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Majority-
-Hot Pursuit Enough
-Pierson wins b/c he shot him first
-Deprived animal of natural liberty
-Certainty important to our society

Dissent-
-Death of a fox is a matter of public interest (noxious beast)
-What everyone does is important (instrumentalist- current custom important)
-No answer based on mechanics, so look at past custom (formalism-look at history to find answer)

Argue both sides for all 5 theories of property
1. First Come, First Serve
2. Personhood
3. Utilitarianism
4. Lockean Labor Theory
5. Civic Republicanism

1. First Come, First Serve

2. Personhood- property means something to you in your life more than its economic value

3. Utilitarianism- benefit to society-WHAT OUR LAW IS BASED ON

4. Lockean Labor Theory- Eden version of the world
a. Assumes abundance of resources
b. Assumes very few people
i. You can pick the apple, but only take as much as you need, and need to make sure the rest of the community has enough

5. Civic Republicanism- owning property gives you a stake in society, gives you some political autonomy (how does it make you a better citizen)

1. Capture → certainty
a.Pierson v. Post
b.Formalism v. Instrumentalism
• Formalism-no answer based on mechanics so we have to look at custom
• Instrumentalism- what everyone does is important


2. Creation→ patent/copyright
a.Copyright is about money- can sing songs privately or for classroom use (just not commercially)


3.Discovery/Conquest

Occupancy definition varies
Who makes the rules varies
Relationship of people to land varies

How property CONFERS POWER
Concept of possession culturally dependent definition
oMeaningful Possession-Europeans
oFirst possession- Native Americans

a. Occupancy: Pierson- legal title; Johnson- living there

b. Right to Transfer- No, only right to occupancy

c. Right to Exclude- space as occupants (like tenant/landlord laws)

Right of Publicity

Right to Exclude- dissent worried about “commercial use or otherwise” b/c goes too far
-Usually only commercial use excluded, but majority here gives Vanna right to exclude anything that would remind us of her.

Name or likeness (vs. nomitive use- just explaining)
-Should she get credit for her persona which was not even created entirely by her (writers/directors)?

1st amendment creates space to criticize public people, but limiting property rights can impede on rights do to parodies etc.
-Want society to have information, even if it is information that some don’t like

1. Property rights defined by the government (legal positivism)

2. Property rights are not absolute (relative)
-some rights in bundle conflict w/ others
-property rights of one person impinge on, and inference w/ property and personal rights of others→ absolute property rights self-defeating

3. Property rights can be divided
-the same person can own land and another leases same land

4. Property rights evolve as law changes
-as changing economic, technological, and social conditions gradually reshape the law

a. Conflict between individual and community

b. Society or law’s job to determine property right in body parts?
-Health and safety statute- no right to keep cells
-Make illegal for insurance to support transplant post op (Israel)?

c. Right to Transfer
-only doctors have right to transfer once cells disengaged from body b/c of public policy

d. Locke- where does raw material stop and labor begin?
e. First capture? P v. P→ anyone’s property after removal?

e. What body part can you sell?
-Replenishable (blood, sperm)
-Paid for time spent, not actual material

f. Contradiction- you are so unique we can make billions, but you are so average that you have no property right

Dissent-
-There is a market, money is being made- who gets $$$?
-Why can’t patients have same interest as doctors?

MOBILE HOME TRESPASS

-Right hollow if legal system provides insufficient means to protect it→ halfpenny award does not constitute state protection

-So punitive damages appropriate

-Actual harm occurs w/ every illegal trespass despite lack of physical harm to land b/c of legal right involved (threat of adverse possession)

-Individual and society have significant interests in deterring intentional trespass to land

-People should depend on law for remedy rather than self-help

-Posner- w/out right to exclude, farmer had no incentive to incur costs of farming b/c there is no reasonably assured reward for incurring them → necessary to maximize economic value

-Must police your mark/right to exclude in order to keep brand name’s exclusive use

MIGRANT WORKERS LEGAL AID TRESPASS

a. Implied license that you can have people visit you (fundamental rights/human dignity)

b. Right to exclude alters depending on needs

c. Property rights to serve human values. Who’s values?
-Privacy and dignity too fundamental to be denied on basis of interest in real property and too fragile to be left to unequal bargaining strengths of the parties.
-Public benefit should make sure migrant workers have access to basic services

d. Why is it that Jacques can exclude and Tedesco cannot? -Implied statutory right of access- disadvantaged segment of society

CEMENT NUISANCE

Majority
a. Gravity of the harm vs. utility of the conduct (Utilitarian)

b. Cost-benefit analysis- essence of property

c. Society values cement company more→ societal value may outweigh nuisance


Dissent-
a. Public nuisance→hazard to human health

1. intentional
-know about it and don’t do anything about it

2. nontrespassory
-before we realized that dust and smoke physical

3. unreasonable
-if gravity of harm outweighs utility of actor’s conduct (restatement torts)

4. substantial interference with
-substantive

5. the use and enjoyment of Ps land

a.RELATIONSHIP BETWEEN INDIVIDUAL AND COMMUNITY (changes over time as society’s values change)→ went from, get rid of the nuisance to gravity of the harm vs. utility of the conduct (not talking about Locke or personhood)→ utilitarian
b.Coming to the nuisance (no relief)

STINKY WOOD BURNING STOVE NUISANCE

a. Gravity vs. Utility Test?
-society values clean air over ability to burn things

b. Came to the Nuisance?

GRAVITY- Torts §827
In determining gravity of harm from an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
oExtent of harm involved
oCharacter of harm involved
oSocial value that the law attaches to type of use or enjoyment invaded
oSuitability of particular use or enjoyment invaded to the character of the locality
oBurden on person harmed of avoiding harm.

UTILITY- Torts § 828
In determining utility of conduct that causes intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
•Social value that law attaches to primary purpose of conduct
•Suitability of conduct to character of locality
•Impracticability of preventing or avoiding the invasion

1. Preventing frivolous claims→ create standard, goes both ways

2. Correcting title defects

3. Encouraging development (utilitarian)
-Inheritance and Borders

4. Protecting personhood → land means something to you

19th century doctrine to promote productive use of land

color of title- have defective title you fixed, so you get whatever you thought you should get

VS.

claim of right- you only get the part you cultivated/developed, not any other land

1. good faith belief your title is good; and

2. know land is not yours but no one shows up.


a. Should we separate these two ways into different doctrines?
b. What element would you need for a doctrine about mistake in title and what elements would you use for a bad faith claim?

Jacque-didn’t file on time

Lutz- asked for easement

Jacque and Fulkerson

What should happen if you ask permission and are denied, but you stay anyway?

Varies by Jurisdiction

1.Actual or hostile→

2.Exclusive →

3.Open, notorious, and visible→ apparent to title holders

4.Adverse and hostile

5.Continuous → nature of the land/systematic

6.For statutory period (statute of limitations)

Some also require:
-Taxes
-Bad or Good Faith
-Peaceful

Degree of possession necessary varies according to character, nature, and location

IRON PIPE SCREAMING- ADVERSE POSSESSION

No Adverse Possession
i.  Substantial enclosure- was easy to see
ii. Heart of case- Substantially cultivated or improved (court’s judgment was societal commentary)

NATURE OF THE LAND→
-what if nature changes?
-social character of land?
-what value is the judge in the community upholding?

Majority
-every square foot must be cultivated- new idea of cultivation wins (unlike nuisance)
-inconsistent on element of hostility- siding w/ VV

Dissent
-not every square foot must be cultivated- old idea of cultivation wins

CHURCH Adverse Possession

Majority-
Judgment in favor of owner
i. Possession of land will not ordinarily be presumed to be adverse, but rather subservient to the true owner of the land. 

ii. Should we consider intent or just use objective standard?
-Just another tool for judges to inject their values into decision?

iii. Court didn't like that there were negotiations→ hostility requirement

Dissent
i. Don't believe church recognized owner's ownership
ii. Church clearly demonstrated hostile intent w/in meaning of law

i.P v. P (FOX)

ii.Moore (CELLS)

iii.Lutz (IRON PIPE)

iv.Causby (US AIRCRAFT)- may have absolute ownership one day and  society changes and then you only own as much as you can use
-up to heavens and down to core- doctrine has not place in the modern world

v.Chance (CHEMICALS) –economic value to sub-surface, so you no longer have absolute rights to your land

WWII Aircraft
Vertical Dimension of Ownership

may have absolute ownership one day and then society changes and then you only own as much as you can use

up to heavens and down to core- doctrine has not place in the modern world

Chemicals in Deepwell Injection Technology
Vertical Dimension of Ownership

economic value to sub-surface, so you no longer have absolute rights to your land

Lost: owner unintentionally and involuntarily parts with it
-Not really statute of limitations

Mislaid:  owner voluntarily and knowingly places it somewhere but then unintentionally forgets it

Abandoned: owner knowingly relinquishes all right, title and interest to it
a. Mardi Gras→ labor involved in getting a good throw
-What if someone eyes you and throws you something, and then someone else grabs it→ more of a gift, not abandoned.
b. Leaving furniture on curb (but not patio furniture)→ custom

Treasure trove: owner concealed it in a hidden location long ago.  Usually limited to gold, silver, coins, or currency.

Trover- P seeks damages for wrongful taking of personal property


Replevin- P seeks to recover possession of personal property

CHIMNEY SWEEP

Trover Suit (wants $, not thing)

Finder wins

Even lowest of lowest has property right over highest of high (besides true owner).

Damages awarded as if best jewels (jewel of the finest water) b/c they don’t know what the actual jewel was

Like Shack- discourage person w/ power from taking advantage- punitive quality

Matter if chimney sweep stole the jewel? No- we want certainty.

WWI REQUISITION, BROOCH FOUND- FINDERS

Freehold conveyed to Peel- he is the owner

Peel never showing up makes a difference for court- UTILITARIAN

Court says LOST so finder gets it (result driven approach)

Infer intent of owner w/ out knowing who true owner is

Key issues in analysis are:
a. possession of the land; and
b. status and knowledge; and
c. circumstances of the discovery

$55 FOUND IN Ds SHOP- FINDERS

Place where found creates no exception to rule (didn't matter that was private shop open to public)

Would have been a different case if money had been found in shopkeeper’s home.

Ps hired Ds to clean out their pool & found 2 gold rings- FINDERS

Possession of the land carries with it possession of everything attached to it. 

Legal possession rests on a real de facto possession constituted by the owner’s general right to exclude unauthorized interference.

Consistent w/ Bridges b/c there notes  dropped and found in a public part of the shop, not on private land, as in instant case.

Rightful possession of the goods by one who is not the owner (hold on to it)

1.those for mutual benefit → reasonable care of property
    a. valet
    b.dry cleaning

2. for primary benefit of bailee → extraordinary care (same condition as received it)

3. for primary benefit of bailor  → gross negligence or bad faith

BARBERSHOP WALLET FIND

Wallet lost or mislaid?
Private vs. public setting?

Lost item-
finder has valid claim against all but true owner (Armory);
place where found creates no exception to this rule (Bridges).

Mislaid item-
belongs to owner of locus in quo (scene of event), not finder→ must give item to person most likely to ensure return to true owner.

MANURE- FINDERS

P: employs 2 men to gather manure into heaps; left overnight
D: swipes it before P comes back

Placement of item matters: 
-Utilitarian aspect of object- social benefit when on land, in city vs. rural

Manure originally belonged horse owners. 
-Abandoned manure→relinquished title

Whose property did it become once it was abandoned?
-Good for  city to get rid of it (nuisance).
Belongs to state if of value, to world if of no value.

Locke’s labor theory- P put into heaps (like dissent in P v. P)

Custom- city does not want manure on streets.

First possessor? Abandon creates new title, start over w/ possession.
-Deprive of natural liberty? Utilitarian? Republican?

AVIATION EMPLOYEE FINDS ROLLED BILLS- FINDERS

i. Majority- mislaid→finder gets nothing


ii. Dissent- must have been abandoned, something illicit

     1.Hiker example: lost glove, then mislaid by someone else (2nd owner can come back and reclaim it). Change from mislaid to abandoned→

     2.Lost Dog example- Vermont court- social utility in caring for found pets and potential for discouraging if owner can reclaim after long period of time.

• Land around forever and chattels are not.

• Real estate not moveable, chattels easier to lose→ reduces case load

• Harder to replace land than chattels

STOLEN VIOLIN PURCHASED- ADVERSE POSSESSION

i. Traditional approach-Statute of limitations begins when stolen.

ii. Concealment? No- so adverse possession met.

ADVERSE POSSESSION

Discovery Rule- knew or should have known stolen, must show due diligence→ discourages theft, stimulate to activity and punish negligence and promote repose by giving security and stability to human affairs

Discovery rule- cause of action will not accrue until injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form basis of a cause of action
→ equity/mitigate unjust results
→ shift burden onto P to prove S of L should not accrue
→ must show due diligence

o Differs from traditional statute of limitations in that she has a chance for recovery here
o Discourages theft, how much can someone know what is in their house?

P must prove:
1. Due diligence
2. Effective method
3. Reasonably prudent purchaser on constructive notice

“DONOR MUST FEEL WRENCH OF DELIVERY”

- about people figuring out how to work it out

Manual delivery:  physical transfer

Constructive delivery: physical transfer of an object that provides access to the gift.  (i.e. key)

Symbolic delivery: physically transfers to the donee an object that represents or symbolizes the gifted item, like a letter (some jurisdictions only allowed if manual delivery impracticable)

PAINTING GIFT FROM FATHER TO SON- GIFTS

i. Turns on estate law and notion of remainders and real property

ii. Court says: father has ownership, he gives himself life estate, so dad stays owner, and remainder after dad dies goes to son→ DOES NOT WORK
-More like a lease, and term of lease is his life while son had ownership.

iii. Property in Time- remainder was something he could sell

iv. If capable of manual delivery, manual delivery required

v. Need physical object for delivery

CRAZY ENGAGEMENT RING COUPLE- GIFTS

i.Conditional gift?

ii.Does fault matter?

Majority
-b/c of gender discrimination woman should not have to give back ring, just like man would not have to pay woman for other losses suffered b/c of marriage not happening

Dissent-
just a conditioned gift and the condition never happened.

Patents, copy, trade are federal statutes w/ basis in Consitution

I.8.8-(patents and copyright)
•To promote (pure utilitarianism) the Progress of Science (science=copyright→ meant knowledge at this time) and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

I.8.3(trademark)
•To regulate commerce with foreign nations, and among the several states, and with the Indian tribes
* Public goods problem- everyone can sing song, only one person can eat apple

Corporations- 95 years from publication

People- life of author +70 years

SONNY BONO ACT CHALLENGE- COPYRIGHT

Sonny Bono Copyright Term Extension Act extended existing copyright terms by additional 20 years

i.  how long is "limited Times”-what does this mean??? (EU, not Mickey Mouse)

ii. Congress determines limited term in I.8.8

i. Originality
MODICUM OF CREATIVITY
-Facts vs. Compilation of Facts:
     selection
     arrangement
     coordination
-Fictitious facts not facts- so belongs to person who created it
-Untrue fact still fact (depends on how it is being held out)
-Opinions not facts after Feist (almost everything after Feist is not characterized as fact to protect copyright)

ii. Work of authorship

iii. Fixation
must tape it or write down composition, must create boundaries

PHONE DIRECTORY- COPYRIGHT

i.   Originality
Facts cannot be original so not copyrightable-
creative labor
no aesthetic requirement (need not be good)
idea expression dichotomy- idea not controlled
only way idea expressed  matters

iii.   Fixation-
Rural Public Utility- required to have phone book as deal w/ gov.

Like Jacques-ask permission to use exclusive right from person who holds right→ can they use it even though Rural says no?

Like Shack→ exclusive right but limitations

• 17 U.S.C. 107→ for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
• Transformative uses vs. Reproductive uses
     o Time-shifting (recording a show and watching it later)- VCRs/Tivo fair use
     o Space-shifting (downloading music)- peer to peer file sharing- not fair use

Four Factors
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

NATION PUBLISHED STOLEN NIXON MANUSCRIPT- FAIR USE

Four Factors of Fair Use
1. purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
-scoop and commercial

2. the nature of the copyrighted work (factual or fictional);
-facts-less protected

3.  amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
-took the heart of the work (even though not majority)

4. effect of use upon the potential market for or value of the copyrighted work.
-take away market for work, you take away essence of property right (like Jacques- take away exclusivity, take away essence)

FAIR USE/PARODY

i. If it is not a parody (under fair use) cannot take heart of the work and ruin the market

ii. But if its parody, must take heart of the work (conjure it up, remind you of the original work)
Relationship of society to individual:
     -Market replacement- NOT OK
     -Commenting on society- OK (this is good, don’t want to have to ask permission b/c would limit free speech, need this limitation b/c we want that benefit)

20 years from filing date (totally utilitarian)

35 USC §101- Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

1. Patentable subject matter- (“any… process, machine, manufacture, or…composition of matter”) (§101)

2. Utility- rarely at issue (“useful”) (§101)

3. Novelty (“new”) (§102)

4. Nonobviousness (§103)
    a. scope and content of prior art
    b. differences between prior art and claims at issue
    c. level of ordinary skill in pertinent art
    d. secondary considerations such as commercial success or failure of others

5. Enablement- patent application must describe invention in such detail as to enable any person skilled in art to make and use the same (§112)

BACTERIA- PATENT

changed game- can now patent nonnaturally occurring living things→ intangible but in fixed tangible form

i. Congress Intent-ANYTHING UNDER SUN MADE BY MAN

ii. Not patentable- naturally occurring things, laws of nature, physical phenomenon, abstract ideas, discoveries
1.P v. P- if naturally occurring all you did was find it, but if  deprived it of natural liberty by manipulating it into something that is non-naturally occurring you have a property right
2.Don’t want to lock up ideas

iii. Process claim OK, Inoculum claim OK, but Bacteria claim….?

iv. Bacteria- product of nature and living things are not patentable

v. Majority denies parade of horribles- if we don’t give patents it won’t put an end to research

vi. Exception- medical procedures are not patentable

ABOUT LANGUAGE

a. Must be connected to product

b. When you see a word, it conjures up something, and this is what we are legally protecting (the images inside your head)→ protecting goodwill to what company attaches to the stuff in your head.
                           Signifier + Signified = Sign
(Comftibility- word w/out signified under it (just signifier)- no sign)

c. Must have secondary meaning attached to trademark→ when you see that trademark, you think of the product (takes times for general public to feel this)

d. Boundaries of property in trademark?
-Want to be able to have trademark holder use  trademark to  exclusion of all others.
-Must police your mark or it becomes generic and everyone can use it to identify products (like adverse possession)

Can use the trademark if need the trademark for explanation

"playmate of the year" ok (but background decoration not ok)

DRY CLEANING COLOR- TRADEMARK

i. Anything capable of carrying meaning (color, sound, scent etc.)- must be packaging, not product

ii. Secondary Meaning only required on descriptive things (last names, color)
-Secondary meaning is the signified (color must conjure up brand)

iii. Only get color trademark on a specific product (not all greens)

BARBIE TRADEMARK

i. Should be able to talk about her b/c integral to our culture

ii. While you have protected property right in your trademark it does not extend to expressive language, people have right to comment on trademarks b/c of democratic values- limitations
-Nomitive use, parody argument

iv. Using trademark for commercial attention vs. using for parody
-Distinctiveness-mark + what you think about when you see

-Dilution

-Blurring- using goodwill of trademark owner to get publicity for your brand (fedex vs fed espresso)→ property right widdled away b/c being used by others

-Tarnishment- your product makes the other product less attractive (Debbie Does Dallas)

"to A and his heirs"

a. most unrestricted and longest estate

b. when words not exact, we revert to fee simple

"for life"

per autre vie- by another life

“heirs of his body”

a. lineal descendants

b. Fee Tail Special- through someone else

c. Always contingent

holder may hold or convey property, but he and those who take from him must use property subject to restriction

1. Determinable

2. Subject to Condition Subsequent

3. Subject to Executory Limitation

As long as
So long as
While
During
Until

a. Happens Automatically
(when said event occurs or fails to occur)

b. Possibility of Reverter
(creator always left w/ possibility that title will revert to him)

provided that
upon express condition that
but if
on condition that
as long as
while
during

a. Must be triggered
(does not automatically end)

b. Right of Entry
(right to take back- but nothing happens until affirmatively exercises that right)

same words as determinable and condition subsequent

a. provides for estate to pass to 3rd person upon stated event
(other than grantor)

b. Automatically goes to 3rd party and does not revert back to grantor
(like fee simple determinable)

c. NO Right of Reentry

1. Possibility of Reverter

2. Right of Reentry

3. Reversion

4. Remainder

5. Executory Interest

When owner of fee simple absolute transfers fee simple determinable

When owner of fee simple absolute conveys interest but attaches Condition Subsequent

This kind of grantor often also holds reversion as well

Created when holder of vested estate transfers to another a smaller estate

Reversion is interest which remains in grantor is reversion

Completely Alienable- may pass by will, intestacy or inter vivos conveyance

Reversion vs. Possibility of Reverter:
If grantor has given away something less than fee simple, he retains reversion

If grantor has given away fee simple determinable, he retains only possibility of reverter

Future interest which can become possessory only upon EXPIRATION of PRIOR POSSESSORY INTEREST created by SAME INSTRUMENT

*No remainder after fee simple determinable
**Remainder is created in someone other than transferor (reversion is interest left in transferor after he has conveyed an interest to someone else)

1. grantor must convey present possessory estate to one transferee

2. grantor must create non-possessory estate in another transferee by same instrument

3. remainder must be capable of becoming possessory only on natural expiration of prior estate

1. no condition precedent attached

2. person holding it already born

3. Waits patiently (must wait until whatever is before it terminates)

Condition subsequent- makes remainder vested
(if one clause created remainder and a separate subsequent clause takes the remainder away, remainder is vested (subject to divestment by condition subsequent))

1. subject to condition precedent; or

2. created in favor of person unborn or unascertained

Condition precedent- makes remainder contingent
(if condition is incorporated into clause which gives gift to remainderman, remainder is contingent)

Condition subsequent- makes remainder vested
(but if one clause created remainder and a separate subsequent clause takes the remainder away, remainder is vested (subject to divestment by condition subsequent)

"but if" indicates condition subsequent

"but if" clue to vested remainder (not contingent)

i. Vested- you know who it is

ii. Subject to condition subsequent- can be taken away (if something happens)

Held by one or more living members of a group of class that may be enlarged in the future

Court reads based on values of society

i. And his heirs- fee simple

ii. For life- life estate

iii. And the heirs of her body- fee tail

History important- wants and needs of society→ shift of time/policy/society’s needs that drives us to want fee simple over fee tail (no longer feudal/king society)

1. Indefeasible vested remainder

2. Vested remainder subject to divestment

3. Vested remainder subject to open

4. Contingent remainder

5. Executory interest:
     a.  Must divest- do not wait patiently- opposite of remainder
     b.  Springing executory interest (divests the transferor)
     c.  Shifting executory interest (divests transferee)

Common law- contingent remainder destroyed unless it vests at or before termination of preceding freehold estates
(About half states passed statutes abolishing this)

Destruction by merger- contingent remainder also can be destroyed b/c the estate preceding it (usually life estate) is merged into another, larger, estate.

Whenever successive vested estates are owned by same person, the smaller of the 2 estates is absorbed by the larger estate.

If a will or conveyance creates a freehold in A, and purports to create a remainder in A's heirs (or in the heirs of A's body), and the estates are both legal or both equitable, the remainder becomes a remainder in A.

Usually result is that A ends up getting a fee simple.

Springing executory interest (divests the transferor)
(usually deals w/ a gap)

Shifting executory interest (divests transferee)

1922- legally substantiated zoning

EUCLIDEAN ZONING: (creates police power to zone)

Classes
1. use
-zoning reflective of socioeconomic class in zone→ tax base→ what city gets→but need limits on landowner so land benefits all of society (not just those in single-family homes)
2. height
3. area

as long as you are at the top of the zoning chain you can do whatever you want

can put mansion in industrial zone, but not vice versa→ privileging single family homes, not protecting industry

Raymond Williams→ Zoning about future (and immediate), non-conforming uses (past uses- residual uses in dominant culture).

NON-CONFORMING USES

plant not public nuisance or nuisance per se, city could not legislate it out of existence→ phase out→ amortization period

AMORTIZATION- fixed period of time you get to use property, should be useful life

AVR says amortization period arbitrary and unreasonable→ what constitutes “useful life”?
      a. AVR- remaining actual useful economic or expected life
      b. City- recouped original investment + fully depreciated for tax purposes- court chooses this (clearer)

ALL DECISIONS  RELATIVE

1. Information relating to the structure located on the property;

2. Nature of the use; (public safety, policy power)

3. Location of the property in relation to surrounding uses;

4. Description of character and uses in the surrounding area;

5. Cost of the property and improvements to the property;

6. Benefit to the public by requiring the termination of the non-conforming use;
(adult book store→ not about benefit to the owner)

7. Burden on the property owner by requiring the termination of the non-conforming use;
-burden vs. benefit: essence of zoning & non-conforming use

8.  Length of time the use has been in existence and the length of time the use has been non-conforming
(personhood/utilitarian/lockean)

WENDY’S- ZONING

Majority
-no problem, nothing arbitrary
-Zoning Amendment (good)- Is it arbitrary?
-Arising from unrestrained exercise of will, caprice, or personal preference, based on random or convenient choice, rather than on reason or nature.

Dissent
-like pig in a parlor
serene area until now
-Spot Zoning (bad)
-Singles out small parcel of land for different treatment
-Primarily for benefit of private owner, rather than public
-In a manner inconsistent w/ general plan for community

BALANCE BETWEEN INDIVIDUAL AND WHAT SOCIETY NEEDS

1. Right to pass on protected statutes to buyer (transfer)

2. Cannot be expanded

3. No major repairs allows

1. Destroyed

2. Abandoned or discontinued

3. Use was a nuisance

4. Municipality acquired the property through eminent domain, paying fair market value

5. Amortization

Salford Township- HOUSE ON WEIRD LOT- ZONING

Use vs. Non-Use Variance
1. Unique physical circumstances (not suitable for house)
-Must relate to  condition of land - not to identity of owner of land

2. Hardship (property would be valueless)
-No possibility that property can be developed in strict conformity with provisions of zoning ordinance
-Therefore, variance necessary to enable reasonable use of property

3. Not self-inflicted injury (already possessed land for long time)

4. Will not have adverse impact on “public welfare” (not a big deal for the historic house people-setback etc)

WANT TO STAY DOMINANT AND NOT BECOME RESIDUAL

1. Will not have a materially adverse impact upon adjoining and nearby properties

2. Will not result in a clearly adverse aesthetic impact

3. Avoidance of any undue adverse impact on natural, physical, social and economic resources of the Town

PYRAMID HOUSE- AESTHETIC ZONING

1. Appropriate standards of beauty or conformity→ standard beauty

2. Not just aesthetics- about stabilizing property values, giving assurance to public value preserved for happiness of community

NO WARS SIGNS- AESTHETIC ZONING

1. individual vs. society- value in signs
→ Personhood- home is special space where you define yourself

2. free speech-time, place and manner
→ court said cannot “entire medium of expression”

3. Jacques- I can say what I want to say on my property
→ Personhood (rather than utilitarian theory upon which zoning was first created)→Sanctity of home as fundamental right

4. Conftability- ok, but moment it means something you are in trouble

NO COLLEGE STUDENTS LIVING TOGETHER- FAMILY ZONING

1. scotus found reasonable, not arbitrary to limit to 2 unrelated ppl

2. ok to limit amount of ppl living together

DEFINES FAMILY- FAMILY ZONING

Majority
-Density requirement was satisfied by Ps family
-Strong constitutional protection of sanctity of family extends to family choice involved here
-Not confined w/in arbitrary boundary of nuclear family

Dissent
-Any definition of family would produce hardships in some cases w/out materially advancing the legislative purpose.
-Ordinance not unconstitutional, unless we are to use our power to interpret Constitution as a sort of generalized authority to correct seeming inequity wherever it surfaces.

NO MORE THAN 3 STUDENTS IN HOUSE- FAMILY ZONING

• Equal Protection claim failed
• Passed Rational Basis Test (Euclid-rationally related to legitimate governmental interest)

1. Discriminates against students? Poor? Price people out of zone.

2. Restricting property owners from using property as they wish.

1. All citizens of US shall have same rights, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

2. Covers all types of properties (no special exception to single family homes or owner-occupied units) while FHA covers only dwelling
a. Both businesses and dwelling
b. Leasing or sale of ANY type of property

3. Covers only racial discrimination- included Germans at time

4. Does not cover advertising

5. Bars only intentional discrimination or purposeful discrimination

FHA TAKING DOMINANT AND MAKING IT RESIDUAL IN EMERGENT WAY

1. Bars: Race; Color; Religion; Familial status; National origin; Handicap

2. Does Not Bar: Marital status; Sexual orientation (state laws do this)

DOES not cover
1. Single family residence rented or sold w/out assistance of  broker or salesperson (cannot advertise if you discriminate)
a. Quarkiness- Personhood (but what Act does cover makes it more Utilitarian)

2. Owner-occupied building w/ 4 or less units
*Must Ask- How is the language being used?
*Concerned w/ the Ladue’s of the world.

a. Government can take property, BUT with some limitations

b. In M’intosh they did not say eminent domain, but was same notion of keeping control
→ to be a government they needed land from the Indians

c. Why do we need limits? If government can always take my stuff away, why would I ever invest my time or money?
→want people to invest (utilitarianism).

“nor shall private property be taken for public use, without just compensation.”

i.Private property
-Includes all estates and future interests in real property
-Includes personal and real property

ii.Be taken
-Government obtains some form of title, usually w/ permanent physical possession of property

iii.For public use
-Not necessarily literal requirement

iv. Without just compensation

HAWAII LAND REFORM- PHYSICAL TAKING

a. Public use to turn land over to private owners?
-PUBLIC USE =PUBLIC PURPOSE

b. Civic Republicanism- leasing not as good for society – better for society if you own

c. M’Intosh-trying to right this- don’t want people to occupy land w/out really being able to own it
→ but in both cases, government has ultimate power

d. ‘Public Use’ requirement is thus coterminous w/ scope of a sovereign’s police powers

e. Residual, Dominant, Emergent
→ in emergent way, law is trying to take away dominant ideas about what Hawaii is and making them residual.

f. Different if properties were blighted? Yes- easier to take.

g. Arbitrary?  Means and ends (is there better way?)

PFIZER/LITTLE PINK HOUSE- PHYSICAL TAKING

Majority
-Creation of public jobs now public use under 5th amendment
-Plan not economic boom reality→ nothing there now

Kennedy (concur)
-benefit to city more than incidental then public use

O’Connor (dissent)
public use not same things as public benefit

Thomas (dissent)
-takings clause important protection

BELOW SURFACE MINING
Birth of Regulatory Takings

PRIVATE PROBLEM W/ 1 HOME, NOT PUBLIC PROBLEM
3 PART TEST:
a.Diminution in value
b.Public Interest v. Public Nuisance
c.Reciprocity of Advantage (of having regulation in place)

*Understand these 3 factors, apply to situation, does outcome differ under Penn Central, Lucas, Loretto?

1. Can use police power, up to legislature to determine (as long as not arbitrary)

2. Judiciary only steps in when legislature goes too far

3. Define property as estate in support pillar (100% diminution in value of part of property)→ 3 different rights, law defining itself as whole of property

1. State does not appropriate the property or make any use from it, rather state seeks to prevent the owner from making a use which interferes with paramount rights of the public. 

2. A restriction upon use cannot be lawfully imposed unless its purpose is to protect the public as an appropriate means to the public end.

3 KINDS OF ESTATES
1. Surface estate: the house you build
2. Mineral estate: minerals which could be removed
3. Support estate: minerals left in place to support the surface after the mineral estate was mined (pillars that supported the surface)

3. Defining property under (5% diminution in value of whole property)→3 estates, but all have to work together to make sure all protected

Not unreasonable exercise of police power of state to require owners of adjoining coal properties to cause boundary pillars

Average reciprocity of advantage
→ if you are not getting benefit from taking, more likely a Taking
→ if you are getting benefit from taking, less likely to be a Taking

“held competent for the legislature to require a pillar of coal to the left along the line of adjoining property, that with the pillar on the other side of the line would be a barrier sufficient for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water.  But that was a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws.”

GRAND CENTRAL- REGULATORY TAKING

Regulation authorized by statute that sufficiently frustrates the rational expectations of investors in land capital can amount to a “taking” even if it serves an important public purpose.

Majority- no taking
1. City’s restrictions on land use for Grand Central not taking and therefore did not require just compensation.
2. Did not experience  severe economic loss
3. Could continue operating Terminal, which was its main investment-backed expectations
4. Regulation was not a physical invasion, but rather reasonable regulation for the public good.

Dissent- taking
1. Character of the gov’t action:  not preventing a noxious use but eliminated a legal attribute of ownership

Economic impact
oOf pillars- same result as Holmes, not able to mine pillars
oBut if you define property as entire sphere (as in Penn Central) and air space  is not individual right, you are taking the whole thing

Investment-backed expectations
oExpected to mine coal, and since defined as entire property, but can still get coal from other areas (not pillars)
oThey were told that they would be able to mine pillars

Character of gov’t actions
oPreventing mining of pillars
oEconomic advantage replaced by idea of public good

state statute prohibited alcohol, putting Mulger’s brewery out of business (and of “little value”)

owner not entitled to “inflict injury” upon the public by a “noxious use” of his property.   USSC:  not a taking

LA ordinance prohibited manufacture of bricks w/in city limits. 

Value of brick factory fell from $800,000 to $60,000. 

UCCL:  USSC police power “one of the most essential powers of government—one that is least limitable.” 

Ordinance upheld.

NOXIOUS USE OR NUISANCE TEST:  a regulation adopted under the police power to protect the public health, safety, or welfare was not a “taking” as defined by the Fifth Amendment, even if it reduced the value of the property.

A regulation adopted under the police power to protect the public health, safety, or welfare was not a “taking” as defined by the 5th Amendment, even if it reduced the value of the property.

CABLE INSTALLATIONS-PERMANENT PHYSICAL OCCUPATION

Permanent Physical Occupation is a Taking

1. Permanent?
Majority- yes
Dissent- no

2. Physical? Yes

3. Occupation? Jaques- it is on the property

LOTS ON ISLE OF PALMS-PERMANENT PHYSICAL OCCUPATION

"[W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good...he has suffered a taking."

Nonpossessory; right to use property that she neither owns or possesses.

1.By Express Agreement- written down
2.By implication- of prior use (Van Sandt- sewer use)
3.By prescription- like adverse possession (know test)
4.By necessity- landlocked
5.By estoppel- promise was made, reliance
    a. Dominant estate gets the easement
    b. Servient estate gets burden on it
    c. Apertinant
    d. Profit easement (taking something off land)
    e. Gross- utility companies

Possessory property interests b/c they carry the right to make a general (not necessarily unlimited) use of property. 

Servitudes are nonpossesssory interests b/c they carry the right to make only a specific or a limited number of uses of property.

Look to the intent of the parties to resolve ambiguities.

1. Whether an easement can be created w/ “stranger to the deed”

2. Whether created an easement or fee simple

3. Whether the easement is appurtenant (attached to land) or in gross (attached to person)

LEASED FOX HUNTING LAND-EASEMENTS

1. Express Easement

2. Hunt had Easement, NOT Revokeable License

3. Smith had actual and constructive notice

4. “Lease and Easement Agreement”: not about title, but substance

5. Owner retained “absolute right to develop the land”

License: 
-personal privilege to use land of another for some specific purpose
-normally revocable 

Lease
-transfers exclusive right of possession to the tenant

Easement
-implies interest in land ordinarily created by grant and is permanent in nature

SEWER PIPES UNDER HOUSE- EASEMENT

-Adjoining landowner who shares lateral sewage drain has no right to enjoin his neighbors with contention that sewer which went through his land and through the adjoining land, was an easement, a term not described in his deed, when the pipes from the adjoining landowners cause sewage to accumulate in his basement.

-Common sense would lend PL adjoining landowner to make thorough inspection of land, which he did, and know that sewage connection was necessary part of modern plumbing system

Definition: 
promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.

Every real covenant has two sides:  the burden and the benefit.
1.Duty to perform the promise:  burden
2.Right to enforce the promise:  benefit

1.Compliance w/ statute of frauds

2.Intent to bind successors

3.Touch and concern

4.Notice

5.Horizontal privity (not necessary in all jurisdictions, not restatement approach)
Contractual relationship between original parties:
i.mutual interests
ii.successive interests
iii.no requirement

6.Vertical privity
Relationship between original party to promise and his successor
Exists only if successor received entire estate that original party had (HAS TO MATCH- fee simple to fee simple)

1.Statute of frauds

2.Intent to bind successory

a.Binding is on burden

3.Touch and concern the land


4.No Notice Requirement
5.No Horizontal Privity

1. Zoning- knocked out quickly, cannot use state action under 14th amendment for discrimination

2. Nuisance- property values go down (aesthetic zoning)?
But not intentional? They are going to do Chinese things!

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3.Covenants-
a. Does it touch and concern the land?
b. Do whatever you want amongst yourselves, but you cannot try and use the law.
c. Hasbury Case- turns into Raisin in the Sun

Negro or Mongolian Race

i. No horizontal privity in the traditional sense
ii. Private agreements can do whatever they want, but not when state action gets involved
iii. You can make racially restricted covenants, just can’t enforce them in the courts
iv. Manipulation game by courts

i. What happens to families (language used)

ii. Begins: Euclid apt scenario- ABOUT PEOPLE’S LIVES
-Grandma buys house- going to pass it to youngest child when “he becomes a man” (fee simple)
-“Praise God”- 3 bedrooms, some will still share, but some get their own room
-just plain old house, built good and solid, but it will be ours, it makes a difference to a man when he can walk on a floor that is his own
-say good bye to old tired walls (to tenements)
5. ID ABOUT BEING IN APT DIFF THAN BEING IN HOME- better when living in home (personhood)
-Home is your castle- law will treat differently (entitled to compensation if gov taking)

iii. Zoning
-No colored people in Clyburn Park (nicest place for least amount of money)

iv.House- discovery of promised life

v.Clyburn Park Improvement Association
-We are just hardworking honest people who don’t have more than those homes and dream of community we can raise children in
→ man has right to have neighborhood he lives in certain type of way
→ people get along better when they share common background→ negro families happier when they live in own communities
→ cannot force people to change their hearts

vi.In End
-We come from a long line of proud people→
-Son makes 6th generation in this country (native Americans- no right to transfer)
-Decided to occupy→

1.Property, suburban, non-Euclidian dream

2.Individual identity is property dream→ FREEDOM

nonpossessory interest in land that operates much like a covenant running with the land

—NOT ABOUT PEOPLE- IT IS ABOUT THE LAND

Available Remedy:

1.Covenant- damages
2.Servitude- injunction

1.Didn’t meet covenant requirements, so we’ll give you injunction→ equitable servitude beginning

2.1848-now→ real covenants and equitable servitudes messy/ridiculous

3.So lets adopt RESTATEMENT for Equitable Servitude→

A covenant that runs at law is a type of servitude. A SERVITUDE arises when: can plead money or injunction

a. Owner of property to be burdened intends to create a servitude

b. Owner enters into K (take this seriously) or conveyance (this can be private) to this effect that satisfies Statute of Frauds (in writing)

c. Servitude not arbitrary, unconstitutional, unconscionable, or violative of certain public policies (cannot unreasonably restrain alienation- fee tail)

CAT LADY
i. Broad reading of CC&Rs
-Like broadening definition of zoning

ii. Like Brandeis

iii. AESTHETIC VERSION OF SHELLY V. KRAMER

iv. Would be different is she could have a house→ but building with more than 4 units- so public policy thing

v. Legislation changed after this case to let pets

Dissent- few pleasures in life- music and cats

i.Tenancy in common (default- certainty- easy to determine who gets what)

ii.Joint tenancy

iii.Tenancy by the entirety

(default- certainty- easy to determine who gets what)

1. O to A and B
2. Each has an undivided, fractional interest in the property
3. May transfer interest
4. Freely alienable, devisable and descendible
5. Right to use and possess the whole parcel, even if his fractional interest is smaller than the interests of others.
6. When sold – proceeds divided according to proportional share

(AMBIGUOUS DEED)

a. Tenants in common or joint tenants w/ right of survivorship?

b. Court goes to tenancy in common b/c language is not in document itself (doesn’t look at extrinsic evidence even though it points to joint tenancy) 

1. O to A and B as joint tenants with right of survivorship
2. Undivided right to use and possess the whole of the land
3. Each has a right of survivorship
4. IF A dies, B automatically becomes the sole owner
5. No devisable nor descendible
6.Requires four unities of time, title, interest, and possession (p. 380)
-If not all four – then tenancy in common
-If transfer interest – joint tenancy is severed (p. 381)

1. O to A and B as husband and wife as tenants by the entirety
2. Only married couples
3. Undivided right to use and possess the whole property
4. Right of survivorship
5. Can only be severed by death, divorce, or agreement of both spouses
6. Common law:  husband and wife as a unity, “one flesh.”

NURSING SCHOOL DEGREE AS MARITAL PROPERTY

Moore- public policy, should not be able to sell your organs, should not be able to sell your law degree

1. Definitions changing- marriage means something (but in more profound way- cultural layer, centuries old)

2.Not about marriage itself- new arena where property is being discussed.

3. Proliferation of alternatives to marriage that all give benefits from state dangerous b/c weakens capital/distinctive meaning of marriage
a. Or: this will just open up family diversity that is calibrated to particular level of commitment
b. In states where same sex relationships recognized in some manner- legal recognition ratcheting up/upgrading towards marriage
i. Intermediate forms of relationship that are so controversial b/c creating menu of commitment/family organization, not happening in those states
c. Not strong constituency for intermediate choices→ their greatest significant will be as transitional step to broader definition of marriage→ social power of marriage people don’t want to fool with is holding up well under transition.
d. Prediction- marriage will be alive and well and buffet of choices not likely to take hold.
e. Residual (marriage), Dominant (buffet), Emergent  (back to marriage)
i. We actually like the continuity of property and what it means→ we like the rules