Select Page

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



Trespass and Public Rights of Access to Property
State v. Shack
Desnick v. ABC, Inc.
Uston v. Resorts International
–          One of the most important rights that come along with property ownership is the right to exclude others from the property
–          Trespass, therefore, is an unprivileged intentional intrusion on property possessed by another
–          The right to exclude is not absolute: legal rules limit the possessor’s right to exclude nonowners from the property
–          A trespass is privileged, and thus not wrongful, 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.       the entry is otherwise encouraged by public policy
–          The Stack court found that public policy dictates that an owner of property cannot isolate an individual whom he allows on his property from services significant to the individual’s well-being
–          The Desnick court found that gaining consent to access private property through the use of misrepresentation or fraud does not always void the consent
–          Fraud negates the consent only if there is a violation of the interests that the tort of trespass seeks to protect
–          If the fraud seeks to invade another’s privacy or disrupts the day-to-day activities occurring on the property, then consent is not a defense (Desnick)
–          Other courts have held, however, that misrepresentation or fraud may always negate consent
–          In general, the more an owner has opened the property open to the public, the more likely it is that courts will find public rights of access to the property
–          Common law has traditionally imposed a duty on innkeepers and common carriers known as the “right to reasonable access”
–          Right to reasonable access states that a business open to the public must serve individuals without discrimination unless they have a good reason to do so
–          Reasonable exclusion may occur when a person:
a.       Disrupts the regular and essential operations of the premises or
b.      Threaten the security of the premises and its occupants
–          Most jurisdictions retain the absolute right to exclude for places of public accommodation and limit the duty to serve the public ONLY to innkeepers and common carriers
–          The Uston court expanded this rule by extending the right of reasonable access to ALL businesses open to the public. (In New Jersey)
–          The Civil Rights Act of 1964 states the following:
a.       All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on account of race, color, religion or national origin
b.      Each of the following places is a place of public accommodation under the meaning of the Civil rights act:
i. Any establishment that provides lodging to transient guests
ii. Any facility principally engaged in selling food for consumption including any facility located on the rounds of a gas station or retail establishment
iii. Any, theater, sports arena or other place of exhibition or entertainment
iv. Any establishment which is physically located within the premises of any establishment otherwise covered by this section
–          The Civil Rights Act of 1866 states the following:
a.       All persons shall have the same right to make and enforce contracts…and to the full and equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens…
–          The courts seems to agree that “the right to make contracts” includes the right to enter a store or other service provider
–          A minority of courts also hold that CRA of 1866 also forbids discriminatory practices such as racially motivated surveillance
–          But most courts have interpreted the “right to make contracts very narrowly, only when a person is prevented, not merely deterred, from receiving a service


Johnson v. M’Intosh
–          Law is the foundation of property rights in the U.S.
–          Therefore, property rights exist only to the extent they are recognized by our legal system
–          The SC’s decision in Johnson v. M’Intosh reflects this approach
–          According to the Court, the title to lands “must be admitted to depend entirely on the law of the nation in which they lie”
–          The Court’s decision could not rely merely on “principles of abstract justice” or on Native American law
–          Rather, property rights must rest upon the principles “which our own government has adopted in the particular case, and given us as the rule for our decision”
–          Marshall states therefore that “conquest gives a title which the courts of the c

nd business competition gives the laborer a quasi-property right in its product against a competitor so long as the product retains commercial value
–          Note that the “right to exclude” others from the AP’s product only exists for a small period of time and can be used against competing entities
–          Although this case doesn’t seem to jive with Pierson v. Post, the courts in both cases were seeking to find a rule which would incentivize a social goal
–          In Pierson, the court found that foxes would be hunted more efficiently under the capture rule
–          In AP, the Court found that the news would be distributed more efficiently if the AP’s property rights in the news was protected
–          The dissent in AP argues that it is the legislature’s duty, as the democratically elected body, to protect social interests, not the Court’s

Property Rights in Human Bodies
Moore v. Regents of University of California
–          The law generally acknowledges the authority of all persons to control the destiny of their body parts
–          In Moore, the CA Supreme Court ruled that a patient does not retain ownership of his tissue after its removal
–          Although the court seemed to assume that Moore had decision-making control before their removal, but the court was not willing to hold that it remained his property after removal
–          Again, social interests come into play in determining property rights
–          The court reasons that allowing patients to retain ownership in tissue after its removal would discourage vital medical research
–          Further, the court does not feel that one should be able to commodify their own body
–          Again, while the general rule is that people have autonomy over their own bodies, this autonomy may be limited once social interests come into play
–          For instance, in CA, statute requires that most tissue must be disposed of after removal for the health of the general public