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NUISANCE

P had a claim of nuisance & if Ps claim succeeds, it will prevent Ds conduct. Nuisance
claims can be private or public.
- Public Nuisance: A public nuisance is unreasonable interference with a right common
to the public
o Cant be too speculative see Cornell prof Answ 1
- Private Nuisance: A private nuisance (privN) is substantial interference with the
use & enjoyment of ones land. PrivN can stem from [pick relevant one: intentional &
unreasonable interference or unintentional & actionable as negligent or
dangerous conduct].
o If PrivN = Intentional (meaning D intends the harm or acts knowing it will
occur): If privN is intentional, D need not show negligence, just
unreasonableness. Unreasonableness usually means utility from actors
conduct doesnt outweigh Ps harm. Other considerations include norms of
property use in the area & burden to P to avoid harm (see Calabresi &
Melamed; use suitability & priority of use tests below!)
[ Here, in the absence of greater harms suffered, the social utility of Ds
conduct probably outweighs the negative externalities of Ds conduct. ]
o Note: Vague concerns/worries over safety may be too speculative to support a
nuisance claim.
o The harm P suffers must reach the requisite threshold to sustain a
nuisance claim (i.e. would cause a normal person emotional distress (see
Schild v. Rubin)). cant be unduly sensitive Cornell prof Answ 2
o Factors to Consider:
Suitability of [Ds activity; e.g. gas drilling] to the area Cornell prof
Answ 3
Consider: Social norms dictate that neighbors should put up
with minor incidents (Ellickson)
Priority of Use (which came first?) Cornell prof Answ 3
Coming to a Nuisance Defense Courts often weigh in favor
of prior use b/c the price of property/land usually reflects its
encumberments/benefits
Ultrahazardous Activity? SL Cornell prof Answ 3
- P wants INJUNCTIVE RELIEF, BUT can P get it?! Even if P establishes that [X; Ds
conduct; e.g. the gas well & drilling] is a nuisance, P still must prove he/she deserves
an [injunction], leading the Court to undergo a balancing analysis (does cost of
injunction to D outweigh benefits to P?). Thus, even if a court finds a nuisance, it
can just impose a liability rule, enabling D to continue the nuisance upon paying
damages to P (see Boomer v. Atlantic Cement). [X; e.g. the tainted water under Ps
land] constitutes an [intentional/unintentional] trespass because [D acted/D didnt act]
with intent to intrude.
o The general RULE is: an injunction will be granted, BUT NOT if the cost
to D is substantially greater than the benefit to P.
TRESPASS (OL 99)
Trespass is unprivileged intrusion onto anothers property/land. Thus, it violates ones
right to exclude. It can occur both above and below the lands surface.
- Privilegesee Cornell prof 5
- Unintentional Trespass: Liability for unintentional trespasses only gets imposed if
harm results AND Ds conduct was negligent, reckless, or abnormally dangerous
(CB 288).

Acquire Land Subject to Burden of Prior Owners Lease? Cornell Samp Answ 5
TAKINGS
- "Takings" Tests:
o Economic-Hardship/Diminution-of-Value Test (Penn Coal) See Cornell Prof 6 &
Cornell Student back-of- 3
Factors:
(1)Economic Impact
(2)Investment-Backed Expectations
(3)Nature of the government action
o Permanent Physical Occupations Test (Loretto)
o Total Takings Test (Lucas v. South Carolina Coastal Council)
ADVERSE POSSESSION
APs 4 elements are: actual entry giving exclusive possession that is; open & notorious;
adverse & under a claim of right; & continuous for the statutory period. (OLOD 28)
RIPARIAN RIGHTS (OLOD 37)
1. Reasonable Use Doctrine (37)
- Riparian owner is entitled to reasonable use, which means he/she can use as
much water as needed to satisfy his/her "natural (aka domestic) wants, but
cannot use beyond that (to meet artificial needs) if such use deprives downstream
owners if their natural wants
2. Natural Flow Doctrine (38)
- Owners can use water however they want as long as it doesnt affect
quality/quantity of water
3. Prior Appropriation Doctrine (39) generally the rule for arid states contrasts
to Riparian Rights (see table on 3940)
PATENTS
- Property rights secured in an idea must be: (1) novel AND (2) original

Springing & Shifting Executory Interest (62)


Future Interests Chart (62)

Restraints of Alienation (Transfer) OL 69


- FS: any total restraint of a FS = Void
- Life Estates:
o Forfeiture & Promissory Restraints = Valid
o Disabling restraints = Void
- Leaseholds
o Generally all restraints = Valid

Joint Tenants (JT) (CB 189): JTs share an equal, undivided interest in the property w a
right of survivorship
- MUST be created & maintained w the four unities ( if 1 or more of the unities
is missing not a JT but rather a TinC)
- Rules from Nogarr (applies Lien Theory not title theory) CB 193:
Lien Theory: Execution of a mortgage (as can be done via issuing a promissory
note) by one joint-tenant does not sever the joint tenancy
- contra title theory
Execution of a mortgage lien by one joint tenant does not attach to the other joint
tenant (who assumes the entire property) upon debtor joint tenants death
Tenancy in Common (TinC) (CB 189): a form of joint ownership without a right of
survivorship
- Creation: expresslyto A and B or by operation of law (e.g. if several ppl inherit the
same property)

EASEMENTS
EasementImpliedfromPriorUse(PrescriptiveEasement)UGAProfSamp1

Rationales/PolicyReasonsBehind[whetherprofessionaltraining/educationalassetscanbemaritalproperty]
-

GrahamsaidNO(OL87)

OBriensaidYES(OL88)

TransactionCosts(Coase)HoldOutProblemOL97

PropertyRule;LiabilityRule;Inalienable(Calabresi&Melamed)OL98

Conversion=takingsomeelsesrights(seeMoore)

GoodfaithimproverOL102

o Pilev.Pedrick(100)appliesabrightlinetest(clear,rigid,easytoadminister):propertyruleinfavorof
propertywnerafter1styear

o Raabv.Casper(102)movesawayfrombrightlinetest&insteaddependsonvaguenegligencedetermination
PropertyRulevs.LiabilityRuleCaseChart(OL106)
AppurtenantEasement(OL109)runswtheland(subsequentownersautomaticallygettheeasementrights)

InGrossEasement(OL110)doesnotrunwtheland;easementgrantedonlytothatspecificperson;independentof
anylandpossession

Candodamagesweasements[note:cannotdodamageswFSSCS;violatingaFSSCSresultsinforfeiture]

AdversePossession>Intent(statessaydiffthings;goodbadindifferent?whichshouldweapply?)OLOD30Subjective
Testaskabout
-

clearwriting=IMPORTANT

AP>preferweapplyMaine(intent;hostile)orConnRule(nothostile;mistake;dontneedintent

Rule:Assumethateasementconveyancesareintendedtoaccommodatefutureneeds(Faux,OL111)

AppurtenantEasements(runwiththeland)GeneralRule:Easementsappurtenanttooneparceloflandcannotbe
extendedtoownerofdominantestatesotherownedparcelsofland,whetheradjoiningordistanttracts(otherwiseitsa
misuseoftheeasement)

ElementsofRealCovenant(akaacovenantrelatingtoland)OL115,CB756
1. Intenttobindthecovenantorssuccessors(doesntrequireexpressreferencetoassignsor
successors,butthesewordswouldestablishtherequisiteintent)
2. Privityofestate:
VerticalPrivity:

o Existsifthecovenatorssuccessorhassucceededtothesamestate(akathesuccessoracquiredthesame
interestthathispredecessorhad)
HorizontalPrivity:

o Diffrulesfordiffjurisdictions(seeCB757758)

Commonapproach:covenantmustbecreatedsimultaneouslywatransferofaninterestintheland

3. Covenantmusttouch&concerntheland
4. Subsequentpurchaserofpromisorslandmusthavenoticeofcovenant

Tofallunderthe14thAmendment(Fourteenth)itmustbeastateaction(judicialenforcementqualifies)
-

Shelleyv.Kraemer(OL117):ButforactiveinterventionofStatecourts,petitionerswouldhavebeenfreeto
occupywithoutrestraint

EquitableServitudes(CB775776;OL117)
-

Equitableservitudesareintereststhatpasstosuccessiveownerswhohaveknowledgeoftherestriction

Equitableservitudesaretheprimarymeansofenforcingprivatelanduserestrictionstoday

Remedyforbreachinganequitableservitude=usuallyinjunctiverelief(equitableremedies)

Ct.swillNOTenforcerestrictivecovenantswhen:
-

EnforcingtherestrictionswouldbeinequitableandoppressiveandwouldharassPwithoutbenefitting
adjoiningowners;OR

Whereachangeinconditionsrenderpurposeofrestrictionsobsolete(OL118)

ifplaintiffwantstosueforDAMAGESyouconstruethepromiseasarealcovenant...ifplaintiffseeksanINJUNCTION
orsomeotherformofequitablereliefyouconstruethepromiseasanequitableservitude....

Riparianrightsvs.PriorAppropriation
rm 3043
To A for life, remainder to B
- B dies first
- then A dies
- Do B's heirs have ownership? or does is revert back to O? (I think B's heirs have
ownership...)
is a remainder inheritable?
Executory Interests:
"To X so long as no one uses alcohol on the property, then to Y"
- ^ can this ever satisfy RAP if the executory interest is an organization/company/agency,
etc.? it's indefinite...
Format Property Exam:
- Probably going to be a 2,000 word limit (so think abt what you need to say & how much
you want to say abt each issue)
- Issue Spotter: if there are less important issues that you dont want to waste much
time/space on, still mention it (but maybe just briefly or in a footnote)
- Bullet point OL form = perfectly good (Weiner recommends always outlining your answer
before you write it)
- In the past:
(1) Issue-Spotter Question (a fact pattern w a variety of issues raised in the fact
pattern; it's very important ti look at how the ? is posed "e.g. you are the lawyer for
party A, what claims could you bring?" "which of these is the strongest/which of
these is most likely to succeed?"
- ^youstartbymakingalistoftheissuesyousee/theclaimsthatyousee(gosentencebysentenceto
seeifissuesarebeingraisedineachsentence)

Ex.)hewillaskaboutthestrengthsandweaknessesoftheclaims[evaluatethoseclaimshewantsto
seeyourreasoning!]
o Totheextentthatyoucanrecognizeacounterargument&dealwithit,DOIT!explainwhy
youransweroutdoestheothersidesargument;yourargumentisstrongerisyoucanaddress/reconcile
thecounterargument

- goodwaytocheckthelist:lookbackatthesyllabuss39classsessions/topmainsection
(2)ProblemSolvingQuestion:(givesusaproblem&heasksforaproposaltofixite.g.youarealegislatoror
legislativeaidoragency)
- Might ask us to draft a legislative provision
o if asks for this ^ DONT FORGET TO DRAFT THE PROPOSAL
(3) Conceptual Question:
- asks about a concept that weve discussed in the course and asks us to discuss it
or evaluate a diff kind of argument
- could be a quotation from a judge or scholar
- Like writing a research paper
The world limit = for the entire exam
- usually pretty close to evenly weighted
-

Include the word count


Can be single spaced
Sign Honor Statement

Cite to cases & textbook

AP (Maine & Conn)

Divorce distribution (NY vs. CA) different rules suowadda v. endo ( old)
o The idea that there could be different treatments of this question (is the
innocent/non-debtor spouse subject to tort liability, yes or no? pros and cons of
saying yes or no to that question non-debtor spouses liability& the pros
and cons for different approaches!) KNOW THIS

Could ask us whether the resolution in this question turns on something (e.g. if
the intent/ state of mind of the party matter)

What hes really looking for is your reasoning, your analysis

Abbreviations are fine (if going to use it repeatedly, you might want to spell it out the 1st
time & then put abbrev in parenthetical & use abbrev from then on)
-

Both had a grantor convey to a recipient:


FSD possibility of reverter (automatic) OL 58
FSSCD right of entry (non-automatic; its something that the grantor could exercise
if they choose); the text in the grant must say explicitly that theres a right of entry
Policy Question: How tough do the courts want to be on the sleeping property
owner?
RAP is trying to remove these conditions so the land can be used more freely
An addl interest is when these future interests are waiting and waiting, they tend to get
inherited by another set of heirs (this is true also of wills)
Adverse possession (AP) color of title some jurisdictions had & some did not
Think about the policy reasons xplaining why the answer should be one or the other (e.g.
for this example ):
- AP-er adversely possesses a tenants life estate
- Does AP-er, after successfully meeting the SOL (10 yrs) get to have the rest of
the life estate or does AP-er get the underlying fee simple owners interest too?
o Problem: the underlying owner (FS) owner wasnt allowed to check on Life tenant
on the premises b/c it wouldve been too intrusive/interrupted this is a strong
argument for why AP-er doesnt get the full FS