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Property I
Villanova University School of Law
Aagaard, Todd S.

Property Outline Aagaard Spring 2012 – Issue spotting
Trespass –An invasion of land is a trespass if it is (1) a tangible object and (2) direct and immediate entry; or the invader knew/should have known invasion would result; or the some act was the proximate cause of the invasion (foreseeability, lack of intervention).
–Nominal damages may support punitive damages in an action for intentional trespass to land Jacque v. Steenberg Holmes
**no punitive damages without compensatory damages (Barnard)
**punitive damages okay generally (McWilliams)
**Traversing the superjacent airspace above appellants land is not a trespass unless done under circumstances which will cause injury to their possession of the land; “injurious to the land, or actual interference with possession or beneficial use thereof.” (pacific air transport).
            –Ad coelum doctrine à “center of the earth to the sky”
CONTINUING TRESPASS ***a landowner who has suffered a series of trespasses that, although not continuous, are part of a single course of conduct which seriously interferes with the landowner’s enjoyment of his property, is entitled to an injunction against the trespasses. (Howard County)
            –injunctive relief is only appropriate where the owner is liable for the trespass of the dog (clean hands are always a requirement for equitable relief)
            –trespasses don’t normally get injunctions
Nuisance – Private Nuisance** a substantial and unreasonable interference with the private use and enjoyment of another’s land.  Malicious conduct may weigh on unreasonableness. An interference is unreasonable when the gravity of the harm outweighs the social utility of the conduct alleged to cause the harm. (Hendricks v. Stalnaker).             –can be negligent/reckless or abnormally dangerous or inappropriate
-UTILITY: (1) social value, (2) suitability to locality, (3) impracticability of avoiding invasion
-GRAVITY OF HARM: (1) extent, (2) character, (3) social value, (4) suitability, (5) burden of avoiding harm
**approaches to determining reasonableness in nuisance cases: bads/invasions rising above thresholds, does the nuisance become worse than a previous baseline (Boomer)
Nuisance per se ** (Luensmann). An activity is a nuisance per se if and only if: (a) it is a nuisance at all times, under any circumstances, in any location (“at all times” theory); or (b) it is forbidden by a local jurisdiction as a categorical nuisance (“violation of law” theory). 
**coming to the nuisance (Del Webb). – residential landowner may not have relief if he knowingly (actual or constructive) came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby.
**very difficult to establish aesthetic nuisances – but not impossible
Building Encroachments – form of continuing trespass (which gets injunctive relief)
**the court can split the costs among parties; court has discretion in adjudicating the amount of time defendant has to comply with injunction (Pile v. Pedrick).
**encroachment will deserve an injunction against the owner of an encroaching foundation wall, UNLESS where the encroachment was unintentional and slight, the plaintiff’s use of his property is not affected and his damage small and fairly compensable, and the cost of removal would cause grave hardship (Golden Press).
**when a mistaken improver resorts to self-help in bad faith, he or she must pay the landowner restitution, including value of the destroyed property (Producers Lumber).
Original Acquisition – first possession cases / ratione soli
**to gain possession of a wild animal, mere pursuit is not sufficient; one must mortally wound and not abandon pursuit of it; or trap it (Pierson v Post).
**party that kills the whale, even if abandoning it, has a property right to it beyond that of others in an industry that relies on such a custom for the benefit of everyone; where custom includes small business aspects, fairness, finder’s fee, traditions, etc. (Ghen v. Rich).
Interference with livelihood**maliciously interfering with a landowner’s right to use his property for the sole reason of disturbing their use allows a cause of action, but cause of action cannot be for trespass if there was no physical invasion on plaintiff’s property (Keeble vs. Heckeringill).
**marking trees and affixing buoys, then abandoning property, does not amount to possession/occupancy sufficient to claim a legal right; to gain ownership, actual possession must be taken; possession equals intent plus detention of the property; detention includes having boat over the wreck with the means of raising treasure and persistent efforts in raising it (Eads vs. Brazelton).
Sequential Possession –
**Finder owns against the world except the true owner (Armory v. Delamirie)
**Finder 1 wins over finder 2 where there has not been abandonment; loss of chattel does not change title (Clark v. Maloney).
**Right of possessor does not depend on how possession was acquired; finder or converter (Anderson v. Goldberg)
Anti-Discrimination – 14th amendment due process
**seeking enforcement from state courts of ordinances that violate the equal protection is state action, and therefore subject to the limits of the Constitution (Buchanon v. Warley).
**at what point does police power become state action?
**FAIR HOUSING ACT à prohibits refusing to sell/rent/negotiate/advertise based on race, color, religion, sex, familial status, or national origin.
            –look at intent and impact

                         i.      Since property law tries also to recognize sentimental value, this makes sense.
                                                                                                                                    ii.      Under changed circumstances, ameliorative waste may be permitted.
4.      Accompanied by a reversion if held by O; accompanied by a remainder if held by any other third party.
b.      Future Interests –
                                                              i.      Future Interests Capable of Creation in O, the Grantor
1.      Possibility of Reverter – accompanies only the fee simple determinable; FSDPOR
2.      Right of Entry/Power of Termination – accompanies only the fee simple subject to condition subsequent.
3.      Reversion – arises whenever grantor has something left over; default catchall answer choice.
                                                            ii.      Future Interests in Transferees
1.      Remainders – waits for the preceding estate to end before it becomes possessory; “To A for life, then to B.”
a.      Remainders never follow defeasible fees
b.      Remainders are either vested or contingent.
                                                                                                                                      i.      Vested when created in a known taker AND not subject to a condition precedent.
1.      Indefeasibly Vested – when its taker is known and not subject to any conditions. “To A for life, then to B.”
2.      Vested Subject to Complete Defeasance – when its taker exists, is not subject to a condition precedent, but is subject to a condition subsequent (some eventuality that if it manifests will divest the remainder-man). “To A for life, then to B, but if B dies under the age of 25, then to C. A is alive and B is 20.”  If B dies under 25, B’s estate loses everything.
3.      Vested Subject to Open – remainder is vested in a group/category/class of takers, at least one of whom is eligible to take.  “To A for life, then to B’s children.  A is alive, B has two children, C and D.”  C and D have vested remainders subject to open, because other children can be born to B.  Once A dies, the class closes, because C and D take possession.