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

Aagard – Property Outline – Spring 2016
2. Equitable Relief
Property rights enjoyed special protection in the Courts of Equity!
With property, equity pays great attention to who knew what when
Violation of rights with notice – in bad faith – is regarded more seriously than inadvertent violations.
Meant to correct law where law is defective because of its generality
Based on morality and judicial discretion
Balances hardships and considers unconscionability
Characteristic defenses:
“Clean hands” doctrine:  equity will be withheld from anyone who has acted unfairly in the transaction in question à they have “unclean hands” (Producers Lumbar)
: prevents a party form taking inconsistent positions that would unfairly harm someone who has relied on the earlier positions.
: disallows suit after an unreasonably long time that would work injustice.
Equitable remedy = Injunction
Costs are not in equity, but they may be given or withheld where equity and good conscience require.
3. Trespass to Land
Trespass: any intentional, physically tangible intrusion that deprives another of possession of land, even if only temporary.
Harm = infringement on the owner’s right to exclude
NOT physical harm to the property → NOT necessary for trespass claim
Law NOT so protective of trespass to personal property or chattels → liability only if it cause harm to the owner of the thing
“One is liable to another for trespass, regardless of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
Enters the land in the possession of another, or causes a third thing or party to do so; OR
Remains on the land, OR
Fails to remove a thing he is under a duty to remove. (Jacque)
Trespass versus nuisance
COA: *An invasion of a π’s land is a trespass (rather than a nuisance) if:
1) It involves a physical, tangible object
Dust & vibration DO NOT qualify (Adams)
2) ∆ knew or should have known her conduct would result in an invasion of π’s land (direct or immediate)
The reason for exclusion is irrelevant (Ex. Jaque → owners had irrational reason for excluding)
BUT a “valid” reason could increase punitive damages
Can be some exceptions → ex. Racial discrimination at place of business (see Anti-discrimination)
If either element is NOT met → NO trespass (Nuisance if anything)
 Rule: intentional trespass causes an actual harm in and of itself! (NO need to balance)
Remedy for Trespass
Intentional trespass = compensatory damages.
Courts may also award punitive damages for intentional trespasses (Jacque
Especially cases where the ∆ “seems culpable” → hasn’t asked permission, no ‘necessity’ claim.
Competing rules:
1. Need compensatory damages in order to have punitive damages (old rule)(Barnard)
2. are available absent compensatory damages when (McWilliams, Jacque)
Ad Coelum Doctrine
“Whoever owns the soil also owns to the sky and to the depths.”
bsent some zoning restriction*, a landowner may construct a building as tall as engineering can handle, or dig as deep as they can (Hinman)
Super-adjacent Airspace
: One only owns the super-adjacent airspace that they CAN occupy or make use of in connection with their use and enjoyment of the land.
NOT a fixed right → varies with varying needs/uses
: Traversing super-adjacent airspace is NOT a trespass UNLESS done under circumstances that will cause injury to property owner’s possession. (Hinman)
Potential use NOT enough → must be and actual interference (interferes with π’s use or damages the land) to be trespass.
Line = about likelihood of harm (interference with use and enjoyment):
Likely = Jaque leaning
Unlikely = Hinman leaning
Rule of Capture
Any landowner or lessee may locate his wells wherever he pleases (on his land), regardless of the interests of others. The owner of the well owns the oil and gas his well extracts, even if it comes from under someone else’s land. (Barnard)
ONLY remedy for neighbor = to do likewise.
Limited right to exclude b/c of practical realities of fugitive materials
Repeated Trespass
If a single course of conduct occurs multiple times → can give π a right to an injunction (Baker)
Continuing Trespass
A trespass that occurs constantly on the land (i.e. building encroachment, also see mistaken improvement) – General Rule = only damages are available, not an injunction.
Building Encroachments – JURISDICTIONAL SPLIT (mention this)
Pile v. Pedrick → Ex Ante Approach) Absolutist Approach (1 and 3/8 inches)
: When encroachment is deliberate and constitutes a willful and intentional taking of another’s land, equity requires its restoration regardless of the expense of removal as compared with damages.
NOT a balancing rule!
Good Faith Encroachment Exception: When the encroachment is in good faith, the court has the discretion to divide the costs if removal will put a hardship on A. 
Unclear at what point if you discover it’s an encroachment you loose the ability to claim Good Faith. (Continuum? → facts)
Golden Press, Inc. v. Rylands → Ex Post Approach) (Balancing Approach) (3.5 inches)
Balancing Test! → Weigh the circumstances to determine most fair result
: When an encroachment is unintentional and slight, π’s use is unaffected and his resulting damages is small and fairly compensable while the cost of removal is so great as to cause or otherwise make its removal unconscionable, a mandatory injunction may be denied and damages awarded. ONLY APPLIES TO UNINTENTIONAL AND SLIGHT
Balances the severity of the encroachment (slight, is use affected, is damage small) v. hardship to remove.
: In the absence of evidence to the contrary, there is a presumption of good faith.
General rule for building encroachments (continuing trespass) – only damages available!
: If trespass is (a) continuing or (b) repeated, part of same course of conduct, and seriously interferes with defendant’s use of land, then injunction. [Baker, Pile] Exception to the Exception: If trespass is continuing but it is:
(a) encroachment/trespass is slight;
(b) plaintiff’s use is not affected;
(c) plaintiff’s damage is small and fairly compensable; and
(d) cost of removal is so great as to cause grave hardship; then only damages, no injunction [Golden Press]  
Mistaken Improvements (Producers Lumber & Supply Co. v. Olney Building Co.)
: When a person erects a building upon the land of another without his knowledge and consent, the building becomes a fixture attached the land and automatically passes to the true owner of the land by accession and the building is without a remedy.
: A mistaken improver has a remedy if he places permanent improvements upon land belonging to another in a good faith belief that he is the owner of the land.
Exception to Exception: Waste
A mistaken improver cannot prevail on a good faith claim if he maliciously destroys the improvements → must pay for the waste. (Producers Lumber)
Court discouraging “self-help”
If it were a mobile home (self-help, but no waste) unclear, potential for a different result

invade neighbor's use of her land is a private nuisance à was not intentional or unreasonable
Determining a Nuisance (from – see also the RS rules)
Includes conduct that is intentional and unreasonable
A knows/should know the conduct is substantial/unreasonable interferences
Unreasonableness determined by balancing landowner’s interests (when gravity of harm outweighs social value, it’s unreasonable); or malicious conduct
Negligent or reckless
Or that results in an abnormally dangerous condition
Or activities in an inappropriate place
Restatements on Nuisance — talk about these elements (SEE CHART)
General Rule: liable for private nuisance if conduct is legal cause of invasion of another’s interest in private use and enjoyment and the invasion is either
Intentional and unreasonable, or
Unintentional and otherwise actionable because it was negligent, reckless, or an abnormally dangerous condition or activity
Intentional Invasions
Acts for the purpose of causing the invasion, or
Knows or should know that the invasion will result or is substantially certain to result from conduct [reasonable person standard] Gravity of harm looks at impact on P
of harm involved
of harm involved
Social value law attaches to the type or use of enjoyment invaded in relation to the locality’s character; and
The burden on P to avoid the harm
Social utility looks at impact on D
Social value law attaches to primary purpose of the conduct
Suitability of the conduct to the locality’s character
Impracticability of preventing or avoiding intrusion
**Nuisance vs. Trespass: Distinguished based on interests and actions protected
Trespass protects interests in possession from intrusion (trespass = presumed harm)
Involves physical, tangible object
D knew or should’ve known his conduct would result in invasion of P’s land (direct or indirect)
Rule: trespass requires unauthorized direct or immediate intrusion of physical, tangible object ()
Ex: conducting a chemistry experiment in backyard that accidentally sends container of toxic chemicals in the air; container falls on neighbors rose bush and destroys it
Nuisance protects interests in use and enjoyment from noninvasive interference (nuisance = have to prove harm)
Doesn’t have to be ongoing/continuous
Ex: conducting chemistry experiment in backyard that accidentally sends a dense cloud of toxic chemicals in the air, destroying neighbor’s favorite rose bush
Remedies For Nuisance:
Court doesn’t always choose a winner!
General Rule: If the court finds there is nuisance, the π is given an injunction.
: if injury is only slight, court will probably award damages instead
Remedy for minor inconveniences is one for damages rather than one for injunction.
Court may not find nuisance if purely aesthetic blight (noises and odors)