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

I.                   Access rights to public places
A.      Overview of defenses to trespass
a)       Perhaps the most basic right that is part of land ownership is the right to exclude others. Traditionally, a trespass is privileged, and thus not wrongful with (i) consent of the titleholder, (ii) true necessity (e.g., to save a life), and (iii) encouragement by public policy.
a.       However, other defenses can arise in certain contexts, including
b.       (i) access to necessary services for reasons of public policy,
c.        (ii) rights of reasonable access in public places,
d.       (iii) civil rights based on anti-discrimination statutes,
e.        (iv) free speech rights, and
f.        (v) public trust doctrine.
B.      Access to necessary services based on public policy
a)       State v. Shack, 277 A.2d 369 (N.J. 1971) illustrates a public policy-based defense to trespass, namely, access to necessary services.
a.       The trespassers in Shack were (i) a person providing medical assistance to a migrant farm worker and (ii) a public servant who wanted to (a) provide legal assistance to a migrant worker and (b) distribute informational pamphlets to the workers.
(i)       Free speech would be an ineffective argument for the trespassers because their access right was being denied by a private party rather than a government.
b.       One successful argument was that of necessity, which included (i) medical necessity and (ii) necessity for the workers to live with the dignity and relationships customarily experienced by others.
c.        Another successful argument is based on public policy and competing rights.
(i)       In one view, the migrant workers had a right in competition with the owner’s right to exclude; however, the court held that the migrant workers’ consent was not necessary.
(ii)     In another view, the aid workers had a right in competition with the owner’s right to exclude. Under this theory, anybody who would provide the migrant workers with the contact and associations that an ordinary citizen would have would be allowed to access the property.
(iii)    In a third view, the public may have a stake in the well-being of the migrant workers, which gives the public an interest that is superior to the owner’s right to exclude.
d.       An argument that the workers were tenants probably would not succeed because it would confer other rights of tenancy that the court was unwilling to grant.
e.        The Shack holding was (i) limited by the fact that the owner used his land as a farm, (ii) limited by the workers’ status as farm workers and residence on the farm, and (iii) limited in application to property owners who have people living on their property.
f.    HOLDING: Under our state law, the ownership of real property does not include the right to bar access to gov’t services available to migrant workers and hence there was no trespass within the meaning of the penal code
b)       Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 (7th Cir. 1995), illustrated another iteration of the public policy right of access.
a.       In Desnick, the alleged trespassers were cameramen who obtained access by posing as patients.
(i)       The court held that (i) no privacy was violated because the journalists saw the same events and received the same information that a patient would receive (i.e., no violation of any rights that trespass laws are designed to protect), (ii) Desnick, by operating a business and advertising to the public, became a member of the public and couldn’t close off access, and (iii) as a policy matter, dissemination of information should be encouraged.
(ii)     Thus, the Desnick holding only limits trespass through the intent of the trespass laws, whereas Shack actually creates new policy-based exceptions to the trespass laws.
b.       A broad public policy right of access (i.e., journalists’ privilege) would not have been a successful argument because no such right exists.
c.        An argument based entirely on consent would also not have been successful because the consent was obtained through a material omission, and the activities the journalists conducted were outside the scope of the consent granted.
(i)       Grants of consent typically have two elements, the actual consent and the scope of the consent.
c)       Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999), contrasts with Desnick.
a.       Food Lion was also a case involving undercover journalists (here, posing as employees rather than patients). The trespass claim was upheld because (i) Food Lion used some nonzero degree of selectivity as to the people it employed and (ii) ABC engaged in wrongful conduct that negated Food Lion’s consent.
C.      Rights of reasonable access to public places
a)       At common law, innkeepers and common carriers lacked the right to exclude unless they have good reason.
a.       Innkeepers and common carriers are viewed as necessary services and likely to be local monopolies, so with respect to them, trespass laws are relaxed.
b)       Uston v. Resorts International Hotel, Inc., 445 A.2d 370 (N.J. 1982), illustrated a right of reasonable access to a public place that extended the common-law right.
a.       A casino is a luxury and a place of amusement rather than a necessity or a local monopoly, so the common-law right was not immediately applicable.
b.       The court extended the common-law right of reasonable access to all places open to the public.
(i)       In particular, the casino was not allowed to exclude on the basis of status (i.e., status as a card counter) even if that exclusion was reasonable; it could only exclude based on conduct (i.e., once someone was seen counting cards, he could be excluded).
(ii)     However, the casino still retained the right to exclude a person who causes a direct physical disruption (e.g., noise, disorderliness, repeated petty offenders); neither card-counting nor being a known card counter would constitute such a disruption.
c.        A broad interpretation of the Uston holding is that if an owner wants to be seen as public, the owner may have to grant access to some people at some times when it would rather not.
d.       Note that the Uston holding was a common-law holding that could be overruled by statute or regulation.
D.      Public trust doctrine
a)       The public trust doctrine states that the ownership, dominion, and sovereignty over land flowed by tidal waters below the mean high-tide line is vested in the state in trust for the people.
a.       According to common law and tradition, the purpose of the public trust was for navigation and fishing because these types of waters are immobile, irreplaceable, and scarce.
(i)       In New Jersey, according to Matthews, it was extended to include bathing and recreation.
b.       Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47 (N.J. 1972), held that the public trust also applied to the municipally owned dry sand beach immediately landward of the high tide line. The immediately landward dry sand area could be used for access and for reasonable recreational purposes.
b)       In a public trust analysis, consider third broad factors.
a.       First, consider whether the property is or should be held in trust for the public. This involves considerations of (i) size, (ii) function, and (iii) the degree of necessity.
b.       Second, consider whether the private owner can be deemed private in a relevant way. This involves considerations of (i) whether the property is thrown open to the public, (ii) whether there is any genuine basis for selectivity in granting access rights.
c.        Third, consider who the relevant public comprises.
c)       In Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984), the court extended the Avon holding to apply not only to municipally owned beaches, but also to a beach owned by a quasi-public municipal corporation that offered membership to all residents, municipal employees, and hotel guests.
a.       The court did not consider the issue of access rights over beaches owned by private homeowners adjacent to the Bay Head beach. Once the Bay Head beach was opened to the public for reasonable access, there was no longer a necessity to create another means of access to the foreshore, but it is unclear what burdens would be placed on privately owned beaches if there were no quasi-public entity such as the Bay Head Improvement Association.
d)       Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), followed a statute in which Illinois conferred title to a great deal of submerged land to a private railroad, which effectively gave the railroad ownership rights in the Chicago harbor.
a.       Much later, the city had grown substantially and wanted to take the land back. The Court held that the harbor was held in public trust, so the state could never fully alienate the title.
(i)       The Court considered the Great Lakes an inland ocean because they are so large and because the harbor-side land is extremely important for the commerce of the city, just like the ocean harbors in other large port cities.
b.       The Court did not, however, hold that the initial transfer was void. A similar grant would be possible in the future, but it would always be revocable by the government.
c.        Additionally, the Court held that the state would owe the cost of the improvements, but not the market value of the land (i.e., not “just compensation”) nor consequential damages for the railroad’s future lost profits.
5. Other ways states deal w

is imposing its moral views.
d. Implications of Moore:
Ironically, the majority’s decision actually created a market for body parts, because now patient will be informed of any research w/his body parts, and he has the right to K for his body parts. But the market is unregulated, and some patients will be exploited. If Moore had gotten a true property right, then future patients would be protected from exploitation.
e. In this case, LABOR wins, not FIRST POSSESSOR. Judicial Role – let legislature decide if property interest in cells, not judges.
f. Social Utility: The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials. Once cells taken out of your body, you no longer have any property interest in it.
g. Kidney Sales (hand-out)
1. Arguments in favor:
a. People have a right to do what they want w/their bodies.
b. People have a right to make their own K’s.
c. Gives opportunity to disadvantaged.
d. If we outlaw it, there will be sales anyway but unregulated/more dangerous.
2. Arguments against:
a. Exploits the poor. (just like surrogacy. See end)
b. May not solve poor person’s problems in long run.
c. Slippery slope- leads to slavery?
D.  Family
Family – the right to inherit
a. Allotment – the gov’t broke up and allotted land to individual tribe member, it either held in trust for these
b. Children aren’t guaranteed protection, but living spouses are.
c. Statutory forced share statutes – most states allow a surviving spouse to reject the will and recover a set portion of the decedent’s estate.
d. Many states also protect the right of a surviving spouse to continue living in the marital HOMESTEAD
e. Other states give the surviving spouse half of the community property acquired during the marriage on the death of the spouse.
f. The property of those who die without a valid will is distributed to the decedent’s heirs as specified in the STATE INTESTACY STATUTE.
– some of these state intestacy statutes divide the decedent’s property between a                surviving spouse and the children
– others leave everything to the surviving spouse.
– if no surviving spouse or children, other relatives are entitled to inherit.
– if no heirs, the property will ESCHEAT to the state.

1. Wills and Inheritance
·         Statutes require wills to be in writing and be witnessed
·         Parents can disinherit children
·         Spouses cannot disinherit each other
·                        If you die without a will, follow state intestacy statute- assumes you’d want your things to go to your spouse or your children [parents have duty to care for children until 18] ·         Marriage revokes a pre-marital will – If a surviving spouse shows a marriage certificate and a will, she automatically gets at least 1/3 of estate
2. Marriage: Montana Equitable Distribution Statute
v In re: King
o   FACTS: A district court awarded the wife (D) the family home rather than child support in the division of assets pursuant to her divorce.
o   HOLDING: A division of a marital estate that favors one party over the other may be acceptable if there is reason for it.
o   NOTES: Husband was a gambler, could probably not meet his child support obligations. It is not an abuse of discretion for a court to award the family home to the custodial house in lieu of a support order. Marital home is usually the most valuable asset.
3. Gifts
E.                  Possession (Capture)
1. Wild Animals
a)       Standards of occupancy were discussed in Pierson v. Post, 2 Am. Dec. 264 (N.Y. 1805).
Pierson established the rule that a hunter acquired possession of an animal when the first hunter (i) deprived the fox of its natural liberty by killing, mortally wounding,