Property I Outline

Outline – Property – Crawford – Spring 2015

1. Trespass

a. Tresspass to Land

i. Generally

1. Definition: Any intentional intrusion that deprives another of possession of land, even if only temporarily, is considered a trespass

2. Strict Liability – Intentional trespass is a strict liability tort

3. Motivations – Two main reasons for enforcing the right to exclude:

a. Avoiding potential violence

b. Protecting property rights

ii. Individual interest in right to exclude:

1. Questions Ownership – A series of intentional trespasses can threaten the individual’s very ownership of the land

2. Risks Adverse Possession – 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

b. Societal interest in right to exclude:

i. Confidence – Landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished

ii. Deter Self-Help – When landowners have confidence in the legal system, they are less likely to resort to “self-help” remedies

iii. Rarely Prosecuted Criminally – Many of the intentional trespasses do not go punished by the District Attorney, so this provides a legal remedy for victims of trespass

c. Determining excessive or arbitrary punitive damages

i. Due Process Concerns – Excessive damages violate due process

ii. 9:1 Limit – Ratios of punitive to compensatory damages exceeding 9:1 are presumptively constitutionally suspect

1. Needs Egregious Act – Damages exceeding 9:1 may comport with due process where an egregious act has resulted in only a small amount of economic damages

iii. Max Penalty May Apply – May also compare the relationship between the award and the maximum civil or criminal penalty authorized by the state

iv. Case: Jacque v. Steenberg Homes, Inc. – TRESSPASS DAMAGES

1. Rule: In intentional trespassing cases, punitive damages may, at the discretion of the jury, be awarded when nominal, but no compensatory damages are awarded

2. Summary: D delivers a mobile home over P’s land against P’s wishes

3. Actual Harm – Because legal rights to exclude are involved, an intentional trespass results in actual harm and must be redressed

4. Harm = Loss of Right to Exclude – 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

5. Punitives = Deterrent – Punitive damages serve as a deterrent to illegal activity by making the damages greater than the profit to be gained by misconduct

6. Always Harm – The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded

d. _Ad Coelum

i. Air Rights

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

2. Traditional: “Whoever owns the soil owns also to the sky and to the depths”

3. Compromise – 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

4. Must Use It – 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

5. Build High – 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)

6. Before Airplanes – Not a practical theory to apply; ad coelum was invented before air travel

7. Ground Rights Still Infinite – One still has rights to dig down as far as they’d like into the depths

8. Modern Approach reduces Transaction Costs

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

9. Case: Hinman v. Pacific Air Transport – AD COELUM / AIR RIGHTS

a. Rule: We own so much of the space above the ground that we can make use of.

b. Summary: D’s airplanes fly habitually over P’s property at low altitudes

c. Must Make Use – 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

d. Variable Ownership – The amount of space above our land that we own varies with our varying needs and uses of the airspace

e. Rest is Public – 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

ii. Underground Rights

1. “To whomever the soil belongs, he owns also to the sky and to the depths”

2. Underground resources

a. Surface owner has a presumptive right to drill for water or oil below surface as long as drilled directly downwards

3. Case: Edwards v. Sims – UNDERGROUND RIGHTS

a. Rule 1: Under Kentucky law, one who holds exclusive property rights to surface lands also possesses exclusive property rights to subterranean areas beneath the surface lands.

b. Rule 2: A court of equity has the inherent power, independent of statute, to compel a mine owner to permit an inspection of his works if the adverse party can show reasonable ground for suspicion that his lands are being trespassed upon

c. Summary: Landowner suspects that a cave may extend underground over property line in violation of ad coelum.

d. Rationale:

1. The person applying for such an inspection must show a bona fide claim and allege facts showing a necessity for the inspection (i.e., no other way to determine property rights)

2. The party whose property is to be inspected must have had an