DEFINITIONS
Occupancy
taking possession of real property or a thing which has no known owner, with the intention of gaining ownership.
Ratione soli
land-owners given constructive possession of wild animals on that land (originally “of the soil”).
Fugitive resource
previously unclaimed natural resources that wander from place to place (eg. oil & gas).
Prior appropriation
the person who first captures and puts to good use a fugitive resource (ie. water) is given a right superior to later appropriators.
"Difference without distinction"
difference begets no legal distinction
"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.
Covenant
A promise in a written contract or a deed of real property. The term is used only for certain types of promises such as a covenant of warranty, which is a promise to guarantee the title (clear ownership) to property, a promise agreeing to joint use of an easement for access to real property, or a covenant not to compete, which is commonly included in promises made by a seller of a business for a certain period of time. Mutual covenants among members of a homeowners association are promises to respect the rules of conduct or restrictions on use of property to insure peaceful use, limitations on intrusive construction, etc., which are usually part of the recorded covenants, conditions and restrictions which govern a development or condominium project. Covenants which run with the land, such as permanent easement of access or restrictions on use, are binding on future title holders of the property. Covenants can be concurrent (mutual promises to be performed at the same time), dependent (one promise need be performed if the other party performs his/hers), or independent (a promise to be honored without reference to any other promise). Until 1949 many deeds contained restrictive covenants which limited transfer of the property to the Caucasian race. These blatantly racist covenants were then declared unconstitutional.
Temporary damages
awarded for costs already borne
Permanent damages
awarded for damages already incurred as well as those likely to occur; award precludes future legal action by P. against D.
Fee simple
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 "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail." like "fee" it is often used in deeds transferring title, as in "harry hadit grants to robert gotit title in fee simple?" or similar words.
Leasehold estates
Defined as nonfreehold possessory estates.
Landlord retains seisin, the tenant is granted mere possession.
Servient estate
real property which has an easement or other use imposed upon it in favor of another property (called the "dominant estate"), 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.
Appurtenant
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.
Easement in gross
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.
Privity
contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be "privity" if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not "in privity" with the seller.
Fee tail
An old feudal expression for a title to real property which can only be passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran out (no children) then the title would revert to the descendants of the lord who originally gave the land to the title-holding family. Thus, it could not be transferred to anyone outside the family. The intention was to keep lands within a family line and not subdivided. In 16th century England, trusts were established to get around this "restraint on alienation" so the land could be held in trust for another person to use. Fee tail is of historic and academic interest only.
An attempt to create an estate that remained in the family, or more simply a dynasty, the property devised by which never escheats to the crown..
Fee tails can be disentailed by any instant tenant.
Life estate per autre vie
life estate conveyed to A which A then sells to C but conditioned by the duration of A's life.
Possibility of reverter
the potential that the title to a real property interest will return to the original grantor or giver or to his/her lineal descendants. Examples of events which could cause the title to revert: A gift of property to a hospital on condition that it be used forever for health care, but if the building is no longer used for that purpose the property will revert to the family of the original grantor; the real property is given to a daughter and her children, but will revert to her brother's descendants if her line dies out without further issue.
Seisin
An old feudal term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).
Hypothecate
A generic term for using property to secure payment of a loan, which includes mortgages, pledges and putting up collateral, while the borrower retains possession.
Habendum clause
The part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant.
PROPERTY RIGHTS & POWER
JOHNSON V. M’INTOSH - SCOTUS, (1823)
Caption & Key
LAND TITLES FROM PIANKESHAW INDIANS
History
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.
District Court of Illinois found for D.
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.
Facts
P. (johnson) had purchased land in illinois from piankeshaw indians in 1773 & 1775 (pre-revolution)
D. (m’intosh) granted such land by u.s.
Issue
1. are titles granted by “chiefs of certain tribes” to P. to be recognized by us courts?
2. more generally: can indians grant and private individuals receive therefrom titles recognizable by us court?
Rule
indian right of possession does not supersede dominion vested in the state gov.
Reasoning
Right of Discovery
“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.
right of discovery confined to countries “then unknown to christian people”.
Right of Conquest
european & 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).
Misc.
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.
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)
Result
judgment for defendant affirmed with costs.
Commentary
European & American govs acted as monopsonists, or sole buyers, of indian land, thereby greatly reducing the price paid for title.
property confers and rests upon power
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)
first occupancy theory
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.
the principle of first in time
“first in time” dates back to roman law
according to grotius: riches of earth first held in common -> avarice leads to scarcity -> institution of private property necessary to preserve peace -> claim to property originally vested in first owner
first in time principle is both “venerable and persistent”
its foundation nonetheless weak
“why shouldn’t i take it, just because you had it first?”
John Locke’s *labor theory*
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)
but why does one own one’s labor, and how broad is this doctrine in the industrial and information ages?
labor theory applied to Johnson v. M’Intosh: indians’ occupancy of land did not involve labor adequate to perfect a property interest
law of accession
when one person adds to the property of others
class notes - property rights and power
who’s property rights should prevail - piankeshaw or us gov?
property is assumed to be owned by its possessor
right of discovery is early form of international law
right of discovery gives exclusive right to extinguish occupancy either by purchase or conquest
elements of property
rights accrue to the physical object over space and time
DEFINING PROPERTY RIGHTS
PIERSON V. POST - SCOTUS, (1805)
History
Post sued Pierson for the latter’s killing of the pursued fox and won
Pierson thereafter appealed and was granted certiorari by scotus
Facts
Post led hounds in pursuit of a fox onto “unpossessed and waste land”
Pierson killed and absconded w/ the fox in plain view of the huntsman, Post.
Issue
did Post’s pursuit of the fox vest him with possession/occupancy in the animal?
or more broadly, “what acts amount to occupancy, applied to acquiring right to wild animals?” (p.20)
Holding
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.
Rule
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
Reasoning
a fox is an animal ferae naturae, the property in which is acquired solely by occupancy.
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.
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).
Result
decision reversed on appeal. scotus finds for Pierson.
Dissent
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.
class notes
what damages did Post sue for?
replacement of fox or the value thereof?
cost incurred during fruitless pursuit of fox?
on what basis would such a claim be made?
“absolute potential/probability” success of Post’s attempted pursuit?
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?
two types of judicial reasoning
justify position as a means of bettering society - utilitarianism.
PROPERTY RIGHTS & SOCIAL POLICY
GHEN V. RICH - US DISTRICT CT., MASS. (1881)
Caption & Key
WHALE HUNTING AND RECOVERY IN OPEN SEAS
History
“libel” suit (admiralty law equivalent of a lawsuit) to recover the value of fin-back whale.
Facts
fin-back whale frequents eastern portion of mass. bay in early spring
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..
the finder usually sends word to town of the whale’s location, for which a fee is frequently given.
the “owner” proceeds to the catch and removes on site the blubber.
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.
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.
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.
P. heard of the whale’s recovery and sent a crewmember immediately to claim it.
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.
Issue
which act vests ownership in whales, the killing, the salvaging or the purchase from uncertain authority?
Rule
Taber v. Jenny / 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.
Reasoning
the industry that has arisen around the rule (including fees paid for salvage) and general public acquiescence to thereto prove its feasibility.
without such a rule, the whaling industry would perish.
Result
court finds for P., $71.05 = price of oil less the cost of its extraction.
Commentary
Q: Rich was named as D. because he was the industry actor. why?
A: 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.
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,
individuals fail to report found whales?
oil processors accept whales from uncertain authority?
regulating the behavior of the businessperson produces the same net effect while focusing on a smaller, more discreet community.
KEEBLE V. HICKERINGILL, QUEEN'S BENCH (ENGLAND, 1707)
Caption & Key
INTERFERING W/ DUCK HUNTING ON ANOTHER’S PRIVATE PROPERTY
History
court found for P. w/ 20lbs damages.
Facts
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.
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.
issue
can damages be claimed for D.’s disturbance?
Holding
yes, they can.
but only because D.’s actions were malicious.
Rule
violent or malicious disruption of private commerce, as distinct from competition, should be punished as it imports damage to the aggrieved.
entrepreneurship should be promoted.
property owners may use their property for pleasure an/or profit
Reasoning
one who hinders another in that person’s pursuit of trade or livelihood is liable for the hindrance.
Result
decision for P. is upheld.
Commentary
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.
Class notes (September 13, 2005)
why not apply custom as law in all circumstances (read, why not use hunting custom in Pierson v. Post)?
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.
why not apply Pierson v. Post to the whaling industry?
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
Reading: the concept and role of property rights according to Demsetz (pp.41-59)
“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).
property rights also “convey the right to benefit or harm oneself or others” (p.41).
property rights are inextricably bound to externalities (ie. external costs, external benefits, non/pecuniary externalities).
an externality is an effect on others that a person is not forced to consider.
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.
external effects of wanton hunting were initially of small significance
advent of the fur trade
promoted increased wanton hunting
this increased significantly the importance of the previous externalities associated with free hunting
property right regime began to change in response, and specifically in the direction of an increased consideration for economic elements of externalities, ie.
specifically, the fur trade made it economic to begin encouraging the husbanding of fur-bearing animals.
husbanding requires protection from poaching which in turn requires a clear delineation of property rights.
generally, communal ownership increases externalities while private ownership reduces them.
Demsetz’s theory fails to consider and/or presumes
potentially market-irrational behavior of political actors/stakeholders.
property rights should be structured such that efficient usage of resources is maximized. why not maximize social stability or some other objective?
PROPERTY RIGHTS & CREATIVITY
INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS - SCOTUS, (1918)
History
ap brought suit against ins for alleged pirating of the former’s news content and for unfair competition.
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.
ct. of appeals modified and sustained the injunction against ins.
Facts
AP & INS are news agencies engaged in the business of collection and dissemination thereof to their respective member newspapers (clients).
ap alleges ins has pirated its news by
1. bribing ap client employees to leak ap news to ins for the latter’s distribution without credit (pecuniary or otherwise) to their clients.
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.
3. copying ap’s news from bulletin boards and early editions for profitable and uncredited redistribution.
Issue
is “news” property?
if there is property in news, how long does the property survive once the news is published if it survives at all?
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?
if this competition is unfair, may ins be lawfully restrained from said practice?
Holding
kind of, it’s “quasi-property”.
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.
Rule
labor theory vests a degree of property in those who endeavor to remove an object from a state of nature.
unfair competition in business is to be discouraged (see keeble v. hickeringill).
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”.
Reasoning
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.
when evaluating news as property, one need separate its substance (ie. the event reported) from processes of distribution & publication (ie. labor expended in the making of property).
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.
Result
decision of circuit ct. of appeals is affirmed for P.
Commentary
property value of information consists
1. initially in its alienability from others (public), but also
2. in the means by which it is collected and distributed (labor product).
finally a holding which indicates that fair competition must be value-added, stating that competitors in biz may not simply appropriate another’s product.
is not the concept that one may not reap what another has sown when applied to property cases wherein the property 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?
CHENEY BROTHERS V. DORIS SILK CORP. - US 2ND CIRCUIT CT. OF APPEALS (1930)
History
trial court found for original D., Cheney Bros.
Facts
Doris Silk produces a large number of patterned fabric each season.
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.
designs were not copyrightable or patentable under contemporary law and practice.
cheney bros. copied one design and undercut doris silk’s price in october season, 1928.
Issue
is property, once contrived, protected against copy without patent or copyright?
Rule
constitutional division of powers, specifically between judicial and legislative branches.
Reasoning
proscription of imitation in chattel is vested in congress by the US constitution and is thus beyond the powers of the judiciary.
Result
finding of trial court is affirmed and may be dismissed if D. so chooses.
VIRTUAL WORKS, INC. V. VOLKSWAGON - US 4TH CIRCUIT CT. OF APPEALS (2001)
History
Volkswagon brought action against Virtual Works for cyber-squatting.
Facts
Virtual registered vw.net on oct. 23, 1996.
acpa, or §1125 passed in 1999
call was placed subsequently by D. to volkswagon threatening to sell domain name to highest bidder unless the latter responded in 24hrs.
Issue
did Virtualworks act in “bad faith” when registering its domain name as “vw”.
Rule
anticybersquatting consumer protection act (acpa, or §1125)
Reasoning
broad construance of “safe harbor” clause in §1125 would undermine the validity of the law.
§1125 needs to consider
impact on Volkswagon’s “mark” by usage of a domain name which is identical or confusingly similar thereto.
intent of Virtual Works in choice of domain name an its later sale
Result
decision upheld for Volkswagon.
Commentary
§1125 was applied ex post facto in order to punish Virtual Works.
Reading: Property in one's persona (p.77) - “Right of publicity”
INTRODUCTION TO NUISANCE LAW
nuisance law
nuisance law is part torts and part property.
torts elements - liability arises from negligent or otherwise wrongful activity
property element - liability arises from interference w/ use or enjoyment of land.
is a means by which common law judges resolve conflicts in land use.
“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.
MORGAN V. HIGH PENN OIL CO. - N. CAROLINA SUPREME COURT (1953)
History
civil action to recover temporary damages for a private nuisance, and also an equitable action to abate such nuisance by injunction.
trial court found for the P., awarding temporary damages of $2500 and a permanent injunction.
Facts
P. bought their composite 9-acre tract of land (from separate smaller conveyances) in 1945.
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.
oil refinery established in 1950.
oil refinery, which is approx 1000 feet from dwelling in question, emits sounds and noises unreasonable to neighbors of ordinary sensitivities.
noises were at all hours of the day, smells came two or three times weekly.
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.
D. refused to address complaints of P.
Issue
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?
Holding
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.
Rule
“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”.
Reasoning
“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”.
liability may be
intentional
conduct is unreasonable under the circumstances of a particular case.
acts purposefully, or is aware/likely to be aware that the nuisance in question arose from his/her actions.
unintentional
when conduct is negligent, reckless, or ultrahazardous.
Result
decision of trial court upheld, temporary damages and permanent injunction ordered.
Commentary
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).
"unreasonableness” (p.750)
two approaches to the defintion of "unreasonableness"
1. the restatement of torts holds that "gravity of the harm outweighs the utility of the actor’s conduct”.
evaluation of the gravity of the *harm* should consider:
extent & character of the harm
social value of the P.’s use
suitability of P.’s use to locality in question
burden on P. required to avoid harm
*utility* of the actor’s conduct need consider:
suitability of D’s use to the locality
impracticability of D. preventing harm
defines an action wherefrom the "level” of interference exceeds a conceptual threshold delimiting the point of liability.
court might have considered the devastation of home-owner value in deciding the case.
how did high penn oil come to own said property?
local government consideration of tax revenues?
in modern day, corporations often purchase land through 3rd party agents in order to avoid community outrage.
ESTANCIAS DALLAS CORP. V. SCHULTZ - TEXAS CT. OF APPEALS (1973)
History
P., schultz, sued to permanently enjoin D. from operating noisesome a/c equipment which neighbored the former’s residence.
trial court granted a permanent injunction w/ damages of $9000 and $1000 awarded to P. wife and husband respectively; estancias dallas corp. appealed.
Facts
nuisance arising from a/c began may, 1969 and has been continuous (3-4 years?) since that time.
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 "jet airplane or helicopter”.
several neighbors offered corroborating testimony.
P. land valued dropped from $25000 pre a/c to $10-12000 post.
initial cost of installing individual (read, "less noisesome”) a/c above actual cost = $40,000; cost required subsequently to change system = $150,000.
apts. unrentable w/out a/c.
Issue
does a court need to balance harm and benefit when applying an injunction under the common law of nuisance?
Holding
no, the court need only consider the benefit that would accrue to the public in the granting of an injunction.
Rule
storey v. central hide & rendering co.
when finding a nuisance, court must consider the "balancing of equities” in granting an injunction.
Reasoning
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.
Result
judgment of jury affirmed.
Commentary
Havelock Ellis - "progress” is the exchange of one nuisance for another.
injunctions are often for sale
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.
what are the positive and negative effects of the power given to P.’s winning an injunction?
disadvantages - think about the tragedy of the anti-commons (p. 56)
"balancing of equities” occasionally at odds w/ the calculus for redress given to nuisances in the restatement.
NUISANCE RIGHTS & REMEDIES
introduction
property rights in the following cases were "incompletely" defined when orginally conceived
property, however, - comes w/ implied limitation that it can't be used to harm one's neighbor and/or their property.
see rule applied in morgan v. high penn oil co.
"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”.
more generally, a "nuisance" must be
1. substantial (more than $100)
2. unreasonable, ie. infringes upon use and enjoyment of land by others.
definition of property rights is influenced by both place and time.
an efficient property regime will encourage creativity in defining and redefining the rights of accorded therefrom.
BOOMER V. ATLANTIC CEMENT CO. - COURT OF APPEALS OF NY (1970)
History
P. sued D. for property damages resulting from nuisance.
trial court found a nuisance, awarded "temporary" damages but denied injunction.
P. appealed; appellant division upheld; P. appealed again to court of appeals.
Facts
D. operates a cement mill in close proximity to P.'s home.
P. claims that dirt, smoke and vibration emanating from D.'s plant has damaged the former's property.
Issue
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?
should damages awarded P. be permanent?
holding
no, an injunction should still be granted.
yes, permanent damages should be awarded to forestall future, redundant actions by P. against D.
Rule
Whalen v. Union Bag and Paper Co.
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 "unsubstantial", an injunction will follow.
Reasoning
a court may not deny an injunction so long as the damage suffered by a P. is not "unsubstantial".
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.
"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".
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.
Result
orders reversed w/out costs and remitted to ny state supreme court.
Dissent
the majority's decision licenses a continued and acknowledged wrong.
Commentary
conditioning an injunction to the payment of permanent damages seems to provide an incentive to the offending party to effect their own "balancing of equities". in actuality, however, the court assumed responsibility for the striking of that balance when it calculated the amount of permanent damages.
the permanent servitude placed on the land is similar to an easement:
i.e. - the cement factory has paid for usage of / rights to P.'s land, though the "usage" in this case is unusual.
subsequent parties have fair notice of the cement factory's claim to the property in question and can therefore factor this "easement" on the land when considering its purchase.
SPUR INDUSTRIES, INC. V. DEL E. WEBB DEVELOPMENT CO. - SUPREME COURT OF ARIZONA (1972)
History
P. sued to permanetly enjoin D. from continued operation of the latter's feed lot.
trial court found for the P., granting permanent injunction against D.
Facts
Youngtown, a retirement community, established in 1954.
D.'s predecessor's established feed lot on present site in 1956.
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.
D. assumed operation of a feed lot located on land in question and expanded operation from 35 to 114 acres in 1960.
P.'s development gradually encroached upon D.'s feedlot until the two were separated by a distance of only 500 feet.
Issue
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?
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?
Holding
yes, they may be so required.
Rule
statute 36-601
public nuisances dangerous to public health are enjoinable.
Stevens v. Rockport Granite
"extreme rights" may not be enforced where a P. is found "coming to the nuisance".
Reasoning
"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".
Result
affirmed in part, reversed in part and remanded for further proceedings.
Commentary
Q: who should be allowed to bring a public nuisance claim, and why?
A: individuals subject to special injury are allowed to bring nuisance suits on behalf of the public. 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.
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:
1. abate the activity in question by granting an injunction.
2. allow activity to continue if D. pays damages.
3. allow activity to continue by denying all relief.
4. abate the activity if the **P.** pays damages.
this option was derived at approximately the same time by the court in spur v. del and a pair of schoars at harvard.
nuisance litigation is an expensive, cumbersome and frequently fortuitous means by which to address complex environmental issues.
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.
Q: what are the dis/advantages of regulation versus incentive systems as a means of controlling pollution?
TYPES OF EASEMENTS & SERVITUDES
Two MAJOR types of modern SERVITUDES
1.Easements
Four kinds, Easement by:
a. express written grant - permission to tresspass given freely in writing in accordance w/ the statute of frauds
b. implication
Must prove prior exisiting use (see Van Sandt v. Royster)
characteristics of prior existing use:
3. permanent and continuous
4. necessary and beneficial
Can be created in several ways:
easement by implied reservation
must prove:
1. untiy of ownership of the alleged dominant and servient estates
2. easement is implied by necessity (see Othen v. Rosier) not by convenience or by prior existing use
3. the necessity existed at the time of severance of the two estates
easement by implied grant
c. prescription - right established by simply "taking it"
Two types
Affirmative Easement - A is given right to enter upon B's land
Negative Easement - A is given the right to enforce a restriction on the use of B's land
highly restricted under old English law
no prescriptive negative easements allowed
Two means of attachment
Appurtenant - a right to land vested in land
In Gross - a right to land vested in an individual
2. Covenants - A is given the right to require B to perform or not perform some act on B's land
a promise in a written contract or deed of real property which "run w/ the land"
a. Real or Affirmative Covenants - enforeceable at English Courts of Law
the following are required for the covenant to "run w/ the land":
must be expressed in writing (not created by implication or by prescription)
intent of the burden to run w/ the land to bind/benefit a successive party.
notice given to subsequent party (actual or constructive)
touch & concern
"a covenant which imposes, on the one hand, a burden upon an interest in land, which on the other hand increases the value of a different interest in the same or related land."
ie. A gated community demands that all residents maintain highly manicured lawns. This covenant burdens the land but creates value in that land and/or neighboring land.
horizontal & vertical privity
b. Equitable Servitudes (Negative Covenant) - enforceable in English Courts of Equity
the following are required for the servitude to "run w/ the land"
can be created by implication
intent of the burden to run w/ the land to bind/benefit a successive party.
notice given to subsequent party (actual or constructive)
Two MINOR types of modern SERVITUDES
1. profits - ????
A is given right to enter upon B's land and remove something attached to the land.
WILLARD V. FIRST CHURCH OF CHRIST, SCIENTIST - SUPREME COURT OF CALIFORNIA (1972)
History
trial court found w/out jury for the P.
present case is thus heard on appeal.
Facts
McGuigan owned adjacent lots 19 & 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 & 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.
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: "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....".
land was then sold after insertion of the above clause.
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.
willard became aware of the clause several months later and brought action against the church.
Issue
under CA property law, may a grantor, in deeding real property to one person, effectively reserve an interest in the property to another?
Holding
yes, in this case it may.
Rule
old common law developed from feudal practice and backed by eldrige v. see yup company
one may not reserve an interest in title to a stranger to the title.
new rule on the fly
conveyance's should give effect to the grantor's intent.
court must balance potential injustice resulting from grantor's intent to that deriving from reliance upon old feudal rule.
Reasoning
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.
P. failed to indicate relaince upon old feudal rule.
Result
judgment reversed in D.'s favor.
Commentary
mcguigan could have given effect to her intent even under the old feudal law by simply "selling" 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.
HOLBROOK V. TAYLOR - SUPREME COURT OF KENTUCKY (1976)
History
Appellee homeowners filed an action against appellant landowners to establish a right to the use of a roadway.
The homeowners claimed a right to the use of the roadway by prescription and by estoppel.
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.
Facts
1942: appellant bought tract of land.
1944: permission granted to someone to cut road on appellant's land to haul coal.
1949: roadway not used as much, and therefore closed.
1957: appellants built a tenant house and tenants used the road again.
1961: tenant house burns down.
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.
after the appellees improved the road of egress/ingress, contention arose regarding appelle's use thereof.
Issue
may the appellee be granted an easement right to the land in question by estoppel or prescription?
Holding
yes, on estoppel, no, on prescription.
Rule
Grinestaff v. Grinestaff
easements may be created by
prescription - right established by simply "taking it"
Lashley Telephone Co. v. Durbin
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.
Reasoning
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.
Result
judgment at trial court is affirmed for the appellee.
Commentary
easement by estoppel lasts "so long as its nature calls for".
VAN SANDT V. ROYSTER - SUPREME COURT OF KANSAS (1938)
Facts
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.
adjoining tract of land sold through mesne conveyances to D., and a third tract, adjoining the second tract was also sold by common owner.
P.'s home was flooded one day with sewage, which prompted his discovery of the common sewage line.
P. moves to enjoin neighbors from flushing.
Issue
does an easement by either implication or prescription in favor of D. exist across the property of p?
Holding
yes, an easement of implication exists.
Rule
Howley v. Chaffee
a conveyance of deed may not include implicit reservations in favor of the conveyor unless the easement so reserved is one of strict necessity.
Reasoning
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.
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.
the fact that usage may not be visible does not mean that it is not apparent.
P. purchased with actual notice, i.e. he knew there was modern plumbing, and that the plumbing had to drain into a sewer.
Commentary
would this easement of implication by necessity survive the installation of a separate sewer line beneath a street adjacent to Royster?
PRESCRIPTIVE & NECESSARY EASEMENTS
OTHEN V. ROSIER - SUPREME COURT OF TEXAS (1950)
Reasoning
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
P.'s use of the roadway was merely permissive, and thus it could not ripen into a prescriptive right.
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.
Commentary
6 elements of easement by prescription
2. continuous action of user
3. uninterrupted by servient owner
5. under a claim of right by user
6. for the prescriptive period as determined usually by state
the court applied a doctrine of "strict necessity"
PUBLIC TRUST, ASSIGNABILITY
MATTHEWS V. BAY HEAD IMPROVEMENT ASSOCIATION - SUPREME COURT OF NEW JERSEY (1984)
History
P., NJ public advocate, sued D. to guarantee public access to "private" beachfront.
Superior Court granted summary judgment if favor of D.
P. appealed to State Supreme Court
Facts
Association owns 7/9 streets that end in the dry sand areas immediately adjacent to the shore (i.e. the beach).
Association owns fee in six shore front properties.
Many owners of beachfront property executed and delivered to the Association leases, revocable by either party to the lease on thirty days' notice.
Some have not (permitted) Association to use their lands, but most have.
Association has de facto control over public usage of the beach, as it is physically impossibal/impractical for the public to gain access to the shore except that they pass through the dry sand areas of the Association.
Association employs "beach police" to keep non-Association members off the dry sand areas owned thereby.
Issue
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?
Rule
Public Trust doctrine
Ancient principle states that "land covered by tidal waters belong[s] to the sovereign, but [exists] for the common use of all the people".
Borough of Neptune City v. Borough of Avon-by-the-Sea
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.
Reasoning
Avon ruling extends the domain of the Public Trust to dry sand areas situated above the mean high water mark.
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.
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.
Result
Summary judgment in favor of D. was reversed.
Commentary
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).
definition of patent in real property
old days -> property rights conveyed from the crown
now -> land that has passed from public to private ownership
MILLER V. LUTHERAN CONFERENCE AND CAMP ASSOCIATION - SUPREME COURT OF PENNSYLVANIA (1938)
Caption & Key
"Bathing" rights in the artificial Lake Naomi, Poconos, Penn.
in gross, prescription, one stock, assignability, riparian rights
History
P. sued to enjoin D. from placing diving floats on the lake, and from encouraging and instigating the camp community from swimming in the lake.
injunction was granted at trial.
Facts
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.
The dam was built, forming an artificial lake.
Corporation granted to P. the exclusive right to fish and boat in the artificial lake.
P. granted to brother a one-fourth interest in the former's fishing, boating, and bathing rights and privileges.
Brother died. Executors of the decedent's estate granted a license to D. purporting to grant to the latter permission to use the lake.
P. and his wife filed a bill in equity seeking an injunction to prevent D. from using the lake.
The trial court issued the injunction.
Issue
Does the law prohibit assignment of easements in gross?
If assignable, are such easements also divisible?
Holding
No, providing there exist clear evidence of such an intention.
Yes, though the title thereto needs be exercised as "one stock", or rather w/ the consent of all sovereign parties.
Rule
Tide Water Pipe Co. v. Bell / Dalton Street Railway Co. v. Scranton
Easements in gross are assignable.
Mountjoy's Case / Caldwell v. Fulton / Funk v. Halderman
"[I]f there be a division, the easements must be used or exercised as an entirety" (p.829).
Reasoning
P. acquired title to boating and fishing privileges by grant ,and he and decedent acquired title to bathing rights by prescription.
P. thereafter divided his title to boating and fishing rights between himself (3/4) and his brother, the decedent (1/4). "[I]f there be a division, the easements must be used or exercised as an entirety" (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.
Result
Judgment for P. upheld; the injunction remains in place; costs to be paid by D.
Commentary
right to swim originated as an easement by presciption for the Rufus & Frank Miller partnership exercised against the ice corporation.
SCOPE; TERMINATION
BROWN V. VOSS - SUPREME COURT OF WASHINGTON (1986)
Caption & Key
an extension of an easement over a servient estate to a second dominant estate.
appurtenant easement, trespass
History
Brown sued to compel Voss to remove obstructions placed accross an easement leading to Brown's land.
Voss counterclaimed for damages and an injunction against P.'s use of the easement.
Trial Court denied injunction for D. against P. and awarded each party $1 in damages.
Court of Appeals reversed and granted D. an injunction against P.
Facts
Voss created an easement over his land by express grant to the land (parcel B) of Brown's predecessor.
Broan purchased parcel B and a second parcel situated behind the first (parcel C).
Brown began construction on a house that was to straddle parcels B & C w/out informing Voss, thus angering the latter.
Voss erected obstacles across the easement leading to Voss's parcel B.
Brown sued for the removal of said obstacles and Voss counterclaimed, stating that construction equipment employed by Brown had strayed from the easement thus trespassing upon Voss, and that Brown could not use the easement to parcel B for the benefit of parcel C.
Issue
To what extent if any may the owner of an easement traverse the servient estate in transit to both the original dominant estate and a second estate not provided for in said easement providing the use thereof does not increase the burden on the servient estate?
Did the trial court abuse its discretion in denying D. an injunction against P.?
Holding
Trial court found as a matter of fact that the orginal easement extended to the second dominant estate w/in limitations.
No, the trial court did not err in denying D. the requested injunction.
Reasoning
The Supreme Court of Washington cites numerous rules which indicate that an easement may not be extended to a second dominant estate against the will of the servient owner regardless its effect on the servient estate. The court found this to be a moot issue of fact, however, which was already fixed by the trial court.
The trial court correctly executed its discretion in withholding injunction. The trial court is given great latitude to exercise this power. One of the few essential criteria for the issuance of an injunction is evidence of actual and substantial injury sustained by the requesting party. No actual or substantial injury was found in this case.
Result
Decision of the Court of Appeals is overruled, and the injunction granted thereby is lifted.
Dissent
P. willfully "encroached" upon D. and there use of the granted easement to access a non-dominant estate should therefore be enjoined.
PRESEAULT V. UNITED STATES - UNITED STATES FEDERAL CIRCUIT COURT OF APPEALS (1996)
Caption & Key
extinguish by abandonment; usage of easement expandable; interstate commerce commission
History
P. sued ICC and lost in 1990.
P. property owners instituted an action against D. United States for compensation due to a taking of their land.
The United States Court of Federal Claims concluded on summary judgment that the United States was not liable under U.S. Const. amend. V and found in favor of D.
The property owners appealed.
Facts
Previous land-owner, Manwell, deeded a portion of the property in question to the RR.
Language of the deed indicated that a fee simple was sold by Manwell to the RR.
Fee simple in the Manwell property is ultimately sold to P. at some point prior to the RR's termination of active operations therethrough in 1970.
RR removed the tracks crossing the property in question in 1975, but did not apply to ICC for abandonment.
RR established agreement w/ city of Burlington in 1985 which allowed usage of the strip as a public trail.
ICC recognized this agreement ex post facto in 1986 under the federal Railt-to-Trails act one year later.
P. sued, claiming the RtoT Act was unconstitutional.
Issue
Did the RR originally acquire a fee simple or merely an easement through the property in question?
If the RR acquired only an easement, were the terms of the easement limited to RR usage?
Holding
The RR acquired an easement.
The easement allowed only for RR usage.
Rule
US Constitution, 5th amendment
private property may not be taken for public use w/out just compensation.
Hill v. Western Vermont Railroad
RR take only as much private land as is needed for public purposes and nothing more.
Rails-to-Trials Act of 1983
Gives the ICC authority to authorize abandonment of the line or to permit discontinuance of rail service and transfer of the railroad right-of-way to a public or private group willing to maintain the right-of-way as a public trail.
Reasoning
RR take only so much private land as needed. Thus, although the deed purported to transfer a fee simple, it truly only granted an easement.
The scope of an easement may be adjusted over time but any change must remain consistent w/ the terms and the spirit of the original grant. Nature trail usage and RR transport are fundamentally different enterprises and the original grant did likely intend to allow for the former when establishing an easement for the latter.
The RR unambiguously extinguished the original easement by abandonment when it physically removed the tracks from the property in question in 1975.
Result
Reversed and remanded. Judgment to P. for $234,000 plus interest from the time the government opened the nature trail.
Dissent
3 of 9 judges dissented holding that the removal of the tracks did not constitute abandonment and therefore did not extinguish the easement. Moreover, nature trail usage is a reasonable adjustment of the original easement.
NEGATIVE INTERESTS, RUNNING COVENANTS & SERVITUDES
TULK V. MOXHAY - COURT OF CHANCERY, ENGLAND (1848)
History
Injunction granted by Master of Rolls (lower court of chancery, a court of equity).
Facts
In 1808, P. sold "Leicester Square garden or pleasure ground, with the equestrian statue then standing in the center, and iron railing and stone work round" to one Elms with a covenant that Elms, his heirs and assigns, maintain the garden for all times, at their own expense.
Elms conveyed land in mesne to D. whose purchase deed contained no such covenant, though he was aware of the covenant in the 1808 deed.
In the 1840s, D. made manifest his intentions to alter the property in violation of the original deed.
P., who retained property abutting the the Square, objected and brought suit against D.
Issue
May a party use land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased?
Rule
Principles of Intent, Notice & Equity.
Reasoning
Elms paid a lower price for burden of negative easement and should not therefore be able to sell for higher price by eliminating unilaterally the negative easement.
Result
Affirmed, Injunction granted.
POSSESSORY ESTATES
3 categories of rights in time:
Right to a thing as long as one lives - life estate
Pass the thing on after one dies, determining who receives the property according to tradtional conventions (ie. primogeniture).
Pass the thing on after one dies to whomever one pleases.
Right to alienate property was first recognized for tranfer of estates after death. The English then soon asked, "why can't i devise that my property pass to another while i yet live?"
Q: if O devised a life estate to A and then a fee simplein remainder to B, to what extent would the latter's interest be reachable by creditors?
A: the interest is reachable but its value is discounted by the portion of the property likely to be "consumed" by A during his/her lifetime.
INTRODUCTION TO POSSESSORY ESTATES
LIFE ESTATES
WHITE V. BROWN - SUPREME COURT OF TENNESSEE (1977)
Caption & Key
life estate; remainder; alienation
History
Trial court ruled in favor of D.s.
P.s appealed to appellate court, wherein verdict again issued in favor of D.s.
Petitioners, devisee and executrix (White), then sought review of the order which found that the testator devised a life estate in her house to petitioner devisee, with a remainder to respondents. Petitioners argued that testator's will devised a fee simple and that a restraint on the sale of the house was void as against public policy.
Facts
Testator left a holographic (hand-written) will in which she devised her house to P.
The will contained language forbidding the sale of the home.
Petitioners, devisee and executrix, filed suit against respondent heirs, alleging that the will devised the house to petitioner devisee in fee simple absolute, and that any restraint on alienation was void as against public policy.
Respondent argued that the restraint on alienation evinced an intent by the testatrix to devise a life estate with a remainder in fee simple absolute to the respondents.
Issue
Did the testatrix devise a fee simple absolute to the P. or a life estate thereto w/ a remainder in fee simple to D.s?
Holding
A fee simple absolute was devised to P.
Rule
Tenn. Code Ann. §§ 32-301, 64-501
A fee simple absolute is passed unless it can be determined that the testator clearly intended to devise a life estate.
Reasoning
A fee simple absolute is presumed even in the absence of words of inheritance, providing there was no language that could be construed to create a remainder. Thus, the restraint on the sale of the house ("my house is not to be sold") was insufficient to overcome the presumption that a fee simple had been devised, and testamentary restraint on alienation was void.
Result
Judgment of the lower courts reversed and the cause remanded for further proceedings w/ costs to be paid by D.
BAKER V. WEEDON - SUPREME COURT OF MISSISSIPPI (1972)
Caption & Key
remaindermen; life tenant; judicial sale; economic waste; future interests
History
Weedon sued for a directed judicial sale of the entire property.
Chancery Court (of equity) found for the Weedon, ordering a directed sale of the entire real estate.
Appellant contingent remaindermen, represented by Baker, challenged the judgment of the Chancery Court of Alcorn County (Mississippi), which directed a sale of land with provisions for the investment of the proceeds with the interest therefrom to be paid to appellee, Weedon, life tenant for her maintenance, and were granted an interlocutory appeal.
Facts
The decedent John Weedon wed Lula Edwards and produced two daughters therefrom. One of these daughters, Mrs. Baker, herself begot three daughters, who are represented as the appellants in the present suit.
After his first marriage, John married another woman Ella Howell, to which two children were born, and both since have died.
John (55 years old) later purchased Oakland Farm and married Anna Plaxico (17 years old). The two lived together and managed the property until the former's death in 1932.
Prior to death, John devised a life tenancy in D., Anna, to the property in question w/ a contingent remainder to her issue (biological); and in the event she died w/out issue, w/ an alternative contingent remainder to any of John's remaining grandchildren.
Anna continued to run the farm until age forced her to stop in 1955, whereafter she began renting out the property.
Her income at the time of suit was comprised of $1000 from rent, $300 per year from sign rental, and $50 a month from social security.
A right-of-way through the property was sought by the Mississippi State Highway Department was settled by Baker, as representative of the remaindermen, for a sum of $20,000, of which $7500 was given to Anna in moral deference to and sympathy for her life's wrk on the property.
The value of the property appreciated significantly in the years following the initial trial and is expected to appreciate from $168,500 to $336,000 in the ensuing four years (this estimate is highly specious).
Anna's ability to support herself financially eroded thereafter, prompting her to seek a directed sale of the property and a share in the monies therefrom.
Issue
Was the Chancery Court sufficiently empowered to order a directed sale of the land in question?
And if so, under what conditions may a Chancery Court order such a directed sale?
Holding
Yes, it had the power to order the sale.
Prevention of economic waste is one condition, while "necessity", broadly construed, is another.
Rule
Simes, Law of Future Interests, section 53
"By the weight of authority, it is held that a court of equity has the power to order a judicial sale of land affected with a future interest and an investment of the proceeds, where this is necessary for the preservation of all interests in the land. When the power is exercised, the proceeds of the sale are held in a judicially created trust. The beneficiaries of the trust are the persons who held interests in the land, and the beneficial interests are of the same character as the legal interests which they formally held in the land" (p.233).
Kelly v. Neville / Riley v. Norfleet
Chancery courts have jurisdiction sufficient to order the sale of land for the prevention of waste.
Lambdin v. Lambdin
Proof of "necessity" is required for a Court of Chancery-issued order of judicial sale.
Reasoning
Deterioration and waste of the property is not the exclusive and ultimate test to be used in determining whether a sale of land affected by a future interest is proper.
Consideration should also be given to the question of whether a sale was necessary for the best interest of all the parties, namely the life tenant and the remaindermen.
The best interest of all the parties would not be served by a judicial sale of the entirety of the property.
The parties should negotiate and hypothecate the land to provide for D.'s welfare; but failing that, a portion of the property could thereafter be subject to a directed sale.
Result
The court reversed the trial court's judgment, which directed a sale of the property, and remanded the case to the trial court, with directions that sale of a part of the burdened land was to be made only if the life tenant and contingent remaindermen could not unite to hypothecate the land for sufficient funds for the life tenant's reasonable needs.
Commentary
Two types of waste:
Affirmative waste
Arises from injuries acts that have more than nominal impact (ie. acts that substantially reduce the value of the property concerned).
Permissive waste
Arises from negligence which negatively impacts property in question.
Fees simple defeasible and their corresponding management of reversionary interests increase the potential inalienability of property and introduce an element of risk, as such, in every estate devised thereby.
Q: The right of way sold to the Mississippi hwy authority in Baker v. Weedon was unilaterally negotiated by grandchildren/remaindermen. Under what rule does a party's future but unperfected interest give that party a right to negotiate a partial sale or an encumbrance of the property in question?
A: Such remaindermen can sell their future interests but their ability to unilaterally negotiate the sale--either whole or in part--is unfounded.
LEASEHOLDS & DEFEASIBLE ESTATES
MAHRENHOLZ V. COUNTY BOARD OF SCHOOL TRUSTEES - APPELLATE COURT OF ILLINOIS (1981)
Caption & Key
condition subsequent; fee simple determinable
History
P. moved to quiet a property title deeded to D. in an alleged fee simple determinable to which P. believed they held a reversionary interest.
Circuit Court of Lawrence County's (Illinois) found for D., holding that the property was deeded thereto as a fee simple subject to condition subsequent from which no reversionary interest vested in P.
Facts
The 1 1/2 acre parcel of property in question was deeded by the Hutton's to D. in 1941--so long as such property was used for school purposes--cut from a 40-acre tract of which the remaining 38 1/2 acres were deeded to P.
D. ceased to hold classes on the property in 1973.
In May, 1977, Harry Hutton, the heir of the aforementioned Hutton estate, conveyed his interest in D.'s land to P.
In September, 1977, Harry Hutton disclaimed his interest in the property in favor of D., releasing any possibility of reverter or right of entry for condition broken, or other similar interest, in favor of D.
Issue
Did the Hutton's intend to devise the 1 1/2 acres to D. in "fee simple determinable" or in "fee simple subject to condition subsequent"?
Holding
A fee simple determinable was deeded.
Rule
Dunne v. Minsor / Newton v. Village of Glen Ellyn / Property Restatement sections 44 & 45 (both parties stipulate).
When uncertain language is at issue, a fee simple defeasible and not a fee simple absolute subject to a covenant should be construed.
An Act relating to Rights of Entry or Reentry, section1 (Illinois Law -> 765 Ill. Comp. Stat. 330/1-1) / Deverick v. Bline
Rights of re-entry for condition broken and possibilities of reverter are neither alienable nor devisable (in Illinois); but such rights are inheritable.
Treatise -> Simes and Smith, "The Law of Future Interests", §286 / Property Restatement, §44, comment 1
"Upon a grant of exclusive use followed by an express provision for reverter when that use ceases, courts and commentators have agreed that a fee simple determinable, rather than a fee simple subject to a condition subsequent, is created" (p.246).
City of Urbana v. Solo Cup Co.
The ambiguity detailing the provisions by which possession is returned to the grantors seem to trigger a mandatory return rather than a permissive return (ie. a fee simple determinable).
Reasoning
If the younger Hutton had only naked right of re-entry for the condition broken, he could not own the property until he had legally re-entered the land and would thus have had nothing to convey to P. in May of 1977. If the possibility of a reverter existed, however, then he owned property as soon as it ceased to be used for the original deed's purpose and would thus have passed title to P. in May of 1977.
The language of the original deed is vague and therefore needs be constructed.
Constructional assumptions find that a fee simple determinable obtains in the decedents' usage of the word "only" in accordance with the guidelines put forth in Simes and Smith, "The Law of Future Interests", §286 & the Property Restatement, §44, comment 1.
Result
The decision of the trial court is reversed and remanded. A fee simple determinable exists and P. therefore is entitled to pursue claim for quiet title.
Commentary
Fees simple defeasible
3 types:
fee simple determinable - creates a present interest w/ the "possibility of a reverter" (default to the grantor).
fee simple subject to condition subsequent - creates a present interest w/ a conditional "right of entry" which must be exercised by the grantor (or vestee) in order to gain effect.
fee simple subject to executory limitation - creates a present interest w/ an automatic future interest in a third party.
MOUNTAIN BROW LODGE NO. 82, INDEPENDENT ORDER OF ODD FELLOWS V. TOSCANO - CALIFORNIA FIFTH DISTRICT COURT OF APPEALS (1968)
Caption & Key
alienation; condition subsequent; reverter
History
P. sued to quiet title to a parcel of land, the deed to which was received as a gift from the Toscanos, since deceased.
Trial Court found for D., Trustees of the decedents' estate.
Facts
P., a non-profit organization, received the deed in question from the decedents.
The deed's language restricts the use and benefit of the property to P. only, w/ a reversion to the estate of the deed's originators.
Issue
Did the deed intend to devise property w/ a restriction on the grantee's power of alienation, invalid by law, or a fee simple defeasible?
Holding
A fee simple defeasible was intended.
Rule
Civil Code §711
"Conditions restraining alienation, when repugnant to the interest created, are void" (p.252).
Los Angeles Investment Company v. Gary / Mitchell v. cheney Slough Irrigation Co.
Restraints upon land use are valid, while restraints upon alienation are not.
Summary California Law, Real Property §97 / Brannan v. Mesick / Aller v. Berkeley Hall School Foundation
California constructional assumptions prefer "fees simple subject to condition subsequent" to "fees simple determinable".
Reasoning
The language of the deed makes clear that a fee simple absolute was not devised to P. Rather, a restraint was placed upon P.' s potential use of the property in question. These conditions restrained P.'s--a singular entity's-- use of the land, and are not to be construed as a per se restraint upon alienation, though they may produce the same de facto effect.
Result
Judgment for D. modified and upheld.
Commentary
The distinction between a covenant which restrains the alienation of a fee simple absolute and a condition which restricts land use and creates a defeasible estate was long recognized at common law and is recognized in California. Thus, conditions restricting land use may be upheld by the California courts even though they hamper, and often completely impede, alienation, as in the instant case.
INTRODUCTION TO FUTURE INTERESTS
INK V. CITY OF CANTON
History
In appropriation proceedings, the Director of Highways stated that the value of land taken was $96,247, that the value of structures taken was $2,875, and that the damages to the residue of the property not taken was $31,700, and deposited a total of $130,822 to be distributed to those having interests in the property.
P. sued for a declaratory judgment with respect to the rights of the parties in a 33-1/2-acre tract of land known as Ink Park.
Court awarded entire amount of the condemnation proceeds ($130,822) to grantee, City of Canton.
Court of Appeals rendered identical judgment on questions of law and fact.
Facts
The tract of land in question was devised by decedent, Harry H. Ink, to the city of Canton.
D. improved and developed the land as a public park in accordance with the deeds.
The state instituted eminent domain proceedings to appropriate the majority of the park's land.
Appropriation proceedings valued the land taken, the fixtures and improvements now situated thereupon and the residual damage accruing to the untaken property as a result of the impending condemnation of greatest portion of the park at $130,822.
Issue
Has the city committed any voluntary act of breach which would otherwise precipitate a reversion of the property in question to the grantor's estate?
Does the state's condemnation of the property in question by eminent domain extinguish any and/or all reversionary interests and rights of P. in and to said land and to the compensation arising from its appropriation?
To which party should the condemnation proceeds be given?
Holding
No, the city has not breached either voluntarily or otherwise.
Eminent domain has not extinguished P.'s reversion.
The proceeds corresponding to the burdened portion of the real property should be to the city, w/ conditional restraint.
Rule
Restatement of the Law of Property, §53, comment C
Wherein property devised in fee simple defeasible is condemned by eminent doamin, a division between the owner of that determinable fee and the owner of the right of reverter may be considered.
Reasoning
By accepting the grant, D. assumed a fiduciary obligation to use the property exclusively for park purposes, as specified in the deed. D., as such, is required to hold any interests in the property not taken therefrom (i.e. the money) subject to the obligations imposed upon the city by the two deeds conveying that property thereto.
Money received by grantee city in eminent domain proceedings for the burdened portions of park land could only be held by the city so long as it proposed to use, could reasonably use and did use such money for purposes of that park, thereby preserving P.'s reversion. Any money not used would revert to grantors by the following formula: Total (Unburdened) Value of Land - Burdened Value = Amount Owed to Grantor as Reversion.
Commentary
If the liquidated value of the property is given to the grantee, that party not only gets the value of what it had, (i.e., the value of the property with the restriction as to its use), but he receives additionally the unburdened value of the thing as well. At the same time, the grantor's right of reverter is destroyed w/out compensation given therefor.
By contrast, however, as the text suggests on p. 264, the Inks were compensated in part for the "loss" of their future interest and yet also allowed to keep it to the extent that the city's portion of the condemnation proceeds remain burdened and subject to the "possibility of reverter".
Were both the city and the Inks to sell to sell concurrently their interests in the property to a single party, that party would both pay and receive the full market value of the land in question. Acting separately, however, or when selling their interests to separate third-parties, the price that each such party is willing to pay for a fractional interest becomes significantly less, resulting in a paradox wherein a sale of the sum of the land's parts does not equalt that of its whole.
+FUTURE INTERESTS IN TRANSFEREES
+THE TRUST; INTRO TO LIMITS ON FUTURE INTERESTS
+RULES FURTHERING MARKETABILITY
+THE RULE AGAINST PERPETUITIES
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