Академический Документы
Профессиональный Документы
Культура Документы
Property Outline
What is Property?
A. The Right to Exclude
1. Jacque v. Steenberg Homes (p. 4) D intentionally treks trailer home purchased by
Ps neighbor across Ps property against Ps wishes.
a. P has right to refuse entry onto his property to D
b. loss of individuals right to exclude may be punished by punitive damages
despite the lack of measurable harm
i. punitive damages appropriate for intentional trespass b/c they constitute
deterrence and allow enforcement of trespass law
c. Holding: P awarded punitive damages for intentional trespass by D
2. State v. Shack (p. 12) - social worker and attorney trespass on Tedescos property to
assist migrant workers
a. Limitations on Right to Exclude for emergency and necessity
i. conflict between Ds property rights and rights of migrant workers
b. title to real property does not include dominion over destiny of persons the owner
permits to come upon premises
c. Holding: Ds right to exclude does not include right to bar access to
governmental services available to migrant workers, and hence there was no
trespass by P
3. Intel v. Hamidi (p. 20) disgruntled former employee used Ps email system to send
emails criticizing P
a. Trespass to chattels: interference w/ anothers possession or use of personal
property
b. damages for trespass to chattels only appropriate if there is tangible harm to
property
i. no damage to Intels email system b/c Ds emails constituted a small portion
of the total emails on system
ii. Intel claimed there was tangible damage in the loss of productivity from
employees having to delete Ds messages
(i) Should Intel have to wait until it is harmed to seek injunctive relief?
(ii) Should Intel be able to control the use of its email system?
(iii) This court said no to both
c. Holding: Ds use of email system did not constitute trespass of chattels b/c there
was no harm to Ps property (email system) or to Ps use of its property
i. D won the right to use email system, but not to overburden it
B. Different Types of Property
1. Pierson v. Post (p. 34) Pierson kills and carries off fox on public beach, knowing that
Post was already in pursuit of fox
a. first in time vs. second in time person
i. first in time to capture more reasonable, b/c its impossible to determine if
Post would have captured the fox
b. fox as vermin
i. courts want to encourage hunting and killing
c. must have actual possession of object to constitute ownership
i. pursuit alone does not equal ownership
d. constructive possession: person does not actually have possession, but law
constructs possession of the object
e. Holding: Fox was property of Pierson, who intercepted and killed it. Piersons
act in capturing fox constituted no wrong towards Post, and Post not entitled to
damages.
2. Keeble v. Hickeringill (p. 40) P owns pond w/ decoys to lure ducks as his
enterprise. D intentionally fires shots to scare ducks from Ps duck pond;
a. D had malicious intent
b. D unreasonably interfering w/ Ps enterprise
i. If D had interfered w/ Ps business by setting up his own competing business,
no action would lie
c. Holding: D liable for trespass and P awarded damages for disturbance caused by
Ds trespass
3. Popov v. Hayashi (p. 46) Dispute over ownership of Barry Bonds record homerun
ball. P first to stop balls motion, but after crowd brawl, D ultimately ended up with
ball
a. Different view as to what constitutes possession
i. first person to stop ball;
ii. first person to come into possession of ball; or
iii. first person to obtain complete control of ball
b. P took significant but incomplete steps to achieve possession and his effort was
interrupted by the unlawful acts of others,
i. So P had legal cognizable pre-possessory interest in property
c. Holding: Mob interfered w/ Ps possible possession, so court split ownership
between P and D
i. P and D ordered to sell ball at auction and split the proceeds
4. Anderson v. Beech Aircraft Corp. (p. 54) D injected gas into reservoir under Ps
and Ds properties. P landowner and P lessee under oil and gas lease brought action
to quiet title to gas P lessee produced from reservoir.
a. Ps lessee has right to retrieve non-native gas from their property
i. Gas previously injected into common reservoir by D, another landowner
ii. D had no license or lease covering land from which non-native gas is being
produced
iii. Lessee has possessory rights to gas from P through lease
b. D lost its ownership right after injecting gas into reservoir
c. natural gas is not property until it is removed from the ground
d. Holding: Ps entitled to produce non-native gas from reservoir beneath their
property.
II. Chapter 2: Acquisition of Property by Conquest, Adverse Possession, and Prescription
A. Conquest
B. Johnson and Grahams Lessee v. McIntosh (Page 116) Indians had possession of land
and transferred to Johnson & Graham in 1775 and want to quiet title. Govt had title to
land and transferred to McIntosh in 1819
1. Discovery vs. Conquest
a. Discovery gave Europeans right to extinguish Indian title of occupancy by
discovery, but until then Indians still had title
b. Conquest acquired by force; U.S. claimed title to land w/in its territories
i. deemed Indians incapable of transferring title of property to others
2. Holding: Indians transfer of title to McIntosh invalid b/c Indians didnt have right to
transfer title at that point in time; land belonging to U.S. govt
C. Adverse Possession and Prescription of Interests in Land
D. Ewing v. Burnet (Page 128):
J. Symmes transferred land 6/11/1798 Foreman 1798 Williams 1824 Ewing;
J. Symmes transferred same property to Burnet on 5/21/1803.
1. Burnet dug sand and gravel from lot and leased property to others to do the same, but
did not occupy the lot
a. Claimed he owned lot and paid taxes on lot from 1810 1834
2. Williams knew of Burnets possession of property and made no effort to enter land or
demand possession
3. Burnet had color of title even if he didnt have the actual title (was 2 nd in time
grantee)
a. Court more concerned w/ intent to occupy/use land than w/ actual titles
b. Doesnt matter that Ewing didnt acquire title until after Burnet had been
occupying land
4. Holding: Burnet had occupation of land for statutory period (21 years), SOL ran out
and Burnet acquired title by AP
E. Different standards for determining claim of right:
1. Why do courts care if occupant of property is aware that he owns property or not?
a. aggressive trespass standard (bad-faith): rewards those who have connection to
land, invested labor to develop land; want aggressive trespasser rather than
someone who doesnt know what hes doing w/ land
b. objective: we dont care what youre thinking, objective acts speak for
themselves; administrative ease
c. good faith: if you have color of title (written document upon which claim is
founded), good faith is presumed
F. Adverse Possession
1. Way to acquire title to property you dont actually own by possession
2. Purposes
a. Protects title b/c actual ownership can be difficult to prove
b. rewards those who use land productively
3. Four Requirements for Adverse Possession:
a. Actual entry of land and acquiring exclusive possession not sharing possession
w/ general public
b. Open and notorious reasonable notice that adverse possessor is claiming
dominion over property
i. Gives owner knowledge of AP
c. Adverse/Hostile to owner - w/o owners consent and not subordinate to owner
i. Objective test: APs acts must look like claims of ownership but AP is not
actually claiming title
ii. Subjective test: AP must have good faith belief that he has title
iii. Color of title: claim founded on written instrument not required
(i) Period required to establish title by AP shorter
(ii) Adverse possessor regarded as having constructive possession of
property described in deed
iv. Boundary disputes may lead to AP depending on jurisdictions requirement
regarding whether possession of land on boundary is intentional, adverse or
mistaken
d. Continuous, uninterrupted possession AP must make same use of property an
ordinary owner would
i. Seasonal use constitutes continuous use
4. Statutory Period, Tacking and Problems in Applying the SOL (p. 147-8)
a. When AP comes onto property owned by someone else, AP takes a number of
risks in addition to whether she is satisfying the above requirements
b. If owner has disability, statutory period for AP may be extended to a add on
certain number of years after disability has lifted
i. Owner has benefit of whichever time period is long
c. Owner cant tack on disabilities after AP has taken possession of property. (Ex.
if O dies and leaves property to heir that is a minor, but AP was already on
property, then disability doesnt matter)
d. Adverse Possessor can tack on period of AP to previous predecessors in interests
period of AP
5. Future interests not affected by AP
a. Remainders interests not affected by AP
G. Nome 2000 v. Fagerstrom (Page 131) Ds build summer home on property owned by
D.
1. Issues:
a. Dispute between land claimed to be used by D and actual portion of Ps property
occupied by D; D only used small portion of Ps property
b. D had Actual possession: not just placing belongings all over property (junkyard)
to constitute notice to owner of record
c. Open and notorious: D established physical occupation by presence of camper,
shelter, picnic area, non-native trees
d. Exclusivity: D let other people use trails on property, but kept people from
burning Ds firewood; were acting as hospitable landowners
e. Trails already existed before Ds came on property, possibly evidence that Ds
didnt adversely possess portion of property w/ trails
f. Continuous possession: D built cabin in 78, relevant period of continuous
possession is 1978 1987 for SOL
i. seasonal occupation by D used land only in summer
ii. important what other people (not Nome 2000) who encountered property
would think - would they consider D acting as landowner?
iii. Only occupying property for part of year can still lead to AP
2. Holding: Ds evinced purpose to exercise dominion and control over property. Ds
acquired title to land they actually occupied by AP, but not to other portion of
property not occupied by D.
H. Lawrence v. Town of Concord (Page 138) Harriet, testator, died and left property in her
will to daughter (life estate), then adoptive daughter (life estate), then to children of
adoptive daughter (contingent remainder), then to town when adoptive daughter dies (if
adoptive daughter doesnt have children or children dont survive her)
1. Testators adoptive daughter died and P, Harriets husband, takes control of property
2. Town not aware that they own property; No requirement that owner given notice of
adverse use of his property
a. No requirement that owner is aware of his ownership
3. Husband lives on property, rents property for some time period, and pays taxes on
property
a. P not owner of property, property couldnt have been left to him as an heir to his
wife b/c land was life estate and ownership ended when wife died
4. City couldve reasonably found out that they owned property by searched public
records b/c conveyance was in will
5. Holding: Husband occupied land w/o permission of owner, continuously for statutory
period, exclusively, openly, notoriously and adversely to true owner, and thus
acquired title by AP.
I. Cant adversely possess against the govt
1. difficult and costly for govt to monitor all its properties
J. Kiowa Creek Land & Cattle Co. v. Nazarian (Page 149): State of Nebraska NE Board
of Educational Lands and Funds (NBEL&F) Leased to Nazarians, then sold to
Nazarians
1. AP (Kiowa) comes on property when Nazarians are leasing land from govt and
public
How far is right to exclude?
i. should other cannonball performers pay a licensing fee to Z how creative
is the process
d. Holding: Z entitled to monetary damages for unlawful appropriation of his
professional property
B. Property Rights in Writings, Recordings, and Product Designs
1. Copyright Act - 70 years of protection for original literary, dramatic, musical,
artistic, intellectual works published and unpublished
a. Protects expression of idea, not idea itself exclusive right to work you
produce
b. right to exploit the work for profit and build derivative works
c. Provides economic incentive for authors to publish books and disseminate
ideas to public encourage creation of original works
d. Ensures works enter public after author's rights have expired
2. Fair Use Doctrine:
a. Balances constitutionality of copyright laws w/ 1st Amendment values
b. Allows use of work for purposes of criticism, parody, comments, news
reporting, teaching, research -- not copyright infringement
c. Considerations:
i. commercial or nonprofit educational uses
ii. nature of copyrighted work
iii. amount of portion used from original work
iv. effect of use on potential market or value of copyrighted work
d. Suntrust Bank v. Houghton Mifflin Company - Owners of copyright in novel
"Gone With the Wind" brought action for TRO and preliminary injunction to
prevent publication and distribution of allegedly infringing book "The Wind
Done Gone"
i. TWDG had element of creativity but needed to evoke images of characters
ii. TWDG could enhance value of GWTW b/c have to read one to understand
the other
iii. Holding: TWDG met fair use defense b/c work transformative enough as
parody
C. Trademark and Tradedress
1. Trademark: controlled by Lanham Act
a. have perpetual right to renew license, exclusive right to use and register
trademark and to prevent others from using it
b. Primary purpose is to protect consumers and avoid consumer confusion
i. Allows companies w/ good products to reap benefit of customer loyalty
c. Protection afforded by registered trademark:
i. Standing to bring cause of action in state & fed. courts
ii. Gives constructive notice to world of ownership
iii. Get notice from customs re: importation of similar goods (knock-offs)
iv. Can prevent dilution of trademark
d. Secondary Meaning: of something used to signify product
e. Doctrine of Functionality: No aspect of trademark should be functional
i. Trademarking functional attributes Impedes development
ii. Must prove that trademark protection, and not patent protection is
warranted
2. Tradedress: appearance of image of company has represented in some packaging
design; not registered
c.
3. Qualitex Co. v. Jacobson Products Co. (p. 249)- Manufacturer of press pads used
in dry cleaning and laundry establishments brought action against competitor
alleging trademark infringement and unfair competition when competitor copies
green-gold color for pressing cloth
a. Issue: Can color be a trademark?
b. If functional, then no; not functional now, so ok
i. Could be problem if all the good colors were already taken (green
pancakes)
c. Holding: (1) no special legal rule prevents color alone from serving as
trademark, and (2) green-gold of manufacturer's dry cleaning press pads could
be registered as trademark
4. Traffix Devices, Inc. v. Marketing Displays, Inc. (p. 254) MDI, maker of
Windmaster sign stands, brought trademark and tradedress infringement action
against Traffic that used WindBuster mark for its traffic sign stands
a. MDIs patent expired, so no claim to functional attributes, but claims spring
design has taken on secondary meaning
i. MDI had utility patent for spring design, signifying it was functional
b. Legal definition of functional: Exclusive use of attribute would put
competitors at non-reputation related disadvantage
c. Lay definition: springs necessary to function of device
d. Holding: Springs functional, no tradedress protection (won on Trademark
claim for similar names)
D. Patent Law
1. Grants inventors right to prevent others from making, using, or selling invention
for limited time period
2. Eligibility: must be novel, usefully, non-obvious in nature
a. Limits: laws of nature, physical phenomena, abstract idea
3. Term: begins on date issued and ends 20 years from when application filed
a. exception: design patents: 14 years from date issued
b. not renewable, making it more available fro public use
c. if modify enough can get patent extended (drug companies do this)
4. Three types
a. Utility: new and useful machine, manufacture process, composition in matter
b. Design: new, original, ornamental design for an item or manufacture where
only appearance and not actual item protected
c. Plant: new asexually reproducing plant
5. Diamond v. Chakrabarty (p. 262) - Issue: Does a living micro-organism
constitutes a "manufacture" or "composition of matter" within the meaning of the
patent statute?
a. respondent's claim nonnatural occurring manufacture/composition of matter
producing new bacterium so should be patentable
b. Holding: Congress intended wide scope for patent protection
i. Courts decision stimulated research in many new areas
E. Property Rights in Human Tissue
1. Conversion: tort that protects against interference with possessory and ownership
interests in personal property
2. Uniform Anatomical Gift Act (UAGA): Allows next of kin right to transfer parts of
bodies in possession to others for med. or research uses
a. Prohibits sales only for transplantation, therapy, or reconditioning
b. Moore v. Regents of the University of California (p. 266) - P not told by
doctor that his cells would be used to develop cell line. P brought action
iii. Holding: Money should go to her estate and then from her estate to pay for
the damages to the house.
d. Hausmann v. Hausmann (Page 355) - Esther Buckley deeded her son
George Hausmann a life estate in her property, with a remainder to Charles
Hausmann. George wanted a f.s.a. so upon the advice of his attorney stopped
paying real estate taxes for the property in an attempt to divest Charles of his
interest in the land.
i. Issue: Does not paying taxes equal waste? Is issuing an injunction a
proper remedy?
ii. Holding: Failure to pay real estate taxes on a life estate by the life tenant
may give rise to a cause of action in waste. An injunction would not be an
improper remedy. Award of punitive damages is also allowed.
iii. Reasoning - Waste occurs when someone who lawfully has possession of
real estate destroys it, alters it or neglects it so that the interests of persons
having a subsequent right to possession is prejudiced in some way or there
is a diminution in the value of the land being wasted.
e. Waste - rules governing the life tenants responsibilities for care and
conservation of the property.
i. Kinds of waste:
(i) Affirmative (voluntary) waste - results from intentional acts of the life
tenant that cause substantial damage to the value or character of the
property.
(ii)Permissive (Involuntary) waste - results from failure to make repairs or
to pay the ordinary carrying charges of the property.
(iii)
Ameliorating waste - life tenant increases the value of the
property by making permanent changes in its use substantially altering
structures, or building additional structures on the property.
3. Alienability of Life Estates - Fully alienable unless subject to a valid restraint on
alienation.
a. Life tenant cannot convey more than she has - an estate that ends when she
dies. A life tenant cannot sell the property unless the remaindermen or
reversioners are willing to join in the conveyance.
i. court may order a sale when the property cannot generate sufficient
income to pay the carrying charges or make repairs necessary to maintain
its value to protect the interests of both the life tenant and the future
interest holder.
ii. Problems arise when the future interest holder is has not yet been born or
identified.
F. Remainders, Reversions, and Executory Interests (Future interests)
1. Indefeasibly vested - A future interest is indefeasibly vested when there are no
conditions attached to it and it is owned by an identified person.
a. E.g. O to Irene for life, remainder to Daniel. or O to Irene for life.
2. Vested Subject to a Complete Divestment - A future interest is subject to complete
divestment if, on the occurrence of a condition, the interest will be shifted to
someone else.
a. Remainder - Will happen if there is an express condition subsequent attached
to the remainder.
b. Reversion - Will happen when a condition happens that causes another,
previously contingent, interest to vest.
c. E.g. O to Irene for life, remainder to Daniel if he survives Irene.
d. Contingent - A future interest is contingent when it is subject to a condition
organizations.
Only applies to executory interests, contingent remainders, and vested
subject to open.
d. No interest is good unless it must vest, if at all, not later than 21 years after
some life in being at the creation of the interest.
i. Need to determine if the interest will VEST or FAIL within the period.
e. Interests that violate the Rule are destroyed.
f. RAP Reform
i. Wait and See Test - wait and see what happens before deciding whether an
interest in void.
ii. USRAP - incorporates elements of wait and see and an irrebtuuable
presumption that a widow is a life in being. Provides an alternative 90year vesting period.
6. In Re Estate of Anderson (Page 380) - Conveyance: To the Trustee for the
education of the descendants of FA Anderson, Sr. for 25 years from the date of
admission of this will for probate, then to Howard Davis and if he is not alive, to
the heirs of his body.
a. Issue: Does this violate the RAP and if so should the future interests be
destroyed?
b. Holding: Yes it does violate the Rule but the court validates the trust anyway.
c. Reasoning: Principle that a persons will should be enforced so as to avoid
clearly unintended consequences. Court uses the wait and see test to save the
trust.
V. Concurrent Estates and Marital Property
A. Concurrent ownership: Tenancy in Common and Joint Tenancy
1. While you own property with someone else, you own undivided shares of property
each co-owner has a right to possess the whole
2. if you want to partition land youll have to reach agreement w/ co-owner or go to
court and get the court to partition land
3. If land transferred To A and B then presumption is that A and B will hold land as
tenants in common
B. Different Types of Co-Ownership
1. Tenancy in Common
a. interest in property is divisible either party may transfer their interest either
at death or inter vivos
b. If A and B own property, A can transfer interest to C either in As will or
during As lifetime
i. B and C will then hold f.s.a. in property as tenants in common
2. Joint Tenancy (with right of survivorship)
a. A and B hold property and B dies, As interest evaporates and B holds
property in f.s.a.
b. Property is not transferable either at death or inter vivos, but surviving party
has right of survivorship
c. If A transfers interest to C during life, A has severed joint tenancy and B and
C have tenancy in common
i. Can destroy other partys right of survivorship by transferring your interest
in blackacre
d. If A, B, and C have joint tenancy and A transfers property to D, then D is
tenant in common w/ B and C, but B and C still have joint tenancy
3. Tenancy by the entirety: limited to married couples
a. Property not transferable either at death or inter vivos
c.
a.
b.
b.
E.
F.
G.
H.
I.
J.
to them is of a different kind than the damage to the public at large, not enough to
show that they suffer the same kind of harm as the general public but to a greater
extent
Private nuisance: Affects a single person or small number of people in enjoyment of
private rights not common to public
Clark v. Wambold (p. 841) - P sued to enjoin D from maintain pig yard on property
bordering Ps
1. matter of equity: both parties use rights are premised on their black letter property
rights
2. trial court found piggery sanitary and didnt materially interfere w/ Ps enjoyment
of land
3. piggery first in time and country only place D can run the piggery
4. P purchased property from D so knew about piggery
5. P only using the property as summer residence whereas D using to maintain
livelihood
6. What does it mean to each person to use property as he wants and to prevent other
from using property as he wants?
7. Holding: Piggery not a nuisance; encourages neighborliness
Mitchell v. Hines (p. 842) P sues to enjoin use of neighboring piggery. D feeding pigs
with garbage, spreading dead animals over field public health concern
1. Piggery use increased since P purchased property made odors horrible
2. Harms to P: flies increased risk of disease and diminished property value
3. Holding: Nuisance piggery enjoined
Boomer v. Atlantic Cement Co. (p. 851) - P sues to enjoin D's cement plant b/c of injury
to P from dirt, smoke, and vibration emanation from plant
1. injunction denied in trial court though a nuisance was found b/c damage to P was
small compared to the value of D's activity social utility argument
2. Holding: Court enjoins nuisance until D pays P permanent damages for present
and future economic loss
a. Incentivizes improving technology and puts burden on D
b. Eliminate possibility of future nuisance claim by buying P out
3. Alternative Solutions:
a. grant injunction but postpone effective date to give opportunity for technical
advances
b. Give bargaining power to downstream user to demand price
4. Dissent: like eminent domain: forcing transaction of private person A and B in
benefit of person B
When courts grant injunctions they presume:
1. low transaction costs (not if lots of people can sue the person)
2. rational entities
a. not necessarily many don't bargain b/c annoyed
b. hold out problems and have cement plant move out
3. more appropriate for parties to value than court
Spur Industries, Inc. v. Del E. Webb Development Co. (p. 858) - Appeal from judgment
permanently enjoining P from operating cattle farm near Ds development
1. "coming to the nuisance"
a. would have barred recovery if D only injured party, but individual
homeowners injured
b. court concerned w/ rights of public
2. D got windfall from buying cheap land, so why should it benefit when P was there
first?
a. Why cant D built buffer zone? Would give D more property than they own
b. Problem w/ nuisance law: giving one party entitlement to part of others
property
3. Holding: D gets injunction but has to pay the cost of relocating Spur
K. Prah v. Maretti (p. 867) - Owner of solar-heated residence sued to enjoin neighbors
proposed construction of residence that would interfere with P's access to unobstructed
sunlight across D's property.
1. By favoring solar power, court incentivizes its use
2. Sunlight only a matter of aesthetics?
3. Problem w/ Notice: Would reasonable purchaser see solar panels anywhere and ask
what they mean about neighbors/restrictions on property?
4. First in time vs. second in time
a. Ex: Unrestricted downhill lot builds up and now blocks someone's view in
uphill
5. Holding: unreasonable obstruction of access to sunlight might be private nuisance
claim, but court makes no determination
a. *Hinge point for most nuisance cases is what is most socially beneficial
use?
L. Mark v. State Department of Fish and Wildlife (p. 879) - P sues D for injunctive relief
and inverse condemnation for failure to control public nudity in adjacent wildlife area
1. public/private nuisance
a. failure by D to enforce own rules of buffer zones
b. court doesnt find public nuisance lack of statute saying nudity is a nuisance
c. nudity vs. nudity w/ intent to arouse
2. Could say that purchasers were hypersensitive b/c didn't bother anyone else - P
interfering user?
3. Injunction (only remedy available) municipal immunity from damages, but not
from injunctive relief
4. Inverse Condemnation? NO
a. property still has value since P living on it not being able to have visitors
over not enough to constitute taking
5. Holding: Private nuisance claim for injunctive relief remanded - nudity and sexual
activity impair Ps use and enjoyment of their property
VIII. Servitudes and Common Interest Communities
A. Running with the Land and Running with Interests in the Land
1. Servitudes are used to create rights (benefits) and obligations (burdens) that run
with the land burden or benefit automatically passes to subsequent owners.
2. Appurtenant: Benefits or burdens that run with the land
3. In gross: benefits or burdens that do not run with the land
a. does NOT = personal. May still be assigned to others
B. Types of Servitudes:
1. Easementscreates a right to enter and use land belonging to another and
obligates the landowner to refrain from interfering with this use
a. Profit a prendreadds to an easement the right to remove a natural resource
or hunt
2. CovenantsCreates a promise to do or not do something on your own land.
Personally liable for money damages.
a. Equitable servitudea covenant that is enforceable by injunction/equity,
historically shares characteristics with an easement
3. Easements and ProfitsCreate non-possessory rights/use rights.
a. Servient/burdened owner.
b. Dominant/benefited owner.
C. Creation of Easements and Profits
D. Creation by express grant. Statute of Frauds - agreements regarding easements need to
be in writing, signed by the grantor (unless by estoppel, implication or prescription).
1. Look at language of deed, together with circumstances, to determine intent of
parties.
2. Brown v. The Penn Central Corporation (Page 894) - Ps gave use of land to RR
for depot and railroad purposes, Ps wanted land back after RR stopped using it.
a. Issue: Did this deed create an easement or a fee?
b. Grant for a limited purpose, or a space without clearly marked boundaries
creates an easement.
c. Easement extinguished when RR stopped using it because of conditional
language (so long as). Ps could quiet title in land due to RRs
abandonment. Abandonment is a termination of an easement.
d. Better to convey easements than estates to RRs bc small strips of land far
apart from each other are not very marketable/practical.
e. Holding: This was an easement and not an fsa.
3. Stratis v. Doyle (Page 897) Did Ds create license or easement when conveyed to
Ps predecessor in interest for use as a driveway?
a. Warranty deed created an interest in land (grant, words of inheritance, etc).
b. Ds argued easement was subject to condition subsequent, requiring P to
maintain driveway. Not conditional b/c no right of re-entry language.
i. No possibility of forfeiture, but can get damages/contractual remedies for
its poor condition
ii. License=permission to go on land. Revocable at the will of the licensor.
c. Holding: Easement!
4. Cooper v. Boise Church of Christ (Page 899) - Issue: Did this deed conveying
right to church to erect sign on Ps property create an easement or a license?
a. Nominal consideration, no words of succession, rights given for limited
purposesuggests license (no one in their right mind would sell permanent
easement for 1$ ).
i. a failed attempt to create an easement may still result in a license!
b. Holding: No easement, a license.
E. Ways to create easement w/o writing
1. Creation by Estoppel: Elements to an estoppel claim:
a. A has made representation that he doesnt intend to stand on his black letter
property rights to require agreement in writing
b. Reasonable for B to rely on representation made by A and to assume that A
would stand on it
c. Reasonable for B to change behavior based on reliance of representation made
by A
d. B has changed his behavior b/c of reliance on As representation
e. B is substantially harmed
2. Mund v. English (Page 903) - Ds are parents and Ps are their kids. Both paid for
well to be built on Ds property. D now says he can revoke this right to use the
well.
a. Ds said Ps could use well, both paid to build and maintain the well, it was
reasonable for Ps to believe this was a legitimate offer
b. if Ds allowed to change their minds, Ps would be injusticed.
c.
d.
Continued use of the easement (its been around for over 37 years!) cannot
prevent the landowner from moving it.
e. In these cases, consider who is moving the easement: the servient estate or the
dominant estate. Makes a difference in whether you think it is reasonable to
do!
I. Use of Easement for Non-Dominant Land
1. Brown v. Voss (Page 939) - Lots A, B, and C next to each other. Lot B has an
easement across lot As land. Lots B and C merge together. A wants to enjoin B
from using the easement to get to lot C.
a. Holding: Easement meant for B to go across As land. Thats what it was
created for, and thats how it should stay. No easement for C across A. Yes a
misuse of the easement.
b. However, court does not grant an injunction (Go to court for trespass and get
damages?).
J. Succession, Exclusivity, Assignability, and Divisibility
1. City of Pasadena v. California-Michigan Land and Water Co. (Page 944) - Two
competing water service companies get easements for water mains below land. P
got them first, says our easements were exclusive, must remove Ds water mains!
a. Holding: Easement didnt convey exclusive right, but right to use land for
reasonable and necessary use of easement. However, if it becomes necessary
for P to use the entire easement, then they have a prior right to the easement
than their competitor does.
2. Fairbrother v. Adams (Page 947) - Issues: Did the warranty deed convey
exclusive hunting and fishing rights? What is the scope of the rights? Are they
alienable and assignable?
a. Holding: Rights exclusive to the lot holders because in conveyance said right
to the h/f rights. It is associated with land, part of deed, and so an interest
in land.
b. Restatement: look at intent of the parties as to whether they wanted the burden
to run if the benefit was not associated with land.
K. Modification and Termination of Easements and Profits
1. Central Oregon Fabricators, Inc. v. Hudspeth (Page 950) - Profit given to D to
hunt and fish on land on which Ps hunting business is located. Ds never used
profit rights, so then planned to sell them to willing buyers. P wishes to quiet title
to land.
a. No intent that rights will be transferable if it would change the scope of the
profit. No intent to be given to paying guests, just personal guests
b. No termination of profit because no abandonment and no AP.
c. Holding: P cannot quiet title. Profit is not terminated. However, Ds cannot
sell profit rights to others.
d. AbandonmentDs never used their profit. However, court says there must
be a verbal expression of intent to abandon, and thus this is not abandonment.
e. AP/prescription claimeven less valid than abandonment. No hostile
possession. When P put up fences, kicked out trespassers, it was in the Ds
best interest.
I.
Covenants
A. Covenant: promise to do/not to do something
1. affirmative burden: promise to do something
2. negative burden: promise not to do something
Requirement
Real Covenant
vertical privity
Equitable Servitude
Required
Required
c.
d.
e.
(iii)
Direct restraints on alienation Restatment (Third): Invalid if
the restraint is unreasonable weigh the utility of the restraint against
the injurious consequences of enforcing the restraint.
a. Design Controls common feature of modern real estate developments.
Require submission of plans and approval by the developer or an
architectural control committee before construction begins. Usually valid power to disapprove plans must be exercised reasonably.
i. Rhue v. Cheyenne Homes, Inc. (p. 1028) Ps prevented from moving 30year old Spanish style house into new subdivision with only ranch style or
split level homes. Covenant specifying that it must be approved by the
architectural control committee.
Issue: Is this covenant enforceable given that it contains no specific
standards?
Holding: Yes Protects the value of nearby homes. Refusal to approve
plans must be reasonable, made in good faith and not arbitrary or capricious.
This was the case here.
*Some courts have held that design covenants are invalid unless they provide
sufficient guidelines to enable an owner to determine what is acceptable.
b. Protection Against Discrimination in Housing
i.
ii.
-
Protection Under the Civil Rights Act of 1866 and the Federal
Fair Housing Act
Civil Rights Act of 1866 All citizens of the U.S. shall have the
same right, in every state and Territory, as is enjoyed by the white
citizens thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property.
Federal Fair Housing Act (FFHA): more comprehensive than Civil
Rights Act b/c it covered discrimination on other grounds
i. Mrs. Murphy Exemption dont have to comply w/
FFHA if you are a small-scale entity selling/renting singlefamily house w/ an interest in the neighborhood
run at law (strict vertical privity) and burdens in equity (relaxed vertical
privity).
- Successions to benefits: Traditional Relaxed vertical privity is required for
benefits to run at law and in equity.
- Restatement (Third) distinguishes between negative and affirmative covenants
such that vertical privity is only required for affirmative burdens.
6. Modification, Amendment, and Termination of Covenants
a. Changed Conditions
i. Rick v. West (p. 1044) Ps want a declaratory judgement to permit
the sale of 15 acres in the tract for a community hospital in spite of
covenants limiting the land to residential use. D refuses to consent to
release the covenants.
Issue: Can substantial changes in the neighborhood warrant declaring
the covenants unenforceable?
Holding: No Only changes since the covenants were filed are 2
commercial establishments not visible from the Ds property not
abutting Ps or Ds land.
ii. Restatement (Third) When a change has taken place since the creation
of a servitude that makes it impossible to accomplish the purpose for which
the servitude was created, a court may modify the servitude to permit the
purpose to be accomplish. If modification is not possible, then a court may
terminate the servitude and may award compensate of beneficiaries of that
servitude.
b. Amendment
i. Evergreen Highlands Association v. West (p. 1050) Original Evergreen
covenants provided that the majority of lot owners may modify the
covenants. 75% of the lot owners decided to add a new Article to the
covenants requiring all lot owners to be members of and pay assessments to
the Association. West bought his lot when membership and payment was
voluntary. He refuses to pay.
Issue 1: Is the modification clause of the covenant broad enough to allow for
the addition of a wholly new covenant by the requisite majority of property
owners?
Holding: Yes Follows the Zito line of cases look to the facts and the
consequences ok it this case b/c not unreasonable or burdensome.
Issue 2: Does the Association have an implied right to levy assessments
against lot owners in order to maintain common areas of the subdivision?
Holding: Yes follows the Restatement (Third) A common-interest
community has the power to raise the funds reasonably necessary to carry out
its functions by levying assessments against individually owned property in
the community even if not expressly granted by the declaration or by
statute. This is a common-interest community by implication so the
Association has the power to do this.
c. Termination
i. Westwood Homeowners Assn v. Lane County (p. 1058) - The county
b.
Valuation
FMV when is this calculated?
Comparable properties Recent actual sales of substantially
similar properties
If govt pays before ED proceedings have gone through, seller
may get FMV+
Exceptional value? element that can be considered but no rights to this
Income flow value element that can be considered but no right to this
Replacement value cannot claim this; too difficult to determine and too
3.
C. Condemnation of a Servitude
1. Condemnation of Easement and the Partial Takings Rule the taking of an
easement should be compensated. Compensation based on the difference between
the fair market value of the benefited property with and without the easement.
a. The Partial Takings Rule When the condemnation takes less than the full
property rights of the owner.
Fmv (before) Fmv (after) = just compensation
2. Condemnation of Restrictive Covenants and Affirmative Covenants to Pay
a. Arkansas State Highway Commission v. McNeill (p. 1095) - Govt took
property to build highway interchange bordering Ds property, which was
subject to restrictive covenant permitting only residential use of property. D
argues that benefit of neighboring residential property was taken and should
be compensated.
i. Issue: Does the fact that the proposed highway will violate the
restrictive covenant render the appellant liable for the decrease in
market value of the McNeills property?
ii. No harm to P in excess of harm suffered by general public
iii. Holding: No The same injury would have occurred in the absence
of the restrictive covenant. However, the court does recognize the
covenant as a property right.
b. Palm Beach County v. Cove Club Investors Ltd. (p. 1097) i. Issue: Does the right of a private country club to receive an income
stream from a monthly recreation fee assessed against the owner of a
residential mobile home lot constitute a property right compensable
upon inverse condemnation by the county for use of that lot in a
public road widening project?
ii. Holding: Yes - a restrictive covenant imposed a duty which ran with
the land taken which constituted a compensable interest.
c. Ways that courts have dealt with this area:
i. Real covenants are not property rights at all; they are contract rights.
ii. Whether they are property rights or not, govt is responsible only for
the rights attached to the land that is actually taken.
iii. May be property rights, but for purposes of ED law they are not
property rights.
iv. Some are property rights and some arent. Some types of covenants
will be compensated and some will not be (e.g. Palm Beach County
case)
v. All are property rights, but if the same injury would have occurred
without the covenant, then the govt does not have to compensate.
(e.g. Arkansas case)
X. Chapter 14 Land Use Regulation and Its Constitutional Limits
A. Regulation: When Does It Go Too Far?
1. The early cases
a. Pennsylvania Coal Co. v. Mahon (p. 1109) - A deed granted Ps the surface
rights to certain land but reserved to D the right to mine all coal under the house.
Plaintiffs argued that the Kohler Act (concerned with subsidence) extinguished
D's right to mine under Ps' surface land.
i. Issue: Can the legislatures police power be stretched this far?
ii. Holding: No - 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 this
regulation constituted a taking.
iii. Dissent: This is nuisance regulation and if the govt is regulating a
nuisance then they do not have to pay.
b. Miller v. Schoene (p. 1113) Acting under the Cedar Rust Act of Virginia, D
ordered P tree owners to cut down a large number of ornamental red cedar trees
growing on their property as a means of preventing the communication of a rust
or plant disease with which they were infected to the apple orchards in the
vicinity.
i. Issue: Is this statute constitutional? Does it impose a taking that should
be compensated?
ii. Holding: No - The Court held that when forced to make the choice, the
state did not exceed its constitutional powers by deciding upon the
destruction of the cedar trees in order to save the apple orchards, which
in the judgment of the legislature was of greater value to the public.
This is a public nuisance = no compensation
2. The Modern Takings Cases
c. The 1987 Cases
i. Keystone Bituminous Coal Assn v. DeBemedoctis (p. 1142) Coal
Co. sought to enjoin officials of the Department of Environmental