An Outline of Property Law
Yin Huang May 1, 2010
1 Overview of Property Rights 1.1 Jacque v. Steenberg Homes, Inc. . . . . . . . . . . . . . 1.2 Hinman v. Paciﬁc Air Transport . . . . . . . . . . . . . 1.3 Hendricks v. Stalnaker . . . . . . . . . . . . . . . . . . 1.4 Baker v. Howard County Hunt . . . . . . . . . . . . . . 1.5 Pile v. Pedrick . . . . . . . . . . . . . . . . . . . . . . . 1.6 Golden Press, Inc. v. Rylands . . . . . . . . . . . . . . 1.7 Producers Lumber & Supply Co. v. Olney Building Co. 2 Original Ownership 2.1 Pierson v. Post . . . . . . . . . . . . . . . . . 2.2 Ghen v. Rich . . . . . . . . . . . . . . . . . . 2.3 Keeble v. Hickeringill . . . . . . . . . . . . . . 2.4 Eads v. Brazelton . . . . . . . . . . . . . . . . 2.5 Johnson v. M’Intosh . . . . . . . . . . . . . . 2.6 International News Service v. Associated Press 2.7 Midler v. Ford Motor Company . . . . . . . . 2.8 Wetherbee v. Green . . . . . . . . . . . . . . . 2.9 Edwards v. Sims . . . . . . . . . . . . . . . . 2.10 Nebraska v. Iowa . . . . . . . . . . . . . . . . 2.11 Strain v. Green . . . . . . . . . . . . . . . . . 3 Adverse Possession 3.1 Lessee of Ewing v. Burnet 3.2 Carpenter v. Ruperto . . . 3.3 Howard v. Kunto . . . . . 3.4 Songbyrd, Inc. v. Estate of 4 Competing Titles 4.1 Armory v. Delamirie . 4.2 Clark v. Maloney . . . 4.3 Anderson v. Gouldberg 4.4 Fisher v. Steward . . . 4.5 Goddard v. Winchell . 4.6 Hannah v. Peel . . . . . . . . . . . . . . . . . . . . . . . . . 6 . 6 . 7 . 8 . 9 . 10 . 11 . 12 14 14 15 16 17 18 20 21 22 23 24 25 26 26 27 28 29 30 30 31 32 33 33 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 7.1 Illinois Central Railroad Company v. Illinois . . . . . . . . . 7.2 State of Oregon ex rel. Thorton v. Hay . . . . . . . . . . . . 7.3 Lake Michigan Federation v. United States Army Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Evans v. Merriweather . . . . . . . . . . . . . . . . . . . . . 7.5 Coﬃn v. The Left Hand Ditch Company . . . . . . . . . . . 7.6 Higday v. Nickolaus . . . . . . . . . . . . . . . . . . . . . . . 7.7 Tribune Co. v. Oak Leaves Broadcasting Station, Inc. . . . . 7.8 People for the Ethical Treatment of Animals v. Doughney . 42 . 42 . 43 . . . . . . 44 45 46 47 48 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 9.1 Marrone v. Washington Jockey Club of the District of Columbia 9.2 Hurst v. Picture Theatres, Limited . . . . . . . . . . . . . . . 9.3 ProCD, Inc. v. Zeidenberg . . . . . . . . . . . . . . . . . . . . 9.4 Allen v. Hyatt Regency–Nashville Hotel . . . . . . . . . . . . . 10 Transfers of Property 10.1 Pocono Springs Civic Association, 10.2 Eyerman v. Mercantile Trust Co. 10.3 Lauderbaugh v. Williams . . . . . 10.4 Irons v. Smallpiece . . . . . . . . 10.5 Foster v. Reiss . . . . . . . . . . . 53 53 54 55 56 58 58 59 60 61 62
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11 Estates in Land 11.1 Williams v. Estate of Williams . . . . . . . . . . . . . . . . . 11.2 City of Klamath Falls v. Bell . . . . . . . . . . . . . . . . . . 11.3 Johnson v. Whiton . . . . . . . . . . . . . . . . . . . . . . . 11.4 Garner v. Gerrish . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Brokaw v. Fairchild . . . . . . . . . . . . . . . . . . . . . . . 11.6 Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 Symphony Space, Inc. v. Pergola Properties, Inc. . . . . . .
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12 Marital Property 71 12.1 O’Brien v. O’Brien . . . . . . . . . . . . . . . . . . . . . . . . 71 12.2 Marvin v. Marvin . . . . . . . . . . . . . . . . . . . . . . . . . 73 13 Leases 13.1 Paradine v. Jane . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Smith v. McEnany . . . . . . . . . . . . . . . . . . . . . . . . 13.3 Sutton v. Temple . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Blackett v. Olanoﬀ . . . . . . . . . . . . . . . . . . . . . . . . 13.5 In re Kerr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 Medico-Dental Building Company of Los Angeles v. Horton and Converse . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7 Javins v. First National Realty Corp. . . . . . . . . . . . . . . 13.8 Sommer v. Kridel . . . . . . . . . . . . . . . . . . . . . . . . . 13.9 Nahrstedt v. Lakeside Village Condominium Association, Inc. 13.1040 West 67th Street v. Pullman . . . . . . . . . . . . . . . . . 14 Trusts 14.1 Broadway National Bank v. Adams . . . . . . . . . . . . . . . 14.2 Rothko v. Reis . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 Wilber v. Owens . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nuisance 15.1 Adams v. Cleveland-Cliﬀs Iron Company . . . . . . 15.2 St. Helen’s Smelting Company v. Tipping . . . . . 15.3 Luensmann v. Zimmer-Zampese & Associates, Inc. 15.4 Boomer v. Atlantic Cement Co. . . . . . . . . . . . 15.5 Spur Industries v. Del E. Webb Development Co. . 74 74 75 76 77 78 79 81 82 83 84 86 86 87 88 89 89 90 92 93 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 17.1 Tulk v. Moxhay . . . . . . . . . . . . . . 17.2 Neponsit Prop. Owners’ Association, Inc. trial Savings Bank . . . . . . . . . . . . 17.3 Eagle Enterprises, Inc. v. Gross . . . . . 17.4 Sanborn v. McLean . . . . . . . . . . . . 98 . 98 . 99 . 100 . 101
. . . . . . . . . . . v. Emigrant Indus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 Planning 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 Planning Agency (cont’d) . . . . . . . . . . . . . . . . . . . . . . . 123
20.13Williamson County Regional Planning Commission v. ton Bank of Johnson City . . . . . . . . . . . . . . . 20.14San Remo Hotel v. City and County of San Francisco 20.15Flemming v. Nestor . . . . . . . . . . . . . . . . . . .
Hamil. . . . . 124 . . . . . 126 . . . . . 127
Overview of Property Rights
Jacque v. Steenberg Homes, Inc.
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?
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 trespasser 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. Furthermore, punitive damages encourage landowners to rely on the courts for relief rather than taking the law into their own hands.
Hinman v. Paciﬁc Air Transport
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?
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 interpretation of the ad coelum rule advocated by Hinman would result in absurd consequences. Holding that Paciﬁc’s overﬂights constitute trespass would allow every landowner to prevent airplanes from ﬂying above his or her land. Such a rule would be unenforceable.
Hendricks v. Stalnaker
Stalnaker (D) drilled a well located within 100 feet of land owned by Hendricks (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 constitute a nuisance to the land on which the septic system would be located? 1.3.4 Holding
Such a well is not a nuisance.
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 particular 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.
Baker v. Howard County Hunt
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 incident, 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 enjoined party has committed such trespasses only intermittently? 9
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.
Pile v. Pedrick
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 construction, 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 10
of the factory themselves, however, remained well within property boundaries. 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.
Golden Press, Inc. v. Rylands
Rylands (P) sued when Golden Press (D) constructed a building whose foundations 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.
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 underground? 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.
Producers Lumber & Supply Co. v. Olney Building Co.
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. 12
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.
Pierson v. Post
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 14
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.
Ghen v. Rich
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 proﬁting 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 identiﬁed 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 15
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.
Keeble v. Hickeringill
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 intentionally 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.
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.
Eads v. Brazelton
Brazelton (P) sued after Eads (D) salvaged a wreck that Brazelton had discovered. 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. Approximately 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 following 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
Although Brazelton intended to make the wreck his property, his claim ultimately fails because he did not take possession of the wreck. Taking possession 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 complain that he lost his chance to gain the original wreck.
Johnson v. M’Intosh
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 ﬁnalized 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 actual 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 executed 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?
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 inheritance, accession, or invention.
International News Service v. Associated Press
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 gathering and sale of news. Its membership consisted of about 950 daily newspapers 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 publication, (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 situation 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.
Midler v. Ford Motor Company
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 intended song itself, then hired a diﬀerent singer to imitate Midler’s voice. The result was so convincing as to be virtually indistinguishable from Midler’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?
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.
Wetherbee v. Green
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. Wetherbee 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?
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 unrecognizable 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 incorporated 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.
Edwards v. Sims
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, Edwards 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.
Nebraska v. Iowa
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
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 because of its easily eroded banks, such changes nonetheless constitute accretion 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.
Strain v. Green
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
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 standard features of homes. In the modern view, a ﬁxture should be determined by three criteria: (1) actual annexation to the realty or something appurtenant 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 accession to the freehold. It is important that the intention in criterion (3) is determined by evaluation of the circumstances rather than the subjective testimony 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.
Lessee of Ewing v. Burnet
The plaintiﬀ sued to recover land that had long been occupied by Burnet (D).
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.
Carpenter v. Ruperto
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.
Howard v. Kunto
Howard (P) sued Kunto (D) to gain possession of land that Howard technically 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
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 disputed land, such occupancy need not consist of a continuous physical presence 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.
Songbyrd, Inc. v. Estate of Grossman
Songbyrd (P) sued to recover from the estate of Grossman (D) damages for the use of certain music tracks.
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 representatives 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 compilations. 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.
Armory v. Delamirie
Armory (P) sued to recover a jewel that Delamirie (D) had taken. 30
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.
Clark v. Maloney
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
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.
Anderson v. Gouldberg
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
Fisher v. Steward
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 ownership 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.
Goddard v. Winchell
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.
Hannah v. Peel
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, presumably 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
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.
Personhood in Relation to Property
Newman v. Sathyavaglswaran
Newman (P) sued after Sathyavaglswaran (D) removed the corneas of Newman’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 objection 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.
Moore v. Regents of the University of California
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 removed 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 exchange 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 property interest in the excised cells. California has generally treated tissues removed during the course of surgery as medical waste requiring quick disposal. 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 abnormally 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 liability 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 treatment 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.
Hecht v. Superior Court
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 decedent, 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.
Moakley v. Eastwick
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 prohibiting alteration or defacement of their works, its scope is nonetheless limited. 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 exception 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.
United States v. Corrow
The United States (P) brought criminal charges against Corrow (D) for attempting to sell Native American artifacts that qualiﬁed as “cultural patrimony.” 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 boundaries, 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
of cultural artifacts. An object qualiﬁes as Native American cultural patrimony 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.
Illinois Central Railroad Company v. Illinois
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 Michigan 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 Company (“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?
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.
State of Oregon ex rel. Thorton v. Hay
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?
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 European 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.
Lake Michigan Federation v. United States Army Corps of Engineers
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.
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.
Evans v. Merriweather
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.
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.
Coﬃn v. The Left Hand Ditch Company
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
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.
Higday v. Nickolaus
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
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 expanding 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. Although 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.
Tribune Co. v. Oak Leaves Broadcasting Station, Inc.
Tribune (P) sued after Oak Leaves Broadcasting Station (D) started broadcasting radio programs at the frequency that Tribune had been using.
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 broadcasts? 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 adjudicate 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.
People for the Ethical Treatment of Animals v. Doughney
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 Doughney’s registration of the domain name constitute cybersquatting? 7.8.4 Holding
(1) The site constitutes trademark infringement. (2) Doughney has committed 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
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.
Limits on Owner Sovereignty
Shelley v. Kraemer
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. Shelley had already ﬁnalized the purchase of a home within the neighborhood when Kraemer, another homeowner, sued on the basis of the covenant to divest 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.
See the nine-factor test set forth in the opinion.
Settled judicial doctrine says that discrimination supports a lawsuit only when it occurs under the rubric of state action as opposed to private action. 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 constitutional 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.
Attorney General v. Desilets
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 religious 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 subsequently 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 Desilets? (2) Was summary judgment appropriate?
(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.
Licenses, Grants, and Bailments
Marrone v. Washington Jockey Club of the District of Columbia
Marrone (P) sued after the Washington Jockey Club of the District of Columbia (D) refused him permission to enter.
On two consecutive days, the Washington Jockey Club of the District of Columbia (“Jockey Club”) refused Marrone entry even though he had purchased 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 circumstances, Marrone is limited to suing the Jockey Club for breach of contract. He may not sue for access to the property itself.
Hurst v. Picture Theatres, Limited
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.
ProCD, Inc. v. Zeidenberg
ProCD (P) sued Zeidenberg (D) for reselling information from its database.
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.
Allen v. Hyatt Regency–Nashville Hotel
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 employee 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 inattentive 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
vehicle was expressly entrusted to a valet. Rather, all the dealings were handled via automated machines. The circumstances therefore do not support an implied bailment.
Transfers of Property
Pocono Springs Civic Association, Inc. v. MacKenzie
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 Development (“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 attempted 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 non58
use and failure to pay taxes do not amount to abandonment.
Eyerman v. Mercantile Trust Co.
The Mercantile Trust Company (P) sued to prevent Eyerman (D) from demolishing 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
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 execution 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 demolition 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.
Lauderbaugh v. Williams
Williams (P) sued Lauderbaugh (D) to prevent the enforcement of a restrictive 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 apparently 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?
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.
Irons v. Smallpiece
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.
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.
Foster v. Reiss
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
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.
Estates in Land
Williams v. Estate of Williams
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
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.
City of Klamath Falls v. Bell
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 conveyed 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 ownership 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
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 Corporation 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. Because 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 empowered 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 incapable of alienating a reverter could somehow destroy the reverter itself. The
land therefore belongs to Marijane Flitcraft, who acquired it from the other parties.
Johnson v. Whiton
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 grandchildren. 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.
Garner v. Gerrish
Garner (P) sued to evict Gerrish (D) from a house to which Gerrish had ostensibly obtained a lease for life. 66
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.
Brokaw v. Fairchild
Fairchild (P) sued to prevent Brokaw (D) from demolishing a mansion to which Brokaw held a life estate.
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 remainder 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.
Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano
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 between 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
of particular uses, it does not matter that the speciﬁed uses might incidentally 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 reference 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.
Symphony Space, Inc. v. Pergola Properties, Inc.
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 operation 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 Broadwest 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 considerably 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.
O’Brien v. O’Brien
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 concept 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 payment 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 problem 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 calculations 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., debilitating injuries, personal decision to make a career change), the court should have some way of revising the award should the circumstances change.
Marvin v. Marvin
A dispute arose as to the division of property following the end of a longstanding 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.
Paradine v. Jane
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.
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.
Smith v. McEnany
Smith (P) sued after McEnany (D) refused to pay rent following the construction 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?
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.
Sutton v. Temple
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 animals to graze thereon. A memorandum stated that he was to take “eddish” from the land. Sometime thereafter, several of the animals died. Temple inspected 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. 76
Lord Abinger, C.B. Temple has done nothing more than to take possession 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 suitable 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.
Blackett v. Olanoﬀ
Two actions for constructive eviction were consolidated into the current case.
The defendants in the original actions occupied premises owned by the plaintiﬀ. 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.
In re Kerr
A dispute arose as to the payment of rent for premises that had been surrendered following the tenant’s bankruptcy.
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 diﬀerence between the original rent and the new rent. In reletting the premises for a term beyond that reserved for Kerr, however, Garment has implicitly accepted 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.
Medico-Dental Building Company of Los Angeles v. Horton and Converse
A dispute arose as to restrictions of the types of tenants that a landlord could take on.
Horton and Converse (“Horton”) (P) had operated a pharmacy in a building owned by the Medico-Dental Building Company of Los Angeles (“MedicoDental”) (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 subsequently 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 purchased 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, MedicoDental 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.
Javins v. First National Realty Corp.
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 warranties. 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
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.
Sommer v. Kridel
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 intention 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 deposits and other payments that had already been made in anticipation of Kridel’s occupancy. Sommer never replied to the letter. Despite that another prospective tenant oﬀered to rent the now-vacant apartment, Sommer refused, evidently opting to allow damages to stack up. The apartment remained vacant for more than a year, until Sommer sued to recover for all the rent that Kridel owed on the lease.
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.
Nahrstedt v. Lakeside Village Condominium Association, Inc.
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 declaration 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.
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 documents as opposed to the decisions of a later elected body, those restrictions should be accorded signiﬁcant deference. Indeed, the relevant statute provides that such restrictions are to be enforced “unless unreasonable.” This rule has the important practical eﬀect of ensuring harmony among the residents in collectively governed housing. It allows each resident to have conﬁdence 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 concerns 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. Nahrstedt is entitled to a fact-speciﬁc evaluation of her case.
40 West 67th Street v. Pullman
The cooperative corporation owning the building at 40 West 67th Street (“the Coop”) (P) sued to eject Pullman (D). 84
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 tenant, 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 unsubstantiated. 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 objectionable 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 subject 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
Broadway National Bank v. Adams
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 proceeds 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.
Rothko v. Reis
A dispute arose as to the disposition of the paintings of Mark Rothko following 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 corporation. 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 appreciation damages? 14.2.4 Holding
(1) The trustees should be liable. (2) The trial court was correct in applying appreciation damages.
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. Meanwhile, 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.
Wilber v. Owens
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.
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.
Adams v. Cleveland-Cliﬀs Iron Company
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 ClevelandCliﬀs. Blasting from the mine had sent tremors through the ground, which caused damage to nearby houses. Airborne dust generated by other operations 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
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.
St. Helen’s Smelting Company v. Tipping
Tipping (P) sued St. Helen’s Smelting Company (“St. Helen’s”) (D) for causing 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.
Luensmann v. Zimmer-Zampese & Associates, Inc.
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. During 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 similar 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. Luensmann 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.
Boomer v. Atlantic Cement Co.
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 particulate 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 injunction 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 operation 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 nuisance 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.
Spur Industries v. Del E. Webb Development Co.
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 residential 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 interfered 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 community, and the relevant statute speciﬁcally states that the presence of ﬂies
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 potential 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 activities have become nuisances to the newly developed community.
Warsaw v. Chicago Metallic Ceilings, Inc.
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 warehouse 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 accommodate 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 unsuccessful. 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.
(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 allowing 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
hoc use by invaders. The majority’s decision amounts to allowing a private party to exercise the power of eminent domain.
Fontainebleau Hotel Corp. v. Forty-Five TwentyFive, Inc.
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, 97
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.
Tulk v. Moxhay
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 surrounding 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 original 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.
Neponsit Prop. Owners’ Association, Inc. v. Emigrant Industrial Savings Bank
Neponsit Property Owners’ Association (“the Association”) (P) sued Emigrant 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
The circumstances strongly suggest that Emigrant had acquired the house through foreclosure.
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.
Eagle Enterprises, Inc. v. Gross
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.
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 estate 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 between Orchard and Baum only. Eagle does not suggest that Gross’s failure to purchase water from Eagle’s well would make water prohibitively expensive for other homeowners in the neighborhood. Furthermore, the covenant violates public policy because it attempts to create a perpetual obligation.
Sanborn v. McLean
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?
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 residential 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 negative 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.
Village of Euclid v. Amber Realty Co.
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
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, business, and industrial zones is in itself arbitrary. There are good reasons for maintaining separate zones. The encroachment of a single apartment building 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.
Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel
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 interests, 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.
Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin
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?
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.
Eldred v. Ashcroft
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 constitutional provision of a “limited” term of copyright? (2) Does the CTEA “promote the Progress of Science”? (3) Does the CTEA amount to an unconstitutional regulation of free speech?
(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 unconstitutional restriction on free speech. To the contrary, the purpose of the Copyright Clause is to promote the creation and publication of free expression. 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 Copyright 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 leeway 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 already 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 copyright 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.
Kelo v. City of New London, Connecticut
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 revitalization 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 domain 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 beneﬁt. 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 intended 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 development is a valid public purpose, and in any case there is no principled distinction between it and other public purposes. The requirement of reasonable certainty would hamper the City’s eﬀorts at redevelopment through
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 favoritism toward private parties, albeit keeping in mind the deference to be aﬀorded to the legislature. Here, the trial court’s evaluation of the development 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 existing 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 private 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 resulted 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.
Pennsylvania Coal Co. v. Mahon
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 property 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
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 legitimate 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 hypothetical 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.
Penn Central Transportation Company v. City of New York
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 112
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 constructing an oﬃce building on top of Grand Central Station. The City refused on the ground that the proposed oﬃce building would require unacceptable alterations 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 opposed 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 already 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 imposed on owners of other historic landmarks. There is no evidence to suggest that the restriction was imposed arbitrarily or with discriminatory intent.
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. Justice Stevens join, dissenting. The City passed the legislation protecting historic landmarks for the purpose of beneﬁting the public, but it has imposed the economic burden of preserving those landmarks solely on their owners. In doing so, the City has brought about precisely the sort of unfair burdening that the Takings Clause was intended to prevent. The City is not acting to prevent a nuisance, nor is it imposing broad zoning restrictions 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 result 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.
Loretto v. Teleprompter Manhattan CATV Corp.
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? 114
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 landlordtenant law. Cable-television service is a public utility, just as water, electricity, 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.
Lucas v. South Carolina Coastal Council
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.
Lucas had purchased two beachfront lots with the intention of building residential 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 property 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 regulations 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 restrictions 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
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 characterize 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 situation 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 untouched. Apart from these concerns, the majority has also limited the ability of state legislatures to enact regulations for the public good. There is no evidence 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.
Miller v. Schoene
Miller (P) sued after Schoene (D) made a determination on behalf of the State of Virginia that Miller should cut down his cedar trees.
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.
Phillips v. Washington Legal Foundation
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). Similar 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 principal, 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.
Palazzolo v. Rhode Island
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?
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 property. 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.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
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 response to the threat, the Tahoe Regional Planning Agency (“the Agency”) enacted two moratoriums on development while it developed plans for controlling future development. The Tahoe-Sierra Preservation Council (“the Council”) sued on the theory that the temporary prohibition on construction 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.
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, including 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 interests 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.
Dolan v. City of Tigard
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 subject 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. 121
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.
First English Evangelical Lutheran Church v. County of Los Angeles
The First English Evangelical Lutheran Church (“the Church”) (P) sued the County of Los Angeles (“the County”) (D) for a temporary taking of land.
The Church owned some land on which it operated a church and a campground 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 ordinance 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, nonetheless 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 deprivation 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.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (cont’d)
Please see the facts already given.
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.
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City
Hamilton Bank (“the Bank”) (P) sued the Williamson County Regional Planning 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 124
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.
San Remo Hotel v. City and County of San Francisco
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. 126
Flemming v. Nestor
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.