Professional Documents
Culture Documents
iii.Papov v. Hayashi (Ca 2002): split property interest in baseball, "both men
have a superior claim to the ball as against all the world." Court
splits.
iv.Tragedy of the commons: when no one owns it then no one has an
incentive to conserve or care. Incentive is to get as much good out
of it as possible. That has essentially destroyed the oceans.
v.General Principals:
1.Title is relative. Who has the better claim is often unique to the
item in question (whales v. foxes)
2.Legislature can tailor rules and regulate industries when goals
change.
2.By Creation
a.Hot News & Right of Publicity
i.INS v. AP (SCOTUS 1918): INS steals APs work. Trial Court injunction
upheld. Quasi property interest in the material that they produce
and that property right is enough to justify the injunction in equity.
1.Positive Law approach - Holmes and Brandeis want the
legislature to shape the rights people have regarding this
quasi property.
b.Inventions
i.Midler v. Ford Motor Company (9th Cir. 1988: Midler impersonator, Court
creates a quasi property right to her voice. Purpose of the imitation
is key. When it's "informative or cultural" then there's no protection.
ii.Trenton Industries v. A.E. Peterson Manufacturing Co. (CA 1958): High
chair design "stolen," court holds breach of confidence entitled to
royalties
c.TRADE SECRETS: Questions of how to best protect trade secrets: CA has
the best model which seems counterintuitive because they allow for the
free flow of information - argument to be made that it encourages
productivity.
3.By Accession, Ad Coelum & Find
a.Accession: property that arises out of property that was already owned
b.Ad Coelum: property that exists because it was above or below property that
was already owned.
c.Find: finders keepers
i.Rule: Find entitles finder to property right against all but a rightful owner
(Armory chimneysweep finds jewel)
ii.Rule: Proof of prior possession may establish rightful ownership as
against a finder (Clark v. Maloney 10 white pine logs found in
Delaware bay)
d.Terms
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i.Conversion: common law action for the tort of using anothers property as
ones own
ii.Replevin: Action or remedy to recover the asset itself (plus money
damages for injury to the asset)
iii.Trover (def): action or monetary compensation for conversion of personal
property
e.Wetherbee v. Green (MI 1871): barrel hoops, gets to keep the hoops
owner's entitlement protected with liability rule
f.Edwards v. Sims (KY 1929): cave business, invasion to survey permitted to
prevent permanent trespass.
g.Armory v. Delamirie (Kings Bench 1722): Chimney sweet found a jewel,
Court holds that a finder has a right against all the world except for the
true owner.
h.Clark v Maloney (DE 1840): 2 finders vying to possess ten logs found in the
river, Rule says that finder 1's rights are higher than finder 2.
i.Anderson v. Gouldberg (MN 1891): Plaintiffs cut down longs that they didn't
have permission to take. Defendant took the logs from there on the
authority of a landowner who erroneously said they were cut from his
land. T.O. Thief 1 Thief 2 Everyone else.
j.Other situations:
i.Thief v. Subsequent Finder: Technically, Thief wins but courts find a way
to give to the Finder.
ii.Abandoner vs. Finder: Finder wins against Prior Owner if can prove
abandonment (question of intent).
iii.Seller vs. Buyer Buyer wins Non-derogation from grant: Seller may not
derogate from grant by claiming prior possessory rts as against
grantee.
iv.Seller vs. Subsequent Finder (e.g., A sells to B, who loses, C finds) A
sues C, best to treat as abandonment.
v.Agent vs. Principal: If Agent possessed in course of work, possession
never countedgoes to Principal
4.Competing Principles of Original Acquisition
a.Fisher v. Steward (1804): Bee hive marked while trespassing; Rule: Land
Owner has constructive possession of things on his land as against
trespassers.
b.Goddard v. Winchell (1892): Buried meteorite recovered by friend with
permission from the tenant with grass rights. Court awards to the LO. D
was never the finder because it was not lost or abandoned. It went
straight into the P's land.
c.Hannah v. Peel (King's Bench 1945): Tenant finds a brooch, LO tries to claim
but never lived there.
Page 2 of 22
1. Was TO (or predecessor in title ousted from poss'n > X [=SOL] years ago?
Ouster = adverse entry that is actionable trespass against TO or predecessors & resulted in actual
poss'n
No: TO
Wins
Yes:
2. Has P in poss'n >X years?
Yes:
No
3. Can P show privity w/ proper possessor(s) to fill in SOL?
Yes:
No
No
TO Wins
Page 3 of 22
1.
iv.
v.
FORMS OF OWNERSHIP
1.
The Anglo-American System of Estates
a. Present Possessory Interests
Page 4 of 22
Page 5 of 22
2.
Page 6 of 22
3.
Page 7 of 22
2.
3. Modern common law favors T/C. Most coownerships are between siblings.
ii. Joint Tenancy (JT) - includes a right of survivorship
1. 4 unities required at the time of creation: Time, Title,
Interest, Possession
2.
Severance
Partition
4.
Page 8 of 22
An act (conveyance or
whatever) severs a JT and
turns it into a TIC.
Destroys Right of
Survivorship in JT.
Each joint tenant has a
unilateral right to sever.
Ouster
Partition by Sale
Actio
(denying c
benefits of
In oth
tenant has
ouster whe
excludes t
Page 9 of 22
PRESENT INTERESTS
FREEHOLD ESTATES
Fee Simple
(Fee Tail)
NON-FREEHOLD ESTATES
Life Estate
Term of Years
Absolute
Periodic Tenancy
Tenancy at Will
Defeasible
In favor of Grantor
Determinable
(as long as)
Partial/Open*
Subj to Divestment
Vested
Contingent*
Possibility of Reverter
Reversion
Executory Interest*
Remainder
CREATED IN GRANTEE
CREATED IN GRANTOR
FUTURE INTEREST
Complete
1.
Page 10 of 22
f.
Modern Law
No Warranty
Independent Covenants
Dependant Covenants
K-based: breaching party discharges other party of
contractual obligations
Literal inhabitability
Page 11 of 22
Page 12 of 22
b.
c.
d.
e.
f.
ii. Non-trespassory
iii. Invasion, that
iv. Interferes with neighbor's right to use and enjoy his land
(Passive or Active)
v. Always look to state law first
Adams v. Cleveland-Cliffs Iron Company (MI 1999): P's sue in trespass
and nuisance for dust, noise and vibrations coming from the mining
company neighbor. Court holds that trespass law can't cover
particulate but law of nuisance does (u/e).
Luensmann v. Zimmer-Zampese & Associates (TX 2003) Ps bring
action against a racetrack saying that it's a nuisance per se. Court
holds in favor of the D because there's no evidence that the nuisance
is substantial or per se.
i. Establishing Nuisance Per Se
1. Activity is a nuisance at all times, under all
circumstances, and in any location
2. Violation of law that defines a nuisance: This is the
right question to ask and in this case the race track
was not illegal.
ii. Ordinary Nuisance:
1. Unintentional left to tort law
2. Intentional when you are reasonably certain that your
activities are having an interfering effect.
Restatement:
i. Balancing test: balance of harms and utilities
ii. Threshold: harm can't just be substantial - has to cross the
line into unreasonable.
St. Helen's Smelting Co. v. Tipping (House of Lords 1865): Land near a
copper smelting factory that emitted gasses that killed is crops and
made his animals sick. Court holds that theoretically location matters
but it's a jury question. P must show a reasonable inconvenience
(decrease in property value, asthma don't count. Invoke the threshold
test:
Boomer v. Atlantic Cement Co. (NY 1970): Cement plant emanates
dirt, smoke and vibrations that disturb the neighborhood. NY has a
common law Threshold test that proscribes an automatic injunction
when the harm is substantial.
i. The D must compensate P for total economic lost (present
and future) to their property.: Essentially amounts to the D to
buy a servitude, a right to commit an nuisance.
ii. Damages allow the people to move if they choose to
2.
g. Spur Industries v. Del. E. Webb Developments (AZ 1972): Cow feed lot
v. retirement community. Spur can be enjoined but DW has to
compensate Spur
Servitudes: Alternative to nuisance law: resolve conflicts between neighbors by
contract that commits to certain behavior regarding use of land.
a. Easement: owner agrees to waive his right to exclude certain kinds
of intrusions by another.
b. Covenant: Owner agrees to abide by certain restrictions on the use
of his land for the benefit of another.
c. Easements Types
Page 13 of 22
3.
4.
Nollan
Kaiser-Aetna
Easement
Per se rule
Taking
State imposed
Easement over LAND
(more traditionally bought/sold)
Land closely
associated with the home.
More likely to
interfere with multiple uses of
property (water can only be
used by boats)
5.
Navigational
Servitude Easement
Subjec
t to Balancing Test
Feder
ally imposed
Easement over
WATER (less conventionally
bought/sold)
Regulation of Use
a. Lucas v. South Carolina Coastal Council (1992) p. 1299: Lucas kept
from developing his coastal land because of "no-build" zone. Literal
Taking and because Regulation eliminates all economically viable use
of land Per se Taking
i. Nuisance Exception: If the only thing you can do to make
economic use of your property is a nuisance, then its not a
per se taking.
ii. Denominator = Fee Simple. Numerator = What is
economically viable?
1. Economically Viable Use = Development Rights
3.
4.
5.
6.
7. LUCAS
9. ALL economically viable use refers to the
WHOLE PARCEL.
8. PENN CENTRAL
10. If only PART of the parcel is taken, apply the Penn
Central Balancing Test.
11.
12.
13.
14.
15.
16.
17.
18.
Same Question
Was anything taken? Did govt action take/impair a private property right that O had under [state] law?
No taking
No
Yes
Character of govt action
19.
Physical Invasion
20.
Restr. on Rt. to Exclude
21.
22.
23. Perm. Phys. Occupation (PPO)
No PPO
remains
24. (Loretto,Nollan)
(K-A, Pruneyard )
No physical invasion/
Regulation of Use
Econ. viable use remains
(Penn.Centr., Keystone)
(Mahon?, Lucas)
25.
26.
27.
28.
Per se Taking
29.
30.
31.
41.
Factors in Balance:
32. Open to public
Govt purpose (public harm)
33.
Econ. impact: Interference
34.
w/ use, value, Reas.Inv.BackExps
35.
State vs. Federal?
36.
Generality/recipr. ben.
37.
vs. singling out
38.
39.
40.
Unless limitation inheres in title under background principles of [state] property law:
Per se Taking
42.
Easements, privileges
Statutes?
Nuisance, covenants
1.
Basi
c
Prop
erty
Righ
ts
2.
Action/Rem
edy for
Private
Interference
3.
Built
in/Inherent
Limits
4.
7.
Righ
t to
Poss
ess
8.
Ejectment
(injunction)
9.
< adverse
possession?>
10.
43.
18.
Interest if severed
and
conveyed/Additiona
l limits based on
consent/rela.
Lease: sets up new
property rights and
limitations on title
(LL/T law)
5.
11.
12.
13.
14.
Public
limits/Interference
by government
Full
Appropriation-->
Permanent Physical
Occupation -->
6.
15.
16.
17.
Righ 19.
t to
Excl
ude 20.
21.
22.
Trespass:
23.
Continuous/r
epeated
24.
or Injunction
25.
One26.
time/Occasio
nal
Affirmative
Easement
Prescription
Righ 34.
t to
Use
and
Enjo
y:
Acti
ve
Nuisance
covenant/equitable
viable use (Mahon,
servitude
Lucas)
(conditional fees)
38.
41.
Viable use remains
42.
(Keystone, Penn
Central)
43.
Use 44.
and
enjo
y:
Passi
ve
Nuisance
(injunction/d
amages)
49.
Righ 50.
33.
35.
36.
License?
Taking?
Eminent
domain/Ta
king
Per se test
(unless)
(Lorretto)
Occasional access
(Pruneyard)
Per se Test
(unless
inherent
limit)
Balance
Test (with
thumb on
scale for
gov't)
45.
Neighbor's
right to use
and enjoy
(up to
nuisance)
46.
Affirmative
easement (to commit
nuisance)
47.
Gov't "nuisance"?
48.
???
51.
System of
53.
Restrictive
54.
55.
(Can be