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Property I
Temple University School of Law
Knauer, Nancy J.

Spring 2008

a.       Public Policy-Limitations on the Right to Exclude.
i.      State v. Shack Ds entered upon private property against order of the owner to aid migrants employed and housed there.
1.        Rule: Real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another.
2.       Sic utere tuo ut alienum non laedas=Use your property in such a way as not to harm others. (Rights are relative and there must be an accommodation when they meet.
3.       Ct uses instrumental reasoning as opposed to making a constit. argument b/c interests of migrants more expansively served. (2 step balancing approach:)
a.       ID relevant social goal.
b.       Which rule will best promote that goal?
4.       Ct explicitly rejects formalism as deciding upon a conventional category and then forcing the present subject into it.
5.       Ct held that not only could the migrants receive the state officials, but also guest (reasonably)—sees as fund. right to privacy which can’t be abridged by simple property rights.
ii.      Notes on Trespass:
1.        Trespass=an unprivileged intrusion on property possessed by another.
a.       Trespass is privileged if (1) the entry is done with the consent of the owner (2) the entry is justified by the necessity to prevent a more serious harm to person or property (3) entry is encouraged by public policy.
b.       Possible damages for trespass incl. damages, injunction, declaratory judgment.
b.       Rights of Reasonable Access to Property Open to the Public
i.      Uston v. Resorts Intl. Hotel, Inc. (1982) Because P was well known for his ability to count cards, he was excluded from D’s casino.
1.        Rule: Owners of property open to the public do not have the right to unreasonably exclude particular members of the public.
a.       Majority rule disregards the right of reasonable access applied in the above case. Instead it grants to proprietors of amusement places an absolute right to arbitrarily eject or exclude any person consistent with state and federal civil rights laws.
b.       right to exclude/reasonable access theory
c.       The more private property is devoted to public use the more it must accommodate the rights which inhere in indiv. members of the public.
a.       Conquest
i.      Property Rights Derived from Competing Sovereigns Johnson v. M’Intosh   P claimed title to a parcel of land through a grant from Native Americans, while D claimed the land based on a grant from the newly formed US govt.
1.        Rule: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy.
2.       Marshall ct claims to be applying a kinder rule than that of conquest b/c it is admitting the existence of an Indian right to occupy the land. However, the Ct then states that right to possession is only valid so long as the Indians were peaceful inhabitants, thereby immediately negating their rights. Moreover, since abs. title cannot exist at the same time in different governments over the same land, the Ct reasons that it would be inconsistent to vest abs. title in the Indians as a distinct nation and country.
3.       Marshall seems to looking at positive law and says not for courts of the conqueror to question the orig. justice/validity of the title taken by conquest.
b.       How do Property Rights get distributed in the First place?
i.      Philosophy of Law
1.        naturalism-Something that came about before man, from god etc., inherent in the nature of things
2.       positivism-the law is what it is, not for the judge to decide what is right/wrong
3.       utilitarianism—emerging concept in Pierson v. Post dissent by Livingston-greatest good for greatest number, tends to look at consequences of the rule for society as a whole;
4.       formalism: stick with rigid categories, precedents
a.       attacks against:
i.      relying on something decided 100 years ago in a different context
ii.      the law should change with the times
5.       instrumentalism: Id a goal; choose program to best meet the goal
a.       attacks against:
i.      judges need to make value choices, is this really a good idea?
ii.      unpredicatable
ii.      Current Indian Land Claims
1.        One of the major reasons for adopting the Constit. was to settle Indian affairs power disputes between the feds and the states.
2.       1790 Trade and Intercourse Act prohibited non-Indians settling in Indian country w/o consent of the US govt., and to sales of tribal lands to anyone but US. (This Act has been amended but stays in effect today.
a.       Oneida Indian land claims against NY that prior transfers of title invalid. 
i.      Dissenters argue barred by laches
iii.      Homestead Acts and Land Grants; Squatter and Freed Slaves
c.       Labor, Investment, and Possession
1.        possession=physical possession + intent to control or exclude
ii.      Wild Animals
1.        Pierson v. Post – Post found a fox upon certain wild, uninhabited, unpossessed wasteland. He and his dogs began hunting and pursuing the fox. Knowing that the fox was being hunted by Post, and within Post’s view, Pierson killed the fox and carried it off.
a.       Rule: Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer.
i.      Majority makes more of a formalistic argument by looking to Roman precedent and conceding while not fair, will provide predictability.
ii.      Dissent instrumental/utilitarianism—more dead foxes
2.       Popov v. Hayashi-Baseball case, ct used equitable principle of division since neither could present a superior argument as against the other.
iii.      Oil and Gas
1.        Law of Capture-Ownership occurs when you actually pump the oil, can take oil from neighboring grounds w/o liability.
2.       Absolute Ownership-Each person entitled to what is underneath their ground, if someone comes along and take your oil it is theft. (Problem is will need to hire a geologist).
3.       Eliff v. Texon (Tex 1948) Law of capture does not insulate a land owner from the damages caused by the wrongful drainage of gas and distillate from beneath the land of another.
a.       Held: Rule of Capture with a reasonableness caveat, i.e. Abs. ownership w/ rule of capture. 
i.      Ownership occurs at capture so long as it is reasonably used (abs. ownership idea)
b.       Policy:
i.      Promotes competition and fair play which is good for the economy.
ii.      Autonomy and Freedom of the owners
iii.      Tragedy of the Commons idea, with law of capture leads to waste since only bear a portion of the externalities
iv.      Human Genes:
1.        Moore v. Regents of The University of Calif.- (Cal 1990)-P claimed that Ds wrongfully used/profited from cel

1937-1985, believed they owned the boundary tract and treated the property as their own. 
1.        Rule: The doctrine of tacking allows parties claiming adverse possession to use their predecessors’ conduct on the property to meet the time requirements of adverse possession. (so long as parties connected by privity of title or claim.)
2.       Adverse possession must be proved by clear and convincing evidence
f.       Squatters
i.      Nome 2000 v. Fagerstrom-Ds (Charles and Peggy) used a parcel of land owned by P (Nome) for various purposes from 1944-1987 but did not build a house on it until 1978. Nome tried to argue that since the home was only on the land for 9 years could not meet adverse possession.

1.        Rule: Whether a claimant’s physical acts upon the land of another are sufficiently continuous, notorious, and exclusive does not necessarily depend on the existence of significant improvements, substantial activity, or absolute exclusivity.
2.       Hostility has nothing to do with possessor’s belief or intent, but rather whether the possessor acts toward the land as if he were the owner.
3.       Use consistent with the use by a similarly situated owner is sufficient to est. a claim by adverse possession.
g.       The Improving Tresapsser/Encroachment
i.      Encroachment used to warrant an automatic injunction. Today generally not unless done knowingly.
ii.      Relative Hardship Doctrine used to balance the interests of the parties. Generally monetary damages will be assessed/forced sale of property.
a.       Background: Some kinds of land use conflicts are regulated by nuisance law—remedies for use of real property that a) Cause substantial harm and b) Unreasonably interfere in the use and enjoyment of neighboring property
i.      Ct resolve land use conflicts in 4 basic ways:
1.        Defendant has a privilege to act despite the harm (damnum abseque injuria)
2.       Plaintiff’s has an absolute right to be free from harm
3.       Reasonableness Test:
a.       extent of harm to P
b.       societal benefits of D’s activity compared to what society would lose by preventing the D from freely engaging in harmful activity
c.       overall relative social costs and benefits of the conflicting land uses
d.       availability of alt. means to mitigate or avoid the harm
e.       which use came first
f.       D’s motive
4.       Prior Appropriation
ii.      Possible Remedies:
a.       Dismissal of the complaint
b.       Damages
i.      Most common measure-cost of restoration
ii.      Diminution in the market value of the property
c.       Injunction
d.       Purchases Injunction
b.       Light & Air: Rejectment of Nuisance Doctrine: No Easement for Light and Air.
i.      Fountainbleau Hotel Corp. v. Forty-Five Twenty-Five inc. – P sought to enjoin D’s construction of an addition that would block all sunshine from P’s hotel.