Kull Property Outline Spring 2018
Property = The Right to Exclude
Potential remedies:
Tort (Legal = Nominal, Punitive):
Punitive Damages
Jacque v. Steenberg
Key elements for significance:
Repeated unequivocal refusal & defiance of ∆
Damages dispute –> was there any real damage to property?
No physical damage due to snow on the ground
Nominal damages = make a point where there is no economic injury
Generally, if only nominal damages (no actual damages) –> NO punitive damages allowed
Rationalized sometimes through “indignity of violation of property rights and emotional distress” (Jacque v. Steenberg)
Kull: case came down to tort & questionable punitive relief
Possible court overreacted… these are excessive punitive damages in light of potential criminal penalty, amount of ticket issued, etc.
Why was court so upset?
Must grant land-owner ability to control
Creates economic value in ability to sell or not sell
Cardinal sin is trespass
Taking your control and economic potential
Equitable Relief –> Injunction
Injunction = equitable
In every injunction decision:
Why is it that damages are not proper?
Why is it that π does not have adequate legal remedy?
Reasons there may be no adequate legal remedy for π:
1) ∆ is threatening to destroy something that is irreplaceable
∆ will repeatedly violate if only monetary damages
2) ∆ is judgment-proof (no assets / insolvent)
3) Damages are hard to calculate
Kull: Jacque argument of “what’s to stop them in the future” is bad argument in light of injunction
Option for relief: Equitable Relief
Baker v. Howard County Hunt
For the actual physical injuries, there may have been adequate legal remedy, but for the interference w/ appellants’ enjoyment of their property as affected by the threat of continued recurrences of such incidents the law affords no adequate relief
Where ∆ manifests an intention of persisting in the perpetration of the unlawful acts, expenses, annoyance, and trouble of prosecuting numerous actions render a legal remedy inadequate
Equity grants relief against continuing or repeated trespasses committed in pursuance of a single plan or purpose.
Graham v. Jules Investment, Inc.
Encroachments:
Encroachments are typically easy to deal with
Generally, injunction to remove encroachment
Money damages not adequate
strong argument in a normal case
Courts normally very quick to order removal
Quickest if π had intent
Slower if there was accident or lack of intent
Judges in equitable relief cases balance the equities
If overly costly or burdensome or too much hardship on ∆, will withhold equitable relief
This happens in Graham
Forced Sale –> Compelling against will to sell
Forced sales are used VERY SPARINGLY –> in extreme cases
Edwards v. Sims:
Principle: cujus est solum, ejus est usque ad coelum & ad inferos
To whomsoever the soil belongs, he owns also to the sky and to the depths
Court of equity –> equity to modify legal rules
Equitable relief:
Court divides profits based on proportion of cave owned by each person
Judge Logan dissent: should have control over what is useful to you or interferes w/ your property
Judge Thomas concurrence: should divide ownership in proportion to surface ownership
Joint ownership/co-tenants in proportion to surface ownership
More potential b/c more people stand to make money and therefore to be compliant and support the continued smooth running of the property
Broad/strict injunction is often inefficient in terms of resource use so courts try to find another way
“ad coelum & ad inferos”
own surface and everything above and below
Unjust Enrichment (UE ) –> Restitution:
You have gained wrongfully and you should be stripped of wrongful gain
Olwell v. Nye & Nissen Co.
Conversion & trespass –> both strict liability
Court waives tort (there are no damages)
Restitution for misdoing –> revenue from unjust use of property
Mistaken Improvement:
Kull: brings into question whether one can be forced to pay for something they never asked for or sell property due to un-asked-for improvement
If improvement can’t be given back, what is there to do?
Pay person for thing they didn’t want
Ex: build valuable fixture onto wrong property w/ innocent mistake and good excuse
Somerville v. Jacobs
Justice Story:
Loosened the law to be more equitable
Choice of remedy depends on the circumstances
Least trouble/most fair seems to be to make parties swap property
If parties reject swap, ∆ must buy the fixture or sell the property
Forced to buy fixture for value added by improvement or sell property for price of land less added value
Done by an appraiser
Dissent:
Decision ruins notion of property rights
Will ruin security of property rights
Affects availability of relief
Pearl Township v. Thorpe
Court has power to drop heavier equity or be more forcer with defendants that are crooked/malicious
Flexibility to be swift & harsh or to be forgiving depending on who the parties are and what they’ve done
Producer’s Lumber & Supply Co. v. Olney Building Co.
Ability to remove mistaken improvement depends –> can negotiate to pick it up and take it but can’t just destroy
Solutions:
∆ buys lot
Finish improvements and π buys improvements
Swap lots
Can sometimes offset damages w/ unjust enrichment claim but not with unclean hands
Unclean hands – can’t recover if circumstances that give rise to claim involve bad/unlawful action on part of claimant
Kull: decision aims to discourage self-help measures
Finder’s Rights:
Property rights depend on “who wants to know”
Property rights are relative –> dependent on who parties are
Property gives you rights that are good against the whole world
But often comes down to: between two people, whose rights are better
Armory v. Delamirie
Priority level of ownership
Finder doesn’t have right against everyone
True owner has greater right
But finder has better right to it than all but the rightful owner
Finders cases tend to be resolved w/ rule:
Title wins
No title but possession:
“mere” possession is protected against wrongful taking
I
rom groundwater
Interesting involvement w/ correlative rights
Illustrates difficulty changing rules mid-stream (after rules are already in place)
Stratton v. Mt. Hermon Boys’ School – EAST RULES
Rule for riparian rights of water:
Usufructuary right –> a right to use as long as don’t interfere w/ people downstream
Perfect example of correlative rights
Right to use, not to take away
Reasonable use that represents the equivocal use of those downstream
Prior to this case, taking water out of watershed was per se unreasonable
Reasonableness rule used to be based on effecting the natural flow of the water
Changed over time
If one uses water w/in watershed, it will eventually come back to the stream
Stratton Court’s modification:
Merely transporting water is not violation
Actual damages necessary by lower riparian if reasonable use by upper riparian
Western Surface Water Rights:
The west is dry –> water has scarcity value
Plenty of water in some places, none in other places
Some places w/ no water extremely fertile if they had water
Huge advantage to moving water where needed
Implications on the Eastern method of water rights settlers bring with them
Riparian owner rights are made up and if priority / need changes, the rule changes
Changing water rights rules is a tough challenge
Coffin v. The Left Hand Ditch Company – WEST RULES
Change in water law from Eastern method:
Water, instead of being attribute of land ownership, becomes right of first taker/possessor
Mass. –> become possessor by buying riparian land
Colo. –> become possessor by using / taking it
Must put water to beneficial use and first come first serve
Disputes center around chronology of beneficial use –> Prior Appropriation
Changing law is difficult so what to do?
Court changes interpretation of law and casts prior interpretation as wrong
∆ was there on the first day but did not begin to make beneficial use until after π’s dam was established
When shifting from water rights going with land to them going with use, chronological use becomes all-important
Water Rights … of the Guadalupe River Basin
Court uses sly maneuver saying that riparian rights are usufructuary and not using for 10 years forfeits right
Illegitimately shifting with prior appropriation method
Trying to avoid constitutional claims –> doesn’t play by the rules
Texas Supreme Court moving back towards candor
Changing rule of capture but instead of making illegitimate moves, they say, “you’re right, it’s a taking, and you’re owed just compensation…now go and litigate it.”
Litigating just compensation can take 20+ years
