Property I Outline

Property Outline – Jamison Colburn – Spring 2009
–          Think about the two thigns while studying:
o   types of resource
§ land
§ water
§ air and space
§ human tissue
§ wild life
§ ideas
§ trademarks
§ copy
§ chattels
§ celebrity
o   and type of right
§ possession
§ exclusion
§ use
§ fruits and profits
§ disposition or alienation
§ destruction
§ estates and future interests in land
o   if you can think of the course of these two types you are on the right track
o   think of the resource and the types of rights associated
 
I. What is Property?
Fee simple absolute is the complete interest in the land.
Property is a right exclude others from things which is grounded by the interest we have in the use of things
A. Two Concepts of Property
 
1.       Trespass:
–          If the land is invaded by a tangible physical object that interferes with the right of exclusive possession (to remove, bring an action for ejectment’). Interference with “exclusive possession” and “quiet enjoyment” of land or other property
–          Intentional trespass is harmful because the plaintiff loses his rights to the property through prescription or adverse possession so its important to protect his interests in the land.
–          Jaques v. Steenberg homes (wisconsin) (trailer home intentionally dragged across plaintiff’s land[trespass]): punitive damages awarded for deterrence of intentional trespass, not due to harm caused (all the defendant did waqs drag the property across the plaintiff’s property).
–          Hinman v. Pacific air transport (land owner has no right over air space over his land as long as the use of it by defendant does not cause harm or interfere with the use of his land.)
–          Ad coelum- “whoever owns the soil also owns the land above him” (CL rule rejected in Hinman [CA]). Can argue that in the case or airrights, the landowner derives benefit by being also allowed to travel by air, so can bring claim for trespass. However he can build a building as high as he wants. Only claim over land he uses
 
2.       Nuisance as a property rule:
–          Nuisance defined broadly: when it clearly appears that enjoyment of property is materially lessened, for which renders its ordinary use or physical occupation uncomfortable the thing causing this is the nuisance.
o   Unlike trespass, doesn’t require tangible physical invasion, & therefore includes odors & noise
–          Restatement of Torts sec. 822: one is liable for private nuisance only if his conduct is a legal cause of the invasion of another’s interest   in the use of the land which is a) unreasonable and intentional or b)unintentional but actionable as negligent or reckless conduct or abnormally dangerous conduct or activities.
–          Hendricks v Stalnaker (winner) (West Virginia): (well built be defendant was not a nuisance even though it prevented neighbor from building sceptic tank within 100 yards even tho that was the only places they could be built. Well built intentionally, but not unreasonably or maliciously. He had no alternative)
o   Hendricks Test for a private nuisance requires examination of the private use for the land seeking protection and the nature of the interference. In this case we have to determine if the conduct was intentional and unreasonable. Unreasonableness measured by balancing the competing land owners’ interests. Not unreasonableà not a nuisance. Burden on the plaintiff to show there is a nuisance.
Exclsuion v. governance
–          Exclusion:
o   The land owner decides how the lands resources are to be used
–          Governance:
o   Particular rules are implemented regarding the use of land regardless of the land owners wishes. These are determined by societal norms, contracts, government regulations and common law decisions
–          Shift in recent times has been toward governance.
Coase Theorem:
–          Societal allocations of rights are irrelevant to societal efficiency, even in the presence of externalities, as long as the costs of negotiating reallocations are nominal.
 
3.       Repeated Trespass and Equitable remedies:
–          Defendant manifests an intention of persisting in the perpetration of unlawful acts
–          the expense, annoyance, and trouble of prosecuting numerous actions at law to recover trifling damages render an action at law an inadequate remedy
–          Baker v. Howard County Hunt (Maryland): (plaintiff had a farm where he conducted experiments, hunting clubs hounds kept coming onto his land until they killed his animals, built his wife, and disrupted his experiments). Plaintiff was not satisfied with legal remedy, wanted an equitable one (an INJUNCTION) and the court granted it. It found that:
o   : legal relief can be used as an alternative to equitable remedy only when it will lead to adequate compensation. However, plaintiff lost more in terms of his experiments and the dogs seriously interfered with his enjoyment of land so the only remedy would be injuctive relief.
o   Plaintiff was denied his fee simple absolute in the property. Damages were not enough if plaintiff was still deprived of the beneficial use of his property
–          Pile v. Pedrick (Pennsylvania): (defendant built a wall that very slightly encroached on plaintiff’s land. Defendant had bad surveyor’s advice, offered solutions but plaintiff declined. Asked for the wall torn down. Court agreed and ordered wall to be torn down “defendant has no right to occupy land which he doesn’t own, so court has no choice”.)
–          Golden Press v. Rylands (Colorado): (minor encroachment not enough to make defendant tear down the entire building. A legal remedy alone was appropriate. Court takes a different approach to Pile. Impact by small encroachment on plaintiff’s or the benefit from rempoving the building negligible. But remedial cost to defendant high…doesn’t make sense. Also note that intent of the encroacher important…good will encroacher should not be punished as harshly.
–          Permanent Injunctions, CL test: Plaintiff must show: (1) an irreparable injury; (2) remedies at law (like money damages), are inadequate to compensate for that injury; (3) that, on the balance of hardships between plaintiff and defendant, a remedy is warranted; (4) that the public interest is not jeopardized by an injunction. 5) Clean hands
–          Calabresi & Malemed Comparison of entitlement Protection:
o   “Property Rule”: Entitlement can only be purchased from owner in a voluntary transaction.
§ There will be no trade unless both parties are willing because it is a categorical rule. You own something so you cant be forced to trade it
o   “Liability Rule”: Entitlement can be taken or destroyed by force, subject only to ex post liability.
o   “Inalienability”: Transfer forbidden even with a willing buyer and a willing seller.
§ There will be no trade unless both parties are willing because it is a categorical rule. You own something so you cant be forced to trade it
–          Courts moved away from injunctions that give property owner entitlement regardless of societal costs
–          Following in Coases footsteps
o   Societal allocations of rights are irrelevant to societal efficiency, even in the presence of externalities, as long ads the costs of negotiating reallocations are nominal.
o   But they want to contrast the way a property rule will operate v. a liability rule.
o   And see when bargaining can solve the problem
 
o   Propose 4 rule universe:
–           
Entitlement
Injunction / Property Rule
Damages / Liability Rule
Resident
R1: Court issues injunction against P
R2: Court declares a nuisance but permits pollution to continue if P elects to pay damages
Polluter
R3: Court finds pollution not to be a nuis