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		<ownerEmail>bjh2001@columbia.edu</ownerEmail>
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		<outline text="#title &quot;Property&quot;"/>
		<outline text="&lt;B&gt;DEFINITIONS&lt;/B&gt;">
			<outline text="&lt;i&gt;Occupancy&lt;/i&gt;">
				<outline text="taking possession of real property or a thing which has no known owner, with the intention of gaining ownership."/>
				</outline>
			<outline text="&lt;i&gt;Ferae naturae&lt;/i&gt;">
				<outline text="wild animal."/>
				</outline>
			<outline text="&lt;i&gt;Ratione soli&lt;/i&gt;">
				<outline text="land-owners given constructive possession of wild animals on that land  (originally “of the soil”). "/>
				</outline>
			<outline text="&lt;i&gt;Fugitive resource&lt;/i&gt;">
				<outline text="previously unclaimed natural resources that wander from place to place (eg. oil &amp; gas)."/>
				</outline>
			<outline text="&lt;i&gt;Prior appropriation&lt;/i&gt;">
				<outline text="the person who first captures and puts to good use a fugitive resource (ie. water) is given a right superior to later appropriators. "/>
				</outline>
			<outline text="&lt;i&gt;Pecuniary &lt;/i&gt;">
				<outline text="relating to money"/>
				</outline>
			<outline text="&lt;i&gt;&quot;Difference without distinction&quot;&lt;/i&gt;">
				<outline text="difference begets no legal distinction"/>
				</outline>
			<outline text="&lt;i&gt;&quot;Sic utere tuo ut alienum non laedus&quot;&lt;/i&gt;">
				<outline text="one should use one’s own property in a way that does not injure another or their property."/>
				</outline>
			<outline text="&lt;i&gt;Temporary damages&lt;/i&gt;">
				<outline text="awarded for costs already borne"/>
				</outline>
			<outline text="&lt;i&gt;Permanent damages&lt;/i&gt;">
				<outline text="awarded for damages already incurred as well as those likely to occur; award precludes future legal action by P. against D."/>
				</outline>
			<outline text="&lt;i&gt;Fee simple&lt;/i&gt;">
				<outline text="absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. this is a redundant form of &quot;fee,&quot; but is used to show the fee (absolute title) is not a &quot;conditional fee,&quot; or &quot;determinable fee,&quot; or &quot;fee tail.&quot; like &quot;fee&quot; it is often used in deeds transferring title, as in &quot;harry hadit grants to robert gotit title in fee simple?&quot; or similar words."/>
				</outline>
			<outline text="&lt;i&gt;Servient estate&lt;/i&gt;">
				<outline text="real property which has an easement or other use imposed upon it in favor of another property (called the &quot;dominant estate&quot;), such as right of way or use for access to an adjoining property or utility lines. the property giving usage is the servient estate, and the property holding usage of the easement is the dominant estate."/>
				</outline>
			<outline text="&lt;i&gt;Appurtenant &lt;/i&gt;">
				<outline text="pertaining to something that attaches. in real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor's parcel, or a covenant (agreement) against blocking the neighbor's view. thus, there are references to appurtenant easement or appurtenant covenant."/>
				</outline>
			<outline text="&lt;i&gt;Easement in gross&lt;/i&gt;">
				<outline text="An easement that is not created for the benefit of any land owned by the owner of the easement but that attaches personally to the easement owner. For example, a right granted by Eleanor Franks to Joe Fish to use a portion of her property for the rest of his life would be an easement in gross."/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;PROPERTY RIGHTS &amp; POWER&lt;/B&gt;">
			<outline text="JOHNSON V. M’INTOSH - SCOTUS, (1823) - LAND TITLES FROM PIANKESHAW INDIANS">
				<outline text="History" created="Tue, 27 Sep 2005 20:57:05 GMT">
					<outline text="action of ejectment for lands in the State and District of Illinois, claimed by P. under a purchase and conveyance from the Piankeshaw Indians, and by D., under a grant from the United States."/>
					<outline text="District Court of Illinois found for D." created="Wed, 28 Sep 2005 13:18:12 GMT"/>
					<outline text="P. requested review of a decision of the District Court of Illinois, granting title to property in that state to D. on the basis of a land grant from the United States." created="Wed, 28 Sep 2005 13:17:24 GMT"/>
					</outline>
				<outline text="Facts ">
					<outline text="P. (johnson) had purchased land in illinois from piankeshaw indians in 1773 &amp; 1775 (pre-revolution)"/>
					<outline text="D. (m’intosh) granted such land by u.s."/>
					</outline>
				<outline text="Issue">
					<outline text="1. are titles granted by “chiefs of certain tribes” to P. to be recognized by us courts? "/>
					<outline text="2. more generally: can indians grant and private individuals receive therefrom titles recognizable by us court?"/>
					</outline>
				<outline text="Holding">
					<outline text="no, they aren’t."/>
					<outline text="no, they can’t."/>
					</outline>
				<outline text="Rule">
					<outline text="indian right of possession does not supersede dominion vested in the state gov."/>
					</outline>
				<outline text="Reasoning">
					<outline text="Right of Discovery">
						<outline text="“discovery” of land gave to europeans, and specifically to england, exclusive title or “ultimate domnion”over american land to the impairment of natives, who thereafter became tenants or occupants of the soil."/>
						<outline text="right of discovery confined to countries “then unknown to christian people”."/>
						</outline>
					<outline text="Right of Conquest">
						<outline text="european &amp; american dominion further reinforced by right of conquest “which the courts of the conqueror cannot deny…respecting the original justice of the claim has been successfully asserted” (pp.8-9)."/>
						</outline>
					<outline text="Misc.">
						<outline text="insomuch as the charters of the governments of new england et al. were conveyed directly from the british crown to the present american states, dominion by right of discovery is the foundation of the contemporary us."/>
						<outline text="virginia (state of the land in question) act from 1779 (see blockquote, p.7) affirmed for all time the broad principle “that the exclusive right to purchase from the indians resided in the gov.” (p.7) "/>
						</outline>
					</outline>
				<outline text="Result">
					<outline text="judgment for defendant affirmed with costs."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="European &amp; American govs acted as monopsonists, or sole buyers, of indian land, thereby greatly reducing the price paid for title."/>
				<outline text="property confers and rests upon power"/>
				<outline text="doctrine of first possession “may be a reward to useful labor, but it is more precisely the articulation of a specific vocabulary within a structure of symbols understood by a commercial people” (p.19)"/>
				<outline text="Analysis">
					<outline text="first occupancy theory ">
						<outline text="the first human user of a natural resource — a piece of land, for example — is distinguished from all others in that he did not have to displace anyone else in order to take possession. It did not particularly matter how he took possession of it, or what sort of use he made of it. what mattered was that he began acting as its owner without dispossessing anyone else."/>
						</outline>
					<outline text="the principle of first in time">
						<outline text="“first in time” dates back to roman law"/>
						<outline text="according to grotius: riches of earth first held in common -&gt; avarice leads to scarcity -&gt; institution of private property necessary to preserve peace -&gt; claim to property originally vested in first owner"/>
						<outline text="first in time principle is both “venerable and persistent”"/>
						<outline text="its foundation nonetheless weak">
							<outline text="“why shouldn’t i take it, just because you had it first?”"/>
							</outline>
						</outline>
					<outline text="john locke’s *labor theory*">
						<outline text="a man is said to possess that which his labor removes from a state of nature; “for this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to…” (p.16)"/>
						<outline text="but why does one own one’s labor, and how broad is this doctrine in the industrial and information ages?"/>
						<outline text="labor theory applied to johnson v. m’intosh: indians’ occupancy of land did not involve labor adequate to perfect a property interest"/>
						</outline>
					<outline text="law of accession">
						<outline text="when one person adds to the property of others"/>
						</outline>
					</outline>
				</outline>
			<outline text="class notes - property rights and power">
				<outline text="who’s property rights should prevail - piankeshaw or us gov?"/>
				<outline text="property is assumed to be owned by its possessor"/>
				<outline text="right of discovery is early form of international law"/>
				<outline text="right of discovery gives exclusive right to extinguish occupancy either by purchase or conquest"/>
				<outline text="elements of property">
					<outline text="physical "/>
					<outline text="rights accrue to the physical object over space and time">
						<outline text="ie. right of transfer"/>
						</outline>
					</outline>
				</outline>
			</outline>
		<outline text="&lt;B&gt;DEFINING PROPERTY RIGHTS&lt;/B&gt;">
			<outline text="PIERSON V. POST - SCOTUS, (1805) - HOT PURSUIT OF FOX">
				<outline text="History">
					<outline text="post sued pierson for the latter’s killing of the pursued fox and won"/>
					<outline text="pierson thereafter appealed and was granted certiorari by scotus"/>
					</outline>
				<outline text="Facts">
					<outline text="post led hounds in pursuit of a fox onto “unpossessed and waste land”"/>
					<outline text="pierson killed and absconded w/ the fox in plain view of the huntsman, post."/>
					</outline>
				<outline text="Issue">
					<outline text="did post’s pursuit of the fox vest him with possession/occupancy in the animal? ">
						<outline text="or more broadly, “what acts amount to occupancy, applied to acquiring right to wild animals?” (p.20)"/>
						</outline>
					</outline>
				<outline text="Holding">
					<outline text="no, it didn’t. pursuit must 1. deprive the chase of its natural liberty, and 2. bring the animal within one’s certain control in order to confer possession/occupancy. "/>
					</outline>
				<outline text="Rule">
					<outline text="pursuit and even mortal wounding of a prize vests no property or right to the huntsman “unless the animal be actually taken,” (p.20) according to justinian"/>
					</outline>
				<outline text="Reasoning">
					<outline text="a fox is an animal ferae naturae, the property in which is acquired solely by occupancy."/>
					<outline text="while bodily seizure is not necessary to establishing possession or occupancy of ferae naturae, the mere pursuit of such animals is not sufficient an action to vest one with the right thereto."/>
					<outline text="short of absolute seizure, occupancy may be established by a mortal wounding and sustained pursuit of the prize, “since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his *certain control*” (p.21). "/>
					</outline>
				<outline text="Result">
					<outline text="decision reversed on appeal. scotus finds for pierson. "/>
					</outline>
				<outline text="Dissent">
					<outline text="livingston states: property in ferae naturae may be established without absolute seizure provided the pursuer have a *reasonable prospect* and intention of capturing the chase. judgment for post affirmed."/>
					</outline>
				</outline>
			<outline text="class notes">
				<outline text=" what damages did post sue for?">
					<outline text="replacement of fox or the value thereof?">
						<outline text="cost incurred during fruitless pursuit of fox?"/>
						<outline text="on what basis would such a claim be made?">
							<outline text="“absolute potential/probability” success of post’s attempted pursuit?"/>
							<outline text="aggravation?  "/>
							<outline text="should the decision be “global” or “local” - should administrative decisions be allowed to differ substantively on principle from the laws and conventions of the supra-context?"/>
							</outline>
						</outline>
					<outline text="two types of judicial reasoning">
						<outline text="appeal to authority"/>
						<outline text="justify position as a means of bettering society - utilitarianism."/>
						</outline>
					</outline>
				</outline>
			</outline>
		<outline text="&lt;B&gt;PROPERTY RIGHTS &amp; SOCIAL POLICY&lt;/B&gt;">
			<outline text="GHEN V. RICH - US DISTRICT CT., MASS. (1881) - WHALE HUNTING AND RECOVERY IN OPEN SEAS">
				<outline text="History">
					<outline text="“libel” suit (admiralty law equivalent of a lawsuit) to recover the value of fin-back whale."/>
					</outline>
				<outline text="Facts">
					<outline text="fin-back whale frequents eastern portion of mass. bay in early spring"/>
					<outline text="fishermen kill the whales with “bomb-lances” bearing the mark of the hunter; carcass sinks immediately to the water’s bottom rising again within the course of 1-3 days, and drift along until towed to town or washed ashore, if they are found at all.."/>
					<outline text="the finder usually sends word to town of the whale’s location, for which a fee is frequently given."/>
					<outline text="the “owner” proceeds to the catch and removes on site the blubber."/>
					<outline text="cape cod convention has held that the person who kills the whale in accordance with the above is its owner and the rights asserted thereunder were not disputed until this case."/>
					<outline text="april 9, 1880, mass. bay near cape cod, the ghen shot and instantly killed w/bomb-lance the whale in question, which sank immediately and was found on the 12th, 3 days later, washed ashore 17 miles from where it was killed by ellis."/>
					<outline text="ellis advertised the sale of the whale, eschewing convention, and sold it to rich, the D. (an industry processor) who shipped off its blubber and “tired out” (extracted?) the oil."/>
					<outline text=" P. heard of the whale’s recovery and sent a crewmember immediately to claim it."/>
					<outline text="neither ellis nor D. knew to whom the whale belonged, but could have known that it was killed w/ a bomb-lance and that it was therefore subject to another’s claim."/>
					</outline>
				<outline text="Issue">
					<outline text="which act vests ownership in whales, the killing, the salvaging or the purchase from uncertain authority?"/>
					</outline>
				<outline text="Holding">
					<outline text="the killing does."/>
					</outline>
				<outline text="Rule">
					<outline text="taber v. jenny &amp; bartlett v. budd both held the possession is established in the killing of a whale; swift v. gifford finds that “the iron holds the whale”, or rather that the first to harpoon a whale establishes possession regardless of whether the harpoon remains fast to the hunter’s ship."/>
					</outline>
				<outline text="Reasoning">
					<outline text="the industry that has arisen around the rule (including fees paid for salvage) and general public acquiescence to thereto prove its feasibility."/>
					<outline text="without such a rule, the whaling industry would perish."/>
					</outline>
				<outline text="Result">
					<outline text="court finds for P., $71.05 =  price of oil less the cost of its extraction."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text=" rich was named as D. because he was the industry actor. why? it’s easier to enforce the prevailing social custom by way of the oil processor as whaling has no purpose if blubber cannot be rendered and turned into oil. "/>
				<outline text="thus while it may not seem satisfying that rich was named in place of ellis, this sense only obtains when you fail to consider that ellis was a private citizen (community member) whereas rich was a business-person. think then which is more detrimental to society at large or to the industry in particular,">
					<outline text="individuals fail to report found whales?"/>
					<outline text="oil processors accept whales from uncertain authority?"/>
					</outline>
				<outline text="regulating the behavior of the businessperson produces the same net effect while focusing on a smaller, more discreet community. "/>
				</outline>
			<outline text="KEEBLE V. HICKERINGILL, (1707) - INTERFERING W/ DUCK HUNTING ON ANOTHER’S PRIVATE PROPERTY">
				<outline text="History">
					<outline text="court found for the P. w/ 20lbs damages."/>
					<outline text="D. appealed (i think)"/>
					</outline>
				<outline text="Facts">
					<outline text="P. owned a parcel of land containing a decoy pond which was equipped with decoys and other such tools employed in the hunting of wildfowl  "/>
					<outline text="P. alleges that D. was aware of such and intentionally fired shots near the duck pond (but not necessarily on P.’s property) on two occasions with the intent to frighten wildfowl targeted by the former. "/>
					</outline>
				<outline text="issueHistory">
					<outline text="can damages be claimed for D.’s disturbance? ">
						<outline text="and on what basis?"/>
						</outline>
					</outline>
				<outline text="Holding">
					<outline text="yes, they can.">
						<outline text="but only because D.’s actions were malicious."/>
						</outline>
					</outline>
				<outline text="Rule">
					<outline text="violent or malicious disruption of private commerce, as distinct from competition, should be punished as it imports damage to the aggrieved."/>
					<outline text="entrepreneurship should be promoted. "/>
					<outline text="property owners may use their property for pleasure an/or profit"/>
					</outline>
				<outline text="Reasoning">
					<outline text="one who hinders another in that person’s pursuit of trade or livelihood is liable for the hindrance."/>
					</outline>
				<outline text="Result">
					<outline text="decision for P. is upheld."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="competition should be “value-added”, ie. should be directed “upwards” not “downwards”, ie. should be progressive not regressive, ie. improves upon the absolute state of original service/product rather than sabotaging or undermining it.  "/>
				</outline>
			<outline text="Class notes (September 13, 2005)">
				<outline text="why not apply custom as law in all circumstances (read, why not use hunting custom in pierson v. post)?"/>
				<outline text="society doesn't want a “system” of infinite, fractured and potentially conflicting administrative rules and regulations, as it fails to consider the broader context in which these practices are situated."/>
				<outline text="why not apply pierson v. post to the whaling industry?"/>
				<outline text="the purpose of law is not to satisfy its own cold logic but rather to reflect and perfect by code the conventions, values and mores of society"/>
				</outline>
			<outline text="Reading: the concept and role of property rights according to demsetz (pp.41-59)">
				<outline text="“an owner of property rights possesses the consent of fellowmen to allow him to act in particular ways. an owner expects the community to prevent others from interfering with his actions, provided that these actions are not prohibited in the specifications of his rights” (p.41)."/>
				<outline text="property rights also “convey the right to benefit or harm oneself or others” (p.41)."/>
				<outline text="property rights are inextricably bound to externalities (ie. external costs, external benefits, non/pecuniary externalities)."/>
				<outline text="an externality is an effect on others that a person is not forced to consider.">
					<outline text="externalities, their hazards (ie. wanton hunting and resulting scarcity) and benefits (ie. increased communal wealth), are internalized when the process of internalization proves economically rational or efficient in that the cost of the externality (ie. marking and monitoring hunting land) will no longer be borne by one or more actor, but will instead be distributed throughout a community of concerned actors. in communal property, the hazard of an action and the benefit of ceasing that action both fall on “others”, and thus an individual has no incentive to not continue with the externality. "/>
					<outline text="external effects of wanton hunting were initially of small significance"/>
					<outline text="advent of the fur trade ">
						<outline text="increased value of fur"/>
						<outline text="promoted increased wanton hunting"/>
						</outline>
					<outline text="this increased significantly the importance of the previous externalities associated with free hunting"/>
					<outline text="property right regime began to change in response, and specifically in the direction of an increased consideration for economic elements of externalities, ie. "/>
					<outline text="specifically, the fur trade made it economic to begin encouraging the husbanding of fur-bearing animals. ">
						<outline text="husbanding requires protection from poaching which in turn requires a clear delineation of property rights."/>
						</outline>
					</outline>
				<outline text="generally, communal ownership increases externalities while private ownership reduces them."/>
				<outline text="demsetz’s theory fails to consider and/or presumes">
					<outline text="potentially market-irrational behavior of political actors/stakeholders."/>
					<outline text="property rights should be structured such that efficient usage of resources is maximized. why not maximize social stability or some other objective?"/>
					</outline>
				</outline>
			</outline>
		<outline text="&lt;B&gt;PROPERTY RIGHTS &amp; CREATIVITY&lt;/B&gt;">
			<outline text="INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS - SCOTUS, (1918)">
				<outline text="History">
					<outline text="ap brought suit against ins for alleged pirating of the former’s news content and for unfair competition."/>
					<outline text="district ct. found for ap, granting a preliminary injunction against ins’s actions but refused at that stage to systematically restrain such practices globally, referring that question instead to ct. of appeals."/>
					<outline text="ct. of appeals modified and sustained the injunction against ins."/>
					</outline>
				<outline text="Facts">
					<outline text="AP &amp; INS are news agencies engaged in the business of collection and dissemination thereof to their respective member newspapers (clients). "/>
					<outline text="ap alleges ins has pirated its news by">
						<outline text="1. bribing ap client employees to leak ap news to ins for the latter’s distribution without credit (pecuniary or otherwise) to their clients."/>
						<outline text=" 2. inducing ap clients to violate by-laws of their partnership by releasing news to ins before publication and to thereafter redistribute for profit w/out credit."/>
						<outline text="3. copying ap’s news from bulletin boards and early editions for profitable and uncredited redistribution."/>
						</outline>
					</outline>
				<outline text="Issue">
					<outline text="is “news” property? ">
						<outline text="if there is property in news, how long does the property survive once the news is published if it survives at all?"/>
						</outline>
					<outline text="is ins’s appropriation of ap news (as defined in allegation 2-3, but not 1) for the purposes of reselling said news to its clients at profit to be considered unfair competition in business?">
						<outline text="if this competition is unfair, may ins be lawfully restrained from said practice?"/>
						</outline>
					</outline>
				<outline text="Holding">
					<outline text="kind of, it’s “quasi-property”.">
						<outline text="it doesn’t survive when measured against the rights of the public; it survives in perpetuity (subject to fair use?) as measured against a competitor in business."/>
						</outline>
					<outline text="yes, it is.">
						<outline text="of course."/>
						</outline>
					</outline>
				<outline text="Rule">
					<outline text="labor theory vests a degree of property in those who endeavor to remove an object from a state of nature."/>
					<outline text="unfair competition in business is to be discouraged (see keeble v. hickeringill)."/>
					<outline text="constitution, article i, §8, paragraph 8 - law must “promote  the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. "/>
					</outline>
				<outline text="Reasoning">
					<outline text="rights of parties in question should not be measured against the public right to the disputed property, but should be measured between themselves as competing business entities.  "/>
					<outline text="when evaluating news as property, one need separate its substance (ie. the event reported) from processes of distribution &amp; publication (ie. labor expended in the making of property)."/>
					<outline text="in business competition, when the rights or privileges of two parties are likely to conflict w/ one another, each party is bound to conduct its business in such a way as to not unfairly or unnecessarily injure the other."/>
					</outline>
				<outline text="Result">
					<outline text="decision of circuit ct. of appeals is affirmed for aP."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="property value of information consists ">
					<outline text="1. initially in its alienability from others (public), but also "/>
					<outline text="2. in the means by which it is collected and distributed (labor product)."/>
					</outline>
				<outline text="finally a holding which indicates that fair competition must be value-added, stating that competitors in biz may not simply appropriate another’s product."/>
				<outline text="is not the concept that one may not reap what another has sown when applied to property cases wherein the &quot;property&quot; of one party (eg. right of publicity) is appropriated by another for profit in a separate and distinct trade seems a bit like ford motor co. arguing that usage of vehicles for commercial transport be considered a violation of its property rights?"/>
				</outline>
			<outline text="CHENEY BROTHERS V. DORIS SILK CORP. - US 2ND CIRCUIT CT. OF APPEALS (1930)">
				<outline text="History">
					<outline text="trial court found for original D., cheney bros."/>
					</outline>
				<outline text="Facts">
					<outline text="doris silk produces a large number of patterned fabric each season."/>
					<outline text="fabric design is intended to attract customers on the basis of its “novelty and beauty”, though most designs are unsuccessful owing to the fickle tastes of the consumer market."/>
					<outline text="designs were not copyrightable or patentable under contemporary law and practice."/>
					<outline text="cheney bros. copied one design and undercut doris silk’s price in october season, 1928."/>
					</outline>
				<outline text="Issue">
					<outline text="is property, once contrived, protected against copy without patent or copyright?"/>
					</outline>
				<outline text="Holding">
					<outline text="no, it isn’t."/>
					</outline>
				<outline text="Rule">
					<outline text="constitutional division of powers, specifically between judicial and legislative branches."/>
					</outline>
				<outline text="Reasoning">
					<outline text="proscription of imitation in chattel is vested in congress by the us constitution and is thus beyond the powers of the judiciary."/>
					</outline>
				<outline text="Result">
					<outline text="finding of trial court is affirmed and may be dismissed if D. so chooses."/>
					</outline>
				</outline>
			<outline text="VIRTUAL WORKS, INC. V. VOLKSWAGON - US 4TH CIRCUIT CT. OF APPEALS (2001)">
				<outline text="History">
					<outline text="volkswagon brought action against virtual works for cyber-squatting."/>
					</outline>
				<outline text="Facts">
					<outline text="virtual registered vw.net on oct. 23, 1996."/>
					<outline text="acpa, or §1125 passed in 1999"/>
					<outline text="call was placed subsequently by D. to volkswagon threatening to sell domain name to highest bidder unless the latter responded in 24hrs."/>
					</outline>
				<outline text="Issue">
					<outline text="did virtualworks act in “bad faith” when registering its domain name as “vw”. "/>
					</outline>
				<outline text="Holding">
					<outline text="yes, they did."/>
					</outline>
				<outline text="Rule">
					<outline text="anticybersquatting consumer protection act (acpa, or §1125)"/>
					</outline>
				<outline text="Reasoning">
					<outline text="broad construance of “safe harbor” clause in §1125 would undermine the validity of the law."/>
					<outline text="§1125 needs to consider">
						<outline text="impact on volkswagon’s “mark” by usage of a domain name which is identical or confusingly similar thereto."/>
						<outline text="intent of virtualworks in choice of domain name an its later sale"/>
						</outline>
					</outline>
				<outline text="Result">
					<outline text="decision upheld for volkswagon."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="§1125 was applied ex post facto in order to punish virtual works."/>
				<outline text="my own hypo: multiple parcels of mostly pine forest for sale. wandering through as potential buyer, i discover a growth of oak on an available parcel in community b. no one else is aware of this plot of oak and will have no way of knowing unless i disclose its existence. the oak company is a powerful and well-established legal monopolist of oak in community a. the oak company assumes all oak assets w/in a community are in its possession, and is unaware of my discovery. i just want a plot of forest and my enjoyment thereof is independent of the type of tree growing thereupon. nonetheless, i correctly surmise than the oak plot will eventually increase in real value once the oak company is apprised of its existence, and decide accordingly to purchase the single oak plot instead of the numerous pine plots. is it wrong for me demand the highest resale price for my oak plot in community b just because the oak company has a recognized legal monopoly on oak in community a?    "/>
				<outline text="underlying assumption = regime of property rights developed and recognized in one context/environment should be transferred to subsequent emergent contexts. "/>
				<outline text="this flies in the face of liberalism/modernism."/>
				</outline>
			<outline text="Reading: Property in one's persona (p.77) - “Right of publicity”">
				<outline text=""/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;INTRODUCTION TO NUISANCE LAW&lt;/B&gt;">
			<outline text="nuisance law">
				<outline text="nuisance law is part torts and part property.">
					<outline text="torts elements - liability arises from negligent or otherwise wrongful activity"/>
					<outline text="property element - liability arises from interference w/ use or enjoyment of land."/>
					</outline>
				<outline text="means by which common law judges resolve conflicts in land use."/>
				<outline text="“sic utere tuo ut alienum non laedus” - one should use one’s own property in a way that does not injure another or their property."/>
				</outline>
			<outline text="MORGAN V. HIGH PENN OIL CO. - N. CAROLINA SUPREME COURT (1953)">
				<outline text="History">
					<outline text="civil action to recover temporary damages for a private nuisance, and also an equitable action to abate such nuisance by injunction."/>
					<outline text="trial court found for the P., awarding temporary damages of $2500 and a permanent injunction."/>
					<outline text="D. appealed."/>
					</outline>
				<outline text="Facts">
					<outline text="P. bought their composite 9-acre tract of land (from separate smaller conveyances) in 1945.  "/>
					<outline text="P.’s land has a home, restaurant, and accommodations for 32 other trailer homes, the latter two of which the owners rent to third parties.  "/>
					<outline text="oil refinery established in 1950. "/>
					<outline text="oil refinery, which is approx 1000 feet from dwelling in question, emits sounds and noises unreasonable to neighbors of ordinary sensitivities.  "/>
					<outline text="noises were at all hours of the day, smells came two or three times weekly.  "/>
					<outline text="other structures, not owned by P., exist w/in a one-mile radius of refinery, including but not limited to a church, 29 homes, 4 camps, grocery store et al."/>
					<outline text="D. refused to address complaints of P. "/>
					</outline>
				<outline text="Issue">
					<outline text="under n.c. property law, does a neighboring oil refinery's existence on a neighboring tract of land to plaintiff landowners represent a nuisance when the refinery's smells and noises pervade the landowners' tract?"/>
					</outline>
				<outline text="Holding">
					<outline text="yes, to allow D. to continue their use of an oil refinery to the extent that it is would present the threat of an irreparable injury to P. "/>
					</outline>
				<outline text="Rule">
					<outline text="“a private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one’s neighbor”."/>
					</outline>
				<outline text="Reasoning">
					<outline text="“the interest in any use and enjoyment of land, that any substantial nontrespassatory invasion of another's interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance”. "/>
					<outline text="liability may be ">
						<outline text="intentional ">
							<outline text="conduct is unreasonable under the circumstances of a particular case."/>
							<outline text="acts purposefully, or is aware/likely to be aware that the nuisance in question arose from his/her actions."/>
							</outline>
						<outline text="unintentional">
							<outline text="when conduct is negligent, reckless, or ultrahazardous."/>
							</outline>
						</outline>
					</outline>
				<outline text="Result">
					<outline text="decision of trial court upheld, temporary damages and permanent injunction ordered."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="judge ervin maintains that legal basis of liability in law of private nuisance remains murky, owing in part to the “tendency of the courts to call everything a nuisance, and let it go at that” (p.749)."/>
				<outline text="&quot;unreasonableness” (p.750)">
					<outline text="two approaches to the defintion of &quot;unreasonableness&quot;">
						<outline text="1. the restatement holds that &quot;gravity of the harm outweighs the utility of the actor’s conduct”.">
							<outline text="evaluation of the gravity of the *harm* should consider:">
								<outline text="extent &amp; character of the harm"/>
								<outline text="social value of the P.’s use"/>
								<outline text="suitability of p’s use to locality in question"/>
								<outline text="burden on P. required to avoid harm"/>
								</outline>
							<outline text="*utility* of the actor’s conduct need consider:">
								<outline text="social value of act"/>
								<outline text="suitability of d’s use to the locality"/>
								<outline text="impracticability of D. preventing harm"/>
								</outline>
							</outline>
						<outline text="2. "/>
						</outline>
					<outline text="defines an action wherefrom the &quot;level” of interference exceeds a conceptual threshold delimiting the point of liability."/>
					</outline>
				<outline text="court might have considered the devastation of home-owner value in deciding the case."/>
				<outline text="how did high penn oil come to own said property?">
					<outline text="local government consideration of tax revenues?"/>
					<outline text="total lack of zoning?"/>
					<outline text="in modern day, corporations often purchase land through 3rd party agents in order to avoid community outrage."/>
					</outline>
				</outline>
			<outline text="ESTANCIAS DALLAS CORP. V. SCHULTZ - TEXAS CT. OF APPEALS (1973)">
				<outline text="History">
					<outline text="P., schultz, sued to permanently enjoin D. from operating noisesome a/c equipment which neighbored the former’s residence."/>
					<outline text="trial court granted a permanent injunction w/ damages of $9000 and $1000 awarded to P. wife and husband respectively; estancias dallas corp. appealed."/>
					</outline>
				<outline text="Facts">
					<outline text="nuisance arising from a/c began may, 1969 and has been continuous (3-4 years?) since that time."/>
					<outline text="a/c cools 155 rentable units; is 5 ½ feet from P.’s property line and 70 feet from P.’s bedroom; and sounds like &quot;jet airplane or helicopter”."/>
					<outline text="several neighbors offered corroborating testimony."/>
					<outline text="P. land valued dropped from $25000 pre a/c to $10-12000 post."/>
					<outline text="initial cost of installing individual (read, &quot;less noisesome”) a/c above actual cost = $40,000; cost required subsequently to change system = $150,000."/>
					<outline text="apts. unrentable w/out a/c. "/>
					</outline>
				<outline text="Issue">
					<outline text="does a court need to balance harm and benefit when applying an injunction under the common law of nuisance?"/>
					</outline>
				<outline text="Holding">
					<outline text="no, the court need only consider the benefit that would accrue to the public in the granting of an injunction."/>
					</outline>
				<outline text="Rule">
					<outline text="storey v. central hide &amp; rendering co.">
						<outline text="when finding a nuisance, court must consider the &quot;balancing of equities” in granting an injunction."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="common law nuisance provides exception for public necessity but there was no evidence presented at trial to suggest that operation of a/c was of any benefit to the public, much less to say of a benefit to the public disproportionate to the P.’s injury."/>
					</outline>
				<outline text="Result">
					<outline text="judgment of jury affirmed. "/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="havelock ellis - &quot;progress” is the exchange of one nuisance for another."/>
				<outline text="injunctions are often for sale">
					<outline text="i.e. the P. only expects to demand enforcement of the injunction when D. fails to offer compensation to the former relative or proportionate to the anticipated cost of redressing the nuisance to the latter."/>
					</outline>
				<outline text="what are the positive and negative effects of the power given to P.’s winning an injunction?">
					<outline text="advantages - obvious"/>
					<outline text="disadvantages -   think about the tragedy of the anti-commons (p. 56)"/>
					</outline>
				<outline text="&quot;balancing of equities” occasionally at odds w/ the calculus for redress given to nuisances in the restatement."/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;NUISANCE RIGHTS &amp; REMEDIES&lt;/B&gt;">
			<outline text="introduction">
				<outline text="property rights in the following cases were &quot;incompletely&quot; defined when orginally conceived">
					<outline text="property, however, - comes w/ implied limitation that it can't be used to harm one's neighbor and/or their property.">
						<outline text="see rule applied in morgan v. high penn oil co.">
							<outline text="&quot;a private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one’s neighbor”."/>
							</outline>
						<outline text="more generally, a &quot;nuisance&quot; must be 1. substantial and 2. unreasonable, ie. infringes upon use and enjoyment of land my others. "/>
						</outline>
					</outline>
				<outline text="definition of property rights is influenced by both place and time."/>
				<outline text="an efficient property regime will encourage creativity in defining and redefining the rights of accorded therefrom."/>
				</outline>
			<outline text="BOOMER V. ATLANTIC CEMENT CO. - COURT OF APPEALS OF NY (1970)">
				<outline text="History">
					<outline text="P. sued D. for property damages resulting from nuisance."/>
					<outline text="trial court found a nuisance, awarded &quot;temporary&quot; damages but denied injunction."/>
					<outline text="P. appealed; appellant division upheld; P. appealed again to court of appeals."/>
					</outline>
				<outline text="Facts">
					<outline text="D. operates a cement mill in close proximity to P.'s home."/>
					<outline text="P. claims that dirt, smoke and vibration emanating from D.'s plant has damaged the former's property."/>
					</outline>
				<outline text="Issue">
					<outline text="can a large disparity between the potential benefit and harm that an injunction would precipitate upon P. and D. respectively constitute sufficient grounds for the withholding of injunction? "/>
					<outline text="should damages awarded P. be permanent?"/>
					</outline>
				<outline text="holding">
					<outline text="no, an injunction should still be granted."/>
					<outline text="yes, permanent damages should be awarded to forestall future, redundant  actions by P. against D."/>
					</outline>
				<outline text="Rule">
					<outline text="whalen v. union bag and paper co.">
						<outline text="a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the nuisance. whenever the damage resulting from a nuisance is found not &quot;unsubstantial&quot;, an injunction will follow."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="a court may not deny an injunction so long as the damage suffered by a P. is not &quot;unsubstantial&quot;."/>
					<outline text="a court may, however, condition the application and other terms of an injunction if a great disparity exists between benefit to P. and harm to D."/>
					<outline text="&quot;where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery.  thus it seems fair to both sides to grant permanent damages to P. which will terminate this private litigation&quot;."/>
					<outline text="injunction should be awarded conditioned upon payment of permanent damages (therein establishing a permanent servitude on the land), thereby encouraging bargaining between P. and D."/>
					</outline>
				<outline text="Result">
					<outline text="orders reversed w/out costs and remitted to ny state supreme court."/>
					</outline>
				<outline text="Dissent">
					<outline text="the majority's decision licenses a continued and acknowledged wrong.  "/>
					</outline>
				<outline text="Commentary">
					<outline text="conditioning an injunction to the payment of permanent damages seems to provide an incentive to the offending party to effect their own &quot;balancing of equities&quot;. in actuality, however, the court assumed responsibility for the striking of that balance when it calculated the amount of permanent damages."/>
					<outline text="the permanent servitude placed on the land is similar to an easement:">
						<outline text="i.e. - the cement factory has paid for usage of / rights to P.'s land, though the &quot;usage&quot; in this case is unusual."/>
						<outline text="subsequent parties have fair notice of the cement factory's claim to the property in question and can therefore factor this &quot;easement&quot; on the land when considering its purchase."/>
						</outline>
					</outline>
				</outline>
			<outline text="SPUR INDUSTRIES, INC. V. DEL E. WEBB DEVELOPMENT CO. - SUPREME COURT OF ARIZONA (1972)">
				<outline text="History">
					<outline text="P. sued to permanetly enjoin D. from continued operation of the latter's feed lot."/>
					<outline text="trial court found for the P., granting permanent injunction against D."/>
					<outline text="D. appealed."/>
					</outline>
				<outline text="Facts">
					<outline text="youngtown, a retirement community, established in 1954."/>
					<outline text="D.'s predecessor's established feed lot on present site in 1956. "/>
					<outline text="P. purchased land adjacent to youngtown and to feed lots established by D.'s predecessors; and began developing property as an urban area in 1959. "/>
					<outline text="D. assumed operation of a feed lot located on land in question and expanded operation from 35 to 114 acres in 1960. "/>
					<outline text="P.'s development gradually encroached upon D.'s feedlot until the two were separated by a distance of only 500 feet."/>
					</outline>
				<outline text="Issue">
					<outline text="1. where the operation of a business, such as a cattle feedlot, is lawful in the first instance, but becomes a nuisance by reason of a nearby residential area, may the feedlot operation be enjoined in an action brought by the developer of the residential area?"/>
					<outline text="2. assuming that the nuisance may be enjoined, may the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer?"/>
					</outline>
				<outline text="Holding">
					<outline text="yes, it may."/>
					<outline text="yes, they may be so required."/>
					</outline>
				<outline text="Rule">
					<outline text="statute 36-601">
						<outline text="public nuisances dangerous to public health are enjoinable."/>
						</outline>
					<outline text="stevens v. rockport granite">
						<outline text="&quot;extreme rights&quot; may not be enforced where a P. is found &quot;coming to the nuisance&quot;."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="&quot;courts of equity are concerned with protecting the operator of a lawful, albeit noxious, business from the result of a knowing and willful encroachment by others near his business&quot;."/>
					</outline>
				<outline text="Result">
					<outline text="affirmed in part, reversed in part and remanded for further proceedings."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="q: who should be allowed to bring a public nuisance claim, and why?">
					<outline text="a: parties w/ weak cases should not be allowed to bring suit on behalf of the community (public nuisance) as weak cases may result in weak solutions which may then constrain damages et al awarded to subsequent cases and/or the community for whom the party speaks."/>
					</outline>
				<outline text="nuisance claims may be resolved in one of four ways, the complement of which gives the court great discretion in the balancing of efficiency and fairness:">
					<outline text="1. abate the activity in question by granting an injunction."/>
					<outline text="2. allow activity to continue if D. pays damages."/>
					<outline text="3. allow activity to continue by denying all relief."/>
					<outline text="4. abate the activity if the **P.** pays damages.">
						<outline text="this option was derived at approximately the same time by the court in spur v. del and a pair of schoars at harvard."/>
						</outline>
					</outline>
				<outline text="nuisance litigation is an expensive, cumbersome and frequently fortuitous means by which to address complex environmental issues.">
					<outline text="potential P.'s each bear only a fraction of the total impact in question and thus individually have weak incentives to initiate complex and costly litigation with considerable burdens of proof the rewards from which are limited."/>
					</outline>
				<outline text="what are the dis/advantages of regulation versus incentive systems as a means of controlling pollution?"/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;TYPES OF EASEMENTS &amp; SERVITUDES&lt;/B&gt;">
			<outline text="Introduction" created="Wed, 28 Sep 2005 13:24:43 GMT">
				<outline text="Private land use controls: the law of servitudes">
					<outline text="two major types of modern servitiudes ">
						<outline text="1.easements">
							<outline text="&quot;affirmative&quot; easement"/>
							<outline text="negative easement - highly restricted under old english law"/>
							</outline>
						<outline text="2. covenants - ????">
							<outline text="real covenants - enforeceable at law"/>
							<outline text="equitable servitudes - enforceable in equity"/>
							</outline>
						</outline>
					<outline text="two minor types of modern servitiudes ">
						<outline text="1. profits - ????"/>
						<outline text="2. licenses - ????"/>
						</outline>
					<outline text="five types of land-use agreements">
						<outline text="1. easement - a given right to enter upon b's land"/>
						<outline text="2. profit - a is given right to enter upon b's land and remove something attached to the land"/>
						<outline text="3. a is given the right to enforce a restriction on the use of b's land"/>
						<outline text="4. a is given the right to require b to perform some act on b's land"/>
						<outline text="5. a is given the right to require b to pay money for the upkeep of specified facilities"/>
						</outline>
					</outline>
				</outline>
			<outline text="WILLARD V. FIRST CHURCH OF CHRIST, SCIENTIST - SUPREME COURT OF CALIFORNIA (1972)">
				<outline text="History">
					<outline text="trial court found w/out jury for the P."/>
					<outline text="present case is thus heard on appeal."/>
					</outline>
				<outline text="Facts">
					<outline text="mcguigan owned adjacent lots 19 &amp; 20.  members of her church were allowed to park on lot 20 during service.  she later sold lot 19 to peterson, who used the building as an office.  3rd party and present D., willard, expressed an interest in buying lots 19 &amp; 20, and he and peterson signed a deposit receipt for the sale of the 2 lots, one from peterson, the other from mcguigan. peterson and willard entered into an escrow, into which peterson delivered a deed for both lots in fee simple."/>
					<outline text="peterson did not own lot 20 when he agreed to sell it to willard, and so he made an offer to mcguigan.  sheconditioned the sale of the lot to her church's continued use thereof for parking. mcguigan referred to church lawyer, who drew up that specific provision for the deed: &quot;deed subject to an easement for automobile parking during church hours for the benefit of the church on the property at the southwest corner of....&quot;.  "/>
					<outline text="land was then sold after insertion of the above clause."/>
					<outline text="willard paid the agreed purchase price into the escrow and received peterson's deed 10 days later.  willard then recorded the deed, which had no mention of the easement provision, although peterson did mention to willard the church would want to use lot 20 for parking.  "/>
					<outline text="willard became aware of the clause several months later and brought action against the church."/>
					</outline>
				<outline text="Issue">
					<outline text="under ca property law, may a grantor, in deeding real property to one person, effectively reserve an interest in the property to another?"/>
					</outline>
				<outline text="Holding">
					<outline text="yes, in this case it may."/>
					</outline>
				<outline text="Rule">
					<outline text="old common law developed from feudal practice and backed by eldrige v. see yup company">
						<outline text="one may not reserve an interest in title to a stranger to the title."/>
						</outline>
					<outline text="new rule on the fly">
						<outline text="conveyance's should give effect to the grantor's intent."/>
						<outline text="court must balance potential injustice resulting from grantor's intent to that deriving from reliance upon old feudal rule."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="primary objective in construing a conveyance is to give effect to the grantor's intent, not to decide modern property claims on the basis of old feudal standards."/>
					<outline text="P. failed to indicate relaince upon old feudal rule."/>
					</outline>
				<outline text="Result">
					<outline text="judgment reversed in D.'s favor."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="mcguigan could have given effect to her intent even under the old feudal law by simply &quot;selling&quot; the easement to the church and thereafter selling the land to the buyer  (two piece of paper rule) or by deeding the land the buyer w/ the stipulation that the latter then re-deed to subsequent buyer's w/ the stipulated easement."/>
				<outline text="regrant theory">
					<outline text="????"/>
					</outline>
				<outline text="easement appurtenant">
					<outline text="????"/>
					</outline>
				<outline text="easement in gross">
					<outline text="????"/>
					</outline>
				</outline>
			<outline text="HOLBROOK V. TAYLOR - SUPREME COURT OF KENTUCKY (1976)">
				<outline text="History">
					<outline text="Appellee homeowners filed an action against appellant landowners to establish a right to the use of a roadway. "/>
					<outline text="The homeowners claimed a right to the use of the roadway by prescription and by estoppel. " created="Wed, 28 Sep 2005 13:26:42 GMT"/>
					<outline text="The trial court (Kentucky) determined that a right to the use of the roadway by prescription had not been established, but that it had been established by estoppel. " created="Wed, 28 Sep 2005 13:26:51 GMT"/>
					<outline text="The landowners appealed." created="Wed, 28 Sep 2005 13:27:02 GMT"/>
					</outline>
				<outline text="Facts">
					<outline text="1942: appellant bought tract of land.  "/>
					<outline text="1944: permission granted to someone to cut road on appellant's land to haul coal.  "/>
					<outline text="1949: roadway not used as much, and therefore closed.  "/>
					<outline text="1957: appellants built a tenant house and tenants used the road again. "/>
					<outline text="1961: tenant house burns down."/>
					<outline text="1964: appellees, taylors, bought land adjacent to appellant, holbrook.  appellant let appellees use the easement (haul road) to move in, and watched as they improved on the road by widening it.  after appellants constructed their new home, they continued to use the roadway as before.  "/>
					<outline text="after the appellees improved the road of egress/ingress,  contention arose regarding appelle's use thereof."/>
					</outline>
				<outline text="Issue">
					<outline text="may the appellee be granted an easement right to the land in question by estoppel or prescription?"/>
					</outline>
				<outline text="Holding">
					<outline text="yes, on estoppel, no, on prescription."/>
					</outline>
				<outline text="Rule">
					<outline text="grinestaff v. grinestaff">
						<outline text="easements may be created by">
							<outline text="express written grant"/>
							<outline text="implication"/>
							<outline text="prescription - right established by simply &quot;taking it&quot;"/>
							<outline text="estoppel"/>
							</outline>
						</outline>
					<outline text="Lashley Telephone Co. v. Durbin">
						<outline text="improvements made upon a servient estate by a licensee vest in that party a license is therein established by estoppel and may not be revoked thereafter by the licensor."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="when a person has a license which includes the right to erect structures and acquire interest in the land in the nature of an easement by making improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense."/>
					</outline>
				<outline text="Result">
					<outline text="judgment at trial court is affirmed for the appellee."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="easement by estoppel lasts &quot;so long as its nature calls for&quot;."/>
				</outline>
			<outline text="VAN SANDT V. ROYSTER - SUPREME COURT OF KANSAS (1938)">
				<outline text="History">
					<outline text="trial court found for D."/>
					</outline>
				<outline text="Facts">
					<outline text="P. bought a tract of land which was closest to public sewer, equipped w/ an underground connecting drain through which neighbors' sewage was required to pass.  "/>
					<outline text="adjoining tract of land sold through mesne conveyances to D., and a third tract, adjoining the second tract was also sold by common owner. "/>
					<outline text="P.'s home was flooded one day with sewage, which prompted his discovery of the common sewage line.  "/>
					<outline text="P. moves to enjoin neighbors from flushing."/>
					</outline>
				<outline text="Issue">
					<outline text="does an easement by either implication or prescription in favor of D. exist across the property of p?"/>
					</outline>
				<outline text="Holding">
					<outline text="yes, an easement of implication exists."/>
					</outline>
				<outline text="Rule">
					<outline text="howley v. chaffee">
						<outline text="a conveyance of deed may not include implicit reservations in favor of the conveyor unless the easement so reserved is one of strict necessity."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="if a party is informed of something important like drainage, sewage, electricity, or the like, then there is actual notice, and a prescribed easement exists.  "/>
					<outline text="if a party is unaware of such usage but should reasonably know by the prudent actions of a buyer--including inspection of the property--an easement exists by implication. "/>
					<outline text="the fact that usage may not be visible does not mean that it is not apparent. "/>
					<outline text="P. purchased with actual notice, i.e. he knew there was modern plumbing, and that the plumbing had to drain into a sewer. "/>
					</outline>
				<outline text="Result">
					<outline text="judgment upheld for D."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="would this easement of implication by necessity survive the installation of a separate sewer line beneath a street adjacent to Royster?"/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;PRESCRIPTIVE &amp; NECESSARY EASEMENTS&lt;/B&gt;">
			<outline text="OTHEN V. ROSIER - SUPREME COURT OF TEXAS (1950)">
				<outline text="History">
					<outline text=""/>
					</outline>
				<outline text="Facts">
					<outline text=""/>
					</outline>
				<outline text="Issue">
					<outline text=""/>
					</outline>
				<outline text="Holding">
					<outline text=""/>
					</outline>
				<outline text="Rule">
					<outline text=""/>
					</outline>
				<outline text="Reasoning">
					<outline text="P. did not show an implied easement by reason of the deed that he received because the record did not show that the roadway was a necessity as of the date of the deed"/>
					<outline text="P.'s use of the roadway was merely permissive, and thus it could not ripen into a prescriptive right."/>
					<outline text="P. failed to meet his burden of showing that his predecessor's adverse possession was in the same place and within the definite lines claimed by him and fixed by the trial court."/>
					</outline>
				<outline text="Result">
					<outline text=""/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="6 elements of easement by prescription">
					<outline text="1. open and notorious"/>
					<outline text="2. continuous action of user"/>
					<outline text="3. uninterrupted by servient owner"/>
					<outline text="4. adverse"/>
					<outline text="5. under a claim of right by user"/>
					<outline text="6. for the prescriptive period as determined usually by state"/>
					</outline>
				<outline text="the court applied a doctrine of &quot;strict necessity&quot;" created="Thu, 29 Sep 2005 15:49:16 GMT"/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;PUBLIC TRUST, ASSIGNABILITY&lt;/B&gt;">
			<outline text="MATTHEWS V. BAY HEAD IMPROVEMENT ASSOCIATION - SUPREME COURT OF NEW JERSEY (1984)">
				<outline text="History">
					<outline text="P., NJ public advocate, sued D. to guarantee public access to &quot;private&quot; beachfront."/>
					<outline text="Superior Court granted summary judgment if favor of D."/>
					<outline text="P. appealed to State Supreme Court"/>
					</outline>
				<outline text="Facts">
					<outline text=""/>
					</outline>
				<outline text="Issue">
					<outline text="Does the public's right to enjoy tidal lands imply a concurrent right to gain access to such lands by crossing and using for recreational purposes a quasi-public dry sand area adjoined thereto? "/>
					</outline>
				<outline text="Holding">
					<outline text="Yes, it does."/>
					</outline>
				<outline text="Rule">
					<outline text="Public Trust doctrine">
						<outline text="Ancient principle states that &quot;land covered by tidal waters belong[s] to the sovereign, but [exists] for the common use of all the people&quot;."/>
						</outline>
					<outline text="Borough of Neptune City v. Borough of Avon-by-the-Sea">
						<outline text="Public Trust is extended to include bathing and other shore activities, finding that use of foreshore (guaranteed under Public Trust) and municipally-owned dry sand areas is inseparable."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="Avon ruling extends the domain of the Public Trust to dry sand areas situated above the mean high water mark."/>
					<outline text="The public trust doctrine as defined in Avon includes bathing, swimming and other shore activities. The public trust doctrine does not allow the sovereign of New Jersey (and thus its courts) to abdicate its trust over the dry sand beaches in favor of the D. And thus the public has a right to access D.'s beaches to engage in such activities. "/>
					<outline text="D. is a private association. Because it was a nonprofit corporation and its activities paralleled those of a municipality, the court is able to interfere with its internal affairs and compel it to open membership to the public at large."/>
					</outline>
				<outline text="Result">
					<outline text=" Summary judgment in favor of D. was reversed."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="court applies a different standard when evaluating public easements by necessity, is in this case, versus private easements by necessity (eg. strict necessity in othen v. rosier)."/>
				<outline text="definition of &lt;i&gt;patent&lt;/i&gt; in real property" created="Thu, 29 Sep 2005 20:38:20 GMT">
					<outline text="old days -&gt; property rights conveyed from the crown" created="Thu, 29 Sep 2005 20:39:07 GMT"/>
					<outline text="now -&gt; land that has passed from public to private ownership" created="Thu, 29 Sep 2005 20:39:22 GMT"/>
					</outline>
				</outline>
			<outline text="MILLER V. LUTHERAN CONFERENCE AND CAMP ASSOCIATION - SUPREME COURT OF PENNSYLVANIA (1938)">
				<outline text="History" created="Tue, 27 Sep 2005 21:00:49 GMT">
					<outline text="" created="Tue, 27 Sep 2005 21:00:51 GMT"/>
					</outline>
				<outline text="Facts">
					<outline text="P. owned lands on a creek and participated in the organization of a corporation to which was leased so much of the lands as would be covered by the backing up of the water as a result of the construction of a dam the partners proposed to erect across the creek. "/>
					<outline text="The dam was built, forming an artificial lake. "/>
					<outline text="Corporation granted to P. the exclusive right to fish and boat in the artificial lake. "/>
					<outline text="P. granted to brother a one-fourth interest in the former's fishing, boating, and bathing rights and privileges. "/>
					<outline text="Brother died. Executors of the decedent's estate granted a license to D. purporting to grant to the latter permission to use the lake. "/>
					<outline text="P. and his wife filed a bill in equity seeking an injunction to prevent D. from using the lake. "/>
					<outline text="The trial court issued the injunction. "/>
					</outline>
				<outline text="Issue">
					<outline text="Does the law prohibit assignment of easements in gross?"/>
					<outline text="If assignable, are such easements also divisible?"/>
					</outline>
				<outline text="Holding">
					<outline text="No, providing there exist clear evidence of such an intention."/>
					<outline text="Yes, though the title thereto needs be exercised as &quot;one stock&quot;, or rather w/ the consent of all sovereign parties."/>
					</outline>
				<outline text="Rule">
					<outline text="Tide Water Pipe Co. v. Bell /  Dalton Street Railway Co. v. Scranton">
						<outline text="Easements in gross are assignable."/>
						</outline>
					<outline text="Mountjoy's Case / Caldwell v. Fulton / Funk v. Halderman">
						<outline text=" &quot;[I]f there be a division, the easements must be used or exercised as an entirety&quot; (p.829)."/>
						</outline>
					</outline>
				<outline text="Reasoning">
					<outline text="P. acquired title to boating and fishing privileges by grant ,and he and decedent acquired title to bathing rights by prescription. "/>
					<outline text="P. thereafter divided his title to boating and fishing rights between himself (3/4) and his brother, the decedent (1/4). &quot;[I]f there be a division, the easements must be used or exercised as an entirety&quot; (p.829).  P. made valid assignment of a one-fourth interest in rights to decedent, but these rights could not be commercially used and licenses granted without his consent. "/>
					</outline>
				<outline text="Result">
					<outline text="Judgment for P. upheld; the injunction remains in place; costs to be paid by D."/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text="right to swim originated as an easement by presciption for the Rufus &amp; Frank Miller partnership exercised against the ice corporation."/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;SCOPE; TERMINATION&lt;/B&gt;">
			<outline text="BROWN V. VOSS - SUPREME COURT OF WASHINGTON (1986)">
				<outline text="History" created="Thu, 29 Sep 2005 00:57:30 GMT">
					<outline text="" created="Thu, 29 Sep 2005 00:57:33 GMT"/>
					</outline>
				<outline text="Facts">
					<outline text=""/>
					</outline>
				<outline text="Issue">
					<outline text=""/>
					</outline>
				<outline text="Holding">
					<outline text=""/>
					</outline>
				<outline text="Rule">
					<outline text=""/>
					</outline>
				<outline text="Reasoning">
					<outline text=""/>
					</outline>
				<outline text="Result">
					<outline text=""/>
					</outline>
				</outline>
			<outline text="Commentary">
				<outline text=""/>
				</outline>
			<outline text="PRESEAULT V. UNITED STATES - UNITED STATES FEDERAL CIRCUIT COURT OF APPEALS (1996)" created="Thu, 29 Sep 2005 00:56:04 GMT">
				<outline text="History" created="Thu, 29 Sep 2005 00:57:11 GMT">
					<outline text="" created="Thu, 29 Sep 2005 00:57:23 GMT"/>
					</outline>
				<outline text="Facts">
					<outline text=""/>
					</outline>
				<outline text="Issue">
					<outline text=""/>
					</outline>
				<outline text="Holding">
					<outline text=""/>
					</outline>
				<outline text="Rule">
					<outline text=""/>
					</outline>
				<outline text="Reasoning">
					<outline text=""/>
					</outline>
				<outline text="Result">
					<outline text=""/>
					</outline>
				</outline>
			<outline text="Commentary" created="Thu, 29 Sep 2005 00:57:43 GMT">
				<outline text="" created="Thu, 29 Sep 2005 00:57:50 GMT"/>
				</outline>
			</outline>
		<outline text="&lt;B&gt;+NEGATIVE INTERESTS, RUNNING COVENANTS &amp; SERVITUDES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+INTRODUCTION TO POSSESSORY ESTATES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+LIFE ESTATES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+LEASEHOLDS &amp; DEFEASIBLE ESTATES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+INTRODUCTION TO FUTURE INTERESTS&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+FUTURE INTERESTS IN TRANSFEREES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+THE TRUST; INTRO TO LIMITS ON FUTURE INTERESTS&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+RULES FURTHERING MARKETABILITY&lt;/B&gt;">
			<outline text=""/>
			</outline>
		<outline text="&lt;B&gt;+THE RULE AGAINST PERPETUITIES&lt;/B&gt;">
			<outline text=""/>
			</outline>
		</body>
	</opml>
