Property Reeves

1. Property
1.1. Characteristics of Property Ownership
1.1.1. Right to use
1.1.2. Right to exclude
1.1.3. Right to transfer
1.1.4. Right to devise
1.1.5. Right to Immunity to Exploration
1.1.6. Right to Immunity to Danger
1.2. Property law-gives owners the power to control things by placing duties
on non-owners
1.3. Property rights: concern relations among people regarding control of
valued resources
1.3.1. Includes both rights to exclude and privileges to use
1.3.2. Not absolute: property rights are limited to ensure that property use and ownership
do not unreasonably harm the legitimate, legally protected personal or property interests of
others
1.3.2.1. What does ownership mean?
1.3.2.1.1. You can transfer it
1.3.2.1.2. Exclude others from it (there may be limits to this)
1.3.2.1.3. Protected against expropriation
1.3.2.1.4. Can use it in whichever way you see fit (must be lawful)
1.3.2.1.5. Can alter it
1.4. Remedies
1.4.1. 1. Punitive damages- Damages which are allowed as an
enhancement of compensatory damages because of the wanton,
reckless, malicious, or oppressive character of the acts of which the
plaintiff complains. Damages awarded to punish the defendant for a
willful act and to vindicate the rights of a party in substitution for
personal revenge, thus safeguarding the public peace.
1.4.2. 2. Compensatory damages- The damages recoverable in
satisfaction of, or in recompense for, loss or injury sustained,
including all damages except nominal damages, punitive, or
exemplary damages. Damages awarded not only as a recompense
for actual injury to the person or property, including expenses, loss
of time, bodily suffering, etc., occasioned by the defendant's
wrongful act, but also such additional sum as in the opinion of the
jury is warranted by the circumstances of contumely, anguish or
oppression, including mental suffering and wounded sensibilities.
1.4.3. 3. Nominal damages-An award to which the plaintiff is
entitled, although he gives no evidence of any particular amount of
loss, because the law infers damage from the breach of an
agreement or the invasion of a right. Damages recoverable where a
legal right is to be vindicated against an invasion that has produced
no actual present loss of any kind or where, from the nature of the
case, some compensable injury has been shown but the amount of
that injury has not been proved.
1.5. First Possession
1.5.1. Rule of Discovery-First possession equals ownership
 1.5.1.1. Unless Indian, the only the right to occupancy
1.5.1.1.1. Right to Occupancy- rights to use, but not to transfer title of land; I
can transfer/revoke use rights
1.5.2. RULE OF CAPTURE-Intent to Possess and Act of Possession
1.5.2.1. INTENT TO POSSESS-
1.5.2.1.1. Pursuer manifests unequivocal intention of appropriating the animal
to his individual use.
1.5.2.2. ACT OF POSSESSION
1.5.2.2.1. Deprived animal of his natural liberty, and brought him w/in his
certain control.
1.5.3. CASES
1.5.3.1. Rule of Discovery
1.5.3.1.1. Johnson v. M’Intosh (98-108)-.
1.5.3.1.1.1. Plaintiffs not known but lessor plaintiffs filed
motion for ejectment (only the tenant could file the ejectment so
Johnson & Graham are the interested parties). Johnson/Graham
received land from will of Thomas Johnson who was a party to a
purchase of the land from the Piankeshaw Indians. William
M’Intosh was granted the land by the US government after the
declaration of independence. It was determined that the Indians
were not the first possessors by definition, the US was the owner
and therefore legally transferred the land to M’Intosh
1.5.3.1.1.2. Justice Marshall applied discovery principle
1.5.3.1.1.2.1. Discovery does not apply to Indians who only
have “rgt of occupancy”
1.5.3.1.1.2.2. Non-Indians only have “sovereign title” until
purchase from Indians or taken by conquest, however when
you purchase from Indians you only purchase their “rgt of
occupancy, b/c the govt gained “title” by conquest/discovery.
1.5.3.1.1.2.2.1. *Ownership goes to the 1st possessor*
1.5.3.1.1.3. . In order for an ejectment, plaintiff must show
that he
1.5.3.1.1.3.1. 1) had ownership (title)
1.5.3.1.1.3.2. 2) was wrongfully disposed, and
1.5.3.1.1.3.3. 3) suffered damages
1.5.3.2. Rule of Capture
1.5.3.2.1. Pierson v. Post (152-156)
1.5.3.2.1.1. Trespass on the Case-Action to recover damages for
injuries resulting as an indirect consequence of a wrongful act of
another a. P was chasing a fox on open land and D killed it and
took it away before P was able to do so.
1.5.3.2.1.1.1. Pursuit of property alone vests no right to
said property.
1.5.3.2.1.1.2. Only the actual or imminent possession
grants the property right.
1.5.3.2.2. Popov v. Hayashi (156-158)
1.5.3.2.2.1. Popov almost caught a valuable baseball but was
 thrown to the ground during his attempt to gain control of the ball
in his glove. Ball was then recovered by Hayashi
1.5.3.2.2.1.1. Where more than one party has a valid claim
to a single piece of property, the could will recognize an
undivided interest in the property in proportion to the
strength of the claim
1.5.3.2.2.1.2. Where one undertakes significant but
incomplete steps to achieve possession and the effort is
interrupted by the unlawful acts of others, the actor has a
pre-possessory interest in the property. The pre-possessory
interest constitutes a qualified right to possession which can
support a cause of action for conversion
1.5.3.2.2.1.3. Grey's rule- (definition of possession) actor
must retain control of the ball after incidental contact w/
people and things- must establish that you would have
retained control of the ball after momentum ceased and
after any incidental contact w/ people/objects
1.5.3.2.3. Elliff v. Texon Drilling Co. (160-164)
1.5.3.2.3.1. Facts: Texon drilled for oil in a plot near Elliff (they
shared a common pool of gas). Texon accidentally blew out a well,
destroying one of Elliff’s wells and causing much gas and oil to
leak into air and become wasted.
1.5.3.2.3.2. LAW OF CAPTURE applied:
1.5.3.2.3.2.1. Pros
1.5.3.2.3.2.1.1. Utility: reward those who take the incentive
to pump the oil (much more expensive investment in Elliff
than in Pierson), encourage competition, pumping out oil
allows others to use it
1.5.3.2.3.2.1.2. Administrability: such a rule would be
clear-whoever pumps it, owns it; otherwise difficult to tell
where exactly the oil was lying and who had exactly how
much of it prior to pumping
1.5.3.2.3.2.2. Cons
1.5.3.2.3.2.2.1. Foxes move of their own volition, oil moves
after human intervention
1.5.3.2.3.2.2.2. Everyone would pump the oil out as fast as
they can-could be counterproductive: encourage
accidents, leaving us with less oil
1.5.3.2.3.2.2.3. We don't just want to get the oil out of the
ground, but to put it to work too
1.5.3.3. Acquisition by Creation
1.5.3.3.1. Rule of labor
1.5.3.3.1.1. (Locke) - expend labor in property, should get rewards Quasi-
property right (labor/property)
1.5.3.3.1.2. News matter cannot be copyrighted, news articles
possess literary qualities and are subject to literary property at
common law, but the information itself is not the creation of the
 writer
1.5.3.3.2. INS v. AP (131-141)
1.5.3.3.2.1. News matter is stock in trade, to be gathered at the
cost of enterprise, organization, skill, labor, and money. For this
reason news matter must be regarded as QUASI-PROPERTY
1.5.3.3.2.1.1. Quasi Property rights
1.5.3.3.2.1.1.1. common property w/ respect to public (no
property rights)
1.5.3.3.2.1.1.2. temporal nature of news.
1.5.3.3.2.1.1.3. private property w/ respect to competitors
(extend property rights in news to individuals, i.e. INS)
1.5.3.3.2.2. *No rights against public in regard to property of
news matter
1.5.3.3.2.3. *Rights against other businesses in regard to
property of news matter
1.5.3.3.2.3.1. amounts to unauthorized interference w/ the
normal operation of a legitimate business precisely at the point
where profit is to be reaped
1.5.3.3.3. Moore v. Regents (231-239)
1.5.3.3.3.1. -Conflicting policy goals: patient rights vs. socially beneficial
behavior.
1.5.3.3.3.2. Doctors made patient's cells hold possessory rights over his
genetic material after they had been extracted. patient does not hold
possessory rights.
1.5.3.3.3.3. Utilitarian theory: (like Brandeis) - result will create
disincentives for research & socially useful activity; promote free mkt;
decision for legis. patient could have obtained rights via patent.
1.5.3.4. Subsequent Possession
1.5.3.4.1. CASES
1.5.3.4.1.1. Armory v. Delamirie (handout)
1.5.3.4.1.1.1. Finders of lost or mislaid property do not
acquire title against true owner, but generally prevails
against all other third parties
1.5.3.4.1.1.2. Finders of abandoned property do acquire
title
1.5.3.4.1.2. Wilcox v. Stroup (168-171)
1.5.3.4.1.2.1. civil war papers in dead mom's closet
1.5.3.4.1.2.1.1. Gourdin v. Theus- possession alone is prima
facie evidence of good title
1.5.3.4.1.2.1.2. Where neither party can establish title by a
preponderance of the evidence, ownership is determined
by who is the possessor
1.5.3.4.1.2.2. Possession is 9/10 the law
1.5.3.4.1.3. Actual v. Constructive Possession
1.5.3.4.1.3.1. constructive - don't have direct control/actual
presence on property, but have conscious intent to have
control/presence on property.
1.5.3.4.1.3.2. actual - actually have rel. w/land to have intent to
 possess land; have immediate physical/direct control over
property
1.5.3.4.1.4. Charrier v. Bell (171-175)
1.5.3.4.1.4.1. P knew he was on property w/o consent of
owner, was possible acting out of his own negligence
1.5.3.4.1.4.2. res derelictae- things voluntarily abandoned by
their owner with the intention to have them go to the first
person taking possession
1.5.3.4.1.4.2.1. intent to abandon res derelictae MUST
include the intent to let the first person who comes along to
acquire them
1.5.3.4.1.4.2.1.1. This is not the case w/ burial goods
1.5.3.4.1.4.3. Unjust enrichment on basis of an actio
de in rem verso
1.5.3.4.1.4.3.1. 1 there must be an unjust enrichment
1.5.3.4.1.4.3.2. 2 there must be an impoverishment
1.5.3.4.1.4.3.3. 3 there must be a connection between the
enrichment and resulting impoverishment
1.5.3.4.1.4.3.4. 4 there must be an absence of justification or
cause for the enrichment and impoverishment
1.5.3.4.1.4.3.5. 5 there must be no other remedy at law
available to P
1.5.3.4.1.4.4. Lost, mislaid, and abandoned property
1.5.3.4.1.4.4.1. lost- when owner accidentally misplaces
property
1.5.3.4.1.4.4.2. mislaid- owner intentionally left property
somewhere then forgot where it was put
1.5.3.4.1.4.4.3. abandoned- owner forms intent to
relinquish all rights in the property
1.5.3.4.1.5. Tapscott v. Lessee of Cobb (177-180)
1.5.3.4.1.5.1. Mrs. Lewis bought land from Rives, one of a
grp of executors. She paid him but he never passed this on to
the other executors, so she never got title. She died living on
the land. Tapscott moved onto it. Mrs. Lewis's heirs sue in
ejectment.)
1.5.3.4.1.5.1.1. Superior title prevails with the absents of
the true owner
1.5.3.5. Adverse Possession
1.5.3.5.1. Allows a nonowner to acquire full ownership rights in real property
if the nonowner "possesses" property without permission by the "true" owner
(meaning the formal title holder) in a visible manner for a period of time
established by the statute.
1.5.3.5.1.1. -Original owner has a statute of limitations to eject someone
from their land.
1.5.3.5.1.2. Elements
1.5.3.5.1.2.1. Open and Notorious
1.5.3.5.1.2.1.1. Reasonable owner would be put on notice
 that someone was on the land.
1.5.3.5.1.2.1.2. Enclosing land by a fence or wall is
universally recognized as being sufficiently open and
notorious. See Brown v. Gobble.
1.5.3.5.1.2.2. Exclusive.
1.5.3.5.1.2.2.1. The use is of the type that would be
expected of true owner.
1.5.3.5.1.2.2.2. Adverse possessor cannot share possession
with the true owner.
1.5.3.5.1.2.2.3. Two adverse possessors who possess a
property jointly may acquire it as co-owners.
1.5.3.5.1.2.3. Continuous.
1.5.3.5.1.2.3.1. Depends on the type of property. In some
property, such as rural ones, seasonal use is okay if it is
consistent with what an average owner would do. See
Nome 2000.
1.5.3.5.1.2.3.2. Tacking Doctrine.
1.5.3.5.1.2.3.2.1. Allows the addition of previous
possessors’ time if the previous possessor conveyed the
property to the new possessor. See Brown v. Gobble.
1.5.3.5.1.2.4. Adverse/Hostile.
1.5.3.5.1.2.4.1. Objective test: possession without the
permission of true owner.
1.5.3.5.1.2.4.2. Courts presumes non-permissive use.
Owner has the burden of proof to show permission.
1.5.3.5.1.2.5. For statutory period
1.5.3.5.1.2.5.1. Depends on state. E.g., MA statutory period
is 40 years, CA is only 5 years.
1.5.3.5.2. 1. Common law
1.5.3.5.3. 2. Actual possession(must be physically present
on the land)
1.5.3.5.4. 3. Open and notorious(must be visible) only
owners who are negligent are going to lose their land
1.5.3.5.5. 4. Exclusive(act like a owner, can use the idea of
excluding others)
1.5.3.5.6. 5. Continuous (must live there continuously, or
use it like a true owner would)
1.5.3.5.7. 6. Adverse or hostile for the
1.5.3.5.7.1. a. Statutory period(be there against owners
will)
1.5.3.5.8. Nome 2000 v. Fagerstrom (289-294)
1.5.3.5.8.1. Fagerstrom’s family was seasonably using land
belonging to Nome since 1944; on the north end of the property,
the Fagerstroms built a picnic area, camper trailer, reindeer
shelter, camper trailer, reindeer shelter, were present every other
weekend for a number of years, and drove off others from land
who were burning firewood, and allowed others to use paths and
 berry pick. Only activities on southern part were activities
included use of pre-existing trails in connection with picking up
litter and recreational activities.
1.5.3.5.8.1.1. Conditions for adverse possession are met if
continuous, notorious, and exclusive. The land must only be
used for the statutory period as an average owner of similar
property would use it (seasonal use is okay). The court looks
at objective manifestations of intent to own/possess the land
rather than subjective intent
1.5.3.5.9. Romero v. Garcia (287-289)
1.5.3.5.9.1. Plaintiff (Romero) and her deceased husband
purchased 13 acres of land from Garcia and used it for over 12
years. Romero then moved away, and hasn’t been back on the
property long enough to meet the ordinary statute of limitations
for adverse possession. Instead, she used color of title; she didn’t
have actual title because her deed did not contain one of the
necessary signatures.
1.5.3.5.9.1.1. A deed without all the requisite signatures is
nonetheless sufficient for color of title. The deed adequately
described the property granted, and together with subsequent
acts of the defendant and her deceased husband, sufficiently
ascertained the boundaries of the land that was adversely
possessed.
1.5.3.5.9.1.1.1. The statute of limitations is shorter b/c
courts are more eager to validate claims under color of
title; they don’t want to harm people’s confidence in
transactions that appear to be valid.
1.5.3.5.10. Brown v. Gobble (281-287)
1.5.3.5.10.1. Land in dispute is a two-foot-wide strip of land that
has been enclosed since 1937 by a fence inside the defendants’
(Gobbles’) property. The Gobbles purchased the property in
1985, and their deed appeared to sell them the 2-foot strip. The
Browns bought their property in 1989 and discovered the problem,
but did nothing until filing suit in 1994.
1.5.3.5.10.1.1. The strip belongs to the Gobbles. Although the
Gobbles had argued that it belonged to them b/c of their averse
possession for 9 years plus the previous owners’ adverse
possession (through tacking doctrine), adding up to more than
the 10-yr. statute of limitations period, this is incorrect. Title
actually passed to the Blevins automatically in 1947, after the
Blevins had satisfied the conditions of adverse possession for
10 years, so they actually sold the strip to the Fletchers, who
sold it to the Gobbles.
1.5.3.5.10.1.2. The court is validating everyone’s expectations
going back to 1937, except possibly the expectations of the
Browns, who were in any case put on notice by the position of
the fence and should have investigated further.
1.6. Trespass/Public Access
1.6.1. ELEMENTS
1.6.2. Unprivileged
1.6.3. Intentional
1.6.4. Intrusion
1.6.5. On property possessed by another
1.6.6. CASES
1.6.6.1. RIGHT TO EXCLUDE
1.6.6.1.1. Common law access
1.6.6.1.1.1. i Often thought of as an absolute right, a keystone right attached
to ownership
1.6.6.1.1.2. ii. When talking about land, an unconsented intrusion is a
trespass
1.6.6.1.1.2.1. 1. Such an intrusion has to have some kind of
physical palpability, so courts normally haven’t applied it to smoke
or noise (can fall under nuisance instead)
1.6.6.1.1.2.2. 2. But can be underground, above ground to some
reasonable (undefined) height
1.6.6.1.1.2.3. 3. Don’t have to show any damage for trespass to
real property, but do have to for trespass to chattels (Intel)
1.6.6.1.1.3. iii. Can conflict with other private or public rights that we think
are important
1.6.6.1.1.3.1. 1. For some conflicts, both courts and legislatures
have been willing to compare the rights and balance the competing
interests; sometimes they have limited the rights to exclude
1.6.6.1.1.4. iv. Where there’s a constitutional issue, figure out if it’s a state
or federal one
1.6.6.1.1.5. Right to exclude
1.6.6.1.1.5.1. Property open to the public
1.6.6.1.1.5.1.1. Mas- Innkeepers and common carriers must provide
reasonable public access
1.6.6.1.1.5.1.2. all business open to public must provide reasonable
public access
1.6.6.1.1.5.1.3. know the 14th amendment to the right to exclude
1.6.6.1.1.6. State v. Shack (NJ 1971)
1.6.6.1.1.6.1. 1. Facts: Shack, a staff attorney, and Tejeras, a field
worker, both from government-funded farm workers organizations
went on farmer Tedesco’s land to find and aid specific migrant
workers who lived there. Tedesco refused to let them speak to the
workers without his supervision.
1.6.6.1.1.6.2. 2. Shack’s arguments for access:
1.6.6.1.1.6.2.1. a. Human dignity
1.6.6.1.1.6.2.2. b. Unequal bargaining power
1.6.6.1.1.6.3. 3. Tedesco’s arguments for right to exclude:
1.6.6.1.1.6.3.1. a. General rule: private property owners
(businesses and individuals) can exclude arbitrarily
1.6.6.1.1.6.3.2. b. Security: his own and his employees’
1.6.6.1.1.6.3.3. c. Economic uses: right to farm without
interference
1.6.6.1.1.6.3.4. d. Autonomy: being able to control what
happens on your property
 1.6.6.1.1.6.4. 4. Ct says Ds did not commit a trespass:
1.6.6.1.1.6.4.1. A. PROPERTY OWNERS MUST EXCLUDE REASONABLY
1.6.6.1.1.6.4.1.1. i.“Real property rights are not absolute;
necessity, private or public, may justify entry upon lands
of another”-property ownership did not include the right
to bar access of government service providers
1.6.6.1.1.6.4.1.2. ii.“Human Dignity under Property
Rights”- TITLE TO REAL PROPERTY CANNOT INCLUDE DOMINION
OVER THE DESTINIES OF REAL PERSONS ON THE PROPERTY
1.6.6.1.1.6.4.2. 1. Here it is access to health care and
legal services for an impoverished and unorganized minority
1.6.6.1.1.6.4.3. 2. These are private issues that migrant workers
should not have to discuss in front of their landlord
1.6.6.1.1.6.4.4. b. This right is inalienable-what does this mean
and why does the court hold this way?
1.6.6.1.1.6.5. 5. Was court the right institution to make this law?
1.6.6.1.1.6.5.1. a. The political process to get the legislature to
step in might not work for an isolated, unorganized group that
won’t be able to put pressure on the legislature
1.6.6.1.1.6.6. 6. What if migrant worker wants to invite his sister
to stay there? What are the farmer’s rights?
1.6.6.1.1.6.6.1. a. Need more facts: how long is she staying?
Etc.
1.6.6.1.1.6.6.2. b. Farmer has an interest in maintaining control
over what happens on his land, getting rent from people staying
there
1.6.6.1.1.6.6.3. c. Migrant worker can argue that he has a right
to associate with family members
1.6.6.1.1.6.7. 7.This ruling only applies to NJ; NOT a general rule
because NJ court decided to rule for Ds based on NJ common law,
not a Constitutional question (because SC may not have ruled for Ds)
1.6.6.2. Jacque v. Steenberg Homes (28-31)
1.6.6.2.1. Despite adamant protests by the property owners, a
trespasser plowed a path through their snow-covered field and
delivered a mobile home to the property owners' neighbor. In
their intentional trespass action, they were awarded $ 1.00 in
nominal damages and $ 100,000 in punitive damages. The
trespasser contended that judicial precedent precluded the
punitive damage award. The court held that when nominal
damages were awarded for an intentional trespass to land,
punitive damages may be awarded in the discretion of the jury.
Because the property owners' legal right to exclude all others
from their land was involved, the court noted that the law
recognized that actual harm occurred in every trespass. In the
case of intentional trespass to land, the nominal damage award
represented the recognition that actual harm had occurred. The
decision, which carved an exception to precedent, applied to the
trespasser as a reward to the property owners who persevered
in attacking an unsound rule. The court also held that the
 amount of punitive damages was not excessive because the
trespasser's conduct was egregious and deceitful.
1.6.6.3. Desnick v. American Broadcasting Co., Inc. (8-12)
1.6.6.3.1. Facts: ABC Primetime promised Dr. Desnick “fair and balanced”
coverage for a cataract special. ABC sent people to his office for
appointments, but equipped with hidden cameras, unbeknownst to Desnick.
Resulting episode bashed Desnick’s practice, using footage from the hidden
cameras. Desnick sued for trespass, invasion of privacy, violation of
electronic surveillance laws, fraud to gain access.
1.6.6.3.1.1. Desnick’s trespass arguments:
1.6.6.3.1.1.1. a. Unprivileged
1.6.6.3.1.1.2. b. Intentional
1.6.6.3.1.1.3. c. Intrusion
1.6.6.3.1.1.4. d. On property possessed by another
1.6.6.3.2. 3. Policy question: are we more concerned about trespasser’s
intent or the possessor’s? Trespasser’s intent because public policy is more
important here
1.7. Nuisance
1.7.1. Nuisance
1.7.1.1. Essentially, the ‘right thing in the wrong place’ - the pig in the
parlor rather than the barn.
1.7.1.2. Traditional Elements of Nuisance
1.7.1.2.1. Actual Harm - the plaintiff experiences some type of harm,
such as serious discomfort or inconvenience (lack of sleep, high stress,
etc.)
1.7.1.2.1.1. Note that most courts do not consider an aesthetic harm to be a
valid to establish a nuisance
1.7.1.2.2. Inappropriate Use - the nuisance is unreasonable and
inappropriate for the area.
1.7.1.2.2.1. Note violation of a regulation is strong evidence of
inappropriate use (Some would make it a optional fourth element)
1.7.1.2.3. Plaintiff is present first - the plaintiff was on the land before
the nuisance (because nuisance law is designed to protect
expectations)
1.7.1.2.3.1. There are rare exceptions, as when plaintiffs and defendant
expand into each other (Spur Industries, where city and feedlot grew into
each other). The court there forced the nuisance to move, but required
plaintiff to pay moving costs because the defendant did nothing wrong
and the only reason for the move was concern for public health.
1.7.1.2.3.2. These cases are exceptions; normally, moving into a nuisance is
a defense for the defendant.
1.7.1.3. Approaches to nuisance law
1.7.1.3.1. Bentham - Bentham promoted the idea of property law
protecting expectation. This is the most common approach to
nuisance doctrine (it is largely the basis for traditional rules).
1.7.1.3.1.1. A Bentham analysis:
1.7.1.3.1.1.1. The elements of nuisance establish a right that the plaintiff has
against the defendant.
1.7.1.3.1.1.2. The defendant’s case determines if the remedy will be injunction
 or money damages (and the amount thereof).
1.7.1.3.1.2. The decision as to injunction or damages is based on the
“economic proportionality” test (Boomer)
1.7.1.3.1.2.1. If there is a wide disparity between the economic benefits of the
nuisance and its costs, the remedy should be an injunction.
1.7.1.3.1.2.2. If the disparity is not so wide, damages should be awarded.
1.7.1.3.1.2.3. The difficulty with this test is that it can be difficult to assign a
value to some harms (e.g., lost sleep, etc.)
1.7.1.3.2. State v. Shack - Court just lumps all the factors together and
decides if the social utility of the nuisance is outweighed by its harm;
it can make the defendant pay for any harm done if the utility of the
nuisance is higher. (The basic idea is that rights are limited to those
which further social goals).
1.7.1.3.3. Posner/Law and Economics - Nuisance doctrine allows same
results as private transaction if there were no transaction costs.
1.7.1.3.3.1. Nuisance often affects a community; the widely-spread nature of
the parties makes negotiating a solution nearly impossible. Thus,
nuisance doctrine exists to achieve results that private negotiations
could not.
1.7.1.3.3.1.1. Note this fails to explain the existence of nuisance doctrine that
applies to discrete parties (e.g., spite fences)
1.7.1.3.3.2. For instance, if the dispute only involved two parties, they could
negotiate the sale of an easement; this is practically impossible among a
community of victims.
1.7.1.4. Ellickson’s Chicago Law Review Article:
1.7.1.4.1. Ellickson criticizes the use of injunctions as a means of
controlling land use; he thinks damages should be used as a means of
forcing a party to pay the costs of his nuisance.
1.7.1.4.2. In this way, the lesser cost prevails - if damages are cheaper
than ending the nuisance, the party will pay. If not, the party will stop
the nuisance.
1.7.1.4.3. This concept is known as Coase Theorem (that the lesser cost /
greater gain will prevail, if all administrative costs are held at zero).
1.7.1.4.4. Criticism of Coase Theorem:
1.7.1.4.4.1. Administrative costs are never zero
1.7.1.4.4.2. It ignores inequality of resources (e.g., rich company vs.
relatively poor homeowners)
1.7.2. Airspace and Sunlight
1.7.2.1. Airspace
1.7.2.1.1. The key issue: how much airspace do you own? (How high
can you build?)
1.7.2.1.1.1. Traditional rule: to the furthest extent of the atmosphere.
1.7.2.1.1.2. Modern rule: as much as you can reasonably use or occupy.
1.7.2.1.1.2.1. Thus, a airport whose takeoffs and landings over a farm caused
chickens to die and the family to suffer was found to have trespassed on the
property via a nuisance. Court distinguishes between takeoff/landing area
and flight paths (U.S. v. Causby)
1.7.2.1.1.3. Smith’s Hypo: What if you own a hot air balloon that you use
regularly?
1.7.2.1.1.3.1. Under ‘reasonable use or occupy’ standard, you can exclude
 anyone at any height.
1.7.2.1.1.3.2. More likely solution: the FAA minimum lowest flight path.
1.7.2.2. Sunlight
1.7.2.2.1. The right to sunlight is not recognized under the doctrine of
covenants, so frequently the law of nuisance is invoked.
1.7.2.2.2. Theories on rights in sunlight
1.7.2.2.2.1. “Ancient Lights” - old English doctrine created a property right
based on a ‘lost grant’ of the right to sunlight (the grant was given at
time immemorial, but has merely been lost in the current writings, and
therefore still controls) (American courts nearly all reject).
1.7.2.2.2.1.1. Problem with this theory - if it operates as adverse possession, how
can such possession be ‘hostile’ or ‘open’?
1.7.2.2.2.2. Thus, modern view is to treat sunlight under the standard
nuisance doctrine, if at all
1.7.2.2.2.2.1. minority view - blocking sunlight can be a nuisance
1.7.2.2.2.2.2. majority view - no rights in sunlight (note this is a pro-
development view)
1.7.2.2.3. Question: if one of the goals of nuisance law is the protection
of reasonable expectations, and a hotel builds in an area that permits
high-rises, can the hotel reasonably expect that a high-rise might be
built near it that blocks the sun from its pool area?
1.7.3. CASES
1.7.3.1. Armstrong v. Francis Corp. (337-341)
1.7.3.1.1. Defendant development company built a subdivision on a tract
of land on which a natural stream existed. Defendant constructed a
drainage system that increased flow to the stream which intersected
plaintiffs' properties. The increased flow caused substantial erosion
and threatened the septic system on plaintiffs' land. The lower court
ordered defendant to build a pipeline to remedy the harmful effects of
the overflow. The court determined the reasonable use rule applied to
resolve whether defendant incurred liability for harmful interference
with the flow of surface waters. The court found the issue of
reasonable use to be a factual question. The court indicated weighing
utility of the possessor's land use with gravity of resulting harm is a
proper consideration. The court found the findings below amply
supported by competent evidence. Therefore, the judgment was
affirmed.
1.7.3.2. Noone v. Price (348-352)
1.7.3.2.1. The homeowners claimed that summary judgment was
improperly granted to the neighbors because although the trial court
correctly stated the rule of law, it applied it incorrectly to the
homeowners' situation. The court found that the lower court had
improperly awarded summary judgment because the homeowners
should have been allowed to prove that their land was sufficiently
strong in its natural state to support the weight of their house, and that
the deterioration of the retaining wall caused successive parts of the
hillside to subside until the ripple effect reached the foundation of their
house. The neighbors should therefore have been held liable for
negligence in removing the support required by their dwelling. The
court stated that, in order to recover, the homeowners had to prove
 that the disrepair of the retaining wall would have led ineluctably to the
subsidence of their land in its natural condition. If, on the other hand,
the land would not have subsided but for the weight of the house, then
the homeowners would recover nothing.
1.7.3.3. Friendswood Dev. Co. v. Smith-Southwest Industries
(357-364)
1.7.3.3.1. Plaintiffs, landowners, brought suit alleging that defendants'
withdrawal of underground waters from wells on defendants' lands
caused severe subsidence of plaintiffs' lands. The trial court granted
summary judgment for defendants. The appeals court reversed,
holding that plaintiffs stated a cause of action in nuisance and
negligence. The court reversed appellate court and affirmed judgment
of trial court. The court rejected American rule of reasonable use,
under which the right of a landowner to withdraw underground water
from his land was limited to amount necessary for reasonable use of
his land. The court applied English rule of absolute ownership, under
which a landowner had right to withdraw waters from his land without
liability for damage to neighbor's land in the absence of waste or
malice. The court acknowledged the harshness of the English rule,
but stated that stare decisis should be strictly followed in cases
involving established rules of property rights.
1.7.3.4. Page County Appliance Center v. Honeywell (370-373)
1.7.3.4.1. The appliance store filed a lawsuit for nuisance and tortious
interference with prospective business advantage against a
manufacturer and a vendor that provided electronic services to a
travel agency because one of the manufacturer's computers placed at
the travel agency generated interference with television sets displayed
for sale by the appliance store. A jury found for the appliance store
against the manufacturer and vendor on both theories, and awarded
compensatory and punitive damages. The trial court awarded an
indemnity judgment for the vendor against the manufacturer. The
court held that: (1) the motions for directed verdict should have been
granted because the appliance store did not introduce substantial
evidence of a purpose to injure or destroy the appliance store on the
claim of tortious interference with prospective business advantage; (2)
on the record, a jury issue was generated on the manufacturer's
liability for punitive damages, but not on the vendor's liability; (3) the
contract between the vendor and the manufacturer waived the
vendor's right to indemnity; and (4) the question of whether the
appliance store devoted its premises to an unusually sensitive use.
1.7.3.5. Fancher v. Fagella (373-376)
1.7.3.5.1. The owner claimed that the roots and branches of the
neighbor's tree had damaged the owner's property. He owner claimed
that he had tried self-help, but that it was ineffectual because of the
continuing expansion of the root system and branches. The trial court
found that injunctive relief was not available. The appellate court
found that the facts pleaded, if proved by owner, would have
constituted a continuing trespass, resulting in actual harm to his
property. The appellate court overruled the case relied by the trial
court, Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (Va. 1939). In
 weighing the equities in a case of this kind, the chancellor was
required to necessarily first consider whether the conditions existing
on the adjoining lands were such that it was reasonable to impose a
duty on a tree owner to protect an adjoining owner's land from
damage caused by the tree's intruding branches and roots. If such a
duty was found to exist on the part of the tree owner, the chancellor
was required to determine the extent of the remedy. If self-help was
inadequate as a permanent remedy, complete removal of the tree was
an available remedy when the equities were balanced.
1.7.3.6. Fontainebleau Hotel Corp. v. 4525, Inc. (384-386
1.7.3.7. Prah v. Maretti (403-409)
1.7.3.7.1. Plaintiff's residence had a solar system that included collectors
to supply energy for heat and hot water. Defendant purchased the lot
adjacent to plaintiff's lot and commenced planning home construction.
Plaintiff advised defendant that if home were built at proposed
location, defendant's house would substantially and adversely affect
plaintiff's solar system and could cause plaintiff other damage.
Nevertheless, defendant began construction. Plaintiff filed a complaint
and moved for a temporary injunction restraining and enjoining
defendant's proposed construction. The complaint stated that plaintiff
was entitled to unrestricted use of the sun and its solar power and
demanded judgment for injunctive relief and damages. The court
found that plaintiff had stated a common law private nuisance claim
upon which relief could be granted and reversed the trial court's ruling
of summary judgment.
1.8. Servitudes (Easements)
1.8.1. Easements
1.8.1.1. Easements Defined
1.8.1.1.1. An easement is a grant in the land itself (as opposed to a
promise) entitling its holder to use the land in some particular way.
Note both grantors and grantees in a conveyance can have an
easement.
1.8.1.1.1.1. The most common example is an easement across another’s land
for a road or driveway.
1.8.1.1.2. Affirmative v. Negative
1.8.1.1.2.1. Affirmative - Gives holder the right to go onto or do something
to the burdened land.
1.8.1.1.2.2. Negative - Give holder right to prevent a particular use of the
burdened land.
1.8.1.1.3. Appurtenant v. Gross
1.8.1.1.3.1. Easement in Appurtenant - an easement which is attached to the
tract of land itself (by far the most common type)
1.8.1.1.3.2. Easement in Gross - an easement which is attached to a person
for a particular use. These are typically utility easements, e.g., AT&T
has an easement to come on your land to repair the telephones (an
easement for the use of AT&T).
1.8.1.1.4. Easements distinguished from licenses.
1.8.1.1.4.1. If A gives B permission to use his land in a particular way, B
only has a license.
1.8.1.1.4.1.1. There is no writing (thus, the statute of frauds is not satisfied,
 though part performance may do so)
1.8.1.1.4.1.2. There is no right conveyed.
1.8.1.1.4.1.3. The license is revocable at will. (Subject to contract breach
action)
1.8.1.1.4.1.3.1. There are exceptions here; if grantee has
done substantial improvements, many courts will prevent
the grantor from revoking the license without at least
compensating for the improvements.
1.8.1.1.4.1.3.2. Criticism: doesn’t that discourage
neighborly behavior?
1.8.1.1.4.2. If B has the right to be on the land, it is an easement.
1.8.1.1.5. Easements distinguished from possessory estates.
1.8.1.1.5.1. Possessory estate cannot be lost by abandonment
1.8.1.1.5.2. Easement can be so lost. Typically need to show:
1.8.1.1.5.2.1. Intent to no longer use easement, and
1.8.1.1.5.2.2. Actual lack of use for a reasonably long period of time.
1.8.1.2. Types of Easements
1.8.1.2.1. Express Easements (Intentionally Created Easements)
1.8.1.2.1.1. This is an easement created on purpose
1.8.1.2.1.2. Note that courts sometimes presume creation of the largest estate
possible, and thus will often find an possessory estate rather than an
easement, and an easement rather than a license.
1.8.1.2.1.3. The “stranger to the deed” rule
1.8.1.2.1.3.1. Traditionally, a deed transfer could not reserve an easement to a 3rd
party to the transaction
1.8.1.2.1.3.2. Most modern courts, however, will permit such a transfer to occur.
Willard v. 1st Church of Christ
1.8.1.2.1.3.3. To avoid any confusion, it is best to first convey the easement to
the 3rd party, then convey the deed.
1.8.1.2.2. Implied Easements
1.8.1.2.2.1. Why Imply Easements?
1.8.1.2.2.1.1. Public policy favors keeping land both usable and alienable.
1.8.1.2.2.1.1.1. Criticism: aren’t these people adults? Why
give a party a windfall?
1.8.1.2.2.1.2. Easement is implicit in the purchase price (why would you buy
land you cannot use?)
1.8.1.2.2.2. Types of Implied Easements
1.8.1.2.2.2.1. Easement by Strict Necessity - Typically arises when a
‘landlocked’ parcel of land is conveyed; must show that an easement is the
only way to get to the land.
1.8.1.2.2.2.1.1. Elements:
1.8.1.2.2.2.1.1.1. No means of ingress/egress, and
1.8.1.2.2.2.1.1.2. Landowner shows a strict necessity, and
1.8.1.2.2.2.1.1.3. Constructive intent that landowner
would be able to get off of his land.
1.8.1.2.2.2.1.2. Note this suggests the public policy
rationale for implied easements.
1.8.1.2.2.2.2. Easement Implied by Prior Use (Quasi-Easement) - More
common type of easement.
1.8.1.2.2.2.2.1. Elements
1.8.1.2.2.2.2.1.1. Common ownership of both burdened
 and benefited land, with a subsequent dividing
conveyance.
1.8.1.2.2.2.2.1.2. Prior to severance, owner used burdened
land for the benefit of the benefited land.
1.8.1.2.2.2.2.1.3. Such prior use was obvious, continuous,
and permanent.
1.8.1.2.2.2.2.1.4. The easement claimed is reasonably
necessary for the enjoyment of the benefited land.
1.8.1.2.2.2.3. Prescriptive Easements
1.8.1.2.2.2.3.1. Operates in much the same way as adverse
possession (same elements).
1.8.1.2.2.2.3.1.1. Key differences: adverse possession is
statutory, while prescriptive easements are a common
law creation; adverse possession give title rather than a
mere easement.
1.8.1.2.2.2.3.2. Public can acquire this type of easement
since an accompanying conveyance is not required.
1.8.1.2.2.2.3.3. Courts do not like prescriptive easements.
Why?
1.8.1.2.2.2.3.3.1. It can surprise the landowner - he lets
people use his land and suddenly he can’t stop them!
(It discourages neighborliness)
1.8.1.2.2.2.3.3.2. The court will usually say the use was
not hostile (i.e., implying a license), or was not
exclusive (if the landowner still used the land).
1.8.1.2.2.2.3.4. Similar doctrines
1.8.1.2.2.2.3.4.1. Custom - English rule that permits
creation of easement by long and continuous use (from
“time immemorial”) by the public. Thornton
1.8.1.2.2.2.3.4.2. Implied dedication - Long term public
use of a type that shows an intent to dedicate. (Express
dedication also permitted, as when a subdivider
dedicates the streets for public use)
1.8.1.2.2.3. Rejection of Implied Scenic Easements
1.8.1.2.2.3.1. Modern courts mostly reject an implied scenic easement
1.8.1.2.2.3.2. It doesn’t come under the blanket of ‘necessity,’ nor does it meet
the requirements of prior use.
1.8.1.2.2.3.3. Prescriptive doctrine is difficult to meet:
1.8.1.2.2.3.3.1. How to be “open” or “obvious?”
1.8.1.2.2.3.3.2. What cause of action does landowner have
(no trespass for mere observation)?
1.8.1.2.2.3.4. Some courts will permit it if the landowner sells a portion of his
land and the view is clearly implicit in the purchase price (the remaining
land is prevented from having built on it a view-obstructing structure).
1.8.2. Easements
1.8.2.1. Creation
1.8.2.1.1. By estoppel
1.8.2.1.2. By prescription
 1.8.2.1.3. By implication
1.8.2.1.3.1. From prior use
1.8.2.1.3.2. Necessity
1.8.2.1.4. By Expressed agreement- Has to be created in
writing to satisfy the statute of frauds
1.8.2.1.4.1. Exceptions
1.8.3. Easements in writing must comply with the statute of frauds
1.8.3.1. Identify grantor and grantee
1.8.3.2. Contain words manifesting intent to create
1.8.3.3. Describe land
1.8.3.4. Signed by grantor
1.8.4. CASES
1.8.4.1. Holbrook v. Taylor (427-429)
1.8.4.1.1. The homeowners built a residence on property adjoining the
landowners' property. With the permission of the landowners, the
homeowners used and maintained an access road owned by the
landowners during the period of home construction. After the
construction, the homeowners continued to use the roadway to
access the public highway. The court found that the trial court was
fully justified in finding that the right to the use of this easement was
not established by prescription when there was no probative evidence
which indicated that the use of the roadway was either adverse,
continuous, or uninterrupted. However, the court held that the
evidence justified the finding of the trial court that the right to the use
of the roadway had been established by estoppel. The use of the
roadway by the homeowners to get to their home from the public
highway, the use of the roadway for the construction of the residence,
the general improvement of the premises, and the maintenance of the
roadway, all with the actual consent of the landowners or at least with
their tacit approval, clearly established that the license to use the
subject roadway could not have been revoked.
1.8.4.2. Rase v. Castle Mountain Ranch, Inc. (429-435
1.8.4.2.1. Mont. 1981) 323: Owner of ranch had always let Rase, et al
build summer cabins along a lake. Entered license agreement with
them charging nominal rent and allowing him to terminate at will. He
reassured them it was all a formality and they continued to develop.
Then owner of ranch sells his land to developer based on assumption
that developer will not terminate leases. After sale, developer
terminates leases. Court rules there was a constructive trust and the
cabin owners can continue to occupy the cabins until 1987.
1.8.4.2.2. Some courts limit the constructive trust arrangement to
relationships between family members, or other, similarly intimate
relationships. (Montana, site of RASE, does not) (332). Thus often
used to resolve property disputes within families, oral promises from
mother to son to give land, etc.
1.8.4.3. Granite Properties v. Manns (439-446)
1.8.4.3.1. The parties owned adjoining parcels of land. The dominant
estate owner and its predecessor in titled owned all of the subject
properties at the time that a parcel was conveyed by warranty deed to
 the servient estate owners. Prior to the conveyance, the dominant
estate owner used strips of land across the servient estate owners'
property as driveways to access an apartment complex and a
shopping center. The dominant estate owner filed an action to enjoin
the servient estate owners from interfering with the dominant estate
owner's use and enjoyment of the two easements. On appeal, the
court affirmed the judgment because the dominant estate owner was
entitled to an easement by implication. The court found that (1) the
driveways in question had been used by the dominant estate owner or
its predecessors in title since the respective properties were
developed, (2) the driveways were permanent in character, being
either rock or gravel covered, and (3) the servient estate owners were
aware of the driveways' prior uses before they purchased the parcel.
1.8.4.4. Finn v. Williams (446-448)
1.8.4.4.1. Williams sold part of land to Bacons, who sold to Finns. Finns
had always used passage over Williams’ driveway to get to town: there
is no other way. Court rules that an easement by necessity was implied
in the original severing of the two tracts.
1.8.4.4.2. Promotes a) efficient utilization of property and b) effectuates
the interests of the parties. BUT latter generally trumps former: most
courts rule that “no easement of necessity will be recognized if it is
clear that the grantor intended to sell, and the grantee knew she was
buying, a landlocked parcel” (342-43). Some courts rule otherwise,
saying easement by necessity applies regardless of parties’ intent, or,
in other words, we simply do not want to allow people to sell
landlocked parcels.
1.8.4.4.2.1. Some states have statutes to deal with landlocked
parcels, e.g., requiring one party to pay the other for the easement
allowing him to cross land (343).
1.8.4.5. Green v. Lupo (458-460)
1.8.4.5.1. (i) Grant of express easement for ingress and egress, used now
by youngsters as practice runway for motorcycles. Writing did not
characterize express easement as appurtenant or personal (in gross),
i.e., it failed to add “and to theirs and assignees,” which would’ve
established the easement to be appurtenant. Court rules that parol
evidence to resolve the ambiguity may be admitted, and that on the
basis of this parol evidence, the surrounding circumstances, and
especially WA’s strong presumption in favor of appurtenant
easements, the easement was intended to be (and therefore is)
appurtenant. Separately, rules that an equitable restriction on the
easement should be granted to prevent it from being used to create a
dangerous nuisance involving the motorcycles.
1.8.4.6. Cox v. Glenbrook (463-468)
1.8.4.6.1. Resort developer granted easement to neighboring property for
ingress and egress over golf course road. Then property owners sold
land to developers to create 50-60 homes. They want to expand the
golf course road, and resort refuses. Court rules that housing developer
can level and improve the road because it will not create any undue
 burden, but cannot widen the road, because this is not in line with the
intention of the original grantor of the easement, who contemplated a
road of this size for limited use by a very small number of people.
1.8.4.7. Henley v. Continental Cablevision (468-471)
1.8.4.7.1. Utility companies had in gross easement for power lines, then
granted a license based on these easements to cable companies to
install cables, and owner of servient estate objected. Court ruled that
cable television lines were not an extra burden on the property and
were not inconsistent with the principal use granted, therefore did not
exceed the scope of the easement.
1.8.4.7.1.1. All courts considering this question have ruled the
same way, but S. is not sure they are right (class notes).
1.8.4.7.2. Seven ways to modify and terminate easements (364):
1.8.4.7.2.1. By agreement in writing between holder of
easement (who releases the easement) and owner of servient
estate;
1.8.4.7.2.2. By the terms of the easement (e.g., if it was
established so as to expire after ten years);
1.8.4.7.2.3. By merger, when the owner of the servient estate
becomes same as owner of dominant estate;
1.8.4.7.2.4. By abandonment, if owner of easement indicates an
intent to abandon the easement;
1.8.4.7.2.5. By adverse possession or prescription by the owner
of the servient estate or by a third party;
1.8.4.7.2.6. Sometimes because of frustration of purpose, e.g.,
as a result of changed conditions (see below, under requirements
for enforcing a covenant: the same sometimes applies here, for
easements).
1.8.4.7.2.7. By failure to re-record the easement, if required to
do so by statute, as in many states.
1.8.4.7.2.8. Note: it may be possible, though we have never
seen a case like this, for an easement to be struck down as an
unreasonable restraint on alienation (see below, under estate
system).
1.8.4.7.3. REMEMBER: Even if an express easement fails one of the
requirements, it is possible that the easement itself might be
enforceable as an implied easement through one of the categories
above (estoppel, necessity, etc.).
1.9. Servitudes (Covenants)
1.9.1. Covenants
1.9.1.1. Real covenants
1.9.1.2. Equitable servitudes
1.9.1.3. burden (the promissor’s duty to perform the
promise)
1.9.1.4. benefit (the promissee’s right to enforce the
promise).
1.9.2. Covenants transferability (Running with the land)
1.9.3. To be a proper party to enforce a covenant have to be in
possession of one of the lots.
1.9.4. Burden
1.9.4.1. Writing
1.9.4.2. Intent
1.9.4.2.1. easy way to say it, intend to run with the land
and bind successors
1.9.4.3. Notice
1.9.4.3.1. Actual-simply means knowledge of the prior interest
1.9.4.3.2. Constructive means notice of any prior interest that
would be revealed by an appropriate search of the public records
affecting land title. A subsequent purchaser is charged with notice
of such a prior interest even if he never actually conducts a title
search.
1.9.4.3.3. Inquiry -If a purchaser of real property has actual
notice of facts that would cause a reasonable person to investigate
further, he is deemed to know the additional facts that inquiry
would uncover whether he inquires or not; this is called inquiry
notice.
1.9.4.4. Touch and concern
1.9.4.4.1. Had to relate to the use of the land
1.9.4.5. Privity
1.9.4.5.1. Horizontal-refers to the relationship between the
original parties in the relationship
1.9.4.5.1.1. Mutual- two parties have the same interest
in the land
1.9.4.5.1.1.1. Tenant and landlord
1.9.4.5.1.2. Instantaneous- created when one owner sells
a parcel to another
1.9.4.5.1.2.1. Covenant in a deed of sale. Lease or
mortgage
1.9.4.5.2. Vertical- Refers to the relationship between the
original party and the successors
1.9.4.5.2.1. Strict- Transfer of all you have
1.9.4.5.2.1.1. If b sells to z the he transfers all he has
1.9.4.5.2.2. A and y, b and Z Vertical privity
1.9.5. A and B, Y and Z Horizontal privity A B
1.9.5.1. YZ
1.9.5.1.1. Benefit
1.9.5.1.1.1. Writing
1.9.5.1.1.2. Intent
1.9.5.1.1.3. Notice- Not an issue
1.9.5.1.1.4. Touch and concern
1.9.5.1.1.5. Privity
1.9.5.1.1.5.1. Vertical is relaxed
1.9.5.1.1.5.1.1. Relaxed- Transfer of less than you have
1.9.5.1.1.5.2. If b leases to z than it is less than all he
has
1.9.5.1.1.5.3. Horizontal is not require
1.9.5.1.2. Touch and concern
1.9.5.1.2.1. Burden
 1.9.5.1.2.1.1. Relates to use of land
1.9.5.1.2.1.2. Intended to benefit dominate estate
holder
1.9.5.1.2.2. Benefit
1.9.5.1.2.2.1. Improves enjoyment of that land or
1.9.5.1.2.2.2. Increases its market value
1.9.5.1.3. The our two parties in real covenants
1.9.5.1.3.1. Enforcers and violaters
1.9.5.1.4. Four basic scenarios
1.9.5.1.4.1. The enforcer and violater are the original
covenanting parties
1.9.5.1.4.2. The enforcer is an original party and the
violater is a successor to the original party
1.9.5.1.4.3. The enforcer is a successor to an original
party and the violater is the other original party
1.9.5.1.4.4. Both enforcer and violater are successors to
the original party
1.9.5.1.5. Burdens Touch and concern the land
1.9.5.1.5.1. Affirmative obligations
1.9.5.1.5.1.1. Home owners association
1.9.5.1.5.2. Benefit held in gross
1.9.5.1.5.2.1. Burden doesn’t run
1.9.5.1.5.3. Anti-competitive covenants
1.9.5.1.6. Equitable servitudes = only an injunction
1.9.5.1.7. Real covenants= only damages
1.9.6. CASES
1.9.6.1. Winn Dixie Stores, Inc. v. DolgenCorp, Inc. (477-481)
1.9.6.1.1. Appellant's lease granted it the exclusive right
to sell groceries at the plaza; other stores could sell groceries
only if they devoted no more than 500 square feet to them.
The lease stated that this covenant ran with the land. A short
form of the lease was recorded. The tenant devoted more
than 500 square feet of sales area to grocery items, and the
landlord did not enforce the covenant. This suit followed. The
trial court held that the covenant did not run with the land,
that the tenant did not have constructive notice of it, and
that\rendered it unenforceable. The appellate court, viewing
the evidence in the light most favorable to appellant, held
that the covenant ran with the land and that the tenant had
constructive notice of it under the recording statute, §
695.01(1), Fla. Stat. (2006). It also had implied actual notice
of it; as an experienced commercial tenant that had obtained
such covenants for itself, it was obliged to make further
inquiry or to examine the landlord's chain of title to
determine whether appellant, an anchor tenant, had a
grocery exclusive covenant. Finally, § 542.335(1)(a), Fla.
Stat. did not apply to covenants running with the land.
1.9.6.2. Whitinsville Plaza v. Kotseas (481-482)
1.9.6.2.1. Another anti-competitive covenant, but this time a promise by
seller to buyer. Grantor Kotseas sells part of his land (the part that
 becomes dominant estate) to “122 Trust” with a restrictive covenant on
the remaining part (servient estate), not to use it for a discount store,
among other restrictions. Then Trust rents dominant estate to Plaza
and Kotseas rents servient estate to CVS, for use a discount
department store and pharmacy. Outcome of case not included in CB.
Notes:
1.9.6.2.1.1. Once owner of dominant estate sells property, he
can no longer initiate an action for breach of covenant. Likewise,
once owner of servient estate sells property, he can no longer be
brought into court for breach of covenant (379).
1.9.6.2.1.2. Here, however, both Kotseas and Trust rented
properties to assignees, CVS and Plaza. So Kotseas, as lessor, can
probably be brought into court for breach of covenant if his lessee
breaches the covenant and he does not evict the lessee or has
failed to include a clause for such eviction in the leasehold (380).
1.9.6.2.1.3. NOTE: Under modern law, Plaza could probably
obtain damages from CVS. But under traditional real covenants
law, it would probably be unable to do so, because damages are
only possible where there is both horizontal and vertical privity,
and here the chain of vertical privity is broken between Kotseas
and CVS (because the property is merely rented, not sold) (391).
1.9.6.2.2. Ways to terminate covenants: because “unreasonable,” in
violation of public policy, causing undue hardship, as a result of
changed conditions, or other equitable defenses: acquiescence,
abandonment or unclean hands, estoppel, laches, marketable title acts,
etc. (415-18)
1.9.6.2.2.1. “Unreasonable” or “against public policy” as
grounds for unenforceability of covenant:
1.9.6.3. Davidson Bros. v. D. Katz & Sons (482-484)
1.9.6.3.1. Court rules that the covenant is unenforceable because it
sufficiently violates public interest by depriving low-income people of
affordable source of healthy food.
1.9.6.3.1.1. DAVIDSON illustrates the “reasonableness” test
for the enforceability of covenants that has come to replace “touch
and concern” test: weighs interests of both dominant and servient
estate owners and public. (Recognizes covenants as desirable
property rights, enforceable unless “unreasonable”) (479).
1.9.6.3.1.2. S.: But DAVIDSON is an odd case. Courts rarely
strike a covenant down because it is unreasonable. Third Rest.
would only strike something down if against public policy, not on
the basis of the factor-test used in DAVIDSON. In general, anti-
competitive covenants are more likely to be enforced today, based
on influence of efficiency theory. BUT: NY, at least, has adopted a
reasonableness standard for enforceability of covenants.
1.9.6.3.1.3. S.: Even when S. was in law school, covenants were
viewed as encumbrances on property, to be avoided. Only recently
 has the contract view begun to predominate: you can package
property rights as you see fit. Covenants are now presumptively
enforceable.
1.9.6.3.1.4. [Re: Exam: S. thinks there will be more cases like
DAVIDSON in the future: more striking down of covenants on
public policy grounds, which is very rare today. He thinks this is
the way the law is moving.]
1.9.6.3.2. “Changed circumstances” (aka “changed conditions”) as
grounds for unenforceability of covenant = frustration of purposes:
1.9.6.3.3. KEY: Not just any changed conditions: conditions must have
changed so drastically that enforcement of the covenant would bring
no substantial benefit to the dominant estates. “Relief is granted only if
the purpose of the servitude can no longer be accomplished”
1.9.6.4.
1.10. Regulation of Covenants and Homeowners
Associations
1.10.1. Implied reciprocal negative servitudes is an exception to the statute of
frauds
1.10.1.1. Intent
1.10.1.1.1. Must show that it was the intent of the grantor
to restrict the entire subdivision
1.10.1.1.1.1. Ie common plan
1.10.1.1.1.2. Uniform manner
1.10.1.1.1.2.1. Factors common plan
1.10.1.1.1.2.1.1. Look at what happens
1.10.1.1.1.2.1.2. Grantor records a subdivision play
showing restrictions
1.10.1.1.1.2.1.3. Restriction exist in the most of
deeds
1.10.1.1.1.2.1.4. Other landowners stick to a similar
development pattern
1.10.1.1.1.2.1.5. Declaration recorded, “covenants
are intended to be mutually enforced.’
1.10.1.2. Notice
1.10.1.2.1. Actual-simply means knowledge of the prior interest
1.10.1.2.2. Constructive means notice of any prior interest that
would be revealed by an appropriate search of the public records
affecting land title. A subsequent purchaser is charged with notice
of such a prior interest even if he never actually conducts a title
search.
1.10.1.2.3. Inquiry -If a purchaser of real property has actual
notice of facts that would cause a reasonable person to investigate
further, he is deemed to know the additional facts that inquiry
would uncover whether he inquires or not; this is called inquiry
notice.
1.10.1.3. Touch and concern
1.10.2. Writing requirement
1.10.2.1. Satisfied if there is a plac map
1.10.3. Common plan or scheme is intent for IRNS
1.10.3.1. Common grantor
 1.10.3.2. Recorded plot map
1.10.3.3. Uniform development of plan
1.10.4. CASES
1.10.4.1. Appel v. Presley Cos. (536-539)
1.10.4.2. O’Buck v. Cottonwood Village (583-585)\
1.10.4.2.1. Condo residents filed a suit against a condo
association challenging a rule banning the mounting of television
antennae on the buildings. The lower court entered judgment in
favor of the association and the residents appealed. The court
affirmed the judgment and held that the association had authority
to adopt the rule under the declaration of condominium either on
roof-protection or aesthetic grounds. The court also held that the
mere mention of the word "antennae" in the declaration did not
allow the residents, as owners, to reasonably infer a right that was
superior to that of the association's authority to ban them because
the declaration subjected the antennae to association rules, and
merely clarified that presence of privately owned antennae in
common areas did not render the antennae subject to common
ownership. The court also held that the declaration adequately
upheld the association's blanket prohibition because the declaration
gave the association broad discretion to adopt rules and
regulations to preserve a uniform exterior appearance to the
building, as well as to preserve the structural integrity of the
buildings in general and the roof in particular.
1.10.4.2.1.1. We conclude that the board had authority to
enact a rule banning Television antennae from buildings
under either of two provisions in the declaration of
condominium, the constitution or the Association.
1.10.4.3. Neuman v. Grandview at Emerald Hills (586-588)
1.10.4.3.1.
1.10.4.4. Davidson Bros. v. D. Katz & Sons (573-578)
1.10.4.5. Plaintiff corporation closed one of its supermarket's
in the downtown area, and sold the property to a merchant, who
then sold the property to defendant city. Defendant then leased
the property to another company that operated a supermarket
at the location in violation of a covenant prohibiting the
operation of a supermarket at that location contained in the
contract of sale from plaintiff. The court affirmed the judgment
which held that plaintiff's covenant adversely impacted the
public interest and therefore was unenforceable. Closing the
supermarket caused difficulties and hardships on the downtown
citizens, who lost the only opportunity to purchase food at a
reasonably close location. Plaintiff's restriction impeded the
relocation of another supermarket operation to the downtown
area. This obstacle to remediation efforts by defendant city was
so contrary to the public policies expressed in the New Jersey
Urban Enterprise Zone Act, N.J. Stat. Ann. §§ 52:27H-60
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and similar acts, that it represented a scorched earth policy that
under the circumstances was unreasonable and unenforceable.
1.11. Water Rights
1.11.1. Land Use conflicts: Entitlements
1.11.1.1. Privilege
1.11.1.2. Strict Liability
1.11.1.3. Reasonableness
1.11.1.4. Prior use or Prior Appropriation
1.11.2. Three types of water eight issues
1.11.2.1. Rivers, Lakes and other Watercourses
1.11.2.1.1. Two approaches courts have used
1.11.2.1.1.1. Riparian System- the rules favor the person’s
land that’s next to the water
1.11.2.1.1.2. Prior appropriation system- The court favors
the person who used the water first
1.11.2.2. Groundwater
1.11.2.3. Diffused Surface Water
1.11.2.3.1. Common enemy- allows property owners the
absolute freedom to develop their property without liability
from any resulting damage to neighbors caused by increased
runoff of surface water.
1.11.2.3.2. Natural Flow- it grants the injured property
owner absolute security against injury from flooding caused
by a neighboring property owner’s development of her
property. Owners are entitled to discharge water through
natural drainage pathways, but any development that alters
the amount, force or flow, or direction of the natural drainage
will result in liability for any resulting harm to neighborhood
land.
1.11.2.3.3. Reasonable Use- the rule requires the decision
maker to determine in specific cases whether the
defendant’s conduct caused unreasonable interference with
the neghbor’s use of their land. This determination involves
balancing the social benefit derived from development of
defendants’ property, the availability of cost-effective means
to avoid or mitigate the harm, and the gravity of the harm to
plaintiff’s property. Substantial harm to neighboring property
is likely to be found to be unreasonable, even if the value of
the defendant’s conduct far outweighs the value of the
plaintiff’s property.
1.11.3. Support Easements
1.11.3.1. Lateral support
1.11.3.1.1. Adjoining owner had absolute liability for
damage to surface
1.11.3.1.2. Liable for damage to improvements only if
 excavation was negligent
1.11.3.1.2.1. A landowner is entitled to receive lateral support,
which is support from adjoining soil, of his land in its natural state.
1.11.3.2. Subjacent support
1.11.3.2.1. A subsurface owner who excavates the
subsurface has absolute liability for any damage to
surface
1.11.3.2.2. Liable even if the excavation was done with
reasonable care
1.11.4. Armstrong v. Francis Corp. (337-341)
1.11.4.1. Defendant` a developer, cleared a 42-acre tract of land
(which was a drainage way for a larger 85 acre tract) and placed
186 houses thereon, and, in the process, diverted and greatly
increased the amount and flow of water in a small stream on the
property. The new drainage system built by Defendant included not
only the stream from the 42 acre tract, but also the drainage of the
whole 85 acres in the drainage area along with some.The
defendant owns land upland from the plaintiff’s land. When the
defendant’s land drains, the surface water goes into a small stream
and crosses the plaintiff’s land. The defendant built a development
and made large changes to the drainage system. Now, a huge
amount of surface water passes into the stream. The plaintiff’s
property begins to erode and flood, damaging his home.
1.11.4.1.1. The court will follow a “reasonable use” rule regarding the
expulsion of surface waters from one’s property. So long as the
Defendant’s use of his land is reasonable then no liability attaches.
1.11.5. Noone v. Price (348-352)
1.11.5.1. The plaintiffs purchased a house, and after a few years, they
discovered their house was slipping down a hill. The defendant
lived below the plaintiffs at the foot of the hill. The defendant’s
property included a retaining wall along the side of the hill, but the
wall had fallen into disrepair. The plaintiffs allege the wall was
constructed to provide lateral support for their house, and that the
disrepair damaged their property. The defendant denies that the
condition of her wall caused the damage, and argues that the
plaintiffs should have protected their own property.
1.11.5.1.1. A landowner is entitled to receive lateral support, which is
support from adjoining soil, of his land in its natural state
1.11.6. Friendswood Dev. Co. v. Smith-Southwest Industries (357-
364)
1.11.6.1. Plaintiffs, landowners, brought suit alleging that defendants'
withdrawal of underground waters from wells on defendants' lands
caused severe subsidence of plaintiffs' lands. The trial court
granted summary judgment for defendants. The appeals court
reversed, holding that plaintiffs stated a cause of action in nuisance
and negligence. The court reversed appellate court and affirmed
judgment of trial court. The court rejected American rule of
 reasonable use, under which the right of a landowner to withdraw
underground water from his land was limited to amount necessary
for reasonable use of his land. The court applied English rule of
absolute ownership, under which a landowner had right to withdraw
waters from his land without liability for damage to neighbor's land
in the absence of waste or malice. The court acknowledged the
harshness of the English rule, but stated that stare decisis should
be strictly followed in cases involving established rules of property
rights.
1.12.