An Outline of Property Law

Yin Huang
May 1, 2010

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Contents
1 Overview of Property Rights 6
1.1 Jacque v. Steenberg Homes, Inc. . . . . . . . . . . . . . . . . . 6
1.2 Hinman v. Pacific Air Transport . . . . . . . . . . . . . . . . . 7
1.3 Hendricks v. Stalnaker . . . . . . . . . . . . . . . . . . . . . . 8
1.4 Baker v. Howard County Hunt . . . . . . . . . . . . . . . . . . 9
1.5 Pile v. Pedrick . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.6 Golden Press, Inc. v. Rylands . . . . . . . . . . . . . . . . . . 11
1.7 Producers Lumber & Supply Co. v. Olney Building Co. . . . . 12

2 Original Ownership 14
2.1 Pierson v. Post . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.2 Ghen v. Rich . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3 Keeble v. Hickeringill . . . . . . . . . . . . . . . . . . . . . . . 16
2.4 Eads v. Brazelton . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.5 Johnson v. M’Intosh . . . . . . . . . . . . . . . . . . . . . . . 18
2.6 International News Service v. Associated Press . . . . . . . . . 20
2.7 Midler v. Ford Motor Company . . . . . . . . . . . . . . . . . 21
2.8 Wetherbee v. Green . . . . . . . . . . . . . . . . . . . . . . . . 22
2.9 Edwards v. Sims . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.10 Nebraska v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.11 Strain v. Green . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3 Adverse Possession 26
3.1 Lessee of Ewing v. Burnet . . . . . . . . . . . . . . . . . . . . 26
3.2 Carpenter v. Ruperto . . . . . . . . . . . . . . . . . . . . . . . 27
3.3 Howard v. Kunto . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.4 Songbyrd, Inc. v. Estate of Grossman . . . . . . . . . . . . . . 29

4 Competing Titles 30
4.1 Armory v. Delamirie . . . . . . . . . . . . . . . . . . . . . . . 30
4.2 Clark v. Maloney . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Anderson v. Gouldberg . . . . . . . . . . . . . . . . . . . . . . 32
4.4 Fisher v. Steward . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.5 Goddard v. Winchell . . . . . . . . . . . . . . . . . . . . . . . 33
4.6 Hannah v. Peel . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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5 Personhood in Relation to Property 36
5.1 Newman v. Sathyavaglswaran . . . . . . . . . . . . . . . . . . 36
5.2 Moore v. Regents of the University of California . . . . . . . . 37
5.3 Hecht v. Superior Court . . . . . . . . . . . . . . . . . . . . . 39

6 Moral Rights 40
6.1 Moakley v. Eastwick . . . . . . . . . . . . . . . . . . . . . . . 40
6.2 United States v. Corrow . . . . . . . . . . . . . . . . . . . . . 41

7 Public Resources 42
7.1 Illinois Central Railroad Company v. Illinois . . . . . . . . . . 42
7.2 State of Oregon ex rel. Thorton v. Hay . . . . . . . . . . . . . 43
7.3 Lake Michigan Federation v. United States Army Corps of
Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.4 Evans v. Merriweather . . . . . . . . . . . . . . . . . . . . . . 45
7.5 Coffin v. The Left Hand Ditch Company . . . . . . . . . . . . 46
7.6 Higday v. Nickolaus . . . . . . . . . . . . . . . . . . . . . . . . 47
7.7 Tribune Co. v. Oak Leaves Broadcasting Station, Inc. . . . . . 48
7.8 People for the Ethical Treatment of Animals v. Doughney . . 50

8 Limits on Owner Sovereignty 51

8.1 Shelley v. Kraemer . . . . . . . . . . . . . . . . . . . . . . . . 51
8.2 Attorney General v. Desilets . . . . . . . . . . . . . . . . . . . 52

9 Licenses, Grants, and Bailments 53

9.1 Marrone v. Washington Jockey Club of the District of Columbia 53
9.2 Hurst v. Picture Theatres, Limited . . . . . . . . . . . . . . . 54
9.3 ProCD, Inc. v. Zeidenberg . . . . . . . . . . . . . . . . . . . . 55
9.4 Allen v. Hyatt Regency–Nashville Hotel . . . . . . . . . . . . . 56

10 Transfers of Property 58
10.1 Pocono Springs Civic Association, Inc. v. MacKenzie . . . . . 58
10.2 Eyerman v. Mercantile Trust Co. . . . . . . . . . . . . . . . . 59
10.3 Lauderbaugh v. Williams . . . . . . . . . . . . . . . . . . . . . 60
10.4 Irons v. Smallpiece . . . . . . . . . . . . . . . . . . . . . . . . 61
10.5 Foster v. Reiss . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

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11 Estates in Land 63
11.1 Williams v. Estate of Williams . . . . . . . . . . . . . . . . . . 63
11.2 City of Klamath Falls v. Bell . . . . . . . . . . . . . . . . . . . 64
11.3 Johnson v. Whiton . . . . . . . . . . . . . . . . . . . . . . . . 66
11.4 Garner v. Gerrish . . . . . . . . . . . . . . . . . . . . . . . . . 66
11.5 Brokaw v. Fairchild . . . . . . . . . . . . . . . . . . . . . . . . 67
11.6 Mountain Brow Lodge No. 82, Independent Order of Odd Fel-
lows v. Toscano . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.7 Symphony Space, Inc. v. Pergola Properties, Inc. . . . . . . . 70

12 Marital Property 71
12.1 O’Brien v. O’Brien . . . . . . . . . . . . . . . . . . . . . . . . 71
12.2 Marvin v. Marvin . . . . . . . . . . . . . . . . . . . . . . . . . 73

13 Leases 74
13.1 Paradine v. Jane . . . . . . . . . . . . . . . . . . . . . . . . . 74
13.2 Smith v. McEnany . . . . . . . . . . . . . . . . . . . . . . . . 75
13.3 Sutton v. Temple . . . . . . . . . . . . . . . . . . . . . . . . . 76
13.4 Blackett v. Olanoff . . . . . . . . . . . . . . . . . . . . . . . . 77
13.5 In re Kerr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
13.6 Medico-Dental Building Company of Los Angeles v. Horton
and Converse . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
13.7 Javins v. First National Realty Corp. . . . . . . . . . . . . . . 81
13.8 Sommer v. Kridel . . . . . . . . . . . . . . . . . . . . . . . . . 82
13.9 Nahrstedt v. Lakeside Village Condominium Association, Inc. 83
13.1040 West 67th Street v. Pullman . . . . . . . . . . . . . . . . . 84

14 Trusts 86
14.1 Broadway National Bank v. Adams . . . . . . . . . . . . . . . 86
14.2 Rothko v. Reis . . . . . . . . . . . . . . . . . . . . . . . . . . 87
14.3 Wilber v. Owens . . . . . . . . . . . . . . . . . . . . . . . . . 88

15 Nuisance 89
15.1 Adams v. Cleveland-Cliffs Iron Company . . . . . . . . . . . . 89
15.2 St. Helen’s Smelting Company v. Tipping . . . . . . . . . . . 90
15.3 Luensmann v. Zimmer-Zampese & Associates, Inc. . . . . . . 92
15.4 Boomer v. Atlantic Cement Co. . . . . . . . . . . . . . . . . . 93
15.5 Spur Industries v. Del E. Webb Development Co. . . . . . . . 94

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16 Easements 95
16.1 Warsaw v. Chicago Metallic Ceilings, Inc. . . . . . . . . . . . 95
16.2 Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. . . 97

17 Covenants 98
17.1 Tulk v. Moxhay . . . . . . . . . . . . . . . . . . . . . . . . . . 98
17.2 Neponsit Prop. Owners’ Association, Inc. v. Emigrant Indus-
trial Savings Bank . . . . . . . . . . . . . . . . . . . . . . . . 99
17.3 Eagle Enterprises, Inc. v. Gross . . . . . . . . . . . . . . . . . 100
17.4 Sanborn v. McLean . . . . . . . . . . . . . . . . . . . . . . . . 101

18 Zoning 102
18.1 Village of Euclid v. Amber Realty Co. . . . . . . . . . . . . . 102
18.2 Southern Burlington County N.A.A.C.P. v. Township of Mount
Laurel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
18.3 Sts. Constantine and Helen Greek Orthodox Church, Inc. v.
City of New Berlin . . . . . . . . . . . . . . . . . . . . . . . . 105

19 Intellectual Property 106

19.1 Eldred v. Ashcroft . . . . . . . . . . . . . . . . . . . . . . . . 106

20 Takings 108
20.1 Kelo v. City of New London, Connecticut . . . . . . . . . . . . 108
20.2 Pennsylvania Coal Co. v. Mahon . . . . . . . . . . . . . . . . 111
20.3 Penn Central Transportation Company v. City of New York . 112
20.4 Loretto v. Teleprompter Manhattan CATV Corp. . . . . . . . 114
20.5 Lucas v. South Carolina Coastal Council . . . . . . . . . . . . 115
20.6 Miller v. Schoene . . . . . . . . . . . . . . . . . . . . . . . . . 117
20.7 Phillips v. Washington Legal Foundation . . . . . . . . . . . . 118
20.8 Palazzolo v. Rhode Island . . . . . . . . . . . . . . . . . . . . 119
20.9 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Plan-
ning Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
20.10Dolan v. City of Tigard . . . . . . . . . . . . . . . . . . . . . . 121
20.11First English Evangelical Lutheran Church v. County of Los
Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
20.12Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Plan-
ning Agency (cont’d) . . . . . . . . . . . . . . . . . . . . . . . 123

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 20.13Williamson County Regional Planning Commission v. Hamil-
ton Bank of Johnson City . . . . . . . . . . . . . . . . . . . . 124
20.14San Remo Hotel v. City and County of San Francisco . . . . . 126
20.15Flemming v. Nestor . . . . . . . . . . . . . . . . . . . . . . . . 127

1 Overview of Property Rights

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

1.1.2 Facts
Steenberg Homes had agreed to deliver a mobile home to its buyer. The
easiest method of delivery consisted of towing the home across Jacque’s land.
The only alternative route was a winding, snow-covered road. Using that
road would have required Steenberg Homes to use special equipment to ensure
the safety of the home and thereby incur additional costs. Prior to delivery,
Steenberg Homes had unsuccessfully requested permission from Jacque to
use Jacque’s land. Jacque refused in part because he had lost land through
adverse possession some years before and so was reluctant to allow strangers
access to the land. On the morning of the delivery, an assistant manager for
Steenberg Homes made a final offer to pay Jacque for use of this land, but
Jacque refused once again. The assistant manager then ordered workers to
tow the home across the land, Jacque’s refusal notwithstanding. At trial, the
court awarded Jacque nominal damages of one dollar and punitive damages
of $100,000.

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

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1.1.4 Holding
The court may award such punitive damages. The punitive damages of
$100,000 in this case are not excessive.

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

1.2 Hinman v. Pacific Air Transport

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

1.2.2 Facts
Airplanes operated by Pacific Air Transport (“Pacific”) regularly flew at
altitudes of less than 100 feet over Hinman’s land. Hinman requested that
Pacific stop these flights, but Pacific disregarded the requests. Hinman then
sued, arguing that the ad coelum rule gave him the right to prevent aircraft
from flying above his land and that such flights were trespasses.

1.2.3 Issue
Does the ad coelum rule create an unlimited property right to the airspace
above a person’s land, so that flying an airplane over that land constitutes
trespass?

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

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

1.3 Hendricks v. Stalnaker

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

1.3.2 Facts
Stalnaker (D) had drilled two wells on his land, one of which was within
100 feet of land owned by Hendricks (P). Only this latter well produced
usable water. Hendricks needed to install a septic system on his land, but
local health regulations forbade him from doing so because the system, which
would be located within 100 feet of Stalnaker’s well, would create a risk of
contaminating the well. Hendricks, having no alternative to the planned
septic system, claimed that Stalnaker’s well constituted a nuisance.

1.3.3 Issue
Does a well whose proximity prohibits the installation of a septic system con-
stitute a nuisance to the land on which the septic system would be located?

1.3.4 Holding
Such a well is not a nuisance.

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

1.4 Baker v. Howard County Hunt

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

1.4.2 Facts
Baker and his wife owned and lived on a farm near areas where Howard
County Hunt conducted fox hunts. Although Baker did not initially mind
the presence of the hunters on his land, the growth of his animal-raising
operations soon resulted in friction with the hunting activities. In one in-
cident, foxhounds came onto the farm and injured Mrs. Baker. Although
Howard County Hunt issued an apology afterwards, Baker contended that the
hunting club made no effort to prevent similar trespasses. In a later incident,
Baker shot some of the foxhounds when they overran his chicken coop. Baker
then sued to enjoin Howard County Hunt from committing such trespasses.
Howard County Hunt argued that the trespasses were intermittent.

1.4.3 Issue
May a court grant an injunction enjoining trespasses even though the en-
joined party has committed such trespasses only intermittently?

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1.4.4 Holding
A court may grant such an injunction.

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

1.5 Pile v. Pedrick

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

1.5.2 Facts
Pedrick built a factory on land adjoining Pile’s property. Prior to construc-
tion, Pedrick hired a surveyor to determine the property line and planned
the factory accordingly. Subsequent surveys, however, established that the
initial surveyor had inaccurately placed the line. As a result, the factory’s
foundations extended slightly more than one inch onto Pile’s land. The walls

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

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

1.5.4 Holding
The court is bound to grant such an injunction.

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

1.6 Golden Press, Inc. v. Rylands

1.6.1 Overview
Rylands (P) sued when Golden Press (D) constructed a building whose foun-
dations extended onto Rylands’s land.

1.6.2 Facts
Golden Press constructed a building for business purposes on land adjacent
to Rylands’s property. The foundations of the building extended about three
and a half inches onto Rylands’s land. Rylands claimed trespass and sued
for an injunction requiring Golden Press to remove the intruding portions of
the foundation.

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1.6.3 Issue
Should the court issue as a matter of course an injunction requiring the
removal of an intruding structure even when the intrusion is slight and un-
derground?

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

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

1.7 Producers Lumber & Supply Co. v. Olney Building

Co.
1.7.1 Overview
Producers Lumber Supply Company (P) sued Olney Building Company (D)
for demolishing a building the latter had mistakenly erected on the former’s
land.

1.7.2 Facts
Producers Lumber Supply Company (“Producers”) purchased a plot of land
from Olney Building Company (“Olney”) so that the owners of Producers
could build a house on that land. Olney subsequently began building a house
on the said land under the mistaken belief that the land was still Olney’s
property. The house had almost been completed when Producers discovered
that the unauthorized construction had taken place. The parties attempted
to reach an amicable resolution of the problem, but negotiations ultimately
failed. Olney then demolished the house, causing Producers to sue for its
value.

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

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

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

Barrow, Justice, dissenting. The law, as it currently stands, allows a

builder who mistakenly improves the land of another to retain possession of
the improvement. The builder has the right to demolish the improvement as
long as it pays for any consequential damage to the land. The majority has
not demonstrated any rule to the contrary. Furthermore, Producers tried
to drive an unconscionable bargain after it realized Olney’s disadvantageous
position. There is simply no reason to impose upon Olney the so-called
compensatory damages for the value of the house.

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2 Original Ownership
2.1 Pierson v. Post
2.1.1 Overview
Post (P) sued after Pierson (D) killed and carried off a fox that Post was on
the verge of catching in a fox hunt.

2.1.2 Facts
Post had been a hunting a fox on uninhabited land. Pierson, knowing that
Post was pursuing the fox, nonetheless killed it and carried it off, thereby
preventing Post from catching the fox. Post sued, claiming that his pursuit
of the fox gave him a property right over the fox.

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

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

2.1.5 Reasoning
Early authorities state that one does not possess an animal until he or she has
physically captured that animal. Later authorities relaxed this rule somewhat
but still required that the hunter mortally wound or physically trap the
animal before a claim of possession arose. Neither line of authority suggests
that the mere pursuit of an animal establishes possession of that animal.
Indeed, overturning this rule could conceivably allow any person who saw an
animal to claim possession of it. Pierson might not have acted courteously
in killing the fox that Post had been pursuing, but he committed no legally
cognizable wrong.

Livingston, J. The court should recognize that Post had already invested
significant effort in catching the fox when Pierson appeared and carried it
off. Few people would engage in fox-hunting if meddlers were allowed to take

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

2.1.6 Professor’s Comments

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

2.2 Ghen v. Rich

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

2.2.2 Facts
Ghen, a whaler, had killed the whale in question with the intention of profit-
ing from the sale of its blubber. Because a freshly killed whale immediately
sinks, a whaler cannot immediately gain possession of the whale. Rather, the
whaler must wait for the whale to float back to the surface or to wash up on
shore. Because a whale may drift a significant distance before reappearing,
the whaling industry had developed a system for recognizing the ownership
of any particular whale. Each whaling company placed special markings on
its lances, so that any whale found pierced with such lances could be identi-
fied as that company’s property. According to industry custom, the finder of
a whale would report its location to the whaling company in exchange for a
salvage fee. One Ellis, upon finding the whale that Ghen had killed, did not
follow this custom. Rather, he sold it at auction, where Rich purchased it.

2.2.3 Issue
Should a wild animal marked, in accordance to custom, as the property of
a particular individual be recognized as such even though a third party has

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already found that animal and sold it to another person?

2.2.4 Holding
Such markings should be recognized.

2.2.5 Reasoning
The courts have consistently held that marking an animal which cannot be
immediately retrieved suffices to establish ownership of that animal. The
whaling industry would cease to exist if this rule were overturned, as no one
would have any incentive to hunt whales if any individual could simply find
and sell the carcass.

2.3 Keeble v. Hickeringill

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

2.3.2 Facts
Keeble owned a decoy pond designed to catch ducks. Hickeringill intention-
ally fired guns near the pond to scare away any ducks that might have landed
at the pond. Keeble sued for damages.

2.3.3 Issue
May the owner of a decoy pond recover damages for interference with his use
of that decoy pond?

2.3.4 Holding
The owner of a decoy pond may recover for such interference.

16
2.3.5 Reasoning
The owner of land may use that land for any purpose he or she desires.
Here, Keeble has chosen to profit from his land by catching ducks using
a decoy pond. Hickeringill may not intentionally hinder the use of that
land. The award, however, should compensate Keeble for the disturbance
to his land rather than the loss of property. In order to recover for the
loss of property, Keeble would have to prove how many ducks he lost as a
result of Hickeringill’s actions. Proving such a fact is impossible because
Keeble cannot say with certainty how many ducks he would have caught if
Hickeringill had not interfered.

2.4 Eads v. Brazelton

2.4.1 Overview
Brazelton (P) sued after Eads (D) salvaged a wreck that Brazelton had dis-
covered.

2.4.2 Facts
Brazelton had learned that the wreck of a steamboat lay at the bottom of
a river. In preparing to salvage the cargo, he marked trees on the adjacent
riverbanks in such a way that indicated the location of the wreck. Approx-
imately one month later, he placed a buoy directly over the wreck. Just
as Brazelton was about to begin the work of raising the sunken cargo, he
learned of a different wreck and opted to pursue that wreck instead. This
second salvage operation took considerable time; the original wreck had been
discovered in December, but Brazelton did not return to it until the follow-
ing June. By then, conditions in the river prevented him from revisiting the
wreck. As a result, Eads was able to salvage the cargo instead.

2.4.3 Issue
May the discoverer of a wreck claim ownership of that wreck simply by virtue
of having marked its location?

2.4.4 Holding
The discoverer may not claim ownership through such markings.

17
2.4.5 Reasoning
Although Brazelton intended to make the wreck his property, his claim ul-
timately fails because he did not take possession of the wreck. Taking pos-
session does not necessarily require him to lay hands on the wreck, but it
requires more than marking nearby trees to indicate its location. Brazelton
should have placed his own boat over the wreck as a warning to intruders.
Having chosen to pursue a different salvage operation, he cannot now com-
plain that he lost his chance to gain the original wreck.

2.5 Johnson v. M’Intosh

2.5.1 Overview
Johnson (P) had inherited land that was originally purchased from Native
Americans. McIntosh (D), however, claimed that he owned the land, having
subsequently purchased it from the United States.

2.5.2 Facts
Following the French and Indian War, Native Americans sold portions of
what would become the State of Illinois to Britain. These sales were final-
ized in meetings during which the Native Americans gave Britain ownership
of the land exchange for payment. The agreement set forth certain British
subjects as the new owners, among whom were relatives of Johnson. The
Revolutionary War, however, prevented any of these owners from gaining ac-
tual control of the land. Following the American victory, the land passed into
the hands of the United States government, which then sold it to McIntosh.
These circumstances gave rise to conflicting claims to the land. Johnson
claimed he owned the land through inheritance because his relatives had ex-
ecuted the original purchase from the Native Americans. McIntosh claimed
that he became the owner upon purchasing it from the United States.

2.5.3 Issue
Should the courts of the United States recognize land titles obtained from
Native Americans prior to American independence?

18
2.5.4 Holding
The courts should not recognize land titles obtained from Native Americans
prior to the American independence.

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

2.5.6 Professor’s Comments

Johnson had evidently purchased the land from Chief Tabac in 1773. At that
point, there was of course no United States law that might have invalidated
the purchase. Johnson had a strong case, as the purchase was typical of land
transfers of the day.
McIntosh purchased the land from the United States in 1818. The United
States had obtained to the land from Britain following the Revolutionary
War. Britain had obtained the land as a cession following the French and
Indian War. Original discovery of the land is credited to John Cabot.
Justice Marshall observes that discovery-based ownership of land is an
essentially European view of property. Discovery gives rise to the title, which
is “consummated” by occupancy. Marshall, however, takes the extraordinary
position that the United States government’s claim to the land trumps that
of Johnson’s ancestors even though the latter clearly purchased the land first.
Marshall justifies this decision in part by claiming that the Indians were not
true owners of the land but rather “occupants” who used its resources. The
Indians therefore had no actual ability to sell the land. Crucially, Marshall
argues that land sales are valid only if they are recognized by the American
government.
Aside from purchase or conquest, property may be acquired through in-
heritance, accession, or invention.

19
2.6 International News Service v. Associated Press
2.6.1 Overview
Associated Press (P) sued to enjoin International News Service (D) from
improperly obtaining and distributing news for profit.

2.6.2 Facts
Associated Press (“AP”) was an organization that engages in the gather-
ing and sale of news. Its membership consisted of about 950 daily news-
papers from across the United States. Each member contributed news to
and received news from AP. In this way, AP provided each member with
nationwide news. The terms of membership AP prohibited members from
disclosing news to non-members. International News Service (“INS”) was a
competing organization with a membership of about 400 daily newspapers.
INS had engaged in the unauthorized distribution of news gathered by AP by
(1) bribing employees of AP newspapers to disclose their news before pub-
lication, (2) persuading AP newspapers themselves to disclose such news,
and (3) gleaning AP news from public bulletin-boards and transmitting that
news to INS members for publication. AP conceded that none of its news
stories fell under copyright protection.

2.6.3 Issue
(1) May one hold a property right over news? (2) If such a right exists, does
the right end with the publication of the news? (3) Does the conduct of INS
constitute unfair competition?

2.6.4 Holding
(1) One has no property right over the news itself, in the sense of those events
that give rise to published reports. (2) The right to publish news generally
forbids competing news organizations from profiting from that news. (3) INS
engaged in unfair competition.

2.6.5 Reasoning
First, one must distinguish “news” in the sense of published reports from the
events that give rise to those reports. Only the former receives protection

20
under the law, as no one may claim ownership rights over newsworthy events
themselves. Second, the right to distribute news depends on the nature of
the distributor. In general, a newspaper cannot prevent an individual reader
from disseminating that news to others as long as such dissemination does
not interfere with the business of the newspaper itself. A different situa-
tion arises, however, when the distributor is a competing news organization.
When INS gleans AP news from bulletin boards and distributes that news
through its own channels, it diverts a portion of AP’s profits to itself. Such
conduct amounts to unfair competition. The courts should therefore apply
“quasi-property” rights to news, so that a news organization may not benefit
inequitably from news gathered by a competitor.

Justice Holmes, dissenting. The news consists of combinations of words.

It would be unfair to deny someone the use of a particular combination of
words even if some other party had spent effort thinking it up. The problem
should be solved by imposing a delay on the publication of INS news and
requiring INS to acknowledge AP as the source of that news.

2.7 Midler v. Ford Motor Company

2.7.1 Overview
Midler (P) sued Ford Motor Company (D) for using a likeness of her voice
without permission.

2.7.2 Facts
Ford Motor Company (“Ford”) had proposed to hire Midler to sing for a
commercial, but Midler refused. Ford, which held a license to use the in-
tended song itself, then hired a different singer to imitate Midler’s voice.
The result was so convincing as to be virtually indistinguishable from Mi-
dler’s own singing. The commercial made no explicit references to Midler;
only the likeness of her voice was used.

2.7.3 Issue
May a famous singer recover from a party that uses a likeness of her voice
without permission?

21
2.7.4 Holding
Such a singer may recover.

2.7.5 Reasoning
It is important to realize that this case does not fall under the scope of
copyright or conventional restrictions on the use of one’s identity. Copyright
law offers no protection against imitations of a particular singer’s rendition of
a song. Likewise, Midler cannot claim that Ford used her identity improperly
since the commercial does not make use of her name, voice, signature, or
other identifying features. Nonetheless, Midler should recover for Ford’s
unauthorized use of a likeness of her voice. A voice, just like a face, is an
identifying feature protected by the law. Ford itself admitted that payment
would be appropriate when it first sought to hire Midler and, when efforts
failed, to replace her with a sound-alike.

2.8 Wetherbee v. Green

2.8.1 Overview
Green (P) sued after Wetherbee (D) cut down some of Green’s trees and used
the wood to make barrel hoops.

2.8.2 Facts
Wetherbee had cut down some trees belonging to Green, apparently having
mistaken them for trees which he did have permission to cut down. Wether-
bee used the wood to make barrel hoops, and Green sued to repossess those
hoops.

2.8.3 Issue
May an owner repossess property accidentally taken by another even though
the taker has already transformed that property into something considerably
more valuable?

22
2.8.4 Holding
An owner may not repossess such property. The remedy consists only of
damages for the original taking.

2.8.5 Reasoning
English common law held that an owner could recover accidentally taken
property as long as that property was not so transformed as to be unrecogniz-
able to the senses. Therefore, incremental improvements on misappropriated
property did not prevent true owner from repossessing that property. This
test, however, presents practically difficulties, as in the case of timber incor-
porated into a much larger building. The proper resolution of such problems
is to give ownership of the disputed property to the party that made the
improvements and to limit the original owner to damages incurred by the
original taking.

2.9 Edwards v. Sims

2.9.1 Overview
Edwards (D) sought to prevent the enforcement of an order to survey caves
to which he claimed ownership.

2.9.2 Facts
Edwards had discovered and named the cave known as the Great Onyx Cave
(“the Cave”), whose entrance lay on his land. Following its discovery, Ed-
wards spent considerable effort and money to promote the Cave as a tourist
attraction. His efforts proved fruitful, as the Cave came to attract a great
number of visitors every year. The government eventually exercised its power
to take control of the Cave, in exchange for which it would pay Edwards
$396,000. Lee (P) then sued, claiming that part of the Cave extended under
his land and that a surveyor should be employed to determine whether such
was indeed the case.

2.9.3 Issue
May the owner of a cave that is a tourist attraction be compelled to open
that cave to surveyors for purposes of determining whether it constitutes a

23
trespass on the land above?

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

2.9.5 Reasoning
Although this case is unusual insofar as few caves have sufficient commercial
value to provoke legal disputes over ownership, it bears important analogies
to mining rights. The ad coelum rule as applied to mining allows a landowner
to demand an inspection of any mine that he reasonably suspects to extend
beneath his land. There is no reason to refuse to apply that rule to the
current case.

Logan, J., dissenting. The current case cannot be properly compared

to cases involving mining rights. The crucial difference is that disputes in
mining invariably concern resources that may be removed from the ground
and profitably used elsewhere. By contrast, the value of the Cave lies in
the scenery of the Cave itself. Such scenery cannot be removed or otherwise
physically possessed, and the ad coelum should not be applied in the same
fashion as to mining rights. Rather, the ad coelum rule should be limited to
only those resources the owner of the surface can reasonably be expected to
use. Edwards has made the Cave into a tourist attraction at considerable
risk and cost, and it would be inequitable to allow Lee to clamor for a portion
of the profits simply because part of it might extend under Lee’s land.

2.10 Nebraska v. Iowa

2.10.1 Overview
Nebraska (P) sued Iowa (D) in a dispute over their shared boundary as
defined by the Missouri River.

2.10.2 Facts
The boundary between Nebraska and Iowa is defined by the Missouri River.
For several years, the course of the river had been fluctuating rapidly. A

24
dispute eventually arose as to whether a portion of the boundary should
continue to follow the river.

2.10.3 Issue
Are the natural changes in the course of the Missouri River sufficiently rapid
to constitute avulsion as opposed to accretion?

2.10.4 Holding
Except in special cases, the changes are not sufficiently rapid to constitute
avulsion.

2.10.5 Reasoning
Although the course of the Missouri River changes unusually quickly be-
cause of its easily eroded banks, such changes nonetheless constitute accre-
tion rather than avulsion. In general, soil eroded from one bank breaks up
into fine particles that then mix with the water, so that no distinguishable
transfer of land from one bank to the other occurs. That this change occurs
more rapidly than in other rivers does not affect is nature as accretion. In the
current case, however, evidence suggests that the river did cut through an
oxbow bend, thereby abandoning its old path entirely. Such an event should
be considered avulsion, and the interstate boundary should be defined by the
old riverbed. A surveyor should be employed to determine the boundary if
necessary.

2.11 Strain v. Green

2.11.1 Overview
Strain (P) sued after Green (D) removed certain fixtures from a house that
Strain had purchased from Green.

2.11.2 Facts
Strain purchased a house from Green. At the time of purchase, the house
had been equipped with certain fixtures, which included a water heater, a
chandelier, Venetian blinds, and several mirrors affixed to the walls by means

25
of plywood backing. When Strain moved in, however, he discovered that all
these fixtures had been removed and replaced with inferior substitutes.

2.11.3 Issue
Should objects such as those mentioned above be considered fixtures?

2.11.4 Holding
Such objects should be considered fixtures.

2.11.5 Reasoning
Although older decisions have held that equipment such as water heaters and
door screens are not fixtures, these decisions are no longer valid in light of
modern standards of living. Objects once considered luxuries are now stan-
dard features of homes. In the modern view, a fixture should be determined
by three criteria: (1) actual annexation to the realty or something appur-
tenant thereto, (2) application to the use of purpose to that part of the realty,
and (3) the intention of the party to make the annexation a permanent ac-
cession to the freehold. It is important that the intention in criterion (3) is
determined by evaluation of the circumstances rather than the subjective tes-
timony of the party in question. Given these criteria, the objects in dispute
should all be considered fixtures. Green admitted as much when he replaced
the original fixtures with substitutes, as his doing so suggests a recognition
that a house lacking those features would be considered incomplete.

3 Adverse Possession
3.1 Lessee of Ewing v. Burnet
3.1.1 Overview
The plaintiff sued to recover land that had long been occupied by Burnet
(D).

26
3.1.2 Facts
Due to an apparent clerical error, Williams and Burnet both obtained title
to the same plot of land from one Symmes. Although Williams technically
held the elder title, he never exercised any rights of ownership over the land.
For some fourteen years, Burnet treated the land as his own. He used it as a
source of gravel, paid taxes on it, erected a fence to keep out intruders, and
sued trespassers.

3.1.3 Issue
Should Burnet be granted title to the land through adverse possession?

3.1.4 Holding
Burnet should be granted title.

3.1.5 Reasoning
Burnet’s open and notorious occupancy of the land for more than twenty-one
years gives rise to adverse possession of that land. He possessed that land to
the extent that anyone in his situation could have been expected to assert
ownership. It is not necessary for Burnet to have made any particular use of
that land as long as he demonstrated control of the land through public acts
of ownership.

3.2 Carpenter v. Ruperto

3.2.1 Overview
Carpenter (P) sued Ruperto (D) to assert adverse possession of land adjoining
Carpenter’s residential property.

3.2.2 Facts
Carpenter had purchased a home adjoining agricultural land. Although the
adjoining land had been planted with corn when she first moved in, the rows
of corn did not extend as close to the property line during the following
year. Citing concerns about rats and the threat of fire, Carpenter cleared
this unused area and planted it with grass. Subsequently she installed a

27
propane tank on the land and constructed a driveway that extended onto it.
During this time, ownership of the land in question changed hands several
times. A recent owner, aware of a possible boundary dispute, tried to settle
with Carpenter to no avail.

3.2.3 Issue
May a person who knowingly makes use of adjoining property claim adverse
possession of that property after thirty years of such use?

3.2.4 Holding
A person may not claim adverse possession under such circumstances.

3.2.5 Reasoning
Any party seeking to establish title by adverse possession must prove (1)
hostile, (2) actual, (3) open, (4) and exclusive and continuous possession of
the land under a (5) claim of right or (6) color of title. An implicit condition,
which is particularly with regard to criteria (5) and (6), is that the adverse
possessor must have acted in good faith in occupying the land. Although it
is an exaggeration say that knowledge of a lack of title precludes a finding
of good faith, courts have consistently ruled against squatters and other
individuals who knowingly occupy land owned by another. Having failed to
establish good faith, Carpenter cannot claim adverse possession.

3.3 Howard v. Kunto

3.3.1 Overview
Howard (P) sued Kunto (D) to gain possession of land that Howard techni-
cally owned but which Kunto and his predecessors had long occupied.

3.3.2 Facts
An error from long ago had confused the deeds of several homes, among
which were those now owned by Howard and Kunto. As a result, Howard
actually held title to land occupied by a third party, Moyers. Moyers, in
turn, held title to the land occupied by Kuntos. Howard, having discovered

28
the situation, shrewdly agreed to exchange titles with Moyers. Moyers thus
obtained the deed to the land he occupied in practice, and Howard obtained
the deed to Kuntos’s land. When Howard sued, Kuntos had only occupied
the land for a year, having purchased the property as a summer home only
recently.

3.3.3 Issue
(1) Is a claim of adverse possession defeated simply because the adverse
possessor has restricted his use of the land to summer occupancy? (2) May
a person in Kuntos’s position tack the occupancy of previous owners for
purposes of meeting the requirements for adverse possession?

3.3.4 Holding
(1) A claim of adverse possession is not defeated by seasonal occupancy. (2)
A person in Kuntos’s position may tack the occupancy of previous owners.

3.3.5 Reasoning
Although adverse possession requires uninterrupted occupancy of the dis-
puted land, such occupancy need not consist of a continuous physical pres-
ence on the land. Rather, the use of the land need only be consistent with
the conduct of owners who hold property of a similar nature.
The law has long held that tacking should be permitted only when there is
“privity” between the adverse possessor and previous occupants of the land.
Although the implications of such privity can be debated, the apparent legal
intent of this requirement is to raise the status of the adverse possessor above
that of a mere squatter. Since Kuntos’s predecessors occupied the land for
more than ten years, the privity requirement is met for the purposes of this
case.

3.4 Songbyrd, Inc. v. Estate of Grossman

3.4.1 Overview
Songbyrd (P) sued to recover from the estate of Grossman (D) damages for
the use of certain music tracks.

29
3.4.2 Facts
In the early 1970s, the predecessor in interest to the defendant, now doing
business as Bearsville Records (“Bearsville”), made several recordings of the
performances of musician Henry Roeland Byrd (“Byrd”). Although repre-
sentatives of Byrd requested that the tapes be returned to Byrd, the requests
apparently went unanswered. The tapes remained in Bearsville’s possession,
and Bearsville then licensed the content of the tapes for use in two com-
pilations. These compilations were released in 1987 and 1991, respectively.
The parties then disputed whether the statute of limitations had run on any
action to recover the recordings.

3.4.3 Issue
Does the statute of limitations bar Songbyrd from recovering the recording?

3.4.4 Holding
The statute of limitations bars Songbyrd from recovering.

3.4.5 Reasoning
In general, the statute of limitations for the recovery of chattels begins at
the time of conversion. The time of conversion is defined to be the time
at which the actual possessor acts to exclude the rights of the true owner.
Bearsville made such an action when it authorized tracks for release in the
first compilation in 1986. The applicable statute of limitations being three
years, there is no question that Songbyrd had waited too long by the time it
sued in 1995. Although Songbyrd appeals to apparently contrary precedent
in Solomon R. Guggenheim Foundation v. Lubell, that case is not relevantly
similar to the current case.

4 Competing Titles
4.1 Armory v. Delamirie
4.1.1 Overview
Armory (P) sued to recover a jewel that Delamirie (D) had taken.

30
4.1.2 Facts
Armory found a jewel and carried it to Delamirie’s shop for the purpose
of identifying it. Delamirie’s assistant took the jewel and offered him three
halfpence for it. Thinking the price to low, Armory asked for the jewel to be
returned, whereupon the assistant gave him only the empty socket in which
the jewel had been set.

4.1.3 Issue
Should a person in Armory’s position be allowed to recover the jewel?

4.1.4 Holding
A person in Armory’s position should be allowed to recover the jewel.

4.1.5 Reasoning
Although the finder of a jewel does not acquire absolute ownership of that
jewel, he holds title superior to that of all but the rightful owner. Armory
is therefore entitled to recover for the value of the finest jewel that would fit
into the socket unless Delamirie produces the jewel.

4.2 Clark v. Maloney

4.2.1 Overview
Clark (P) sued to recover some logs that had purportedly been found by
Maloney (D).

4.2.2 Facts
Clark had secured some white-pine logs on the bank of a creek. Sometime
thereafter, the logs ended up in Maloney’s possession. Maloney claimed he
had found them floating up the creek.

4.2.3 Issue
May the finder of chattels assert property rights against the original owner
of those chattels?

31
4.2.4 Holding
The finder may not assert such rights.

4.2.5 Reasoning
As long as the original owner does not claim his property rights over lost
chattels, he has a right to reclaim them from the finder. Original possession
constitutes prima facie evidence of ownership.

4.3 Anderson v. Gouldberg

4.3.1 Overview
Anderson (P) sued to recover some logs that Gouldberg (D) had seized.

4.3.2 Facts
Anderson had cut down some trees, evidently without permission from the
owner of the land on which those trees were located. Gouldberg subsequently
took possession of the logs on behalf of a logging company, which claimed
that the trees had been taken from its land. Neither party produced evidence
establishing the location of the trees. Anderson sued to recover the logs.

4.3.3 Issue
May a person who improperly acquires property nonetheless recover that
property from another party who also has no title to it?

4.3.4 Holding
A person may require despite having acquired the property improperly.

4.3.5 Reasoning
Since the jury has determined that the trees were not located on the logging
company’s land, possession must be granted to Anderson. Anderson must
be permitted to maintain a claim superior to all but those of a proven true
owner. A contrary holding would result in an endless series of seizures and
reprisals.

32
4.4 Fisher v. Steward
4.4.1 Overview
Fisher (P) sued to recover from Steward (D) the value of a swarm of bees
that Fisher had discovered in a tree.

4.4.2 Facts
Fisher found a swarm of bees in a tree on Steward’s land and marked the
tree for reference. Fisher notified Steward of the bees, and Steward took the
honey for his own use. Fisher sued to recover the value of the bees and honey.

4.4.3 Issue
May a person who finds a swarm of bees on the land of another claim own-
ership of those bees?

4.4.4 Holding
Such a person may not claim ownership.

4.4.5 Reasoning
Fisher has done nothing that gives him ownership of the bees. Locating the
bees alone does not give rise to ownership, nor does marking the tree since
that act amounted to a trespass. The bees can be considered attached to
Steward’s land. As such, they are rightfully Steward’s property.

4.5 Goddard v. Winchell

4.5.1 Overview
Goddard (P) sued to recover from Winchell (D) a meteorite that had fallen
on Goddard’s land.

4.5.2 Facts
Goddard owned some prairie land and had leased the rights to the grass
to one Elickson. After a meteorite fell on the land and buried itself in the
ground, Elickson allowed one Hoagland to dig it up. Hoagland then sold

33
the meteorite to Winchell. Sometime thereafter, Goddard learned of the
meteorite and sued to recover it from Winchell.

4.5.3 Issue
May a landowner repossess a meteorite that fell on his land even though
someone else dug it up and sold it?

4.5.4 Holding
A landowner may repossess such a meteorite.

4.5.5 Reasoning
The meteorite was annexed to the land through a natural process. Although
it fell from the sky, the mode by which it entered the earth is no reason to
distinguish it from rocks and soil deposited by accretion and similar processes.
It cannot be said that the meteorite had been abandoned by a previous
owner, so its title should rest with the owner of the property on which it fell.
Winchell cannot contend that the meteorite’s scientific value entitles him to
keep it, as there is no reason to suspect that Goddard would be less likely to
put it to scientific use than Winchell would.

4.6 Hannah v. Peel

4.6.1 Overview
Hannah (P) sued to recover from Peel (D) a brooch that Hannah had found
on Peel’s property.

4.6.2 Facts
Peel owned a manor but never actually occupied the premises. It mostly
remained unoccupied until it was requisitioned by the British military, pre-
sumably for World War II. Hannah, a soldier stationed in the house, was
adjusting some blinds when he came across a brooch that had evidently
been lost in a crack long ago. He promptly gave it to the police, who tried
to locate its true owner. When no true owner was forthcoming, the police
returned the brooch to Peel (not Hannah), who then sold it. Hannah then

34
learned that the brooch had fallen into Peel’s hands and demanded its return.
When Peel did not return it, Hannah sued for its value.

4.6.3 Issue
May a person who finds a brooch in the house of another claim ownership of
that brooch.

4.6.4 Holding
Such a person may claim ownership.

4.6.5 Reasoning
The common law seems to state (1) that the finder usually has superior title
to all but the true owner, subject to the two exceptions (2) that the owner of
the premises on which the object is found may be granted title under special
circumstances and (3) that the finder cannot claim ownership of an object
obtained while trespassing. In Bridges v. Hawkesworth, the court held that
the finder of a bundle of money that had accidentally been left inside a shop
had title to that money even though it had been left on the shop owner’s
premises. In South Staffordshire Water Co. v. Sharman, the court held that a
person who found several rings embedded in the mud at the bottom of a pool
did not gain possession those rings. Rather, ownership remained with the
landowners, who had ordered him to clean the pool. In Elwes v. Brigg Gas
Co., the court held that an ancient boat embedded in the earth belonged to
the landowner, not to the gas company that had unearthed it in the course of
digging conducted for other purposes. Here, equity demands that the brooch
be given to Hannah. He meritoriously gave the brooch to the police so that
it may be returned to the true owner. Peel had no knowledge of the brooch
until after Hannah had found it. The brooch may be considered to have been
“lost”; Hannah, as the finder, is entitled to possession.

35
5 Personhood in Relation to Property
5.1 Newman v. Sathyavaglswaran
5.1.1 Overview
Newman (P) sued after Sathyavaglswaran (D) removed the corneas of New-
man’s deceased children without permission.

5.1.2 Facts
Following the death of Newman’s two children, the Office of the Coroner for
the County of Los Angeles (“the Coroner”) removed the children’s corneas
for use in a tissue bank. The removal was authorized by a California statute,
which provided that such removals were allowed as long as the next of kin
did not object. When Newman discovered what had been done, he sued on
the ground that the Coroner had violated his property right to the bodies of
his deceased children by taking the corneas without due process.

5.1.3 Issue
Does the removal of the corneas from the deceased without permission from
the next of kin constitute a violation of due process as guaranteed by the
Fourteenth Amendment?

5.1.4 Holding
Such a removal amounts to a violation of due process.

5.1.5 Reasoning
Although the bodies of the deceased originally were not viewed as objects
over which the next of kin could exercise property rights, this view changed
with the increasing practical value of dead bodies. In the nineteenth century,
England enacted laws regulating the disposition of bodies as cadavers became
increasingly important to medical science. In the same century, California
enacted laws giving exclusive rights of possession, control, and disposition to
the next of kin. Following the advent of organ transplantation, California
enacted laws to regulate the disposition of organs. The Circuit Courts have
recognized property rights in dead bodies, and the same view is appropriate

36
here. The statute’s requirement that the coroner have no knowledge of objec-
tion before removing any body part implicitly concedes that a property right
over body parts exists. Once a property right has been granted, the state
cannot circumvent due process by manipulating the procedure by which that
right can be released.

Fernandez, Circuit Judge, dissenting. The relevant California statute

is designed to expedite the disposal of bodies, not to create a property right
in the next of kin.

5.2 Moore v. Regents of the University of California

5.2.1 Overview
Moore (P) sued after surgeons at the UCLA Medical Center excised a portion
of his spleen and used it in scientific research.

5.2.2 Facts
Moore had been diagnosed with a form a leukemia. His doctor recommended
that his spleen be removed in order to slow the progress of the disease, and
he consented to the surgery. Unbeknownst to Moore, the surgeons who re-
moved the spleen subsequently used cells from the spleen in medical research.
The cells were valuable because they produced large amounts of a substance
that was present only scarcely in normal cells. Moore’s doctor was granted
a patent on the cell line and eventually received substantial proceeds in ex-
change from licensing the cells. Moore sued upon discovering the uses to
which the cells had been put.

5.2.3 Issue
(1) Does failure to notify a patient of the intended uses of excised tissue
constitute a failure to obtain informed consent? (2) Does Moore have a
property right over the excised portion of his spleen?

5.2.4 Holding
(1) Failure to notify the patient of such uses constitutes a failure to obtain
informed consent. (2) Moore, however, does not have a property right over

37
removed tissues.

5.2.5 Reasoning
A doctor should disclose any intended uses of a patient’s excised tissues,
as such uses may influence the doctor’s decision-making with regard to the
course of treatment. It is improper, however, to say that Moore had a prop-
erty interest in the excised cells. California has generally treated tissues
removed during the course of surgery as medical waste requiring quick dis-
posal. Statutes enacted to that end have significantly curtailed the patient’s
ability to control the handling of excised tissues. The patient therefore has
no property interest in such tissues. Moore’s alternative arguments also lack
merit. He cannot contend that the taking of his cells violates his privacy
or rights over his identity. The particular substance is structurally identical
in all spleen cells; his cells are peculiar only in that they produce abnor-
mally large amounts of it. Moreover, Moore may not extend his claim to
the patented subject matter arising from his cells. That matter is legally
distinct from the issue at hand. Finally, liability for conversion should not
be extended to cover cases such as the current one. Upholding such liabil-
ity would impose crippling burdens on scientists, who would have to obtain
permission from the originator to use every cell line.

Arabian, Justice, concurring. Moore is effectively arguing for the treat-

ment of body parts as commodities. The moral implications of this question
are such that the issue should not be decided by the courts. This question
should be addressed to the legislature.

Broussard, Justice, concurring and dissenting. The majority fails to

recognize that Moore has a right to specify what may be done with his cells
before they are removed from his body. The cells ought to be regulated under
rules like those governing organ donations.

Mosk, Justice, dissenting. Although California statutes may limit what

a patient may do with bodily tissues after they are excised, these statutes
in no way eliminate the property right over those tissues. It is inconsistent
to argue that Moore cannot assert property rights over the cells when the
doctors have plainly done so.

38
5.3 Hecht v. Superior Court
5.3.1 Overview
Hecht (P) sued to stop the enforcement of an order from the Superior Court
(D) to destroy her deceased boyfriend’s sperm.

5.3.2 Facts
The real parties in interest are Hecht and the biological children of the dece-
dent, William Kane. For several years prior to Kane’s death, he had been
cohabiting with Hecht. During that time, he executed a will specifying that
samples of his sperm be left to Hecht in the event of his death. After Kane’s
suicide, his children requested the lower court to order the destruction of the
sperm on the ground that any children conceived from that sperm would not
know their father and would become a burden on society.

5.3.3 Issue
Did Kane have such a property right in his sperm as would enable to him to
specify its disposition after his death?

5.3.4 Holding
Kane had such a right.

5.3.5 Reasoning
Sperm is unique in its potential to create life, and for this reason it occupies
a unique category in property law. Kane had a property interest in his sperm
insofar as he could decide whether to procreate using that sperm. Kane’s
children have not provided any legal or factual basis for their argument that
the children conceived by the sperm would necessarily impinge upon their
family integrity or burden society.

39
6 Moral Rights
6.1 Moakley v. Eastwick
6.1.1 Overview
Moakley (P) sued after Eastwick (D) destroyed part of a mural that Moakley
had created.

6.1.2 Facts
Moakley had received a commission from a church to create and install a
work of art on the grounds of that church. He created a mural consisting of
ceramic tiles, which depicted the history of the town in which the church was
located. Eventually, the commissioning church moved out of the building,
and a new church bought the premises. As part of its rehabilitation of the
deteriorating premises, the new church tore down part of the mural. Moakley
then sued on grounds that the new church had violated the Massachusetts
Art Preservation Act (“the Act”), which came into effect some time after the
mural had been completed.

6.1.3 Issue
Does the Massachusetts Art Preservation Act give an artist the moral right
to prevent the destruction of his work when that work is affixed to a premises
in such a way that it cannot be removed without damage?

6.1.4 Holding
The Act does not give the artist such a right.

6.1.5 Reasoning
Although the Act was intended to protect the reputations of artists by pro-
hibiting alteration or defacement of their works, its scope is nonetheless lim-
ited. In particular, it does not apply where a work of art cannot be removed
from a premises without being damaged. An artist may overcome this excep-
tion by obtaining the buyer’s express consent to abide by the restrictions that
would otherwise apply, but Moakley did not obtain such consent. The text
of the statute also suggests that it is intended to apply only prospectively;

40
a work such as Moakley’s, which was created before its enactment, therefore
does not fall under its protection. Finally, Moakley cannot claim infliction
of emotional distress because the mere removal of the work of art does not
qualify as the infliction of such distress.

6.2 United States v. Corrow

6.2.1 Overview
The United States (P) brought criminal charges against Corrow (D) for at-
tempting to sell Native American artifacts that qualified as “cultural patri-
mony.”

6.2.2 Facts
Corrow, a dealer in Navajo artifacts, purchased a ceremonial mask and other
artifacts from the widow of a Navajo religious singer. He visited the widow
several times before proposing to buy the mask. Corrow suggested that he
would deliver the mask to a ceremonial singer residing in a different state, and
the widow eventually agreed to sell it. Sometime thereafter, he was arrested
and convicted for attempting to sell the mask to an undercover agent of the
National Park Service. Corrow argued that his conviction for commercial
dealing in cultural patrimony was unconstitutional because the standards
for determining what qualifies as such were excessively vague.

6.2.3 Issue
Are the standards for determining what constitutes cultural patrimony so
vague as to require Corrow’s conviction to be overturned?

6.2.4 Holding
The standards are not so vague.

6.2.5 Reasoning
Although the definition of cultural patrimony may be unclear at the bound-
aries, Corrow’s actions do not lie sufficiently near those boundaries to suggest
that he did not know he was engaging in the forbidden commercial exchange

41
of cultural artifacts. An object qualifies as Native American cultural patri-
mony when it (1) is not owned by an individual Native American; (2) cannot
be alienated, appropriated, or conveyed by an individual; and (3) has an
ongoing historical, traditional, or cultural importance central to the Native
American group. Corrow’s actions, including his taking care to suggest that
he intended to transfer the mask to another religious singer, suggest that he
had at least some knowledge of the inalienability of that particular object.
The law need not give an exhaustive list of objects that qualify as cultural
patrimony. It need only give fair notice that a particular type of conduct is
prohibited.

7 Public Resources
7.1 Illinois Central Railroad Company v. Illinois
7.1.1 Overview
The State of Illinois (P) sued to reassert control of submerged lands that had
been granted to the Illinois Central Railroad Company (D).

7.1.2 Facts
The Illinois legislature had originally intended to pass legislation giving the
state control of commercially important parts of the shoreline of Lake Michi-
gan in Chicago, including an area near the Chicago River used as a harbor.
At the last minute, the legislation was changed to give ownership of the said
lands not to the Illinois government but to the Illinois Central Railroad Com-
pany (“the Railroad”) instead, with the grant subject to certain restrictions
on sale of the land and interference with public use. Soon thereafter, the
legislature repealed the act, and a dispute arose as to whether the Railroad
could continue to control the land.

7.1.3 Issue
May a state legislature cede control of a navigable waterway and the lands
thereunder to a private corporation?

42
7.1.4 Holding
A state may not cede such control of a navigable waterway.

7.1.5 Reasoning
Navigable waterways are held in trust by the government for public use.
Although the government might grant limited portions of such waterways
to private parties so that said parties can make improvements that would
benefit the public, a state legislature cannot cede such vast portions as the
one in the current case. Such a cession would never be recognized if the lands
were transferred to a foreign country or a neighboring state; there is no more
reason for such a transfer to be valid when made to a corporation. The state
legislature simply cannot make such an extensive grant. Therefore, any such
grant must be considered void or revocable.

7.2 State of Oregon ex rel. Thorton v. Hay

7.2.1 Overview
The State of Oregon (P) sued to enjoin Hay (D) from erecting fences and
other barriers on coastal land that Hay technically owned but which bordered
on public land.

7.2.2 Facts
Hay owned a tourist facility abutting the Pacific Ocean. The title to his land
included the “dry-sand area,” defined as the portion of land between the
high-water line of the beach and the line at which the land begins to sustain
vegetation. Below the high-water line lay the “wet-sand area” of the beach,
which is regularly washed by the tides and conceded to be public property.
Hay sought to construct a fence to prevent public access to the dry-sand
area, but the state sued on the ground that such a barrier would infringe the
public’s longstanding right to access that land.

7.2.3 Issue
May a landowner be enjoined from fencing in a dry-sand area to which the
public has had a longstanding right of access?

43
7.2.4 Holding
A landowner may be enjoined from fencing in such land.

7.2.5 Reasoning
The public’s right to access the dry-sand area is supported by custom. The
doctrine of custom is particularly useful in this case because it allows the
judiciary to dispose of similar cases uniformly, thereby removing the need
for case-by-case litigation. Custom should be applied where there has been
a use of the land that is (1) longstanding, (2) continued, (3) peaceful, (4)
reasonable, (5) certain, and (6) obligatory. The current case satisfies all six
conditions. Public use of the dry-sand area has existed since before Euro-
pean settlement and has persisted in ways that eliminate questions as to the
aforementioned criteria. Hay cannot prevail by arguing that the doctrine is
invalid merely because the history of the region is relatively short.

7.3 Lake Michigan Federation v. United States Army

Corps of Engineers
7.3.1 Overview
The Lake Michigan Federation (P) sued to enjoin the United States Army
Corps of Engineers and other interested organizations (D) from filling in a
portion of Lake Michigan for the purposes of private construction.

7.3.2 Facts
Loyola University (“Loyola”) had proposed to expand its campus by filling in
a portion of Lake Michigan and constructing buildings on the land thereby
created. Loyola sought and received permission from the Illinois legislature
and the Army Corps of Engineers (“the Corps”) to construct the lakefill.
The legislature conveyed approximately 18.5 acres of publicly owned lakebed
to Loyola, and the Corps subsequently approved the project after evaluating
its environmental impact. The Lake Michigan Federation (“the Federation”)
then sued on the ground that the legislature had no power to convey the land
to Loyola.

44
7.3.3 Issue
May a state legislature convey a portion of a publicly owned lakebed to a
private university for the purpose of allowing that university to expand its
campus?

7.3.4 Holding
A state legislature may not make such a conveyance.

7.3.5 Reasoning
In general, a legislature holds lakebeds in the public trust and therefore has
no power to convey that land to private entities. Although the legislature
has provided some measures to protect the public interest in the land, these
limitations may easily prove illusory if the legislature refuses to enforce them.
Enforcement, even if carried out, would still leave Loyola with primary control
of the land. Loyola cannot argue that the conveyance of the land is justified
by its intentions to improve it; this argument ignores that the public is being
forced to cede land to a private entity.

7.4 Evans v. Merriweather

7.4.1 Overview
Merriweather (P) sued after Evans (D) dammed a stream so that it no longer
supplied Merriweather’s mill.

7.4.2 Facts
Merriweather and Evans owned steam-powered mills on the same stream,
with Evans’s mill located upstream. Although the stream usually supplied
enough water for the use of both mills, a drought had reduced the water
supply to the point where it supplied only Merriweather’s mill. Although
Evans ordered the workers in his mill not to interfere with the flow of the
stream, one of his workers nonetheless constructed a dam across the stream,
thereby diverting its entire flow into Evans’s mill. The resulting reduction of
the water supply to Merriweather’s mill impaired the operation of that mill.

45
7.4.3 Issue
May the owner of a downstream mill recover against the owner of an upstream
mill who diverts the stream in such a way as to impair the downstream
owner’s ability to use the water?

7.4.4 Holding
The owner of a downstream mill may recover.

7.4.5 Reasoning
English law held that the owner of riparian land generally had a right to use
the water in any way that did not substantially interfere with the ability of
downstream landowners to use water from the same source. The use of water
should therefore be evaluated against a standard of reasonableness. This
standard contemplates two types of “wants,” or needs, for water. “Natural
wants” are those needs which are essential to life, such as the use of water
for drinking by humans or animals. By contrast, “artificial wants” are those
uses that merely improve comfort or facilitate industry. A landowner may
make use of water to any extent necessary to sustain natural wants. In the
case of artificial wants, however, a jury must determine the extent to which a
particular use is reasonable. The water was plainly diverted for the purpose
of supplying Evans’s artificial wants. Having availed himself of its benefits,
he cannot now defend himself by arguing that he never ordered the stream
to be diverted.

7.5 Coffin v. The Left Hand Ditch Company

7.5.1 Overview
The Left Hand Ditch Company (P) sued after Coffin (D) tore down part of
a dam that diverted a stream to agricultural land owned by the former.

7.5.2 Facts
The Left Hand Ditch Company (“Left Hand”) had diverted a stream in order
to supply its agricultural land by constructing a dam across that stream.
Sometime thereafter, Coffin settled on riparian land downstream from the

46
dam. Finding the water supply in that portion of the stream insufficient,
Coffin tore down part of Left Hand’s dam.

7.5.3 Issue
Should the court recognize priority of appropriation, as opposed to ownership
of riparian land, as the basis for water rights?

7.5.4 Holding
The court should recognize priority of appropriation.

7.5.5 Reasoning
The arid climate of Colorado gives rise to the necessity of using artificial
irrigation to sustain agricultural land. The scarcity of water, coupled with
its economic importance, support the rule that one who first appropriates
water has superior title to that water in relation to all subsequent users.
Abolishing this rule would have disastrous results on the settlement of the
region. A latecomer might claim ownership of water already being used for
other purposes, thereby interfering with existing agriculture. The relevant
statutes also offer Coffin no protection, as they address the diversion of water
to the detriment of an existing user as opposed to the detriment of possible
future settlers.

7.6 Higday v. Nickolaus

7.6.1 Overview
Higday (P) sued when the City of Columbia planned to pump water from
under his agricultural land.

7.6.2 Facts
Higday owned agricultural land overlying abundant percolating groundwater.
The groundwater had primarily been used for agriculture, and local farmers
testified that it greatly contributed to the fertility of the soil by providing a
source of water that does not depend on the weather. The City of Columbia
(“Columbia”) purchased small portions of land overlying the aquifer and

47
constructed pumps thereon to remove the water for sale to the city’s residents.
The withdrawal of water threatened to lower the water table, so that the
suitability of the overlying land for agriculture would be affected.

7.6.3 Issue
Does Higday have such a proprietary interest in the water as will allow him to
request a declarative judgment concerning his rights as well as an injunction
enjoining the city’s proposed withdrawal of the water?

7.6.4 Holding
Higday has such a proprietary right.

7.6.5 Reasoning
Missouri has long observed the rule of “reasonable use” in settling disputes
over rights to groundwater. This rule was formulated in light of the expand-
ing knowledge of the source and distribution of underground water. The old
English rule that a landowner may make unlimited use of water beneath his
land is predicated on the faulty assumption that such water is limited. Al-
though reasonable use may be difficult to define, the removal of groundwater
for use in a city does not qualify as reasonable when that use may interfere
with the use of existing agricultural land. That Columbia would supply its
residents with the water is no defense. It is subject to the same limitations as
a private landowner. Higday has stated a sufficient claim that his rights may
be infringed, so it is appropriate for the lower court to consider declaratory
and injunctive relief.

7.7 Tribune Co. v. Oak Leaves Broadcasting Station,

Inc.
7.7.1 Overview
Tribune (P) sued after Oak Leaves Broadcasting Station (D) started broad-
casting radio programs at the frequency that Tribune had been using.

48
7.7.2 Facts
Tribune had been broadcasting radio programs to the greater Chicago area
on a frequency of 990 KHz. About a year after Tribune began broadcasting
on its current frequency, Oak Leaves Broadcasting Station (“Oak Leaves”)
began broadcasting on frequencies within 40 KHz of that used by Tribune.
The proximity of the frequencies resulted in interference between the two
stations. Tribune sued to enjoin Oak Leaves from causing such interference.

7.7.3 Issue
(1) May disputes over broadcasting frequencies be resolved in state courts?
(2) Should Oak Leaves be enjoined from interfering with Tribune’s broad-
casts?

7.7.4 Holding
(1) Disputes over broadcasting frequencies may be resolved in state courts.
(2) Oak Leaves should be enjoined.

7.7.5 Reasoning
The Acting Attorney General of the United States has said that Congress
did not intend to assume the power to regulate broadcasting despite recent
legislation on the subject. Practical demands also require state courts to ad-
judicate disputes over broadcasting, as failure to do so could create confusion
that would damage the nascent radio industry.
It should be recognized that priority of time creates a superiority of right.
Tribune had been broadcasting for some time and had expended considerable
resources in promoting its programming. Tribune has a great deal to lose
from interference with its broadcasting. Oak Leaves, being new, has relatively
little to lose from changing to a new frequency.

49
7.8 People for the Ethical Treatment of Animals v.
Doughney
7.8.1 Overview
People for the Ethical Treatment of Animals (P) sued after Doughney (D)
registered its abbreviation as a domain name.

7.8.2 Facts
Doughney had registered a number of domain names, among which was
peta.org. Doughney set up at that address a lookalike site entitled “People
for the Eating of Tasty Animals.” The site used the official logo of People
for the Ethical Treatment of Animals (“PETA”). The site contained links to
a number of organizations whose views were antithetical to those of PETA
but also contained a link to the real PETA site. PETA subsequently sued
for trademark infringement and cybersquatting.

7.8.3 Issue
(1) Does Doughney’s site constitute trademark infringement? (2) Does Dough-
ney’s registration of the domain name constitute cybersquatting?

7.8.4 Holding
(1) The site constitutes trademark infringement. (2) Doughney has commit-
ted cybersquatting.

7.8.5 Reasoning
In order to establish a claim for trademark infringement, the plaintiff must
prove (1) that it possesses a mark; (2) that the defendant used the mark;
(3) that the defendant’s use of the mark occurred “in commerce”; (4) that
the defendant used the mark “in connection with the sale, offering for sale,
distribution, or advertising” of goods or services; and (5) that the defendant
used the mark in a manner likely to confuse consumers. There is no dispute
that Doughney’s use of PETA’s name on his site meets all of these conditions.
In particular, Doughney’s site has a commercial impact on PETA because it
may frustrate visitors trying to find the real PETA site. Doughney cannot

50
defend his use as a parody because the site does not make it sufficiently clear
that it does not represent the real PETA.
Doughney has also committed cybersquatting because his registration of
the domain name was not a good-faith attempt to make use of that name.1 In
particular, Doughney has conceded through his own attempts at extracting a
settlement from PETA that his actions were undertaken with profit in mind.

8 Limits on Owner Sovereignty

8.1 Shelley v. Kraemer
8.1.1 Overview
Kraemer (P) sued to prevent Shelley (D) from buying a house because Shelley
was black.

8.1.2 Facts
Residents of the neighborhood in question had executed a restrictive covenant
prohibiting the sale of homes within the neighborhood to black buyers. Shel-
ley had already finalized the purchase of a home within the neighborhood
when Kraemer, another homeowner, sued on the basis of the covenant to di-
vest title of the home from Shelley. Shelley had no knowledge of the covenant
when he bought the home. The Supreme Court of Missouri held that the
covenant should be enforced.

8.1.3 Issue
Does the upholding of the covenant constitute state action that violates the
Fourteenth Amendment?

8.1.4 Holding
The upholding of the covenant constitutes such state action.
1
See the nine-factor test set forth in the opinion.

51
8.1.5 Reasoning
Settled judicial doctrine says that discrimination supports a lawsuit only
when it occurs under the rubric of state action as opposed to private ac-
tion. State action should include not only affirmative policies but also the
enforcement of private agreements. Here, the Supreme Court of Missouri
has violated the Fourteenth Amendment by ordering the enforcement of the
restrictive covenant. In doing so, it was not merely allowing private actors
to enforce private decisions but placing the compulsory force of the state
behind those decisions. Kraemer cannot argue that the covenant is consti-
tutional because a similar covenant restricting the sale of houses to white
buyers would be upheld. This argument is specious, as no dispute over such
an agreement has ever arisen.

8.2 Attorney General v. Desilets

8.2.1 Overview
Desilets (D) was sued for refusing to rent an apartment to an unmarried
couple.

8.2.2 Facts
Mark Lattanzi and Cynthia Tarail, an unmarried couple, sought to rent an
apartment owned by Desilets. Desilets refused on the ground that his reli-
gious beliefs prohibited him from providing housing to unmarried couples,
who might have sex out of wedlock. Such discrimination was prohibited
by statute. Lattanzi and Tarail filed a complaint with the Massachusetts
Commission Against Racial Discrimination, and the Attorney General sub-
sequently brought suit on their behalf. The trial judge granted summary
judgment to Desilets on the ground that enforcement of the statute would
infringe the state constitution’s guarantee of free exercise of religion.

8.2.3 Issue
(1) Does Massachusetts have a policy interest sufficient to justify enforcing
the anti-discrimination statute despite the burden it would impose on De-
silets? (2) Was summary judgment appropriate?

52
8.2.4 Holding
(1) Massachusetts has not demonstrated a sufficiently clear interest that
would justify enforcement of the statute. (2) Because there are genuine
disputes as to material facts, summary judgment was inappropriate.

8.2.5 Reasoning
The commercial context of Desilets’s behavior does not influence this case,
as nothing suggests that the discrimination was motivated by a desire for
financial gain. Discrimination on the basis on marital status seems be of
a lower order than discrimination on race and other criteria, as it is not
expressly prohibited by the Massachusetts constitution. The existence of
a statute prohibiting fornication lends credence to this view, though the
constitutionality of the statute is admittedly questionable. On the one hand,
enforcing the anti-discrimination statute would burden Desilets by forcing
him to agree to contracts inconsistent with his religious views. On the other
hand, refusing to uphold the statute may decrease the availability of housing
to unmarried couples. Given that material facts have yet to be established,
Massachusetts has the burden of proving that the statute should not be
enforced.

O’Connor, Justice, dissenting. Summary judgment for Desilets should

be affirmed. The very fact that freedom of religion is mentioned in the
constitution whereas unmarried cohabitation is not indicates that the former
should be given priority. The majority’s decision effectively amounts to an
amendment of the state constitution.

9 Licenses, Grants, and Bailments

9.1 Marrone v. Washington Jockey Club of the Dis-
trict of Columbia
9.1.1 Overview
Marrone (P) sued after the Washington Jockey Club of the District of Columbia
(D) refused him permission to enter.

53
9.1.2 Facts
On two consecutive days, the Washington Jockey Club of the District of
Columbia (“Jockey Club”) refused Marrone entry even though he had pur-
chased a ticket. The Jockey Club based its refusal on suspicions that Marrone
had “doped” a horse he had entered in the race. No evidence, however, was
produced to support this theory. Marrone sued for the right of entry.

9.1.3 Issue
Did the ticket create a right of entry in favor of Marrone?

9.1.4 Holding
The ticket did not create such a right.

9.1.5 Reasoning
The ticket did not create a right of entry. It was merely a contract, and a
contract does not create a right in rem unless it provides specifically for the
conveyance of property or a license to enter property. Under these circum-
stances, Marrone is limited to suing the Jockey Club for breach of contract.
He may not sue for access to the property itself.

9.2 Hurst v. Picture Theatres, Limited

9.2.1 Overview
Hurst (P) sued after he was thrown out of a theater operated by Picture
Theatres (D) despite having paid for a ticket.

9.2.2 Facts
Hurst had bought a ticket to see a movie at a theater operated by Picture
Theatres. During the show, several employees of the theater approached him
and asked him to see the manager. Hurst refused each time. The manager
was eventually summoned, who personally asked him to leave. When Hurst
again refused, the manager called the police, which refused to throw out
Hurst because it thought the dispute should be handled solely by the theater.
An employee of the theater then grabbed and hoisted Hurst from his seat,

54
whereupon Hurst left the premises. Picture Theatres subsequently justified
its actions on the ground that Hurst had entered the theater without a ticket.
The jury found that he had indeed paid for a ticket.

9.2.3 Issue
Was the theater justified in ejecting Hurst because it had granted him nothing
more than a revocable license to enter the premises?

9.2.4 Holding
The theater was not justified.

9.2.5 Reasoning
Buckley, L.J. The rule for which Picture Theatres contends would produce
results that are contrary to both good sense and the law. If the owner of
a theater were allowed to throw out patrons at will, then he might eject a
patron at any time and resell the seat to another person. Although Wood v.
Leadbitter appears to support the theater’s view, it was decided before the
merger of law and equity and is therefore no longer good law. Even if were
still good law, the rule it established is inapplicable here. Here, there was
an agreement to allow Hurst to see a particular spectacle from beginning to
end.

Phillimore, L.J. Picture Theaters has a valid argument concerning its

right to throw out Hurst. Just because Hurst can sue for specific performance
of the contract to allow him to see the movie does not mean that he has the
right to stay in the theater before such specific performance has been granted.

9.3 ProCD, Inc. v. Zeidenberg

9.3.1 Overview
ProCD (P) sued Zeidenberg (D) for reselling information from its database.

55
9.3.2 Facts
ProCD produced and sold a database containing contact information for
individuals and businesses across the United States. The contact information
was similar to that included in a conventional telephone directory. ProCD
sold the database on CD-ROM, charging one price for ordinary consumers
and a substantially higher price for businesses. The software license packaged
with the CD-ROM prohibited the resale of the information contained therein.
Zeidenberg purchased a copy of the database and proceeded to resell the
information online.

9.3.3 Issue
Are the contractual limitations on the use of ProCD’s database preempted
by the Copyright Act, which states that facts such as those contained within
the database cannot be protected from copying?

9.3.4 Holding
The contractual limitations are not preempted.

9.3.5 Reasoning
The Copyright Act preempts only those limitations established by law. Here,
the limitations on the use of ProCD’s database are established by contract
between two private parties. Copyright law cannot reach into the current
situation and prevent enforcement of the license. To hold otherwise would
be detrimental to businesses that compile such information for resale.

9.4 Allen v. Hyatt Regency–Nashville Hotel

9.4.1 Overview
Allen (P) sued after his car was stolen from a parking garage operated by
Hyatt Regency–Nashville Hotel (D).

9.4.2 Facts
Allen had parked his car in a parking garage operated by the Hyatt Regency–
Nashville Hotel (“Hyatt”). He had locked the car and taken the keys with

56
him. When he returned to retrieve his car, he found that it had been stolen.
Despite that Allen reported the theft to Hyatt’s security personnel and the
police, the car was never recovered. When entering the garage, Allen had
taken a ticket from an automated machine. The sole purpose of the ticket
was to allow Hyatt to calculate the amount of the time that a car had been
parked in the garage. On the ticket were some terms stating that Hyatt would
not be responsible for the theft of the car. The garage had a single entrance
and exit, both of which were easily visible from an attendant’s booth, where
parking charges were collected. Although a security guard had been notified
that someone was tampering with a car, Hyatt’s security personnel sent to
investigate the situation discovered no signs of the theft. The attendant in
the booth at the exit claimed that Allen’s car could not have left through
that exit even though no other exit existed.

9.4.3 Issue
Did Allen’s parking the car in the garage create an implied bailment that
makes Hyatt liable for the theft of the car?

9.4.4 Holding
Allen’s parking the car created such a bailment.

9.4.5 Reasoning
Although there was no specific transfer of the vehicle from Allen to an em-
ployee of Hyatt, the circumstances show that a bailment was nonetheless
created. Allen had not parked his car in an unattended lot. Rather, he
parked in a garage with a single exit that was monitored by an attendant.
Furthermore, Hyatt had also hired security guards to patrol the premises.
Despite testimony to the contrary, the stolen car must have left the garage
through the sole exit. Failure to notice the car can be attributed to an inat-
tentive or off-duty attendant. These facts show that Allen is entitled to a
presumption of negligence as to Hyatt’s negligence.

Drowota, J., dissenting. The lack of an actual transfer of the car from
Allen to Hyatt should be fatal to Allen’s case. This is not a case in which the

57
vehicle was expressly entrusted to a valet. Rather, all the dealings were han-
dled via automated machines. The circumstances therefore do not support
an implied bailment.

10 Transfers of Property
10.1 Pocono Springs Civic Association, Inc. v. MacKen-
zie
10.1.1 Overview
MacKenzie (D) attempted to abandon property for which Pocono Springs
Civic Association (P) was collecting fees.

10.1.2 Facts
MacKenzie and his wife had purchased a lot in the Pocono Springs Develop-
ment (“Pocono”) in 1969. For eighteen years the lot remained vacant, and
in 1987 MacKenzie offered the lot for sale. Although a buyer came forward,
the sale fell through when it was discovered that a sewage system could not
be installed on the land as the buyer required. MacKenzie subsequently at-
tempted to give the lot back to Pocono, but Pocono refused to accept it.
MacKenzie eventually stopped paying taxes on the lot, which was seized and
offered for sale by authorities. Still, no one came forward to buy the land.
MacKenzie also took various other steps to manifest his intent to abandon
the land, including mailing notices to parties the land might concern.

10.1.3 Issue
Do MacKenzie’s actions constitute an abandonment of the land?

10.1.4 Holding
MacKenzie’s actions do not constitute abandonment of the land.

10.1.5 Reasoning
As a matter of law, one who owns real property in fee simple and who holds
perfect title to that property cannot abandon it. It has been held that non-

58
use and failure to pay taxes do not amount to abandonment.

10.2 Eyerman v. Mercantile Trust Co.

10.2.1 Overview
The Mercantile Trust Company (P) sued to prevent Eyerman (D) from de-
molishing a house which had been entrusted to him in a will.

10.2.2 Facts
The deceased owner of the house in question had specified in her will that
the house should be demolished after the death. The empty land was then
to be sold, and the proceeds were to be added to her estate. Demolition
of the house would actually subtract value from her estate, as the value of
the house was many times greater than the empty land that would remain
following demolition. The residents of the neighborhood in which the house
was located sued on several theories, including the claim that demolition of
the house would be contrary to public policy.

10.2.3 Issue
Should demolition of the house be enjoined as contrary to public policy?

10.2.4 Holding
Demolition of the house should be enjoined.

10.2.5 Reasoning
While a living person may generally dispose of his property as he sees fit
even if that disposition might be economically wasteful, this latitude does not
extend to deceased persons. The natural tendency to care for one’s property
and to increase its value will usually restrain a living person from disposing
of such property in odd or wasteful ways. This restraint does not exist in
the case of a deceased person, who no longer has any personal interest in the
property. Here, demolition of the house would do nothing but to entertain the
whim of the decedent, who can no longer benefit from the disposition of the
property. There is also no evidence that the relevant provision in her will was

59
intended to benefit anyone who might profit from the process of demolition
itself. By contrast, trial testimony has already established that demolition
would be detrimental not only to the estate but to the surrounding property.
Although public policy often cannot be clearly defined, this is a case in which
the proposed disposition should be enjoined as beneficial to no one.

Clemens, Judge, dissenting. The majority has improperly attempted

to characterize the intent of the decedent and has interfered with the exe-
cution of her will. None of the beneficiaries of the will have come forward
to challenge the demolition of the house. The purported effects that the de-
molition would have on the neighborhood have been exaggerated. The court
has overreached by defining public policy on its own initiative rather than
merely enforcing existing public policy.

10.3 Lauderbaugh v. Williams

10.3.1 Overview
Williams (P) sued Lauderbaugh (D) to prevent the enforcement of a restric-
tive covenant on the sale of land.

10.3.2 Facts
Lauderbaugh and her husband had purchased land on the shore of a lake.
To develop a neighborhood on the land, they divided the land into lots and
sold the lots. The terms of sale, however, included an agreement that the
buyer could resell the land only to members of a neighborhood association.
Membership in the association was contingent on the approval of current
landowners, and the approval process was such that any two landowners
might scuttle the membership of a prospective buyer. Lauderbaugh appar-
ently sought to have the agreement declared void, but to no avail. When she
tried to sell the land to a buyer who had not joined the association, Williams
sued.

10.3.3 Issue
Should the restrictive covenant be enforced?

60
10.3.4 Holding
The restrictive covenant should not be enforced.

10.3.5 Reasoning
Although not every restriction on the alienation of land is automatically
illegal, the agreement instituted by Lauderbaugh places too great a limitation
on the sale of land. Under its terms, the right to sell the land lies not with the
seller but with members of the association, any two of whom might scuttle
a sale for reasons of whim or caprice. This, combined with the apparent
perpetuity of the agreement, strongly counsels against enforcement.

10.4 Irons v. Smallpiece

10.4.1 Overview
Irons (P) sued Smallpiece (D) for the ownership of two colts.

10.4.2 Facts
Irons had been promised by his father the possession of two colts (young
horses) upon his father’s death. About six months before his father died,
Irons went to buy hay but found the price of hay very high. His father, after
hearing about these circumstances, promised to provide hay for the colts at a
stipulated price. The colts were apparently never delivered, and the hay was
delivered only a few days before the father’s death. Irons sued Smallpiece,
the executrix of the father’s estate, for possession of the colts.

10.4.3 Issue
Did the verbal promise of a gift transfer ownership of the colts to Irons?

10.4.4 Holding
The verbal promise did not transfer ownership.

61
10.4.5 Reasoning
Abbott, C.J. It is settled doctrine that a gift is invalid unless it is actually
delivered to the recipient. In the case of Bunn v. Markham, a gift was held
to be invalid for lack of delivery even though it was the manifest intent
of the donor to transfer his property to others. Since the colts here were
never delivered to Irons, they cannot be considered his property. Rather, the
property interest vested in Smallpiece instead.

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

10.5 Foster v. Reiss

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

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

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

10.5.4 Holding
A gift causa mortis is not valid without such delivery.

62
10.5.5 Reasoning
A gift causa mortis is intended to convey to the donee a priority of interest
that supersedes any interest held by other heirs. Settled doctrine states that
the donor must personally deliver the gift to the donee in order for the gift to
be valid. Here, there was no such delivery. Although Reiss lived in the same
house as Mrs. Reiss, he knew nothing of the property until he received the
note. It is also invalid to say that authorization to take the property, coupled
with actual taking of the property during Mrs. Reiss’s lifetime, constitutes
transfer of ownership. Mrs. Reiss was already under anesthesia when Reiss
got the property. By that time, she was already incapable of transacting
business.

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

11 Estates in Land
11.1 Williams v. Estate of Williams
11.1.1 Overview
A dispute arose as to the construction of a will.

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

63
interest specified in the will. The court below held that the will gave to the
daughters ownership in fee simple of the farm.

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

11.1.4 Holding
The will did not give such ownership.

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

11.2 City of Klamath Falls v. Bell

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

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

64
to return to the founders of the company, Fred Schallock and Floy Daggett,
or their heirs and assigns.
The city indeed built and operated a library on the land for some years,
but that library was eventually closed. At the time of the closure, the Cor-
poration had already been dissolved. All of its other assets had been divided
between Daggett and Schallock. Bell (D), the sole heir to Schallock, conveyed
her interest in the land to other parties.

11.2.3 Issue
(1) Is the grant of the land to Daggett and Schallock void as a violation of
the Rule Against Perpetuities? (2) If so, does the City automatically take
possession of the land in fee simple? (3) Does any attempt to alienate an
inalienable reverter destroy the reverter?

11.2.4 Holding
(1) The grant of the land to Daggett and Schallock is void as a violation of
the Rule Against Perpetuities. (2) Even so, the City does not automatically
take possession of the land in fee simple. (3) An attempt to alienate an
inalienable reverter does not destroy the reverter.

11.2.5 Reasoning
The grant of the land back to Daggett and Schallock violates the Rule Against
Perpetuities. This result, however, does not automatically mean that the
City take possession of the land in fee simple. Rather, the law holds that the
land would ordinarily revert to the grantor, in this case the Corporation. Be-
cause the Corporation has been dissolved, there remains the question of who
may succeed to the ownership of the land. Other states, such as Delaware,
have enacted statutes providing for the appointment of a receiver empow-
ered to dispose of the property and to distribute the proceeds from such
disposition to the creditors or former shareholders of the dissolved company.
Although no such statute exists here, there is no reason to take the same
approach. Although Oregon law holds that no reverter may be alienated,
the attempted conveyance of the land to Daggett and Schallock does not
destroy the reverter. It would be absurd to find that a legal device inca-
pable of alienating a reverter could somehow destroy the reverter itself. The

65
land therefore belongs to Marijane Flitcraft, who acquired it from the other
parties.

11.3 Johnson v. Whiton

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

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

11.3.3 Issue
Should the novel conditions imposed by the will be disregarded?

11.3.4 Holding
The conditions should be disregarded.

11.3.5 Reasoning
One may not create a new kind of inheritance. The conditions imposed by
the will should be disregarded. Whiton owns the land in fee simple absolute
and has the right to sell it.

11.4 Garner v. Gerrish

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

66
11.4.2 Facts
Gerrish had signed a lease providing that he was to remain the tenant of the
premises “for and during the term of quiet enjoyment.” The apparent intent
of this language was to convey to Gerrish the right to occupy the premises for
life if he so chose. Sometime thereafter, Garner replaced the original lessor.
Garner then sued to evict Gerrish from the premises on the theory that the
lease was terminable by the lessor as well as the lessee.

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

11.4.4 Holding
The lease should not be so construed.

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

11.5 Brokaw v. Fairchild

11.5.1 Overview
Fairchild (P) sued to prevent Brokaw (D) from demolishing a mansion to
which Brokaw held a life estate.

67
11.5.2 Facts
George Brokaw (“Brokaw”) had inherited from his father, Isaac Brokaw, a
life estate in a mansion built by the latter. Following the termination of
the life estate, the remainder interest in the mansion was to be granted to
Fairchild. After Brokaw took possession of the premises, the proliferation of
apartment housing made it unprofitable to maintain the property, which was
difficult to rent in its existing condition and which could not be renovated to
make it more appealing to prospective tenants. Brokaw therefore proposed to
demolish the mansion and to replace it with an apartment building. Fairchild
sued on the theory that doing so would constitute waste.

11.5.3 Issue
Should Brokaw be prevented from demolishing the mansion?

11.5.4 Holding
Brokaw should be prevented.

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

68
11.6 Mountain Brow Lodge No. 82, Independent Or-
der of Odd Fellows v. Toscano
11.6.1 Overview
A dispute arose as to certain restrictions on the alienation of land conveyed
in a will.

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

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

11.6.4 Holding
The restriction should be recognized.

11.6.5 Reasoning
In general, restrictions specifically limiting the sale of land are nullified. Here,
however, the will does not set forth a purely arbitrary prohibition of sale by
the Order; rather, it imposes a limitation on the use of the land. The grantors
evidently intended that the land should remain in the Order’s hands as long
as the Order used it to maintain its lodge. As soon as this particular use
ceased, the land was to revert to the heirs of the grantors. The distinction be-
tween grants that are conditioned upon particular uses and simple restraints
on sale has long been recognized. As long as the restriction is framed in terms

69
of particular uses, it does not matter that the specified uses might inciden-
tally constrain ownership of the land to one party. The condition therefore
cannot be said to be an unlawful restraint on alienation.

Stone, Associate Justice, dissenting. The majority insists on a textual

distinction that gives rise to no practical difference. Even if the express refer-
ence to “sale or transfer” were eliminated, the effect of the will would still be
to limit ownership to the Order. Insisting upon the majority’s interpretation
might result in absurd consequences. If the Order were ever disbanded, the
land might have to be divided among hundreds of heirs.

11.7 Symphony Space, Inc. v. Pergola Properties, Inc.

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

11.7.2 Facts
Broadwest Realty Corporation (“Broadwest”) had owned the premises in
question for some time. The premises consisted of a building that housed
a theater in addition to commercial space. Because Broadwest had been
operating the property at a loss, it sought in 1978 to reduce the costs of op-
eration by entering into a deal with Symphony Space (“Symphony”). Under
the deal, Broadwest would sell the property to Symphony. Symphony would
thereby gain use of the theater while leasing the commercial space back to
Broadwest at the nominal rate of one dollar per year. Broadwest would be
able to carry on commercial operations without the tax burden of owning
the building itself.
The deal, however, included a repurchase option, which granted Broad-
west the power to force Symphony to sell the property back to Broadwest.
The option provided that a forced resale under the option could take place
in 1987, 1993, 1998, or 2003. Pergola Properties (“Pergola”) subsequently
replaced Broadwest as the owner. The property had appreciated consider-
ably in the meantime, and Pergola sought to exercise the option. Symphony
refused on the theory that the final year specified in the option fell beyond

70
the 21-year period set forth in the Rule Against Perpetuities as applied to
corporations.

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

11.7.4 Holding
The Rule invalidates the option.

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

12 Marital Property
12.1 O’Brien v. O’Brien
12.1.1 Overview
A dispute arose during divorce proceedings as to the distribution of the value
of a medical license.

12.1.2 Facts
The O’Briens had been married for nine years. During that period, the couple
moved to Mexico, where the husband attended medical school. The wife
supported their household by working as a teacher and performing household

71
duties, forgoing her own opportunities for career advancement. Evidence
showed at trial that she had contributed the majority of the household income
during this time. Soon after the husband obtained his medical license, he
filed for divorce.

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

12.1.4 Holding
The license should be considered marital property.

12.1.5 Reasoning
The Domestic Relations Law (“the Law”) of New York introduced the con-
cept of marital property in order to eliminate the inequities that had occurred
under older rules for distributing property in divorce proceedings. The Law
specifically views marriage as a joint enterprise, so that both partners are
entitled to a share of its proceeds upon divorce. To the extent that the wife’s
contributions made it possible for the husband to obtain the license, she
should be rewarded in accordance with that contribution. The situation is
analogous to the distribution of pension rights. The husband cannot contend
that the wife should be limited to reimbursement of her direct contributions.
That would be analogous to saying that the spouse who made a down pay-
ment on a house is entitled only to that down payment but not to any value
resulting from appreciation of the house.

Meyer, Judge, concurring. The court has overlooked a potential prob-

lem for professionals in training. Here, the husband’s earning potential is
contingent upon his completing additional training, such as an internship
and a residency, following medical school. The trial judge, in making cal-
culations based on the lifetime earnings of a doctor, has implicitly assumed
that the husband will indeed practice medicine for the rest of his career.
Because any number of eventualities might cut short his career (e.g., debili-
tating injuries, personal decision to make a career change), the court should
have some way of revising the award should the circumstances change.

72
12.2 Marvin v. Marvin
12.2.1 Overview
A dispute arose as to the division of property following the end of a long-
standing non-marital relationship.

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

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

12.2.4 Holding
(1) The Family Law Act (“the Act”) does not govern the distribution of
property acquired during a non-marital relationship. (2) The courts should
enforce express contracts between non-marital partners except to the extent
that the contract is explicitly founded on meretricious sexual relationships.
(3) In the absence of an express contract, the courts should consider the
overall circumstances of the relationship to determine whether a contract
should be implied.

12.2.5 Reasoning
Many of the cases predating the Act relied on the idea that an individual
should be punished for entering into a non-marital relationship. In those
cases, the courts tended to give relief to partners who had contributed funds
or property to the relationship but not to those who had contributed services.
This result implied that services such as cooking, cleaning, and otherwise
maintaining the household were worthless. Following the Cary decision, the

73
courts have increasingly treated non-marital relationships as contracts. The
courts may therefore consider the overall circumstances of the relationship
to determine whether certain agreements as to the disposition of property
should be implied.
The husband relies on two arguments, neither of which has merit. He
first argues that no contract between him and his wife should be enforced
because any such contract would be “immoral.” This contention is rendered
invalid by precedent which shows that invalidation is appropriate only to the
extent that the contract rests explicitly on “meretricious” (i.e., quid pro quo)
sexual relationships. The husband also argues that distribution of property
might infringe upon his former wife’s rights to that property. His former
wife, however, has independent rights of action to recover property. Finally,
it cannot be said that the disposition of the current case might discourage
marriage. The old rules might be said to discourage marriage with equal
force.

Clark, Justice, concurring and dissenting. The majority should not

have addressed any issue other than implied contracts. In addressing the
doctrine related to non-marital relationships, it has infringed upon decisions
that are best left to the legislature.

13 Leases
13.1 Paradine v. Jane
13.1.1 Overview
Paradine (P) sued after Jane (D) was unable to pay his rent for land.

13.1.2 Facts
Paradine had leased land to Jane, specifying that rent was to be paid four
times a year, each time on the day of a holiday feast. Sometime thereafter,
Jane was unable to pay. He said that the German army had ejected him
from his land, making him unable to obtain from the land profits that would
have allowed him to pay.

74
13.1.3 Issue
Should Jane pay the rent even though an unforeseen eventuality has made it
difficult for him to do so?

13.1.4 Holding
Jane should pay the rent.

13.1.5 Reasoning
At the time the lease was formed, Jane apparently posed no question as
to contingencies such as the one that has now arisen. Given the lack of
discussion on the issue, it must be assumed that Jane intended to bear any
risk of occupying the land. Another argument in favor of payment is that
Jane should bear the risk of loss if he is to reap the profits of the land.

13.2 Smith v. McEnany

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

13.2.2 Facts
McEnany had rented some land from Smith for the purpose of keeping a
shed there for the storage of wagons. Sometime thereafter, the tenant of
neighboring land built a brick wall that partially intruded upon Smith’s land.
The wall had been built with Smith’s permission, and Smith knew at the time
that it would result in such an intrusion. McEnany refused to pay rent, and
Smith sued.

13.2.3 Issue
Does the intrusion fully discharge McEnany from the obligation to pay rent
even though the intrusion limits access to only part of the land?

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13.2.4 Holding
The intrusion fully discharges McEnany.

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

13.3 Sutton v. Temple

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

13.3.2 Facts
Temple had rented some land from Sutton for the purpose of allowing his an-
imals to graze thereon. A memorandum stated that he was to take “eddish”
from the land. Sometime thereafter, several of the animals died. Temple in-
spected the land and found a pile of manure contaminated with toxic “refuse
paint.” He fenced off the pile and allowed his animals to continue grazing.
The animals, however, continued to die. Upon closer inspection, Temple
found that the entire plot of land had been contaminated with paint similar
to that in the pile of manure. Finding the plot therefore to be unusable,
Temple refused to pay any more rent.

13.3.3 Issue
Does the unsuitability of the land for a particular purpose release Temple
from the obligation to pay rent?

13.3.4 Holding
The unsuitability does not release Temple.

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13.3.5 Reasoning
Lord Abinger, C.B. Temple has done nothing more than to take posses-
sion of the land for a specified period. This case is therefore distinguishable
from those involving the leasing of furnished houses or similar premises. In
those cases, the lessor implies through contract that the premises are suit-
able for a particular purpose. No such implication exists here. There is
no evidence to suggest that Sutton knew of the toxic condition of the land.
Temple should therefore bear the risk that the land will not be conducive
to his plans. To hold otherwise would render the lessor liable for any failed
venture on the part of the lessee.

Parke, B. If this were an entirely new matter, then there would be no

difficulty in holding that Sutton had made an implicit warranty as to the
suitability of the land for grazing. The common law is clear, however, that a
lease does not include any implicit warranties as to the quality of the land.
Sutton must therefore prevail.

Gurney, B. The result is correct, but it is not entirely clear that this case
is distinct from those involving the leasing of apartments.

Rolfe, B. The rule for which Temple argues would place an unreasonable
burden upon landlords. Suppose that some type of a manure were used to
fertilized the fields and that the manure had latent toxic effects. It would be
unfair to make the landlord bear responsibility for any such effects, which he
probably could not anticipate. Likewise, suppose that a landowner leases his
land for the construction of a building. If it later turns out that the land is
insufficiently firm to bear the weight of the building, the landowner should
not be made liable for that problem.

13.4 Blackett v. Olanoff

13.4.1 Overview
Two actions for constructive eviction were consolidated into the current case.

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13.4.2 Facts
The defendants in the original actions occupied premises owned by the plain-
tiff. The plaintiff had leased a portion of the premises as residential units
and part of the remaining area to a lounge. Loud music from the lounge
persistently disturbed the residents despite the plaintiff’s efforts to remedy
the situation. The defendants eventually vacated their apartments, refusing
to pay rent for the remainder of the lease.

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

13.4.4 Holding
The noise releases the defendants.

13.4.5 Reasoning
The landlord has conceded that the noise amounts constructive eviction.
His only contention is that he should not be held responsible for the noise
because it was caused by another tenant. Inaction on the part of the landlord,
however, may nonetheless give rise to liability for constructive eviction. Such
has been the case where the landlord passively allows a tenant to pollute the
air or to obstruct the entry of sunlight into neighboring apartments. The
current case differs from those in which one residential tenant annoys another
through loud music. Here, the plaintiff knew that the lounge might play loud
music and specified in the lease that any music should be quiet enough not
to disturb residents. Having failed to live up to its promise to maintain peace
and quiet, the landlord should be liable.

13.5 In re Kerr
13.5.1 Overview
A dispute arose as to the payment of rent for premises that had been sur-
rendered following the tenant’s bankruptcy.

78
13.5.2 Facts
Kerr (D) had rented space in a building owned by Garment Center Capitol,
Inc. (“Garment”). The lease specified that Garment would have the right
to relet the premises to another tenant in the event of Kerr’s bankruptcy.
When Kerr later went bankrupt, Garment exercised its option to relet and
offered the new tenant several months of free rent, apparently as inducement
to enter into the lease. Simultaneously, however, Garment sued Kerr for the
rent that Kerr would have paid pursuant to the original lease.

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

13.5.4 Holding
Garment may not recover. It is limited only to the rent that accrued before
the new tenant was found.

13.5.5 Reasoning
The lease provided only that Garment would have the right to relet the
premises for the remainder of Kerr’s term and to charge Kerr for any differ-
ence between the original rent and the new rent. In reletting the premises for
a term beyond that reserved for Kerr, however, Garment has implicitly ac-
cepted Kerr’s surrender of the premises. Therefore, Garment can sue only for
any rent that accrued before the new tenant took possession of the premises.

13.6 Medico-Dental Building Company of Los Angeles

v. Horton and Converse
13.6.1 Overview
A dispute arose as to restrictions of the types of tenants that a landlord could
take on.

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

13.6.3 Issue
(1) Are covenants “not to lease” and “to pay rent” mutually independent
or mutually dependent? (2) Was the restrictive covenant breached when
Medico-Dental acquiesced to Boonshaft’s operation of a pharmacy? (3) Did
the breach of the covenant affect a substantial part of the consideration given
in exchange for rent? (4) Did Horton waive any right to sue on the covenant?

13.6.4 Holding
(1) The covenants are mutually dependent. (2) The restrictive covenant was
breached. (3) The breach affected a substantial part of the consideration.
(4) Horton did not waive his right to sue.

13.6.5 Reasoning
(1) Although leases have traditionally been interpreted as conveyances of
land that unconditionally obligated the tenant to pay rent, the facts here
suggest that the parties entered into a contract as well. Horton’s decision
to occupy the premises turned on the lease’s guarantee of protection from
competition. This guarantee was made explicit in the terms of the lease. By
allowing Boonshaft to operate a competing pharmacy in his practice, Medico-
Dental has committed a breach that goes to the heart of the consideration.

80
The respective covenants not to lease and to pay rent should therefore be
interpreted as the terms of a contract. Here, the breach of contract ought
to release Horton from any further obligation to pay rent. (2) Trial evidence
indicates that Medico-Dental knew about Boonshaft’s competing pharmacy
but chose not to do anything about it. Even after all three parties had met to
discuss the issue, Medico-Dental still refused to act. (3) As already discussed,
the breach affected a substantial part of the consideration. Protection from
competition was a key inducement for Horton’s rental of the premises.

13.7 Javins v. First National Realty Corp.

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

13.7.2 Facts
Javins and several other tenants had been living in an apartment complex
owned by National. Sometime during their occupancy, National allowed
conditions in the apartments to degenerate to the point of violating the
housing regulations of Washington, D.C. Javins subsequently refused to pay
rent, and National sued to repossess the apartments.

13.7.3 Issue
May violation of housing regulations discharge Javins from the obligation to
pay rent?

13.7.4 Holding
Violation of housing regulations may discharge Javins from the obligation to
pay rent.

13.7.5 Reasoning
Modern apartment leases should be treated as contracts with implied war-
ranties. The traditional rule that a lease conveyed only an interest in land
originated in the Middle Ages, when the predominant use of land was for

81
agriculture. Under those conditions, it was typical for the tenant to live
in a simple dwelling and to perform repairs on the structure himself. This
view of tenancy, however, has long since become obsolete in light of modern
developments.
The modern tenant is unlikely to care much about the land itself; rather,
the emphasis is on access to a dwelling equipped with the basic amenities
that may be expected in modern society. Given that modern buildings are
much more complicated than the dwellings of past times, it is unreasonable to
expect tenants to make repairs themselves. Such repairs might require access
to common areas controlled by the landlord. They may require specialized
knowledge and non-trivial cost. Like the buyers of most modern products,
the lessee of a dwelling must rely on the expertise and good faith of the lessor
to ensure that the premises remain in good condition. The lessor therefore
offers up an implicit warranty as to the condition of the housing.
Here, the jury should be given an opportunity to determine whether a
breach of implied warranty has occurred and, if so, whether the breach is
sufficiently severe to justify the non-payment of rent.

13.8 Sommer v. Kridel

13.8.1 Overview
A dispute arose as to a landlord’s duty to mitigate damages following the
breach of a lease.

13.8.2 Facts
Kridel (D) had rented an apartment from Sommer, evidently with the inten-
tion of moving in with his new wife. His engagement, however, was called off
at the last minute, and a resulting change in his financial situation prevented
him from being able to rent the apartment. Kridel wrote a letter notifying
Sommer (P) of his intention not to rent. The letter forfeited security de-
posits and other payments that had already been made in anticipation of
Kridel’s occupancy. Sommer never replied to the letter. Despite that an-
other prospective tenant offered to rent the now-vacant apartment, Sommer
refused, evidently opting to allow damages to stack up. The apartment re-
mained vacant for more than a year, until Sommer sued to recover for all the
rent that Kridel owed on the lease.

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

13.8.4 Holding
Sommer should have mitigated.

13.8.5 Reasoning
The court below applied the traditional rules concerning leases. These rules,
however, should no longer be applied. The lease should be treated as a
contract. Upon breach of the contract by Kridel, Sommer had a duty to
mitigate by making reasonable efforts to relet the apartment. Sommer was
approached by a prospective tenant for the very apartment that Kridel had
been unable to take. In turning down the tenant, he failed in his duty to
mitigate.

13.9 Nahrstedt v. Lakeside Village Condominium As-

sociation, Inc.
13.9.1 Overview
Nahrstedt (P) sued Lakeside Village Condominium Association (“Lakeside”)
(D) from enforcing a restriction against keeping cats.

13.9.2 Facts
Nahrstedt lived in a condominium owned by Lakeside. The project’s declara-
tion set forth a restriction against the keeping of certain pets, including cats.
Nahrstedt kept three cats in the condominium. When Lakeside learned about
the cats, it told Nahrstedt to remove the cats and charged her a monthly fine
for their presence. Nahrstedt then sued on the theory that the restriction
should not be enforced because the cats were confined to the condominium
and did not bother any other residents.

83
13.9.3 Issue
Should Nahrstedt be able to demand a case-by-case review of the applicability
of the restrictions?

13.9.4 Holding
Nahrstedt should not be able to demand such review.

13.9.5 Reasoning
Where, as here, the restrictions in question were set forth in founding docu-
ments as opposed to the decisions of a later elected body, those restrictions
should be accorded significant deference. Indeed, the relevant statute pro-
vides that such restrictions are to be enforced “unless unreasonable.” This
rule has the important practical effect of ensuring harmony among the res-
idents in collectively governed housing. It allows each resident to have con-
fidence in the consistency of the environment as ensured by restrictions set
forth at the time of development. If Nahrstedt’s challenge were allowed to go
forward, governing board would be placed in the difficult position of applying
restrictions on a case-by-case basis. Furthermore, litigation such as that in
the current case would tend to drive up costs for all residents by incurring
defense fees. Public policy demands that such restrictions should be upheld
unless the challenger can produce specific evidence of unreasonableness.

Arabian, Justice, dissenting. The majority has subordinated real con-

cerns to abstract rules. Pets afford significant benefits to their owners. For
this reason, the legislature has already forbidden public-assistance housing
from taking away the pets of the elderly or handicapped. Here, there was no
evidence that the cats were causing any inconvenience to other residents or
that they wandered outside the bounds of Nahrstedt’s condominium. Nahrst-
edt is entitled to a fact-specific evaluation of her case.

13.10 40 West 67th Street v. Pullman

13.10.1 Overview
The cooperative corporation owning the building at 40 West 67th Street
(“the Coop”) (P) sued to eject Pullman (D).

84
13.10.2 Facts
Pullman was a tenant of the Coop. When he moved in, he had agreed to a
lease providing that the Coop could terminate the lease of any tenant who
engaged in “objectionable behavior.” Pullman proved to be a vexatious ten-
ant, making arbitrary demands for renovation of the building and embroiling
himself in conflicts with other tenants. In particular, he accused an upstairs
neighbor of playing his TV and stereo too loudly, storing toxic chemicals,
and running an illegal bookbinding business. He also distributed pamphlets
maligning the neighbor. The Coop found all these accusations to be unsub-
stantiated.
Deciding that it had taken enough of Pullman’s abuse, the Coop called
a special meeting for the purpose of determining whether Pullman’s tenancy
should be terminated. A considerable fraction of the tenants, representing
more than 75% of all shares in the Coop, attended. All the attendees voted
to evict Pullman. When Pullman refused to move out, the Coop sued to
eject him.

13.10.3 Issue
May Pullman demand that the court apply its own judgment as opposed to
the “business judgment” rule in deciding the case?

13.10.4 Holding
Pullman may not demand that the court apply its own judgment.

13.10.5 Reasoning
Pullman contends that RPAPL 711(1), the applicable statute, requires the
landlord to establish by “competent evidence” that the tenant is objection-
able and that the statute is at odds with the business-judgment rule. To the
contrary, the statute is entirely consistent with the rule. Here, the Coop’s
determination as to whether Pullman’s conduct was objectionable serves as
evidence that he was indeed objectionable. To the extent that the Coop was
acting in the collective interests of its tenants, its decisions should not be sub-
ject to second-guessing by the courts. While it is true that cooperatives may
be acting maliciously when they eject tenants, Pullman has not alleged any
bad faith on the part of the Coop. The ejectment should therefore proceed.

85
14 Trusts
14.1 Broadway National Bank v. Adams
14.1.1 Overview
Broadway National Bank (“Broadway”) (P) sued Adams (D) for the payment
of debt.

14.1.2 Facts
Adams was the beneficiary of a trust created by his brother. His brother
specified that Adams was to receive periodic payments consisting of pro-
ceeds from the trust but that the trust res was to remain inaccessible to
creditors. Adams, being something of a spendthrift, evidently accumulated
a considerable debt with Broadway. Broadway then sued for payment of the
debt, contending that the trust res itself should be used to pay.

14.1.3 Issue
Should the trust res be used to pay the debts?

14.1.4 Holding
The trust res should not be so used.

14.1.5 Reasoning
While the common law holds that one who leaves property to his heirs may
not impose restrictions on the alienation of that property, this rule does not
apply to trusts. When a trust is created, legal ownership of the property
therein passes not to the beneficiary but to the trustee. Thus, the brother
had full authority to limit Adams’s use of the trust. Here, the brother stated
expressly that Adams should have access only to periodic payments from the
trust fund; the brother did not authorize Adams to alienate any part of the
trust itself. This intention should be upheld. National cannot argue that this
rule defrauds creditors. Creditors are free to ascertain a beneficiary’s ability
to pay by examining the appropriate public records.

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14.2 Rothko v. Reis
14.2.1 Overview
A dispute arose as to the disposition of the paintings of Mark Rothko follow-
ing his death.

14.2.2 Facts
Mark Rothko had specified in his will that his possessions were to be placed
in a trust following his death. His estate consisted mainly of 798 paintings of
enormous value. Rothko had designated Bernard Reis, Theodoros Stamos,
and Morton Levine as the trustees. Immediately after the trio had gained
control of the paintings, they hastily disposed of all of them within three
weeks and through two transactions. In the first transaction, 100 paintings
were sold outright to Marlborough A.G. (“MAG”), a Liechtenstein corpora-
tion. In the second transaction, most (if not all) of the remaining paintings
were consigned to an American corporation (“MNY”) of the same name.
The consignment specified that MNY was to take commissions of 50% on
the sales of the paintings.
Reis was a director of MNY and therefore stood to gain personally from
the transaction. Stamos, an unsuccessful artist, apparently tried to curry
favor with Reis by going along with the plan. Although Levine did not
participate directly in the misfeasance, he evidently turned a blind eye to
the situation. Rothko’s children and the Attorney General of New York sued
to recover the paintings themselves or the value thereof.

14.2.3 Issue
(1) Should the trustees be liable for diminution of the value of the Rothko
estate resulting from the sales? (2) Was the trial correct in applying appre-
ciation damages?

14.2.4 Holding
(1) The trustees should be liable. (2) The trial court was correct in applying
appreciation damages.

87
14.2.5 Reasoning
The trustees have plainly committed a breach of trust by disposing of the
paintings in a way that allowed them to enrich themselves. The trustees
may not contend that the court should apply the “no further inquiry” rule
in reviewing their conduct. The trial court found that they had acted in bad
faith and against the interests of the estate. Reis enriched himself directly
through his stake in MNY. Stamos curried favor with Reis, as evidenced by
Reis’s purchase of a Stamos painting shortly after the transaction. Mean-
while, Levine stood idly by, albeit on the advice of his lawyer, while the other
two abused their power.
The trial court was also correct in awarding appreciation damages. In
this case, the trustees cannot contend that any damages should be limited to
the difference between the price of sale and the fair market price at the time
of sale. That rule applies only to honest misjudgments of value. Here, the
trustees deliberately sold the paintings at depressed prices in order to profit
later from their resale. Appreciation damages should be applied in order to
restore the estate to the position it would have occupied had the breach of
trust never occurred.

14.3 Wilber v. Owens

14.3.1 Overview
A dispute arose as to the administration of an estate according to the cy pres
doctrine.

14.3.2 Facts
Bamford, the decedent, had specified in his will that his property was to
be placed in a trust whose purpose was to advance research in science and
philosophy. The will specified that a certain manuscript was to serve as the
basis of the research. Upon examination, however, the manuscript turned
out to be nearly unintelligible. With no other good way to dispose of the
funds, the lower court ruled that the trust should be turned over to Princeton
University in accordance with the cy pres doctrine. Princeton would then
use the trust to fund its own general research. Wilber, as the sole executor
of the estate, sued to prevent transfer of the trust.

88
14.3.3 Issue
Was the lower court correct in applying the cy pres doctrine?

14.3.4 Holding
The lower court was correct in applying the doctrine.

14.3.5 Reasoning
The testator has unambiguously expressed an intent that his estate should be
used for charitable purposes. A trust is charitable when the testator specifies
that it should be used for purposes he believes to serve the public. The
interests need not be rational in the view of the court. As long as it is not
clearly absurd or illegal, the courts should defer to the testator’s intentions.
It does not matter here that Bamford failed to specify his intentions clearly in
the manuscript. Even though the manuscript is unintelligible, his manifest
purpose was to advance scientist, not to propagate the idiosyncratic ideas
contained within the manuscript itself. Application of the cy pres doctrine
in carrying out his wishes is therefore appropriate.

15 Nuisance
15.1 Adams v. Cleveland-Cliffs Iron Company
15.1.1 Overview
Adams (P) sued the Cleveland-Cliffs Iron Company (“Cleveland-Cliffs”) (D)
for creating a nuisance by operating a mine.

15.1.2 Facts
Adams and numerous other plaintiffs lived near a mine operated by Cleveland-
Cliffs. Blasting from the mine had sent tremors through the ground, which
caused damage to nearby houses. Airborne dust generated by other op-
erations within the mine settled on the said homes, forcing their owners to
maintain and replace dust-covered parts of their houses more frequently than
would otherwise be necessary. Some plaintiffs also asserted that noise from

89
the mine had caused sleeplessness and that the operation of the mine had
rendered their homes worthless on the market.

15.1.3 Issue
Does the mine constitute a trespass as opposed to a nuisance?

15.1.4 Holding
The mine does not constitute a trespass.

15.1.5 Reasoning
The law recognizes an important practical distinction between trespass in
nuisance. If trespass is found, then the plaintiff is presumptively entitled to
nominal damages in recognition of the fact that someone has infringed upon
his right to exclude others from the land. He may, of course, obtain additional
damages if he can show actual harm. By contrast, nuisance requires the
plaintiff to prove harm before any damages are awarded.
Although some jurisdictions have broadened the definition of trespass
to include technical invasions by microscopic particles of dust and similar
agents, this trend should not be followed. Their approach tends to efface
the distinction between trespass and nuisance. The result is that landowners
would find it difficult to vindicate their possessory rights over the land.
The trial court therefore erred in ruling in favor of Adams on the issue of
trespass. The noise and dust from the mine are intangible agents, as opposed
to the tangible agents required to support a finding of trespass. Adams must
recover, if at all, under the theory of nuisance.

15.2 St. Helen’s Smelting Company v. Tipping

15.2.1 Overview
Tipping (P) sued St. Helen’s Smelting Company (“St. Helen’s”) (D) for caus-
ing a nuisance by operating a smelting plant near his property.

15.2.2 Facts
Tipping had purchased a large estate consisting of a manor and about 1,300
acres of land. Nearby was a smelting plant operated by St. Helen’s. Tipping

90
claimed that the plant emitted fumes and other noxious matter that proved
detrimental to the health of the plants and animals on his land. The plant
was only one of many similar establishments near the estate. The trial judge
instructed the jury (1) that every man was bound to use his property in
such a way as not to injure the property of his neighbors, (2) that there
was no prescription in favor of St. Helen’s, and (3) that a person should
not be allowed to interfere with industry by suing for every annoyance. The
trial judge also refused the defendant’s request for an instruction on the
reasonableness of the smelting plant as a use of the land.

15.2.3 Issue
Does the smelting plant constitute a nuisance to Tipping’s land?

15.2.4 Holding
The smelting plant constitutes such a nuisance.

15.2.5 Reasoning
Mr. Baron Martin. Similar instructions have been given for the past
twenty years. There is no reason to deviate from this precedent in the current
case.

The Lord Chancellor. The mere fact that the plant operates in an area
where similar industries is no reason to grant it permission to pollute as it
sees fit. The “suitability” of a particular purpose to the land should not be
construed so broadly.

Lord Cranworth. Similar instructions have been given for the past twenty
years. Although some cases have reached the opposite conclusion, they are
not relevantly similar to the current case.

Lord Wensleydale. A person should not be allowed to sue for trifling

inconveniences. The trial judge correctly instructed the jury.

91
15.3 Luensmann v. Zimmer-Zampese & Associates, Inc.
15.3.1 Overview
Luensmann (P) sued Zimmer-Zampese & Associates (“Zimmer-Zampese”)
(D) for a causing a nuisance by operating a racetrack.

15.3.2 Facts
Luensmann and her husband had lived in their home for fifty-six years. Dur-
ing that time, the area surrounding their neighborhood underwent significant
change. Zimmer-Zampese annoyed Luensmann by building a racetrack for
drag racing about 700 feet from the Luensmann residence. The track hosted
up to 200 races per week, operating several nights per week. Luensmann
claimed that the races produced loud noises and smoke that interrupted her
enjoyment of the land. The racetrack, however, was only one of several simi-
lar establishments located nearby. A shooting range, railroad tracks, and an
interstate highway were constructed near their house. A motocross racetrack
opened nearby. The house also lay under the flight path of a nearby Air
Force base.

15.3.3 Issue
Does the racetrack constitute a nuisance or a nuisance per se?

15.3.4 Holding
The racetrack constitutes neither a nuisance nor a nuisance per se.

15.3.5 Reasoning
Luensmann has failed to prove that the racetrack is a nuisance per se because
she has not shown that it would be a nuisance at all times, at all places, and
under all circumstances. Races are conducted only at night, and Luensmann
has not argued that the racetrack is a nuisance even when it is closed. Lu-
ensmann also cannot claim that the racetrack is nuisance per se by virtue
of having violated a statute. She relies on a statute prohibiting disorderly
conduct. Zimmer-Zampese, however, has not violated this statute; indeed, it
has not even received the warning required before a violation can be found.

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15.4 Boomer v. Atlantic Cement Co.
15.4.1 Overview
Boomer (P) sued Atlantic Cement (“Atlantic”) (D) for causing a nuisance
by operating a cement plant.

15.4.2 Facts
Atlantic operated a cement plant that discharged significant amounts of par-
ticulate air pollution. Boomer sued for an injunction enjoining the operation
of the plant. The lower courts found the plant to be a nuisance but denied
the injunction.

15.4.3 Issue
Should the operation of the plant be enjoined?

15.4.4 Holding
The operation of the plant should be enjoined only until such time as Atlantic
pays Boomer permanent damages for the harm resulting from the nuisance.

15.4.5 Reasoning
An injunction alone would be an unsatisfactory solution. A permanent in-
junction would deprive Atlantic of the benefits from operating the plant while
granting only a slight advantage to Boomer. Such would amount to judicial
policy-making on an issue that requires the participation of the legislature
and interstate cooperation. It would also be ineffective to enjoin the opera-
tion of the plant until such time as Atlantic manages to abate the pollution.
The development of pollution-reducing technologies lies beyond the reliable
control of any single company. Any such injunction would probably result in
requests for extensions. By contrast, permanent damages seem to be a fair
solution. Boomer would be compensated for his loss while Atlantic would
get to continue operating the plant.

Jasen, Judge (dissenting). The majority should not have deviated from
the well-established rule that an injunction is appropriate whenever a nui-
sance is shown to cause substantial harm. While cases awarding damages

93
rather than injunctions exist, almost all such cases did so in response to a
public, rather than private, need to continue a nuisance. Here, there is no
public good to be served. Atlantic is operating the plant solely for its own
benefit. An injunction should have been granted.

15.5 Spur Industries v. Del E. Webb Development Co.

15.5.1 Overview
Del E. Webb Development Company (“Webb”) (P) sued Spur Industries
(“Spur”) (D) to enjoin Spur from operating a feedlot on the ground that it
amounted to a nuisance.

15.5.2 Facts
Spur and its predecessors in interest had been operating a feedlot for cattle
since 1956. At the time, the area was largely rural, with only the retirement
community of Youngtown nearby. In 1959, Webb began developing residen-
tial communities in the area. Within a few years, expansion of the Webb
development and Spur’s feedlots brought the operations into proximity with
each other. The stench and flies surrounding Spur’s feedlots eventually in-
terfered with the marketability of Webb’s homes to such an extent that an
appreciable part of the development became unsellable. Meanwhile, existing
residents in the development complained of the nuisance generated by the
feedlots.

15.5.3 Issue
(1) Should Spur be enjoined from operating its feedlots? (2) If so, should
Webb indemnify Spur for creating a situation that forces Spur to move?

15.5.4 Holding
(1) Spur should be enjoined. (2) Webb should indemnify Spur.

15.5.5 Reasoning
Spur’s feedlots constitute a public nuisance. They affect an entire commu-
nity, and the relevant statute specifically states that the presence of flies

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constitutes such a nuisance. The operation of the feedlots must be enjoined.
At the same time, Webb should indemnify Spur because it knew of the poten-
tial conflict yet decided to proceed with its development nonetheless. Having
taken advantage of the lower land prices in a rural area, it is only fair that
Webb should compensate those who are forced to leave because their activi-
ties have become nuisances to the newly developed community.

16 Easements
16.1 Warsaw v. Chicago Metallic Ceilings, Inc.
16.1.1 Overview
Chicago Metallic Ceilings (“Chicago”) (P) sued Warsaw (D) in a dispute
over a prescriptive easement.

16.1.2 Facts
Chicago and Warsaw owned adjoining plots of land. Chicago built a ware-
house that took up almost its entire plot, leaving only a narrow driveway
for trucks transporting materials to and from the warehouse. Warsaw built
a substantially smaller warehouse, so that a considerable portion of its land
was empty. Soon after Chicago began operating its warehouse, it became
apparent that the narrow driveway was woefully inadequate to accommo-
date the large trucks that needed to maneuver into the warehouse’s loading
docks. Truck drivers began to use the empty space on Warsaw’s land to
accommodate the maneuvers necessary to reach the loading docks. This use
of Warsaw’s land had been in effect for seven years by the commencement
of the current suit. During this time, Chicago attempted to negotiate an
easement with Warsaw on two occasions, though both attempts were unsuc-
cessful. Eventually, Warsaw decided to build an additional warehouse on the
land that had hitherto accommodated the trucks. When Warsaw graded the
land and thereby rendered it inaccessible to the trucks, Chicago sued for a
declaratory judgment on the easement. Despite that a lawsuit was underway,
Warsaw nonetheless completed its new warehouse.

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16.1.3 Issue
(1) Has Chicago created an easement by prescription over Warsaw’s land? (2)
Should Warsaw be forced to tear down the warehouse? (3) Should Chicago
compensate Warsaw for the value of the easement?

16.1.4 Holding
(1) An easement exists. (2) Warsaw should be forced to tear down the
warehouse. (3) Chicago should not have to compensate Warsaw.

16.1.5 Reasoning
A prescriptive easement exists where the party seeking access to the land has
maintained (1) open, (2) notorious, (3) continuous, and (4) adverse use of a
path over the land. Although the path should be well-defined, it need not
remain absolutely the same from use to use. The facts establish the existence
of an easement in favor of Chicago. The truck drivers regularly used a specific
portion of Warsaw’s land to access Chicago’s loading docks. Although no two
drivers traversed exactly the same path, the trucks followed a consistent route
over the land. Warsaw has no right to complain about having to remove its
warehouse because it continued building the warehouse even after Chicago
sued. It therefore gambled on the outcome of the litigation and lost. This
is not a case in which one landowner has accidentally intruded upon the
land of another. Since a prescriptive easement has been established, it would
be inappropriate to require Chicago to compensate Warsaw. The law of
easements is designed to reduce litigation and to stabilize longstanding uses
of property. This purpose would not be served if Warsaw were allowed to
demand compensation.

Grodin, Justice, concurring. The majority’s decision tends to increase,

not reduce, litigation. It is absurd that litigation could be reduced by allow-
ing an invader to acquire an easement over what is concededly the land of
another.

Reynoso, Justice, dissenting. The majority should have required Chicago

to pay Warsaw from the easement. To do so was fully within the equity power
of the court. Modern society favors the planned use of land as compared to ad

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hoc use by invaders. The majority’s decision amounts to allowing a private
party to exercise the power of eminent domain.

16.2 Fontainebleau Hotel Corp. v. Forty-Five Twenty-

Five, Inc.
16.2.1 Overview
Forty-Five Twenty-Five (“Plaintiff”) (P) sued to enjoin Fontainebleau Hotel
Corporation (“Fontainebleau”) (D) from constructing a building that would
have blocked sunlight and degraded the view of property owned by Plaintiff.

16.2.2 Facts
Plaintiff and Fontainebleau operated hotels located on adjacent plots of land
in Miami Beach. At some point, Fontainebleau began building an addition to
its hotel. The addition was located so that it would block sunlight and fresh
air from reaching the guests of Plaintiff’s hotel. The addition had already
reached the height of eight stories when Plaintiff sued. Plaintiff sued to
enjoin construction on the grounds (1) that the construction was motivated
by ill will, (2) that the addition ran afoul of certain regulations, and (3) that
Plaintiff had acquired an easement to light and air.

16.2.3 Issue
Should construction of Fontainebleau’s addition be enjoined?

16.2.4 Holding
Construction should not be enjoined.

16.2.5 Reasoning
The trial court erred by granting the injunction on the sole ground that
Fontainbleau had built the addition out of spite. While it is a settled principle
that one may not use his land in such a way as to harm his neighbor, this
restriction protects only legally recognized rights. Here, the right to sunlight
and air are not legally recognized. There is no statute, private agreement,
or common-law principle barring the addition. Under these circumstances,

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it does not matter that the addition might have been built out of spite. If
express restrictions on buildings such as the one in question are necessary,
the creation of those restrictions should be left to the legislature.

17 Covenants
17.1 Tulk v. Moxhay
17.1.1 Overview
Tulk (P) sued Moxhay (D) for attempting to violate a restrictive covenant
on land that Moxhay had purchased.

17.1.2 Facts
Tulk owned a plot of land in Leicester Square as well as several houses sur-
rounding the square. At some point, he sold the land to a third party, Elms,
on the condition that Elms would leave the square in its existing condition.
Through subsequent transactions, the land passed from Elms into the hands
of Moxhay. Although Moxhay’s own deed contained no copy of the restrictive
covenant created by Tulk, Moxhay knew of the restriction before buying the
land. Tulk then sued to prevent Moxhay from building in the square.

17.1.3 Issue
Should Moxhay be enjoined from building in the square?

17.1.4 Holding
Moxhay should be enjoined.

17.1.5 Reasoning
The Lord Chancellor. Just because land has passed through the hands
of multiple owners does not mean that restrictions imposed by the origi-
nal seller becomes unenforceable by virtue of having gone through multiple
transactions. Otherwise, the original seller could not be sure that a sale of
part of his land would not render his remaining holdings worthless.

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17.2 Neponsit Prop. Owners’ Association, Inc. v. Em-
igrant Industrial Savings Bank
17.2.1 Overview
Neponsit Property Owners’ Association (“the Association”) (P) sued Emi-
grant Industrial Savings Bank (“Emigrant”) (D) over a lien on a house.

17.2.2 Facts
Emigrant had acquired a house2 in a neighborhood developed by Neponsit
Realty Company. When Neponsit sold the houses in the development, it
attached to each deed a covenant requiring the buyer to pay certain fees to
the Association, which would then use the money to provide maintenance for
the common areas in the neighborhood. The covenant provided that failure
to pay the fees would result in a lien on the owner’s house. The evidence
showed that every deed in the chain of title from Neponsit Realty Company
to Emigrant stated the conditions of the covenant. The Association sued to
foreclose the lien and thereby to recover the unpaid fees.

17.2.3 Issue
(1) Is the covenant one that is attached to the land? (2) If so, should the
Association be allowed to sue for its enforcement?

17.2.4 Holding
(1) The covenant is attached to the land. (2) The Association may sue for
its enforcement.

17.2.5 Reasoning
In order for a covenant to run with the land, the covenant must show (1) that
grantor and grantee intended that it should run with the land, (2) that the
covenant “touches” or “concerns” the land, and (3) that there is “privity of
estate” between the party suing for the benefits of the covenant and the party
that would have to perform any obligations specified by the covenant. The
2
The circumstances strongly suggest that Emigrant had acquired the house through
foreclosure.

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first condition is satisfied by the language of the covenant, which leaves no
room for question as to whether the covenant is intended to run with the land.
The second condition is somewhat more problematic because there exists no
test for determining whether a covenant “touches” or “concerns” the land.
While some courts have held that restrictions on the use of land satisfy this
condition whereas affirmative obligations do not, this test is not appropriate
here. Rather, one should take the more realistic approach of evaluating
the impact of the covenant on the parties’ interests in the land. Here, the
covenant was designed to facilitate an exchange between the Association and
the homeowners it governed: the Association was to maintain the common
areas of the neighborhood, and the homeowners would provide the funds
needed to do so. This relationship can be said to “touch” or “concern”
the land. Finally, the corporate nature of the Association should not be a
barrier to enforcement of the covenant. Although the exact nature of any
“privity of estate” between the Association and any homeowners might be
difficult to establish because the Association technically owns no land in the
neighborhood, this technicality should not interfere with governance of the
neighborhood.

17.3 Eagle Enterprises, Inc. v. Gross

17.3.1 Overview
Eagle Enterprises (“Eagle”) (P) sued Gross (D) for breaching a covenant to
buy water.

17.3.2 Facts
Orchard Hill Realties, Inc. (“Orchard”), the predecessor in interest to Eagle,
had developed a subdivision and sold the house in question to one Baum.
The deed in that sale contained a covenant providing that Baum would pay to
Orchard an annual fee in exchange for water supplied from a well operated
by Orchard. The deed also stated that the covenant was to run with the
land. The land then passed through a series of transactions before reaching
Gross. Although some deeds in the chain of title linking Baum to Gross made
reference to the original covenant, none stated the terms of the covenant
expressly. When Eagle tried to enforce the covenant, Gross refused because
he was already getting water from his own well.

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17.3.3 Issue
Should the covenant be enforced between Eagle and Gross?

17.3.4 Holding
The covenant should not be enforced.

17.3.5 Reasoning
It is settled law that a covenant does not run with the land unless it is shown
(1) that the original grantor and grantee so intended, (2) that privity of es-
tate exists between the parties the covenant currently purports to bind, and
(3) that the covenant “touches and concerns” the land. Here, the covenant
fails to pass muster under the third condition. The covenant does not appear
to have any practical impact on rights stemming from ownership of the land
in question. Rather, it appears to act as a contract for the sale of water be-
tween Orchard and Baum only. Eagle does not suggest that Gross’s failure
to purchase water from Eagle’s well would make water prohibitively expen-
sive for other homeowners in the neighborhood. Furthermore, the covenant
violates public policy because it attempts to create a perpetual obligation.

17.4 Sanborn v. McLean

17.4.1 Overview
Sanborn (P) sued McLean (D) over implied restrictions on the use of land.

17.4.2 Facts
Sanborn and McLean owned houses located on adjacent lots. McLean’s lot
was large enough that there was a substantial empty area behind her house.
When she began building a gas station on the empty area, Sanborn sued to
prevent construction on the ground that the gas station was prohibited by a
reciprocal negative easement.

17.4.3 Issue
Should McLean be enjoined from building the gas station?

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17.4.4 Holding
McLean should be enjoined.

17.4.5 Reasoning
A reciprocal negative easement exists only under narrow circumstances. The
requirements for such an easement are (1) that the parcels of land affected
must have been sold by the same original owner and (2) that the original
owner must have imposed restrictions on one parcel with the intention of
benefiting the remaining parcel. The requirements have been satisfied in the
case at bar. The evidence shows that both parties can trace title back to
Robert and Joseph McLaughlin, who originally owned land throughout the
neighborhood. When the McLaughlins sold land to the initial buyers, they
imposed upon many of those buyers covenants restricting the land to resi-
dential purposes. Subsequent conveyances of land within the neighborhood
have continued the restrictions established by the McLaughlins. Under these
circumstances, it may be said that McLean has been burdened with a neg-
ative reciprocal easement. McLean may not argue that she did not know of
the restriction when she purchased the house. It was apparent that the rest
of the neighborhood was being used for residential purposes only; McLean
should have asked about any restrictions.

18 Zoning
18.1 Village of Euclid v. Amber Realty Co.
18.1.1 Overview
Amber Realty Company (“Amber”) (P) sued to enjoin the enforcement of
zoning laws enacted by the Village of Euclid (“Euclid”) (D).

18.1.2 Facts
Amber owned a plot of land in Euclid and intended to develop it for various
industrial uses. The zoning laws of Euclid, however, restricted industrial uses
over an appreciable portion of Amber’s land, thereby making the land less
appealing to prospective tenants. Amber sued to enjoin enforcement of the

102
zoning laws on the ground that the laws deprived Amber of due process and
equal protection under the Fourteenth Amendment.

18.1.3 Issue
Should the enforcement of the zoning laws be enjoined?

18.1.4 Holding
Enforcement should not be enjoined.

18.1.5 Reasoning
The definition of building zones is a legitimate exercise of a state’s police
power. Zoning laws are to be upheld unless they are clearly arbitrary. Amber
argues that the general nature of the restrictions imposed by zoning might
prohibit certain uses that are actually harmless to the neighborhoods in which
they would occur. While this is a valid concern, it does not apply here
because Amber has not argued that any particular instance of enforcement
is infringing on its rights. Rather, Amber contends only in general terms that
the potential enforcement of the zoning laws might produce some unspecified
adverse effect on the marketability of its land. Since the complaint is stated
in general terms, one should not go searching for special cases in which zoning
might produce unfair results. Such marginal cases do not invalidate the entire
system of zoning. Amber also argues that the zoning laws interfere with the
development of industry. This contention lacks merit because Euclid seeks
not to prevent such development but to make sure that it occurs along a
well-defined course. Euclid has the power to make sure that industrial uses
of the land do not interfere with the well-being of residents and businesses.
It also cannot be said that the separation of Euclid into residential, busi-
ness, and industrial zones is in itself arbitrary. There are good reasons for
maintaining separate zones. The encroachment of a single apartment build-
ing into a residential area would block sunlight and fresh air from reaching
the surrounding homes and cause those homes to be less desirable. The
construction of more apartment buildings in the same area could cause the
neighborhood to be unsuitable for small houses altogether. In light of such
scenarios, one must conclude that Euclid has a legitimate policy interest in
zoning.

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18.2 Southern Burlington County N.A.A.C.P. v. Town-
ship of Mount Laurel
18.2.1 Overview
The NAACP (P) sued the Township of Mount Laurel (“Mount Laurel”) (D)
for using zoning laws to prevent poor people from living within its borders.

18.2.2 Facts
Mount Laurel had enacted zoning laws whose effect was to make much of
its housing unaffordable for poor residents. The majority of residences were
to be large homes located on large lots or expensive apartment buildings.
This policy was supported mainly by limits on the number of bedrooms
that residences could have, the number of schoolchildren permissible within
each residence, and similar aspects. Mount Laurel also tried to keep housing
prices high by forcing developers to contribute funds to public services such
as schools and fire stations. Although Mount Laurel admitted that it was
intentionally excluding poor residents, its stated reason for doing so was to
make it easier to meet its tax burden.

18.2.3 Issue
Should Mount Laurel be required to allow a reasonable variety of housing?

18.2.4 Holding
Mount Laurel should be required to allow a reasonable variety of housing.

18.2.5 Reasoning
The New Jersey Constitution provides that zoning regulations, like any other
exercise of police power, must provide for the general welfare of the people.
Adequate shelter, like adequate food, is an essential component of the general
welfare. Zoning laws that have the effect of excluding poor residents are
therefore presumptively suspect. Once this presumption has been found, the
municipality bears the burden of showing that the zoning laws in question
are justified by exigent concerns.
Here, it seems that Mount Laurel has been acting with its own tax in-
terests, rather than the well-being of its residents, in mind. The zoning

104
laws are therefore presumptively suspect. Although concerns about taxation
have a legitimate bearing on zoning, concerns about tax rates may not take
precedence over the general welfare of residents. Furthermore, Mount Laurel
cannot contend that the problem of housing for the poor should be left to
other municipalities. Under present New Jersey legislation, zoning must be
completed at the municipal level, not the regional level.

18.3 Sts. Constantine and Helen Greek Orthodox Church,

Inc. v. City of New Berlin
18.3.1 Overview
Sts. Constantine and Helen Greek Orthodox Church (“the Church”) (P)
sued the City of New Berlin (“New Berlin”) (D) for refusing to allow the
construction of a church.

18.3.2 Facts
The Church had purchased some land in New Berlin with the intention of
building a new church thereon. The land fell within a residential zone, so the
Church applied for the land to be rezoned as an institutional zone to permit
construction. New Berlin turned down the application, citing concerns that
the land might be put to other uses if the Church proved unable to raise
the funds for the new building. The Church sought to allay New Berlin’s
fears by agreeing to a planned unit development (PUD) overlay ordinance
that would run with the land and allow only the construction of religious
buildings. New Berlin again refused, this time on the ground that the sale
of the land to a third party might render such restrictions ineffective. The
mayor of New Berlin then suggested that the Church either (1) apply for a
conditional use permit, which would require construction to begin within a
year, or (2) apply for a different kind of PUD. The first option left no time
for fundraising, and the second was not appreciably different from the PUD
already sought.

18.3.3 Issue
Have New Berlin’s regulations substantially burdened the Church?

105
18.3.4 Holding
The regulations have substantially burdened the Church.

18.3.5 Reasoning
In order to prevail, the Church must show that New Berlin has imposed
a “substantial burden” on its plans. The burden, however, need not be
insurmountable in order to qualify as substantial. The relevant statute states
that New Berlin may not place on the Church a “a greater burden than
imposed on secular institutions” or treat it “on less than equal terms with
a nonreligious assembly or institution.” The Church has carried its burden.
Searching for an alternative site for its building would be a complex process.
Alternatively the Church could have kept filing applications. In either case,
it would have faced delay and uncertainty. The Church should be allowed to
continue negotiations with New Berlin as to the use of the land in question.

19 Intellectual Property
19.1 Eldred v. Ashcroft
19.1.1 Overview
Eldred sought to invalidate the Copyright Term Extension Act (“CTEA”).

19.1.2 Facts
Eldred and other petitioners made use of copyrighted works that entered
the public domain. They challenged the CTEA on several constitutional
grounds.

19.1.3 Issue
(1) Does the extension of the term of copyright protection violate the con-
stitutional provision of a “limited” term of copyright? (2) Does the CTEA
“promote the Progress of Science”? (3) Does the CTEA amount to an un-
constitutional regulation of free speech?

106
19.1.4 Holding
(1) The extension of copyright does not violate any constitutional provisions.
(2) The CTEA does “promote the Progress of Science.” (3) The CTEA is
not an unconstitutional regulation of free speech.

19.1.5 Reasoning
Congress has historically enacted copyright extensions without question as
to the constitutionality of its measures. Eldred does not argue that the new
copyright term granted by the CTEA violates the constitutional requirement
of a “limited” term. Rather, he argues only that retroactive application of the
term to existing works would be unconstitutional. Congress has explicitly
stated that the uniform application of copyright extensions is intended to
preserve fairness, so that authors are not afforded greater or lesser protection
depending on when they happened to publish their works. In any case, the
length of copyright term lies generally within the discretion of Congress.
It is also within the discretion of Congress to decide what is the best way
of advancing the objectives of the Copyright Clause. Eldred argues that the
Copyright Clause is intended to secure a quid pro quo: the author receives
copyright protection now in exchange releasing the work to the public domain
later. The history of copyright legislation, however, shows that this quid pro
quo should be understood to include extensions of copyright. Congress is at
liberty to write a guarantee of future extensions into legislation. It also has
the power to achieve the same effect through historical precedent.
Eldred also contends without merit that the CTEA amounts to an un-
constitutional restriction on free speech. To the contrary, the purpose of the
Copyright Clause is to promote the creation and publication of free expres-
sion. To that end, copyright law already contains provisions to guarantee
free speech. Ideas are not copyrightable, and the free-use defense allows the
copying of works for purposes like academic research and parody.

Justice Stevens, dissenting. Although early congressional decisions should

be afforded deference on the grounds that they reflect the intentions of the
framers, later decisions are not entitled to such judicial leeway. The Copy-
right Act of 1831 in no way reflects the intentions of the framers, who were
long dead by then. It does not establish the constitutionality of copyright
extensions. Under the majority’s analysis, Congress would have the power

107
to extend copyright indefinitely.

Justice Breyer, dissenting. The majority has given Congress the lee-
way to grant an effectively perpetual copyright that benefits private parties.
From the standpoint of the author, there is nor real difference between a
copyright of the current length and a perpetual copyright. Because royalties
tend to decay as a work gets older, the regime established by the CTEA al-
ready grants more than 99% of the value that can be expected to be derived
from a perpetual copyright. It is absurd to suggest that extension of copy-
right beyond the death of an author would somehow encourage an author to
produce more works during his or her lifetime. Rather, the primary effect
would be to make it difficult for the public to make use of the work, even
after its commercial value has long since disappeared. In fact the “limited
time” provision was intended specifically to avoid the sort of situation that
the CTEA has created.

20 Takings
20.1 Kelo v. City of New London, Connecticut
20.1.1 Overview
Kelo (P) sued to prevent the City of New London (“the City”) (D) from
taking her property through eminent domain.

20.1.2 Facts
The City had been suffering from economic depression for years. A state
agency had designated it as a “distressed municipality.” In response to the
dire situation, the City called on the New London Development Corporation
(NLDC), a private non-profit organization, to plan and carry out the revital-
ization of a significant part of its waterfront. With the approval of the City,
the NLDC produced a plan specifying that certain parts of the area were to
be used variously for residences, commercial buildings, and so forth. Much of
the land to be redeveloped was owned by individuals. The NLDC succeeded
in convincing the majority of those owners to sell, but Kelo was one of the
few holdouts. The NLDC, having been delegated the power of eminent do-
main from the City, proceeded to take the few plots of land that remained.

108
Kelo and similarly situated plaintiffs claim that the redevelopment did not
qualify as a “public use” that would permit the exercise of eminent domain.

20.1.3 Issue
Does the taking of land for the redevelopment of the City qualify as a “public
use” of that land?

20.1.4 Holding
The taking does qualify as a public use.

20.1.5 Reasoning
On the one hand, the government may not use eminent domain to transfer
land from one private owner to another for nothing more than private ben-
efit. On the other hand, “public use” is not confined to literal “use by the
public.” Rather, it is enough that the transfer serve some “public purpose.”
The government may effect a transfer between technically private parties as
long as the transferee serves the public good. Common carriers, such as
railroads, are an example. In determining whether a particular taking is in-
tended to benefit a public purpose, this Court should show deference to the
determinations of legislatures as to the nature of that purpose. This Court
has therefore upheld takings designed to redevelop blighted neighborhoods
and to break up oligopolies of land ownership. In all such cases, this Court
has declined to evaluate particular takings in isolation. Rather, contested
takings are to be viewed in light of the whole purpose to be served.
Nor does it matter that a taking designed to serve a public purpose would
transfer land to a private owner as opposed to the government or that it
would incidentally benefit private interests. It may be the case that the
public purpose can be served best by the transfer of property to private
parties.
Kelo’s contentions (1) that economic development is not a public purpose
and (2) that the City should demonstrate to a “reasonable certainty” that
the benefits of such development will materialize lack merit. Economic de-
velopment is a valid public purpose, and in any case there is no principled
distinction between it and other public purposes. The requirement of rea-
sonable certainty would hamper the City’s efforts at redevelopment through

109
second-guessing. Once a public purpose has been found to exist, the court
should allow takings serving that purpose to proceed.

Justice Kennedy, concurring. In conducting a rational-basis review of

zoning laws, the courts should take seriously any plausible accusation of fa-
voritism toward private parties, albeit keeping in mind the deference to be
afforded to the legislature. Here, the trial court’s evaluation of the develop-
ment correctly concludes that it is indeed intended to benefit the city rather
than private parties. The blighted condition of the City was widely known.
The City chose a development plan before a substantial number of private
beneficiaries could be identified. Under these circumstances, it is fair to
conclude that the City was not acting under pretext.

Justice O’Connor, with whom the Chief Justice, Justice Scalia, and
Justice Thomas join, dissenting. This Court’s decision has eviscerated
the Takings Clause. The few cases in which transfers of land via eminent
domain between private parties all involved circumstances in which the ex-
isting use of the condemned land created a well-defined harm to the public.
By holding that economic development in itself, rather than the elimination
of some definite harm, amounts to a “public purpose,” this Court effectively
allows any taking to be justified as an exercise of eminent domain for the
public good. By definition, economic development includes benefits to pri-
vate parties, and it may well be impossible to separate purely private benefits
from public ones. Although this Court bases its ruling on the deliberative
process behind the takings in question, it does not establish any standard
by which any such process is to be evaluated for fairness. Any lawful use
of land could therefore be viewed as conferring some incidental benefit upon
the public. This Court has effectively allowed land to be transferred from A
to B simply because the legislature prefers the latter’s use of the land.

Justice Thomas, dissenting. The history of the Takings Clause suggests

that “public use” should be confined to instances where the government or
the public is allowed direct, physical use of the land in question. The early
application of state constitutions, which included their own takings clauses,
reveals that eminent domain was intended primarily to provide public goods,
such as roads and canals. Indeed, attempts to transcend these boundaries re-
sulted in intense controversy. By giving an unnecessarily broad construction

110
to the Takings Clause, this Court’s ruling has allowed those with power to
abuse eminent domain to the detriment of those without political influence.

20.2 Pennsylvania Coal Co. v. Mahon

20.2.1 Overview
Mahon (P) sued to prevent Pennsylvania Coal (D) from mining coal under
his land.

20.2.2 Facts
Mahon had purchased land from Pennsylvania Coal. The deed executed by
the parties specified that ownership of the surface would be transferred to
Mahon but that Pennsylvania Coal would retain the right to conduct mining
under the said land. Sometime thereafter, the state enacted a statute that
forbade mining companies from conducting their mining in such a way as
to cause subsidence or other damage to structures on the surface. Mahon
sued under this statute, claiming that the activities of Pennsylvania Coal
had caused such damage to his house.

20.2.3 Issue
Does the statute amount to a regulatory taking of Pennsylvania Coal’s prop-
erty interest in the coal underlying Mahon’s land?

20.2.4 Holding
The statute amounts to such a taking.

20.2.5 Reasoning
Although the police power is broad, it may not be used in such a way as to
curtail significant property interests without payment. Any regulation that
attempts to do so amounts to a taking requiring just compensation. Here,
Pennsylvania Coal’s interest in the coal underlying Mahon’s land necessarily
entails the right to mine it. By enacting a statute that effectively bars the
company from profiting from the coal, the legislature has effected a taking
without any accompanying compensation. This is not a case in which the

111
state is exercising eminent domain in the face of an emergency. Rather, both
parties in the current case entered their contract with full knowledge that
subsidence was a risk of mining. It is improper to grant Mahon additional
rights simply because that risk has materialized into actual danger.

Mr. Justice Brandeis, dissenting. The legislation in question is a legit-

imate exercise of the police power to prevent a public nuisance. If mining
under Mahon’s property were to release poisonous gas, there would be no
question that the state would have the power to prohibit such mining. It is
not at all clear that any principled distinction exists between this hypotheti-
cal case and the case at bar. The mere fact that a limitation imposed by the
police power may preclude the only profitable use of some property does not
make that limitation any less valid.
The majority’s arguments considering the value of the property being
taken and “reciprocal advantages” are misguided. Even though the value of
the coal may be great, that value is still very small compared to the public’s
interest in having stable land. Reciprocity of advantages applies only when
an exercise of eminent domain would confer a benefit upon one party, not
when the taking is designed to put an end to a public danger.

20.3 Penn Central Transportation Company v. City of

New York
20.3.1 Overview
Penn Central Transportation Company (“Penn Central”) (P) sued after the
City of New York (“the City”) (D) designated certain property owned by
Penn Central as a landmark.

20.3.2 Facts
The City had enacted legislation that restricted the modification of structures
deemed to have historical significance. The legislation allowed the City to
specify “historical districts” or individual “landmarks” located on “landmark
sites.” Once either designation was applied to a building, the owner of that
building was required to seek approval from the City before making certain
changes to the building itself or commencing new construction on the plot of
land occupied by the building. The owner was also burdened with a duty to

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keep the building in an acceptable state of repair. To mitigate any economic
impact resulting from the restrictions, the owner was allowed to transfer
certain development rights to nearby parcels of land.
Penn Central had submitted to the City for approval a plan for construct-
ing an office building on top of Grand Central Station. The City refused on
the ground that the proposed office building would require unacceptable al-
terations to Grand Central. Penn Central sued on the theory that the City
had effected a taking of its property.

20.3.3 Issue
Does the designation of Grand Central as a historic landmark amount to a
taking?

20.3.4 Holding
The designation does not amount to a taking.

20.3.5 Reasoning
Penn Central contends that the City has taken its property by (1) prohibiting
use of the airspace above Grand Central, (2) reducing the economic value of
the property, and (3) imposing an unequal burden on Penn Central as op-
posed to owners of other historic landmarks. These arguments all lack merit.
The law of takings does not contemplate that a particular property should be
subdivided so as to require compensation for restrictions on rights resulting
from the subdivision. The law has always held that whether a taking has
occurred is to be determined using a holistic evaluation of the circumstances.
In any case, the City has not actually deprived Penn Central of all ability
to use the airspace; it has merely prohibited the addition of structures on
the scale of a tall office building. In addition, the relevant legislation al-
ready allows Penn Central, through the “transfer” provision, to construct
such a building elsewhere. While it is true that the restriction imposes some
economic burden on Penn Central, it still allows Penn Central to profit by
operating Grand Central in its current condition. It is no contention to say
that the burdens imposed on Penn Central differ in some way from those im-
posed on owners of other historic landmarks. There is no evidence to suggest
that the restriction was imposed arbitrarily or with discriminatory intent.

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To the contrary, the restrictions are part of a comprehensive plan to protect
historic structures throughout the City.

Mr. Justice Rehnquist, with whom the Chief Justice and Mr. Jus-
tice Stevens join, dissenting. The City passed the legislation protecting
historic landmarks for the purpose of benefiting the public, but it has im-
posed the economic burden of preserving those landmarks solely on their
owners. In doing so, the City has brought about precisely the sort of un-
fair burdening that the Takings Clause was intended to prevent. The City
is not acting to prevent a nuisance, nor is it imposing broad zoning restric-
tions designed to benefit all landowners within a particular zone. Rather,
it has imposed the peculiar burden of preservation on Penn Central simply
because it deems Grand Central Station too important to change. The re-
sult is that Penn Central has been deprived of the ability to profit from the
multimillion-dollar office building it had been planning. Although the City
purports to provide just compensation through its “transfer” provisions, it
is questionable whether such transfers are adequate.

20.4 Loretto v. Teleprompter Manhattan CATV Corp.

20.4.1 Overview
Loretto (P) sued after Teleprompter Manhattan CATV (“Teleprompter”)
(D) installed cable-television equipment on an apartment building owned by
Loretto.

20.4.2 Facts
Loretto owned an apartment building. Prior to her purchase of the building,
Teleprompter had installed cables for transmitting cable-TV signals on the
roof of the building. New York law allowed Teleprompter to install the
cables, provided the company paid nominal compensation to building owners.
Although the cables took up negligible space on the roof, Loretto nonetheless
sued on the theory that the relevant statute effected an unconstitutional
taking of property.

20.4.3 Issue
Does the installation of the cables amount to a taking of property?

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20.4.4 Holding
The installation of the cables amounts to a taking.

20.4.5 Reasoning
The case law uniformly holds that direct, physical occupation of real property
amounts to a taking regardless of the extent of that occupation or any public
good such occupation might serve. The law has taken an especially strict
approach to physical takings because such takings tend to interfere with
the entire bundle of property rights as opposed to specific strands within
that bundle. Furthermore, allowing the taking in the case at bar to proceed
without adequate compensation would create line-drawing problems. If a
company were allowed to construct a swimming pool on top of Loretto’s
building, no one would argue that such construction would amount to a
taking. The installation of cables differs only in degree, and it would be
difficult to determine when an intrusion becomes large enough to constitute
a taking. The taking in this instance differs from those requiring landlords
to install mailboxes, smoke detectors, and so forth in that none of the latter
requirements authorize a third party to occupy the property in question.

Justice Blackmun, with whom Justice Brennan and Justice White

join, dissenting. The majority’s decision conflicts with established landlord-
tenant law. Cable-television service is a public utility, just as water, electric-
ity, and other service to which landlords are legally required to supply access.
In creating a bright-line rule, the majority has displaced the established rule,
which requires the courts to consider the extent of the taking before requiring
compensation.

20.5 Lucas v. South Carolina Coastal Council

20.5.1 Overview
Lucas (P) sued after the South Carolina Coastal Council (“the Council”) (D)
declared that he could no longer build any house on beachfront property he
owned.

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20.5.2 Facts
Lucas had purchased two beachfront lots with the intention of building res-
idential homes thereon. After he bought the land, South Carolina enacted
a statute whose effect was to prohibit any development on that land. The
purpose of the statute was to prevent erosion of the coastline. Lucas sued on
the theory that the legislation amounted to a taking of the land. The trial
court found that the new law had indeed deprived him of any profitable use
of the land.

20.5.3 Issue
Does the prohibition on development amount to a taking?

20.5.4 Holding
The prohibition amounts to a taking.

20.5.5 Reasoning
Although the police power allows the government to regulate the use of prop-
erty within broad limits, the law has consistently recognized two situations
in which such regulation amounts to a taking. A taking occurs when the
government either (1) physical occupies the property or (2) imposes regu-
lations so as to deprive the owner of all economically beneficial uses of the
property. Here, there is no question that Lucas has suffered a taking of the
second type. The South Carolina courts concluded too hastily that the re-
strictions imposed upon Lucas were intended to prevent a “noxious” use of
the property and therefore required no compensation. It does not matter
whether South Carolina attempts to characterize the taking as prevention of
harm or promotion of the public good; which of these two terms is applied
often depends on subjective value judgments that have no bearing on the
taking itself. Rather, all that matters is that South Carolina has deprived
Lucas of the ability to use his land in such a way that was not prohibited by
“background principles.”

Justice Kennedy, concurring in the judgment. Although the result

in this case is correct, it does not necessarily follow that such regulation

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of coastal land would be inappropriate in all cases. Government should be
allowed greater leeway to determine what kinds of restrictions are necessary.

Justice Blackmun, dissenting. The majority offers up the justification

of “background principles” without any explanation as to where it got any
of these principles. If anything, the historical view opposes that adopted by
the majority. In the past, state governments had great leeway in dictating
the uses of land, especially in the case of undeveloped land. Current law, by
contrast, allows compensation for regulatory takings but also allows the state
to determine what kinds of regulations are necessary. By trying to charac-
terize common-law nuisance as a limitation on regulations, the majority has
merely cherry-picked the doctrines most favorable to its position.

Justice Stevens, dissenting. The majority has created a bizarre situa-

tion in which an owner who is deprived of 95% of the value of his land is
entitled to no compensation at all whereas one who is deprived of 100% of
the value receives full compensation. This result is likely to create perverse
incentives. Purchasers of land might be tempted to maximize their chance of
recovering for a regulatory taking by defining their property rights narrowly,
so that any regulation is more likely to effect a “total” taking with respect to
those rights. By contrast, the government is likely to favor an expansion of
property rights, so that even significant regulatory takings will not amount
to compensable “total” takings as long as some sliver of rights remains un-
touched. Apart from these concerns, the majority has also limited the ability
of state legislatures to enact regulations for the public good. There is no ev-
idence that the regulation in question was targeted specifically at Lucas or a
specific set of landowners; rather, it was a statewide initiative affecting both
undeveloped and developed land. If the owners of developed land have no
right to complain about the restrictions, then it would seem that an owner
of undeveloped land would have a fortiori even less reason to complain.

20.6 Miller v. Schoene

20.6.1 Overview
Miller (P) sued after Schoene (D) made a determination on behalf of the
State of Virginia that Miller should cut down his cedar trees.

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20.6.2 Facts
Virginia had passed a law intended to prevent the spread of cedar rust, a plant
disease, to the trees in apple orchards. The law provided that landowners
could petition Schoene, the state entomologist, to inspect a given area for
signs of cedar rust. If Schoene found that a particular area was indeed at risk
from the disease, then he could order all cedar trees within two miles of any
orchard within that area to be destroyed. Schoene had ordered Miller’s trees
to be cut down in accordance with the statute. Miller sued on the theory
that Schoene’s decision amounted to a taking.

20.6.3 Issue
Does requiring Miller to cut down his trees amount to a taking?

20.6.4 Holding
The requirement does not amount to a taking.

20.6.5 Reasoning
Here, the government was presented with two incompatible uses of land.
In such a situation, the government may choose to protect the use that has
greater economic value to the public. Here, that use was the growing of apple
trees, which provides employment to numerous people within the state. By
contrast, the red cedar has very limited commercial value.

20.7 Phillips v. Washington Legal Foundation

20.7.1 Overview
A dispute arose as to property rights in the interest generated by lawyers’
trust accounts.

20.7.2 Facts
Texas had established the Interest on Lawyers Trust Account (IOLTA). Sim-
ilar to programs in many other states, IOLTA provided that funds held in
trust by lawyers for their clients should generate interest but that the interest
would automatically be used to fund organizations providing legal services

118
to the poor. A dispute then arose as to who should hold the property rights
to this interest.

20.7.3 Issue
Who should have ownership of the interest generated by funds held in the
IOLTA?

20.7.4 Holding
The interest is the private property of the owner of the principal.

20.7.5 Reasoning
It is settled law that interest follows principal. Even though the interest
generated here may not have any economic value to the owner of the princi-
pal, it is nonetheless important that the owner retain certain rights over its
disposition. Since the State of Texas has not argued that the interest is used
to pay fees rendered by the state, that interest must remain the property of
the owner of the principal.

20.8 Palazzolo v. Rhode Island

20.8.1 Overview
Palazzolo (P) sued after Rhode Island (D) prohibited from building residences
on land he owned.

20.8.2 Facts
Palazzolo owned eighteen acres of coastal property. He evidently intended
to use the entire area for residential development, but Rhode Island forbade
him from building on parts of the land deemed to be protected wetlands.
The remaining area, however, was suitable for construction. Palazzolo sued
on the theory that Rhode Island had effected a total taking of his property.

20.8.3 Issue
Did Rhode Island effect a total taking of Palazzolo’s property?

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20.8.4 Holding
Rhode Island did not effect such a taking.

20.8.5 Reasoning
Rhode Island has not effected a total taking with respect to the entire prop-
erty. This is not a case in which the state has left the landowner with only
a token interest in the land. Rather, Palazzolo is free to build a residence
on the significant unprotected area that remains. It is also doubtful that
Palazzolo could define the “denominator” in the taking as only the wetland
area.

20.9 Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency
20.9.1 Overview
A dispute arose as to whether temporary restrictions on the use of land
amounted to a taking requiring compensation.

20.9.2 Facts
Development of real estate on the shores of Lake Tahoe had been proceeding
so quickly that it threatened the environment surrounding the lake. In re-
sponse to the threat, the Tahoe Regional Planning Agency (“the Agency”)
enacted two moratoriums on development while it developed plans for con-
trolling future development. The Tahoe-Sierra Preservation Council (“the
Council”) sued on the theory that the temporary prohibition on construc-
tion amounted to a taking requiring compensation.

20.9.3 Issue
Does a temporary restriction on the use of real property amount to a taking?

20.9.4 Holding
A temporary restriction on the use of real property does not amount to a
taking.

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20.9.5 Reasoning
The Council has attempted to make a circular argument by defining the
property being taken in terms of the restrictions being imposed. This sort
of conceptual severance has been consistently rejected by the courts. If the
Council’s view were upheld, every restraint on the use of real property, in-
cluding those incident to the process of obtaining a permit, would amount
to a taking. The claim should instead be evaluated against the entire fee
simple interest held by the Council. Under this view, it is impossible for a
temporary restraint on construction to constitute a taking since any inter-
ests temporarily taken by the government are restored when the restriction
is lifted. Absent extraordinary delay, no taking has occurred.

Justice Thomas, with whom Justice Scalia joins, dissenting. The

theoretically infinite life of the fee simple interest should not be used as the
denominator. It is undisputed that the landowner has been deprived of all
economically beneficial use of the land. That the land may recover its value
at some point in the future is irrelevant to whether a taking has occurred in
the first place.

20.10 Dolan v. City of Tigard

20.10.1 Overview
Dolan (P) challenged laws enacted by the City of Tigard (“the City”) (D)
requiring Dolan to establish certain public easements.

20.10.2 Facts
Dolan owned land on which he intended to build a new warehouse. The
City had enacted laws intended protect the City from flooding and to relieve
congestion on its roadways by encouraging residents to use bicycles. The
laws were so written that the granting of construction of permits was sub-
ject to compliance with the restrictions it established. As applied to Dolan,
these laws required (1) that he preserve greenways on a portion of the land
to mitigate flooding and (2) that he dedicate some portion of the land to
the construction of bicycle paths for the public. After his applications for
variances was denied, Dolan sued on the theory that the City had effected a
taking of his property.

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

20.10.4 Holding
Such conditioning does amount to a taking.

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

20.11 First English Evangelical Lutheran Church v.

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

122
20.11.2 Facts
The Church owned some land on which it operated a church and a camp-
ground for handicapped children. A forest fire destroyed the surrounding
vegetation and made the area vulnerable to flooding. As it happened, heavy
rain caused the area to flood shortly thereafter, and the flood destroyed the
Church’s buildings. In response to the flooding, the County enacted an or-
dinance that temporarily banned construction in all flood-prone areas. The
ordinance prohibited the Church from rebuilding its destroyed buildings. The
Church sued on the theory that the ordinance, though temporary, nonethe-
less amounted to a taking requiring compensation.

20.11.3 Issue
Does the ordinance effect a taking requiring compensation?

20.11.4 Holding
The ordinance does effect such a taking.

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

20.12 Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency (cont’d)
Please see the facts already given.

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20.12.1 Issue
Should the moratoriums be considered a per se regulatory taking?

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

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

20.13 Williamson County Regional Planning Commis-

sion v. Hamilton Bank of Johnson City
20.13.1 Overview
Hamilton Bank (“the Bank”) (P) sued the Williamson County Regional Plan-
ning Commission (“the Commission”) (D) for taking land owned by the
Bank.

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

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

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

20.13.4 Holding
The refusal does not amount to a taking.

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

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20.14 San Remo Hotel v. City and County of San Fran-
cisco
20.14.1 Overview
San Remo Hotel (“San Remo”) (P) sued after the City and County of San
Francisco (“San Francisco”) (D) tried to impose certain fees on land use.

20.14.2 Facts
San Remo owned a hotel. At some point, San Francisco demanded that San
Remo pay $567,000 as a “conversion fee” for the existence of the hotel. After
San Remo unsuccessfully brought takings claims in state court, it sued in
federal court. The federal lawsuit, however, was held to be barred by issue
preclusion.

20.14.3 Issue
Should the courts recognize an exception to issue preclusion for takings
claims?

20.14.4 Holding
The courts should not recognize such an exception.

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

Chief Justice Rehnquist, with whom Justice O’Connor, Justice

Kennedy, and Justice Thomas join, concurring in the judgment.
Although the outcome here is correct, the rule established by Williamson
County is suspect. Among the consequences of that ruling is that federal
courts may be barred from adjudicating takings claims. There seems to be
no clear reason for ceding the authority to decide such cases to the state
courts.

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20.15 Flemming v. Nestor
20.15.1 Overview
A dispute arose as to the existence of a property right to Social Security
benefits.

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

20.15.3 Issue
Did the government deprive Nestor of a property right?

20.15.4 Holding
The government did not deprive Nestor of a property right.

20.15.5 Reasoning
The Social Security system falls under the congressional power to spend
for the general welfare. Social Security is not a contract that gives rise to
property rights. Rather, Congress intended that the system should remain
flexible. Depriving Nestor of his benefits does not amount to punishment.
The government is not imposing an affirmative disability but merely refusing
to accord a benefit that falls under its discretion.

Mr. Justice Black, dissenting. Although Nestor was a member of the

Communist Party, nothing at the time indicated that such membership was
illegal. Only years later did Congress pass legislation punishing affiliation
with Communists. Given that Nestor has been deprived of a benefit for
conduct that was legal at the time, the refusal to pay his benefits amounts
to an ex post facto law and a bill of attainder. Participants in the Social

127
Security program are not paying for flexibility but for insurance. Although
Congress has reserved to itself the power to alter the Social Security program
as it sees fit, it still does not have license to take away payments to which
individuals are already entitled.

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