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Property I
Temple University School of Law
Sinden, Amy

 
Property Outline

I. TRESPASS & PUBLIC ACCESS
A. TRESSPASS

– constant tension between right to exclude vs. right of access
– definition: an unprivileged intentional intrusion on property possessed by another
– not a criminal trespass until someone tells you to get off
Cases—
a. State v. Shack (NJ)—migrant farm workers; balancing competing interests
1. Source of law—NJ statute; emphasis on relationships
a. ct does not rely on federal statutes that fund 2 programs of CRLS (legal  
rep) and SCOPE (health services), designed to aid migrant workers
b. ct uses these to illuminate meaning of statute
2. ct rejects Blackstonian absolutism: “Sic utere tuo…”
a. expresses ideal that all rights are relative; instead of absolutism, we’re
now talking about relations
3. “Property rights serve human values. They are recognized to that end, and are
limited by it.”
a. title to property ≠ ownership of persons on the property
b. when property rights become relational, must do close factual analysis
c. …balancing several parties’ interests
d. “quest is for fair adjustment of the competing needs of the parties in the
light of the realities of the relationship b/t the migrant worker and   
operator of the housing facility”

b. Desnick v. ABC (p. 111; 7th Cir)—suit against Primetime Live for undercover story
l
FRAUD—————— l——————————————————-PRIVILEGED
pseudo-meter                          l                                   movie-critic             (NON-FRAUD)
welcome-wagon                                                          restaurant critic

1. useful blackletter law b/t pp 113-118
a. law of trespass—to enter upon another’s land w/out consent
b. exceptions
i. privilege—a trespass is privileged if:
a. the entry is done with the consent of the owner, OR
b. the entry is justified by the necessity to prevent a more
serious harm to persons or property, OR
c. entrance is otherwise encouraged by public policy, OR
d. examples of privileged trespass: stop a crime or help
someone out of a burning building
ii. implied/expressed consent
iii. informed consent
iv. fraud—sometimes consent effective even though obtained
through fraud. How to tell? There must be an invasion of the specific interests that the tort of trespass seeks to protect
2. Judge Posner says no fraud here-why? public building, no eavesdropping, no
embarrassingly intimate details revealed, no theft, etc.
3. crucial point: entry wasn’t invasive in the sense of infringing the kind of
interest of Ps that the law of trespass protects (trespass in prop law seeks to protect the inviolability of the person’s property; infringement on the right of possession)—not an interference with the ownership or possession of landu
a. not a trespass unless a law or judge says it is
b. see baseball analogy on webcourse
4. A trespass is privileged, if:
a. the entry is done with the consent of the owner
b. the entry is justified by the necessity to prevent a more serious harm to 
perso

New class people
(see below) shifts line back             to limit of statutes                                  (AAs)
CRA 1866                                  2. New places (Uston)
Includes mem. orgs
Cases—
a.       Uston v. Resorts Int’l Hotel, Inc. (p. 119; NJ)—card counter thrown out of Casino; vehicle for reorganizing historical development of case; emphasizes relationships
1. right of access extended to casino; casino now a place of “public access”
2. Blackstonian absolute right to exclude prevails
3. gen’l ROL: “the more private property is devoted to public use, the more it
must accommodate the rights which inhere in individual members of the general public who use that property”
a.       the test—“reasonableness” test
b.      application—unreasonable to exclude card-counter from Casino
c.       five years prior, Uston had filed similar suit in Nevada; 9th circuit came to opposite conclusion: casino can exclude him b/c relationship is not of the kind expressed by common law (inn/CCs) but rather casino/prospective gambler
USSC upholds this gen’l rule—spoke in terms of a continuum (i.e. don’t have to admit someone into your family but an organization “opens its arms” for members)