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

Aagaard – Property – Spring 2018
DO ALL ISSUE SPOTTING FIRST!!!! Don’t explain cases, no policy unless asked.
Trespass (protects interest in possession of land)
Nuisance (protects use + enjoyment of land)
Coase Theorem
Building Encroachments (causes harm)
Mistaken Improver (adds value)
Conversion (ctrl over chattel of another)
First Possession (abandoned)
Adverse Possession
Sequential Possession (not abandoned)
Licenses (trespass + permission)
Future Interests
Waste + Restraints on Alienation
Community Property
Transfer of Leases
Subleases & Assignments
Common Interest Communities
Transfer (gift and exchange)
Nemo Dat (possession + ownership)
Recording Acts
Mortgages + types of deeds
Easements (right to use for spec. purp.)
Eminent Domain
Regulatory Taking (taking severe enough to treat like em. dom.)
Issue Clusters
Trespass, Remedies, Equity, Licenses, Adverse Possession, Prescriptive Easement, Necessity, Anti-discrimination
Estates & Future Interest (have list), Rule Against Perpetuities, Adverse Possession, Waste, Restrictions on Alienation, Co-ownership
Sequential Possession, Adverse Possession, Nemo Dat, Bailments, First Possession
Recording Acts, Mortgages
Covenants, Common-Interest Communities
Zoning, Regulatory Taking
Remedies, Equity (done in the context of trespasses but not only place it applies)
TRESPASS Jacque steenberg homes
General Rule: Any intentional intrusion that deprives another of possession of land, even if only temporarily.
Trespass involves a (1) physical tangible object AND (2) D knew or should have known her conduct would result in an intrusion on π’s land.  ADAMS.
Dog owner is liable for dog’s trespasses if owner takes dog himself or allows dog to stray where he knows it probably will damage property.  HOWARD COUNTY HUNT.
Capture of wild animals – Ownership requires capture, not pursuit.
If an animal has been mortally wounded or trapped so that capture is certain, treat animal as captured. But if animal only in process of being entrapped, and the door hasn’t snapped shut, it has NOT been captured
A landowner owns fugitive minerals extracted from his own land even if the minerals originated under someone else’s land.  MONONGAHELA.
No ad coelom doctrine here
Rational soli: Owner of the soil has more of a claim to the resources.  MONONGAHELA.
Maybe add Barnard + McWilliams?
NECESSITY – Two different approaches
Necessity of right to enter
If person or property is in danger and trespass is the only option to save, then no trespass.  PLOOF.
The Ploof rule shifts the right to exclude from the landowner to the person trespassing out of necessity.
Necessity as partial defense
The landowner maintains the right to exclude but can only vindicate that right by seeking damages for any injury caused by the trespasser.  VINCENT.
equity unclean hands laches, restitution?
Nuisance protects use and enjoyment of land
Nuisance can be a fallback to trespass, which deals w/ int. in poss. of land
HENDRICKS – Stal. got well in before Hendricks put in Septic, Stal. won because got there first, interfered but wasn’t unreasonable
COASE THEORUM: Only use for a policy Q!
In absence of transact. costs, parties in dispute will bargain to have result that maximizes their joint well-being
Dictated by econ. and not who won, legal rights only a starting pt
Stopping pt = greatest jt wealth for the parties
Coase assumes ppl = rational maximizes + all values can be expressed in monetary terms
Occurs: é in value of production under rearrang.>costs of bringing it abt, but the legal sys. complicates this
We should prefer legal regime that mimics ideal world of no transact. costs
Transaction costs
Identifying other party
Approaching other party
Negotiating terms
Monitoring compliance w/ terms
NOT the costs of good/service (consideration)
Assembly problems – When someone wants to assemble property rights from large # of owners to undertake a project, HIGH transact. costs b/c lrg # of contracting parties
Bilateral monopoly – Owner of prop. needs something that can only be provided by one person/entity, one buyer one seller, contested resource. HIGH transact. costs b/c each party has nowhere else to turn to engage in equiv. transact. Prolonged haggling, can be bad blood.
Ex. Up house
Private ordering – When private parties make voluntary arrangements
Can substitute for law: i.e. 2 car crash, pay each other, no cops
Can effect app. of law: Lots of accidents on same road so speed limit reduced, but then ppl go on another road to

A hunter acquires a property right in wild animal/X by occupancy (constructive possession)
Property right in wild animal not acquired by mere pursuit
MAJ: Acquires prop. right in wild animal/X by mortally wounding animal/X + continuing to pursue
MIN: Wild animal/X acquired when pursuer is w/i reach + has reasonable prospect of physical possession
Rationale Soli:
The owner of the soil has more of a claim to the resources, form of constructive possession
Doesn’t apply for wild animals/X when public land (like in PIERSON)
But owner of land may have more of claim to the resources (see MONOGOHELA)
Fugitive Minerals: MONOGOHELA (essentially PIERSON applied to oil/gas)
General rule: Rationale soli: owner of soul has more of a claim to the resources, form of first possession
Race to appropriate the oil and that’s what creates rule of capture – reference theories below
Ad coelom: a landowner owns everything above and below the surface of the land
Don’t own subsurface resources insofar as they escape
Fugitive resources (resource moves) = no ad coelom doctrine
Non-fugitive = Use ad coelom
If oil and gas goes under neighbor’s property, not trespass.
If someone takes reinjected gas and pulls it up from their land, conversion.
Malicious Hindering (of Trade/profession/livelihood)
Also see: nuisance
KEEBLE: shot gun to scare off neighbor’s ducks, neighbor was biz competition
Can look at it subjective and objective ways
Intention doesn’t matter
All about violent and or malicious interference w/ person’s lawful use of their land
Home-run baseballs: What is a mortally wounded baseball?
No per se rule
Policy Considerations:
What should objective of rule be?
Are alternative rules available?
What objectives would each rule advance?
What objectives would each rule undermine?
How would rule fit with existing legal framework?