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Property I
University of California, Hastings School of Law
Crawford, John





1) Trespass to Land

a) Any intentional intrusion that deprives another of possession of land, even if only temporarily, is considered a trespass

b) Intentional trespass is a strict liability tort

c) Two main reasons for enforcing the right to exclude:

i) Avoiding potential violence

ii) Protecting property rights

2) Individual interest in right to exclude:

a) A series of intentional trespasses can threaten the individual’s very ownership of the land

b) The conduct on an intentional trespasser, if repeated, might ripen into prescription or adverse possession whereby the landowner can lose his or her property rights to the trespasser

3) Societal interest in right to exclude:

a) Landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished

b) When landowners have confidence in the legal system, they are less likely to resort to “self-help” remedies

c) Many of the intentional trespasses do not go punished by the District Attorney, so this provides a legal remedy for victims of trespass

4) Determining excessive or arbitrary punitive damages

a) Excessive damages violate due process

b) Ratios of punitive to compensatory damages exceeding 9:1 are presumptively Constitutionally suspect

i) Damages exceeding 9:1 may comport with due process where an egregious act has resulted in only a small amount of economic damages

c) May also compare the relationship between the award and the maximum civil or criminal penalty authorized by the state

· In Intentional trespassing cases, punitive damages may, at the discretion of the jury, be awarded when nominal, but no compensatory damages are awarded

Jacque v. Steenberg Homes, Inc. [D delivers a mobile home over P’s land against P’s wishes]

· Because legal rights to exclude are involved, an intentional trespass results in actual harm and must be redressed

· The actual harm is not in the damage done to the land, but in the loss of the individual’s right to exclude others from his or her property

· Punitive damages serve as a deterrent to illegal activity by making the damages greater than the profit to be gained by misconduct

· The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded

5) Air Rights (ad coelum)

a) Current Approach: Landowner must have exclusive control of the immediately adjacent airspace (~100 ft.)

b) “Whoever owns the soil owns also to the sky and to the depths”

c) Direct over flights within the immediate reaches of an owner’s property constitute a compensable taking, provided that there was interference with the owner’s actual (not just potential) use of the property

d) In practice, the owner of land owns as much of the airspace above the surface as s/he uses, but only if s/he uses it

e) An owner has the right to build as high a building as he wishes (assuming that it satisfies all applicable zoning requirements and building restrictions)

f) Not a practical theory to apply; was invented before air travel

g) One still has rights to dig down as far as they’d like into the depths

h) Modern Approach reduces Transaction Costs

i) Eliminates the need to negotiate the rights with each landowner whose air rights may be violated, hiring attorneys and brokers, etc.

· A landowner has the right to remedy in trespass for use of airspace by others which is injurious to his land or which constitutes an actual interference with his possession or his beneficial use thereof.

Hinman v. Pacific Air Transport [D’s airplanes fly habitually over P’s property at low altitudes]

· We own so much of the space above the ground as we occupy or make use of in connection with the enjoyment of our land

· The amount of space above our land that we own varies with our varying needs and uses of the airspace

· The landowner owns as much of the space above him as he uses, but only so long as he uses it; everything else is public airspace


1) Theoretical Conceptions of Property

a) Essentialism (Jacque approach)

i) Seeks to uncover the core, single true definition of property as a legal concept

ii) Holds that property confers a kind of exclusive sovereign control over some “external thing”

iii) Thesis: the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things

b) Skeptical View (Hinman approach)

i) Holds that “property” is just a word that means nothing until we spell out—using different words—exactly what is being discussed in any given context

ii) Uses a bundle of sticks / bundle of rights metaphor: one can add to or subtract from the bundle more or less without limit, and still talk about the bundle as “property”

iii) One might sell off particular aspects of one’s control—e.g., rights to certain uses or profits

c) Rights in rem and in personam

i) Rights in rem

(1) Creates duties in a large and indefinite class of others not to interfere with some thing

(2) Rights are good against “all the world”

(3) Tend to be simple, easy-to-understand duties of non-interference

ii) Rights in personam creates a duty in only a small and definitely ascertained number of others (e.g., B owes a duty to A)

(1) Rights are good against particular people

(2) Tend to be more complicated rights that impose affirmative duties



1) Nuisance

a) An interference with the use and enjoyment of land that causes significant harm and is unreasonable (Rst.2d § 821)

2) D’s Conduct:

i) P must show that D’s conduct was negligent, intentional, or abnormally dangerous

a) Intentionality

i) D acts with intent when he knows or should know that the conduct is causing a substantial and unreasonable interference

b) Unreasonableness: The gravity of the harm outweighs the utility of the actor’s conduct (Rst.2d §826)

i) Even in the case of intentional conduct, P must show that D’s actions were also unreasonable

(1) Even if D intentionally interferes with P’s rights, he will have a kind of privilege to do so as long as the interference is not unreasonable

ii) The unreasonableness of an intentional interference must be determined by a balancing of the landowners’ interests

iii) An interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm

iv) Gravity of Harm Factors (Rst.2d § 827)

(1) The extent of the harm involved

(2) The character of the harm involved

(3) The social value that the law attaches to the type of use or enjoyment invaded

(4) The sustainability of the particular use or enjoyment invaded to the character of the locality

(5) The burden on the person harmed of avoiding the harm

v) Utility of Conduct Factors (Rst.2d § 828)

(1) The social value that the law attaches to the primary purpose of the conduct

(2) The suitability of the conduct to the character of the locality

(3) The impracticability of preventing or avoiding the invasion

2) Public Nuisance

i) That which affects the general public as public

ii) Examination of the reasonableness or unreasonableness of the use of property in relation to the particular locality is a fair test to determine the existence of a public nuisance

3) Private Nuisance

a) That which interferes with one or a limited number of persons’ ability to use and enjoy their land

b) Interference with P’s use and enjoyment must be substantial and unreasonable

c) Liability (Rst.2d §822)

i) One is subject to liability for a private nuisance if and only if his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:

(1) Intentional and unreasonable, or

(2) Unintentional and otherwise actionable under the

g to buy the right to do something or sell their right to an item

iii) In reality, people demand more to give up their coffee mug


1) Some reason Coasean solutions are not utilized not utilized

a) Parties may not think of these types of solutions

b) Parties may think of the solutions, but may deem them too costly or technically infeasible

c) Parties may not think of Coasean solutions until the transaction costs become too high for any kind of bargain to take place

2) Factors that increase Transaction Costs

a) Assembly problems

i) Arise when someone wants to assembly property rights from a large number of owners in order to undertake some project

ii) High transaction costs stem from a large number of contracting parties (Hinman)

iii) People may hold out for exorbitant amounts of money

b) Bilateral Monopoly

i) Occur where there is only one seller and one buyer for a contested resource

ii) Where an owner of property needs something that can be provided by only one other person or entity (Hendricks)

iii) Parties may bargain strategically to try to get an especially favorable deal if they perceive that the other party has no good alternative options

iv) “Bad blood” between parties may make it very difficult to turn a relationship into a cooperative one


1. Courts of Equity

a. Different from the common-law courts

i. Different procedures

ii. Different style of decision making

iii. Different remedies

1. CL: offered only awards of damages

2. Courts of Equity: issued mandatory decrees directing individuals to perform certain acts

a. These decrees were in personam: personally binding

b. Not judgments of record binding on anyone else

b. In 1848, many states formally abolished the distinction, declaring a “merger” of law and equity

c. Property rights enjoy special protection in a court of equity

i. Specific performance is generally granted to enforce a contract for the sale of real property even though a breach of contract ordinarily results only in an award of damages


1. Equitable Relief and Trespass

a. Generally, equity will not enjoin a mere trespass, with exceptions:

b. Exceptions:

i. If the injury is irreparable

ii. If the injury cannot be fully compensated by awards of damages

iii. If a series of trespasses have been repeated by the same person

iv. If multiple trespasses are being threatened by different persons

2. Advantages of Equitable Relief (Injunctions)

a. Prevents adverse behavior from occurring again

b. Makes trespassers answerable to the court if they trespass again and violate a court order

i. The threat of jail and heavy fines acts as a very strong deterrent

· An owner of a “reputable dog” is not liable for injury or damage caused by the dog’s roaming, but if the owner voluntarily puts his dog in a potentially harmful situation, liability will be found regardless of the owner’s knowledge of the dog’s viciousness

· To be entitled to equitable relief, P must (1) Come into equity with “clean hands” and (2) the remedy at law must be inadequate