 years
                       After 5 years: A holds title
                       If A dies during 5 years, B has the fee; C loses property interest, since it
                          comes from A’s interest, which is gone
               o Riddle: intention matters
               o Allison: severs once can’t retreat
               o A wanted to convey to C for five years
                       Inconsistent during the five years because if it is not severed, then C would
                          be evicted if A died
               o After the five years: A has a tenancy in common since the lease severed it
               o Does Allison support not severing?
                       Yes: A could retreat from the severance
                       No: Once the unities are broken, you can’t go back;
               o What about Tillman (buying through tax sale only recovers life estate)?
                       Can’t get more title, but can weaken it
               o What if Riddle is about intention?
       Mortgage by one joint tenant
               o A  City Bank a mortgage
               o Intention to sever? No
               o Same as lease, since title doesn’t change
               o Two theories of mortgage
                       Title: mortgager gets title
                                Severs
                       Lien: mortgager only gets a lien against the property
                                Does not sever
                       So it depends on what theory the justification uses?
                                Yes:
                                No: if A were to die, the bank wouldn’t get its money; surviving joint
                                   tenant, B, would take the whole rather than only A’s interest

Some of these questions (particularly long-term lease) are not answered at this point.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 57 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic b.:      The Risk of Loss



                         a. The Risk of Loss

Tarling v. Baxter, (1827) p. 267 (Burning Hay Case) Risk of Loss
Losses must fall upon whom the property is vested in. Immediate sale when vendor has nothing
left to do.
Tarling v. Baxter- π bought a stack of hay from Δ w/ a post-dated check, but kept the hay on Δ’s land until
May. The hay burned in a fire before the check could be cashed or Δ picked up the hay. Court held that
the property had vested in the π so all losses fell upon him. The rule is that losses must fall upon whom
the property is vested in. Between buyers and sellers, if there is an immediate sale where there is
nothing left to be done on the part of the vendor, the property has vested in the vendee. Seller is in
control because buyer cannot pick up the hay until the check clears. So, why does the Court say that the
seller has done all that he can? So, had control of the transaction passed to the buyer? The buyer says
no because it had not paid for the goods. But, the Court said that there was nothing to prevent the buyer
from paying early. So, the buyer had to eat the loss. Π said how could I be the best party to control the
asset if I don’t have the right to take the hay? But, it was always in the π’s power to take control by
honoring the bill of exchange early.
Statutory construction and ambiguity in contracts. Court will always come down hardest on those with
control who fail to act to protect their interests. We will see this in stolen goods and voidable title cases.
UCC says risk of loss shifts to the buyer when the goods have been identified to the contract. So, if you
own a nightclub and you order a case of whiskey and the liquor supplier tags a case of whiskey with your
nightclub’s name and the supplier burns down, then the risk of loss is yours because the goods have
been identified to the contract. Normally, the wholesaler is compensated by insurance for the loss and
then you don’t have to pay.



Skelly Oil Company v. Ashmore, (1983) p. 269 Risk of Loss
When dealing w/ the risk of loss, if the loss is substantial and the terms of the contract show that
what was lost constituted an important part of the subject matter of the contract, then contract is
not binding upon either party and the risk goes to the buyer if the interest was insured.
Skelly Oil Co. v. Ashmore- π exercised their option to buy Δ’s property (grocery store). Before the closing
date, the property burned down which fire ins. compensated for. The doctrine of equitable conversion
treats the buyer as having title before the closing date and seller has having the security interest in
payment for the property. However, the buyer does not have the right of possession. When dealing w/
the risk of loss, if the loss is substantial and the terms of the contract show that what was lost constituted
an important part of the subject matter of the contract, then contract is not binding upon either party and
the risk goes to the buyer if the interest was insured.
Ashmore accepted Skelly’s offer which Skelly made after the option had expired. The Ashmores did not
have to accept the offer. Skelly, in effect, was making a counter-offer. The option period had expired, so
even though it looks like the acceptance of an option, it was really a counter offer for $20k. Then the
grocery store was desroyed before closing. So, between time of the contract and time of closing the deal,
the store burned down. This results in parallel claims. The insurance company paid off. So the question
is “who gets the windfall of the insurance payment?” Do the Ashmores get to keep the $10k or does
Skelly get a reduction in purchase price.
So, who has the risk of loss? The Court tells us that there are at least 5 different ways to decide who
bears the risk of loss. The Massachusetts Rule – The sales contract will no longer be binding if the
buildings are destroyed by fire and the value of the buildings constitutes a larege part of th etotal value of
the estate, and the terms of the agreement show that they constitutied an important part of the subject
matter of the contract. P. 280.


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 3:          How Claim Can Be Owned By More Than One Person
Subtopic b.:      The Risk of Loss
Doctrine of Equitable Conversion
The doctrine of equitable conversion treats the buyer as having title before the closing date and seller has
having the security interest in payment for the property. Seller retains legal title to the land and buyer
acquires equitable title. What on earth does that mean? Buyer acquires an insurable interest. You can
now go out and get an insurance policy on the property. Your remedy at law prevails if it is adequate.
But here, the remedy at law would not be adequate because land is unique.
CASE SUMMARY
PROCEDURAL POSTURE: Defendants appealed from a judgment of the Circuit Court of
Jasper County (Missouri) entered in favor of plaintiff in an action for specific performance of a
contract for the sale of land and for an abatement of the purchase price.
OVERVIEW: Plaintiff sued defendants for specific performance of a contract to sell a parcel of
property and for an abatement in the purchase price in an amount representing the proceeds
received by defendants under an insurance policy on a building on the property. The building
was destroyed by fire in the interim between the execution of the contract of sale and the time
for closing of the sale by the exchange of consideration for the deed to the property. The trial
court entered judgment for plaintiff, decreed specific performance, and applied the insurance
proceeds on the purchase price. The supreme court affirmed, holding specific enforcement of
the contract as well as abatement in the purchase price was not inequitable to defendants
because they would received their full bargain, while plaintiff would not.
OUTCOME: Judgment affirmed; the trial court did not err in determing that plaintiff was entitled
to specific performance as well as abatement in the purchase price.




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

             4) How Claim Can Be Transferred to Another

a. Equitable Conversion
    1. When parties have entered into a contract to sale, the buyer is treated as the owner in equity and
       the seller is treated as the owner of money owed.
    2. For it to be applied, it requires a contract that will be specifically enforced. If, for any reason, the
       contract will not be specifically enforceable, this doctrine will not apply.
    3. Consequences of applying the doctrine:
           a. Shifts risks of loss of the property to the buyer
           b. In death of one of the parties, the land in the hands of the seller will be treated as
                 personalty and in the hands of the buyer as equity
    4. Taxes: the taxes are paid from the proceeds of the sale as personalty
    5. Taking of land during eminent domain: the award goes to the purchaser and the contract price to
       the vendor (each gets what they expected)
    6. Rights of creditors: judgment after the contract of sale means the vendor’s creditors cannot
       attached a lien to the land

         Parties can contract around equitable conversion by specifically allocating the risk
         Bryant v. Willison Real Estate Co.: after contract for sale, a water line bursts damaging property;
         contract included “owner is responsible” language that shifted risk back to seller

         Law of insurable interest:
         It is a bet that the item being insured will be damaged or, if a person, will die; you must have an
         interest in something or someone before you can take out an insurance policy on it or them.

         Helmholz on equitable conversion:
          Helmholz: There has been a fair amount of criticism of the doctrine of equitable conversion.
          Criticism of rule: It isn’t intuitive, and so it should only be applied if the buyer knows about
            it. Brokers should be required to notify buyers so they know about the rule.
          Helmholz: Insurance companies must pay; the proceeds will go to whichever party has to
            bear the risk of loss.
                 o I.e., if seller has insurance and equitable conversion, buyer’s loss is covered by
                    seller’s insurance
                 o If buyer has insurance and reverse equitable conversion, seller’s loss is covered by
                    buyer’s insurance
          Who bears the risk of loss in the interim (executory period)? Many of the risks involve a
            change in the property market (market declines, zoning changes, highway put in). In the
            event of these changes, they are both bound to the contract (seller takes risks of price going
            up, buyer takes risks of price going down).
          If you apply the doctrine to this case, what are the consequences?
                 o The loss of profit to the seller ought to be recoverable from the buyer.
                 o The water damages should be paid by the buyer




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

b. Gifts

A gift is a transfer of property in which the transferor (the donor) receives no compensation or other legal
consideration from the transferee (the donee) in exchange for the transfer. There are three basic types of
gifts:
---Inter vivos gifts (gifts between living persons)
---Testamentary gifts (gifts that take effect upon the donor's death)
---Causa mortis gifts (sometimes called "deathbed " gifts)
    1) An "inter vivos" gift (literally, a gift "between the living") is a gift in which a living donor makes an
       immediately effective donative transfer of an object of property to a living donee.
       Examples;
             a. ---John's son graduates from high school. In recognition of his son's accomplishments,
                John buys a car for his son, titles it in his son's name, and hands his son the keys to the
                car, saying, "Congratulations. This is yours." John has made an inter vivos gift of the car
                to his son.
             b. ---On his daughter's birthday, John hands his daughter a watch that he had inherited from
                his mother, saying "Happy Birthday! I want you to have my mom's watch." John has
                made an inter vivos gift of the watch to his daughter.
             c.   ---John returns home from work with a vase of roses and hands them to his wife, saying
                  "I love you." John has made an inter vivos gift of the flowers to his wife.
Elements Needed to Establish an Inter Vivos Gift
           1) Donative Intent. The donor must have the intent to make a present transfer of ownership of
              the property to the donee.
           2) Delivery. The donor must make an effective delivery of the object of the gift to the donee.
           3) Acceptance. The donee must accept the object of the gift. Acceptance of a gift is usually
              presumed where the object of the gift is beneficial to the donee.

Irons v. Smallpiece, (1819) p. 283 (To Give a Gift, You Must GIVE) (A Horse Named Trover)
Donative Intent and Delivery Run Together
Irons v. Smallpiece- Dad gave horses to son, but they remained in his possession until he died. Son is
claiming possession to the horses over residual legatee’s possession. When a gift promise is to be
enforced as passing property interest, there must be intention upon the donor to transfer control of
ownership, delivery of the property and acceptance of it. Here there was no delivery.



Gift Hypo
Grandma gives granddaughter candlesticks and asks if she (grandma) can keep them on her mantle until
she dies. Granddaughter says yes. Court found donative intent and also that granddaughter had control
as witnessed by grandma asking permission to display candlesticks. Courts usually look to the
relationshiop of the parties. If the parties are strangers probably not a gift. The gift takes place at the
point that the donor loses the right to make decisions (loss of discretion). Remember Marbury v
Madison? The appointments did not take place until the seal was affixed. Similar to the deposited
mailbox rule. Once you drop the letter into the mailbox you lose control.

In Re Mills’ Estate, (1916) p. 285 (Taxable Transfer of Stock
In Re Mills- Dad wanted to give son & daughter Christmas presents of stocks and told his bookkeeper to
make the entries in the books, but he died before the stocks actually changed hands. The court found

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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
that since the son had power of attorney over the stocks (gives him power to sign the stock certificates on
dad’s behalf) no delivery was needed since he was in already in possession of the stocks. As for the
sister, delivery for her was through her brother as trustee for her share.
The son had the authority to act as his dad’s agent; but the bookkeeper did not. The son was in
California and couldn’t actually make the transfer because he couldn’t just jump in a plane. The owner
did all he could do in this respect. P. 288 It was a practice he had done in the past and these were
his children. So, the Court believes him. Court imposes a constructive trust on half the stock (for
the sister). The kids would file a claim against the estate for the $16k cash. Probably, they had
already done so.
  In the Matter of the Transfer Tax upon the Estate of Darius Ogden Mills, Deceased. Comptroller of the
 State of New York, Appellant; Ogden Mills and Elizabeth Mills Reid, as Executors, etc., of Darius Ogden
                                      Mills, Deceased, Respondents

                                           [NO NUMBER IN ORIGINAL]

                       Supreme Court of New York, Appellate Division, First Department

                                                     May 5, 1916

PRIOR HISTORY:

Appeal by the Comptroller of the State of New York from an order of the Surrogate's Court of the county
of New York, entered in the office of said Surrogate's Court on the 11th day of October, 1915, affirming an
order entered therein on the 31st day of December, 1914, fixing and assessing a transfer tax upon certain
property.

DISPOSITION: Order modified as directed in opinion, and as modified affirmed, without costs. Order to
be settled on notice.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Appellant, the Comptroller of the State of New York, sought a
review of an order of the Surrogate's Court of New York County (New York), which affirmed a
determination by an appraiser that a gift was given to respondent beneficiaries prior to the
death of a testator and should not be assessed a transfer tax pursuant to the N.Y. Transfer Tax
Law, 1909 N.Y. Laws ch. 62, art. 10, as amended.


OVERVIEW: The Comptroller claimed that the testator had intended to convey stock to the
beneficiaries but that the transaction had not been completed. The beneficiaries claimed that
the transaction was completed by entries in the corporation's records by a bookkeeper for the
corporation, who followed the testator's instructions. The court determined that correspondence
from the testator showed that he had instructed the bookkeeper to transfer the stock to the
beneficiaries, which the bookkeeper followed and that the entries on the corporate books was
sufficient to transfer title in the stock to the beneficiaries prior to the testator's death. The court
held that, contrary to the claim of the Comptroller, the testator was not required to hand the
certificates to the beneficiaries for there to be a transfer. Moreover, the N.Y. Transfer Tax Law
did not require a stock transfer tax stamp to be affixed to the certificates for the transfer to be
valid. The court also held that cash that the testator had intended to be transferred to the
beneficiaries was not transferred until after his death, which was subject to the tax.


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:


OUTCOME: The court modified the surrogate's court order by including the cash paid after the
testator's death in the estate's taxable property and affirmed the judgment as modified.



Personal Property

Wild Animals

Elements of possession

Occupation

         Pursuit alone isn’t good enough
         Pierson v. Post: hunters pursuing a fox

         Ancient authorities:
                 Justinian Institutes – Roman emperor in sixth century
                 Fleta – an ancient treatise on English law (at end of thirteenth century)
                 Bracton – written in thirteenth century
                 Puffendorf – died 1694
                 Bynkershoek – commentator on Puffendorf
                 Barbeyrac –

         Claims ratione soli:
             1. A visits B and catches a fox on B’s property. B sues A to recover the fox. Law says B’s
                claim is superior by reason of the soil (ratione soli).
             2. A starts the fox on A’s land and chases it onto B’s land where he captures the fox. B
                sues A again. B rests on ratione soli and A rests on pursuit and capture. Law says A
                prevails but is liable to B for trespass.
             3. A starts the fox on C’s land and chases it onto B’s land where A again captures it.
                Lawsuits could arise between A and B or between A and C. Helmholz hasn’t found any
                cases of this sort to say how they come out.

Intent

Deprived of natural liberty

         Wounding isn’t sufficient
         Buster v. Newkirk: one hunter wounds deer, but it gallops away; second hunter kills it and so
         owns it

Within certain control

         Possession does not require absolute security against escape
         State of Ohio v. Shaw: taking fish from someone else’s net

         Possession can be accomplished by only act circumstances allow (custom helps establish
         this)
         Ghen v. Rich: harpooning whales gains possession; industry standard

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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:


         To establish a valid custom in spite of common law, the following requirements must be met:
            1. Length of time (like in adverse possession)
            2. Unanimity in use of the custom (no contrary customs)
            3. Must be a general usage (custom embraced by an industry, the relevant population)
            4. Custom must be reasonable (this is a rather nebulous standard)
         These rules may be used today, but may go against statutes. (Example: common custom of
         speeding).



         Interfering with way of getting a livelihood gives a tort action, but not property rights
         Keeble v. Hickeringill: ducks in a pond scared away by gunshots; damages for disturbance

Rights of a Sovereign
Prerequisite of license because state holds title to animals in trust for public
       Dapson v. Daly: poacher doesn’t have valid title to challenge another
Rights of a sovereign as not same as full ownership
         State of North Dakota v. Dickinson Cheese: cheese company pollutes and kills thousands of fish;
         state cannot recover damages through property rights

Other Animals
        Domestic
        Animæ Revertendi

Classifying Property as Real or Personal

Personal Property v. Real Property
   1. Title can be transferred by oral agreement in personal property; title must be transferred in writing
      for real property (statute of frauds)
   2. Different statute of limitations
   3. Different forms of action
   4. Different succession at death (giving a house does not normally include its contents)
   5. Different taxation

Rules
Finder who adds value has better title than subsequent finder
         Haslem v. Lockwood: manure gathered into pile, left briefly, and carted off by another; original
         finder has better rights

    Helmholz: When there is a wrongful act of conversion, that party is liable for the value of the item,
    but is entitled to the expenses he incurred to make the item more valuable, if he does it in good faith.
    It distinguishes between the amount of recovery when the respondent acts in good faith as when he
    doesn’t.
Deposits and accretions become property of the owner of the soil (ratione soli)
         Goddard v. Winchell: meteor falls on land and is carted off by finder; land owner has superior
         rights because of doctrine of accretions



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
Acquiring Abandoned Property

Doctrine of abandonment
    1. Depends on intention; difficult because intention is not usually spelled out but rather inferred.
    2. Trash is considered an exhibition of the intention to abandon.
    3. There is a statute of limitations limiting when an item can be recovered.
    4. The law sometimes deals with the issue of abandonment by ignoring it and just talking about
       finding it.
    5. Land cannot be abandoned. Even the express intention to abandon it does not mean it is
       legally abandoned.
Requires actual taking (consistent w/ nature of object and circumstances) with intent to reduce it
to possession
         Eads v. Brazelton: B locates a shipwreck. He leaves it and another raises the cargo first. B did
         not have property rights.

Notes on Law of Finds and Law of Salvage

Law of Finds
        Finders, keepers
        Abandonment can be express or implied.
        Occupancy required or at least high degree of control
        Once finder establishes possession, he holds title good against all but the original owner
           (unless abandoned or passed statue of limitations).

Law of Salvage

         Three elements
         1. Property rescued must be in marine peril
         2. Salvage service must be voluntary
         3. Salvage must be successful, in whole or in part

         Notes
          “‘Possession’ means something less in salvage law than in finds law. In the salvage context,
            only the right to compensation for service, not the right to title, usually results.”
          “[P]ossession need not be continuous, but only as such the ‘nature and situation’ of the
            salvage operations permit.”

Finder’s Rights
Elements of Possession
        Intent to Control
        Act of Control

To be found property must be:
        Abandoned property: when owner intentionally and voluntarily relinquishes all right, title, and
         interest
              o Goes to finder
        Lost property: when owner unintentionally and involuntarily parts with it through neglect or
         inadvertence and does not know where it is
              o Goes to finder
        Mislaid property: when owner voluntarily puts it in a particular place, intending to retain
         ownership, but fails to reclaim it or forgets where it is

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Part II:           The Elements Of Ownership
Section B:         Claim To Ownership
Topic 4:           How Claim Can Be Transferred to Another
Subtopic:
              o Goes to the owner of the locus in quo
        Criticism: finder can’t know owner’s intent

Different from rights to animals, because property cannot regain state of nature, of freedom.
Finder takes against all others save true owner (finders, keepers, but losers not weepers)
       Armory v. Delamirie: chimney sweep’s boy find jewel and takes it to goldsmith for appraisal,
       where apprentice keeps it; boy gets damages when jewel “lost”
       Clark v. Maloney: 10 pine logs, found and gathered by A, end up in B’s possession
Doctrine of specification: a change in species means the thing itself cannot be recovered, only the
value of the object lost.
    Hypothetical of logs being converted into a violin; damages equal value of the logs, not the

    Stradivarius

Trespassing finder loses to landowner by ratione soli
       Barker v. Bates: a stick of timber runs aground on π’s property. The defendants trespassed onto
       his land, presumably found it, and took it away
        Idea of constructive possession is sometimes used to explain ratione soli
        Also, trespassing should be discouraged (doesn’t seem equitable that wrongdoer should
            benefit from wrongdoing, so court might be reluctant to find for trespasser)
Honest finder (guest, employee) takes over landowner
         South Staffordshire Water Co. v. Sharman: employee cleaning pond finds gold rings; court says
         landowner wins; Helmholz: not a typical outcome

         Hannah v. Peel: soldier finds ring in house and turns in to police; court awards ring to finder over
         homeowner

Trespasser Rights – not to be physically assaulted by landowner
Trespass by Necessity – seeking shelter in the storm to save your life.
Example: Mistakenly build a house on someone else’s land you must return the land and the house to
the real owner.
Mistakenly improve someone else’s personal property, I lose the value of my efforts.
Accession – property owner is entitled to whatever is produced by the land. Example: I own seaside
property. /due to the changes in tides, there is a build up of land and I get an additional 20’ of land.
Accession says I get the new land. Example: Rain storm; mud slide down from my property on top of the
hill to your land. You now own the mud.

Modern law of conversion:
   Form of action of conversion: the denial of the rights of a person entitled to a chattel.
         1. π must assert a right to possession.
         2. It requires denying the π’s right; the Δ must hold the item and deny that the π owns it (by
            withholding or by selling to another party).
         3. It requires damages for an action of conversion to be brought.

    Not necessary in an action of conversion



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
         1. A bad motive (even if you believe you are right, you may still have committed conversion);
            state of mind doesn’t really matter.
         2. Ownership is not necessary; bailment is enough. The right to possession is what counts.

    Real property cannot be converted.
    A non-possessory interest cannot be converted (such as a future or a past interest).

Bailments
Bailment  transfer of possession of personal property to a person who is not its owner and for a limited
purpose; there is a special qualified property transferred from bailor to bailee, together with possession.

What is not a bailment?
    1. A debt is not handing over a bail, but creating a promise that a certain amount of money will be
        repaid. Bank can’t say, “We are sorry, but your five dollars was burned in a horrible bank fire.”
        The obligation to repay is part of a promise.
    2. Inventory of a salesman. He is the agent of the company; he doesn’t have legal possession of
        the inventory in the same way a bailee does. He is a custodian of the inventory, according to the
        terms of the contract.
    3. Chattel mortgage. When a car is bought through financing, you are not a bailee and GM the
        bailor. As long as you keep the payments, you keep possession. This is different because GM
        can’t reclaim its property as it could if it was a bailment.
    4. Lease. You are not a bailee of the dormitory or apartment. A different set of obligations for both
        you and the lessor.
    5. Storage containers. A lease, rather than a bailment.
    6. Others: a pledge, consignment, a trust, etc.
Damages: The test is not one of simple outward appearances, but rather of what is reasonable
given all the circumstances.
       Samples v. Geary: fur piece concealed in coat checked in parcel room not covered because the
       true value of the ring was concealed and so there was no assent
Standard of care: ordinary care
       Peet v. The Roth Hotel: ring left with cashier of hotel disappears; bailment created
Bailment can arise by implication, creating a duty of care
         Allen v. Hyatt Regency-Nashville Hotel: car stolen from secure parking garage (w/o keys) created
         a bailment
Strict liability with respect to delivering bailment back to bailor
         Cowen v. Pressprich: wrong bond delivered to brokers; bailment upheld

Gifts

Overview
A gift  a gratuitous transaction in which the property of one person becomes the property of another
without consideration.


A gift is not:
    1. A contract.
    2. Similar to a trust, where one person is declared a beneficiary. The trustee is the owner of the
       legal title and the beneficiary is the holder of the equitable title.
    3. A last will and testament is not gratuitous and must meet certain forms.


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
Elements to make a gift effective:
   1. Present intent to transfer the chattel,
   2. Delivery of the chattel, and
   3. Acceptance of that delivery

Gift:
Used to be a requirement to pass physical possession, although now a deed can be passed instead.


Reasons for the requirement of delivery:
    1.   The impact on the donor of actually giving it up
    2.   Important evidence of who is the owner, that it really was a gift
    3.   Gives the donee notice of what is actually going on; it proves to him what he is actually getting
    4.   Avoid mistakes by donors and fraudulent claims by donees

Gifts Inter Vivos
Delivery must be as perfect as the nature of the property and the circumstances and surroundings of the
parties will reasonably permit
        Irons v. Smallpiece: colts given to son by father but father retains possession; no gift
Present transfer of property interest required for valid gift
         Gruen v. Gruen: father gives son a painting but retains a life estate; gift is effective

Conditional gift: can be revoked if the condition is not met


Helmholz Statement of Law: The law is that in order to make a gift that takes effect at death, you must
comply with the Statute of Wills, which requires a writing with a testamentary intention and have it
witnessed by a certain number of people. If it does not, it fails.

Gifts Causa Mortis
They are exceptions to the statute of wills. They do take effect at death, but they do not contradict the
Statute of Wills. A soldiers and sailors will is sufficient if it is in the handwriting of the sailor.
Elements of a gift causa mortis:
   1. Intent to make a gift
   2. Gift must be of personal property
   3. Gift must be made while the donor is under the apprehension of imminent death, upon the
        essential condition that the property shall belong to the donee if the donor dies as anticipated
        leaving the donee surviving, and the gift is not revoke in the meantime.
   4. Possession of the property given must be delivered at the time of the gift to the donee, or to
        someone for the donee, and the donee must accept the gift . . . The donee must establish the gift
        causa mortis by clear and convincing evidence.
Special Requirements:
     1. Apprehension of imminent death
     2. The donor must die of the peril he apprehends when the gift is made.
     3. Only applies to personal property.
Gift must be delivered to be valid
         Woo v. Smart: gift of check held invalid because check is not the actual funds and can be
         canceled


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
Unauthorized Possession and Bona fide Purchasers
Possession gives a presumption of title that can only be rebutted by one with better title
        Anderson v. Gouldberg: logs cut on a stranger’s land by trespasser, claimed by B; trespasser
        wins
         Easy to apply rule that can be avoided by courts for equitable reasons
         Without this standard of simple possession, property away from its true owner would be fair
            game to all claimants (endless seizures)
                o However, that assumes thieves will take each other to court, which seems unlikely
                o “Courts should not allow wrongdoers to take advantage of judicial resources”
If presumption raised by possession is rebutted, no title vests
         Russell v. Hill: logs cut on stranger’s land, claimed by later “finder”; finder wins

Helmholz: You must have lawful possession to sue to recover. There is no satisfactory way to
reconcile these cases (above). Courts with two thieves in front of them, don’t want to let either recover.

Law of bona fide purchasers
   1. Common law
          a. Concerns passage of title. Title used to be passed at the time of sale. If I lend you a
               picture, and then you sell it to a BFP, there was no intention to pass the title. Nemo dat
               quod non habet: no one gives what he does not have.
   2. “Wrongful possession of chattels: hornbook law and case law,” R. H. Helmholz , 80 NWULR 1221
          a. American courts have found the doctrine of simple possession useful when the
               wrongdoer has sold the chattel to a bona fide purchaser, who subsequently holds it for
               the statutory period. In this situation, courts often have awarded title to the bona fide
               purchaser. The result certainly is correct.
                     i. Clear title must be established at some future point; title eventually must pass out
                        of the original owner.
                    ii. Otherwise, no one could ever gain secure title. The rule that the law protects
                        even wrongful possession helps to make this result possible.
          b. The clearest illustration of the rule's utility involves cases in which a wrongful taker has
               sold the chattel to a bona fide purchaser and the statute of limitations does contain a
               fraudulent concealment exception. The question in such cases becomes whether the
               purchaser falls within the exception.
                     i. If a court holds that his possession is fraudulently concealed, title will not pass to
                        him no matter how long he holds the chattel. It is a difficult case. On the one
                        hand, he will very likely have 'concealed' the chattel from its owner just as
                        completely as the wrongdoer did.
                    ii. On the other hand, his conduct will lack the element of conscious fraud or
                        wrongdoing that would have kept the statute of limitations from operating in favor
                        of the original taker. Does his possession retain the character it had in the hands
                        of the thief, or does he take a new, untainted possessory interest?
                   iii. In this situation, American courts have called upon the hornbook rule of simple
                        possession when the equities have favored the bona fide purchaser. For title to
                        accrue to the purchaser, three things generally must exist: (1) honesty on the
                        part of the purchaser; (2) open use by him for the statutory period; and (3) failure
                        on the part of the owner to take reasonable steps to secure his rights.
   3. Exceptions
          a. Most romantic exception: market-overt. All sales were free from the claims of a seller
               who had retained title. It was okay to sell free from any examination of any title.
          b. For money and negotiable instruments. A thief acquires title to these items because our
               economy relies on transferring money freely without worrying about title.



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Part II:           The Elements Of Ownership
Section B:         Claim To Ownership
Topic 4:           How Claim Can Be Transferred to Another
Subtopic:
             c.    Estoppel (classic case): when someone knowingly withholds property from its rightful
                   owner, he will be estopped to set up the statute of limitations when the owner sues to
                   recover the property
                        i. Fraudulent concealment: a court held that the defendant's 'willful silence'
                           amounted to constructive fraud and 'constituted a sufficient answer to the plea.
                           The defendant's possession and use of the pocketbook for the statutory period
                           was not enough to 'cure the vice' of the initially wrongful appropriation.
    4. UCC
           a. Changed rules about bona fide purchasing
Seller cannot pass better title than he possesses – a void title remains void
      Porter v. Wertz: painting wrongfully sold to art gallery; bona fide purchaser loses because stolen
      painting passed by void title
When seller protected from claim, so is bona fide purchaser
        Chapin v. Freeland: adverse possession of two counters justifies ownership; bona fide purchaser
        protected
Cause of action accrues once return of item demanded and refused (other rules – from time of loss or
from time of due diligence)
         Solomon R. Guggenheim Foundation v. Lubell: painting stolen from museum and displayed in
         personal home for 20 years; museum wins
          Helmholz: According to hornbook law, the possessor of a chattel belonging to someone else
             has a valid possessory interest in the chattel, which will ripen into full ownership after the
             passage of a statutorily fixed number of years.

Fixtures
Three part test:
    1. Real or constructive annexation of the article in question to the realty.
    2. Appropriation or adaptation to the use or purpose of that part of the realty with which it is
        connected.
    3. The intention of the party making the annexation to make the article a permanent accession to
        the freehold, this intention being inferred from the nature of the article affixed, the relation and
        situation of the party making the annexation and policy of the law in relation thereto, the structure
        and mode of the annexation and the purpose or use of which the annexation has been made.”
This three-part test does not require all three elements but rather provides a way of looking at all of the
circumstances.
Person’s intention impacts whether a fixture or not
         Wyoming State Farm Loan Bd. v. Farm Credit Sys. Capital Corp.: dispute over whether irrigation
         pipe is a fixture; owner had a chattel mortgage on the pipe, showing his intent to treat it as a
         chattel, not a fixture




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 70 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

Wednesday, February 11, 2004

Shaffer handout on conveyance of watch.
   1. Contractual approach
             a. Past consideration – K argument won’t work
             b. Document is under seal so:
                        i. you can argue that intent is clear;
                       ii. according to Shaffer, it just certifies that the signature is valid;
                       iii. is anyone bound to recognize the seal?
                       iv. CL – promises under seal were binding w/o consideration
                                1. But no promise in the document
                                2. Ks UNDER SEAL:
                                  (a)   MIN. RULE: If parties sealed K w/o consid. > VALID K.
                                  (b)   BAR TIP: This is ALMOST ALWAYS THE WRONG ANSWER (only a
                                                 minority rule).
             c.   Look for an estoppel argument
             d. Check the material benefit rule
    2. Gift approach
             a. Donative Intent
             b. Delivery
                        i. No actual delivery b/c he is still wearing the watch.
                       ii. Symbolic delivery – a picture of the watch
                       iii. Constructive delivery – gives you access to the watch
                                1. Example: a key to a lock box
                                2. If there was one more key to the lock box that you kept, then the Court
                                   might rule that you really didn’t intend to make the gift since you kept
                                   access to it for your own use.
                       iv. Cannot use symbolic or constructive delivery when actual delivery is possible.
                                1. Actual case – dying man gives keys to his house and tells daughter to
                                   take all the furniture and everything in the house.
                                2. The Court says that yes, as to the furniture, but NO as to the box in the
                                   drawer with cash in it b/c it was possible for the man to have the box
                                   brought to him and then hand it to her. So, she got the furniture but not
                                   the case.
                                3. Third person delivery is an option.
                                         a. But, the third person must be an agent of the donee;
                                         b. otherwise the donor still keeps control over the chattel.
                                         c.   To whom does the third person owe a duty of loyalty?



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
                                4. Delivery is the best way to show intent. Failing to deliver the gift negates
                                   donative intent.
             c.   Acceptance
    3. Analysis
             a. There is no language of promise in the document.
             b. This is more like a memorandum purporting to memorialize a transaction that never took
                place.

Hypo Causa Mortis p. 70 in E&E.
Did he die from the thing he feared? No, he died from the after care.
Causi Mortis : if the gift was conditioned upon some imminent fear of death, the gift is not valid unless
that which the donor feared actually caused the death.
The courts go to great lengths to find that the donor did not die from what he feared.

Stone v. French, (1887) p. 291 Delivery of a Gift
Delivery almost always required for gifts; donor must lose right of control.
Stone v. French- Brother wanted to convey land to his brother upon his death, unless he happened to sell
it before then. He signed a deed over to the brother, but never delivered it. It was found upon his death.
The court said the donative intent must be present intentions of conveying the property. It cannot be
future intentions to convey the property. The recording of conveying the property doesn’t suffice as
present donative intent because it was never to be delivered unless he died without first selling the
property.
                                  JOHN STONE v. LUTHER C. FRENCH, et al.

                                           [NO NUMBER IN ORIGINAL]

                                         SUPREME COURT OF KANSAS

                                  37 Kan. 145; 14 P. 530; 1887 Kan. LEXIS 171



                                                 July, 1887, Decided

PRIOR HISTORY: Error from Neosho District Court.

ACTION brought by Luther C. French against John Stone and others, for the partition of certain land.
Judgment for the plaintiff, at the April Term, 1885. The defendant Stone brings the case here. The opinion
states the material facts.

DISPOSITION: Judgment affirmed.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Defendant grantee sought review of an order from the Neosho
District Court (Kansas), which granted plaintiff heir's partition action.



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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

OVERVIEW: A landowner prepared a deed that stated if he still owned a specific parcel of land
at the time of his death, he was granting the land to his brother. The deed was placed in an
envelope with the words signed, sealed, and delivered written on it, but the deed was never
delivered and the brother never knew of its existence. The landowner was found unconscious
and the deed was discovered shortly before his death. The brother was contacted about the
deed and recorded it after the landowner's death. The brother then conveyed the land to the
grantee. The heir, another brother of the landowner, filed a partition action and alleged that the
landowner's deed to the brother was void and that the grantee only owned the portion of the
land that the brother received as an heir of the landowner. The trial court agreed, partitioned
the land, and awarded the grantee one-seventh of the land. The grantee sought review. The
court found that the deed to the brother was never effectively delivered, that title to the entire
land never passed to the brother, and that the brother conveyed only his one-seventh interest
to the grantee.


OUTCOME: The court affirmed the trial court's order.




In Re Totten, (1904) p. 295 (Totten Trust)
Opening a joint bank account and making deposits into that account, standing alone, doesn’t
constitute a donative intent of giving that other person the money because there is no evidence of
an intention to part ownership or possession w/ the money. All it constitutes is that either person
has the right to withdraw the money. In order to establish that there was intent to part ownership,
there must be evidence that the donor intended to divest possession of the money that is
inconsistent w/ any other intention or purpose.
However, if in that case, while the donor is still alive, the account does not create an irrevocable
trust because the donor still has control over the money to be able to withdraw if she wants,
unless there has been delivery. But upon death, absent evidence of revocation or disaffirmance,
the presumption is that an absolute trust is established as to the balance on the account upon
donor’s death.
Fanny transferred money from her right pocket into her left pocket in trust for Emile. Meaning that I as
trustee have title to the funds. Legal title is in trustee, equitable title is in the beneficiary. Meaning that if
the trustee does something to violate the agreement, the beneficiary can seek equitable relief. Also
criminal penalties. Similar to equitable conversion. Attorneys don’t like to be trustees because they are
held to a higher standard because of their special knowledge of the law.
Her claim of ownership was as trustee which still gave her control over the funds.
  In the Matter of the Accounting of William H. B. Totten, as Administrator of the Estate of Fanny Amelia
 Lattan, Otherwise Known as Frances A. Lattan, Deceased. William H. B. Totten, as Administrator, et al.,
                                 Appellants; Emile R. Lattan, Respondent

                                           [NO NUMBER IN ORIGINAL]

                                           Court of Appeals of New York

                                 June 1, 1904, Argued August 5, 1904, Decided

PRIOR HISTORY:


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department,
entered December 30, 1903, which reversed a decree of the Kings County Surrogate's Court rejecting
certain claims of the respondent herein against the estate of Fanny Amelia Lattan, deceased.

Matter of Totten, 89 App. Div. 368, reversed.

DISPOSITION: Order reversed, etc.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Appellants sought review of an order of the Appellate Division of
the Supreme Court in the Second Judicial Department (New York) that reversed an order for
appellants on respondent's claims against a decedent's estate for the proceeds of an alleged
trust.


OVERVIEW: The decedent opened a number of bank accounts in her name in trust for others,
including one in trust for respondent, her nephew. The account in respondent's name was
changed to the decedent's name alone, then emptied and closed by the decedent. No one
except the decedent and bank officials appeared to know of its existence until after her death.
Respondent brought a claim for the account proceeds that was dismissed by the trial court.
The appellate court reversed. On appeal, the court held that the deposit by the decedent of her
own money in her own name as trustee, standing alone, did not establish an irrevocable trust
during her lifetime. Instead, the trust was tentative and revocable at will during her lifetime
unless it was completed by some unequivocal act. The decedent revoked the trust before her
death. The appellate court judgment was reversed, and the trial court's decision dismissing
respondent's claim was affirmed.


OUTCOME: The court reversed the judgment that overturned the order for appellants in the
claim against the decedent's estate for proceeds of an alleged trust where the decedent's
deposit of funds in an account in her name as trustee for respondent, standing alone, did not
establish an irrevocable trust, and the decedent revoked the trust before her death.




In Re Totten- Totten opened numerous bank accounts as trustee for Emile & others. Totten died
intestate w/ outstanding accounts. Opening a joint bank account and making deposits into that account,
standing alone, doesn’t constitute a donative intent of giving that other person the money because there
is no evidence of an intention to part ownership or possession w/ the money. All it constitutes is that
either person has the right to withdraw the money. In order to establish that there was intent to part
ownership, there must be evidence that the donor intended to divest possession of the money that is
inconsistent w/ any other intention or purpose. A way to establish this is by creating a trust account,
where the depositor is the trustee of the donee. However, if in that case, while the donor is still alive, the
account does not create an irrevocable trust because the donor still has control over the money to be able
to withdraw if she wants, unless there has been delivery. But upon death, absent evidence of revocation
or disaffirmance, the presumption is that an absolute trust is established as to the balance on the account
upon donor’s death.




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:
Berl v. Rosenberg, (1959) p. 301 (Gifts Causa Mortis)
Berl v. Rosenberg- Melville wrote letter to his stock brokers to make a joint tenancy w/ Clemens, but
committed suicide before the brokers were able to do it. The court held a joint tenancy was created,
giving Clemens complete possession of the property upon Melville’s death as a gift causi mortis. As long
as the elements to constitute a gift are present (present intention to part ownership, delivery &
acceptance), a gift causi mortis is established and becomes irrevocable upon the donor’s death, even if
the impending death is suicide.
Π brought action to clarify title; similar to a quiet title action. Heir at law = someone who dies intestate.
Did he have testamentary capacity to make a will since he was planning suicide. So, the executor and
the heir will argue about the joint tenancy over whether the gift was valid. Take away the suicide and
have Rosenberg call the broker and tell him he changed his mind. Probably couldn’t do anything
because the broker already acted. So, the Court said delivery.
SUBSEQUENT HISTORY:

Appellants' Petition for a Hearing by the Supreme Court was Denied May 20, 1959. Peters, J., did not
Participate Therein.

PRIOR HISTORY:

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Milton D.
Sapiro, Judge.

Action in interpleader involving right to proceeds from a sale of securities.

DISPOSITION: Affirmed. Judgment that one defendant was entitled to the money, affirmed.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Appellant executor challenged the decision of the Superior Court
of the City and County of San Francisco (California), which found in favor of respondent
beneficiary and found that she was entitled to the decedent's securities as a surviving joint
tenant.


OVERVIEW: Plaintiff security brokers held an account for decedent's securities. The decedent
then committed suicide. Plaintiffs' filed an interpleader action for distribution of the proceeds.
The trial court found that before his death the decedent sent a letter to the security brokers
stating that he "wished" to hold his securities in joint tenancy with the beneficiary. The brokers
then sent the necessary forms to the decedent; however he died without filling them out. The
trial court concluded that respondent beneficiary was entitled to the funds as a surviving joint
tenant. On review, the court found that in order for the decedent to have created a valid gift to
the beneficiary it was vital that there be surrender and delivery of the gift. The court further
found that the intent to make a gift was demonstrated. Furthermore, the court found that there
was also delivery of the gift, which was made by decedent stating his desires to the brokers
who were in possession of the securities. Therefore, there was a valid joint tenancy in the
securities, and the trial court's decision was affirmed.


OUTCOME: Trial court's decision was affirmed. Respondent beneficiary was entitled to
decedent's securities as a surviving joint tenant because the decedent made a valid gift by
sending a letter to his securities brokers stating his desire to create a joint tenancy with the


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

beneficiary.




In Re Marriage of Pashley, (1974) p. 307 (Marital Estates)
In Re Pashley- Husband executed a power of attorney giving his wife title to everything under the
condition that she would pay off his car loan from his last paychecks & the sale of the house. The court
found that this was not present intention of conveying a gift, instead it was the future intention that if wife
did these acts, he would not insist upon his share of the property/proceeds. The power of attorney he
created did give his wife the power to transfer everything to her name as long as she complied w/ the
conditions, however, until she complied, the power of attorney he was giving was revocable since it was a
gift of power of attorney in the future and he did revoke before she complied and is entitled to half of the
property. What effect did the power of attorney have? Was the power of attorney or the quitclaim deed
enough to transfer the property? The quitclaim deed was under duress. And the power of attorney was
revoked.
Quitclaim deed – I don’t know what I own and I don’t warrant anything, but if I do own something, it’s
yours.
  In re the Marriage of JACK and SARA GERTRUDE PASHLEY. JACK PASHLEY, Appellant, v. SARA
                                 GERTRUDE PASHLEY, Respondent

                                                   Civ. No. 42828

                     Court of Appeal of California, Second Appellate District, Division Two

                     40 Cal. App. 3d 1079; 115 Cal. Rptr. 537; 1974 Cal. App. LEXIS 934

                                                   August 2, 1974

PRIOR HISTORY:

Superior Court of Los Angeles County, No. D 808 251, Harry L. Hupp, Judge.

DISPOSITION: That portion of the judgment appealed from is reversed, and the cause is remanded to
the trial court for further proceedings consistent with this opinion.

                                                 CASE SUMMARY


PROCEDURAL POSTURE: Appellant husband sought review of interlocutory judgment in
dissolution proceeding, entered in the Superior Court, Los Angeles County (California), which
determined that the family residence, furniture, and furnishings were the separate property of
respondent wife. Appellant contended that a power of attorney was for the purpose of sale of
the effects, not for ownership.


OVERVIEW: Appellant husband challenged interlocutory judgment in dissolution proceeding,
which determined that the family home and furnishings were the separate property of
respondent wife. The parties were married in 1946. In 1972, appellant moved out and alleged
that he was no longer able to tolerate respondent's arguments and threats of violence.


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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 4:          How Claim Can Be Transferred to Another
Subtopic:

Appellant intended to start a new life in a new place and sent respondent a power of attorney,
conferring to respondent complete ownership of all properties. Appellant provided that the
remaining debt on the car would be covered by his final pay checks. Respondent paid off the
car loan and entered into escrow on the house, but there was no closing, as appellant revoked
the power of attorney. Respondent followed him to Pennsylvania and shot him. Subsequently,
she demanded a quitclaim deed for the house. On review, the court held that the record did not
support the construction that appellant's power of attorney was a completed and present gift by
appellant to respondent. The court found the only operative effect of the power of attorney was
to permit respondent to effectuate the sale of the house, which appellant revoked.


OUTCOME: The court reversed, finding that there was no evidence to support the construction
that appellant husband's power of attorney was a completed and present gift by appellant to
respondent wife. The court found that the power of attorney was, at best, a gift for future
proceeds. The only operative effect of the power of attorney was to permit respondent to
effectuate the sale of the house, which appellant revoked.




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Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic a:       Adverse Possession

5) How Claim Can Be Lost

a. Adverse Possession
       V. A defense to a claim of title that provides the possessor of the land title if they possessed the
       land for a period longer than the statute of limitations for the claim. Product of experience, not
       reason. (Holmes on the common law). So, if you let someone squat on your land for 5 years in
       California, then either there was a prior grant to that person which was lost; or you abandoned
       your property.
       W. Affirmative defense, ∆ has the burden of proof of the elements.
       X. Policy: Allows for economic and judicial efficiency, makes for productive use of the property, a
       way to keep “cleansing the record”: as long as you can show a chain of title and relative stasis for
       the last 20 years, than you’re safe.
       Y. Elements: 1) Actual entry giving exclusive possession; 2) open and notorious
       possession; 3) Adverse and hostile under a claim of right; 4) Continuous for the statutory
       period
                 1. The proof may vary from state to state, however, a ¶ can usually win a claim based on
                 adverse possession 1) if the statute of limitations has not run (duh!), 2) if the entry
                 doesn’t give exclusive possession (i.e. Vanvalkenburgh, where the ∆ did not use enough
                 of the land, 3) if the use of the land was not open and notorious, or as a statute may
                 require (improved upon, cultivated, etc.), 4) if the ∆ did not occupy the land under a claim
                 of right, but rather intended to leave the land should the owner show up, or 5) the owner
                 did not use the land continuously or in a manner that an average true owner would use it
                 under the circumstances.
                 2. Policy for Open and Notorious: To give notice to the true owner and therefore
                 punish laziness and negligence.
                 3. Hostility: Three different ways of determining hostility: 1)state of mind is irrelevant
                 (maj. rule) objective standard, 2) the required state of mind is “I thought I owned it”
                 good-faith standard, 3)the required state of mind is “I thought I did not own it and
                 intended to take it” aggressive trespass standard.
                           a. Majority View: Objective standard (but mention all 3 points of view)
       Z. SOL only begins to toll when all of the elements of adverse possession have been satisfied.
       AA. Color of Title: A claim founded on a written instrument or a judgment or decree that is for
       some reason defective and invalid.
                 1. Here you can get title to the entirety of a piece of property that is included within the
                 description of the deed so long as you occupy some of the land…no requirement of open
                 and notorious possession for the entirety of the tract.
                 2. Results in Constructive Adverse Possession
       BB. Equitable Remedies: Usually only used when you can prove an innocent trespass. In
       equity it is determined who would endure the hardship: If owner would not endure a hardship,
       they may make the encroacher pay for that portion of the land.
                 1. The owner would give the encroacher an easement, allowing the structure to be there
                 until it was taken down.
       CC. Award: The adverse possessor gets the estate at the time of entrance.
                 1. Subsequent dispersal of title through wills, etc. doesn’t effect the adverse possessor’s
                 estate
       DD. Once you have title by adverse possession and you relinquish dominion and control back to
       the old owner, have you relinquished title? No. The intent was to occupy the land. You cannot
       orally transfer title, therefore unless the new possessor gains adverse possession himself, then
       title remains in the person who originally obtained it adversely.
       EE. Privity: Contact, connection or mutual interest between parties, usually evidenced by a
       transfer of title, or deed, or color of title and showing a proximity between the parties.
       FF. Tacking: The accumulation of consecutive periods of possession by parties in privity with
       each other (or not, depending upon the jurisdiction).


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004          Page 78 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic a:       Adverse Possession
                  1. Where there is no privity and no “reasonable connection” between the original title
                  holder and subsequent possessors, time cannot be tacked.
         GG. Difficulty with applying adverse possession to personal property: It is hard to possess
         personal property in an “open and notorious” manner because the property is readily moved and
         easily concealed, as opposed to real property which is fixed and cannot be moved or concealed
         and therefore the owner of the property knows or should know where his property is located.
         HH. Discovery Rule: O’Keefe v Snyder court replaces the defense of adverse possession of
         personal property with the discovery rule, and states that a cause of action will not accrue until
         the injured party discovers, or by exercise of reasonable diligence and intelligence should have
         discovered, facts which form the basis of a cause of action. The court includes the identity of the
         possessor of the paintings in this definition.
                  1. This shifts the focus and the burden of proof onto the original owner to prove that they
                  acted with “due diligence”
                  2. The issue of tacking will be taken into account when determining ¶’s diligence.
                  3. MINORITY RULE: majority rule is still CL and focuses on what the adverse possessor
                  did with the property (displayed it in a museum or his house)


Belotti v. Bickhardt, (1920) p. 309
Δ built upon land that belonged to π and lived upon there. Court found that Δ now owned the part of land
that he built upon through adverse possession. Adverse possession is an affirmative defense which
would give a person title to property that technically should belong to another person. If all of the
elements of adverse possession are present at all times for the time period which the jurisdiction sets (the
statute of limitations), then there is adverse possession and the π/true property owner cannot assert a
claim of possession after that time. The elements of adverse possession are hostility/adverse (must hold
adversely to the true owner, w/o his consent), under a claim of right or color of title (the acts are those
which others would see as claims of ownership of the property), actual possession (must physically have
entered the property), open & notorious possession (acts must be visible to the true owner so as to give
them notice that you are claiming dominion and the acts are typically those which a true owner of the
property would exercise), continuous possession (possession continues uninterrupted throughout the
statutory period, must exercise the degree of occupancy that the average owner would), and exclusive
possession (not sharing possession w/ the owner or the public generally). Once all elements are present,
the statute of limitations begins to run against the π/true owner to bring a suit to take back the property.
In satisfying the element of continuous possession, if the current adverse possessor’s possession period
is not enough, he can tack on the time of past adverse possessor’s as long as there is privity of estate &
the change of possession was successive.



Ewing v. Burnet, (1837) p. 317
Δ was claiming, under adverse possession, a lot that’s primary purpose was for digging sand & gravel. Δ
never lived on the lot or was present upon it at all times, but the court held that as long as the acts are
those which a true owner would do (true owner wouldn’t live on this lot & would only use it for digging
gravel & sand), and all of the other elements of adverse possession are present, that is enough to
constitute adverse possession. The exclusivity requirement is still satisfied if the adverse possessor
grants others to come onto the property, as long as he is excluding those that are not given permission,
which can be evidenced by actions for trespass.

Mendonca v. Cities Service Oil Co., (1968) p. 323
Interruption in period of possession re-starts the clock for SOL in AP claims.
- Parties own adjacent lands & πs had built upon a part of Δ’s land. They had exclusive possession of the
disputed tract of land, but for 3-4 weeks the Δ used the disputed strip. The court held that when the Δ
used the strip as a true owner would, he broke the continuous requirement and so the statute of
limitations stopped running and had to start anew after the Δ left. The idea is that when the true owner

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 79 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic a:       Adverse Possession
uses the land, there is a presumption that he is asserting his ownership over the land which breaks the
requirement that the adverse possessor must have exclusive and continuous possession. Tearing down
the fence broke the exclusive and continuous elements of AP.

West v. Tilley, (1970), p. 327
Possession and maintenance of adversley possessed land is sufficient to constitute open and
notorious possession. If mere inspection of one’s property line will reveal adverse possession by
another, then such adverse possession is open and notorious for purposes of AP, regardless of
visibility from casual observance.
- Δ was adversely possessing π’s land, but he was claiming it under a mistake that he thought the land
truly belonged to him. The court held that adversely possessing by mistake will still satisfy the hostile and
under a claim of right requirements because the act of entering the property is hostile because it is w/o
the true owner’s consent; and acting as if it were your property satisfies the claim of right requirement
because you’re acting as a true owner would act, even though you are acting under the belief that you are
the true owner.

O’Keeffe v. Snyder, (1980), p. 331
- When the adverse possession deals w/ stolen chattel, a majority of the courts hold that the statute of
limitations does not begin to run against the true owner until the owner discovers the stolen chattel, or
should have discovered it w/ the exercise of due diligence. It is the conduct of the true owner, not the
adverse possessor, that controls when the statute of limitations will begin to run. As long as the true
owner exercises due diligence in finding the chattel, the statute of limitations will be tolled until discovery.
Facts: Georgia O'Keeffe is the painter who painted several paintings that she claims were stolen from her
studio in 1946. She did not advertise that they were missing until 1972 when she registered them as
stolen with an Art Dealers Association. Snyder bought the paintings in question in 1975 from a dealer who
claims that they were in his family since perhaps as early as 1941-1943 (before the claimed theft).
O'Keeffe discovered the paintings in Snyder's gallery in 1976 and instituted an action of replevin to
recover them. Snyder claims both that the statute of limitations for replevin of chattels had run, and that
he had held the paintings in adverse possession, through tacking with the dealer's family, for over 30
years. Trial court issued summary judgment for Snyder, holding that the statute of limitations had
commenced running on the date of the original theft. Appellate court reversed and entered judgment for
O'Keeffe holding that Snyder had not proven the elements of adverse possession.
Issue: Who has best title to the paintings?
Holding: 1. Unlike in real estate adverse possessions, in cases involving personal chattels, a cause of
action will not accrue, and thus the statute of limitations will not begin to run, until the injured party
discovers, or by reasonable diligence should have discovered, facts which form the basis of the action.
(Discovery Rule).
Dicta: 2. The expiration of the statute of limitations bars the remedy to recover, and also vests good title
in the possessor. 3. In establishing adverse possession of personal chattels, tacking of periods of
possession between parties in privity with each other is permitted in the same way as with real estate.
Reasoning:
1. The literal language of the statute of limitations results in harsh holdings when the property in question
is one which is easily concealed, or its display is not visible broadly enough to put the owner on sufficient
notice of the identity of the possessor (analogy to jewelry worn). It would encourage larceny to hold that
the strict letter of the statute would prevent the owner from recovering an item of which he never knew the
identity of the possessor.
2. Before the statute runs out, the possessor has a voidable title against all others but the true owner. To
leave the title in the original owner after adverse possession would not put issues to rest that were
deserving of resolution because of their age and action of the owner.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004             Page 80 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic a:       Adverse Possession
3. Not to permit tacking would enable the original owner to have rights much longer than the statute of
limitations, and put a subsequent buyer in a worse position than the person who took it wrongfully in the
first place.
Class
Chattels move around. Real Estate doesn’t, so you can just inspect your land to see if someone is
adversley possessing your land. Π action for replevin.  bases defense on running of SOL. Issue is
when does the SOL begin to run? At time of theft or at time that you knew or should have known
(discovered) the whereabouts of the stolen chattel. Burden of proof shifts to the owner to show that they
have made reasonable efforts to reclaim their property. New York rule: SOL does not begin to run until
real owner has made a demand for return of the chattel and the demand is refused by the possessor. Is
selection of jurisdiction a procedural or substantive question?




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004        Page 81 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic b:       Abandonment

b. Abandonment

Edgar H Wood Associates Inc. v. Skene (1964) page 359
Filing building plans with city permit office is not abandonment of intellectual rights (copyright).
Plaintiff was employed to draft plans. Plaintiff retained all property rights to the plans. Plaintiff filed the
plans with the city for purposes of obtaining a permit. Defendant supervisor was employed to supervise
construction. As the result of a conspiracy, defendant supervisor left employer and entered the employ of
defendant owner. Plaintiff's plans were copied and used to construct other buildings. Plaintiff filed a
common law copyright action against defendants. Trial court dismissed for failure to state a cause of
action. On appeal, court reversed holding the public filing of the plans was only a limited publication of
them, and there was no objective intention to make a general publication; the construction of the building
from the plans did not constitute a publication. Thus, plaintiff's substitute bill of complaint did state a
cause of action in equity, and plaintiff's motion for leave to file the substitute bill was granted.
What actions constitute abandonment? Just because he went to apply for the permit, does not mean that
he abandoned it?


Keep abandonment and adverse possession separate. This case is about abandonment.


You can’t change your mind about abandonment when another has already established a claim of
ownership over it.
I could possess something without owning it… so if you take it, you interfere with my possessory interest.
The sea shell example. If they took it from you, then you interfere with his possessory interest… not
ownership interest.


Understand that possession is DIFFERENT from ownership. Usually, for ownership, you need to do
something more.
Once a claim of ownership attaches, then you don’t really need to establish possession again.
It can remain yours even if it is out of your possession… sophisticated idea… you have to do something
to give it up.


What did wood intend when he submitted his plans to the city? For others to benefit? Just to get his
license, probably…. Not for others to use.


One area where you can lose your ownership, without your consent… emminent domain.




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004            Page 82 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic c:       Eminent Domain

c. Eminent Domain

United State v. Causby (1946) page 369
The Court of Claims granted respondent landowners a judgment for the value of property destroyed and
damage to their property resulting from the taking of an easement over their property by low-flying United
States military aircraft. The Supreme Court agreed with the finding that there had been a "taking" of
respondents' property within the meaning of the U.S. Const. amend. V. The court held that a physical
invasion of the property was not necessary where there was an intrusion so immediate and direct as to
subtract from respondents' full enjoyment and use of the property. Further, the damages were not merely
consequential --they were the product of a direct invasion of respondents' domain. The Supreme Court
reversed and remanded the action, however, on the basis that the record was not clear whether the
easement taken was temporary or permanent. The court remanded the cause for a determination of the
necessary findings regarding the nature of the easement. Political systems are unprincipled and that is
why emminent domain is the exception to the rule that you can’t lose ownership rights without your
consent. If government institutes the action it is condemnation. But since this is the farmer instituting
action is called inverse condemnation. The farmer wants payment for the easement that the
government has taken. It is not a taking because it is not a single taking of his land, but rather a
continuing ongoing use of his property. Example: The Post Office decides it’s quicker to just drive across
your lawn every day. They have not condemned your land for a taking in emminent domain. But they are
creating an easement through inverse condemnation. Government argues that you don’t control the
airspace above your property and therefore this was not a taking and no remedy is justified. But, the
Court rules that the extent of your air rights is determined by the extent of your decision making rights on
the ground. So, if you own a small farm you would have less air rights than if you were owner of a 80
story building. If you owned an observatory, you might lay claim to the air space all the way to Mars.
Eminent domain is usually thought of as the government taking someone else’s land. Here, it wasn’t the
government, it was Causby that was asserting the Eminent domain claim.
Inverse condemnation claim here. You have not taken my property through eminent domain, but you
have taken it in fact. You have taken my air space… you should have taken an action to condemn my
property, you failed to do so. Now I have to sue you.
The taking action must be permanent in nature to show the impact on the family.
Your property includes a certain amount of space above your property. Common law, was as high as the
atmosphere went….
Is that a valid claim of ownership? No, the court shoots this down because it doesn’t affect the land
itself…


So why shouldn’t we be able to lay claim of ownership of the airspace? Control… how do we control the
space above our land? We can’t! we can’t control outer space.


The extent of your air rights is determined by the extent of your decision making on the surface. For
example, if you were operating an observatory, you’d have to lay claim over the air above you.
For the case at hand, if you are within the range that interferes with the use of the land, then there is a
trespass.
25,000 feet up, there is not really control.
In fact, if you want to start creating an observatory, then you might even have to ask the airlines and such
for permission to restrict that airspace now…




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004           Page 83 of 124
Part II:          The Elements Of Ownership
Section B:        Claim To Ownership
Topic 5:          How Claim Can Be Lost
Subtopic c:       Eminent Domain
February 18, 2004 (Missed Class; Notes from Nhu, Nancy, & Eunice)

In re Forsstrom (1934) page 381
The city sought to condemn property necessary to construct an underpass for a railroad. The construction
would only have made ingress and egress to the property owners' land more difficult. Ariz. Const. art. II, §
17 prohibited the taking or damaging of property absent compensation. The court held that the trial court
had jurisdiction to proceed with the action. Because Ariz. Rev. Stat. § 1329 et seq. (1929) contained no
method for calculating compensation for "damaged" property, the city had no authority to acquire the
property via compensation for damage to it. The court held that a "taking" of property consisted of any
substantial interference with rights of a physical object that impaired its value. Taking of the land itself
was not necessary. The changing of a street grade that impaired ingress and egress was a taking, Ariz.
Rev. Stat. § 408, subd. 17 (1928). Alteration of the grade often did not mandate compensation because
the compensation made at the time of original taking included compensation for any later changes in the
grade. Under Ariz. Rev. Stat. § 1333, "fee simple" referred to the legal right acquired by the state, not the
property interest taken.
Nancy:
Writ of prohibition v. an injunction. Injunction is to stop someone from doing something.
Writ of prohibition: act to a governmental entity preventing them from doing what they are supposed to do.


The government hasn’t entered the property in anyway… there is a taking though. The government
hasn’t filed any eminent domain proceedings though.
Forsstrom argues that you have taken a property interest because you have done what? They took
Forstrom’s right of ingress and egress.


Can any change of the easement be within the scope of the easement? To make such alterations to
allow the owner of the easement to continue to make use of the easement as originally granted?
What if you pave, not gravel?
Put lights in?
Is there there a point at which the extensive change of the grade of the easement constitute a “TAKING”
of the easement?
Is it a function of degree?
Or is there court telling us here that it all depends on the state statute and therefore, there is a
constitutional basis for the taking?


Suppose there is no statute.
Any time there is any permanent invasion of the fee by the state, there is a TAKING! (like when
they accidently build on your land, there is nothing they can do to give it back, they have to pay
you.)
Nhu
  Property interest may include access, not just property boundary. Does battery constitute physical interest .
  TAKE AWAY: ANYTIME THERE IS A PERMANENT INVASION OF THE FEE BY THE SATE, THERE IS A TAKING—
   GOVT BUILDING A DAM, A LAKC, BUYING SUORROUNDING PROPERTIES ANE TAKE EXTENDING TO YORU
   PROPERTY, THIS TAKING WOULD REQUIRE COMPENSATION. IF TEMPORARY INVASION, THEN THAT IS A
   TRESPASS CLAIM.


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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004               Page 84 of 124
Part II:           The Elements Of Ownership
Section B:         Claim To Ownership
Topic 5:           How Claim Can Be Lost
Subtopic c:        Eminent Domain
Courtesy Sandwich Shop v. Port of New York (1963) page 395
Respondent landowners brought a declaratory judgment action seeking a declaration that the statute
allowing condemnation for development of the World Trade Center was unconstitutional. Subsequently,
appellant port authority brought a condemnation proceeding. The lower court denied respondents' motion
for temporary injunction, but the appellate court reversed. The appellate court also reversed the lower
court's decision granting the petition for condemnation and order of possession and dismissed the
condemnation proceeding. The court reversed, finding that improvement of the port by facilitating the flow
of commerce and centralizing all activity incident thereto was a public purpose supporting the
condemnation of property for any activity functionally related to that purpose. Further, the public purpose
of the development as a whole was not vitiated by allowing portions of structures otherwise devoted to
project purposes to be used for the production of incidental revenue for the expenses of all or part of the
port development project. Finally, the condemnation procedures prescribed by statute fully protected
respondents against any taking for nonpublic purposes.
Nancy:
The issue is whether it has to be for governmental use or just public purposes…
YES.. whatever public purpose means.
It can be for condemning property
It can be for developing land
Biggest scandal was the urban renewal project.


It all depends on what the government is willing to pay!!!


Nhu:
  What if the government only wants to take part of your land?
  Well it depends if there is still some part of the land that is “economically viseable” part of the land that you can use to
   make money or do what you need to do. If there is still a good amount left for you to use then there is no taking!????




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004                             Page 85 of 124
Part III:         Possesson and Ownership
Section C:        Control
Topic 1:          The Importance of Control by Owner
Subtopic :

PART III: POSSESSION AND OWNERSHIP

C. CONTROL

1) The importance of control by owner




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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004   Page 86 of 124
Part III:          The Elements Of Ownership
Section C:         Control
Topic 2:           Possession Without Ownership
Subtopic a:        Possession and Rights to Lost Chattel



2) Possession without Ownership

a. Possession and Rights to Lost Chattel

Hannah v. Peel (1945) page 407 Protecting Locus Owners
1) Soldier quartered in a house in which the owner never lived found a brooch, and the homeowner
   claimed possession of the brooch. Peel owns the property; Hannah sues claiming that he found the
   brooch
2) Expectations of whether a homeowner owns what’s on his or her property differ. Here, the court held
   that while the soldier had no rights against the original owner, and the homeowner normally owned
   everything on her land, here the homeowner hadn’t really established possession of the land and so
   the brooch should remain with the soldier.
3) How is the issue formulated? Possession of the brooch How could the issue have been formulated?
   What result might promote honesty and return to the true owner? Expectations of owner should be
   considered. When I buy a house, I expect to be able to have that house and everything on it. Also
   should consider expectations of owner of real estate.
Nancy:
What happens when there is a chattel found on the property that belongs to neither the owner or the
finder?
If the true owner shows up, then of course the owner gets it. However, this is not the problem in this
case… of the finder and the home owner, who has the better claim?


What if he had found the broach by digging up the floor boards?
Nhu:
  RULE: The true owner ever shows up and can prove his ownership; he has absolute right of claim. But as to between two
   individuals who are not true owners, who ahs a better claim?
  Who has better claim when a chattel is found by one person the land of another person, and the chattel belongs to neither
   party?
  Does  have any claim by virtue of fact that his is the owner of property? He might…. Well let’s say that  digs up floor
   boards of living and finds the brooch down there? Same result? If not, then why? Make the argument. If it were attached to
   the house, would the owner in possession of chattel based on CONSTRUCTIVE POSSESSION which is different from what
   we have here because the brooch was not attached to any of the REAL ESTATE HERE. Had it been incorporated to any of
   the real estate then there may be an argument but here it was on the window sill.
  RULE: It is fairly clear from the authorities that a man
  GET RULE FROM PAGE 415

1. Hannah v. Peel
      a. Peel: owner of the house, never lived there. The D is not setting up a claim that it was his
         broach all along. It’s a common problem – what happens if a chattel (not belonging to either)
         is found on another person’s land?
      b. Hannah: stationed at D’s house; soldier quartered in the house. He found a brooch – it was
         valuable.
      c. If I find something valuable on your land, but it doesn’t belong to you/the owner of the land,
         who has the better claim? If the true owner shows up and can ID it, then it goes to the true
         owner. That’s not the issue. But, as between two non owners, who has the better claim?
      d. Essentially, the P won.
      e. Does the P have any ownership because he was the title owner of the land? If D finds it
         because he dug up the floorboards, would it be the same result. IF not, then why not?
         Supposed he finds the brooch and someone nailed it to one of the support beams to the
         house? And, it wasn’t the owner of the house who did it. Who would have a better claim? Is

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004                       Page 87 of 124
Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic a:       Possession and Rights to Lost Chattel
             it because the brooch is attached to the house? Is it part of the property? Maybe you can
             say that the owner is in possession, or constructive possession. It was incorporated into the
             house itself. This is different because the brooch was not incorporated into the real estate.
         f. Page 415: black letter law: The general principle is that the first finder of a thing has a good
             title to it against all but the true owner, even though the thing is found on the property of
             another person.
         g. Finder of chattel usually has possession EXCEPT
                    i. Landowner actually possess the chattel as well
                   ii. Servant/agent of another, then belongs to the employer
                  iii. No title if possession came via trespass
                  iv. Landowner owns everything attached to or under his land
What is the nature of the relationship NOT between the finder and the chattel, but rather my relationship
with the true owner regarding the chattel. The finder has a superior interest in the chattel by virtue of
possession; superseded only by the true owner or his/her agent. None of the cases deal with the relative
strength of the claims between the finder and the owner of the land where the chattel is found.
So, who has the superior claim? The land owner where the chattel is found or the finder? There are a
couple of approaches. One is: How is it that the finder came to be on the land? Was he a burglar? If so,
his claim is inferior to the owner of the land. So, trespassers have no right to claim property they find
while trespassing.

HYPO (My chattel is on your land)
If my lawn mower is on your property, do I have a right of entry to reclaim my chattel? In some cases,
would it matter if the local customs allow neighbors to enter each other’s property to reclaim their own.
Such as an “open range” policy which says that I can go on your property to reclaim my cows if they
wander off. The rule of law is the custom. If my cattle get out and damage your property, then I am
liable. The cases are decided by public pressure and social pressure. Legally, you might not have to
pay, but in reality it doesn’t matter because you will conform to local custom. The only way you can set
up a superior claim to the finder is to show that you are the agent of the landowner.

NOTE: Lost vs. Mislaid
Rule of law depends on how the facts are reported. Lost items are found under circumstances that lead
you to believe that the true owner has inadvertantly parted with his possession. Such as finding
something on a public sidewalk. However, if you find something in a location where a true owner
probably put it there on purpose, then it’s mislaid. Medina v. McAvoy: wallet mislaid in a barbershop.
Who has the better claim, the finder or the barbershop owner. Because it was found on the floor it was
presumed a lost item. If it had been found on the shelf it would have been mislaid and presumably the
true owner would remember that and go back to the barbershop to retrieve it.
Rule: mislaid items superior right is in property owner; found items superior right is in finder.
 1.
a “Finders, Keepers”
Finders aren’t really keepers. They only hold the property in trust for the true owner. But, finders have
rights superior to those of everyone except the true owner or his / her agent. TRUE OWNER ALWAYS
WINS.

McAvoy v. Medina (1866) (Wallet Mislaid but NOT Lost)
Facts: π was a customer of a barber shop owned by ∆. π found a wallet with money in it laying on the
table of the ∆. ∆. retained the money in hopes of finding the true owner. π claimed that as finder, he
should be allowed possession, since the owner was not found.
Issue: Was the wallet "lost" under the general meaning in Bridges, allowing the finder to claim possession
against all but the true owner?



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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004            Page 88 of 124
Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic a:       Possession and Rights to Lost Chattel
Holding: When an item of property is deliberately placed by the owner on the premises of a shop owner
and then forgotten, it is not "lost" in the ordinary meaning of the word, it is mislaid, and the shop owner
retains possession against all but the true owner, even if the shop owner is not the finder.
Reasoning: The wallet was not dropped, and it did not appear to be "lost" by negligence, but rather it
appeared that the true owner had intended to pick it back up again but had forgotten. Placing the wallet
on the table would be an ordinary thing to do in a barber shop, and so the barbershop owner should keep
it until the customer that left it returned.

Armory v. Delamirie ((Eng. 1722), p417
Property Owner has superior rights to mislaid property; finders to lost property.
Facts: π found a jewel and took it to ∆'s goldsmith shop where ∆'s apprentice removed the jewel under
the pretense of weighing it, and informed ∆ of its weight. Then ∆ offered the π money for it, but the π
refused and insisted upon the return of the jewel, at which time the apprentice returned the empty setting
without the jewel in it to the π .
Issue: Does π , in finding the jewel, have sufficient property right in it to keep it from the ∆?
Holding: Yes. A finder obtains exclusive property rights of his find against all others except the rightful
owner.
Reasoning: Although unstated, I believe the reasoning to be that if the finder was not protected by the
right to exclude others from taking his find, simply because it was previously unowned, that there would
be no incentive to the discoverer to bring the found item to a socially useful purpose.
Note: The court awarded the π damages amounting to the value of the finest jewel that could possibly be
mounted in such an arrangement, because ∆ was unable to produce the actual jewel for return to the π .


1) A chimney sweep’s boy found a jewel, he took it to a goldsmith, whose apprentice stole it. Ruled that
   the chimney sweep’s boy had a right to keep it as against the goldsmith. Also, you presume the value
   of the stolen good was as high as possible.
        a. Thieves are protected against subsequent thieves - a finder has a right to possession as
            against everyone except the original owner.
        b. May as well protect thieves b/c we can’t distinguish b/t thieves and finders, and we want to
            stop the “chain of thievery.”
        c. Holding: Finder has property right against all but the rightful owner.
   2) Issues
        d. Consider property rights in terms of “X has rights with respect to...”
        e. Does it matter to the court how the jewel was obtained? Do we care? Does the court care?
            NO.
        f. First in time
        g. Possession
        h. Court could get into other spheres—which deserves the jewel. Why does the court protect the
            first in time?
        i. Why doesn’t the rule in Armory state that the first person that finds something has superior
            claim? Because the real rule is that the 1st owner has superior claim to all other finders
            except for the true owner
        j. Why protect first?
              i. Protects first finder from all claims
             ii. Rule makes sense—simple
            iii. Keeps something in circulation (making easier for true owner to find it)
        k. Finding v. stealing: rule of prior possession applies in support of honest claimants
        l. Measure of damages—either value at time of conversion versus value of plaintiff’s interest.
            How does the boy get more than he is entitled to? First, the money value may be more than
            what it’s actually worth. Second, the boy has the full value of the jewel (though he only has

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic a:       Possession and Rights to Lost Chattel
           somewhat real ownership). Then the burden is on the defendant, and the damages work as
           deterrent to the wrongdoer (the jeweler).
    3) Scenarios
        What if the true owner re-appears? Money paid to the boy; goldsmith retains jewel. Boy has
           $, true owner asks for $. What happens? True owner prevails and gets to take the money
           from the boy.
        Scenario: Boy vanishes with money. Now true owner goes after goldsmith. Does the
           goldsmith have to pay? What’s wrong with having the goldsmith pay twice? The real issue:
           who should bear the risk of chasing after the boy? SUBRUGATION: the goldsmith steps into
           the shoes of the true owner vis-à-vis the boy if he pays the boy AND pays the true (true)
           owner.
        Bailment (Bailee/Bailor): I give me car to the parking garage attendant. I am the bailor; he is
           the bailee. They have to use reasonable care with my stuff. I give my clothes the dry cleaner
           and they send them to the cleaning plant. The cleaning plant loses my clothes and then gives
           $100 to the dry cleaner for the loss. The dry cleaner closes. Should the cleaning plant pay me
           again? Two differences: 1. Dry cleaner stood in place of true owner; 2. Cleaning plant did not
           take the clothes. Involuntary bailee. When picking the dry cleaner, you choose the dry
           cleaner and you assume some risk (you share responsibility);
        Chimney sweep steals the jewel. Now what? Goldsmith buys from the thief. Should he have
           to pay the true owner? Yes. Because the goldsmith bears the risk when buys from a thief
           (alternately, we can also argue that we should protect good faith purchases). Either way, the
           goldsmith bears the risk.
    4) Issues to consider
        Who should bear the risk?
        What is the rule trying to accomplish? What are the underlying instrumental ends that the rule
           is made for?
        How did the court frame issues, what it has to do with result and how common law develops?
        How did court use precedent—how did they use the case? How should they have used the
           cases?
        What was the reasoning of the court?
        How should the case have been decided? How should the issue be framed? How should the
           precedent be used?


Zech v. Accola (1948) page 419
Finders of lost property or common law “treasure trove” have superior claims to all but the true
owner(s).
The members delivered to the weaver a box filled with carpet rag balls, which she intended to weave into
rugs. The weaver found $ 2,100 in bills concealed in the center of a ball. She turned the money over to
the members. The weaver filed sought the return of the money. The members counterclaimed on the
ground that the weaver had found the money and had failed to give the notice required by Wis. Stat. §§
170.07, 170.08, 170.11 and had forfeited her rights to it. All three statutes dealt with lost and found
property. The court concluded that there was a distinction between treasure-trove and lost property at the
time of the enactment of the statutes. Thus, it would have been natural to include treasure-trove
specifically if it were the legislative intent to affect the rights thereto. Treasure-trove was a name given by
the early common law to any gold or silver in coin, plate, or bullion found concealed in a private place. In
the absence of statute providing to the contrary, the title to treasure-trove belonged to the finder as
against the entire world except the true owner. The members conceded that the old common-law
definition had been enlarged to include the paper currency.
 Rationale: The committee says that the π’s finder’s claim is flawed b/c she did not follow the statute.
Even though she made a good faith effort, she violated the statute and therefore voided her claim and
that the committee had the next best claim due to their possession.



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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004            Page 90 of 124
Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic a:       Possession and Rights to Lost Chattel
Court Rationale: the statute deals with lost or mislaid property, but not treasure-trove. At CL, treasure
trove was gold, silver, jewelry, that people deliberately hid for safekeeping.
Mistake: If you are aware of the mistake, you cannot take advantage of the other person’s mistake. But,
if you are unaware of the mistake, then you are OK?




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic b:       Possession and Criminal Responsibility



b. Possession and Criminal Responsibility

Queen v. Ashwell (1885) page 423
As a legal term "possession" is ambiguous at least to this extent: there is no clear rule as to the nature of
the mental element required. All are agreed that there must be some mental element in possession but
there is no agreement as to what precisely it must be. Indeed the view which prevailed in Reg v. Ashwell
(1885) 16 QBD 190 and was approved in Rex v. Hudson [1943] KB 458 went so far that a person who
received a sovereign thinking it to be a shilling was held not to possess the sovereign until he discovered
the mistake."

State v. Cox (1919) page 453
Defendant, a hotel porter, was convicted for the unlawful possession of intoxicating liquors and was
sentenced to pay a fine and to be confined in the county jail for a period of 45 days. Defendant contended
that he had received the suitcase containing the intoxicating liquor from the railroad in the same manner
he received baggage belonging to incoming guests of the hotel and claimed that he had no property
interest in the suitcase or its contents, and claimed he had no knowledge of the content. The State
contended that defendant received the suitcase on his own account as his own property and not in his
capacity as a porter. The court reversed defendant's conviction and remanded the case for a new trial.
The court concluded that the circuit court erred in instructing the jury since defendant or any innocent
victim could have been convicted under such instructions by the mere act of lifting the suitcase containing
the intoxicating liquors. The court held that it was a question of fact for the jury to find from the evidence
whether defendant knew or had reasonable grounds to know that the suitcase contained intoxicating
liquor at the time when he took it into his possession.

State v. Schingen (1865) page 475 (The Beer Wagon Case)
Schingen makes off with a wagon load of beer he had been hired to deliver. Larceny is the felonious
taking fo the property of another with the intent of permanently depriving that person of the property.
Court does not see a distinction from Ashwell. The Court rules that there is no larceny until the time that
he decided to keep the beer. Prior to that, he was acting as an agent of his employer. Even a brief
detour with intent to keep followed by a return to the prescribed route and ultimate delivery as
agreed, there is still a crime. The crime occurs at the time the intent is formed to steal the goods.

Law review article- Distinctions Between Possession and Custody (1969) page 479


California Penal code page 483




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic c:       Bailments

c. Bailments


Peet v. the Roth Hotel Company (1934) page 487
Plaintiff brought an action seeking to recover against defendant for value of lost ring that belonged to
plaintiff. The trial court awarded judgment in favor of plaintiff for value of ring, and denied defendant's
alternative motion for judgment or for new trial. On appeal, court held that defendant, as bailee, was
under duty of exercising ordinary care. Further, court held that bailee had burden of proving that loss did
not result from his negligence. This burden was not merely the burden of going forward with proofs, nor
shifting the burden, but the burden of establishing before jury that his negligence did not cause loss.
Because the care required was that of the ordinary person in same or similar circumstances, it was
obvious that, whatever defendant's care of its own property may have been, it would not alter standard of
care applicable to plaintiff's own property in its hands as bailee.




George v. Bekins Van and Storage Company (1949) page 491
The owners' household furnishings and effects were destroyed by fire while in the possession of the
moving company. A judgment was entered in the owners' favor. On appeal, the moving company claimed
that the evidence did not support the findings. The court held (1) that the moving company had not
sustained its burden of proving that the goods were not lost because of negligence and the resulting
findings that the moving company breached its contract and was negligent in the care of the owners'
goods was supported by sufficient the evidence, (2) that expert testimony was properly admitted because
it was based on the expert's observations of the fire and direct evidence was later introduced in support of
most of the facts not personally observed by them, (3) that the owners agreed to the declared value of
their property by retaining the warehouse receipt and forwarding their acceptance to defendant and the
judgment improperly exceeded that amount, and (4) the owners' motion to dismiss the appeal was
properly denied because the order denying the motion to dismiss the appeal became final before the
decision on the merits by the district court.
Consideration for the K. What is conversion? Taking someone else’s property with the intent to deprive
them of it. Liability for actions of employee – not liable for acts outside of the normal duties. Agency,
Contract, Negligence in background checks; are all sources of liability for an employer in the actions of
his employees. So, the fire may have been started by one of their employee’s smoking. Bekins says it’s
not in the scope of his employment to smoke; we don’t get any benefit from him smoking. But the Court
said that if Bekins allows dangerous workplace conditions (smoking around flammable goods) then
Bekins may have been negligent. Warehouse Receipts Act was the basis and later was transformed into
the UCC. SSS 7-403 deals with liability for negligence; burden of proof could be left up to the state
legislature. IN California, the liability of a bailee covered under the UCC is the burden of proof of the
bailor. So, it is up to the bailor in UCC cases. But, non-UCC bailments still use the old Common Law rule
– bailee must bear burden of proof of showing non-negligence.

Fireman’s Fund American Insurance Company v. Captain Fowler’s Marina (1971) page 507
The insured yacht was damaged when a fire of unknown origin spread to the insured yacht. The evidence
showed that the marina had no available source of water on the premises, that, because of the omission,
firefighters were delayed in their efforts to get water on the fire, and that the fire spread to the insured
yacht because of the delay. The court noted that the relationship between the marina and the yacht
owner was that of bailor-bailee and found that under Massachusetts's law, an exculpatory clause in the
agreement for the yacht's winter storage was of no effect. The court observed that, where the cause of
the damage, fire was ascertainable but neither party had any information related to the origin of the fire,
the insurer had to have alleged negligence on the part of the marina and had to have proved it by
affirmative evidence; reliance on a presumption of negligence was not possible. The court found that the
insurer met that burden and that the marina's negligent failure to provide a water supply or other

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic c:       Bailments
firefighting means, as required under National Fire Protection Association standards, was the proximate
cause of the fire's spread to the insured yacht.
Don’t allege negligence against a bailee b/c you don’t’ need to and it shifts the burden of proof back to
you.
Res ipsa loquitor – shifts burden of proof – buildings don’t just fall down; so you tell us why it’s not your
fault; you tell us what happened.

Cowen v. Pressprich (1922) page 511
The recipient ordered a securities bond from the deliverer, who ordered it from a third party. The third
party shipped the wrong bond, and the deliverer's messenger gave it to the recipient. Shortly after
delivery, the recipient realized the mistake and returned the bond to the purported messenger, who was
an imposter. The deliverer brought an action for conversion against the recipient and prevailed in the
lower court. The court affirmed. The court held that an involuntary bailee that exercised dominion over an
item owed the same duty of care as a voluntary bailee, to deliver the bailed article to the right person. The
delivery of an item in mistake for one that was ordered, the fact that the recipient could not see the
messenger when the bond was delivered, and the relative ease with which the recipient could have called
the deliverer or had its own messenger return the bond to the deliverer itself, gave rise to a duty on the
part of the recipient to deliver the bond to its proper owner.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 2:          Possession Without Ownership
Subtopic d:       Remedies of Posession



d. Remedies of Possession


REMEDIES OF POSSESSION

Anderson v. Goldberg (1892) page 525
Plaintiff claimed that he cut the logs in question and hauled them to a mill from which place defendants
took them. The logs in controversy were not cut upon the land of the defendants, and consequently that
they were entire strangers to the property. The court affirmed and found that plaintiff obtained possession
of the logs in the first instance by trespassing upon the land of some third party. When it was said that to
maintain replevin plaintiff's possession must have been lawful, it meant that it must have been lawful as
against the person who deprived him of the property. Possession was good title against the entire world
except those having a better title. Possession only raised a presumption of title. One who took property
from the possession of another could only rebut the presumption by showing a superior title in himself or
in some way connecting himself with one who had superior title. The court held that one who acquired the
possession of property, whether by finding, bailment, or by mere tort, had a right to retain that possession
as against a mere wrongdoer who was a stranger to the property.




Tapscott v. Cobbs (1854) page 527
Defendant who took possession of allegedly vacant premises appealed from a judgment for plaintiff heirs
in their action for ejectment. Defendant contended that plaintiffs had no proof of their possession of the
land at the time of his entry. Plaintiffs claimed that defendant had no proof that they were not in
possession, as their devisor died in possession of the premises. Plaintiffs also claimed there was no proof
the premises were vacant at the time of defendant's entry. Defendant contended that a surveyor's
certificate was proof of his possession. The appellate court affirmed the judgment because the surveyor's
certificate established that defendant was not in possession for the statutory period required to take under
adverse possession, and defendant was therefore merely an intruder because the law presumed an heir
was in possession.
Anderson

Winchester v. City of Stevens Points (1883) page 533
The property owner brought an action against the city for damages alleged to have been sustained by the
property due to the city's raising a dike. The lower court entered judgment in favor of the property owner.
Upon appeal, the court reversed and ordered a new trial. The court held that the property owner failed to
show a title beyond what would be necessary to maintain a trespass action and that she was therefore
not entitled to permanent damages.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 3:          Possession Without Ownership: The Bona Fide Purchaser
Subtopic a:       Cases

3. Possession without Ownership: The Bona fide Purchaser

a. Cases


POSSESSION WITH/WITHOUT OWNERSHIP: THE BONA FIDE PURCHASER

Hessen v. Iowa Automobile Mutual Insurance Co. (1922) page 535
The evidence was uncontroverted that the car was stolen before the insured bought and insured it. The
insurer argued that the policy was void because the insured lacked an insurable interest in the car. The
court agreed. Whatever interest the insured had in the insured property would have been derived under
his contract of purchase. His vendor was not shown to have had anything more than the possession of a
stolen car. Through his purchase the insured acquired no title and never had unconditional and sole
ownership, which was required and defined by the terms of the policy. The burden was upon the insured
to establish his insurable interest in the property described in the policy, and that burden required that he
establish the interest which was defined in the policy. He failed to do so. The insured was also required to
prove that the automobile that was described in the policy was the automobile that was stolen from him.
The court held that he failed to do so because the only point of description or identification between the
car described in the policy and the car in the insured's possession was the name.




 Morgan v. Hodges (1891) page 539
The purchasers bought two horses, a harness, a buggy, robes, and a whip from a seller, who had hired
one of the horses and the other accessories from the horse owner. After the purchasers sold the horse,
the horse owner discovered that the purchasers bought the property from the seller. The horse owner
offered to settle the matter if the purchasers returned the buggy, the robe, the harness, and the whip. One
of the purchasers agreed. Subsequently, the horse owner brought a suit to recover the value of the horse.
The purchasers pleaded the general issue and gave notice of a settlement. The trial court submitted the
question of settlement to the jury, and the jury returned a verdict for the purchasers. On appeal the court
affirmed, holding that the question of settlement was properly submitted to the jury because the
settlement was not void for want of consideration on the ground that the purchasers had not recognized
the horse owner's title and did not offer to surrender the property prior to the offer made by the horse
owner.



O’Connor Administratix v. Clark (1895) page 541
Testimony was presented indicating that a vendor, without the owner's permission, took and sold or
attempted to sell the owner's horse and wagon to the vendee. Testimony was also presented indicating
that the vendor's name and occupation were painted on the wagon under the direction of the owner for
the purpose of creating the impression that the horse and wagon belonged to the vendor and had been
used by the vendor in his business as a piano mover. Because the vendor was a stranger to the vendee,
the vendee inquired as to whether the vendor was the person whose name was on the wagon. He then
bought the horse and wagon, honestly believing that the vendor was the actual owner. Reversing, the
court held that the general rule was that a vendee took only such title as his vendor had and was
authorized to transfer. However, an exception to the general rule applied. The owner was estopped from
asserting title because he clothed the vendor with the apparent authority to dispose of the horse and
wagon, and the vendee acted and parted with value upon the faith of such apparent ownership and
authority.
If the owner entrusts his property to a merchant who ordinarily deals in such products, then he sells it to a
bona fide purchaser, then you’ve lost title. But not if a thief does it or it’s not normally that dealer’s
business.

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e34cc3a7-a759-4d3c-b9f7-0d29e0f4112c.docP&O – Prof. Shaffer – Jan – Mar,. 2004          Page 96 of 124
Part III:         The Elements Of Ownership
Section C:        Control
Topic 3:          Possession Without Ownership: The Bona Fide Purchaser
Subtopic a:       Cases
Void vs Voidable – void is bad. Thieves always get void title. Voidable means you tried to convey title
but messed up. With voidable title, a true owner may pass good title to a bona fide purchaser. A person
with challengable title could pass title to a bona fide purchaser and it would hold up against event the true
owner. Always sue the merchant in these cases.



Hurd v. Bickford (1892) page 543
Plaintiff property owner sued defendant innocent purchaser to recover his property. Plaintiff had sold his
horse and sleigh to defendant's debtor, in exchange for a bogus promissory note. Defendant's debtor
then paid his debt to defendant via that horse and sleigh, with defendant being unaware of the fraud
perpetrated by his debtor upon plaintiff. Judgment was entered in favor of plaintiff, and defendant
appealed. The court affirmed. It held that although defendant would have prevailed had he expended
cash to purchase the horse and sleigh, as he would then be without cash and might lack the means of
getting it back, merely invalidating the transaction in this case left him no worse off than he was before,
inasmuch as he accepted the horse and sleigh to pay off a debt that was previously owed to him, and in
this case would still be owed to him. The judgment favoring plaintiff was therefore affirmed.



UCC sections …


Wooden-Ware Co. v. US (1882) page 547
Purchasers of stolen property only get void title and must surrender goods to true owner. If
goods were taken by mistake, value is set at time of taking. If goods were deliberately stolen,
value is set at time conveyed to bona fide purchaser.
The government filed an action in trover against the company for the value of 240 cords of ash timber the
company cut and removed from Indian reservation land and sold to the company. The circuit court
entered a judgment against the company in the amount of $ 850 for the whole quantity, rather than the $
3.50 per cord that the company paid for it. On appeal, the court held that the case was to which the
doctrine of caveat emptor applied and that the right of recovery was in the government. The court held
that the timber at all stages of the conversion was the property of the government and its purchase by the
company did not divest title nor the right of possession. The court affirmed the circuit court's judgment.
US bought property from Indians, who had knowingly and wrongfully taken it, for π. They paid more than
the value of the property. Had the property been innocently/mistakenly taken (to be able to make Δs
bona fide purchasers), the liability of the Δ would be the value of the property, not the price paid. But in
order to be a bona fide purchaser, you must have a good faith belief that the seller has good title, and if
circumstances put you on notice that the seller might not have good title, you must inquire into the title
and are charged w/ any knowledge that you should have discovered (there was a defect in the title).
If intentionally purchased stolen goods, the value for damages is fixed at time defendant got it. If it was
an accident and not theft, then value is set at time of the taking. Otherwise it is set at value at time it was
converted and conveyed to bona fide purchaser.
Rickmeyer vs Mutual Livestock, (1935)
Stolen livestock sold at auction. Bona Fide purchasers bought them. But you can only buy the title that
the seller has. So, you just purchased a void title. Value at time of taking was $3500; at time of sale was
$1000. Bona fide purchasers are liable for value at time they got their hands on it.

Hypo – Bona Fide Purchasers & Doctrine of Accession.
Somone sells your precious walnut tree grove to a furniture company and they cut it all down and build
furniture. Could you bring an action in replevin to recover the furniture? Assume the timber was worth
$2,000 but the furniture is worth $40,000. No, doctrine of accession.

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 3:          Possession Without Ownership: The Bona Fide Purchaser
Subtopic a:       Cases



                                                      ACCESSION

  Definition – Addition of value to property with labor & materials. Such additional expenditures should
  be detached from principal chattel and each party will be held in status quo ante. But, if not
  detachable, then ownership of the enhanced chattel is the issue and the answer turns on whether
  the trespasser was acting in good faith or was a willful trespasser.
  Good Faith Trespasser – generally may not recover and original owner retains title. Trespasser
  cannot sue for compensation, etc.
  Original Owner’s Remedies – Damages for conversion (value of original materials + consequential
  damages) OR replevin against EITHER GFT or WT.
  Complete Change – OO may not recover from GFT but retains title against WT.
  Great Increase in Value – OO may NOT recover from GFT.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic a:       Trespass by Private Persons

Interface With Control

a. Trespass by Private Persons


INTERFACE WITH CONTROL – TRESPASS BY PERSONS

Dougherty v. Stepp (1835) page 551
This was an action of trespass quare clausum fregit, tried at Buncombe on the last Circuit, before his
Honor Judge MARTIN. The only proof introduced by the plaintiff to establish an act of trespass, was, that
the defendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers, and
actually surveyed a part of it, claiming it as his own, but without making trees or cutting bushes. This, his
Honor held not to be a trespass, and the jury, under his instructions, found a verdict for the defendant,
and the plaintiff appealed.
Judgment reversed.



Herrin v. Sutherland (1925) page 553
Plaintiff landowner filed a complaint against defendant trespasser in the District Court of Lewis and Clark
County (Montana) and alleged damage to his property as a result of the trespasser's wrongful actions.
The trial court entered a judgment in the landowner's favor in the amount of one dollar and the trespasser
appealed.


The court held that: (1) The landowner maintained his first cause of action because the trespasser went
upon the landowner's land; (2) The trespasser trespassed also when he waded up and down a non-
navigable stream fishing; (3) When the trespasser, although standing upon the land of another, fired a
shotgun over the landowner's premises, dwelling, and cattle, he interfered with the quiet, undisturbed,
peaceful enjoyment of the landowner and thus committed a technical trespass at least; (4) The landowner
had a right to recover damages from those who trespass; (5) When the landowner posted his notice
warning persons that hunting or trespassing was prohibited, and they did hunt or trespass, they were
subject to criminal prosecution; (6) The landowner's sixth cause of action was sustained by the allegation
that the trespasser broke the fence and entered upon the landowner's ranch; (7) The trespasser did not
have any right to enter upon the landowner's lands or to take fish from his pond or streams; and (8) The
trespasser had no right to kill or capture wild ducks upon the landowner's land.
π owns land & water that Δ went upon and hunted. When dealing w/ waterways, the general rule is that
in waters everyone has a right to fish in them, however the person must stay upon the boat because
when they go ashore, that land is owned and stepping upon it would constitute a trespass. However, if
the water is fully enclosed upon a person’s private property, there are no public fishing rights in them.

Fishing for mussels could be a trespass; because the property owner owns the riverbed and the mussels
attach themselves to the riverbed. This takes us back to Pierson & Post. The distinction between the
fish and the mussels is that the landowner has not control over the fish. But the mussels are attached to
his land so its control and he owns them. The same reason why you can’t go pick the shingles off of your
neighbor’s house.
Case in Pennsylvania where the state sued a polluter who polluted a river and killed a bunch of fish. The
state relied on their claim that the fish were owned by the people of the state. The Court said that a
general declaration of ownership was not good enough; there needs to be some element of control in
order to establish ownership.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic a:       Trespass by Private Persons
Martin v. Revnolds Metals Company (1959) page 559 ****A Shaffer Favorite
In trespass, it is the object’s energy or force that defines if there is a trespass, not it’s size.
Overturns Common Law Rule that you must be able to see and feel an object in order to sustain
an action for trespass.
In their trespass action, plaintiffs alleged that defendant, in the operation of its aluminum reduction plant,
caused fluoride compounds in the form of gases and particulates to become airborne and settle upon
plaintiffs' land rendering it unfit for raising livestock. Plaintiffs alleged that their cattle were poisoned by
ingesting the fluorides, which contaminated the forage and water on their land. They sought damages for
the loss of use of their land for grazing purposes and for the deterioration of the land through the growth
of brush, trees, and weeds resulting from the lack of use of the premises for grazing purposes. Plaintiffs
also sought punitive damages. Both parties moved for a directed verdict, whereupon the trial court found
that plaintiffs had suffered actual damages, but rejected plaintiffs' claim for punitive damages. Defendant
argued its invasion on plaintiffs' land was not a trespass. The supreme court disagreed and affirmed.
Plaintiffs had a protectable interest in their land and defendant's actions constituted an invasion of that
interest causing direct injury to plaintiffs' land; thus, defendant was liable in trespass.
Δ’s plant was emitting gas compounds that settled upon π’s property. Court found a trespass existed.
The old common law was that if you can’t see or feel it, it does not exist and so there is no trespass.
However, w/ modern technology we are able to perceive things we weren’t able to before and the new
rule is that trespass is defined as any intrusion which invades the possessor’s interest in exclusive
possession, whether the intrusion is by visible or invisible pieces of matter, or energy that can only be
measured in mathematical languages. It is the object’s energy or force that defines if there is a trespass,
not it’s size.
Trespass statute of limitations for nuisance is 2 years; but 6 years for trespass. That is why this is an
action in trespass.
Social cost. Socialize the cost but privatize the benefit. That is the problem with luxury sports stadiums
and with health care.
Just as a river cuts and flows and changes course cutting into new ground, the Court sometimes cuts into
new ground but still maintains its original roots. So, in this day and age we need to reconsider the
definition of “physical intrusion.”

Randall v. Shelton (1956) page 569
Unless a trespass is intentional or negligent no liability can attach. Unless intentional trespass or
ultra-hazardous activity (As in Rylands v Fletcher).
The claimant brought suit against the truck owner to recover for injuries she sustained when she was
struck by a stone that was allegedly thrown from the roadway by the truck owner's vehicle. The court
denied the truck owner's motion for a directed verdict and entered judgment in favor of the claimant. On
appeal, the court reversed. The court held that since the case did not involve an intentional trespass or an
extra-hazardous activity, the claimant could not have recovered in the absence of a showing of
negligence. The court determined that a verdict should have been directed for the defendant on the
ground that the right of recovery had to have been based on proof of negligence, and negligence was not
proven. The court rejected the claimant's argument that it could reasonably have been inferred that the
rock had been wedged between the dual wheels of the truck; that the condition had existed for such a
length of time that the driver must have known of it, and that he was negligent in operating a vehicle
under those circumstances because the theory was pure speculation, and assumed certain basic facts.
The court found that the doctrine of res ipsa loquitur did not apply.
π was injured when Δ’s truck threw up a rock that hit π. To constitute trespass, there needs to be a
showing of intent upon the person to trespass. However to be liable for trespass, there needs to a
showing of negligence, unless the activity falls into the category of ultra-hazardous. Unless a trespass is
intentional or negligent no liability can attach.



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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State


b. Regulation by the State

§ 39.02 The Takings Clause of the Fifth Amendment: “Nor Shall Private Property Be Taken For
Public Use, Without Just Compensation”
The final sentence of the Fifth Amendment—commonly called the Takings Clause—provides: [N]or shall
private property be taken for public use, without just compensation.” Although history reflects that James
Madison proposed the clause, his motivation is unclear. Some believe that he was concerned about the
American army’s practice of seizing privately- owned supplies during the Revolutionary War. Others
suggest that Madison sought to protect large landowners against government-mandated redistribution of
wealth. In recent decades, the Supreme Court has stressed that one of the main purposes of the clause
is to bar government from forcing some people to bear public burdens alone which, in all fairness and
justice, should be borne by the public as a whole.
I.       Government Power of Eminent Domain
         The government has the sovereign power to take any property it needs. This power is limited by
         due process rights and the Takings Clause.

         A. The Takings Clause
                 th
            The 5 amendment forbids the federal government from taking private property for public
            use w/o just compensation.
                                                   th
            1. Applies to the states through the 14 amendment.
II.      What Is a ‘Public Use’?
         The government is only allowed to exercise eminent domain for public use. Courts have
         construed this broadly to mean any public benefit reasonably in the contemplation of the
         lawmakers.

         A. Broadly applied – the public use test is difficult to overcome for a landowner who is going to
            be affected.
            1. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), p. 1106.
                Ps sought to prevent the Hawaii legislature from enacting a land redistribution scheme
                that forced them to sell their property.
                a) Held: The public interest = redistributing the land and avoiding the oligopoly in
                     Hawaii, even though the direct beneficiaries are lessees of the effected plots.
            2. Unclear what the limit on definition of public use is.

III.     What Is a ‘Taking’?
         The definition of taking is more often litigated. This is important, because only takings qualify for
         compensation. No compensation is awarded if someone was doing something “bad” with prop.

         A. Legally take title – always a taking.
         B. Physical invasion – the most obvious form of taking is a physical invasion of someone’s
            property. All such invasions require compensation, no matter how minor.
            1. Possession wholly taken – open and shut takings case.
            2. More subtle physical invasion – can be tough to prove sometimes, but still takings.
                a) Inverse condemnation – essentially a negative easement owned by the
                    government.
                b) Causby: Chicken farm case. Court held this to be a taking.

         C. Regulatory taking – if the gov’t enacts some legislation or code changes that devalue land,
            the owner can sue to have the regulation declared a taking.
         1.     If win, then gov’t must change or abolish regulation, or compensate all affected.

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
         D. Tests – many tests, but all essentially come back to the ‘any rational basis’ standard.
            1. Fairness test – is seizure w/o compensation fair?
            2. Moral wrong test – if seizure is b/c of moral wrong, then no compensation.
               a) Peterson’s view.
               b) Prostitute in family car scenerio.

IV. How to answer a takings question posed by Shaffer
       A. Is there property that’s protected?
       B. Is the regulation valid?
           1. Rational Scrutiny
           2. Stricter scrutiny
       C. Is this a per se taking?
           1. Permanent physical invasion
           2. 100% diminution.
       D. If not, do some ad hoc balancing.
           1. Extent of the diminution in value
           2. Interference with reasonable investment-based expectations
           3. Character of the government action
               a) Are they regulating a nuisance? Does this matter any more under Lucas?
       E. ANALOGIZE TO CASES! CITE THEM!

REGULATION BY THE STATE

Yick Wo v. Hopkins (1886) (in book)
Petitioners, natives of China, operated laundry businesses. They complied with every requisite
necessary to protect neighboring property from fire and took precautions against injury to the
public health, yet were still found to have violated ordinances and were fined. After they were in
default, they were imprisoned until the fine could be paid. Petitioners contended the ordinances
were void as being in violation of U.S. Const. amend. XIV. Discrimination against Chinese
laundry businesses specifically was admitted. The Court reversed and held that no reason for
discrimination existed except hostility to the race and nationality to which the petitioners
belonged. The discrimination was, therefore, illegal, and the public administration that enforced
it was a denial of the equal protection of the laws in violation of U.S. Const. amend. XIV. Thus,
the imprisonment was also illegal.


Remember that there are 2 ways to prove discrimination for purposes of Equal Protection analysis:
    a. Purpose/Intent
    b. Impact
This case shows the impact of the racially discriminatory government policies.
The classification that the city used was against a protected class; a category of people that the Courts
will be suspicious if they are involved in government regulation
To the extent that the state invades a property interest, is there a taking? 5A. But the Courts don’t
construe every government intrusion as a taking? But then the government would not be able to tax us to
death and it would end their racket of hosing the citizens.
What systems of regulation exist outside of the state? When are you supposed to exercise your own
moral judgment, hold yourself to a higher principle and disobey the state? Nuremberg?
Two areas where economic and property rights have gotten a bit more protection recently. Those areas
are in the takings clause cases and in an area of the law where the court has put on some limits in the
                                                                                      th
awarding of punitive damages. In terms of property rights and the takings clause the 5 Am of the

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
Constitution says that the government is prohibited from taking property without just compensation-
Eminent domain-Takings clause applies to state and local governments through the due process clause
          th
of the 14 Am. When can government take property-for public purpose-What amounts to a taking? Any
physical occupation or appropriation of property counts as a taking. Must have just compensation. When
is government regulation so extensive that it too could amount to a taking. Courts will defer to the
legislature and very few instances were found to be takings.



Pennsylvania Coal Co. v. Mahon (1922) page 573
Coal co. had subsurface rights but statute barred underground mining if caused subsidence of
land underneath residences. Held: If statute frustrates distinct investment-backed expectations
+makes property wholly useless = taking. Essentially destroyed rights . Degree of intrusion =
taking.

Defendant appealed appellate court's decision for plaintiffs in plaintiffs' suit to enjoin defendant from
mining under plaintiffs' house and removing the supports and causing subsidence. A deed granted
plaintiffs the surface rights to certain land but reserved to defendant the right to mine all coal under the
house. Plaintiffs argued that the Kohler Act, 1921 Pa. Laws 1198, extinguished defendant's right to mine
under plaintiffs' surface land. The Court reversed. The Court held that the Kohler Act was unconstitutional
as a taking of defendant's rights under a valid contract. In order to protect themselves, plaintiffs should
have contracted to acquire more than the surface rights. The Kohler Act could not have been used to
terminate the valid contractual rights defendant received, nor could the Act could be used to take
defendant's contract rights without adequate compensation.

Facts: The coal company deeded the surface land above a mine to Mahon’s predecessors in title. The
deed expressly reserves the right to remove all of the coal under the land, and puts the risk of loss of the
surface property on the grantee. However, a local statute forbids the mining of coal in such a way as to
harm a structure used as a dwelling.
Procedural Posture: Mahon brings an action in equity to enjoin the coal company from mining under his
house in such a way as to weaken its support.
Issue: Whether the local statute is a valid exercise of the state’s police power, or is an unconstitutional
taking under the 5th amendment as incorporated through the 14th amendment and applied to the states.
Holding: Unconstitutional taking.
Majority Reasoning: The question of whether a regulation is a valid exercise of the police power or an
unconstitutional taking depends on the particular facts. The property being protected here is private
property belonging to a single citizen, in which there is no public nuisance if it is destroyed. The law is not
justified as a protection of personal safety. The contract itself provided notice of the risks, and the grantee
still contracted. Since coal rights are worthless if the coal can not be mined, preventing their mining is a
taking because it is tantamount to destroying it. If the police power of the states is allowed to abridge the
contract rights of parties, it will continue until private property disappears completely. In general, while
property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.
The loss should not fall on the coal company who provided for this very risk contractually. If the state
wants more protection for its citizens, it can pay for it.
Dissent Reasoning: A restriction imposed to protect the public health, safety or morals from danger is
not a taking. The restriction here is merely the prohibition of a noxious use. Just because a few private
citizens are enriched does not make the law non-public. If the mining were to set free noxious gas, there
would be no question that the state could prohibit it for the safety of the citizens, without paying the miner.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
Rights of Lateral and Subjacent Support

Ancient rules
   1. Illustrate natural rights in connection with land. Natural rights are dependent on simply owning
       the land, not upon contracts (agreement between parties) or upon negligence (violation of
       elementary duties). They simply depend upon the fact of ownership of land. Simple ownership is
       the starting point.
   2. Strict (absolute) liability:
   3. Liability depends upon land in its natural state.

Helmholz illustration of natural state: Excavation on neighboring property. A woman went to hang her
wash out, when land collapsed and she was injured. It was held that the added weight of the woman
caused the collapse.

Lateral Support
Strict liability for land in its natural state; if it slips and buildings damaged too, must pay for them as well
         Noone v. Price: retaining wall cracks, allegedly undermining support

Definitive argument:
The loss came from the Δ’s failure to maintain the wall that provided lateral support. Part of the
deterioration occurred under the Δ’s watch. The wall had to support the land in its natural state. The right
of support is a property right and absolute.


Helmholz’s characteristics of lateral support cases:
   1. These cases lend themselves to a lot of expert testimony.
   2. There are very few appellate cases on this topic. If there are questions of fact, they would tend to
      get decided at trial courts. He thinks lateral support cases would be hard for juries to decide.
   3. The law: Ordinarily the liability is strict, but you may be liable for negligence in using the property
      you own.
          a. Assume you are digging next to the Sears Tower for arrowheads and it collapses.
                   i. When you look at negligence, you look at foreseeability. It should be foreseeable
                       that your digging might damage the adjacent structure.

Modifying the Duty to Support by Statute

Subjacent Support
Rule: Damages are measured by all loss caused by subsiding if in its natural state. So, if land in natural
state would subside – must pay for anything on top of it.
    The “right to mine is subservient to the right of the surface owners to have the surface maintained in

    its natural state free from subsidence or partings of the soil, and this right of support is absolute and

    not dependent upon any questions of negligence.” (Strict liability)



         Island Creek Coal Co. v. Rodgers: underground mining damages house

    You can’t get adverse possession by mining underground, because that isn’t open and notorious.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State



Hudgens v. National Labor Relations Board (1976) page 581
No 1A right to protest on private property.

   I.    An owner of a private shopping mall informed the employees of one of his tenants that they would
         be arrested for trespass if they continued to picket inside the mall. The union filed an unfair labor
         practice against the owner under § 8(a)(1), 29 U.S.C.S. § 158(a)(1), of the National Labor
         Relations Act (Act), 29 U.S.C.S. § 151 et seq. The court held that it was error for the Board to
         consider competing constitutional and property right considerations in its application of the Act.
         The court held that the case that the Board relied on was overruled by another case. Thus, the
         general counsel had no duty to prove that other locations for the protest that were less intrusive
         upon the owner's property rights were either unavailable or ineffective. The court held that the
         striking union members had no First Amendment right to enter the mall for the purpose of
         advertising their strike against one of the stores therein. Overrules Logan Valley which held
         that malls would be treated as public property if used for 1A protected purposes.
         Company Towns and Shopping Centers

Right to Trespass – Case Recap

  II.    Marsh v. Alabama, 326 U.S. 501 (1946)
         A Jehovah's Witness was arrested in a company town for distributing literature. The Court held
         that this privately owned town functions as a municipality, and operation of the town was a
         public function. Thus, it is subject to the same constitutional limitations as other cities. This town
         had downtown shopping and the whole works, had it been only residential, it may have been ok.
 III.    Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968)
         Peaceful union picketing could not be enjoined from the mall because it was the "functional
         equivalent of the business district in Marsh.
 IV.     Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)(5-4)
         Distinguised Logan Valley where a shopping center prohibited distribution of antiwar handbills
         because the union had no other way to reach their audience and these antiwar people did.
  V.     The operator of a shopping center does not have to open his business up to picketers or
         leafleters. Hudgens v. NLRB, 424 U.S. 507 (1976) overruled Logan Valley on the ground that
         Lloyd had totally rejected it.
         Note: the California Supreme Court has said that the California Constitution makes shopping
         malls open to the public for 1st Amendment activities.
 VI.     Marsh is now limited to its facts in that operation of a company town is still a public function, but
         operation of less than the full range of municipal services probably is not a public
         function.

Pruneyard – California case; California forces private mall owners to allow protesters. But current federal
law is no, you don’t have to.
PruneYard Shopping Center v. Robins
447 U.S. 74 (1980)
Facts - Summary of facts that gave rise to the litigation.
High school students seeking support for their opposition to a United Nations resolution against Zionism
set up a table in PruneYard to distribute literature and solicit signatures for a petition. A security guard
told them to leave since their actions violated the shopping center's regulations against "publicly
expressive" activities.
Procedural History


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
California Superior Court ruled for D. Held that P can use many other adequate channels to achieve their
goals. The California Ct. of Appeals affirmed. California Supreme Court reversed and ruled that
California Constitution gives P the right to conduct such activities in shopping malls. D appeals and
argues that his 5th and 14th Amendment rights are violated.
Issue(s)
Did PruneYard's regulations violate the students' free speech rights?
Holding
Yes. Since the California Constitution protected "speech and petitioning, reasonably exercised, in
shopping centers even when the shopping centers are privately owned," PruneYard could not prevent the
students from soliciting on its property. The Court argued that it was within California's power to
guarantee this expansive free speech right since it did not unreasonably intrude on the rights of private
property owners.
Rule
State may expand free speech rights when no impact on property owners of shopping centers.
Reasoning
D first relies on Lloyd Corp. v. Tanner to argue that in that case the court ruled that even if property open
to public, it still has its private nature and D in that case was allowed to exclude P. But in that case the
state had no statue or Constitutional that gave P the right to conduct such activities. But in this case
there are such rights under the California Constitution. D further argues that right to exclude other
underlies the Fifth Amendment guarantee against taking of property without just compensation. But in
this case, the rendering of the right to conduct peaceful activities to P does not mount up to the takings
doctrine. Takings happens when government’s actions has severe economic impact or interference with
reasonable investment-backed expectations. Here, P were conducting peaceful activities and their
activities had no impact on business. So to allow such activities on D’s property does not mount to
taking. D’s argument that they have been denied of property without due process of law is also not
convincing. Here, California’s provision not unreasonable, arbitrary, or capricious and therefore not
violation of Due Process Clause.



Shelly v. Kramer (1948) page 603
The cases involved suits in state courts to enforce restrictive covenants in deeds of residential property
whereby the owners agreed that the property should not be used or occupied by any person except a
Caucasian. The Supreme Court reversed the state courts' decisions upholding the covenants because, in
granting judicial enforcement of the covenants, the states denied petitioners the equal protection of the
laws. Although there was no state statute regulating the matter, there was nonetheless state action within
the meaning of U.S. Const. amend. XIV. The action of the state courts in imposing penalties or depriving
parties of substantive rights without providing adequate notice and an opportunity to defend themselves
was a denial of due process of law guaranteed by U.S. Const. amend. XIV. The court concluded that
because of petitioners' race or color, they were denied rights of ownership or occupancy enjoyed as a
matter of course by other citizens of different race or color.
So, if you have a right in your own property, don’t you have the right to exclude whomever you want?
Also consider Commerce Clause.



Note: the White Park Case page 617




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
§ 38.04 Exclusionary Zoning [628-633]
Exclusionary zoning refers to land-use controls that tend to exclude low-income and minority groups. An
example is a city’s refusal to allow high-density, low-income housing within its borders. The most
prominent decision attacking this practice is Southern Burlington County NAACP v. Township of Mt.
Laurel, 336 A.2d 713 (N.J. 1975). There, based on the state constitution, the New Jersey Supreme Court
held that each developing city was obligated to meet its “fair share” of the regional need for low and
moderate-income housing.


Village of Euclid v. Ambler Realty Co. (1926) page 619
Zoning is constitutional so long as not overwhelmingly arbitrary (part of some master plan) even if
it yields some bad outcomes – legit exercise of police power – where there is uncertainty about
reasonableness of exercise of police power for public welfare, defer to legislature.
Commercial zone of SF, some residential allowed too, but not industrial. Other areas specifically for
industrial and residential. There is no compensation for property zoned like this since there is an
average reciprocity of advantage that avoids conflicting uses.
Zoning Law cannot be otherwise unconstitutional. Mt. Laurel NJ passed zoning laws to keep out children
and low income families so as to lower cost of school system. NJ Supreme Court struck down the law
saying zoning laws cannot be used to protect a community from problems inherent in any community.
The landowner asserted that because of the building restrictions imposed, the ordinance operated to
reduce the normal value of his property, and to deprive him of liberty and property without due process of
law. The municipal corporation and building inspector argued that the ordinance passed constitutional
muster and should have been enforced. The court held that the district court clearly had equitable
jurisdiction over the matter and further held that the ordinance, in its general scope and dominant
features, was a valid exercise of authority. The landowner's property had not suffered or been threatened
with an injury that entitled him to challenge the constitutionality of the ordinance. The restrictions imposed
bore a rational relation to the health and safety of the community.
        Euclid: The  owned a bunch of land along some roads that he wanted to sell as businesses
         lots. But the city adopted new zoning laws, and some of his prop was zoned as residential. The
         value of the prop decreased dramatically as a result.  arg the zoning regs deprive him of prop
         w/o due process and he wants an injunction stopping the zoning.
        The typical Euclid zoning scheme classifies conflicting uses, from highest (least harmful to others:
         residential) to lowest (most harmful: industry).
              o   The zones are inclusive, meaning the lower ranking uses cannot invade the upper ranks.
                  However, the upper ranks can come into the lower ranks.
              o   Exception: Industrial parks are exclusively for industry, and higher uses like res isn’t
                  included.
Facts: π owns a tract of land that is zoned in a way that prevents commercial purposes along Euclid
       Ave. even though the normal use for the land is commercial. The π claims that this restriction
       lowers the property value. ($10,000/acre if industrial; $2,500/acre if residential). π argues that
       this is an abuse of the police power.
Rule:    A zoning ordinance is unconstitutional if its provisions are clearly arbitrary and unreasonable,
         having no substantial relation to the public health, safety, morals, or general welfare.
         It’s not arbitrary just because it restricts the natural use
Hold:    This is a valid exercise of police power, thus there will be no injunction.


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
Nollan v. California Coastal Commission (1987) page 631
Appellant landowners brought suit to invalidate a condition on their land permit requiring them to grant the
public an easement across their beachfront property. The court of appeals found the condition to be valid
and reversed the writ of mandamus issued by the superior court. The United States Supreme Court
granted review and found that the right to exclude others from private property was an essential right to
the ownership of property. If government action resulted in permanent occupation of land, it would effect a
taking unless it substantially furthered legitimate state interests. The Court found that California required
the use of eminent domain to obtain easements across private property, and the condition imposed was
not a use of eminent domain. The Court finally held that the condition was a taking, and if the state
wanted an easement they would have to compensate appellants.
1. Nollans have the option to buy beachfront property, contingent on demolishing the bungalow and
building something great. So they apply for a permit to build a house, and it is denied because it would
impede public access to the beach.
2. Nollan was the first permit exaction case before the USSC.
3. The “Greater/Lesser” argument; the government has the greater power to deny use of property - i.e.,
the police power says they can stop altogether the building of the house. And if it can do this, it can take
the lesser act of making the permit’s grant conditional.
4. Permits: MUST BE A FIT between the condition you impose and the reason you impose it. (You can
require a viewing-hole, but not a beach-side easement).
a. This is the same as Scalia’s ESSENTIAL NEXUS test in Dolan. It doesn’t allow tradeoffs - you can’t
force people to give other concessions (like a building which casts a shadow on a park building a
playround).



Lucas v. So. Carolina Coastal Coucil (1987) page 661 MAJOR CASE
The landowner purchased two residential lots on which he intended to build homes. In 1988, State
enacted the Beachfront Management Act, S. C. Code Ann. § 48-39-250 et seq., which barred the
landowner from erecting any permanent habitable structures on his two parcels. A state trial court found
that this prohibition rendered the landowner's parcels valueless. The landowner asserted the effect of the
Act on the value of the lots accomplished a taking under the Fifth and Fourteenth Amendments. The court
held that where a state seeks to sustain a regulation that deprives land of all economically beneficial use,
it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate
showed that the proscribed use interests were not part of his title to begin with.
Facts: Lucas bought some beachfront property on the Isle of Palms in 1986 for $975,000, intending to
build single-family residences on it. At the time he bought is, a coastal zone management statute was in
effect which regulated the use of certain “critical areas” in the beachfront areas, but Lucas’ property was
not a “critical area.” However, in 1988, the state passed another beachfront management act which
completely forbade construction seaward of a “baseline” marked by the highest points of erosion in the
last 40 years. Unfortunately, Lucas property was seaward of the baseline, and so he could not build his
residential houses on it.
Procedural Posture: Lucas brought an action for compensation, claiming that regardless of whether the
legislature had acted legitimately in furtherance of some police power objective, he was entitled to
compensation. The trial court agreed, finding that the statute deprived Lucas of “any reasonable
economic use of the lots...rendering them valueless.” The Supreme Court of Carolina reversed, finding
that when a regulation respecting the use of property is designed “to prevent serious public harm”, no
compensation is owing regardless of the regulations effect on the property’s value.
Issue: Whether the 1988 beachfront management statute was a taking under the 5th amendment,
thereby entitling Lucas to compensation.
Holding: Yes.

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
Majority Reasoning: [Scalia] first rejected the contention that since the state had amended the statute to
provide for special permits, that Lucas was still able to apply for this permit, thus making the action “un-
ripe.” Even if he won a special permit, there is still a “temporary” taking until he does. There are two
discrete categories of regulatory action that are compensable without looking at the particular facts - 1)
physical “invasion” of property, and 2) denying all economically beneficial or productive use of land.
Regulations that leave the owner of land without economically beneficial or productive options for its use
carry with the the heightened risk that private property is being pressed into some form of public service
under the guise of mitigating serious public harm. However, “harm preventing” and “benefit conferring”
definitions can be made as support of either side of the controversy. It is not critical that the legislature
have found the regulation to be “harm-preventing.” The appropriate inquiry is whether the regulation
deprives the owner of the land of rights that were part of his legal title; i.e. that were not a nuisance or
proscribed under normally property law. All total regulatory takings of land must be compensated unless
the use would be a common-law nuisance anyway. Here, the land use was lawful, and it can not be said
that there was some “implied limitation” on Lucas’ use of the land for residential houses.
Concurrence Reasoning: [Kennedy] reasoned that land is bought and sold all the time with knowledge
that it is subject to the state’s power to regulate. Where there is a taking alleged from regulations which
deprive property of all value, the test must be whether the deprivation is contrary to reasonable,
investment-backed expectations.
Dissent Reasoning: [Blackmun] reasoned that there was no significant taking here, and certainly not a
total deprivation of economic value. The court has unwisely gone against the precedent that the state has
the power to prevent any use of its property that it finds harmful, and that the state statute is entitled to a
presumption of constitutionality. The state made findings tjat this was to prevent harm, and the court can
not simply disregard them. Also, the new rule that the court fashions - “deprivation of all econaomically
feasible use” itself cannot be determined objectively. Finally, the court’s exception for nuisance is
confusing.
Dissent Reasoning: [Stevens] The court has unwisely departed from the precedent of Mahon which
required a look at the individual facts in each case. The question of a taking is one of degree, and so
requiring the dimunition in value of the land to be total is too rigid and too narrow. The generation of a
general proposition that “total regulatory takings must be compensated” as a categorical rule is an unwise
approach to takings cases.
Class
State Supreme Court ruled on the merits, so now the issue is ripe for the U.S. Supreme Court. Always
know how the case reached the Supreme Court procedurally. Physical intrusion = taking. Expectation
backed investment expectations. See Kaiser Aetna case. Hawaii, they tried to turn their pond into a
marina. They dredge the pond to connect it to the ocean. They owned the pond and all the surrounding
land, so they were not affecting anyone else’s property. But some outsiders said they wanted to use the
waterway. Kaiser asserted its property rights over the waterway. The government said it was a
navigational servitude. If you own property through which a river flows, your property is subject to a
navigational servitude – the public can use it if it was navigable. Even a lake. You may own the lake up to
the middle but if others can navigate it they can use it. The army corps of engineers said that since
Kaiser opened up the waterway to navigation, it was now subject to such a navigabale servitude. U.S.
Supreme Court ruled in favor of K-A, saying they had done nothing to abandon their claim, or to lose the
boundary definition, and they had invested heavily to improve the land. If the government wants a public
easement, then they have to pay for it by condemnation and remuneration.
Kaiser did not abandon the land, they invested to make it more valuable. They were not trying to convey
a benefit upon the public. Do they still have a boundary? Or is it like a leaky oxygen tank that just
escapes into the atmosphere. Property must have a recognizable boundary, defined boundary, that is
closed, not limitless. The fact that the boundary was water does not change the fact that it is a boundary.

TAKINGS Summary
1) Rule:


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
        a. Fifth Am’nt: “nor shall private property be taken for public use, without just compensation.”
                                                                           th
               Applicable to the states under due process clause of 14 Am’nt.
    2) 3 questions:
        b. What is a taking: how to distinguish gov. action under police powers (like taxation, zoning)
               from a regulatory taking
        c. What is public use: general health and welfare
        d. What is just compensation: fair market value of real property taken (land and any structures
               on it)
    3) Ps/landowners think that they are worse off under eminent domain
        e. Why would anybody fight a taking if they would get just compensation
        f. Why would gov take it from you rather than buy it from you
            i.      The market value is fixed by the court in a condemnation proceeding; can fix it too low -
                    under compensatory
           ii.      Market value may not reflect subjective value to the owner - when subjective value is
                    higher than market value: this house/land is uniquely valuable to owner, attachment to
                    home v. what ordinary purchaser is willing to pay you
          iii.      Measure of damages includes the value of real property, it doesn’t include other
                    economic values, value of a business - customers it can lose, 20-year reputation
          iv.       Property (oppty to negotiate) v. liability rule of damages (damages fixed, no oppty to
                    negotiate): just compensation is liability rule of damages - owner’s rights are determined
                    by the court (so owner can’t negotiate the price with the gov.)
    4) Public Use
        g. Narrow reading: the public must have the right to use the condemned property.
        h. Modern times: public use means the condemnation must benefit the public.
        i. Public purpose may be served by transferring ownership from one private person to another.
               For example, urban renewal, where the g’nt condemns blighted land and resells it to a
               developer under a redevelopment scheme (Berman v. Parker)
When the g’nt pays the landowner, the role of courts in determining what is a public purpose is a limited
one; great deference is paid to the legislature.


Public nuisance vs. Condemnation for Public Use. Public nuisance requires no compensation. If you are
conferring a harm upon the public, you are entitled to no compensation for being forced to cease.
Private Nuisance – interferes with quiet enjoymnet of another’s land
Public Nuisance – injury that harms or threatens the public in general. If the state is doing it, is the state
automatically insulated? Well, the government sets the rules.

II. EMINENT DOMAIN: The power of government to force transfers of property from owners to itself.

                               THREE QUESTIONS TO ASK ABOUT POLICE POWER:


                               1) Was the taking within the scope of the police power? Yes? No duty to
A. Three Basic Fact            pay.
Patterns                  2) Is the method adopted rationally related to that goal?
       1. When the
       government          3) Does the application to the π conflict with a Constitutional right?
       seeks to            ** Must satisfy all 3 prongs for regulation to be valid**
       obtain title to
       land
               a. Ask whether the taking is for public or private benefit
                                               th
                       i. Public Use: The 5 Amdt. is read to mean that property may be taken only for
                       public uses.

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State

                                   Two views of Public Use:
                                           (i) The term means advantage or benefit to the public (“broad
                                           view”)
                                           (ii) The term means actual use or right to use of the condemned
                                           property by the public (“narrow view”)
                        ii. Hawaii Housing Authority v. Midkiff: RULE: One person’s property may not
                        be taken for the benefit of another private person without a justifying public
                        purpose, even though compensation be paid.
                                   Reagan-esque deference to legislature Once the object is within the
                                  authority of Congress, the right to realize it through the exercise of
                                  eminent domain is clear, and the means by which it will be attained is for
                                  Congress to determine.
                                           (i) Unless the use is palpably without reasonable foundation.
                                           (ii) (State courts tend to show less deference to the legislature)
                                   Whether in fact the provision will accomplish its objectives is not the
                                  question…the constitutional requirement is satisfied if the state
                                  legislature rationally could have believed that the Act would promote its
                                  objective.
                                   Transfer to private individuals: The mere fact that property taken
                                  outright by eminent domain is transferred in the first instance to private
                                  beneficiaries does not condemn that taking as having only a private
                                  purpose.
                                           (i) Only the taking’s purpose, not the mechanics must pass
                                           scrutiny under the Public Use Clause.
                        iii. Poletown Neighborhood Council v. City of Detroit: Heart of private/ public
                        analysis Benefit. Condemnation for a private use cannot be authorized
                        whatever its incidental public benefit and condemnation for a public purpose
                        cannot be forbidden whatever the incidental private gain.
                                   Heightened Scrutiny: Where the condemnation power is exercised in
                                  a way that benefits specific and identifiable private interests, a court
                                  inspects the claim that the public interest is predominant with heightened
                                  scrutiny.
                                           (i) Private interest cannot be speculative or marginal, but rather
                                           it must be clear and significant.
                                   As long as the taking is for the public good…no balancing is required.
                        iv. Issues of public use and necessity are decided by the court.
                b. Ask whether or not the taking is with just compensation
                        i. Fifth Amdt. “Nor shall private property be taken for public use, without
                        just compensation.”
                                   Principle Purpose: To bar Government from forcing some people alone
                                  to bear public burdens which, in all fairness and justice, should be borne
                                  by the public as a whole.
                        ii. Full Market Value: Compensation in the constitutional sense is not full
                        compensation, for market value is not the value that every owner of property
                        attaches to his property but merely the value that the marginal owner attaches to
                        his property.
                                   Why just compensation? Economic reasons…encourage investors to
                                  develop property. Check on government…make sure govt. doesn’t go
                                  too far and take land when it is not absolutely necessary. Concerns of
                                  fairness, etc.
                                   Under the Const. there is no requirement that a party get relocation
                                  costs, however, most states have provided for this by statute.
                        iii. Typically the jury decides just compensation
         2. When the government seeks to use a particular persons land or part of the land.


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State
                a. First: look for whether the state action is a valid use of police power.
                b. Second: No set formula exists to determine when an otherwise valid regulation so
                frustrates property rights that compensation must be paid.
                          i. Ad hoc inquiry Factors:
                                    the economic impact of the regulation
                                            (i) the degree of interference with investment backed
                                            expectations
                                    the character of the government action
                                            (i) Regulation that merely restricts the use of property
                                                     (a) Acceptable use of police power
                                            (ii) Physical invasion short of an occupation
                                                     (a) Subject to a balancing process (extent of the
                                                     occupation vs. the degree of public use)
                                            (iii) Permanent physical occupation
                                                     (a) Taking without regard to whether the action
                                                     achieves an important public benefit or has only minimal
                                                     economic impact on the owner. (Lorretto v. Teleprompter
                                                     Manhattan)
                                                              (i) In this case, the extent of the occupation is
                                                              necessary only for an analysis of compensation
         3. When the government seeks to regulate how you use your land (nuisance law)
                a. How far did the government go?
                          i. Was the government regulating merely to protect the public from a
                          nuisance?
                                    If the government action in question is depicted as a nuisance-
                                   control measure, then there is no taking notwithstanding the loss
                                   worked by the regulation.
                                    Underlying notion is that the government is curbing a public bad rather
                                   than expropriating a public good.
                                    Difference between individual action and government action for
                                   nuisance the person creating the nuisance has a comfortable
                                   defensive position in a private action, however they have a huge
                                   offensive burden to overcome in a government action
                          ii. State exercise of police power (not a nuisance) When governmental
                          regulation of a use that is not a nuisance works too great a burden on property
                          owners, it cannot go forth without compensation.
                                    “We are in danger of forgetting that a strong public desire to improve
                                   the public condition is not enough to warrant achieving the desire by a
                                   shorter cut that the constitutional way of paying for the change.” –
                                   Holmes (PA Coal)
                                    Dimunition in Value Test: The more drastic the reduction in value of
                                   the owner’s property, the more likely a taking will be found. (Single most
                                   important factor)
                                            (i) Depends on the facts of each case
                                            (ii) Factors to Apply: Was there a substantial advancement of
                                            legitimate state interests? What was the extent of deprivation of
                                            the use? What harm is it preventing?
                          iii. Extractions: A promise for a permit.
                                    Nollan: RULE: Essential Nexus Test: There must be an essential
                                   nexus between what the state asserts as their original purpose for
                                   the restriction and the condition they impose.
                                            (i) The creation of a lateral easement was not rationally related
                                            to the board’s goal of preserving a view of the ocean from the
                                            highway.


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic b:       Regulation by the State

                                      Dolan: RULE: Rough Proportionality Test: An individualized
                                     determination that the required dedication is related both in nature
                                     and extent to the impact of the proposed development.




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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance



c. The Doctrine of Nuisance




Lawful exercise of police power (regulating nuisance) ---- regulation ----- Unlawful exercise of
police power (taking poss.)




DOCTRINE OF NUISANCE
Nuisance:


    1. Main feature of nuisance = invaded interest in the use and enjoyment of land – may be
         intentional or unintentional (intentional where conduct is unreasonable under the circumstances,
         unintentional when conduct is negligent, unreasonable, reckless, or ultrahazardous, High Penn
         Oil)

    2. Nuisance per se: occupation, or structure that is a nuisance at all times and under any
         circumstances, regardless of location or surroundings.

    3. Nuisance per accidens: those which become nuisances by reason of their location, or by reason
         of the manner in which they are constructed, maintained, or operated.

    4. Private nuisance: arises from unreasonable interference w/the use & enjoyment of land.

    5. Public: an act that interferes w/general community interests or the comfort of the public at large.

    6. Unreasonableness = in order to give rise to liability, nuisance must be substantial OR must be
         either intentional or unreasonable OR the conduct must be negligent or reckless.



California civil code sections page 713
Restatement of the law of torts page 717

Rogers v. Elliot (1888) page 719 (The “Quasimoto Must Stop” Case)
Plaintiff lived across the street from a church. Due to an illness, loud noises could cause plaintiff to have
convulsions. The clergyman of the church was asked to not ring the bell, but he refused to refrain from
ringing it, causing it to be rung eight times on the next Sunday. The noise caused plaintiff to have violent
convulsion, which increased the illness and retarded his recovery. Plaintiff brought suit against the
clergyman and the trial court determined he was not entitled to recover. The matter was reported to the
court for its determination and it granted judgment on the verdict. It was not contended that the ringing of
the bell for church services in the manner shown by the evidence materially affected the health or comfort
of ordinary people in the vicinity, but plaintiff's claim rested upon the injury done him on account of his
peculiar condition. Further, plaintiff could not put himself in a place of exposure to noise and demand as

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance
of legal right that the bell should not be used. Finally, in the absence of evidence that the clergyman acted
wantonly or with express malice, that implication could not come from his exercise of his legal rights.
Trespass on the case – indirect invasion of property rights. Early cases were not trespass absent
physical invasion. So, the courts came up with this cause of action as a substitute in case there was no
physical invasion; example noise trespass. Nuisance – the use of property which unreasonably
intereferes with the quiet use and enjoyment of another’s land.
If everyone in the area is used to the nuisance, does that mean it is no longer a nuisance? Where do you
look for the “reasonable person”? coming to the nuisance could be a factor in the remedy. If the houses
encroach on the nuisance, the court will still find the nuisance a nuisance but the remedy will be different;
for example the community might have to pay to buy out the nuisance.



Tedescki v. Berger (1907) page 723
Plaintiff filed a complaint that sought to abate a nuisance of a bawdy house. Defendant filed a demurrer to
the complaint, and the trial court sustained the demurrer. On appeal, the court reversed the trial court's
decision and rendered a judgment overruling defendant's demurrer. Plaintiff argued that defendant, as the
landlord of the house, was allowing the activities that occurred in the house. The court held that a house
of ill fame, or a bawdy house, was a public nuisance. The court found that defendant could be found liable
for the actions in the house if the house was rented for the express purpose of conducting the illicit
operations. The court concluded that the trial court's judgment sustaining the demurrer filed by defendant
was improper. House of prostitution is a public nuisance and you can’t bring an action for abatement.
Only if it affects you as a private nuisance or if you can show that as a public nuisance you are suffering
some harm different from all the rest of the public, then you can bring suit. Example: hospital dumping
human waste products into a street you have to walk through every day. It’s a public nuisance but it
affects you more than the rest of the public so you have standing to bring suit. Landlord becomes liable if
he somehow becomes involved in aiding or causing the nuisance.



Culwell v. Abbott Construction Co (1973) page 727
Plaintiff tripped over a chalk line (a nylon string) and was injured. Judge refused to instruct jury on public
nuisance argument and refused to include plaintiff's requested jury instructions, holding information
already included within other questions. A verdict was returned in favor of defendant and plaintiff
appealed. Question raised on appeal was whether evidence adduced at trial was sufficient to support
theory of recovery based on nuisance so that plaintiff was entitled to instruction upon nuisance theory.
Court held plaintiff not entitled to instruction as plaintiff had provided insufficient evidence to support
public nuisance claim. Plaintiff did not establish sufficient evidence that the frequency, continuity, and
duration of the chalk line made it a public nuisance. Court held that temporary obstruction of sidewalks for
improvement of property and enjoyment of premises are necessary and not unreasonable and thus not
public nuisance. Court also held plaintiff not entitled to specific instructions where content was contained
in other questions.
Culwell v. Abbott Construction Co.- π tripped over a chalk line that Δ put up. An element of a nuisance is
that the activity is in continuous use & duration. An activity which occurs only once, or a few times, is not
a nuisance. If the activity is of a one time or few times deal, the theory of liability should be under
negligence.
You can always bring action under trespass or another theory of recovery. The chalk is not a nuisance
b/c it is a temporary condition. No injunction or specific performance unless you can demonstrate that
remedies at law are inadequate.
Zoning Ordnances Can Always Be Challenged on Grounds That They Don’t Conform To The Enabling
Legislation. Can be a substantive or procedural defect.




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  Part III:         The Elements Of Ownership
  Section C:        Control
  Topic 4:          Interface With Control
  Subtopic c:       The Doctrine of Nuisance



  Torts readings page 733


  Morgan v. High Penn Oil Co. (1953) page 737
  Appellees filed a civil action that sought to enjoin appellants from continuing its operation of an oil refinery
  and temporary damages. The trial court found in favor of appellees. The trial court denied appellants'
  motion for nonsuit. The supreme court reversed and ordered a new trial for both appellants. The court
  found, in appellant oil company's situation, that appellees had established an actionable nuisance claim at
  trial but in their complaint, appellees contended that appellants were negligent and careless in
  constructing and operating the refinery. Because negligence and private nuisance were distinct fields of
  tort liability, the court found that appellant oil company was entitled to a new trial. In appellant land
  owner's case, the court found that the action should have been involuntarily nonsuited because recovery
  could not be had in a civil action on the basis of matters alleged, but not proved, or proved but not
  alleged. Opinion by Sam Ervin of Watergate fame.
 i. Morgan v. High Penn Oil Co. (1953) – defendant is an oil company that emits nauseating gases and
    odors which plaintiff’s allege interferes with the use and enjoyment of their land. Defendant alleges that
    in order to establish nuisance, plaintiff needed to establish that defendant acted negligently. Defendant
    created a nuisance.
         1. Nuisance per se = occupation, or structure which is a nuisance at all times and under
             any circumstances, regardless of location or surroundings.
         2. Nuisance per accidens = those which become nuisances by reason of their location, or
             by reason of the manner in which they are constructed, maintained, or operated.
         3. Sic utere tuo ut alienum non laedas = every person should so use his own property as not to
             injure that of another  When one makes an improper use of his own property and in that way
             injures the land or some incorporeal right of one’s neighbor.
         4. Main feature of nuisance = invaded interest in the use and enjoyment of land – may be
             intentional or unintentional (intentional where conduct is unreasonable under the
             circumstances; unintentional when conduct is negligent, reckless, or ultrahazardous)
         5. Intentional conduct is not accidental or unconscious
         6. Reasonableness = objective, substantial harm (social, not individual norms) Gravity of Harm
             vs. Utility of Conduct
         7. Nuisance reaches wholly lawful conduct and unlawful conduct.
         8. Restatement Sec. 825 = a person who intentionally creates/maintains a private nuisance is
             liable for the resulting injury regardless of the efforts to avoid injury.
ii. Public v. Private Nuisance:
         1. Private = arises from unreasonable interference with the use and enjoyment of land.
         2. Public = an act that interferes with general community interests or the comfort of the public at
             large.
         3. Per Se (at law) = liability no matter how reasonable the defendant’s conduct. Abnormal,
             untrahazardous, and activities unsuited to their surroundings, and activities designated by
             statute as nuisances.

iii. Unreasonableness:
        1. An interference with use and enjoyment of land, in order to give rise to liability, must be
           substantial, OR it must be either intentional or unreasonable, OR the unintentional result of
           negligent, reckless or abnormally dangerous activity.

iv. Nuisance vs. Trespass:
       1. Nuisance protects the right of use and enjoyment and reaches conduct that doesn’t physically
          invade the property.


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance
      2. Restatement: asks about reasonableness of defendant’s conduct separate from harm to
         plaintiff – looking for the greater social utility.


How To Analyze A NUISANCE Case For Shaffer
A. Definitions
         a. protects property owner’s right to use and enjoyment of property – can be infringed without a
            physical intrusion – right not absolute – must prove damages
         b. nuisance per se: act or thing that is nuisance whenever it occurs (ie toxic waste)
         c.   nuisance per accidens (nuisance in fact): lawful activity that constitutes nuisance only
              because of where or when it takes place (hog farm in a city)
B. Nuisance Factors
         a. balancing process – weigh reasonability of neighbor’s conduct against harm to you (what it
            utility of act to him?)
         b. Gravity of Harm vs. Utility of Conduct
         c.   define “unreasonable conduct”: circumstances; fit & appropriate; not excessive; unnecessary
              for accomplishing end (degree of care used by defendant important)
         d. need nexus between injury suffered and land itself
C. Checklist for Behavior
         a. Utility – look at the benefits being derived from the conduct.
         b. suitability for purpose
         c.   context
         d. malice
D. “Coming To The Nuisance” Doctrine: cannot complain something a nuisance when person entered
   property knowing a nuisance – have to take premises in way you find them
E. Priority Of Possession – important who was there first
F. Causation: was D responsible for all of harm?
G. Hyper Sensitive Π - Special sensibilities of P
H. Analogize Cases by nature of conduct which has previously been found a nuisance
I.   Unintentional Nuisance
         a. Was it negligent?
         b. Was it ultra-hazardous
         c.   Was it reckless?

Carter v. Lee (1973) page 743
Plaintiffs brought an action against defendants, developer and city, for damages under Tex. Rev. Civ.
Stat. Ann. art. 7589a resulting from the diversion of water from defendant developer's land onto plaintiffs'
land. The jury found for defendants, finding that they had caused permanent damage to plaintiffs' land but
that the land was worth the same amount both before and after the diversion. On appeal, the court
reversed and remanded, finding that the failure to award damages was contrary to the great weight of the
evidence. Testimony from both parties showed land values higher than that found by the trial court and
damage values of at least a certain amount. The court further found that the jury instructions were
ambiguous because the trial court referred to the "property in question" rather than specifying the entire

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance
tract, the acres to be developed by plaintiffs, or the acre where the water flowed. Finally, the court
overturned the jury's finding that defendant city's actions were reasonable in allowing the diversion,
holding that the verdict, while based on a valid legal defense to an intentional diversion action, was
manifestly unjust under the facts of the case.
p. 747 In determining the gravity of the harm from an intentional invasion of another’s interest in the use
and enjoyment of land, the following factors are to be considered:
    1. the extent of the harm involved;
    2. the character fo the harm involved;
    3. the social value which the law attaches to the type of use or enjoyment invaded;
    4. the suitability of the particulare\ use or enjoyment invaded to the character of the locality;
    5. the burden on the person harmed of avoiding the harm;
    6.
Piano teacher would cite Rogers and say he is a hypersensitive π. Should the whole world stop because
he sleeps during the day? What options are available to each party? Defense would cite private
nuisance.

Torts readings page 751


Christopher v. Jones (1964) page 753
The chemical corporation argued that the injunction was improper because it was issued to enjoin a
completed act and the landowner's remedy at law was adequate. The court disagreed and affirmed the
trial court's issuance of the preliminary injunction. The evidence showed that a well maintained plant was
not supposed to leak chlorine gas to the adjacent land, and that for at least two months gas fumes were
detectable on the landowner's property, and that even after the trial commenced chlorine gas was leaking
on the chemical corporation's property. Therefore, there was sufficient evidence showing that the
chemical corporation was operating its plant in an unnecessary and injurious manner, supporting the
issuance of the order. The court also found that the trial court did not abuse its discretion in ordering the
preliminary injunction. The landowner offered the testimony of experts, which testified that according to
chemical tests, the chlorine level found in the leaves of damaged trees was significantly higher on the
land located closest to the chemical corporation.
Christopher v. Jones- Δ’s plant was injuring π’s property and π claimed a nuisance. Δ answered that π’s
remedies at law were adequate so an injunction can’t be granted. In defining a nuisance, there needs to
be a ongoing, continuous activity. If a nuisance is found, then an ongoing, continuous activity has been
found. If the activity that is ongoing & continuous is injurious to others (i.e. a nuisance), then an injunction
can be granted to stop the injury because remedies at law (damages) are not adequate to stop the harm.
Texas Rule: Civil Law Rule: Uphill owner enjoys servitude over all lower hill owners to let water run off.
But, if I’ve done something to re-configure the land and caused the water to flow differently, then I’m
liable.
Could if be a trespass? Yes, unless it was naturally flowing. In-other-words, if it comes on your land due
to my actions then it could be a trespass.

Nuisance = intentional and unreasonable.
Test for Injunction: will the behavior continue without the injunction?

§ 29.05 Defenses to Liability for Private Nuisance [477-478]
At one time, many courts recognized a defense called coming to the nuisance; plaintiff
who moved into the area after the offending conduct began was not entitled to recover.

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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance

Today almost all courts reject this defense. However, a number of other defenses (e.g.,
laches, statute of limitations) may apply.


Spur Industries, Inc. v. Del E. Webb (1972) p. 759 (Coming to the Nuisance) TRESPASS &
NUISANCE
Defendant owned cattle feedlots prior to the construction of plaintiff's nearby residential development.
Plaintiff sued defendant, claiming that the feedlots were a public nuisance because of the flies and odor
that drifted toward the development. The trial court permanently enjoined defendant from operating the
feedlots. The court affirmed the judgment of the trial court permanently enjoining the feedlot operations,
holding that the feedlots were both a public and private nuisance. A populous neighborhood was affected
by the odor and flies, and the public's health was affected. The court held, however, that plaintiff, having
brought people to the nuisance to the foreseeable detriment of defendant, was required to indemnify
defendant for his costs of relocating or shutting down the feedlots. The court, therefore, remanded the
case for a hearing on the damages sustained by defendant.
A. Coming to the Nuisance:  is not entitle to relief if he knowingly moves into an area of
   industrial/agriculture and ’s property is damaged because of this.
       1. EXCEPTION: Spur Industries, Inc. v. Del E. Webb Development Co., (Ariz. 1972): A legal
            and necessary business may become a public nuisance when carried on in a populous area
            where people are injured. When a residential developer encroaches on a lawful, noxious
            business, the developer must indemnify the business for any damages incurred by shutting
            down and/or moving the noxious activity away from the public.

B. Boomer v. Atlantic Cement Co. (NY 1970): Created doctrine of “permanent damages”granting
   injunction until  pays damages (as fixed by Court); balances the parties’ interests by protecting 
   from threat of constant/future litigation, protecting them from cost of loosing business and reimbursing
   the  for past and expected future damages.
C. Comparative Nuisance: apportion the damages/cost according to the degrees of comparative
   responsibility
D. Trespass is a better legal basis for relief. This would injur Spur, but then Spur could argue
   prescriptive easement of the air above the homes. Once you take trespass out of the equation, as is
   the case with many nuisance actions, it is much more difficult to come to a rational decision. Doctrine
   of nuisance is that when you start relating it to non-phyiscal activities that affect quiet use and
   enjoyment, it could be anything. Reasonableness of the fear must be considered. Courts have wide
   range in equitable remedy due to history of courts of equity to get around rigid application of rules of
   law. Sometimes rigid rules of law can lead to absurd results.
E. No hard-and-fast rule if coming to the nuisance is a defense. More often it is a factor is determing
   remedy. Del Webb got the land cheap b/c of the feed lot and he should have taken some of the action
   to settle with Spur or buy them out.




Torts readings page 765


Nestle v. City of Santa Monica (1972) page 767
Appellant property owners instituted an action to recover for both property and personal injury damages
caused by respondent city's operation of an airport. Specifically, they claimed that vibration, fumes, and
noise emanating from jet aircraft caused damage to their property, interfered with the free enjoyment of
their property, and resulted in physical pain, suffering, and emotional disturbance. They asserted inverse
condemnation, nuisance, negligence, and zoning violations as theories of recovery. The trial court ruled
that the latter three counts failed to state causes of actions and found for respondent on the inverse

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Part III:          The Elements Of Ownership
Section C:         Control
Topic 4:           Interface With Control
Subtopic c:        The Doctrine of Nuisance
condemnation count. The court concluded that there was substantial evidence to support the judgment for
respondent on the inverse condemnation count. The court held that the trial court incorrectly dismissed
the nuisance action because Cal. Gov't Code § 815 did not bar such actions against public entities to the
extent such actions were founded on Cal. Civ. Code § 3479 or other applicable statutory provisions. The
court allowed appellants to amend their causes of action for negligence and zoning violations.
4 Claims for Relief
    1. Inverse Condemnation
              a. Not trespass; noise level results in a taking of a property interest.
              b. Court dismisses based on noises being “occasional intrusions.”
    2. Nuisance
              a.
    3. Negligence
              a. Dismissed due to failure to state a claim.
    4. Zoning Violations
              a. Dismissed due to failure to state a claim.
Each new offense starts the clock on a new Statute of Limitations.

MARTIN & REYNOLDS – APPLY TO THIS CASE AND TO SPUR.



McFarlane v. City of Niagara (1928) page 789 (Heel Caught in Sidewalk)
Contributory Negligence as a defense to negligence nuisance. Π in a nuisance action must
demonstrate due care proportioned to the danger.
While walking along a driveway, plaintiff tripped and fell when she attempted to step onto a walk
constructed by defendant. She caught her heel against a fan-like projection that jutted out of the cement.
The same condition had existed for over two years. Plaintiff testified she had noticed the projection at
other times. Her mishap occurred after dark. Plaintiff brought suit against defendant alleging the creation
of a nuisance. At the close of trial, the judge instructed the jury that defendant could not avail itself of
plaintiff's negligence. The verdict was in favor of plaintiff and defendant appealed. The court reversed
judgment because it found the jury instruction given at the close of trial was incorrect in that it stated
defendant could not avail itself of contributory negligence as a defense against liability for nuisance. The
court found plaintiff was under a duty to show care proportioned to the danger.
Comparative Negligence – California – proportion the remedy to the proportion of contributory negligence.
Degrees of negligence – consider all circumstances in light of fairness.



Torts readings page 795


Abatement of a Nuisance (1976) page 797


**Puritan Holding Co., Inc. v. Holloschitz (NY 1975) page 799
Ugly houses are an unreasonable interference with the quiet use and enjoyment of neighbors land
even though not a trespass.


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Part III:          The Elements Of Ownership
Section C:         Control
Topic 4:           Interface With Control
Subtopic c:        The Doctrine of Nuisance

Puritan Holding v. Holloschutz (NY, 1975)—plaintiff owns apartment building across the street from defendant’s building; says 
building became abandoned and was a nuisance and the he suffered damages from this. Holding: When a building is
abandoned and allowed to become a nuisance, damages may be recovered from adjacent owners for the difference in property
values before and after the existence of the nuisance.
A building owner claimed that it had sustained damages as a result of the condition of a neighboring
abandoned building. The building owner filed a private nuisance action against the abandoned property
owner. The uncontroverted proof at trial was that the abandoned property owner's building had
deteriorated, become unsightly, and been taken over by derelicts, causing a deterioration in values on the
block. The court found in favor of the building owner and held that the abandoned property owner's
building constituted a private nuisance. The court also found that the building owner was entitled to
damages in an amount equal to the difference in the market value of the building before and after the
nuisance. There were thousands of buildings abandoned throughout New York City, and some of them
did not constitute a nuisance. However, the abandoned property owner's building had been abandoned in
a location where property owners were actively trying to maintain and upgrade the housing standards.
Also, the abandoned property owner had clearly violated New York City, N.Y., Admin. Code § C26-80.0
by not providing continuous guarding or sealing of the vacant building.
Court defines nuisance as: The class of wrongs which arises from the unreasonable, unwarrantable, or
unlawful use by a person of his own property, and which produces such material annoyance,
inconvenience, discomfort or hurt that the law will presume a consequent damage.
Doesn’t rise to the level of trespass but is a nuisance cuz interferes with the quiet enjoyment and use of
prop as evidence by depreciating market value.
Rule: Ugly houses are an unreasonable interference with the quiet use and enjoyment of
neighbors land even though not a trespass.
Rationale: If there was no neighborhood beautification program, then the result may have been different;
probably because there would be no damages.
Public nuisance that affects you specially, then you can bring action; otherwise it’s up to the city attorney.

Hammonds v. Central Kentucky Natural Gas Co. (KY 1934) page 801
Where the fugitive resource is captured, then re-released, the capturer has not been held
responsible for damage done through the re-release. Hammonds, the slant drilling oil case.
A. Right to Exclude & Use
   1. The right to exclude does not involve an interference of other people’s rights: if you want to come
      onto my property and I do not want you there, no ones rights get violated.
      a. Trespass Statutes do not require that you show that the person’s presence is harming you—
           you can exclude them without such a showing. Strict liability tort and entitled to an injunction
           by the mere fact that the person is on the your property.
           1) Hammonds v. Kentucky Gas Company: Gas Company pipes went through cavern under
               Ms. Hammonds’ house. Hammonds sued for trespass:
               a) Strict Liability Tort: Hammond won just by the mere fact that the gas was under her
                   house on her property (no proof of harm required).
               b) Balancing Test: Reasonableness standard used for smoke coming onto Hammonds
                   land from the Gas Company.
   2. The right to use your property the way you want requires a balancing of your rights with the rights
      of others. If I can use my property in the way I want, it may very well limit the way another person
      uses their property.

After exhausting the gas from a leased field, the company brought in vast quantities of gas from distant
fields and put it by force through its previously drilled wells into the vacated underground reservoir,
withdrawing it as desired. The adjacent property owner brought a trespass action against the company
alleging that the gas was placed in or under her property without her knowledge or consent. The trial


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Part III:         The Elements Of Ownership
Section C:        Control
Topic 4:          Interface With Control
Subtopic c:       The Doctrine of Nuisance
court found for the company and the court affirmed the judgment. The court found that the company had
acquired title to the gas but when it restored it to its original natural status by being placed in the
reservoir, taking the place of other gas which once occupied that same subterranean chamber, the
company was no longer in possession of the gas and therefore, lost its title to the gas. Therefore, if the
gas wandered into the adjacent property owner's land, the company was not liable to her for the value of
the use of her property, for the company ceased to be the exclusive owner of the gas, it again became
mineral ferae naturae.
So, if the Gas Co does not own the escaped gas, what is to prevent the homeowner from drilling their
own well and trapping all the escaped gas? Would the Gas Co. then try to re-assert its ownershp of the
gas? I think the π should have brought an action for negligence as well. This case is a recap of the
entire course. The Gas Co. no longer controls the gas, so the boundary is blurred and it’s not a trespass.
Once the gas escapes, it is unowned again. Under Keeble & Hickeringill, she would be entitled to
exclusive access to the gas.




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Part III:         The Elements Of Ownership
Section d:        Tenant – Landlord
Topic 1:          Boundary
Subtopic d:       Fixtures


§ 17.09 Fixtures [258-259]
Traditionally, any chattel permanently affixed to the premises by the tenant was a
fixture,
and thus became the property of the landlord. In order for a chattel to become a fixture
today, the tenant must intend for it to become a permanent part of the premises.

Fixtures: Chattel that is annexed to the soil or to real property—permanently attached
         A. Common Situations
                 1. Sale of houses: ie whatever is inside/ attached to house—furnaces, radiators, etc are
                     transferred with the sale
                 2. Tenancy: what if a tenant makes an improvement on the property; landlord/ tenant—
                     improvements to property
                 3. Inheritances: fixtures go w/ the property inherited
                 4. Taxation: fixtures are taxed under real estate tax also
                 5. When mortgage lenders seek foreclosure on lender’s lien on real property including
                     its fixtures. Wyoming
         B. Three categories of fixtures:
                 1. If chattel is not physically attached to realty, not a fixture, always personalty
                 2. Chattels attached physically so that removal can’t occur w/o material damage, always
                     fixture
                 3. Chattels attached physical so that removal can’t occur w/o material damage, always
                     fixtures
                 4. Chattels physically connected and can be removes w/o material damage  here it is
                     dependent upon the intention of the annexor and the purpose of the property—does
                     it have a direct connection to purpose of the realty?
                 5. How long was it there?
         C. Varieties of fixtures: Trade fixtures: appointments attached go back to lessee upon expiration
            of lease, if it is apparent that tenant did not intend them to be a gift to the lessor
         D. Laws of fixtures are default laws: take over when parties haven’t specified a contrary result
         E. Mortgages and fixtures: when does chattel become part of realty that is mortgaged?
            Depends—mortgage can take out a specific chattel mortgage, also – issue is confusing and
            in part turns on when the chattel was attached, and on what the annexor’s intention was
            when chattel was attached to land
         F. Mortgages: Two theories as to what kind of interest they convey, crts choose one theory as
            applicable
                 1. Title theory: at time of mortgage, A is giving his title to the property
                 2. Lien theory: at time of mortgage, A is giving lien to property; not a trasfer of title



Wyoming State Farm Loan Bd. V. Farm Credit System Capital Corp.
        Test: 1) whether pipe was affixed (it was sometimes); 2) intimately connected to use of law? 3)
         Intention. Real issue is whether the Rumereys showed sufficient intent to make the pipe a fixture.
         Use standard of objective intent


Cameron v. Oakland County Gas & Oil Co (1936) page 805 (Fixtures)
Cameron v. Oakland County Gas & Oil- Δ leased property from π & built a gas station. Δ’s lease is up &
wants to remove the gas station. Under common law, when an object has become annexed (attached) to
the land, it belongs to the landowner, not the tenant, because they are fixtures. However, under
principles of public policy where the gov’t wants to encourage trade, business & land use, if the object

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Part III:         The Elements Of Ownership
Section d:        Tenant – Landlord
Topic 1:          Boundary
Subtopic d:       Fixtures
was a trade fixture, erected for the sole purpose of carrying on tenant’s trade, then the tenant cant
remove them and they are not deemed to be a part of the land.

Plaintiff landlord and defendant tenant were involved in an action regarding the ownership of buildings
erected by the lessee on the landlord's property, which were used for the operation of a gas station. The
tenant appealed from a decree of the a trial court (Michigan), which held that the buildings belonged to
the landlord and could not be removed by the lessee.
The lessee entered into a lease of land to operate a gas station upon and erected a gas station and other
buildings on that property. The lease did not designate who owned the buildings at the end of the lease.
That court reversed the judgment of the trial court and held that the buildings belonged to the lessee. The
court held that buildings were excepted from the general rule that fixtures remained with the property
because the buildings were erected by the lessee at its expense, for the purposes of operating the gas
station. Thus, the buildings, as between the parties, were personalty that the lessee was entitled to
remove.
UCC allows security interest in chattels prior to installation so that the lender can maintain a property
interest in the chattel, even if it is converted into a fixture at some later point.

Final Exam
3 hours
50/50 Multiple Choice & One Essay
All at once; allocate your own time.
How would a court decide? Present the rationale and the decision making process.
Nothing about claim, boundary, and control. That is just an organizational methodology. On the exam,
we MUST cite law, not theory.
Demonstrate your knowledge of how Courts talk; know how to make the right noises.




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