Property Law Outline

An Outline of Property Law Yin Huang May 1, 2010

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Contents 1 Overview of Prop erty Rights 1.1 Jacque v. Steenber berg Homes, Inc. . . . . . . . . . . . . . . 1.2 Hinman v. Pacific Air Transpo porrt . . . . . . . . . . . . . . 1.3 Hendricks v. Stalnaker . . . . . . . . . . . . . . . . . . . 1.4 Baker v. Howard County Hunt . . . . . . . . . . . . . . . 1.5 Pile v. Pedrick . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Golden Press, Inc. v. Rylands . . . . . . . . . . . . . . . 1.7 1.7 Produce Producers rs Lumber Lumber & Sup Suppl ply y Co. Co. v. Olne Olney y Bui Build ldin ingg Co. Co. . 2 Original Ownership 2.1 Pierson v. Post . . . . . . . . . . . . . . . . . . 2.2 Ghen v. Rich . . . . . . . . . . . . . . . . . . . 2.3 Keeble v. Hickeringill . . . . . . . . . . . . . . . 2.4 Eads v. Brazelton . . . . . . . . . . . . . . . . . 2.5 Johnson v. M’Intosh . . . . . . . . . . . . . . . 2.6 2.6 Inte Intern rnat atio iona nall News News Serv Servic icee v. v. Assoc Associa iate ted d Pres Presss . 2.7 Midler v. Ford Motor Company . . . . . . . . . 2.8 Wetherb ee v. Green . . . . . . . . . . . . . . . . 2.9 Edwards v. Sims . . . . . . . . . . . . . . . . . 2.10 Neb Nebraska v. Iowa . . . . . . . . . . . . . . . . . 2.11 Str Strain v. Green . . . . . . . . . . . . . . . . . . 3 Adverse Possession 3.1 Lessee of Ewing v. Burnet 3.2 Carp enter v. Rup erto . . . 3.3 Howard v. Kunto . . . . . 3.4 3.4 So Son ngb gby yrd, rd, Inc. v. Estate tate of 4 Competing Titles 4.1 Armory v. Delamirie . 4.2 Clark v. Maloney . . . 4.3 Anderson v. Gouldberg 4.4 Fisher v. Steward . . . 4.5 Go ddard v. Winchell . 4.6 Hannah v. Peel . . . .

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5 Personhoo d in Relation to Prop erty 36 5.1 Newman v. Sathyavaglswaran . . . . . . . . . . . . . . . . . . 36 5.2 5.2 Moore Moore v. Rege Regen nts of the the Uni Univ versi ersitty of Ca Cali lifo forn rnia ia . . . . . . . . 37 5.3 Hecht v. Superior Court . . . . . . . . . . . . . . . . . . . . . 39 6 Moral Rights 40 6.1 Moakley v. Eastwick . . . . . . . . . . . . . . . . . . . . . . . 40 6.2 United States v. Corrow . . . . . . . . . . . . . . . . . . . . . 41 7 Public Resources 7.1 7.1 Illi Illino nois is Cen Central tral Rail Railro road ad Co Comp mpan any y v. Illi Illino nois is . . . . . . . . . . 7.2 7.2 Stat Statee of Oregon egon ex rel rel. Thorto orton n v. Hay . . . . . . . . . . . . . 7.3 7.3 Lake Lake Mich Michig igan an Federa ederati tion on v. United United State Statess Arm Army Co Corps rps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Evans v. Merriweather . . . . . . . . . . . . . . . . . . . . . . 7.5 7.5 Coffin offin v. Th Thee Left eft Han and d Ditch tch Comp ompany . . . . . . . . . . . . 7.6 Higday v. Nickolaus . . . . . . . . . . . . . . . . . . . . . . . . 7.7 7.7 Tribun ribunee Co. Co. v. Oak Oak Lea Leav ves Broadc Broadcas asti ting ng Stati Station on,, Inc Inc.. . . . . . 7.8 7.8 Peop People le for for the the Ethic Ethical al Treatm reatmen entt of of Ani Anima mals ls v. Do Dough ughney ney . .

42 42 43 44 45 46 47 48 50

8 Limits on Owner Sovereignty 51 8.1 Shelley v. Kraemer . . . . . . . . . . . . . . . . . . . . . . . . 51 8.2 Attorney General v. Desilets . . . . . . . . . . . . . . . . . . . 52 9 Licenses, Grants, and Bailments 53 9.1 Marrone v. Washing Washington ton Jockey Jockey Club of the District District of Columbia Columbia 53 9.2 9.2 Hurst rst v. Pictur ture Thea heatres tres,, Limited . . . . . . . . . . . . . . . 54 9.3 ProCD, Inc. v. Zeidenber berg . . . . . . . . . . . . . . . . . . . . 55 9.4 9.4 All Allen v. Hyat Hyattt Rege Regenc ncy– y–Na Nash shvi vill llee Hotel otel . . . . . . . . . . . . . 56 10 Transfers of Prop erty 10.1 10.1 Pocono Pocono Sprin Springs gs Civi Civicc Ass Associ ociati ation on,, 10. 10.2 Eye Eyerma rman v. Merca ercan ntile Trus rust Co. 10.3 Lauderbaugh v. Williams . . . . . 10.4 Iro Irons v. Smallpiece . . . . . . . . 10.5 Foster v. Reiss . . . . . . . . . . .

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Inc Inc.. v. v. . . . . . . . . . . . . . . . .

Mac MacKen Kenzi ziee . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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11 Estates in Land 11. 11.1 Williams v. Estate tate of Williams ams . . . . . . . . . . . . . . . . . . 11. 11.2 City of Klamath ath Fall alls v. Bell ell . . . . . . . . . . . . . . . . . . . 11.3 Johnson v. Whiton . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Garner v. Gerrish . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Brokaw v. Fairchild . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Mountain Mountain Brow Lodge No. 82, Independent Order of Odd FelFellows v. Toscano . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 11.7 Symp Sympho hon ny Spa Space ce,, Inc Inc.. v. v. Per Pergo gola la Prope Propert rtie ies, s, Inc. Inc. . . . . . . .

63 63 64 66 66 67 69 70

12 Marital Prop erty 71 12.1 O’Brien v. O’Brien . . . . . . . . . . . . . . . . . . . . . . . . 71 12.2 Marvin v. Marvin . . . . . . . . . . . . . . . . . . . . . . . . . 73 13 Leases 13.1 Pa P aradine v. Jane . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Smi Smith v. McEnany . . . . . . . . . . . . . . . . . . . . . . . . 13.3 Sutton v. Temple . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Blackett v. Olanoff . . . . . . . . . . . . . . . . . . . . . . . . 13.5 In I n re Kerr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 MedicoMedico-Den Dental tal Buildi Building ng Compan Company y of Los Angeles Angeles v. Horton Horton and Converse . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7 13.7 Javi Javins ns v. Firs Firstt Nati Nation onal al Real Realtty Co Corp rp.. . . . . . . . . . . . . . . 13.8 Sommer v. Kridel . . . . . . . . . . . . . . . . . . . . . . . . . 13.9 Nahrste Nahrstedt dt v. Lakesi Lakeside de Villa Village ge Condom Condomini inium um Associ Associatio ation, n, Inc. Inc. 13. 13.1040 040 West est 67th 7th Stre treet v. Pull ullman . . . . . . . . . . . . . . . . .

74 74 75 76 77 78

14 Trusts 14. 14.1 Broa roadw dwaay Nation tionaal Ban ank k v. Adams . . . . . . . . . . . . . . . 14.2 R ot othko v. Reis . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 W ililber v. Owens . . . . . . . . . . . . . . . . . . . . . . . . .

86 86 87 88

15 Nuisance 15.1 15.1 Ad Adam amss v. v. Cle Clev velan elandd-Cl Cliiffs Iron ron Com Compa pan ny . . . . . . 15.2 15.2 St. Hele Helen’ n’ss Smel Smelti ting ng Co Comp mpan any y v. Tipp Tippiing . . . . . 15.3 15.3 Lu Luen ensm sman ann n v. v. Zim Zimme merr-Za Zamp mpes esee & Assoc Associa iate tes, s, Inc. Inc. 15. 15.4 Boom oomer v. Atlantic tic Ceme ement Co. . . . . . . . . . . . 15.5 15.5 Sp Spur ur Indu Indust stri ries es v. Del Del E. E. Web Webb b Dev Devel elop opme men nt Co. Co. .

89 89 90 92 93 94

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16 Easements 95 16.1 16.1 Warsa arsaw w v. Ch Chiicago cago Meta Metall llic ic Ceil Ceiliing ngs, s, Inc. Inc. . . . . . . . . . . . 95 16.2 Fontai ontainebl nebleau eau Hotel Hotel Corp. Corp. v. Fort Forty-F y-Fiv ivee Twen Twenty ty-Fi -Five ve,, Inc. . . 97 17 Covenants 98 17.1 Tu Tulk v. Moxhay . . . . . . . . . . . . . . . . . . . . . . . . . . 98 17.2 Neponsit Prop. Owners’ Association, Association, Inc. v. Emigrant IndusIndustrial Savings Bank . . . . . . . . . . . . . . . . . . . . . . . . 99 17. 17.3 Ea Eaggle En Enterp terprrises, In Inc. v. Gross oss . . . . . . . . . . . . . . . . . 100 100 17.4 Sanborn v. McLean . . . . . . . . . . . . . . . . . . . . . . . . 101 18 Zoning 102 18.1 18.1 Vill Villag agee of of Eu Eucl clid id v. Am Amber ber Rea Reallty Co. Co. . . . . . . . . . . . . . 102 102 18.2 Southern Burlington County N.A.A.C.P. N.A.A.C.P. v. Township Township of Mount Laurel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 104 18.3 Sts. Constan Constantine tine and Helen Helen Greek Greek Orthodox Orthodox Church Church,, Inc. Inc. v. City of New Berlin . . . . . . . . . . . . . . . . . . . . . . . . 10 105 19 Intellectual Property 106 19.1 Eldred v. Ashcroft . . . . . . . . . . . . . . . . . . . . . . . . 10 106 20 Takings 108 20.1 Kelo v. City of New London, Connecticut . . . . . . . . . . . . 108 20. 20.2 Penn ennsylvania Coal Co. v. Mah Mahon . . . . . . . . . . . . . . . . 111 111 20.3 Penn Penn Central Central Trans Transportat portation ion Compan Company y v. City of New York York . 112 20.4 20.4 Lorett Lorettoo v. Telep eleprom rompte pterr Manh Manhatt attan an CA CATV Corp Corp.. . . . . . . . 114 20.5 20.5 Lu Luca cass v. v. Sou South th Ca Caro roli lina na Co Coas asta tall Cou Counc ncil il . . . . . . . . . . . . 115 20.6 Miller v. Schoene . . . . . . . . . . . . . . . . . . . . . . . . . 11 117 20.7 20.7 Ph Phil illi lips ps v. Washi ashing ngto ton n Leg Legal al Found oundat atio ion n . . . . . . . . . . . . 118 20.8 Palazzolo v. Rhod odee Island . . . . . . . . . . . . . . . . . . . . 11 119 20.9 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 120 20.10Dolan v. City of Tigard . . . . . . . . . . . . . . . . . . . . . . 121 20.11First English Evangelical Lutheran Church v. County of Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 20.12Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (cont’d) . . . . . . . . . . . . . . . . . . . . . . . 123

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20.13Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City . . . . . . . . . . . . . . . . . . . . 12 124 20.14San 20.14San Remo Remo Hotel Hotel v. v. City City and Coun County ty of of San Franc Francisc iscoo . . . . . 126 20.15Flemming v. Nestor . . . . . . . . . . . . . . . . . . . . . . . . 127

1 1.1 1.1 1.1.1 1.1.1

Over Overvi view ew of Prope Propert rty y Righ Rights ts Jacq Ja cque ue v. v. Stee Steen nberg berg Home Homes, s, Inc Inc.. Over Overvi view ew

Jacque (P) sued after Steenberg Homes (D) delivered a mobile home to its buyer by towing it across land owned by Jacque without Jacque’s permission.

1.1. 1.1.2 2

Fac acts ts

Steen Steenber bergg Home Homess had had agree agreed d to deli deliv ver a mobi mobile le home to its its buyer. buyer. The easiest method of delivery delivery consisted of towing towing the home across Jacque’s land. The only alterna alternativ tivee route route wa wass a windin winding, g, snow-c snow-cov overed ered road. Using Using that road would have required Steenberg Homes to use special equipment to ensure the safety of the home and thereby incur additional costs. Prior to delivery, Steenberg Homes had unsuccessfully requested permission from Jacque to use Jacque’s Jacque’s land. land. Jacque Jacque refused refused in part because because he had lost lost land land through through adverse possession some years before and so was reluctant to allow strangers access to the land. On the morning of the delivery, an assistant manager for Steenberg Homes made a final offer to pay Jacque for use of this land, but Jacque Jacque refused refused once again. again. The assistan assistantt manager manager then ordered ordered workers workers to tow the home across the land, Jacque’s Jacque’s refusal notwithstanding notwithstanding.. At trial, the court awarded Jacque nominal damages of one dollar and punitive damages of $100,000.

1.1. 1.1.3 3

Issu Issue e

May a court award punitive damages for trespass even though the facts would otherwise support only nominal damages? If so, are the punitive damages of $100,000 in this case excessive?

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1.1. 1.1.4 4

Hold Holdin ing g

The court may may aw award ard such such pu puni niti tive ve dama damages ges.. Th Thee pu puni niti tive ve damag damages es of $100,000 in this case are not excessive.

1.1.5 1.1.5

Reas Reason onin ing g

In many cases, the harm of trespass consists not of direct damage to the land but of invading the landowner’s right to exclusive use of that land. Limiting relief to nominal damages would undermine this crucial right, as any trespasser could then infringe infringe upon up on the land while incurring only a slight slight penalty. penalty. Repeated trespasses might ultimately amount to the adverse possession that had worried Jacque. The state must therefore support the property rights of individuals individuals by imposing punitive punitive damages sufficient sufficient to deter trespass. Furthermore, punitive damages encourage landowners to rely on the courts for relief rather than taking the law into their own hands.

1.2 1.2.1 1.2.1

Hinman Hinman v. Paci Pacific fic Air Tran ranspor sportt Over Overvi view ew

Hinman (P) sued to enjoin Pacific Air Transport (D) from flying its airplanes airplanes over his house and for damages resulting from the flights that had already occurred.

1.2. 1.2.2 2

Fac acts ts

Airpla Airplanes nes operated operated by Pa Pacific cific Air Transport ransport (“Pacifi (“Pacific”) c”) regularl regularly y flew at altitude altitudess of less less than 100 feet over over Hinman’ Hinman’ss land. land. Hinman Hinman requested requested that Pacific stop these flights, but Pacific disregarded the requests. Hinman then sued, arguing that the ad coelum rule gave him the right to prevent aircraft from flying above his land and that such flights were trespasses.





























1.2. 1.2.4 4

Hold Holdin ing g

The ad coelum rule does not confer an unlimited right to restrict access to the airspace above one’s land.

1.2.5 1.2.5


The ad coelum rule was never meant to be taken literally, and the interpretation of the ad coelum rule advocated by Hinman would result in absurd consequences. consequences. Holding Holding that Pacific’s overfligh overflights ts constitute trespass would would allow every landowner to prevent airplanes from flying above his or her land. Such a rule would be unenforceable.

1.3 1.3 1.3.1 1.3.1

Hend Hendri riccks v. Stal Stalna nak ker Over Overvi view ew

Stalnaker (D) drilled a well located within 100 feet of land owned by Hendricks dricks (P). Hendricks needed to install a septic system on his land, but health regulations forbade him from doing so because of the proximity of the well.

1.3. 1.3.2 2

Fac acts ts

Stalnaker (D) had drilled two wells on his land, one of which was within 100 feet of land owned by Hendricks (P). Only this latter well produced usable usable water. water. Hendric Hendricks ks needed to instal installl a septic septic system on his land, but local health regulations forbade him from doing so because the system, which would be located within 100 feet of Stalnaker’s well, would create a risk of contami contaminati nating ng the well. Hendric Hendricks, ks, havin havingg no alternat alternativ ivee to the planned planned septic system, claimed that Stalnaker’s well constituted a nuisance.

1.3. 1.3.3 3

Issu Issue e





























1.3.5 1.3.5


Because the well interferes only with the use of adjacent private land rather than the public at large, it amounts to at most a private private nuisance. nuisance. A particular use of land constitutes a private nuisance when it is (1) intentional and (2) unreasonable. unreasonable. Stalnaker’s Stalnaker’s well is plainly an intentional intentional use of the land, so the only question is whether it is an unreasonable use as well. While Hendricks claims that the proximity of the well interferes with the installation of a septic system, the opposite argument would also be valid. The septic system, had it been installed first, would have prevented Stalnaker from drilling his well. In fact, the septic system arguably constitutes a greater interference than the well because the former creates a risk of invasive contamination. Therefore, the Hendricks have not shown that Stalnaker’s well is an unreasonable use of the land. No nuisance exists.

1.4 1.4 1.4.1 1.4.1

Bak Ba ker v. v. How Howar ard d Coun Countty Hun Hunt Over Overvi view ew

Baker (P), the owner of a farm, sued to enjoin Howard County Hunt (D) from allowing its foxhounds to trespass upon the farm.

1.4. 1.4.2 2

Fac acts ts

Baker and his wife owned and lived on a farm near areas where Howard County Coun ty Hunt conducte conducted d fox fox hu hunt nts. s. Althoug Although h Baker Baker did not initia initially lly mind the presence of the hunters on his land, the growth of his animal-raising operation operationss soon resulted resulted in friction friction with the huntin huntingg activit activities ies.. In one incident cident,, foxho foxhounds unds came came onto onto the farm and injured injured Mrs. Baker. Baker. Althou Although gh Howard County Hunt issued an apology afterwards, Baker contended that the hunting hun ting club made no effort to prevent similar similar trespasses. In a later incident, incident, Baker Baker shot some of the foxhounds foxhounds when they overran overran his chicken chicken coop. Baker Baker then sued to enjoin Howard County Hunt from committing such trespasses.





























1.4. 1.4.4 4

Hold Holdin ing g

A court may grant such an injunction.

1.4.5 1.4.5


Baker has no adequate remedy at law, and he has not committed any acts that violate violate the “clean “clean hands” requireme requirement nt of equitabl equitablee relief relief.. Damages Damages would not provide adequate relief because Baker was using the farm for activities, such as the experimental raising of rabbits, whose monetary value cannot be readily calculated. Furthermore, Howard County Hunt has shown a tendency tendency to trespass trespass repeatedly repeatedly on the land. land. It would would be unfair unfair to force Baker to file a lawsuit every time such a trespass occurred. Finally, Baker’s shooting of the foxhounds does not amount to an act that violates the “clean hands” requirement requirement of equitable relief. relief. While the law generally prohibits prohibits a landowner from shooting a trespassing dog, Baker’s actions fall under the exception that allows the use of such force when the landowner reasonably believes the force to be necessary for the defense of his person or property. Howard County Hunt cannot take refuge under the doctrine that a dog owner ow ner is not liable liable for the unsupervi unsupervised sed actions actions of a “reputab “reputable” le” dog. Here, Here, the foxhounds did not act independently, as they were under the supervision of Howa Howard rd Coun County ty Hunt when the trespasses trespasses occurred. occurred. In any any case, case, Baker Baker should not be forced to rely on the supposed good nature of the foxhounds when they have, in fact, injured Mrs. Baker.

1.5 1.5 1.5.1 1.5.1

Pile Pile v. Pedri edricck Over Overvi view ew

Pile (P) sued when Pedrick (D) built a factory whose foundations extended approximately one inch onto Pile’s land.

1.5. 1.5.2 2

F ts





























of the factory themselves, however, remained well within property boundaries. The slightness of the intrusion notwithstanding, Pile claimed trespass and sued for an injunction requiring Pedrick to demolish the existing wall and to rebuild it so as to eliminate the intrusion.

1.5. 1.5.3 3

Issu Issue e

Is a court bound to grant an injunction requiring the removal of an intruding structure even though that intrusion is both slight and underground?

1.5. 1.5.4 4

Hold Holdin ing g

The court is bound to grant such an injunction.

1.5.5 1.5.5


As a matter of law, no individual may occupy land that he or she does not own. Since Pedrick Pedrick has trespassed upon Pile’s land by building building a factory with intruding foundations, the court has no choice but to grant the injunction that Pile requests.

1.6 1.6 1.6.1 1.6.1

Gold Golden en Pre Press ss,, Inc. Inc. v. v. Ryla Ryland ndss Over Overvi view ew

Rylands (P) sued when Golden Press (D) constructed a building whose foundations extended onto Rylands’s land.

1.6. 1.6.2 2

Fac acts ts

Golden Press constructed a building for business purposes on land adjacent to Rylands’s property. property. The foundations of the building extended about three and a half half inches inches onto Rylands’ Rylands’ss land. land. Rylands Rylands claimed claimed trespass trespass and sued































1.6. 1.6.3 3

Issu Issue e

Should the court issue as a matter of course an injunction requiring the removal of an intruding structure even when the intrusion is slight and underground?

1.6. 1.6.4 4

Hold Holdin ing g

The court should not issue such an injunction as a matter of course.

1.6.5 1.6.5


The courts have often refused to grant injunctions against slight and harmless encroachments upon a neighbor’s land because of the de minimis principle. Even jurisdictions that purport to observe a strict rule against permanent trespas trespasses ses have have carved carved out nu numero merous us exceptions exceptions to that rule. rule. Where Where the trespass is unintentional, the courts should balance the nature of the harm and the cost of the remedy to reach an equitable solution.

1.7 1.7.1 1.7.1

Producer Producerss Lum Lumber ber & Supply Supply Co. v. Olne Olney y Build Building ing Co. Over Overvi view ew































1.7. 1.7.3 3

Issu Issue e

Should one who mistakenly mistakenly builds a house on another’s land be held liable for the value of that house if he demolishes it without the landowner’s consent?

1.7. 1.7.4 4

Hold Holdin ing g

One who mistakenly builds and then demolishes such a house should be held liable.

1.7.5 1.7.5


Under normal circumstances, a court will grant equitable relief by allowing the builder to remove the building if such removal can be carried out without damage to the land or the building. If removable removable is impossible, impossible, then the court may grant the landowner the choice to pay the builder for the improvement to the land and thereby thereby gain gain possessi possession on of the building. building. Alterna Alternativ tively ely,, the builder may purchase the land from the owner. The mistaken builder, however, is not permitted to demolish the building unilaterally unilaterally.. Such demolition demolition amounts not only to impermissible impermissible self-help self-help but also to economic waste. The builder must compensate the landowner for such such wa waste ste.. In this this case, case, Olney Olney is additional additionally ly liable liable for punitive punitive damages damages because it demolished the house with malice.































2 2.1 2.1 2.1.1 2.1.1

Orig Or igin inal al Owne Owners rshi hip p Pier Pierso son n v. Post ost Over Overvi view ew

Post (P) sued after Pierson (D) killed and carried off a fox that Post was on the verge of catching in a fox hunt.

2.1. 2.1.2 2

Fac acts ts

Post Post had been a hu hunt nting ing a fox fox on uninhabit uninhabited ed land. Pierson Pierson,, knowin knowingg that Post was pursuing the fox, nonetheless killed it and carried it off, thereby preventin preventingg Post from catching catching the fox. Post sued, claiming claiming that his pursuit of the fox gave him a property right over the fox.

2.1. 2.1.3 3

Issu Issue e

Does the pursuit of a wild animal in itself give rise to possession of that animal?

2.1. 2.1.4 4

Hold Holdin ing g

Such pursuit does not give rise to possession over an animal.































away the prey at the last minute. away minute. The authoriti authorities es cited by the majority majority all formed their views long before fox-hunting was a sport. Their weight should be limited accordingly.

2.1.6 2.1.6

Profes Professor sor’s ’s Commen Comments ts

This case was decided during the short period following the revolution when the common law of England had not yet been widely adopted in the United States. States. The majority majority probably probably reaches reaches the clearer and more enforceabl enforceablee solution. If anyone who spends time chasing an animal may claim ownership of that animal, then the court would face line-drawing problems as to how much chasing is necessary to establish such ownership.

2.2 2.2 2.2.1 2.2.1

Ghen hen v. Rich ich Over Overvi view ew

Ghen (P) sued Rich (D) for possession of a whale that Ghen had killed but which had been sold to Rich after it was discovered by a third party.

2.2. 2.2.2 2

Fac acts ts

Ghen, a whaler, had killed the whale in question with the intention of profiting from the sale of its blubber. Because a freshly killed whale immediately































already found that animal and sold it to another person?

2.2. 2.2.4 4

Hold Holdin ing g

Such markings should be recognized.

2.2.5 2.2.5


The courts have consistently held that marking an animal which cannot be immedi immediatel ately y retriev retrieved ed suffices suffices to establi establish sh ow owners nership hip of that animal. animal. The whaling industry would cease to exist if this rule were overturned, as no one would have any incentive to hunt whales if any individual could simply find and sell the carcass.

2.3 2.3 2.3.1 2.3.1

Keeb Keeble le v. Hic Hickerin eringi gill ll Over Overvi view ew

Keeble (P) sued after Hickeringill (D) interfered with the operation of a decoy pond for catching ducks by firing guns to scare the ducks away.

2.3. 2.3.2 2

Fac acts ts

Keeble owned a decoy pond designed to catch ducks. Hickeringill intention-

































2.3.5 2.3.5


The owner of land may use that land for any purpose he or she desires. Here, Here, Keebl Keeblee has chose chosen n to profit profit from from his his land land by catch catchin ingg du duck ckss usin usingg a deco decoy y pond pond.. Hick Hickeri eringi ngill ll may may not inten intenti tiona onall lly y hinde hinderr the use use of that that land. land. The award, award, howe howeve ver, r, should should compensat compensatee Keeble Keeble for the disturbanc disturbancee to his land land rather rather than the loss loss of propert property y. In order order to recove recoverr for for the loss of property, Keeble would have to prove how many ducks he lost as a result result of Hicke Hickering ringill ill’s ’s actions. actions. Provin Provingg such such a fact is impossib impossible le becau b ecause se Keeble cannot say with certainty how many ducks he would have caught if Hickeri Hickeringill ngill had not interfered. interfered.

2.4 2.4 2.4.1 2.4.1

Eads Eads v. Br Braz azel elto ton n Over Overvi view ew

































2.4.5 2.4.5


Although Brazelton intended to make the wreck his property, his claim ultimatel timately y fails fails becau b ecause se he did not take take possessi possession on of the wreck. wreck. Taking aking possession does not necessarily require him to lay hands on the wreck, but it requires more than marking nearby nearby trees to indicate indicate its location. lo cation. Brazelton Brazelton should have placed his own boat over the wreck as a warning to intruders. Having chosen to pursue a different salvage operation, he cannot now complain that he lost his chance to gain the original wreck.

2.5 2.5 2.5.1 2.5.1

John Johnso son n v. M’In M’Into tosh sh Over Overvi view ew

Johnson (P) had inherited land that was originally purchased from Native

































2.5. 2.5.4 4

Hold Holdin ing g

The courts should not recognize land titles obtained from Native Americans prior to the American independence.

2.5.5 2.5.5


Native Americans should be regarded merely as occupiers of the land, not as full-fledged owners with the right to sell that land. Ownership of land comes into existence only by discovery of that land. This rule has been observed by all European countries countries with settlements settlements in the New World. Any “purchases” “purchases” of land from Native Americans should be considered formalities designed to prevent prevent hostilities. hostilities. Legally, Legally, the United States is the true owner of the land because it inherited that ownership from Britain, the original discoverer.

































2.6 2.6.1 2.6.1

Inter In ternat nation ional al News News Servi Service ce v. Ass Associat ociated ed Press Press Over Overvi view ew

Associated Press (P) sued to enjoin International News Service (D) from improperly obtaining and distributing news for profit.

2.6. 2.6.2 2

Fac acts ts

Associated Press (“AP”) was an organization that engages in the gathering ing and and sale sale of news. news. Its Its membe membersh rship ip consis consisted ted of about about 950 950 daily daily newsnewspapers from across across the United United States. States. Each Each member member contribute contributed d news to and received news from AP. In this way, AP provided each member with nation nationwid widee news. news. The terms of membersh membership ip AP prohibi prohibited ted members members from disclosing news to non-members. International News Service (“INS”) was a competing organization with a membership of about 400 daily newspapers.

































under the law, as no one may claim ownership rights over newsworthy events themsel themselve ves. s. Second, Second, the right right to distribute distribute news depends on the nature nature of the distributor. In general, a newspaper cannot prevent an individual reader from disseminating that news to others as long as such dissemination does not interfer interferee with with the business business of the newspaper newspaper itself. itself. A different different situasituation arises, however, when the distributor is a competing news organization. When INS gleans AP news from bulletin boards and distributes that news through its own channels, it diverts a portion of AP’s profits to itself. Such conduct amounts amounts to unfair competition. The courts should therefore therefore apply “quasi-property” rights to news, so that a news organization may not benefit inequitably from news gathered by a competitor.

Justice Holmes, dissenting. The news consists of combinations of words. It would be unfair to deny someone the use of a particular combination of



































2.7. 2.7.4 4

Hold Holdin ing g

Such a singer may recover.

2.7.5 2.7.5




































2.8. 2.8.4 4

Hold Holdin ing g

An owner may not repossess repossess such property property. The remedy remedy consist consistss only only of damages for the original taking.

2.8.5 2.8.5




































trespass on the land above?

2.9. 2.9.4 4

Hold Holdin ing g

The owner of a cave may be compelled to open his cave for such purposes.



































dispute eventually arose as to whether a portion of the boundary should continue to follow the river.

2.10 2.10.3 .3

Issu Issue e

Are the natural changes in the course of the Missouri River sufficiently rapid



































of plywood backing. When Strain moved in, however, he discovered that all these fixtures had been removed and replaced with inferior substitutes.

2.11 2.11.3 .3

Issu Issue e

Should objects such as those mentioned above be considered fixtures?





















































































































































































































































































































































































































































































































































































































































































































































































































































































































































































10.4. 10.4.5 5


invalid unless it is actually actually Abbott, C.J. It is settled doctrine that a gift is invalid delive delivered red to the recipien recipient. t. In the case case of Bunn v. Markham , a gift was held to be invalid for lack of delivery even though it was the manifest intent of the donor donor to trans transfe ferr his his proper property ty to others others.. Sinc Sincee the colts colts here here were were never delivered to Irons, they cannot be considered his property. Rather, the property interest vested in Smallpiece instead.

Holroyd, Holroyd, J. Perhaps payment for the hay could have been to support a transfe transferr of ownershi ownership p in the colts. colts. Given Given that the hay was not transfe transferred rred until a few days before the father’s death, the circumstances do not support a finding of property rights in Irons.

10.5 10.5

Foste osterr v. v. Reis Reisss

10.5. 10.5.1 1

Over Overvi view ew

Foster (P) sued Reiss (D) for property allegedly conveyed as a gift causa mortis.

10.5. 10.5.2 2

Facts acts

Mrs. Reiss, the wife of Reiss, was about to undergo major surgery when she delivered to Reiss a handwritten note instructing him to take possession of certain property in her home. Reiss was to keep for himself a portion of her money money while while distribu distributin tingg the rest of her property property to her relativ relatives. es. While While Mrs. Reiss was unconscious under anesthesia, Reiss took the property as instruc instructed. ted. Mrs. Reiss Reiss was in a coma for nine days days follo followin wingg the surgery surgery and died thereafter thereafter.. There There wa wass some some dispute dispute as to whether whether Mrs. Mrs. Reiss Reiss was conscious at any time following the surgery, but the trial judge found that she was insufficiently coherent to carry on intelligent conversation.

10.5 10.5.3 .3

Issu Issue e

Is a gift causa mortis valid absent personal delivery by the donor?

10.5 10.5.4 .4

Hold Holdin ing g

A gift causa mortis is not valid without such delivery. 62





























10.5. 10.5.5 5


A gift causa mortis is intended to convey to the donee a priority of interest that supersedes any interest held by other heirs. Settled doctrine states that the donor must personally deliver the gift to the donee in order for the gift to be valid. Here, there was no such delivery. Although Reiss lived in the same house as Mrs. Reiss, he knew nothing of the property until he received the note. It is also invalid invalid to say that authorization authorization to take the property, property, coupled with actual taking of the property during Mrs. Reiss’s lifetime, constitutes transfer of ownership. ownership. Mrs. Reiss was already already under anesthesia when Reiss got the property property.. By that time, time, she was already already incapable incapable of transac transacting ting business.

Jacobs, J., dissenting. The law should give priority to the intentions of the donor rather than the observ observance ance of doctrine. doctrine. The rule of deliv delivery ery was formulated in an older time, when physical possession was thought to be a vital vital part part of transfe transfer. r. When When Mrs. Reiss Reiss signe signed d the the note, note, she did did all all she could could to secure the proper disposal disposal of the property property. Indeed, Indeed, the very very point of writing the note was that she realized she may not survive the surgery. It would be absurd not to honor her wishes.

11

Estates in Land

11.1 11.1

Will Willia iams ms v. v. Esta Estate te of Wil Willi liam amss

11.1. 11.1.1 1

Over Overvi view ew

A dispute arose as to the construction of a will.

11.1. 11.1.2 2

Facts acts

G. A. Williams (“the decedent”) had specified in his will that his farm was to be left to his daughters: Ethel Williams, Ira Williams, and Mallie Williams. The will stated in relevant part that the farm was for the daughters to “to have and to hold during their lifetime” but that “[i]f any of them marry their interest ceases and the ones that remain single have full control of same.” Ethel Williams (P) evidently brought suit to ascertain the nature of the

63





























interest specified in the will. The court below held that the will gave to the daughters ownership in fee simple of the farm.

11.1 11.1.3 .3

Issu Issue e

Did the will give to the daughters ownership in fee simple of the farm?

11.1 11.1.4 .4

Hold Holdin ing g

The will did not give such ownership.

11.1. 11.1.5 5


The duty of the court is to ascertain the intentions of the testators and to dispose dispose of any any propert property y in accordance accordance with those intent intentions ions.. Here, Here, the circumstances and text of the will show that the decedent did not intend to leave leave the farm to his daughters daughters in fee simple simple.. Rather, Rather, the will will wa wass only only intended to ensure that their daughters would have a place to live for either (1) the rest of their lives if they remained single or (2) until they married. The statements that the farm is “not to be sold during their lifetime,” that “I [the decedent] do not want them sold out of a home,” and that any interest in the farm was to terminate upon marriage showed that the decedent merely wanted to provide for his daughters until they could find some other source of support.

11.2 11.2

Cit City of Klam Klamat ath hF Fal alls ls v. v. Bell Bell

11.2. 11.2.1 1

Over Overvi view ew

A dispute arose as to the disposition of property that had been conveyed in fee simple determinable to the City of Klamath Falls (P).

11.2. 11.2.2 2

Facts acts

The Daggett-Schallock Investment Corporation (“the Corporation”) had conveyed a parcel of land to the City of Klamath Falls (“the City”) in fee simple determinable. determinable. The conveyance conveyance specified that the City City was to retain ownerownership ship of the land as long as it operated a library library on the lands. lands. If the city at any time ceased to operate a library on the land, ownership in the land was 64





























to return to the founders of the company, Fred Schallock and Floy Daggett, or their heirs and assigns. The city indeed built and operated a library on the land for some years, but that library library was eventu eventuall ally y closed. closed. At the time time of the closure closure,, the Corporation had already been dissolved. All of its other assets had been divided between Daggett and Schallock. Bell (D), the sole heir to Schallock, conveyed her interest in the land to other parties.

11.2 11.2.3 .3

Issu Issue e

(1) Is the grant of the land to Daggett and Schallock void as a violation of the Rule Agains Againstt Perpetu Perpetuiti ities? es? (2) If so, does the City automatic automaticall ally y take take possessi possession on of the land in fee simple? simple? (3) Does any attempt attempt to alienat alienatee an inalienable reverter destroy the reverter?

11.2 11.2.4 .4

Hold Holdin ing g

(1) The grant of the land to Daggett and Schallock is void as a violation of the Rule Against Perpetuities. (2) Even so, the City does not automatically take take posse possess ssio ion n of the land land in fee simpl simple. e. (3) An attem attempt pt to alienat alienatee an inalienable reverter does not destroy the reverter.

11.2. 11.2.5 5


The grant of the land back to Daggett and Schallock violates the Rule Against Perpetui Perpetuitie ties. s. This This result, result, howev however, er, does not automati automatical cally ly mean mean that the City take possession of the land in fee simple. Rather, the law holds that the land would ordinarily revert to the grantor, in this case the Corporation. Because the Corporation has been dissolved, there remains the question of who may may succeed succeed to the ownershi ownership p of the land. land. Other Other states, states, such as Delaw Delaware, are, have enacted statutes providing for the appointment of a receiver empowered to dispose of the property and to distribute the proceeds from such disposition to the creditors or former shareholders of the dissolved company. Although no such statute exists here, there is no reason to take the same approac approach. h. Althoug Although h Oregon Oregon law law holds holds that no reverte reverterr may may be alienat alienated, ed, the attempted conveyance of the land to Daggett and Schallock does not destro destroy y the revert reverter er.. It wo woul uld d be absur absurd d to find that a legal legal device device incaincapable of alienating a reverter could somehow destroy the reverter itself. The

65





























land therefore belongs to Marijane Flitcraft, who acquired it from the other parties.

11.3 11.3

John Johnso son n v. Whit Whiton on

11.3. 11.3.1 1

Over Overvi view ew

Johnson (P) sued Whiton (D) to recover his deposit for a purchase of land.

11.3. 11.3.2 2

Facts acts

Whiton (D) had inherited an interested in the land from her grandfather, whose will provided that she should take one-third ownership of the land while the remainder should be split among the decedent’s other grandchildren. The will, however, however, apparently apparently imposed conditions on the inheritance not traditionally recognized by the law. When Whiton and the other owners tried to sell the land, a dispute arose as to whether Whiton actually owned her fraction of the land in fee simple absolute. Only if she did could she sell the land.

11.3 11.3.3 .3

Issu Issue e

Should the novel conditions imposed by the will be disregarded?

11.3 11.3.4 .4

Hold Holdin ing g

The conditions should be disregarded.

11.3. 11.3.5 5


One may not create create a new kind of inheri inheritanc tance. e. The condition conditionss imposed imposed by the will should be disregarded. Whiton owns the land in fee simple absolute and has the right to sell it.

11.4 11.4

Garn Ga rner er v. Gerr Gerris ish h

11.4. 11.4.1 1

Over Overvi view ew

Garner (P) sued to evict Gerrish (D) from a house to which Gerrish had ostensibly obtained a lease for life. 66































11.4. 11.4.2 2

Facts acts

Gerrish had signed a lease providing that he was to remain the tenant of the premises “for and during the term of quiet enjoyment.” The apparent intent of this language was to convey to Gerrish the right to occupy the premises for life if he so chose. Sometime thereafter, Garner replaced the original lessor. Garner then sued to evict Gerrish from the premises on the theory that the lease was terminable by the lessor as well as the lessee.

11.4 11.4.3 .3

Issu Issue e

Should the lease be construed to be terminable by the lessor as well as the lessee?

11.4 11.4.4 .4

Hold Holdin ing g

The lease should not be so construed.

11.4. 11.4.5 5


Garner bases his argument on the old rule that a lease terminable at the will of the lessee should nonetheless be construed to be limited by the consent of the lessor. The rule is based on the antiquated concept of livery of seisin. Under the doctrine surrounding livery of seisin, a life estate in land could not be granted unless that grant were accompanied by the ceremonial transfer of a twig or other physical physical object ob ject on the land. Since this rule is long outdated, it should no longer be followed. The current law states only that one generally cannot cannot grant grant a perpet p erpetual ual lease. lease. Here, Here, the lease lease is not perpetual. perpetual. Rather, Rather, it is limited by the tenant’s lifetime. Accordingly, the plain textual meaning of the lease should be respected.

11.5

Brok Brokaw v. Fairc airchild hild





























11.5. 11.5.2 2

Facts acts

George Brokaw (“Brokaw”) had inherited from his father, Isaac Brokaw, a life life estate estate in a mansion mansion built built by the latter. Follow ollowing ing the terminatio termination n of the life estate, the remainder interest in the mansion was to be granted to Fairchild. After Brokaw took possession of the premises, the proliferation of apartment apartment housing made it unprofitable unprofitable to maintain maintain the property, property, which which was difficult to rent in its existing condition and which could not be renovated to make it more appealing to prospective tenants. tenants. Brokaw Brokaw therefore proposed to demolish the mansion and to replace it with an apartment building. Fairchild sued on the theory that doing so would constitute waste.

11.5 11.5.3 .3

Issu Issue e

Should Brokaw be prevented from demolishing the mansion?

11.5 11.5.4 .4

Hold Holdin ing g

Brokaw should be prevented.

11.5. 11.5.5 5


Brokaw cannot demolish the mansion because he holds only a life estate as opposed to full ownership. Isaac Brokaw specified in his will that Brokaw was to take possession of the “residence,” which can only refer to the mansion itself. As the holder of a life estate, Brokaw has an obligation not to modify the mansion in such a way that would violate the wishes of those with remainder interests. Although it may indeed be wise for Fairchild to agree to the construction of an apartment building on the land currently occupied by the mansion, the court cannot weigh the motives of the parties. Fairchild’s airchild’s wish wish to see the mansion mansion preserved preserved must be respected respected.. Finall Finally y, this this is not a case involving special circumstances, such as where industrialization of the surrounding land has made the premises worthless as a residence.





























11.6 11.6

Moun Mounta tain in Brow Brow Lodge No. No. 82, In Inde depen pende den nt Order of Odd Fellows v. Toscano

11.6. 11.6.1 1

Over Overvi view ew

A dispute arose as to certain restrictions on the alienation of land conveyed in a will.

11.6. 11.6.2 2

Facts acts

James and Maria Toscano had specified in their will that a parcel of land was to be conveyed to the Independent Order of Odd Fellows (“the Order”) (P) upon their deaths. The will stated in relevant part that the “[s]aid property is restricted for the use and benefit of the second party [i.e., the Order] only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties therein, their successors, heirs, or assigns.” A dispute subsequently subsequently arose between between the Order and Toscano (D), the executor of the decedents’ estate, as to whether this limitation was valid.

11.6 11.6.3 .3

Issu Issue e

Should the restriction on the sale of the land be recognized?

11.6 11.6.4 .4

Hold Holdin ing g

The restriction should be recognized.

11.6. 11.6.5 5


In general, restrictions restrictions specifically limiting limiting the sale of land are nullified. nullified. Here, however, the will does not set forth a purely arbitrary prohibition of sale by the Order; rather, it imposes a limitation limitation on the use of the land. The grantors grantors evidently intended that the land should remain in the Order’s hands as long





























of particular uses, it does not matter that the specified uses might incidentally constrain constrain ownership of the land to one party. party. The condition therefore cannot be said to be an unlawful restraint on alienation.

Stone, Associate Justice, dissenting. The majority insists on a textual distinction distinction that gives rise to no practical difference. difference. Even if the express reference to “sale or transfer” were eliminated, the effect of the will would still be to limit ownership to the Order. Insisting upon the majority’s interpretation might might result in absurd consequences. If the Order were ever ever disbanded, the land might have to be divided among hundreds of heirs.

11.7

Sympho Symphony ny Spac Space, e, Inc. Inc. v. Perg Pergola ola Proper Propertie ties, s, Inc. Inc.

11.7. 11.7.1 1

Over Overvi view ew

Symphony Space (P) sued Pergola Properties (D) in a dispute over whether an option to purchase real estate had been invalidated by the Rule Against Perpetuities.

11.7. 11.7.2 2

Facts acts

Broadwest Realty Corporation (“Broadwest”) had owned the premises in questio question n for some time. The premises premises consisted consisted of a buildi building ng that housed a theat theater er in add addit itio ion n to comme commerci rcial al space space.. Becau Because se Broad Broadwe west st had been operating the property at a loss, it sought in 1978 to reduce the costs of operation by entering into a deal with Symphony Space (“Symphony”). Under the deal, Broadwest would sell the property to Symphony. Symphony would thereby gain use of the theater while leasing the commercial space back to Broadw Broadwest est at the nominal nominal rate of one dollar dollar per year. year. Broadw Broadwest est would would be able to carry on commercial operations without the tax burden of owning the building itself. The deal, however, included a repurchase option, which granted Broadwest the power to force Symphony to sell the property back to Broadwest.





























the 21-year period set forth in the Rule Against Perpetuities as applied to corporations.

11.7 11.7.3 .3

Issu Issue e

Does the Rule Against Perpetuities (“the Rule”) invalidate the option?

11.7 11.7.4 .4

Hold Holdin ing g

The Rule invalidates the option.

11.7. 11.7.5 5


It is settled doctrine that the Rule applies against corporations as well as individuals. individuals. Repurchase Repurchase options have have generally been viewed viewed as contrary contrary to public policy because they tend to discourage improvement of property by current owners, who know that the option holder can simply demand to have the property property back back at any time. time. Pergol Pergolaa cannot cannot argue argue that the court court should should strike strike only the year 2003 from the option. option. Such Such construc construction tional al leeway leeway is allowed only in the absence of contrary intent; here, the original agreement expressly provided that the option could be exercised at any time after July 1, 1979. The wait-and-see option also provides no help to Pergola. The mere possibility that Pergola’s interest would vest too remotely from the date of the agreement renders that interest void.

12

Mari Marita tall Prope Propert rty y

12.1 12.1

O’Br O’Brie ien n v. v. O’Br O’Brie ien n

12.1. 12.1.1 1

Over Overvi view ew

A dispute arose during divorce proceedings as to the distribution of the value of a medical license.































duties, duties, forgoin forgoingg her own opportuni opportunitie tiess for career career advance advancemen ment. t. Evidenc Evidencee showed at trial that she had contributed the majority of the household income during during this time. Soon after the hu husban sband d obtaine obtained d his medical medical license, license, he filed for divorce.

12.1 12.1.3 .3

Issu Issue e

Should the medical license be considered marital property for the purposes of distribution? distribution?

12.1 12.1.4 .4

Hold Holdin ing g

The license should be considered marital property.

12.1. 12.1.5 5


The Domestic Relations Law (“the Law”) of New York introduced the concept of marital property in order to eliminate the inequities inequities that had occurred under older rules for distributing property in divorce proceedings. The Law specifically views marriage as a joint enterprise, so that both partners are entitled to a share of its proceeds upon divorce. To the extent that the wife’s contributions made it possible for the husband to obtain the license, she should should be b e rewarde rewarded d in accordance accordance with that contrib contributio ution. n. The situation situation is analogous analogous to the distribution distribution of pension rights. rights. The husband cannot contend contend































12.2 12.2

Marv Marvin in v. Marv Marvin in

12.2. 12.2.1 1

Over Overvi view ew

A dispute arose as to the division of property following the end of a longstanding non-marital non-marital relationship. relationship.

12.2. 12.2.2 2

Facts acts

The Marvins Marvins had lived lived together together as a married married couple couple for seven seven years. years. (For (For convenience, convenience, they will be referred to as “husband” “husband” and “wife.”) The husband had evidentl evidently y been married married before. During During the curren currentt relation relationshi ship, p, the couple agreed to hold themselves out as husband and wife to the public. The wife also gave up her lucrative career as a singer in order to support the household. The couple accumulated accumulated considerable considerable property, property, though the property property was held in the hu husba sband’s nd’s name. When the relation relationshi ship p ended, ended, a dispute arose as to the division of that property.

12.2 12.2.3 .3

Issu Issue e

How should property accumulated during a non-marital relationship be treated?

12.2 12.2.4 .4

Hold Holdin ing g

(1) The Family Law Act (“the Act”) does not govern the distribution of































courts have increasingly treated non-marital relationships as contracts. The courts may therefore consider the overall circumstances of the relationship to determine whether certain agreements as to the disposition of property should be implied. The husband husband relies relies on two argumen arguments, ts, neither neither of which which has merit. merit. He first argues that no contract between him and his wife should be enforced because any such contract would be “immoral.” This contention is rendered invalid by precedent which shows that invalidation is appropriate only to the extent extent that the contract contract rests explicitly explicitly on “meretricious” “meretricious” (i.e., quid pro quo) sexual relationships relationships.. The husband also argues that distribution distribution of property might might infringe infringe upon his former former wife’s wife’s rights rights to that property property. His former former wife, however, has independent rights of action to recover property. Finally, it cannot be said that the disposition of the current case might discourage marriag marriage. e. The old rules might might be said said to discourage discourage marriage marriage with equal force.

Clark, Justice, concurring and dissenting. The majority should not have have address addressed ed any any issue issue other than implied implied contract contracts. s. In addressi addressing ng the doctrine related to non-marital relationships, it has infringed upon decisions that are best left to the legislature.

13

Leases































13.1 13.1.3 .3

Issu Issue e

Should Jane pay the rent even though an unforeseen eventuality has made it difficult for him to do so?

13.1 13.1.4 .4

Hold Holdin ing g

Jane should pay the rent.

13.1. 13.1.5 5


At the time the lease was formed, Jane apparently posed no question as to contin contingen genci cies es such such as the one that has now arisen. arisen. Giv Given the lack lack of discussion on the issue, it must be assumed that Jane intended to bear any risk risk of occup o ccupyin yingg the land. Another Another argumen argumentt in favor favor of payme payment nt is that Jane should bear the risk of loss if he is to reap the profits of the land.

13.2 13.2

Smit Smith h v. v. McEn McEnan any y

13.2. 13.2.1 1

Over Overvi view ew

Smith (P) sued after McEnany (D) refused to pay rent following the construction of a wall that intruded upon land that McEnany had rented.

13.2. 13.2.2 2

Facts acts































13.2 13.2.4 .4

Hold Holdin ing g

The intrusion fully discharges McEnany.

13.2. 13.2.5 5


It is an established principle of law that an implicit requirement of a lease is that it conve conveys ys the full full extent extent of the land negotia negotiated ted by the parties parties.. If enjoyment of any part of that land is interrupted, then the lessee is discharged from the obligatio obligation n to pay. pay. The landlord landlord may not withdra withdraw w a part of the leased land and attempt to legitimize that withdrawal by reducing the rent proportionally.

13.3 13.3

Sutt Su tton on v. Templ emple e

13.3. 13.3.1 1

Over Overvi view ew

Sutton (P) sued after Temple (D) refused to pay rent on land that Temple had rented for the purpose of grazing.

13.3. 13.3.2 2

Facts acts

Temple had rented some land from Sutton for the purpose of allowing his animals to graze thereon. A memorandum stated that he was to take “eddish” from the land. Sometime thereafter, several of the animals died. Temple in-

































13.3. 13.3.5 5


Lord Abinger, C.B. Temple has done nothing more than to take possession of the land for a specified period. This case is therefore distinguishable from those involvin involvingg the leasing leasing of furnished furnished houses or similar premises. In those cases, the lessor implies through contract that the premises are suitable able for for a parti particul cular ar purpose purpose.. No such such impl implic icati ation on exists exists here. here. There There is no evidence to suggest that Sutton knew of the toxic condition of the land. Temple should therefore bear the risk that the land will not be conducive to his plans. To hold otherwise would render the lessor liable for any failed venture on the part of the lessee. Parke, Parke, B. If this were an entirely new matter, then there would be no difficulty in holding that Sutton had made an implicit warranty as to the suitability of the land for grazing. The common law is clear, however, that a

































13.4. 13.4.2 2

Facts acts

The defendants in the original actions occupied premises owned by the plaintiff. tiff. The plaintiff plaintiff had leased a portion portion of the premises premises as residen residential tial units units and part of the remai remaini ning ng area to a loun lounge. ge. Loud Loud music music from the loun lounge ge persistently disturbed the residents despite the plaintiff’s efforts to remedy the situation. situation. The defendants eventually eventually vacated vacated their apartments, apartments, refusing to pay rent for the remainder of the lease.

13.4 13.4.3 .3

Issu Issue e

Does the noise release the defendants from the obligation to pay rent even though it was not caused by the landlord?

13.4 13.4.4 .4

Hold Holdin ing g

































13.5. 13.5.2 2

Facts acts

Kerr (D) had rented space in a building owned by Garment Center Capitol, Inc. (“Garmen (“Garment”). t”). The lease specified that Garment Garment would would have have the right right to relet the premises to another tenant in the event of Kerr’s bankruptcy. When Kerr later went bankrupt, Garment exercised its option to relet and offered the new tenant several months of free rent, apparently as inducement to enter into the lease. Simultaneously, however, Garment sued Kerr for the rent that Kerr would have paid pursuant to the original lease.

13.5 13.5.3 .3

Issu Issue e

May Garment recover against Kerr for the rent remaining on Kerr’s original lease even though the premises have now been leased to a new tenant?

































13.6. 13.6.2 2

Facts acts

Horton and Converse (“Horton”) (P) had operated a pharmacy in a building owned by the Medico-Dental Building Company of Los Angeles (“MedicoDental”) (D) for many years. When the existing lease was made, it provided expressly that Medico-Dental would not lease any part of the building to any tenant tenant that might might set up a competing competing pharmacy pharmacy.. MedicoMedico-Den Dental tal subsequently leased another floor of the building to one Dr. Boonshaft, who established established a sizable sizable medical practice there. The lease signed by Boonshaft expressly barred Boonshaft from establishing a pharmacy or advertising his practice as such. Boonshaft initially initially complied complied with these limitations and purchased chased drugs from Horton’s drugstore. Eventually Eventually,, how however, ever, Boonshaft set up a pharmacy pharmacy within within his practice. practice. Althoug Although h Horton, Horton, Medico-De Medico-Dent ntal, al, and Boonshaft met to discuss the situation, Medico-Dental ultimately informed Horton that no solution could be reached.

































The respective covenants not to lease and to pay rent should therefore be interp interprete reted d as the terms terms of a contrac contract. t. Here, Here, the breach breach of contract contract ought to release Horton from any further obligation to pay rent. (2) Trial evidence indicates that Medico-Dental knew about Boonshaft’s competing pharmacy but chose not to do anything about it. Even after after all three parties had met to discuss the issue, Medico-Denta Medico-Dentall still refused to act. (3) As already discussed, the breach affected a substantial part of the consideration. Protection from competition was a key inducement for Horton’s rental of the premises.

13.7

Javin Ja vinss v. First First Nati Nationa onall Realt Realty y Corp. Corp.

13.7. 13.7.1 1

Over Overvi view ew

First National Realty (“National”) (P) sued Javins (D) and several others for failure to pay rent on apartments owned by National.



































agricult agriculture. ure. Und Under er those condition conditions, s, it was typical typical for the tenant tenant to live in a simple simple dwellin dwellingg and to perform perform repairs repairs on the structur structuree himsel himself. f. This This view of tenancy, however, has long since become obsolete in light of modern developments. The modern tenant is unlikely to care much about the land itself; rather, the emphasis is on access to a dwelling equipped with the basic amenities



































13.8 13.8.3 .3

Issu Issue e

Should Sommer have mitigated damages following Kridel’s breach of the lease?

13.8 13.8.4 .4

Hold Holdin ing g



































13.9 13.9.3 .3

Issu Issue e

Should Nahrstedt be able to demand a case-by-case review of the applicability of the restrictions?

13.9 13.9.4 .4

Hold Holdin ing g



































13.10 13.10.2 .2

Facts acts

Pullman was a tenant of the Coop. When he moved in, he had agreed to a lease providing that the Coop could terminate the lease of any tenant who engaged in “objectionable behavior.” Pullman proved to be a vexatious tenant, making arbitrary demands for renovation renovation of the building and embroiling embroiling



































14

Trusts

14.1

Broadw Broadwa ay Nati Nationa onall Bank Bank v. Adams Adams

14.1. 14.1.1 1

Over Overvi view ew

Broadway National Bank (“Broadway”) (P) sued Adams (D) for the payment





















































































































































































































































































































































































































































































































































































































































































































































































































































































































































































20.1 20.10. 0.3 3

Issu Issue e

Does the conditioning of permits on certain limitation on land use amount to a taking?

20.10 20.10.4 .4

Hold Holdin ing g

Such conditioning does amount to a taking.

20.10 20.10.5 .5


The City has (1) passed the threshold threshold of advancing advancing a legitimate state interest but (2) failed to show that the limitations it has imposed on Dolan are “reas “reasona onabl bly y relate related” d” to that that inter interes est. t. Th Thee City City plai plainl nly y has a legi legiti tima mate te interest interest in preventing preventing flooding through the maintenance maintenance of greenways, greenways, which are better able to absorb water than impermeable paved surfaces. The City also has a legitimate interest in reducing traffic congestion by promoting the use of bicycles through the construction of bicycle paths. Here, however, the City went beyond enacting regulations necessary to achieve these ends. It is not at all clear why the City demanded that Dolan dedicate a portion of his land to use as a public greenway greenway. A private private greenway greenway would have been just as effective in preventing flooding while allowing Dolan to retain substantial ownership ownership rights over over the land. The City has also failed to make make a convincing convincing argument for imposing upon Dolan’s land a public easement in the form of a bicycle path. While the City justifies its decision on the ground that Dolan’s proposed constructions constructions would increase traffic in the area, it has not explained this rationale in terms specific enough to establish a “reasonable relationship” to the underlying policy.

20.11 20.11

Firs Firstt Engl Englis ish h Evan Evange geli lica call Lu Luth ther eran an Chur Churcch v. County of Los Angeles

20.11 20.11.1 .1

Over Overvi view ew

The First English Evangelical Lutheran Church (“the Church”) (P) sued the County of Los Angeles (“the County”) (D) for a temporary taking of land.

122





























20.11 20.11.2 .2

Facts acts

The Church owned some land on which it operated a church and a campground ground for handicapped handicapped children children.. A forest forest fire destroye destroyed d the surroundi surrounding ng vegetation and made the area vulnerable to flooding. As it happened, heavy rain caused the area to flood shortly thereafter, and the flood destroyed the Churc Ch urch’s h’s building buildings. s. In response response to the flooding, the Coun County ty enacted enacted an ordinance that temporarily banned construction in all flood-prone areas. The ordinance prohibited the Church from rebuilding its destroyed buildings. The Church sued on the theory that the ordinance, though temporary, nonetheless amounted to a taking requiring compensation.

20.1 20.11. 1.3 3

Issu Issue e

Does the ordinance effect a taking requiring compensation?

20.11 20.11.4 .4

Hold Holdin ing g

The ordinance does effect such a taking.

20.11 20.11.5 .5


The County should compensate the Church for the Church’s inability to use the property while the ordinance was being challenged through litigation. Nothing in the Takings Clause limits compensation to the case of permanent takings. To the contrary, the case law is clear that temporary deprivation of the right right to use property property nonethel nonetheless ess demands compensati compensation. on. Indeed, Indeed, this Court has required the federal government to pay compensation for deprivation of leasehold interests that lasted far shorter than the period in question here. here. That the governm governmen entt may may remove remove the burden on the landowner landowner at some future date is no answer to the fact that a taking has already occurred.

20.12

Tahoe-Sierra ahoe-Sierra Preserv Preservation ation Council, Council, Inc. Inc. v. Tahoe Tahoe Regional Planning Agency (cont’d)

Please see the facts already given.

123





























20.1 20.12. 2.1 1

Issu Issue e

Should the moratoriums be considered a per se regulatory taking?

20.12 20.12.2 .2

Hold Holdin ing g

The moratoriums should not be considered a per se regulatory taking.

20.12 20.12.3 .3


The courts have consistently recognized a distinction between (1) physical takings, which are governed by a per se rule, and (2) regulatory takings, which are found only after a case-by-case evaluation of the circumstances. It would be inadvisable to make widespread use of per se rules in the realm of regulatory regulatory takings. So far, the only per p er se rule in regulatory takings addresses addresses the special situation in which the government deprives a landowner of all economically beneficial use of the land. Extending per se rules beyond such narrow circumstances circumstances could conceivably conceivably force the governmen governmentt to compensate owners for routine delays created by the process of obtaining permits and so forth. Governments would thereby be discouraged from engaging in the sort of planning in progress here.

20.13

Williamso Williamson n County County Regional Regional Planning Planning CommisCommission v. Hamilton Bank of Johnson City

20.13 20.13.1 .1

Over Overvi view ew

Hamilton Bank (“the Bank”) (P) sued the Williamson County Regional Planning Commission (“the Commission”) (D) for taking land owned by the Bank.

20.13 20.13.2 .2

Facts acts

A real-estate real-estate developer developer was building a residential residential development development in Tennessee. ennessee. When development began, it was required to obtain approval for its plans for development from the Commission. After the Commission approved the plans for part of the developmen development, t, construction began in that part. Sometime Sometime thereafter and before the remaining portion of the development had been completed, the county changed the relevant zoning laws, so that the plans 124





























originally submitted by the developers no longer satisfied county-imposed requirem requiremen ents. ts. By that time, time, the Bank had acquire acquired d the property property through through foreclo foreclosure sure.. After After the Bank’s Bank’s made a failed failed appeal to the County County Zoning Zoning Board, it sued in federal court.

20.1 20.13. 3.3 3

Issu Issue e

Does the refusal of the Commission to approve development amount to a taking?

20.13 20.13.4 .4

Hold Holdin ing g

The refusal does not amount to a taking.

20.13 20.13.5 .5


No taking has occurred (1) because the Commission has not yet reached a final decision as to the restrictions on the land and (2) because the Bank has not sought sought compensatio compensation n under under state state procedures procedures.. The evidence evidence makes makes it plain that the Commission’s decision had not yet deprived the Bank of all economically beneficial use of its land. Although the development plans, as submitted, were deemed to be unworthy of approval, the Bank still could have requested an abrogation of the relevant restrictions through variances and other devices. The records shows shows that the Board of Zoning Appeals could have used its discretion to approve at least five of the eight elements that the Commis Commissio sion n had found found unsatis unsatisfact factory ory.. Since Since the Bank has apparen apparently tly not explored these avenues, it is premature to rule on the issue of whether a taking has occurred. Furthermore, the Takings Clause does not require that compensation compensation be b e given concomitantly concomitantly with the taking of property. property. Rather, it requires only that procedures for obtaining compensation exist at the time of the taking taking.. The Bank should should have have made made use of these these procedures procedures before before suing in a federal court.

125





























20.14

San Remo Hotel v. Cit City y and and Count County y of San Francisco

20.14 20.14.1 .1

Over Overvi view ew

San Remo Hotel (“San Remo”) (P) sued after the City and County of San Francisco (“San Francisco”) (D) tried to impose certain fees on land use.

20.14 20.14.2 .2

Facts acts

San Remo owned a hotel. At some point, San Francisco demanded that San Remo pay $567,000 as a “conversion fee” for the existence of the hotel. After San Remo unsuccessfully brought takings claims in state court, it sued in federal federal court. The federal federal lawsui lawsuit, t, howe howeve ver, r, wa wass held to be barred barred by issue issue preclusion.

20.1 20.14. 4.3 3

Issu Issue e

Should Shoul d the court courtss recog recogni nize ze an excep excepti tion on to issue issue precl preclus usio ion n for for takin takings gs claims?

20.14 20.14.4 .4

Hold Holdin ing g

The courts should not recognize such an exception.

20.14 20.14.5 .5


San Remo claims in essence that a litigant who loses on a takings claim in state court should be allowed to re-litigate that claim in federal court. There is no basis for this view. It does not matter that San Remo is denied access to a federal forum as long as the state forum has adequately adjudicated the issue.

Chief Chief Justic Justice e Rehnqu Rehnquist ist,, with with whom whom Justic Justice e O’Conn O’Connor, or, Justice Justice Kenned Kennedy y, and Justice Justice Thomas Thomas join, join, concur concurrin ring g in the judgme judgment nt.. Although the outcome here is correct, the rule established by Williamson County Coun ty is suspect. Among Among the conseque consequences nces of that ruling ruling is that federal federal courts courts may be b e barred barred from adjudic adjudicatin atingg takings takings claims. claims. There There seems seems to be no clear reason for ceding the authority to decide such cases to the state courts. 126































20.15 20.15

Flem Flemmi ming ng v. Nest Nestor or

20.15 20.15.1 .1

Over Overvi view ew

A dispute arose as to the existence of a property right to Social Security benefits.

20.15 20.15.2 .2

Facts acts

Nestor had immigrated to the United States from Bulgaria in 1913. He had resided resided in the country country for forty-th forty-three ree years. years. He was deported deported in 1956 for having been a member of the Communist Party from 1933 to 1939. Despite that Nestor had become eligible to receive Social Security benefits in 1955, the government refused to pay the benefits in accordance with a section of the Social Security Act stating that deported individuals such as Nestor were not eligible for benefits.

20.1 20.15. 5.3 3

Issu Issue e

Did the government deprive Nestor of a property right?

20.15 20.15.4 .4

Hold Holdin ing g

The government did not deprive Nestor of a property right.

20.15 20.15.5 .5


The Social Security system falls under the congressional power to spend for the general general welfare welfare.. Social Social Securit Security y is not a contrac contractt that gives gives rise to property property rights. rights. Rather, Rather, Congress Congress intended intended that the system system should should remain remain flexible flexible.. Depriv Depriving ing Nestor Nestor of his benefits does not amount amount to punishm punishmen ent. t. The government is not imposing an affirmative disability but merely refusing to accord a benefit that falls under its discretion.





























Security Security program are not paying for flexibility flexibility but for insurance. insurance. Although Although Congress has reserved to itself the power to alter the Social Security program as it sees fit, it still does not have license to take away payments to which individuals are already entitled.

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