Property Outline

1. What is property?
2. How does property begin?
3. What can be property?
4. What can be done with property?
5. What are the forms of property?
6. How can complex collections of property rights be managed?
7. How do I know who owns what?
8. Where does my property end and my neighbors begin?
9. How can and should the govt take away, give, or change property?
What Is Property?
Law of property must work between strangers, so properly relies more heavily on social
customs and intuitions than contracts.
I. 2 Conceptions of Property Trespass to Land
A. Trespass: any intentional intrusion that deprives another of possession of
land, even if only temporarily
1. Policy: (i) prevents violence and self-help, (ii) owner is in best position nto
know about the property, (iii) incentivizes discoverer to reap rewards
2. Compensatory damages obtained by showing harm, punitive and nominal
damages used when difficult to determine compensatory damages
B. Jacque v. Steenberg Homes: P sued Steenberg homes for moving mobile home
across Jacques land.
1. Rationale: the sovereign right to exclude must be enforced to (i) avoid
potential violence and (ii) protect privacy rights.
a. Privacy Rights: if damage is actually done, might not want to disclose
information about your property (i.e. intellectual property of tomatoes).
2. Necessity Defense: travelers have right to deviate from public road when
rendered impassable. But Steenberg cannot show absolute necessity in this
case.
3. Other defenses include: public accommodation laws, anti-discrimination laws
4. Holding: Yes, there is a trespass. Punitive damages may be awarded at jurys
discretion. In this case, society has interest in deterring trespassers beyond the
interests of the individual landowners. Make an example of Steenberg.
C. Hinman v. Pacific Air: P sued air transport companies for operating airplanes over
their land (within 5 feet of property line)
1. Ad Coelum: right to space below and above land.
a. Policy objections to ad coelom: enforcement difficulties, transaction costs
2. Holding: No trespass, because air is incapable of ownership.
3. Fact Application: Any use of such air which is injurious would be a trespass,
but any claim of landowner beyond this point is not trespass. No facts alleged
to infer any substantial damage accured.
4. How to reconcile Ad coelom (right to airspace) with Hinman (no right to
refuse airplanes)?

a. Only possessor can trespass. Bray: but owner can still sue for trespass.
b. Airplane trespass actionable only if cause actual harm. Bray: sets up
perverse incentives, does not solve land trespass.
c. Airflights are in-kind compensation. Bray: this is regressive solution.
d. Airspace is public property to all. Bray: where is limit? Are we not
allowed to have buildings that occupy public airspace?
5. Currently, no court has held airplanes liable for trespass because injury is
small and inconsistent. Most courts hold public property explanation.
6. If Jacques facts appeared in Hinman court? Bray: Hinman court would have
still awarded trespass (just like Jacques court!) BUT STILL
DISTINGUISHED Hinman from Jacquesbys saying that Hinmans air is not
Jacques land.
7. If Hinman facts appeared in Jacques court? Bray: Jacques court would have
still held no trespass (just like Hinman court!) by citing policy objections to ad
coelom.
II. Trespass vs. Nuisance
A. Bray endorses Jacques (yes trespass): give punitive damages for willful trespass.
B. Bray also endorses Hinman: must allow airplanes as policy manner! (Use public
property reconciliation.)
C. Jacques emphasizes ownership. Hinman balances competing interests >
ownership.
D. Trespass: indirect path to balancing act, because owner can decide if there is a
trespass possibility and therefore whether to invest.
E. Nuisance: a much more direct path to allow courts balancing act.
F. Tort of Trespass = physical coming over line
G. Tort of Nuisance = significant harm + unreasonable presence (results in
indirect effects)
1. Unreasonable: where gravity of harm > utility of activity (Res). Court says
additional considerations might include maliciousness of actions.
2. Res: gravity of harm = extent of harm, character, social value, burden, etc.
3. Res: utility = social value of conduct, suitability of conduct to character of
locality, suitability of preventing or avoiding invasion
But motives also informs remedies. Mere cost-benefit analysis is insufficient to
explain law.
Trespass
Nuisance
No harm required
Significant harm required
No showing of unreasonableness
Showing of unreasonableness required
Protects interests in possession
Protects interest in use and enjoyment
III. Nuisance Hendricks v. Stalnaker: septic tank could not be built within 100 feet of
existing water well.
A. Both parties come to nuisance so neither can build, aka bad policy. Therefore,
P Hendricks brought suit as nuisance, not as trespass.
B. Nuisance: anything which annoys or disturbs the free use of ones property,
or which renders its ordinary use or physical occupation uncomfortable.

C. Holding: Installation of water well is not unreasonable because balancing of

landowners interests is at least equal or slightly in favor of water well. Here,
septic sytem places more invasive burden on adjacent property.
D. Private Nuisance: determined primarily by harm caused
E. Public Nuisance: test of reasonableness of property use in particular locality
(see above Tort of Nuisance)
F. Exclusion: courts backstop owners authority when trespass occurs and land has
multiple uses.
G. Governance: land has only one use and courts decide priority of use.
IV. Coase Theorem
Entitlement
Value of Farming
Value of Ranching
Farmer
No contract, Farming
Deal, Ranching
Rancher
Deal, Farming
No contract, Ranching
Result: most valuable activity prevails regardless of initial entitlement.
A. Takeaways of Coase:
1. Both sides come to the nuisance and cause harm. Which to remove?
2. Efficiency exists when transaction costs are zero.
3. In real life, transaction costs are not zero.
4. Initial allocations matter when transaction costs are high.
B. If costs = 0, then entitlement doesnt matter. If entitlements matter, then costs are
not zero.
C. Additional Coasean assumptions: people are rational maximizers, and all costs are
translatable to money (so Coasean theorem works better when ppls interests are
already economic).
D. Impediments to Contracts: Assembly problems (high transaction costs due to large
# of priorities), Bilaterial monopoly (high transaction costs due to limited options;
results in holdouts and bad blood.)
E. Coase Thm Application to Jacques: If most valuable activity is transporting home,
then deal if entitlement goes to Jacques. If most valuable activity is growing
tomatoes, then deal if entitlement goes to Steenberg. In real life, transaction costs
are not zero and Jacques cannot convert their interests into monetary value.
V. Equity
A. Chancellor gave ad hoc legal relief for problems not addressed by legal system.
Not necessarily motivated by economic efficiency, but rather by moral condem.
B. Most stages have merged: courts, procedures (old equity court had no jury)
1. Remedies are not merged! If seek injunction, then addtl rules of equity apply
(ex: equitable defenses, managerial tools like contempt in absence of
injunction compliance)
C. Can get equitable injunction of damages are insufficient.
D. Maxims of Equity: includes clean hands requirement, and equity applies in
personam, not in rem (to this case only, not as standard practice)
E. Brays Features of Equity
1. Equity emphasizes exceptional cases
2. Equity explicitly incorporates moral reasoning

3. Equity starts with remedy, and works backwards

F. Equity Quotes
1. Chancellors imprint is like size of foottotally arbitray
2. Law is too general sometimes, so equity is neede.d
3. Fraud is infinite ,so equity is personable to each case.
VI. Repeated Trespasses
A. Baker v. Howard County Hunt: hunting dogs bit neighbors dress and chickens
1. Args for D and Court responses
a. Dogs trespass. Courts say D likely knew of dogs trespass; dogs
trespass is imputed to others.
b. Dogs uncontrollable. Courts say D took dogs by control onto land and
had duty to control hound.
c. Hunting is good sport. Court says this is not excuse for harms.
d. No damage alleged. Court says damage exists to dress and chickens.
e. One dog was shot. Court says shot is justified if P felt threatened.
f. Adequate remedy of law? Court says damages are insufficient to stop
the interference with enjoyment of possession of property. Court also
says that cost of suing due to multiplicity of suits > damages remedy.
Based on these two reasons, injunction is warranted.
2. Holding: Yes injunction because substantial injury to property.
3. Rationale: Jurisdiction of equity to restrain repeated trespasses rests on ground
of avoiding repetition of similar actions.
IV. Equity and Building Encroachments
A. Pile v. Pedrick: P would not permit D to come onto their land to remove intruding
wall. Judge split costs between the two parties. ABSOLUTIST; INJUNCTION.
1. Property Perspective [protect rights]: yes, should take down wall
2. Equity Perspective [provide remedies]: hugely expensive and must balance
interests. Remedy must be reasonable and courts cannot go to any means necessary.
3. Costs are not of course in equity = costs (aka damages) are not automatically
granted to winner. In America, each side pays their own costs.
4. After judgement, both sides can settle. This is unlikely, however, because if a
deal was going to occur, then it would have already before all the transaction court
costs were incurred.
B. Golden Press, Inc. v. Rylands: Was encroachment of Ds foundation upon Ps land
intentional? BALANCE EQUITIES. (If no injunction, then damages.)
1. Law: If encroachment is deliberate equity may require restoration of
correct position regardless of removal expense. If encroachment is in good
faith courts should weigh circumstances. If encroachment is slight and
unintntaionl, and cost of removal is so great as to cause hardship, and Ps use
is not affected and fairly compensable, may deny injunction and relegate P
to mere damages.
2. Holding: encroachment was unintional, so balance and find that expense of
removing all is too great.
3. Injunction likelihood diminishes with lack of intent, insignificance of
encroachment,s and hardship of removal.

4. Good faith = not having notice. Leads to balancing insig encroachment with
great hardship. Bad faith = having notice. Leads to injunction.
Jacques: Trespass [mobile home]
Hinman: Nuisance [planes]
Pile: absolutist trespass, must remove wall. Golden Press: balance equities

5. Reasons for above evolution from Jacques to Hinman: moral condemnation,

despite same impact of trespass. Increasing evolution of fairness leads to
equity balance. Fear of overdeterrance and so people wont build.
6. IP extension and test for patent violation: (i) suffered irreparable injury [like
Baker and dogs], (ii) damages are inadequate compensation, (iii) remedy is
warranted when balancing hardships [like in Golden Press], (iv) public interst
would be served. Likely injunction.
How Does Property Begin?
VII. First Possession
A. Wild Animals
1. Pierson v. Post: Mortal wounding, not mere pursuit, equals possession.
a. Ratione Soli: own the land so own the fox on the land
b. Majority opinion says mortal wounding while in pursuit is possession.
c. Minoriy opinon says closing in is possession. Appeals to custom and
informal jury of community hunters. Pro: hunters would have evolved best
system for deciding. Con: custom may be self-interested and disfavor
outsiders.
d. Low end of preparation does not fulfill signaling need; labor is
insufficient.
e. High end of killing leads to wasteful races, self-help, and excess
conflicts.
2. Ghen v. Rich: Ellis found and sold whale instead of sending word to shooter.
a. Under Pierson, initial owner did not continue pursuit, so is not owner.
b. Under Ghens holding: initial killer is the owner b/c spent effort.
Distingiush from Pierson: property is sensitive to context. Pierson does not
apply to Ghen because whale could not be easily obtained after death like
fox. Ghens court balances incentive creation with social changes.
3. Keeble v. Hickeringill: Hickeringill shot guns and scared away Keebles
ducks. Keeble had prepared duck decoys already. Trespass in what?
a. Interest in land: H did not go on land; his bullets did.
b. Interest in ducks: Ducks not countable. Ducks who were affected by Hs
guns were scared away and under Pierson, not yet Ks property. (Point of
possession: when ducks are actually in decoy. Again, point is determined
by balancing interests in preserving incentives and deterring wasteful
races. Point must also be satisfied by emergence of clarity.)
c. Interest in occupation: fair competition = makes society better off; unfair
competition = makes society worse off.
d. Holding: There is property interest in occupation, against unfair
competition. This is a limited, quasi-property interest.

B. Open Access and Commons Elinor Ostrom [Tragedy of Commons]

1. Solution 1: Leviathan central government intervention. Pro: enforce best,
most efficient outcome. Con: informational hurdle.
2. Solution 2: Privitaziatio. Con: lose efficiency scales (high transaction costs
and enforcement costs!), distributive critique of non-homogenous plots of
land.
3. Solution 3: Institutions: enter collective agreements and happens rather
frequently. Con: level of trust required; transaction costs must be sufficiently
low; monitoring requirements.
C. Other Applications of First Posession: Oil and gas. Cannot use Jacque-style
trespass and ad coleum analysis, because oil and gas move under ground from
place to place. As we go further away from land and using trespass, towards air,
water, oil and gas, we must use nuisance analysis instead.
VIII. Creation
A. Misappropriation and Quasi-Property Right in Hot News: Internatl News Service
vs. AP:
1. Facts: AP alleges that INS is taking their news from published newspapers,
bribing AP employees and bribing newspaper employees for news.
2. Issue: Is there a property interst in the idea of news? (The particular form is
not in question, since INS can easily change a few words and still retain
substance.)
3. Holding: Yes, there is quasi-property right in news. Majority assumes that
there would be no news if INS could just steal APs news. Remedy is not
damages to property rights, but injunction. Policy for quasi-property: preserve
incentives. So, strength of Quasi-Property right depends on # of competitors
can exclude.
4. Quasi-Property = (i) valuable creation; (ii) labor and expenses. Bray says this
is unsatisfactory in its application to other cases.
5. Hypo: Amazon stealing bookstores creation of public appetite for books.
6. Holmes dissent: property depends on exlusion by law, I vote for injuction of
subsequent publication for X hours after original publication.
7. Brandies dissent: Right against destruction of property, but news is not
property and is instead common use. Legislature should decide if is property.
B. Hypo: mountain of meteroites. Allocation strategies:
1. Group Ownership: lowers incentives to find meteroites.
2. Individual Ownership, based on meteorite preference: high information cost to
finding preferences.
3. Individual Ownership, according to first possession: clear signaling and high
incentives to search, but results in unequal distribution.
C. Increasing hurdles to copyrights also increases signaling chances.
D. 1st way of property emergence: first possession. 2nd way: creation.
E. Socially Useful Competition --------- Socially Destructive Competition
F. Types of Quasi-Property--------- INS -------------------Keeble: wanton destruction
1. So, cannot use Keeble to explain INS.
IX. Accession

A. Sic utere tuo: duty to use property such that other people arent hurt. Cannot be
socially destructive like in Keeble.
B. Principle of Increase: calf always goes to mother. Increases incentive for farmer
who is there at time of birth to take care of baby calf. Also, its difficult to
determine signaling of paternity.
C. Doctrine of Accession: When mistakenly takes up object that belongs to someone
else and transforms it through labor into fundamentally different object, its yours.
D. Principle of Accession: includes Increase, Doctrine of Accession, and Ad Coelum.
Ownership of unclaimed resource is assigned to owner of some other resource
that has prominent relationship to unclaimed resource.
E. Replevin: you get back the goods themselves (not the value, the actual thing.
Considerations of Accession: Good/Bad Faith, Relative Value, and
Transformation
Good Faith
Bad Faith
Is Accession Present?
No
No
No change in object
Yes
Yes
Untraceable Change
Yes
No
Substantial Transformation
F. Doctrine of Accession Wetherbee v. Green: 158K ash trees made into hoops
1. Transformation is important because appearance is how we relate to the
outside world (Hume). Here, there was substantial, traceable transformation.
2. When property has been appropriated by another, the original owners can
recover it regardless of increased value. If identity has been changed,
however, then only compensation of original materials value is required.
3. Rule: if labor is insig and original object prominent, then title stays with
original owner. If labor is prominent and original object is insig, then title
passes to improver.
4. Here, since D added so much substantial value, change of title is appropriate.
5. Principle of Restitution: if improver is deemed to be the more prominent
contributer of value, then the improver gets title but must pay damages to the
original owner of raw materials.
6. IP extension: minor improvements are likely to be infringement, while sig
improvements are still infringements but improver may be entitled to own
patent. Truly radical improvements are exempted from liability. Policy:
encourages development and gives improvers bargaining leverage that is
direct proportion to improvements values.
7. Restitution Possibilites
a. Replevin (person making hoops keeps them)
b. No replevin (person making hoops gives them up)
c. Damages (person making hoops compensates)
d. Restitution (P gets wood back and D can sue for value of labor, up to
difference in object value: 800 25 = $775 per hoop.)
e. In any case, court must decide: who gets physical thing versus monetary
value, and who gets most of the profit? (Who has the burden of proving
values will influence these two questions answers.)
X. Ad Coelum Edwards v. Sims

A. Facts: Edwards knows the survey and dangerous and doesnt want it done, so
seeks writ of prohibition to prevent survey from being ordered.
B. Issue: Can court of equity invade ad coleum right to determine truth of caves
ownership?
C. Holding: yes, court has power to compel mine owner to permit inspection at the
suit of a party who can show reasonable ground for suspicion that his lands are
being trespassed upon.
D. Dissent: forcing survey would deprive Edwards of his value rights and value of
his property. Analgous to Hinman where majority would deprive Hinmans rights
to use and enjoy their property. Survey would be trespass and deprivation of entire
cave.
1. But, if apply dissent to other cases, the advantage will fall to people with the
best technology who can then pull out all the oil and gas from everybodys
land. This encourages wasteful racing to get the best equipment first.
E. Ad coelom for Lee: he owns part of the property to the depths. But ad coleum
exceptions exist, so ad coleum by itself does not resolve ownership.
F. Issue 2: Does Lee have property right in thing he cannot use, since entrance is on
Edwards side? Can Lee invoke accession instead of possession? (Court says
should conduct survey to find out.)
G. Cannot resolve this case via contracts because transaction costs are too high in
this bilateral monopoly. Only having one owner is best.
XI. Adverse Posession
A. Purposes of Adverse Posession:
1. Reliance interests (loss aversion: taking is more painful to adverse possessor)
2. Prevent sleepi ng on rights; replacing inefficient gatekeepers
3. Minimize transaction costs of title determination
Taxes are clear signal of who is controlling property
Adverse possession has redistributive effects, but is a crude method of doing so and may
not have redistributive effects.
Colorable title encourages people to memoralize their claims to land. Decrease
transaction costs. Government has high monitoring costs, so prohibition on possessing
government land. Government also has high incentive to erect walls and barriers and
therefore preclude public use of the government landbad policy.
B. Law of Adverse Possesion
1. Actual possession: not precluded by surface owners constructive possession
2. Visible/Open and Notorious
3. Exclusive: you are acting like owner. But not exclusive in surface use of
Marengo.
4. Exceptions: mistaken boundary does not satisfy adverse possession; fraud
does not satisfy adverse possession.
C. Marengo Cave Co. v. Ross: does ownership of cave mean ownership of caves
surface? No, because owner did not know of occupant (not hostile).
1. Court does not sever cave from surface because of ad coleum. Also ,
severance would allow people to take stuff below other peoples grounds (like
natural resources).

2. Constructive possession: legal title to land. One who possesses part of the land
under an instrument giving color of title to whole parcel. Adverse possession
of part of a title may give risk to constructive adverse possession of whole
parcel.
3. Color of title: looks legit, but has some defect of which owner is unaware.
4. No adverse posesson against government allowed.
5. Seeker of adverse possession must show actual possession, court says (surface
owners constructive possession is not required nor relevant). Bray says: this
menas there would never be adverse posesion, b/c seeker of adverse
possession by definition does not have legal title.
D. Carpenter v. Ruperto: P used extension into corn field as additional yard space.
1. Good faith is essential part of claim of right. Since good faith was absent here,
P cannot take land. (This is minority view).
2. Class Law of Adverse Posession: (i) actual, (ii) exclusive, (iii) open and
notorious, (iv) continuous for statutory period, (v) hostile under claim of
right for statute of limitations.
3. Rules of Faith
a. Subjective Good Faith Required minority view: works for boundary
disputes; rewards flowerbed creation. Do not pivilegde squatters.
b. Subjective Bad Faith Required minority view: takes away land from
bad gatekeepers.
c. Objective Non-Permission Required majority view: Connecticut Rule
well not inquire into state of mind. Knocks out many potential cases
like adversely possessing law school, because I actually have permission
to be here.
(1) This is majority view because adverse possesion applies statute of
limitations to legal actions in trespass, ejection, conversion, replevin,
things that do not require good faith.
4. Adverse possession is like trespass because swaps out bad gatekeeper
Jacques-style owner for good gatekeeper Jacques-style owner. Adverse
possession is also like nuisance to make society better off, give land to more
reasonable owner.
5. Garrett: renters are not hostile to broker, who fradulantely created contract
against bank. Renters are not hostile to bank.
XII.

Howard v. Kunto

XIII. Problem of Sequential Posession

A. Armory v. Delamirie
1. Boy found jewel and took it to jeweler, whose apprentice then took out stones
and offered damages. Ruling: Finder wins against all except true owner. D
should give full damages.
2. NY statute: there is duty to turn in property of certain value
3. Trover: value of item, not item itself. Opposite of replevin.
4. Converter: taker, not finder.

5. Court says value of jewel is low to incentive D to give back jewel to finder.
That way, D will not be persuaded to give damages.
6. True Owner > Finder > Converter.
7. Hypo: P stole jewel, jewel fell through pocket, D finds. D now owns and acts
as first finder. P was original converter.
8. Policy for Sequential Posession Rule:
a. Not having Finder > Converter would mean lots of self-help of First
Finder to erect walls and protections against subsequent finders.
b. Keep ownership chain as close to original owner as possible, as
opposed to allowing subsequent ownership.
c. Also easier to keep title claims as close to orginal owner as possible.
d. Two questions to answer: Who is finder/converter, and what is sequence of
possession?
9. Property right in Armory is in personam, which are cases between people, not
abstract controversies. Property rights in general are against whole world (in
rem).
10. Japanese alternative: legislative system to educate people to turn in lost
property for reward.
B. Clark v. Maloney: P found pine logs floating downstream. Holding: First finder
wins over second finder. Avoid excessive self-help and protectionism. Easier for
true owner to find.
1. Original loss does not change absolute owners right, so subsequent loss does
not divest property from original owner.
2. Though Armory doesnt discuss F1 versus F2, the reasons for Armory (policy
for sequential possession rule) explains why F1 > F2.
C. Anderson v. Gouldberg: Where (on whose property ) was timber cut?
1. One who acquires possession of property, even through tort of taking property,
has right to retain that posesion against mere wrongdoer who is stranger of
property. Otherwise, endless series of unlawful seizures and reprisals. Ps title
is good against everyone except true owner.
2. Third party (jus tertii is original owner) cannot set up title as defense to
trespass for disturbing possession of first finder.
3. Between 2 converteros, the first converter wins. Armory policy: keep the
chain of true ownership short; prevents self-help amongst thieves.
XIV. Competing Original Acquisition Principles
A. Fisher v. Steward: First Possession vs. Accession: P found bees on Ds land.
1. Rationi soli has less force in U.S. than in England:
a. More inequality in land holdings in England
b. Larger holdings of land in U.S. fewer boundary disputes
c. Frontier uncertainty in U.S. precludes use of rationi soli
d. Exception: Rationi soli applies to bees because bees belong to land, not
the same thing as wild animals that roam. This encourages cultivation of
nearby flowers by landowner.

e. Markings (whether bee trees or whales): sufficient for first possession if

that was all you could do under the circumstances (like in Ghen).
f. Cannot introduce evidence of local custom; custom must be statewide
because too hard otherwise to delineate limits. Also, custom would solve
this problem before it got to the courts, so clearly custom is inadequate.
g. Trespassers lose, so P who found bees by trespassing loses.
h. Hypo: P owned and cultivated bees, bees fly away to Ds land, P goes and
gets them back. P should get bees because rationali soli applies to bees and
bees are stationary.
B. Hannah v. Peel: Highwater mark for Finders Rights
1. D Peel owned but did not occupy house. P Hannah stationed at house and
found brooch.
2. Finder wins because true owner was never found and landowner does not own
it.
3. Exceptions to General Rule That Finders Win (regardless of on whose
land)
a. Owners take possession of objects already attached to or under the
land.
b. Employers/ agents lose. Finder finds it not for himself but for employer.
c. Trespassers lose.
4. Mislaid = intentionally places somewhere and forgets it; landowner where
object is found wins.
5. Lost = owner is unaware of losing possession; finder wins.
6. Hannah requires all 3 exceptions of rule to justify why the landowner would
win with these facts. (Finder actually wins because this is highwater mark.)
First possession: first to possess unclaimed thing
Creation: first to possess some new or novel thing
Accession: possession of second thing is possession of first
Adverse Posession: rights of original owner are extinguished
Sequential Posession: prior possession priviledged in law
Competion Acquisition Principles: which is more compelling in any context?
Brief summary:
Policy Property: signaling, good faith, context alters possession, custom is always an
option (insider advantage, line drawing boundaries, impossible claims), property for
some purposes but not others (INS).
Property Remedies: taking, Japanese salvage awards, split fees, small group institution,
finders fees. Body parts are further outside the circle.
XV. What Can Be Property?
XVI. Body Parts
A. Property and the Human Body

a. Moore v. Regents of the University of California: No conversion right in

cells because informed consent is sufficient. Legislature should create new
right if they want. Courts punt with uncertainty. Judicial conveyance of
right would make every single cell sample out there litigation.
b. Majority: No property because want to preserve innovation benefit.
c. Dissent 1: no property because morally people shouldnt sell body parts.
d. Dissent 2: yes property because Ps need recovery rights.
e. Dissent 3: yes property because want to be fair to patients.
f. Settlement for conversion claim > settlement for informed consent.
g. Jacque-style property right insufficient for innovation because of
asymmetric investigatory resources.
B. Midler and Right of Publicity: When singers voice is distinctive, sellers have
appropriated an identity.
1. Likeness in statue refers only to actual voice or image. Removed to fed via
diversity.
2. Courts have narrowly recognized property rights in publicity via common law.
3. Kozinski dissent: right for Vanna White is in what she does for a living; this
decision for Vanna White impoverishes the public domain.
4. Midler yes right b/c voice is personal. Vanna White yes right b/c body is
personal. Tony Gwynn no right to baseball hitting methodology. Fantasy
Sports no right b/c likeness restriction applies. Sheldon and Mr. Bray no
right b/c no intent. Info costs?
5. Reasons to have Publicity Rights: profit, artistic value, consumer deception,
reputation, labor.
a. Strict signaling is not ideal b/c winners would be rich famous people only.
Balance need for clarity with need for certainty.
b. Body parts and publicity are at outer edges of property. Property rights
that emerge are limited in some uses.
C. Demsetz: as asset value increases so does pressure to create property right
1. What is externalit? Cost that decision-maker does not bera and imposed to
third-parties. Bray says include only negative externalities.
2. Property rights develop to internalize externalities, when the gains of
internalization are larger than costs of internalization. Property rights emerge
when benefits of forming those rights are larger than the costs of forming
those rights. Ex: fur trade. Great value eventualy to propertize and not
overhunt.
3. Benefits of propertization: creates incentives, collective action avoids wasteful
races and depletion of resources, easier to bargain with one person rather than
everyone in whole group
4. Costs of propertization: definition costs (surveys and patent costs), monitoring
and enforcement costs, deters creativity especially when sanctions are high
5. Predictions: as property values increase, so does propertization created by
courts and legislatures.
D. Radin: Personal Property vs. Fungible Property
1. Different people have different relationships to property. Jewelers
relationship to wedding right is different from wifes relationship.

2. Self investment in property can be good or bad. If one invests self in property,
should do so morally and avoid sin.
3. Penners Separation Thesis: things do not become property until separate from
self, like hair cuttings.
4. Property vs. Property for Personhood: lack of personal connection DOES
NOT IMPLY that there is no property. Notepad is still mere property, though it
is not property for personhood.
5. Personal Property --- Fungible Property
6. Implications: takings and eminent domain require just compensation that
includes sentimental value because of property for personhood, not just
market value. Morality is also majority consensus consideration.
E. Radin v. Demsetz:
1. Demsetz offers positive, descriptive theory. Radin offers normative theory of
how to think and disapprove of property.
2. Demsetz says we should use property framework; this is a normative
imperative. Radins normative theory relies on commonplace positive
descriptions. Demsetz can include Radins theory in nonpecuinary
externalitites.
F. Use both Demzets and Radin on edge of property. Consider moral args, policy
args, and punting to institutions.
XVII. Water
A. Evans v. Merriweather: upstream mill owner builds dam to hoard water during
drought. Use English Natrual Flow Doctrine and say that mills water must be
returned to stream.
1. Domain: surface defined chanel of water.
2. English Natrual Flow Doctrine: any material interference with downstream
rights is forbidden unless downstream owner consents. Applied b/c English
use is non-consumptive and there were few droughts.
3. American Reasonable Use Doctrine: wide contextual facturs are relevant.
a. Expansive social benefit maximization, but uncertain as to reasonableness.
b. Ways to overcome uncertainty of reasonableness: narrow / domestic
uses versus artificial / nondomestic uses; let jury decide in personam.
(1) Non-domestic: must consider reasonableness
(2) Domestic uses: do not have to consider reasonableness
c. Usafructory Interest: right to peaches /= right to chop down peach tree.
Limited right to use.
d. Water is outside core of property, use nuisance conception.
B. Coffin v. Left Hand Ditch Company: portion of dam was torn out; claim for
trespass and injunction to leave dam alone. Trespass affirmed through Prior
Appropriation.
1. Prior Appropriation: first-in-time approach wins. First person can
unambiguously take all water, as long as use is beneficial. (Flooding gophers
is not beneficial.)
a. Narrow and extreme form of reasonableness. Natural Flow Theory
disregards reasonableness the most.

2.
3.
4.
5.
6.
7.

b. Incentive to waste: pull out just to create property right

Under English Flow: Coffins dam disrupts natural flow.
Under American Reasonable Use: preserve incentives to build dam and
reliance interests of original owners.
Under Prior Appropriation: first possessor has incentive to get water out; Bray
says this might be short-sighted.
When to use? When water is less valuable, use American Reasonable Use.
When water is very valuable, use Prior Appropriation.
Natrual Flow > Reasonable Use > Prior Appropriation.
Carol Rose: different doctrines apply b/c of different historical needs in East
(water not important) to arid West (water very scarce).

I. Navigable Waters
A. Roman Law: right to air, water, sea, and shores of sea
1. No reason to have individual property between high tide and low tide;
discourage investigating and investing
2. 2. Value of making it public increases because everyone can help with
common use of the water.
B. Common Law:
1. Any public can travel by vessel on navigable water Need access from North
Sea to London. Manage assembly problems.
2. Right to fish in navigable waters. Prevents self-help and minimize disputes;
morally right to allow small fishermen to fish, but results in overfishing.
3. Land beneath navigable waters was owned by crown because there was
sunken treasure.
4. Disputes over navigable waters are decided by Royal Admiralty courts
because they have more expertise.
C. U.S. Rules
1. Navigable waters include inland waters like Mississippi
2. Fed v. States as opposed to King
3. Appeal to Constitutions limits on public behavior
4. Otherwise, same as English Common Law
II. Navigable Airspace
A. Federal govt has servitude to allow airplanes over state airspace. Fed servitude
wins over state appeals to ad coelom.
III. Public Trust: though state holds title to navigable waters, U.S. holds public trust for
people to enjoy waters free from interference of private parties.
A. Illinois Central Railroad: state never had right to alienate railroad. Policy: to
prevent corruptions and sweetheart deals.
1. Exception: interest in navigation can include erection of docks and piers, for
which purpose the state can grant parcels of land.
2. Professor Joseph Sax on why Public Interest in relevant to environmental law:
a. Can be used to stop environmental destruction and private development
b. Does not stop government development

c. Democracy problem: applies to all federal land. Cannot be so broad as to

prevent federal terrorities formation outside the original 13 states, but
cannot be too narrow as to preclude govt use of White House and Lincoln
Memorial.
B. Easements: adverse possession USE of land, not possession of title.
C. Oregon: Custom of public use wins over private Ds request to build fences
1. Custom of using dry land for centuries is so prevalent, state should be able to
police.
2. Alternatives to custom: (i) prescriptive easement line requires showing of
use; (ii) implied dedication that landowner wanted to grant access legal
fiction because no reason to litigate; (iii) public trust doctrine in dry sand area
unclear managing device. So because of these difficulties, use Custom.
3. All seas and shores treated uniformly under custom.
4. Blackstones Requirements for Custom:
a. Law must be ancient
b. Right exercised without interruption
c. Customary right is peaceable and free from dispute
d. Reasonable use of land
e. Visible boundaries of dry-sand are and character of land
f. Custom is obligatory, not optional for each landowner
g. Custom must not be inconsistent with other customs
5. Demsetzian increase of beach property value today increase propertization
Brays Points on Policy:
1) Contexualize policy reccomendations to specific situations.
2) Play through multiple iterations to see result of rule.
3) Compare policy proposals to alternative legal recimes.
4) Use both economic and moral arguments.
5) Demsetz is positive, Radin is normative. What is the prediction?
6) Use labor arguments. Compensating past work < Future Incentives < Personal
Autonomy.
7) Too private to be property (internal organs) ----- Too public to be property
(harbor). Bilateral monopoly args apply to private property; assembly args and
monitoring costs apply to public property.
8) Recognize limits and exceptions to doctrines.
Policy for Criminal Protections of Property
1) Underenforcement of property rights if merely left to civil enforcement
2) Reduce self-help and violence (esp. from people outside legal system)
3) Insolvent Ds are caught inside system
4) Punish / externalize harm to society
5) Criminal law expresses societal values of autonomy, dignity, property
XI. Trespass to Chattels: Olivo and Right to Exclude
A. Shoplifter caught with goods inside store can still be convicted for larceny.

B. Larceny = (i) intent to steal; (ii) exercising control inconsistent with owners
rights, (iii) movement or asportation
C. Evolution in law away from strong property rights towards protection of
peace.
D. (iii) is brightline, (i) and (ii) are based on social norms. Brightlines necessary
to deal with strangers.(iii) also gives you a chance to stop.
E. Fact-dependant, normative cases depend on jury deliberation. Danger of
insider-advantage.
F. Trespass to Chattels = interfere with property in some manner short of
conversion while P remained in possession. Ex: hacking.
a. Does not require removal of object.
b. Does not need to prevent-self help like in land, because chattels are
movable so burden of moving chattels is small.
c. Must show harm, unlike trepass to land.
G. Trover = conversion; wrongful conversion of Ps goods to Ds use.
a. Conversion requires dispossession from owner.
H. Trespassery Taking = no permission to have object. If have permission (like in
coat check), then no larceny.
I. Hypo: bag with false bottom. No asportation.
X. Intel v. Hamidi: former employee spammed Intel system with angry emails
A. Majority Court: There must be damage to property, and precedent courts have
found that all previous damages from trespass to chattels via email have involved spam.
The damage there is from the sheer amount of spam processed. Here, Hamidis emails did
not cause harm because did not force new computers.
1. Creating new property right would result in increased costs to ease of
communications.
B. Dissent: harm exists in lost employee productivity. Analogize new technology
to Moore and new body rights. Do not want to discourage IP because cannot protect it.
1. Balance costs of spam with costs of prohibitive, absolute property right.
C. MPC: possessor of property can use reasonable force to prevent unlawful
trespass or carrying away of property.
D. Right = others owe you duty. Priviledge: right to act without interference from
others.
E. Institutional choice to legislatures?
F. Nuisance model: is spam reasonable? If so, how much?
G. Parcelize cyberspace just like navigable waters?
H. False job ads on Craigslist are illegal emails.
I. XI. Limitations on Right to Exclude
A. Necessity: only permissible if you are in snowstorm and about to die. Can only
enter cabin and eat minimal amount. Compensation required; cannot be
prosecuted for trespass: Test: if you would rather be sued for trespass than not
break in.
B. Custom: weak claim for trespass; subordinate to more formal law.

1. McConico: contemporary law does not require showing of harm. Custom wins
because hunting on unenclosed land is very important to people of this time
and age.
2. Policy for Custom in 1818: (1) subsistence hunting is necessary for
distributive equality. (2) solves assembly problems of bargaining during
hunting. (3) Radin: personal investment in occupation. Demsetz: custom is
sufficient proxy for law and clear delination of property rights where this land
is unoccupied and unsuitable for farming. Also, costs of uninhabited farming
is low because the current value of the land is low.
3. This custom disadvantages outsiders who are not white males that can hunt.
4. Modern no trespassing signs decrease transaction costs of assembly
problems.
5. Custom informs law of trespass. Of course, custom changes over time (ex:
beaches).
C. Innkeepers and Public Accommodations: usually, cannot exclude.
1. Policy: decreases monopoly power of innkeepers to charge monopoly rents
2. Duties: (i) must provide service if available; (ii) can only charge reasonable
rates
3. Fed and state public accommodations laws may be different and prohibit
specific types of discrimination.
D. Public Policy: Uston v. Resorts Hotel (card-counting)
1. Common Law: if Uston is disruptive, then can exclude. Court punted to
federal commission to decide if disruptive; this narrows common carriers
rights to exclude.
2. Agency Capture is risk of setting up agency with better expertise.
3. Uston is like Hinman in nuisance conception. Right to property subordinate to
reasonbale use. No right to arbitrarily exclude; exclusion must be reasonable.
4. Application to cyber poker games.
E. Fair Housing Act and Anti-Discrimination
1. (a) prohibits refusal to sell to [list of protected characterisitcs]
2. (c) prohibits advertising to indicate preference to [second list of protected
characteristics]
a. Mrs. Murphy Exception: if owner lives in one of the living quarters with
four or fewer families, then Fair Housing Act does not apply. Mrs. Murphy
exception allows you to make your own decisions. This exception does not
preclude Subsection C.
3. Using language as proxy for national origin is also violation of statute.
4. Can only speak XYZ language is allowed because landlord may only speak
that language; better than cannot speak XYZ language.
5. Application to choosing roomates over online ads. Can be sued if exclude; not
otherwise.
6. Brays Points on Anti-Discrimination and Fair Housing Act:
a. This is an example of modern evolution of limitation on right to exclude.
b. Institutional choice of complex statutes.
c. Federal antidiscrimination law is only baseline prohibition on rights to
exclude; states and local govts may have additional requirements.

d. Civil enforcement is underenforcement because of high information costs

in ascertaining which antidiscrimination laws apply and if they are
violated.
II. Bailments
A. Decrease self-help and erection of barriers. Favored over contracts and criminal
theft.
B. Bailments = empower bailee to act as owner in several ways
C. No Bailment (Rhodes): open lot, no ticketed entrance
D. Yes Bailment (Allen): attendant never parks
E. Yes Bailment (Scruggs): garage, usually attendant doesnt ark
F. Yes Bailment (Dispecker): covered garage, sufficient delivery of possession and
control by giving car to bellboy
G. Payment is compensation for (i) parking space convenience, (ii) insurance against
stolen car. Services offered are reflected in prices charged.
H. Will move to extremes if high prices arent justified by security.
I. If transaction costs = zero, parking lot owner is better suited to bera cost of
protection
J. Today, courts are stricter when bailees misdeliver goods than when goods are
merely lost or stolen while in custody of bailee
K. Allen v. Hyatt Regency: car stolen in parking garage
1. Bailment Transfer = (i) delivery, (ii) relinguishment of possession, (iii)
acceptance of transfer
2. Bailment is for sole benefit of bailor = law requires only slight diligence and
baillee is only answerable for gross neg
3. Bailment is for sole benefit of bailee = great diligence on part of bailee, who is
responsible for slight neglect
4. Bailment is reciprocally beneficial = ordinary diligence and bailee is
responsible for ordinary neglect
5. Today: universal standard of reasonable care, including whether there was
compensation or whether bailment was for bailees beneift
III. Abandonment & Destruction
A. Ponoco Springs: P said lot was worthless and wanted to stop paying taxes.
1. Abandonment = voluntarily relinquishing all right with intention of
terminating ownership, but without vesting it in any other person
2. Abandonment not allowed. Application: owners still have perfect title.
3. Policy: real property cannot be abandoned. Duty to not environmentally
harm. Incentive to investigate and develop.
4. Nuisance conception: not allowed to do something that you want with
property.
5. Being property owner bestows both rights and duties like no environmental
hazard.
B. Eyerman: property owner wanted to raze home and sell land; people living in
subdivision on home claim public policy.

1. Holding [NEGATIVE EXAMPLE}: conflicts with morals of time and is

merely capricious. General rule is can destroy own property, but
uncertainty of post-death actions will affect choices during life.
2. In trespass conception, can destroy without giving reason.
IV. Future Interests
A. Fee simple = full ownership forever
B. Life estate = full ownership for life of original owner. Life measured by original
owner = pur autrie vie
C. Remainder: after life estate, interest goes to another person
D. Reversion: after life estate, interest returns to original owner
E. Lease: partial interest in estate
F. Historically, exchange protection and land for services and tenures
1. These interests were usafructory (cannot sell or leave to heirs)
2. In rem = against whole world
G. Modern analogy of broadcast licences.
1. Initially must apply for 3 year inalienable license . Promise of protection in
exchange for services like public programming.
2. 1980s: expectation of renewals. Sale of license is always permitted, and can
be divided. Obligations are diminished and becomes like private property.
3. Like feudal estates, deregulation is motivated by political pressure and
political power shifts.
H. Rule Against Perpetuities: cannot put qualifications on will that will control
property after he or she has died. Cannot have qualifications that will exist 21
years after the death of lives in being. If so, then those parts are void.
1. Not malpractice to misapply Rule Against Perpetuities
I. Lessons of Fedual Tenure:
1. Property in law has limited forms (customization, life estate). No
customization allowed, because would otherwise increase costs for everyone
else.
2. Constant Quantum of Ownership: cant abandon real property because
William didnt want barons to abandon property and not give knights
3. In personam = contractual. In rem = against all.
4. Political power shifts is alternate explanation to Demsetzs increase in
property value.
5. History gives you ammo to critique historical root of rule and to proeprsize
future rule formation.
V. Waste
A. Brokaw: Cannot remove structure because life estate holder must preserve land
for future remainder interest. This is despite the fact that developments will
increase the value of the land.
B. Types of Waste
1. Affirmative waste: unreasonable and causes excess damage to reversional
interests.

C.
D.

E.

F.
G.

H.

2. Ameliorative waste: increase in market value. Original owner is entitled to get

property in original form.
3. Permissive waste: life tenant unreasonably fails to take action and causes
excess damage to reversion
Can remove structure if surrounding context is extremely modernized (Pabst)
Policy to Punish Waste: to internalize costs to owner who does not have to suffer
conseuqences of their waste. To deter people looking specifically for waste
instances, cabin the possible plaintiffs by justiciability, merit of claim, remedies
sought.
Takeaways from Waste:
1. Waste mediates conflict when interest in land is divided over time.
2. More nuisance-style than Jacque style; ability as life estate owner is
constrained.
3. Permanent injury to estate is waste. Must protect remainder.
4. Exception for completely changed circumstances. Pabst sufficient change in
environment. Brokaw: insufficient change in environment.
5. Asymmetry with adding and subtracting. Adding is more permissible than
subtracting.
Restraints on Alienation = restriction on ability to alienate by selling, giving away,
or devising.
Morse: Man cannot restrain wifes right of alienation because would void policy
of efficiency
1. Policy for some restraints on alienation: some restraints like land to minor or
to town for library, are sensible. Power to alienate makes owners more willing
to depart with burdensome ownership obligations. Right to transfer is more
efficient; free alienation allows society to change assignment. Less friction
than adverse possession or contracts.
2. Policy for not having all restraints on alienation: not efficient, destroys owner
autonomy
3. Can define class of people to sell to; cannot define class of people to not sell
to. Condition is okay unless it substantially takes away whole power of
alienation.
Body parts require restraints on alienation. Moral discomfort with right to sell
body parts.

VI. Co-Ownership
A. Evolving towards trusts and corporations
B. Tenancy in Common: multiple owners. Interests in undivided whole. Interest can
be sold or passed in will. The only required unity is Posession.
C. Joint Tenancy: same as tenancy in common, except for Right of Survivorship
where deceaseds rights go poof. Nothing passes. If Unity is destroyed, then joint
tenancy is severed and Tenancy in Common is created (partial right of exit
through severance without using partition).
1. Time: each interest must be acquired at same time
2. Title: each must acquire title by same instrument

D.
E.
F.
G.
H.
I.

J.

K.
L.

3. Interest: each must have same legal interest in property, though not same
fractional share
4. Possession: each must have right to possess the whole.
Joint Tenancy is only appropriate for intimate relationships. Avoid probate.
Straw transactions: sell to X and buy back to sever joint tenancy.
Tenancy by Entirety: joint tenancy with unity of marriage.
Community Property: property gained in marriage belongs to both couples
Internally appears as commons; externaly as Jacques. Cannot use Levithian b/c
there are multiple owners, and cannot use privatization because interest is in
undivided whole.
Love it or Leave It: partition = automatic right to terminate cotenancy at any time.
No reason needed to use this judicial remedy b/c admin costs are too high.
1. Ouster is extreme outlier.
2. Contracts requires trust.
3. Co-owner can claim waste and Life Estate Holder infringing. Wate action is
more permitted for preserving future interest holders b/c they have high
monitoring costs as opposed to current owners. Also, incentive for current life
estate owner to waste is larger.
Delfino: P wants garbage business, but D wants apartment complex development.
Garbage business will decrease land value.
1. Coast: if transaction costs are zero, then build apartment complex and pay off
trash business owner since pie is bigger. But Radin has other additional
transaction costs of entrepreneurial value from garbage business.
2. Partition in kind: carving up land itself. But still doesnt solve decreased value
due to garbage business.
3. Partition by sale: sell whole land and carve up $. Does not include sentimental
value.
4. Trend towards partition by sale b/c: increased fungibility, less attached to soil,
difficult to divide undivided assets that are useful only when whole (like
house).
Owelty: make up any slight differences from imprecise partition by using cash
payments
Harms v. Sprague: Joint tenancy IS NOT severed when less than all of the joint
tenants mortgage their interest in the property
1. Sprage takes bank loan and gives land as collateral. John Harms cosigns
Spragues bank loan and land claim promise. Sprague wants half of Harms
land, and gets it by being willed party from John Harms. If land is tenancy in
common can leave to Sprage. If land is joint tenancy no land to
Sprague.
2. Mechanics Lein: mechanic gets lein and promised first $30,000 when house
is sold until remodeling fees are paid off. Title does not change.
3. Can harm William Harms if joint tenancy is severed; or harm informal
mortage lenders if joint tenancy is not severed and William gets everything
and mortgage obligation goes poof.
a. Future mortgage lends will be more sophisticated to make sure that boht
owners sign.

M. In re Estate of Filfiley
1. Daughter vs. Stepfather after mother dies.
2. jursidctions: if take more than moiety tenancy in common. But not
practical when need to withdraw lots of money!
3. jurisdiction: if take more than moiety still joint tenancy and other coowner has claim b/c moms interest poofs
4. Moiety = equal share, typically half, of account
5. Partition is extreme solution to conflict
6. Common law of joint tenancy persists into staturoy world
7. Must harm someone
8. Money is not as god fit under joint tenancy as land is easily divisilble.
9. Money is more nuisance.
N. Co-Owner Conflicts
1. OBrien: med liscense is at boundary of what is property. Can always treat as
property for some purposes but not others. Ex: license is exclusive but not
sellable.
2. Concurrence: future realized value of marital property is hard to determine, so
damages may be readjusted in time.
3. Policy behind Equitable Distribution Laws: protect poorer spouse, do not
divide based on current earning power.
4. License is martial property because there is nothing else. Lisence is therefore
subject to equitable division. We can value the license, regardless of martial
fault.
5. Statute says must consider career potential in valuation.
6. This decision leads to more certainty of valuation and better line drawing.
7. Econmic partnership is an easier instrument towards achieving fairness.
8. License as martial property is standard, not rule.
O. Marvin
1. non-married couple filing for implied contract. Contract was both oral and
implied.
2. Void = from beginning there is no effect. Null.
3. Voidable = permitted by someone can step up and say no.
4. Contracts for prostition are void as matter of public policy.
5. Marriage = community property; Non-Marriage = contract or no contract
depending on customizability
6. Options for Marvin
a. All co-habiting couples have community property rejected b/c of
uncertainty
b. Contracts are unenforceable
c. Contracts are enforceable and there is equitable remedy like convertible
trust
7. Google Books
a. Actual negotioans are different bc of different personalities
b. Fair Use: would be violations except for their use like negative book
reviews
c. Which bucket to put Google Books in?

(1) Copyright owner had limited set of rights that are excludable
(2) Things that buyers of copies can do
(3) Public Domain: anything anybody can do, such as SNL or parodies
d. Google alleges Fair Use because: only uses snippets, despite the fact that
the entire book was scanned
e. Copyright Incentives
(1) Information is non-rivalrous
(2) Open Access / Commons: best way to distribute already-existing
information and encourage creativity
(3) But getting the creation I the first place requires exclusivity and
copyright; strong property rights to incentivize vs. benefits of open
acess for takeaways
8. Takeaways
a. Can use property-like systems to settle negotaions
b. Courts are concerned with antitrust
VII. IFQs
A. Problems with Command-And-Control Approach:
1. Unintended consequences like concentrated fishing
2. Restrictions are indirect proxies like boat size
3. Wasteful races to capital at labors expense
B. Reasons for Command-And-Control Approach:
1. Lower transaction costs than alternatives
2. Lack of distribution problems
3. Most obvious response
C. Reasons for Failure of Regulatory Approach
1. Difficult to centralize knowledge
2. Unintended consequences
3. Political pressure and lobbying
4. Rachet Effect: overuse now as opposed to future intersts
D. ITQs are social institution solution. If not mandated by government, results in
ntitrust and lack of enforcement.
E. Strengths of ITQs:
1. To conserve for future use
2. To innovate and try new techonologies
3. To trade
4. Quotas require less information and experts
F. Weaknessness of ITQs
1. Definition and enforcement costs are high
2. Political pressures and lobbying; antitrust concerns
3. Distribution inequality among fishers
G. Alliance Against IFQs v. Brown: are reulgations for implementing fishery
management plans in Alaska arbitrary or capricious?
1. 3 years in past not capricious because the alternative of using present time
will lead to wasteful races

2. Easier to measure boats output rather than individual output, but this is
imperfect proxy
3. Holding: admin costs too high; quotas are upheld
4. Access Application; prior fishers have invested and so are favored
5. Lyman: hard to set up in US because there are so many vetos
6. Works bettr with heterogenous fishers
H. Lessons
1. Faults and benefits are relative to alterantive schemes
2. No single answer: ITQs are not categorically better. Migratory vs. sedentary
fish require different solutions.
3. Use history because of personal connections.
4. Private vs. Public is not crucial distinction; all are intertwined.
VIII.

Leases
Life Estates
Gratuitous transfers
Few itneractions

Lease vs. Buy

Farmer in 1600
No specialization with
leases
Lease serves as financing
device, if lacking capital
Buying loses chances to
diversity

Leases
Periodic rent
More interactions
Landowner has more management and
control, more interest in lands use
Landlords future interests is longer b/c
lease term is shorter than life estate
Specialization of maintaining common area
and individual units
Lawyer in 2016
Specialization of
maintaining premises
Capital is less with new job

Entreprenur in 2016
Speicalization is valuable

Less capital b/c new

entrepreneur
Risk-spreading of new
Risk-spreading of
move
newventures and
surrounding business worth
Factors include: lease as financing device; risk-spreading lease; lease offers
specialization; lock-in rates if buy. (May want to buy to prevent higher
charges in future.)
A. Types of Leases
1. Term of years: for fixed time, no notice of termination
a. Ex: L agrees to rent until next year.
2. Periodic tenancy: rolls over; notice required.
a. 6 months notice at common law; takes effect after next years date
b. Ex: year to year, notifies that lease will terminate
3. Tenancy at will: can terminate at any time
a. Ex: L leases to T for duration of war.
4. Tenancy at sufferance: holds right of possession after right had ended; original
tenants entry was not wrongful

B. Paradine
1. L owes covenance of quiet possession to T; T owes covenant of rent to L.
2. Can sue for rent, but cannot take away possession.
3. Can sue for house and quiet posesion, but must still pay rent.
4. D Farmer claims that invading army prevented him from paying rent.
Holding: must still pay rent regardless of posesion.
5. Independent Covenants Mode:
a. If comvenants are connected, then would never overcome disagreement
between T and L as to degree of external interference
b. Tenant is in full control; is residual claimant and experiences all highs and
lows. Tenant is better equipped to control. Tenant assumes all risk.
Minimizes admin costs of reimbursement, if quality of possession
changes.
c. Works well for agricultural business of risk-spreading and financing.
6. Smith v. McEnamy: the ONE BIG EXCEPTION to Independent Covenants
Model
a. Wall evicted tenant by coming over a few inches. 2 covenants owed by
tenant: rent and duty to repair.
b. If Landlord prevents possession like through eviction, then tenant does
not have to pay rent. Exception only applies to rent covenant; duty to
repair still exists.
c. Evicting a little is evicing the whole. (rule de minmus)
d. Degree of interference is important, regardless of minimum interference.
Must consider good faith.
IX. Implied Warranty of Habitabilty
A. Javins: IwH is implied in leases of urban dwelling units.
1. Do not want to claim illegal lease, because Ps want a habitable lease.
2. Reasons for Change to Dependent Covenant Model:
a. Factual assumptions have changed (landlord has managerial function
today)
b. Consumer protection analogy
c. Unequal bargaining power
3. Why Leases are More Like Contracts Than Property: right of possession of
interests. Decent living and excludability.
4. IwH is not excludable. Mandatory rule. (as opposed to default rule in
background that is subject to customizability.) Otherwise, landlord would
disclaim IwH in every written contract.
5. 1 or 2 minor violations are de minimum and do not entitle tenant to reduction
in rent.
6. Remedies: jury decides damages and violations b/c fact-specific perofmrance
of landlords repair.
7. Attending Doctrines that Respond to Each Other:
a. IwH
b. Illegal Lease Doctrine: if property is unsafe and unsanitary, then lease is
void

c. Doctrine of Retalitory Eviction: landlord cannot retaliate against tenant for

reporting violations
B. Consequences of IwH
1. Added IwH is cost that increases demand and decreases supply. Rents rise and
supply falls.
2. Added IwH would not change rents b/c sunk investment. Implied rent control
b/c supply of housing is inelastic.
3. Craswell: marginal consumer = paying up to WTP; inframarginal consumers =
enjoys consumer surplus, willing to pay more; landlord are suppliers
a. Landlords are better off when rents increase > inframarginal are better off
b/c apartments are better maintained > marginal consumers are priced out
b. Application: broadband internet. Part of IWH would increase
inframarginal surplus and price out marginal consumers.
c. Application: parking spaces: decision to have car will decrease, and
increasing parking requirements for housing would increase price.
d. Other factors: rent control and enforcement costs.
4. Summary points:
a. Shift to Dependent Covenant Model
b. Legislature > courts in leases
c. Distributive effects: moral fairness v. economic arg.
d. Resistance to moving property to contracts
5. Remedies of Breach include: vacate lease, specific performance or damages,
or % reduction of rent
X. Leases v. Co-Ops
A. As compared to leases, co-ops have no risk-spreading or financing. Also, co-ops
lack managmenet and specialization. However, both have excludability.
B. Reasons for Increasing Condos and Co-Ops
1. Leases cannot write-off rent. Condos can write off mortgage deducions.
2. Condos and co-ops evade rent control by buying.
3. Condos and co-ops are picky and some people like that.
4. Interior design increases condos over partments.
5. Some like condos/co-ops internal governance.
6. Condos are one way for government to abdicate burden of street maintainince
to subdivisions.
C. Demsetz: does not explain the rise of co-ops. It was fee simple or lease property
before, simply new property now. Demsetz works better for economic stories than
political ones.
D. Raind: lease to condo could increase attachment.
E. Co-Ops are not really new form of property. Merely corporation adapted to
building. Legislative action creates condo form of property.
F. Nahrstedt: homeowner sued association for preventing pets.
1. Statute: enforce CC&Rs (covenants, conditions and restrictions) when
reasonable.
2. Rules set in Declaration Prior to Purcahse, OR
a. Either Presumptively valid (condos almost always win) equilibrium 1 or

G.

H.

I.
J.
K.
L.
M.

b. Invalid b/c (i) arbitrary, or (ii) imposes excessive burdens, or (iii) violates
public policy
3. OR Subsequent Ex-Post Board Decisions
a. Always Reasonable is categorical b/c:
(1) Preserves expectations
(2) Minimizes litigation expenses; tenants can always threaten lawsuits
and get their way equilibrium 2
4. Dissent: presumptively valid means that almost all CC&Rs are valid
40 West 67th Street v. Pullman: Pullman was extremely objectionable neighbor.
1. Objectionable Conduct decided by:
a. Business Judgement Rule deferential standard to let board make any
substantive decisions as long as proper procedures are followed.
b. Statute of RPAPL where co-op must prove that tenant is objectionable.
Usually governs relations between L&T.
c. Real Property Rule is standard, but Business Judgement Rule is way to
satisfy that standard.
d. Court more likely to be deferential to co-op since factors are so extreme.
Further scrutiny justified by tenants action if board acted (i) outside scope
of authority, (ii) in a way that did not legitimately further corporate
purpose, or (iii) in bad faith. Here, all 3 are satisfied.
e. Burden of proof of good faith = shown by absence of bad faith.
Takeaways
1. When standard of review is Business Judgement Rule (more deferential to coops), all 3 factors for furher scruity are almost automatically fulfilled.
2. Emphasize procedure to make winning more likely. To court, procedures
import > substantces import.
Shareholders in corporation can sell if they dislike boards decisions, but tenants
in co-ops cannot easily sell if they wish to exit. This is reason to limit
applicability of Business Judgmenet Rule to co-ops.
New forms of property with condos and co-ops; co-ops are almost exclusviley
found in NYC.
Most cases involve ex-post disputes about governance, not upfront CC&Rs.
How those ex-post cases are resolved affect ex-ante choices about entering condos
or co-ops.
Ex-post abuses by either Board or Individual mean that court must choose which
standard of review and thus which party to show deference to. But, tradeoff is that
its harder to police that party if give them lots of deference.

XI. Trusts
A. Management v. Ownership Interests that are Non-Posessory
1. Beneficiay /= trustee manager
2. Ex: Trustee managing apartment building gives earnings to beneficiary.
Beneficiary cannot live in building.
3. Ex: Stockholder is beneficiary but cannot manager or possess company
building.
B. Settler = person who creates interest. Owns some property to be conveyed.

C. Trustee: manager with good judgement. Fee simple against world + fidicuary
duties. Requires freedom for discretion.
D. Beneficiary: younger with fewer assets. Unable to manage resource. Recives
periodic distributions of income.
E. The only limitation is for sole trustee to serve as sole beneficiary. Trustee can act
as full owner and buy, sell, etc.
F. Trusts can be created by will or inter vivos transfer of assets.
G. Functions of trusts: to give assets across generations, or to form charities.
H. Statute of Frauds: trusts must be in wrting.
I. Without trusts, there would be fewer gifts.
J. Legal Title = owned by trustee. Alienable powers.
K. Equitable Title = beneficiary interest owned by beneficiary. Trustee cannot abuse
power.
L. Trustees compensation could be filial duty or payment.
M. Trusts are generally in rem. Trustee genereally has fee simple, do not need to
know identity of beneficiary.
N. Rothko: 3 trustees mismanaged settlors paintings. Beneficiary sought to keep
everything in estate.
1. Paintings sold one time with high commissions of 50%.
2. Identifies first big problem of trusts: principal-agent problem, here setllortrustee problem.
O. Wilbur:
1. Identifies second big problem of trusts: changed circumstances.
2. Trend: cy pres becoming less suspicious. Must find general intent of charity
before cy pres can be applied; existence of charitable donation /= intent
P. Summary of Trusts
1. Trust developed in equity b/c difficult to pass land to children
2. Legal vs. equitable title (beneficial interest)
3. Fiduciary duties
4. Separate management from non-possessory interests
5. Principal-agent problem. How does settler control? (Rothko)
6. Changed circumtsances (Wilbur and cy pres)
XII. Notice and Posession
A. Irons: intent to relinquish + possession + delivery. There exists an oral gift, but no
delivery. Delivery is required to signal ownership to world and guard against false
claims or disclaims.
1. Trover for 2 colts. There must be delivery for gift.
B. Limits on Jacque-style exclusions: adverse possession, public necessity, custom,
innkeepers and common carriers, anti-discrimination stattues, canot create new
estate sin land, cannot impose restraints on alienation, cannot destroy in some
circumtsances, delivery requirement of gifts
C. Valid Gift = intent to relinquish possession + deed or delivery
D. Wills Act:
1. Will must be in writing
2. At least one distinerested witness

E.

F.

G.

H.

I.

3. Sometimes, signature must be notarized

4. Exception 1: holographic wills, written by hand
5. Exception 2: gift causa mortis (in comtemplation of death)
a. Made with view to donors present straits
b. Must die for gift to be bestowed
c. Must be delivery
6. Policy for Wills Act: prevent coercion and fraud, reduces disputes and
maintains common record, solemnity encourages seriousness of transaction
Foster: There must be delivery, not just a letter.
1. Informal writing of desire does not constitute formal delivery. If husband had
handed items to wife and she had handed back, would have counted as
delivery. Assets must be delivered, not the will. Assets can be symbolically
delivered (like keys to house).
2. Formal ritual of delivery solves ambiguities in holographic wills.
3. Like larcenys requirement of a movement, prosession is signaled by delivery
and is proxy of actual ownership.
Reasons for Delivery
1. Need owners in any case, regardless of outcome
2. Reduce fraud (Irons)
3. Reduce scope of disputes over gift (Foster)
4. Avoid conflicting gifts
5. Encourage careful decision-making
Proving Ownership
1. Posesion is easier for small, fungible, low-value objects (i.e. pencils and
papers)
2. Items that cannot be destroyed require Marking (i.e. chairs)
3. Items that are immovable require Recording, not Posession (i.e. desks)
4. Conditions for registry to work: object must be sufficiently valuable; there
must be an enforcement mechanism
5. Factors Toward Recordation: too big to move, registration is required for tax
purposes
6. Facts Against Recordation: easily moved, low-value, fungible
The Art of the Steal Notes
1. Principal-agent problem between The Barnes (his will) and subsequent
trustees of Lincoln University, the eventual control by the Philadelphia Art
Establishment
2. Changed Circumstances: building was depreciating and president of Lincoln
Board wanted to sell paintings to restore in public trust
3. Cy pres: specific intent of staying in country cannot be fulfilled b/c of water
damage. So cy pres says to move downtown.
4. High transaction costs of lawyer fees and moving the paintings on tour. If
cannot be moved, then commercial value = 0. Coase.
5. Selection problem of subsequent trustees after The Last Apostle died.
6. Presented one side of story as exploitation of The Barnes. Better storytelling
tactics?
Statute of Frauds: any contract for sale of land must be in writing

1.
2.
3.
4.

Formalities avoid fraud and disputes, even in good faith

Formalities increase solemnity. Land is important.
Signed by whomever the contract is being enforced against.
When title is uncertain, quick claim deed: no warranty that I own, but any
interest I have is given to you.
J. Nemo Dat
1. Cannot give what one does not have
2. Ex: life estate au trie vie (measured by givers life)
3. Ex: Finders Rights. Rights against everyone except true owner. Given away,
new owner has right against everyone except true owner.
4. Vimar: thief cannot transfer title in painting to anyone else.
5. Exception to Nemo Dat: Good Faith Purchase can transfer more than you
have. Requirements include:
a. Seller must be able to sell; seller cannot be theif
b. Buyer is acting in good faith; did not have notice that title was bad. Must
have inquiry notice and make inquiry if suspected bad title.
c. Good faith purchaser must actually purchase and give something in
exchange.
XIII. Recording Acts
A. Recordation = leaves disputes over title to be resovled ex post once they arise.
Only makes copies public. Such ex-post litigation in form of quiet title can be in
rem
B. Registration = resovles disputes about title x ante, confers rights in rem
C. Reasons for Recording Acts: uncertainty about good faith exists, and good faith
purchase can actually take away your property. So nemo dat is insufficient.
D. Types of notice: actual notice, constructive notice (deemed to know)
(presumption of notice), inquiry notice
E. Race Statute: first to write down in central office wins. Problem of people selling
property twice.
F. Having title is separate issue from suing for damages / legal claims.
G. Notice Statute: recording first is irrelevant if you had any type of notice. Operates
like Good Faith Purchaser Exception, except with a centralized office. Decreases
incentive to race, but increases Unceratinty about having notice again.
H. Combination statutes: subsequent buyer wins if write first and did not have notice
I. Nemo Dat and Good Faith Purchaser Requirement still operates in background
J. Statutes fit in one bucket: race statute, notice statute, or combination statute.
K. Uniform Real Property Electronic
Recording Act makes title searches
obsolete.
L. Numerus Clauses: cannot invent new forms of property
M. As search costs on electronic systems decrease, easier to create new forms of
property and deviate from numerous clauses.
N. Muggaas: Adverse Posessor (AP) always wins
1. Good Faith Purchaser vs. Adverse Posessor. Who wins depends on faith:
a. Good Faith: did not have notice. Decreases incentive to record. Doesnt
think shes AP.

b. Bad Faith: did have notice, AP increases race to record.

c. Objective Non-Permission: not invited. Again, only ppl in Bad Faith will
record, thosein Good Faith ill not record.
2. Quiet Title: I have been adversely possessing it and have quiet title to it.
3. Title Insurance: title company investgates and gives warranty that title search
is secure.
4. Winner: AP > Recroding Act.
5. After statute of limitations passes, no need to keep flag flying forever for
APer.
6. Land records convey certainty, unless theres AP in the past.
7. Title searches are insufficient b/c they do not catch APers.
8. AP creates new interest, outside of scope of nemo dat. This new interst is
equal to the interest givne in nemo dat; cant get what was not givne.
9. Recordation Summary
a. Uncertainty about who owns property motivates recordation
b. Certainty is difficult, even with recordation, marking and posesion
c. Institutional choice of acts passed by legislatrues, b/c need centralized
decision-making and funding
d. Functional questions like how do we know who owns? last forever, vs.
form questions like grantee index which can be solved easily by tech
e. Marketable Title Acts: only have to go back 30 years for certainty >
accuracy. Applies b/c of untraceable goods in the doctrine of accession.
f. Privately vs. publicy-administered systems
g. Title searches handled by the companies
XIV. Nuisance
A. As a tort, manages spillover between property owners
B. Does not address claims, but rather uses that are inconsistent with one another
C. Adams:
1. Complaints:
a. vibrations, noise and dust reduced home values, perhaps to zero.
b. Cracks in homes and loss of home value
c. Sleeplessness damages
d. Accumulating dust
2. Win on trespass claim, but not on nuisance claim. Easier to recover damages
for trespass b/c do not have to show sig harm. In this case, hard to show sig
harm of dust when compared to the livelihood of mine workers.
3. Mine can afford to apply damages as compensation for externalities. INjuction
would not afford compensation to home owners.
4. Cannot recover for nuisance by coming-to-the-nuisance.
5. Usually, trespass requires physical intrusion. Here, dust does not occupy land.
Trespass
Nuisance-Style Trespass
Nuisance
-tangible invasion
-no tangible invasion
-no invasion required (+)
required (+)
-strict liability / no harm
-no harm needed (+)
-significant harm must be
need to be shown b/c its
shown
presumed (+)

-reasonableness is not
-reasonable or unreasonable -acitivty must be
required (+)
(+)
unreasonable
6. Evolution of Nuisance-Style Trepass: most begin to require harm; some begin
to require unreasonable activity. So this category goes away.
7. Jury instructions: dust can affect, damage, or invade the property. NO harm
required, only tangible, appreciable invasion.
8. Putting together all the plusses of Nuisance and Trepass into Nuisance-Style
Trepass creates tensions of geographic restriction. Combining into nuisancestyle does not make sense b/c tensions will pull to either end. Yet, nuisance
and trespass are insufficient themselves, so regulations like zoning enters.
9. Nuisance-style trespass is concept in some jurisdictions. In those jurisdictions,
the requirement of tangible, appreciable invasion is relaxed.
10. Some conflicts are not solvable by property. What happens if mine goes away,
but the harm of dust does not?
XV. Coming to the Nuisance
A. Campbell: Brick-maker kills trees on neighbors land.
1. Coming-to-the-nuisance can lead to wasteful races. Courts consider timing,
good faith and absence of spite. Later overlaid with cost-benefit analysis and
sig harm requirement.
2. Brick-maker wins b/c : high cost in injunction; brick-making is valuable and
should be encouraged; minor damages.
3. Trees win b/c: nuisance is high cost; brick-making can be moved elsewhere as
opposed to mining; and trees did not come to nuisance b/c were unaware of
brick-making.
4. Assuming good faith, harm of moving breaks is high.
5. Coming to nuisance decreases injunction, increases damages.
6. Remedies
a. Injunction: not automatically granted
b. Prescription: continuous for long period of time
c. Damages: not appropriate here b/c harm is repeated to trees
d. Equitable Defense
(1) Latches: waited too long to complain
(2) Estoppel
e. Undue Hardship: assuming good faith, is harm to D extreme? Every case
seeking injunction must consider balance of hardship.
f. Personal tree nejoyments are not replaceable, but bricks are.
7. Lessons:
a. There is exclusive dominion, limited by sic utere tuo. Some jostling is
okay, but extreme damage is not.
b. Locality, referee determines if nuisance here.
c. Lawful trade: n/a b/c nuisance doctrine applies.
d. The Restatement balances harms in coming-to-the-nuisance.
B. Spur Industries: Spur must move or shut down, but Webb must indemnify with
damages b/c Webb came to the nuisance.
1. Injunction is satisified but is an extreme remdy.

XVI.
A.
B.
C.

D.

E.

F.

2. Injunctions are flexible, and can be more or less with reporting requirements,
offset with payments, etc.
Easements
AP is owner with right to exclude.
Easement: only owner of property right of easement = property right to use, not to
exclude. There is still the original owner of the underlying property, so courts are
unwilling to give easements.
Baseball Publishing Co.
1. License = waiver of right to exclude. Reovocable at will, limited by antidiscrimination. Ex: move theater granting guest license to come into movie
theater. Could then revoke and kick him out.
2. If sign is a lease, then can keep up. Unsure which part of wall is leased and
excludable.
3. If sign is a license, then revocable. Not a property right but rather a
forbearance. Timeframe is uncertain; license can be oral.
4. If sign is a easement, then is easement for an year with option to renew.
5. Court says sign is easement. Usualy requires deed, except when:
a. Prescription: using property against owner, adverse use
b. Specific performance: equitable remedy. Injunction to fulfill contract. P
doesnt want damages. Courts are concerned with fairness so issue
equitable remedy without deed.
Types of Easements
1. Easement appurtenant = belongs to another parcel of land
2. Easement in gross = belongs to grantee, not to land. INheritablea nd
transferable provided that grant was for commercial and not recreational
purpose.
3. Profit a prendre: right to enter on land of another to extract something of
value.
4. Affirmative Easement = permits easement holder to perform some affirmative
act.
5. Negative Easement = permits easement holder to demand that owner of
servient track desist fromcertain actions like blocking sunlight.
6. Private Easements = authorize specific parties to use land for designated
purposes
7. Public Easements = authorize general public to use land for designated
purposes
Limitations and Requirements of Easemnets
1. Hostile to easements in gross b/c hard to keep track
2. Cannot subdivide easements b/c use would be come more intensitve
3. Easements wrt land require deed as per statute of limitations
Warsaw v. Chicago Metallic Ceilings:
1. Prescriptive Easement = (i) open/notoroious, (ii) continuous, (iii) adverse, (iv)
uninterrupted for five years, (v) fixed and definite line. Does not require actual
use, does not require exclusivity, and length of time is shorter than AP.
a. Fixed and Definite Line: path used in easement is determined and cannot
infringe on underlying owners rights of land.

2. Holding: D wins and P cannot load trucks. D does not have to compensate P,
who must tear the building down. There is a prescriptive easement, so no
compensation required and building must e torn down.
3. Buildings were erected with full knowledge of Ps clalim.
4. Self help options of putting up signs and making easements permissible.
G. Fontainbleu: [Negative Easements]
1. Eden Roc hotel cast shadow on Fontainblues pool.
2. Ancient Lights Doctrine: no interference with light that existed for 20 years.
Negative Prescription Easement. Light had not hit Eden Roc for 20 years, only
1.
3. English Approach: 4 kinds of negative easements, one of which is light on
window. Can get by prescription.
4. American Approach: not limited to 4 kinds of easements, can get other types.
But none can be obtained by prescription, must be obtained by deed!
5. Eden Rocs claims of injury:
a. Irreparable injury. But cannot stand alone.
b. Spite wall. Not recognized b/c there are other benefits.
c. Violate of statute requiring 100 ft setback. No damages for Eden Roc
b/c violation does not hurt Eden Roc. Housing Authority, on the other
hand, can levy fines. Also no injunction b/c Fontainbleu had permit.
d. Violation of Eden Rocs negative easements. Fontainbleu did not give
easement deed to Edecn Roc, and in US there is no easement by
prescription, so no such easement exists in the U.S.
6. Sic Utereo tuo: need to show (1) some other additional hook like nuisance, or
need to show (2) extreme harm like spite fence.
7. Holding: Blocking sunlight is not a nuisance. If it was, then would
encourage wasteful races and preclude development.
8. Coase: if transaction costs are zero, then Fontainbleu would build elsewhere
or still build and compensate Eden Roc. But because there is bilateral
monopoly here, transaction costs are high.
9. Institutional Choice: Legislature cannot adjuciate in personam, but want to
minimize ligigattion costs.
H. Penn Bowling [Misuse of Easement]:
1. Dominant tract has easement, which Servient tract must allow.
2. A has easement, B brings claim of overuse. Proper use means only use on
dominant tract of land, as per brightline rule.
3. Brightline rule: method of determining overuse: use for other properties not
allowed! Holding: standard of reasonabless for overuse of easement.
a. Easements appurtenant for other parcels are not allowed.
b. When there is misuse, no forfeiture or abandonment of easement occurs.
Does not lose easement altogether. No injunction needed, only a mere
order to use easement properly. This order enjoins all use while A figures
out how to use easement properly, like remodeling.
I. Easements only work well when the world does nto change.
XVII. Zoning

A. Zoning vs.
1. Decision-maker is legislature.
2. Environmental law can also regulate.
B. Nuisance vs.
1. Decision-maker is courts.
2. Standards can be high; must show unreasonable harm and sig activity.
3. Not good for planning, so is an incomplete solution.
C. Easements.
1. Decision-maker is parties who give deeds to each other.
2. Prescriptve easement is treated as if there exists deal.
3. No reservations to third parties, so insufficient as a solution.
D. Euclid
1. U1 single family homes; all the way to U-7. Cumulative zoning.
2. Euclid is suited for industrial uses. Amber Realty wants to sell land to factory
owners. Without zoning restriction, can sell at high price. With zoning system,
can only sell U6 parcel and value of U3 and U2 drops.
3. Existing non-conforming uses can still say in isolated pieces within U1 and
U2; owners of such pieces will win monopoly windfall.
4. Ambler claims violation of due process (as a substantive, facial issue).
Whoever wins, wins against the entire statute.
5. Court says zoning system is reasonable b/c prevents apt buildings from
imposing externalities. Consequence: in future, more zoning will occur.
Future challenges should either emphasize discrimination effect, or bring suit
as an as-applied (non-facial) challenge.
E. Like custom, those who design zoning system may unduly benefit.
F. Illinois and Pennsylvania restrict zoning .Fed courts say zoning is okay and is
never a violation of due process.
G. Alternative exists to negotiate with zoning boards directly.
H. Zonging blocks transactions by limiting uses. But zoning also solves collective
action problem of many constituents and stakeholders.
I. Cumulative Zoning is more flexible than Non-Cumulative Zoning, but may result
in one mansion in factory zone.
J. Pros of Zoning: more and better development to align uses and minimize death
from pollution; reduces uncertainty.
K. Cons of Zoning: unfair to outsiders; unfair to exist users who do not conform; can
result in fines or required chnges.
L. Harbison [Eliminating Non-Conforming Uses]
1. City ordinace told Harbison to stop junkyard use of cooperages.
2. Extreme solutions: use must cease, or use can continue.
3. Nuisance claim fails b/c cooperate has existed for long time.
4. Options:
a. Eminent domain = compensation for taking. But expensive and relatively
friendly to owner.
b. Chosen Solution: Amoritization = grace period, after which use is
prohibited. No compsnation. Less costly, and so will result in higher use.

Can solve more problems, but outsiders are excluded from systemcreation.
c. Holding: court weighs loss to owner with reasonabless of amoritizatio
nperiod. Each decision is case-sepcific.
5. Economic cost of externalities from zoning: height restrictions in Washington
DC decreases supply of housing, increases price of housing, and prices out
poor people
6. Lessons of zoning: fairness /= economic args; motivation /= economic results,
abstract states /= concrete consequences
M. Mount Laurel:
1. Outlier case
2. IwH application: requiring air-conditioning prices out marginal consumers
3. Tiebout Hypothesis :ppl can sort themselves into different areas with different
packages of taxes and public goods; voting with feet
4. Facts: Mount Laurel only wanted to have U1region
5. PUDs: private urban devleopers .If developers let in children, they must by
statute pay childs school fees. Effect is to decrease children from coming in,
or pitch to rich families. Aim is to discriminate on income and amount of
social services provided.
6. Holding: cannot prohibit low-incoming housing b/c housing is basic right.
Must offer low-income housing and variety of housing and benefits that are
for welfare of people and not for benefit of local tax rate.
a. Limitation: can limit such providing of low-income houses if there is a
heavy enough burden, like unable to build tower where earthquake exists.
b. Adhereence to rule is based on measured effects, not on legislative intent
of Mount Laurel board.
XVIII. Eminent Domain and Takings
A. Requirements for Takings, as per 5th Amendment:
1. Taking of
2. Property for
3. Public use
4. With just compensation
B. Regulatory Takings Doctrine: government imposes restrictions such that you
cannot use your property
1. Ex: making your land U7 for green space is not per se taking
C. Pros of ED: solves holdout problems and assembly problems
D. Cons of ED: potential for discrimination and corruption / patronage; payment /=
sentimental value b/c courts are difficult institution to measure market value
E. Standard for Taking: if you take nearly all the value, then taking. Otherwise no
taking.
F. Standard for Just Compensation: market value . But this has the flaw of not
having actual value held by owner. This value also depends on actions by the
government, that could potentially decrease market value.
G. Public Use: Kelo

1. (Holding) Public use = some benefit to the public, not merely available to
public.
2. Deference to local government and their meetings and reports.
3. Like the Business Judgement Rule, as long as local governments follow
procedures, then okay.
4. Kelo loses, ED and Pzifer wins. Yes ,there is public use.
Professor Writings:
This distinction between harm rules and power rules is by no
means
absolute.10 Which category a rule falls into depends on societal
perceptions
of harm, and thus can vary between societies and within a single
society over time. A prohibition on sexual relations between a
more powerful
person and less powerful one (an adult and a teenager, a guard
and
a prisoner, a teacher and a student, an officer and a subordinate)
might
be characterized as a prohibition on per se harmful conduct or as
a prohibition
on the powerful obtaining a new sphere of power over the
vulnerable.
Is trespass a per se harmful act or rather an act that is not
intrinsically
harmful but that often leads to harms, such as damage to
property?11 Either interpretation is plausible. In certain cases,
then, the
two categories contend with one another.12
12. To be clear: The distinction is not in effect,
because both kinds of rules can
prevent harm and can alter power and vulnerability; nor is the
distinction in public
justification, because both are supported, at least in contemporary
liberal democracies,
with appeals to the ultimate prevention of harm. Rather, the
distinction lies in whether
the act (or condition) being regulated is perceived to be per se
harmful (examples of harm
rules include prohibitions on assault, rape, securities fraud, race
discrimination,
intentional infliction of emotional distress). One reason the
distinction is not absolute is
the nebulousness of what constitutes harm. See 1 Joel Feinberg,
Harm to Others: The
Moral Limits of Criminal Law 3136 (1987) (The word harm is
both vague and
ambiguous . . . .); see also Bernard E. Harcourt, The Collapse of
the Harm Principle, 90 J.
Crim. L. & Criminology 109, 113 (1999) (Claims of harm have
become so pervasive that
the harm principle has become meaningless . . . .). This Essay
relies on ordinary usage of
the term in lieu of technical definition.
11. Cf. Thomas W. Merrill & Henry E. Smith, Property: Principles
and Policies 78
(2007) (considering why intentional trespass is a strict liability
tort). Another example is a
rule that an elected judge must be recused in a case involving a
major contributor. See
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 225657
(2009). Such a rule might be a
harm rule, if the harm is perceived to be the appearance of
impropriety, or a power rule, if
the harm is perceived to be actual bias.

Trespass can be per se harmful, or

lead to other harms like property
damage.
Intentional trespass can be strict
liability tort.

12. In addition to instances where the power/harm rule distinction

turns on the
characterization of the harm, there are four kinds of cases that
might be considered
intermediate: (1) The law regulates conduct that is not per se
harmful and yet the
probability of subsequent harm approaches 100% (e.g., a person
purchases large
quantities of a date rape drug); (2) the law regulates conduct that
is not per se harmful
and yet no further steps must be taken by the actor to inflict harm
(e.g., a person writes a
slanderous post on a blog that no one reads); (3) the law regulates
conduct that is
sometimes per se harmful and sometimes not and yet we cannot
be sure which one is the
case (e.g., a judge votes in a major contributors case, if the harm
is perceived as actual
bias); and (4) the law regulates conduct that is per se harmful but
does not do so primarily
to prevent the coincident harm but rather to prevent a subsequent
harm (e.g., a persons
use of fighting words).
Discounting is also inadequate
for uncertainty about property rights because of how uncertainty
undermines the rationales
for having property rules in the first place (such as encouraging
efficient investment
and information gathering by property owners).
In being effectively dichotomous, areas of status resemble
property law, and its closed
list of standard forms, rather than contract law, with its almost
unlimited customizability
One important reason to allow preventive adjudication is to avoid
giving litigants an
incentive to inflict harm in order to secure adjudication of their
disputes. See Thomas W. Merrill
and Henry E. Smith, Property: Principles and Policies 8 (Foundation
2007) (explaining the lack of
a harm requirement for an action for trespass to land).
Adjudicating chunky cases has a rough parallel in property law,
where many questions are answered
ex ante for the entire system rather than through a fine-grained
ex post balancing of
interests.
One advantage of resolving
chunky cases (either in preventive adjudication or through
property law rules) is that there are
fewer borderline cases that a party can manipulate by altering its
underlying behavior.

Rationale for property rules:

encouraging efficient investment and
information gathering by property
owners.

Property law is dichotomous: closed

list of standard forms. Contrast to
contract law, with its almost
unlimited customizability.
Lack of harm requirement for
trespass exists because must avoid
giving litigants incentive to inflict
harm in order to secure adjudication
of disputes.

Many property law questions are

answered ex ante for entire system,
rather than fine-grained ex post
balancing of intersts. The advangate
is fewer borderline cases to
manipulate through altering
behavior.

Numerus clausus (closed number

principle).

Clouded ownership = dispute over

right to standard form of property.

As Tom
Merrill and Henry Smith have shown, property law is marked by
the numerus clausus (the
number is closed) principle: it offers a closed list of standardized
forms instead of free customization.
Ownership is
clouded when one person has possession of private property
(land, art,
trademarks, and so on) and has been thought to have a right in
one of the
standard forms of property specified by the legal system,134 but
someone

Information-development reason is
advantage of using property rules to
protect entitlements. Uncertainty
undermines these rationales.

else now disputes that persons claim to the property right.

Clouded-ownership cases resist discounting because of how
uncertainty
affects the policy rationales for having property rules rather
than liability rules.135 Among the reasons for property rules are
(1) encouraging
efficient investment136 and (2) encouraging property owners
to develop and disseminate information about their property.137
The investment reason is familiar. The information-development
reason
has also become important in property scholarship; Henry Smith
identified
it as a key advantage that helps explain the frequent use of
property rules to protect entitlements.138
These policy reasons are undermined, however, when there is
uncertainty
about property rights.139 Stewart Sterk has recently described
how uncertainty about property rights can create inefficiently high
search costs.140 I have in mind not the way uncertainty increases
search
costs (an increase that might offset the ordinary justifications for
property rules), but rather the way uncertainty undermines the
rationales
that justify property rules in the first place. Uncertainty
undermines
investment and information development; and for these problems,
discounting is an inadequate response.
Consider a concrete example in which, for simplicity, I will treat
Knightian uncertainty about property rights as if it were risk.141 A
person
possesses and appears to hold in fee simple a parcel of land. (This
person is the probable owner.) Another person produces a deed
that indicates a heretofore unknown conveyance in the past. The
deed
is probably fraudulent; nevertheless it puts a cloud on the
probable
owners title.142 (The person producing the deed is the lowprobability
owner.) By stipulation, there is a 90 percent chance that a court
would find the deed fraudulent. If, however, the court were to find
the
deed legitimate, the low-probability owner would have superior
title. Therefore, in order to sell the land, the probable owner will
have to
lower the price, because buyers will discount for the possibility of
not
receiving good title.
Here discounting seems to work: everyone discounts the probable
owners claim to title because of the risk of a probably fraudulent
deed. And yet relying on discounting is problematic, because of
how
the risk affects the incentives of the possible owners. Without
certainty,
their incentives to invest in the property are reduced. Any
significant
investment would be unlikely because the expected return must
be discounted for the possibility of non-ownership.143 This
disincentive
to invest would thus prevent the property from being put to its
most
efficient use. And without certainty, the benefit from developing
and
disseminating information about the property is also reduced.
Crucially, we should not assume that the reduction in the
advantages
of ownership (both individual and societal) is continuous with
the reduction in the probability of ownership. In other words, a
cloud
on title does not merely redistribute individual shares of the pie

Uncertainty decreases the probable

value of any title, so owners are
disincentived to invest.

Whole pie is made smaller by lack of

incentive to invest. Certainty bonus
from having undisputed title makes
everything bigger than the case with
uncertainity.

it
makes the pie smaller. This is so for three reasons, the first two of
which have not been recognized in the existing literature.
First, a small reduction in the probability of ownership is likely to
reduce the probable owners incentives to understand and
improve
the property without a corresponding increase in incentives for the
low-probability claimant. A person with a 90 percent chance of
ownership
is likely to reduce her investment in the property by at least
10 percent, but the low-probability owner is unlikely to make small
investments that make up the difference between the probable
owners
investment under the certainty and uncertainty conditions. We
can
describe this as a certainty bonus from having undisputed title:
an
additional increment in the likelihood of gaining title, especially
one
that is relatively close to zero (for example, the move from a 4
percent
chance to a 5 percent chance), is not as valuable as the last
increment
(for example, the move from 99 percent to 100 percent).
Second, even if the low-probability owner did make investments
in the disputed property that corresponded to the probable
owners
reduction in investment, there would be a coordination problem.
This
is an understatement, given the animosity that often accompanies
title disputes.144 One example is the case of the neighbor with
intemperate signs. See note 142. The animosity
that can exist in title disputes is a major reason why Coasean
bargaining is not an adequate
substitute for preventive adjudication. Consider Ward Farnsworth,
Do Parties to Nuisance
Cases Bargain after Judgment? A Glimpse Inside the Cathedral, 66
U Chi L Rev 373, 421 (1999)
(finding animosity between parties and an absence of bargaining
after nuisance judgments).
Farnsworth includes this illuminating quotation from the defense
attorney in a nuisance case:
[M]ost property line disputes that I have ever been involved in
[were] a result of animosity
between the parties involved. It doesnt seem to matter whether
those parties are family members
or strangers but the property line dispute solidified their feelings
of dislike and/or hatred of
the other party. Id at 42930. An investment of $100 by one
owner is likely to be more
effective than an investment of $90 by a probable owner and $10
by a
low-probability owner, since the expenditure by the low-probability
owner is likely to be duplicative. Clouded ownership thus reduces
the
return on the possible owners uncoordinated investments. (And
legal
rules can exacerbate the problem if they penalize high-probability
owners for cooperating with low-probability ones.)
Third, uncertainty over ownership may cause the claimants to
increase
their expenditures on inefficient self-help. As a general matter,
self-help is often not the most efficient way to protect an owners
investments.
145 Self-help is even more costly in a clouded-ownership scenario,
because of how it interacts with the coordination problem just
described. If one claimant engages in extralegal self-help, her
efforts can
drive down even further the return on the uncoordinated

Also, alternate investment by lowproperty owner is likely to be

duplicative and not additive.

Self help = expenditures to prevent

others from using, not from using the
property efficiently and to develop
and disseminate information.

investments
in the property. To vary an example given by Henry Smith,146
imagine a
locked gate on an access road. Rival claimants can even make the
property
practically unusable for each otherimagine two locked gates on
an access road, each installed by a different claimant.147
By causing these three problems, uncertainty about ownership
thwarts the ordinary function of property rulesencouraging
owners
to make efficient investments and to develop and disseminate
information.
148 And all three problems are impervious to discounting. But