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Property Outline

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Basic Premise: Property rights in the United States are best thought of as a “bundle of rights,” which include the right to use, possess, transfer, and exclude people from your land, which can be said to be the most central right. None of these rights are absolute, as common law states, “one should so use his property as not to injure the rights of others.” Rights are relative and there must be accommodations when they meet. While rights can be transferred, no person can ever give away more than they have.In thinking about property rights, it is important to identify a) who has the entitlement; b) against which specific individual, and c) what specific acts are encompassed by the entitlement. Each topic covered explores the limitations of those rights, and who is allowed to limit them.

LIMITATIONS TO THE RIGHT TO EXCLUDE

Trespass

-Legal rules limit the possessor’s right to exclude non-owners from the property. In such cases, non-owners may have a right of access to the property. These rights are created by different sources of law, including common law, federal and state pubic accommodations statutes and labor relations statutes, and federal and state constitutional guarantees of freedom of speech.

-Trespass is defined as the “unprivileged intentional intrusion on property possessed by another.” (Note: unprivileged assumes that there is no consent.) The intent requirement is met if the defendant engaged in a voluntary act, such as walking onto the property. It is unnecessary to show that the trespasser intended to violate the owner’s legal rights. The intrusion occurs the moment the non-owner enters the property and may include physical entry by a person, an agent, or an object. A trespass may also occur either above or below the surface. Trespass statutes are intended to protect ownership and possession of land. A trespass is privileged, and thus not wrongful if a) the entry is done with the consent of the owner (a person who enters property with permission is referred to as a licensee); b) the entry is justified by the necessity to prevent a more serious harm to person or property or c) the entry is otherwise encouraged by public policy.

-State v. Shack: A field worker and a staff attorney from the Farm Workers Division attempted to enter private property to aid migrant farmworkers employed and housed there. They were forcibly removed from the property. (Note: in the lower court they were convicted of criminal trespass). The issue was whether a trespass statute allows an owner to bar access to governmental services. The court held that the conduct of the defendants (attorney/worker) was outside the purview of the statute, since owners do not have the right to deny workers the opportunity for aid available from federal, state, or local services, and hence there was no trespass. In doing so, they acknowledged that the right to exclude was not absolute. Further, the law will not allow occupants to contract away what is deemed essential to their health, welfare, or dignity. Necessity, private or public, may justify entry upon the lands of another. (Themes of relative rights, necessity as an exception to trespass, no ability to contract away certain rights, and owners cannot bar access to certain services.)

-Desnick: Desnick was the owner and primary surgeon of an ophthalmic clinic. ABC used test patients to enter the office and record what they claimed was malpractice. Desnick sued alleging trespass on the part of the test patients because the consent was based on a “misleading omission.” This case brings up the idea of consent, defining trespass as “entering upon another’s land without consent.” There can be no consent, express or implied when it is procured by misrepresentation or misleading omission. However, some cases deem consent effective even though it was procured by fraud (in the case of reviewers). Factors to be considered when determined whether fraudulent consent still acts as consent: whether the trespass occurs in a private or public place and the interests protected (does trespass seek to protect the interest?). Here, the court determined that there was consent because there was no trespass-protected interest. (Food Lion offers an interesting contrast, where the court determined that reporters recording in a grocery store entered by consent but then trespassed when they videotaped because the action exceeded the scope of the initial invitation.)

-Uston: The resort/casino denied Uston access to their blackjack tables because his strategy increases his chances of winning, though the Casino Control Commission allowed his strategy under regulations. Uston contended that the resorts had no common law or statutory right to exclude him based on his strategy. In common law, an amusement place owner has the right to exclude unwanted patrons. Simultaneously, a patron has a common law right of reasonable access, though at that time the court often disregarded that right, allowing owners an absolute right to arbitrarily eject or exclude any person consistent with state and federal civil rights laws. The court recognized that “the more private property is dedicated to public use, the more it must accommodate the rights which inhere the individual members of the general public who use that property.” Thus, the level of scrutiny in determining the right to exclude increases the more a space is dedicated to public use. If property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably, with the exception of patrons who interfere with the regular and essential operations or who threaten the security of the property. (Uston has the right to be on the property.) Uston extends the right of reasonable access to all businesses open to the public. (However, most states retain the traditional absolute right to exclude without cause and limit the duty to serve the public to innkeepers and common carriers.

-Glavin: The Glavins neighbors, the Eckmans, hired a landscaping company to cut down trees that were limiting their view at their vacation home. The trees were on the Glavins property. The trial court granted damages on the loss of the value of the timber-restoration damages (the reasonable cost of restoring the property as nearly as reasonably possible to its original condition, or if that is impossible, paying damages for the loss of that condition). The issue was whether restoration costs were an appropriate measure of damages? The court held that when applying a restoration cost measure of damage, as test of reasonableness (in regard to the cost of replacement and the replacement itself in light of the damage) is imposed, with knowledge that often such damages are used as a punitive measure to dissuade wrongdoers.

-Jacque v. Steenberg Homes, Inc.: Case in which Steenberg Homes delivered a mobile home via a snow-covered path across the property of Jacque despite his express denial of permission to do so (intentional trespass). The court held that when nominal damages are awarded for an intended trespass, punitive damages may, in the discretion of the jury, be awarded to prevent intentional trespassers who determine that they’ll take the risk of nominal damages (additional damages used as a deterrent for injuries that are hard to detect or have noneconomic harm). To determine whether a punitive damage award violates due process, the court considers: 1) the degree of reprehensibility of the conduct; 2) the disparity between the harm or potential harm suffered by the plaintiff and punitive damage award; 3) the difference between the remedy and the civil/criminal penalties authorized or imposed in comparable cases. The court also considers the profit made by the trespasser and the availability of alternative routes.

Public Accommodation

Statutes

-Civil Rights Act of 1866(§§1981-1982) v. Civil Rights Act of 1964(§2000a-2000a-6) (p.33): The 1866 act, which only prohibited race discrimination, had very broad language and was not initially applicable to private individuals. It also did not include any exceptions and allowed for the collection of damages. Through common law, the Supreme Court ruled that the 1866 Act did apply to private conduct. The 1964 Act also sets out the private establishment exception: “the provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such an establishment are made available to the customers or patrons…” Courts generally look to see whether the organization is selective in its membership and has limits on the number of person who can join to determine whether they are a public organization. 1866 narrower because it’s only about race, broader because it includes transactions.

-To make a claim of discrimination under the 1964 Act, one must show: the establishment is a place of public accommodation: it must be listed in the statute or its nature as a place of accommodation must be implied; must serve the public, or its operations must affect commerce.

-Note: There is no prohibition of sex discrimination in public accommodations.

-The Supreme Court has never addressed the question of the whether the §1981, with the focus on not restricting the right to “make and enforce contracts” extends to restaurants, innkeepers, or retail stores or to answer whether the list of establishments in the 1964 act is illustrative or exhaustive. Most courts have interpreted the “right to make contracts” extremely narrowly, holding that the right is denied only when the patron is actually prevented and not merely deterred from making a purchase or receiving service after attempted to do so.

-The Americans with Disabilities Act (ADA) requires that accommodations be made in public places for people with disabilities.

Public Parks and Public Trust

-Public Trust Doctrine: The government holds lands that are submerged beneath the water, or that are capable of being submerged, in trust for the public’s benefit.

-Matthews v.Bayhead Improvement Association: The Association’s property and rules limited the public’s access to the ocean/sand to times when they could access it from adjacent plots of lands (during low tide). Primary issue in the case is whether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body. The court ruled that the public’s right to enjoy tidal lands includes a right of access over privately held dry sand areas since the right to enjoy is meaningless without proper access. The court considered the location of the sand area in relation to the foreshore, the availability of public owned sand area, and the nature and extent of the demand. A quasi-public organization’s power to exclude must be reasonably and lawfully exercised in furtherance of the public welfare related to its public characteristics.

-Public parks can place time/manner restrictions but cannot deny people the right to protest.

Democratic Property and Consumer Protection

-DePeyster: This was an action of ejectment brought to recover land on the ground of breach of the condition to pay quarter sale monies. The issue was based on a lease between the parties mandated that if the lessee decided to sell he had to first offer the property to the lessor and if the lessor did not take it, he still received ¼ of the price it eventually sold for. Issue: Whether the condition in the lease to pay quarter sales is valid or void? The condition was declared void on the basis that it acted as a restraint on alienation (right to transfer property). In a fee simple grant of land (discussed later), a condition that the grantee shall not alien, or that he shall pay a sum of money to the grantor upon alienation is void on the ground that it is repugnant to the estate granted.

-Commonwealth v. Fremont Investment: The Attorney General began a consumer protection action against the defendant claiming that it had been originating and servicing certain subprime mortgage loans. The AG requested an injunction that restricts, but does not remove, Fremont’s ability to foreclose on loans with “presumptively unfair” features on the basis of a state consumer protection law guaranteeing security against “unfair or deceptive acts or practices in the conduct of any trade or commerce.” The court upheld the injunction, stating that it was created to strike a balance between the interests of borrowers facing foreclosure and the interest of the lenders.

COMPETING CLAIMS TO PROPERTY

Sovereignty vs. Occupancy

-Johnson v. M’Intosh: Dispute over land in Illinois that the plaintiffs purchased under conveyance from the Pinkeshaw Indians and the defendant purchased by grant from the United States. The court was trying to determine whether such grants from Indian chiefs were valid or if the government had the exclusive prerogative to purchase/grant land. The court determined that the United States had clear title to all lands within its boundaries and that such title gave it the exclusive right to extinguish the Indian title of occupancy by purchase or by conquest. “Conquest gives a title which the Courts of the conqueror cannot deny…[regardless] of the original justice of the claim.” The Indian inhabitants were thus deemed merely occupants to be protected when in peace, in the possession of their land, but to be deemed incapable of transferring the absolute title to others. (Set forth idea that discovery has to be consummated by possession through conquest or purchase to be considered valid and capable of taking over land rights.)

-Tee-hit-ton Indians v. United States: Claim by group of American Indians in Alaska for compensation for a taking by the United States of certain timber from lands allegedly belonging to the group. The claim is based on a constitutional right of the Indians to recover. The Secretary of Agriculture took the area claimed by resolution “notwithstanding any claim of possessory rights.” The court held that the title was not a sufficient basis to maintain the suit as Congress did not grant the Indians any permanent rights to the land occupied by them, thus assigning the Indian interest as right of occupancy rather than a property right. Holding: Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the government without compensation.”

Labor and Investment

-International News Service v. Associated Press: the parties were competitors in the gathering and distribution of news and its publication for profit in newspapers across the country. The Associated Press filed to restrain the pirating of its news by INS. The issues to be considered were whether news can be considered property and whether the appropriation of the news from the bulletin boards violated a property interest. News is quasi-property in that it is potentially profitable material, but the transmission of news may be a right that can be infringed upon. The court held that INS was restricted from reaping the benefits of AP’s efforts, enjoining them from publishing news acquired from AP unless it gives credit to them. Notably, the dissent states the property does not arise from value but from the exclusion by law from interference. The case is an outlier because it stands for the idea that you may be able to create some property right that endures after you release it to the public.Cf. with: The silk scarf case (Cheney Brothers v. Doris Silk Corp.) in which a silk manufacturer sued another company for copying the patterns on its fabric and undercutting its price, claiming that this was an infringement on the plaintiff’s property rights in design and citing INS. The court rejected that argument and held, “a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure,” since imitation creates and allows competition.

-A common law claim for misappropriation can be based on disseminating facts (as in INS) only where: a) the plaintiff generates or gathers information at a cost; b) the information is time-sensitive; c) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; d) the defendant is in direct competition with a product or service offered by the plaintiffs; and e) the ability of others parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. Note: as determined in Feist Publications, copyright law protects only original works of authorship, not facts.

Possession

-Possession creates a rebuttable presumption of ownership that can only be refuted by evidence of a superior claim. Possession requires both physical control over the item and the intent to control it or exclude it from others.

-Pierson v. Post: (Fox and the hounds case.) Court held that possession of wild animals is gained through occupancy; pursuit is not enough, mortal wounding is necessary. In Popov, there was a dispute over who had the right of possession of a homerun ball when Popov had the ball, was overtaken by a “gang of bandits,” and dropped the ball, which Hayashi collected. Popov sued for conversion, the wrongful possession of personal property rightfully owned or possessed by another. The court determined that the ball was intentionally abandoned property (abandoned by MLB) and that the person who came in possession of it was the new owner. (Issue was whether Popov had exclusive dominion and control). “Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property which can support a cause of action for conversion.” However, in this case, conversion was not the proper action because Hayashi was an innocent party who had different issues and also maintained possession. The court decided to equitably divide it.