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

I. Trespass to Land
a. Two Conceptions of Property – Property as a right to a thing good against the world; property as a collection (“bundle”) of rights, with content that varies according to context and policy choices
i. Trespass to Land
1. Jacque v. Steenberg Homes, Inc.
a. An examination of the individual interests invaded by an intentional trespass to land, and society’s interests in preventing intentional trespass to land, leads us to the conclusion that the Bernard rule should not apply when the tort supporting the award is trespass to land
b. Private landowner’s right to exclude others from his or her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property
c. Right has no practical meaning unless protected by the State
d. Actual harm occurs in ever trespass
e. Nominal damages may support a punitive damage award in action for intentional trespass to land
f. The amount of punitive damages was not excessive because the trespasser’s conduct was egregious and deceitful. ($100,000 for taking mobile home across the field)
2. Any intentional intrusion that deprives another of possession of land, even if only temporarily, is considered a trespass; subject to liability irrespective of whether he thereby causes any harm to any legally protected interest of the other
3. Hinman v. Pacific Air Transport
a. Without possession, no right in it can be maintained
b. Air, like the sea, by its nature is incapable of private ownership, except in so far as one may actually use it
c. Any use of such air or space by others which is injurious to his land, or which constitutes an actual interference with his possession or his beneficial use thereof, would be a trespass for which he would have remedy. But any claim by a landowner beyond this cannot find a precedent in law, nor support in reason.
d. Appellants do not, therefore, in their bill state a case of trespass, unless they allege a case of actual and substantial damage
e. Ad coelum doctrine – own everything from land up and down (air and earth), rejected here
ii. Philosophical Perspectives of Property
1. Exclusion thesis: the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things
2. Bundle of Rights: Ownership of land is a much more complex proposition than simply acquiring all the rights to it. It is useful to imagine a bundle of rights that can be separated and reassembled. A “bundle of sticks” – in which each stick represents an individual right – is a common analogy made for the bundle of rights. Any property owner possesses a set of sticks related directly to the land.
3. Exclusivity Theory
4. Agenda Setting
5. Value Theory
b. The Trespass/Nuisance Divide – distinction between invasions of land by large objects (like house trailers or airplanes) and interferences with the use and enjoyment of land caused by some activity on neighboring land, like generating polluting of making excessive noise
i. Nuisance
1. Hendricks v. Stalnaker
a. A nuisance is anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable
b. Private nuisance is a substantial and unreasonable interference with the private use and enjoyment of another’s land; includes conduct that is unreasonable, negligent or reckless, or that results in an abnormally dangerous conditions or activities in an inappropriate place
c. Intentional Rule – an interference is intentional when the actor knows or should know that the conduct is causing a substantial and unreasonable interference; the unreasonableness of an intentional interference must be determined by a balancing of the landowners’ interests
d. Unreasonable Rule – an interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm; additional consideration might include malicious or indecent conduct of the actor
e. Balancing tests

2. Trespass is said to protect the interest in possession of land, while nuisance is said to protect the use and enjoyment of the land


Is the interference . . .


negligent or

abnormally dangerous or in
inappropriate place?

gravity of harm
social value

interference is malicious
or indecent

Then nuisance if . . .


Then nuisance.

dge of the dog’s propensity to commit the evil complained of is necessary to a recovery
c. He is liable if he either takes it himself where he knows that, because of its training, nature, and instinct, it will probably damage the property of others, or if with that knowledge he permits it to stray beyond his control
d. It is long since settled that equity will relieve against continuing or repeated trespasses committed in pursuance of a single plan or purpose
e. Equity will interfere where the injury is irreparable or where full and adequate relief cannot be granted at law, or where the trespass goes to the destruction of the property as it has been held and enjoyed or to prevent multiplicity of suits
f. An injunction lies to prevent threatened trespasses, though the damage be susceptible of compensation, where otherwise there is a probability of the wrong being often repeated
2. He who seeks equity must do equity (clean hands) and that equity will intercede only when the remedy at law is inadequate
ii. Building Encroachments
1. Pile v. Pedrick (version 1)
a. Trespass could be remedied in one of two ways: it could be treated, with the plaintiffs’ consent, as a permanent trespass, and compensated for in damages, or the defendants could be compelled to remove the offending ends of the stones to the other side of the line
2. Pile v. Pedrick (version 2)
a. Removal of wall is to be done in reasonable time
3. Golden Press, Inc. v. Rylands
a. It has been declared that mandatory injunction for removal of encroachment can only be denied where estoppel or laches is shown; there are numerous cases where injunction has been refused in the absence of those defenses
b. Where the encroachment is deliberate and constitutes a willful and intentional taking of another’s land, equity may well require its restoration regardless of the expense of removal as compared with damage suffered therefrom; where the encroachment was in good faith, we think the court should weight the circumstances so that it shall not act oppressively
i. relative hardship may properly be considered and the court should not become a party to extortion
Where the defendant’s encroachment is unintentional and slight, plaintiff’s