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Property I
Temple University School of Law
Baron, Jane B.

Jane Baron – Property – Spring 2013

PROPERTY LAW (5th ed, 2010) by Singer


Property as power: trespass and the (absolute?) right to exclude

Section 1: “Private” Property

Public Policy Limits on the right to exclude – The most central right is the right to exclude others from your property. The right to exclude is very broad, but it is not absolute. In a variety of circumstances, legal rules limit the possessor’s right to exclude non-owners from the property. In such cases non-owners have the right of access to the property.

Trespass – an unprivileged intentional intrusion of property possessed by another

Privileged Trespass – a trespass is privileged and thus not wrongful if:

o The entry is done with the consent of the owner; (consent obtained by misrepresentation or fraud is invalid)

o The entry is justified by the necessity to prevent a more serious harm to persons or property; or

o The entry is otherwise encouraged by public policy.

o State v. Shack – P wants to exclude lawyer/doctor from coming onto his land to advise migrant workers.

· Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well being must remain the paramount concern of a system of law.

· Court frames the problem as the workers not having a way to be reached at their home, their “home” is the farmer’s property.

§ If the farmer can exercise his right to exclude, the workers can’t get what they need.

§ Workers’ needs prevail over property rights

· The needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare or dignity.

· Find it unthinkable that the farmer-employer can assert a right to isolate the migrant worker in any respect significant for the worker’s well being.

· Holding is limited, the court notes that the farmer is allowed to proceed farming with no interference to farming activities.

§ Potentially a major case in limiting a property owner’s right to exclude.

§ Interference to farming part limits the scope of the case… Assuming we can easily tell what constitutes “farming activity”

§ Scope is relatively unclear because of this detail

o Jacque v. Steenberg Homes, Inc. – P cuts through D’s property intentionally, after being told he is not allowed, to deliver a home. P suing for intentional trespass even though there are no damages. Court awards $1 in nominal damages and $100k in punitive.

· The USSC has recognized that the private landowner’s right to exclude others from his or her land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Yet the right is hollow if the legal system provides insufficient means to protect it.

· When nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded.

· Deterrence is the most prevalent cause for the court’s stance. The $30 fine is not a deterrent.

§ Egregious behavior makes the case an exceptional case.

§ Are we trying to punish a company for trespassing, or…

§ Are we attempting to deter the behavior because we are concerned with an individual’s property rights.

· By asking permission, then going against the wishes of the property owner, Steenberg is worse off than just trespassing without asking. Their deliberate exploitative conduct leads to punitive damages.

· The outcome of the case as far as deterrence is concerned, is not necessarily effective. Next time someone will just not ask, then plead ignorance.

Property = the right to exclude (Jacque as rule, Shack as exception)


Property ≠ The right to exclude (Shack as rule, Jacque as exception)

o From reading the two cases, you do not get an answer for this question. In fact, it is a major debate in the field of Property Law

o Who you can keep out and when can you keep them out?

· The trespasser’s motives matter.

· The person the trespasser is attempting to reach is important.

o Irrationality of the property holder (like Jacque) has a negative impact on someone else in Shack, not in Jacque.

o Different interpretations. How important is the right to exclude?

· One says its so important that there should be property damages

· One says its not that important to property law, it should only be used in certain cases.

· 3rd interpretation, neither case is typical, both involve extreme, emotionally charged facts.

o General rule is you can tell anyone you want to keep off your private property


Property as power: trespass and the (absolute?) right to exclude

Section 2: “Property open to the Public” (right of reasonable access to property open to the public)

o Uston v. Resorts International Hotel – Resorts excluded Uston from the casino because of his card counting strategy. Does Uston have a right to be there?

Historically the “good old common law” guaranteed all citizens access to places of public accommodation.

The current majority American rule has disregarded the right of reasonable access, granting to proprietors of amusement places an absolute right to arbitrarily eject or exclude any person (as long as it is consistent with state and federal civil rights laws).

According to precedent, property owners have no right to exclude people unreasonably. They can however exclude someone posing a reasonable threat.

Property owners have a right to exclude people whose actions “disrupt the regular and essential operations of the premises”

Uston does not pose a threat and has not disrupted the function of any casino operations. He possesses the usual right of reasonable access.

Whether a decision to exclude is reasonable must be determined from the facts of each case.

· Contrary to majority rule, property owners can not unreasonably exclude people from public places. You have a right to be there.

o Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use.

o The reasoning of Uston is unpersuasive, because none of the reasons given by the court are persuasive as to why we should abandon the majority rule.

o The holding in Uston (extending the right of reasonable access to all businesses open to the public) appears to be a minority rule.

o Most states support the traditional right to exclude without cause and limit the duty to serve the public (the right of reasonable access) to innkeepers and common carriers.

· Justifications for special obligations on innkeepers and common carriers:

o Likely to be monopolies, so denial of service would deny traveling ability

o Places provided necessities, which taken away could put the public at risk of bandits and the elements

o Innkeepers and common carriers hold themselves out as ready to serve the public and the public relies on this representation.

· Argument to allow most businesses the absolute right to exclude: have to be able to control the admission to their facilities without having to prove that every person excluded would engage in unlawful activity.

o The argument points to market forces preventing someone from excluding a group of people

o The idea is to be able to kick someone out for looking like a mobster, they do not have to prove that the person was being a mobster. It is an unfair burden.

o Resorts can exclude those whose actions disrupt regular

tle, they cannot convey title to others.

o Someone who buys land from an Indian, can hold it under their law. But that will not be applied under US law. He is essentially treated as an Indian.

· The Indian inhabitants are to be considered merely as occupants, to be protected, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.

· The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.

o The United States has exclusive title to land because of the discovery and conquest of America by Europeans.

· Thus, when title originally comes from the United States, that title has priority over any conveyance of land by an Indian tribe.

· For all parcels of land in America, the chain of title begins with the United States government.

o The Plaintiffs do not exhibit a title which can be sustained in the Courts of the US. Indians can not give a valid title, only the US can.

Class Notes:

· Principle adopted by European powers to deal with American land:

o Discovery gave title to the government by whose subjects it was made… against all other European govts, which title might be consummated by possession.

· 1st come, 1st served

· this is a principle of international law, operative among European govts.

o What began as international law has become US law after the revolutionary war.

· “the US have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country.”

· US got what Britain had. Let Spain and France keep their parts.

· It will be necessary to examine not singly those principles of abstract justice which are admitted to regulate the rights of civilized nations, but those principles also which our government has adopted.

o Natural law (even though not written down or codified, still is law) – is what the law should be based on people’s perceptions of what is right.

o Positive law – The law that the sovereign has given us to decide cases.

Can natural and positive law conflict?

· What happens within territory discovered by, say, England?

o Who decides whether Indians can give good title?

· “The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives.”

· “Those relations which were to exist between the discoverer and the natives were to be regulated by themselves.”

· “The US maintain that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.”

· Positive law prevails for instrumental reasons (destabilization of titles) and “reality” (Indians are “fierce savages”)

o Ct does not say the result here is just. Rather it says that the just result is impossible (savage).

o Therefore, “the court has no choice,” the case is deciding itself.

· Indians retain a right of occupancy, but no transfer rights.