Abraham Bell / Property I / Spring 2012
I. WHAT IS PROPERTY?
A. Traditional View
1. Owner: single person (but multiple/other owners possible)
2. Rights: absolute, including rights to exclude, use, transfer
3. Thing: land with cleanly demarcated surface lines that extend to the center of the earth and upwards into the cosmos (ad coelum).
B. “Bundle of Rights” View
1. Owner: any person or persons who has a right
2. Rights: collection of contingent rights and duties
a. Property rights are recognized by the community and they are subject to the needs of the community from time to time. There are no absolute rights to exclude, use or transfer, and, at any time, the owner understands that her needs may be superseded by those of society.
3. Thing: unclear
II. TRESSPASS
A. Rule: Trespass to Land
1. Intentional, unlicensed entry onto land possessed by another, by a tangible physical object, that interferes with the owner’s possession of land, even if only temporarily.
B. Elements
1. Intentional
2. (Direct)
a. R. Torts 2d § 158, comment i: ∆ knew or reasonably should have known that his act would result in the physical invasion of ∏’s land
3. Unlicensed
4. Entry onto land possessed by another
5. By a tangible physical object
a. “Virtual entry” not sufficient (Hendricks v. Stalnaker)
b. Adams v. Cleveland-Cliffs Iron Company (1999) [p.938] – Dust, noise, tiny particles not sufficient to constitute trespass
c. Sewage might be sufficient
6. Interferes with possession of land
a. Doesn’t have to be actual possession at time of trespass; by owning something, you’re always constructively in possession of it
b. Interference w/ possession may be only temporary
C. Ad Coelum Doctrine
1. “If you own the land, you own the space above and below; up to the heavens and down to the center of the earth”
2. Exceptions
a. New statutes/laws may overrule or limit ad coelum rule
i. U.S. v. Causby: federal government has basically seized control over navigable airspace
ii. Hinman: states may refuse to recognize absolute ad coelum rights in unused airspace
iii. Zoning laws often forbid building above certain height, etc.
b. Owner can sell/transfer less than the full scope of his/her ownership rights
i. One may sell air rights and retain surface rights
ii. One may sell surface land but not fixtures attached thereto
D. Airspace – Hinman
1. You only have right to exclude for space you are actually or potentially using
2. Landowner owns only so much of the airspace above their property as they may reasonably use in connection with use & enjoyment of underlying land
E. Remedies for Trespass
1. Recover Possession
2. Recover Actual Damages
3. Recover Punitive Damages (Jacques v. Steenberg Homes)
a. May be assessed even if only nominal damages awarded
b. $100,000 punitive damages on $1 nominal damages award is not excessive
4. Injunction (Baker v. Howard County Hunt)
a. Generally, no injunctive relief for “mere trespass”
b. Available as a remedy for trespass when:
i. No adequate remedy at law ($ damages are an insufficient remedy, having to file multiple future suits for trifling damages)
ii. “Clean Hands” – person who wants injunctive relief hasn’t done something wrong himself
c. Court in Baker didn’t do a cost/benefit analysis
III. BUILDING ENCROACHMENTS
A. In General
1. If willful and deliberate
2. Part of a building/structure is built on someone else’s land
3. Viewed as a continuous trespass
B. Remedies for Encroachment
1. Injunction (Removal) (probably the default – Pile v. Pedrick said it was the only option)
a. Massachusetts Rule: Any unlawful encroachment on the property of another must be removed, even if the encroachment is small, does little harm to the landowner and its removal would be costly.
i. Pile v. Pedrick (1895) – Doesn’t matter that Δ built only 1.5″ over property line; absolute right to exclude means Πs are entitled to automatic injunctive relief to recover possession.
2. Compensatory Damages
a. Colorado Rule: No injunction should be issued, and ∏ may be relegated to compensation in damages where:
i. ∆’s encroachment is unintentional and slight
ii. ∏’s use is not affected, and his damage is small and fairly compensable
iii. The cost of removal is so great as to cause grave hardship or otherwise make its removal unconscionable
b. Golden Press, Inc. v. Rylands (1951) – When encroachment has been unintentional and in good faith, the court should weigh the circumstances so that it doesn’t act oppressively.
3. Restitution (Unjust Enrichment)
a. Owner has to pay trespasser for his unjust enrichment at trespasser’s expense (mistaken improver)
4. Other Remedies
a. Purchase – Court can order encroachee to pay for the improvement
b. Sale – Court can order owner to sell to the trespasser the land on which the encroachment is sitting
c. Split the Profits – Court could order whole lot sold at auction, and split money between trespasser and owner
d. Guidelines for choosing between these options: Whatever the court thinks is right or just under the circumstances.
C. When Injunction will not be granted
1. Estoppel
2. Laches
D. California Good Faith Improver Act
1. GFI must be acting in good faith, under an erroneous belief, not negligent
2. Raab v. Casper
a. Court held that Δ was negligent
b. Negligence here: You could have known that it wasn’t your land, but you chose not to take steps that you should have taken to find out (not being interested enough in finding out the facts)
3. § 871.5: Court can adjust “rights, equities, and interests of the good faith improver, the owner of the land, and other interested parties…”
a. Owner may have to pay for encroacher’s improvement
b. Court can force a sale
c. May not be able to defend, by property rights, the ability to defend against continued trespasses by the encroacher
E. Producers Lumber & Supply Co. v. Olney Building Co. (1960)
1. Olney built on Producers’ land by mistake. After negotiations broke down, Olney trespassed onto Producers’ land and demolished the building.
2. Court says that Olney isn’t entitled to equitable relief because he acted with “unclean hands” when he went onto Producers’ land to destroy the building
3. In California, Olney may have won as a good faith improver
IV. NUISANCE
A. Rule for Nuisance: A substantial and unreasonable non-trespassatory interference with another's use and enjoyment of land
B. Elements
1. Intentional
a. The actor knows or should know that the conduct is causing a substantial and unreasonable interference
2. Non-trespass
ou own the land, you own all the wild animals on that land, for so long as the wild animals are on it
B. Wrecks / Salvage
1. Eads v. Brazelton (1861)
a. Two competing claimants to a shipwreck (prior owner of shipwreck has abandoned it, so now it’s unowned)
b. Rule for Salvage: Ownership established by occupation – starting salvage operation first
i. Pursuit + intent + reasonable chance of success not sufficient
c. No malicious interference, because they’re competitors
2. Salvor Rights
a. Creates, for non-owner finder, some kind of right to compensation (salvor fee) if finder points it out to the proper owner (of whale in Ghen v. Rich)
b. If you find a shipwreck that has not been abandoned, you may still be able to claim salvor rights, which may grant you up to ½ of the value of wreck
c. No need to occupy/capture, because it’s not about ownership
C. Splitting Entitlements: Popov v. Hayashi (2001)
1. Barry Bonds record home run ball. Popov caught ball, but lost it when a mob assailed him. Ball rolled to Hayashi, who was not part of the mob, and he took it and established clear possession of it.
2. Rule: Both parties have equal entitlement to the ball, so Court orders the ball sold at auction and money split between parties.
a. Alternative: Could say that Popov didn’t establish possession of the ball within the customs of baseball, and thus Hayashi was the first possessor
D. Minerals / Natural Resources
1. Oil & Gas
a. Treated as a wild animal awaiting capture; each person, over their land, has the right to capture the oil
b. Texas – Pooling Requirement: Everyone situated over the oil must pool together to extract the oil, and share the profits
2. Minerals
a. Minerals that stay in the same place belong to the owner of the land
b. Minerals that move around (fugacious minerals) are like wild animals, and belong to whoever “captures” them
II. DISCOVERY
A. Johnson v. M’Intosh (1823)
1. Root of title was Britain’s act of discovery.
2. Rule for Discovery: You can acquire ownership of an unowned thing (usually land) when you are the first person to discover it, even without taking possession of it.
3. Here, the act of discovery was the first (white, Christian, male) British person stepping on the soil in the name of Britain.
a. From this point on, Britain owned the land. Indians had possession only.
b. Indians could transfer their possession rights only to Britain.
B. Mining
1. First to discover is owner
III. ACCESSION
A. Doctrine of Accession
1. Rule for Accession: Ownership given to someone who mistakenly takes a physical object that belongs to someone else, and transforms it through his labor into an article substantially different and more valuable than the original object.
a. Could be significant increase in monetary value (wood into piano) or importance (weight-bearing beam in a house)
