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Property I
University of Denver School of Law
Wiersema, Annecoos

PROPERTY OUTLINE | SPRING 2017 | PROF. WIERSEMA
 
 
Limits on the Owner’s Right to Exclude
Trespass
The Unprivileged, intentional intrusion on someone else’s property.
Intent in this case is the voluntary action. It is not necessary that the trespasser know the property belongs to someone else.
Exceptions: Consent, Necessity, Public Policy
State v. Shack
Ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property
Property rights serve human values. Human interests are too fundamental to forfeit in favor of property rights.
Employer has denied the workers’ privacy, opportunity to live with dignity, and to enjoy associations customary amount our citizens.
Considerations
Bargaining Power
Tenancy
Interference with property activities
Public vs. Private Property
Security of Property
Desnick v. American Broadcasting Companies, Inc.
There is no journalists’ privilege to trespass. There can be no implied consent when express consent is procured through misrepresentation.
However, consent to entry is often given legal effect even if the entrant has intentions that would cause the owner to revoke consent. [Restaurant critics, for example.] There was no invasion of any specific interests that the tort of trespass seeks to protect.
The office was not disrupted and there was no invasion of someone’s space.
This was not an interference with the ownership or possession of land.
Exclusion from Property Open to the Public
Majority Rule: Businesses can exclude for anything reason, except for innkeepers and common carriers who can only exclude on reasonable grounds.
Policy reasons:
Common carriers and innkeepers are more likely to exclude without reason because they are more likely to be monopoly businesses.
They provide necessities without which people could suffer
For other businesses, it is in their interest to allow access to as many people as possible. Exclusion is likely to be reasonable already.
Advantages of majority rule
Clarity: Disputes settle quickly. Clear who has power to control resource
Certainty: Promotes transactions by identifying who owns a particular set of rights to land. We know who has the power to sell it.
Majority Rule Evolution: Balance individual rights against property rights
Owners open their property to the public and therefore surrender some of their rights. They can’t exclude unreasonably.
Owners have a duty to not act arbitrarily or to discriminate
Owners can exclude those working against the owner’s interest by disrupting the function of business.
Minority Rule: Uston v. Resorts International Hotel, Inc.
Exclusion must be reasonable for any establishment that allows public entry.
Must demonstrate reason:
Disrupting the regular and essential operations of the business
Threatening the security of the premise or the occupants
 
 
 
Trespass Remedies
Injunctions
When trespass is continues
Someone is personally present on land of another or left some object on it.
When trespass is repetitious
It is an unfair burden on the owner to bring separate suits.
Galvin v. Eckman
Common measure of damages
Value of damaged property
Problematic when the property is a small cost and much less than the restoration costs (i.e. cutting down mature trees)
Diminution in value of the property as a result of the harm
Market value may be less than the value the owner places on the property. (i.e. Having mature trees on your property that you planted yourself. Using them to block view into your neighbor’s yard.)
Restoration damages are appropriate when other measures won’t work.
Must be reasonable & reasonably necessary compared to damage
At judge’s discretion, other evidence may be used to determine damages
Intent and Willfulness
Affirmative knowledge/disregard may be used to help determine amount.
It is not an related to deciding what type of damages are appropriate.
Jacque v. Steenberg Homes, Inc.
When nominal damages are awarded for an intentional trespass to land, punitive damages be awarded at the discretion of the jury.
Punitive damages remove profit from illegal activity
The law recognizes that a harm occurs in every trespass, whether or not physical damage results or if the owner was reasonable.
Society has an interest in protecting the integrity of the legal system.
There is no right if it isn’t enforced.
Private land owners should feel confident that trespassers will be punished. They are therefore less likely to use “self-help” methods.
 
Public Accommodation Statutes
Civil Rights Act of 1964
Was criticized as a violation of property rights. Many refused to enforce it. No provision for damages but one can obtain court order requiring defendant to cease the conduct.
Prohibition Against Discrimination or Segregation in Places of Public Accommodation
Equal Access
Enjoy public accommodation w/o disc. of race, religion, or national origin.
Public Accommodation is:
Establishments that provide lodging to guests, except those with less than 5 rooms for rent or hire and which is occupied as a residence.
Facilities selling food, including within retail establishments; or gas stations
Places of exhibition or entertainment
Any establishment that is part of or contains one of the above, and any establishment that serves patrons of the establishments above.
Private Establishments
This does not apply to establishments that are not in fact open to the public except as far as it is covered under #4 above.
Assertion of Rights Based on Other Federal or State Laws and Pursuit of Remedies for Enforcement of Such Rights – States can broaden or give more rights.
Courts frequently believe this to be an exhaustive list, but not always. We can push the boundaries with our arguments.
Legislative history (context in which the law was passed)
Historical context (to appease segregationists while dealing w/ civil rights at the same time)
Public Policy
Civil Rights Act of 1866
Applies to r

hose in great need.
Sovereign Authority
Modern Indian Land Claims
Statute required federal consent to purchase Indian lands.
Many states ignored it so the government asked Indians to exchange their land for land west of the Mississippi.
The law made it difficult for Indian’s to sue. Most were forced to accept.
Government Grant
Homestead Act and Land Grants
US took land from the Indians and distributed it by selling it or giving it away.
To promote the basic social structure
Country of free citizens that own property. Build wealth.
Given to Railroads and universities to further society
Encourage expansion & education, increase resource transport
Rewards work, creating agriculture, and cultivating land
Squatters
Individuals assert property rights inconsistent with the law
Government recognizes the assertions by granting formal rights
Basic Needs Fulfillment
Individuals have constitutional right to minimum protection to obtain access to the means necessary for human life [No US court has accepted this argument] NY has a statute that requires social welfare for the needy as enforced at the legislature’s discretion.
Some courts say this means funding for children out of foster care.
Most courts take the NJ view that it is a political question decided by representatives of the people.
 
 
 
Labor and Investment
International News Service v. Associated Press
News Matter’s Dual Character
Substance and fact vs. particular form or collocation of words
Order of words can be copyrighted, but not the information
Unfair Competition
The very nature of news is such that a valuable property interest cannot be maintained by keeping it secret.
Each business, as competitors, has a duty to be fair in business
Concerns the rights between businesses, not as against the public.
Once published, there is no property interest as against the public. But that isn’t true between competing businesses.
News is only quasi-property
It has an exchange value not only to the gatherer, but also to one who can misappropriate it.
Defendant is taking credit for plaintiff’s work
This is an unauthorized interference with normal operation of plaintiff’s business at the exact point where they receive profit. Defendant divers a portion of profit from those who have earned it to those who have not.
Defendant receives profit without working for it. This is unfair competition.