Table of Contents

General.................................................................................................................................................................................. 3
How judges decide............................................................................................................................................................3
History.............................................................................................................................................................................. 3
Remedies........................................................................................................................................................................... 4
Formalities........................................................................................................................................................................ 4
Chattels................................................................................................................................................................................. 4
Wild Animals....................................................................................................................................................................5
Abandoned Prop................................................................................................................................................................6
Finder’s Rights..................................................................................................................................................................7
Treasure Trove..............................................................................................................................................................9
Salvage........................................................................................................................................................................ 10
Gifts................................................................................................................................................................................ 10
Sales & Bonafide Purchasers...........................................................................................................................................12
Accession/Fixtures..........................................................................................................................................................14
Accession....................................................................................................................................................................14
Fixtures....................................................................................................................................................................... 15
Adverse possession.........................................................................................................................................................16
Human Tissues................................................................................................................................................................17
Intellectual Prop..................................................................................................................................................................18
Misappropriation of Info.................................................................................................................................................19
Copyright........................................................................................................................................................................ 21
Moral Rights of Artists....................................................................................................................................................24
Right to Publicity............................................................................................................................................................25
Patents/ Trademarks........................................................................................................................................................27
Trademarks..................................................................................................................................................................27
Patents......................................................................................................................................................................... 28
Land.................................................................................................................................................................................... 28
Enforcing exclusivity by injunction.................................................................................................................................28
Adverse Possession.........................................................................................................................................................31
Lateral & subjacent support.............................................................................................................................................33
Nuisance.......................................................................................................................................................................... 34
Airspace.......................................................................................................................................................................... 36
Air & Light...................................................................................................................................................................... 37
Water runoff.................................................................................................................................................................... 37
 “Fee simple” & alienability.............................................................................................................................................38
Spendthrift trust...............................................................................................................................................................40
Life Estates...................................................................................................................................................................... 40
Marital estates.................................................................................................................................................................41
Concurrent estates...........................................................................................................................................................42
Land Conveyance................................................................................................................................................................44
Deeds.............................................................................................................................................................................. 44
Delivery...........................................................................................................................................................................44
Deed Covenants..............................................................................................................................................................46
Mortgages....................................................................................................................................................................... 47
Recording Acts................................................................................................................................................................48
Indexes............................................................................................................................................................................ 49
Bona fide purchases........................................................................................................................................................49
Torrens............................................................................................................................................................................ 52
Title Insurance.............................................................................................................................................................52
Easements....................................................................................................................................................................... 54
Easements by necessity...............................................................................................................................................55
Easement implied by use.............................................................................................................................................56
Prescriptive Easement.................................................................................................................................................57
Scope of Easement......................................................................................................................................................57
Real covenant..................................................................................................................................................................59
Taking: Public Use..........................................................................................................................................................63
Regulatory takings..........................................................................................................................................................64
Categorical Takings..........................................................................................................................................................66
General
 Common legal characteristics of prop. rights
o Prop. right generally is good against world
o Prop. right generally is good against an innocent infringer
o Owner generally has a right to recover possession or control of his or her prop.
o Prop. generally is transferable
 Common physical or social characteristics of resources that are treated as prop.
o Valuable
o Costly to acquire or create
o Use is rival
 One person’s use diminishes ability of others to use resource
o Resource lends itself to being demarcated as someone’s prop.
 Trespass= if there is an intentional physical intrusion.
o Harm is not required.
o Intent is to commit an act constituting trespass.
 If you mistake another’s land for yours & go on land, then you are a trespasser.

How judges decide

 Different sources to which cts look to resolve doubtful legal Qs:
o Authority, policy, & morality
 When law is clear, a ct will look to authoritative rule.
 Look to statutes, precedent, & learned authority to find rules to resolve disputes.
 In common law practice is:
o Resolve a doubtful issue by rule that is justified by reasons w/ dissenting & concurring opinions.
 Judicial decisions are themselves a source of law.
 Common law method of reading precedent
o “Rule” (ratio decidendi) of a prior decision is followed under principle of stare decisis.
 Stare decisi varies in strictness (or inviolability of a rule established by precedent) depending on
ct, era, & whether an issue is 1 of common law, statutory law, or constitutional law.
 During relevant period principle was quite strong in England.
 “Rule” of a case is not necessarily what a ct says in a decision.
 Much of what a ct says is incidental to decision (dicta or obiter dicta).
 Rule of a case is ct’s resolution of narrowest Q of law that is logically necessary to reach
result ct did.
 Judge who is reading precedent generally decides what is rule & what is dicta.
o Power to interpret precedent gives judges a fair degree of flexibility.

History
 Writs & remedies
o Prior to early 19th century common law was organized around writs=forms of action
 Types
 Trespass=nominally phscl harm to claimant’s prsn or prop. inflcted by force of arms.
o Often cts permitted trespass claims in cases that didn’t fit this description.
 In particular, pleading “force of arms” was a formality.
o By 18th century, writ of trespass reached any direct physical infringement of
interest in exclusive possession of real prop.
 “Trespass to chattels.”
 Trover
 o Grouped w/ writ of conversion
 Replevin
o Claimant may get sheriff to seize prop. b4 right to it’s legally determined
 On case.
o Not limited to vindicating prop. right
o Open-ended writ w/ a 2 part claim:
 “Whereas” clause explnd why harmful conduct should be actionable
 Statement of harm.
o Important historically bc its openness made it a vehicle for lawyers to bring
claims that didn’t fit other narrow writs
o Over centuries, some uses of writ became regularized & known as forms of
action in their own right.
 Trspss, trover/conversion, trspss to chattels, & rplvn available only to vindicate prop. rights.
 Wager of law
o Debtor could conclusively defend an action on debt by taking an oath that he didn’t owe debt & getting
11 other people to swear he was telling truth.
 Fear of God would ensure truth of oaths.
o No defense was available on a claim on a written bond other than a writing from creditor stating bond had
been paid.
 B4 modern era, cts had only such primitive tools to ascertain truth of matter in litigation.
 Historic separation of Law & Equity (Chancery)
o In England & much of United States law, cts & cts of equity were separate until mid-19th & early 20th
century when they were merged.
 Maitland excerpt (Supp 7-10) explains historical divide between Equity & Common Law.
o Today in most states, incl. CA & fed cts, ct of general jrsdctn handles claims in both law & equity.
 In most states, issues of fact & “mixed issues of fact & law” are resolved by ct, & not jury, if a
claim or defense is equitable in nature.
 Why it matters how a claim is classified.
o Separate equity cts in a few states, most importantly Delaware. Delaware Corporate law is administered
by Chancellor.
o Some bodies of law come from equity, incl. law of trusts & equitable interests in prop.
 Law of estoppel also comes from equity.
 Some remedies come from equity, incl. an injunction,

Remedies
 Civil remedies usually compensatory.
 Injunction= ct order to D to do (or not to do) a specified act.
o Violating injunction may result in a D being held in contempt & subject to fine or even imprisonment
through civil or criminal contempt.
 Sanctions for contempt are meant to be coercive, which is unlike usual remedies in private law,
which are compensatory.
o Preliminary injunction= ct order gnrlly preserving squo pending resolution of underlying dispute.

Formalities
 Delivery is functioning as what Lon Fuller describes as a formality
o Like a signed writing w/ witnesses
 Marriage vows are another memorable legal formality
 Fuller wrote formalities serve an evidentiary & a cautionary function
o Fuller adds a 3rd function, which he describes as “channeling”
 Legal formalities provide people reliable means to achieve their legal objectives.
Chattels
 Bailee= Person who takes possession of prop. of another who doesn’t contest ownership of other
o Not liable for conversion.
o Owes a duty of care to bailer(= someone who holds prop. on loan)
 Chattels are routinely treated as prop. bc:
o Use of most chattels is highly rival.
o Tend to be discrete physical objects of value so it’s easy to demarcate ownership. I

Wild Animals
 Definitions
o Ferae naturae= wild animals
 Cases
o Pierson v. Post (NY 1805), CB 1.
 Pierson bags a fox while Post is in close pursuit. Post brings an action for trespass on case. Trial
ct enters a verdict for Post. Ct of Appeals (New York’s highest ct) reverses, deciding Pierson’s
conduct is not actionable. Post’s story is that Pierson knew that he was pursuing fox & that
Pierson killed it in order to prevent Post from bagging fox.
 Ownership of fox as between Pierson & Post is doubtful bc it seems Pierson killed fox knowing
Post was in pursuit of it. Had Post actually captured fox there would be no doubt that he owned it.
If Pierson came across fox in woods while Post was nowhere in sight, then there would be no
doubt that Pierson owned fox.
 Rules:
 Mere acts of flushing a wild animal from hiding & being in pursuit doesn’t give pursuer a
prop. interest in prey.
 “Mortal wounding by 1 not abandoning his pursuit” suffices to give a pursuer a prop.
interest. So too trapping an animal in “nets & toils render[ing] escape impossible.”
 No right to prey absent “having so wounded, circumvented or ensnared [the prey] so as to
subject them to control of their pursuer.”
o Buster v. Newkirk, p. 6, is an 1822 New York case
 P wounded deer, gave chase, halted pursuit due to darkness, then renewed pursuit in morning
only to discover D had caught & slain deer. ct thought rule in Pierson resolves case.
 Perhaps deer was mortally wounded but by a slow-acting wound. Arguably P had no abandoned
pursuit. He merely stopped for night & then resumed in morning.
o Dapson v. Daly, p. 9, is a 1926 Massachusetts case
 Rule: “huntsman acquires no title to a wild animal by pursuit alone, even though there is a
wounding, unless animal is followed up & reduced to possession.”
o Keeble v. Hickeringill (QB 1707), CB 7
 P has a decoy pond that he uses to catch wild fowl. Standing off prop., D discharges guns to scare
fowl away.
 Good bases for dstngshing case from Pierson. Pierson didn’t interfere w/ Post’s use of land.
Heckeringill interfered w/ Keeble’s livelihood. Post seems to be pursuing fox for recreation.
Heckeringill acted maliciously. Probably Post didn’t. Relatedly, Heckeringill’s conduct had no
social value. Pierson’s conduct did, if accept premise that it’s good to kill foxes.
 Rule: Wrong to violently or maliciously interfere w/ a person’s pursuit of his trade or livelihood,
particularly if P has a substantial investment in trade.
o State of Ohio v. Shaw, p. 11.
 Shaw took fish from someone else’s nets. Criminal case & not civil claim by owner of nets. As a
consequence Shaw may face imprisonment or fine. Shaw is charged w/ larceny.
  Ct holds it’s enough that it was “practically impossible” for fish to escape to treat them as net
owner’s prop. Owner of net has done most work necessary to catching fish. net clearly signals to
others that fish aren’t there for taking.
 Policy: Allowing people to take fish from nets diminishes incentive to set nets & does little to
increase probability of fish being taken.
o Sollers v. Sollers, p. 12
 Holding no right to fish trapped in a inlet by a net across its mouth.
 May be dstngshable for almost all of these reasons. People fishing in inlet may not realize there is
a net. & a fair bit of work remains necessary to catch fish.
o Ghen v. Rich, p. 13.
 P killed a whale by a bomb-lance. Whale sank, rose to surface, & washed on shore, where Ellis
took it. Respondent (D) bought blubber & oil from Ellis.
 Lanced whales sank. whales moved too quickly to catch w/ a harpoon w/ a rope or tether.
possible difference is that taking possession of whale requires additional effort. Practical solution
in industry, which is to give finder a fee.
 Custom:
o Ct in Ghen: Fairly strict reqs for incorporating custom & usage into law.
 Custom is “embraced by an entire business” & has “been concurred in for a long time by
everyone engaged in trade.” P. 14.
 Custom makes a great deal of sense. P. 15.
 Ct also states that Appl. of custom is extremely limited.
 Not clear why: Universality or generality of a custom might cut in its favor.
o John Chipman Gray adds:
 “Custom is what men do, not what they think.”
 Moral norms or values are customs only insofar as people act on them.
o Sometimes moral norms can be incorporated into law though they don’t meet these stiff reqs.
 Reqs can be understood as a response to worries about ascertaining what moral norms are of
sufficient generality & strength to merit being incorporated in law.
 Fairness/Policy
o Fairness arg:
 Actor who invests significant resources & makes a substantial start in finding a valuable resource
is entitled to reward from her efforts.
 Especially strong if interloper knowingly takes advantage of actor’s efforts
o If interloper is guilty of misappropriation
 Weakens if taker expends sgnfcnt effort & reasonably unaware of 1st pursuer’s claim.
o Policy/efficiency arg
 Balances:
 Effect on 1st pursuer by granting a right on incentive to search for valuable opps,
incentive to get to point of acquiring right once a valuable opp is discovered, & incentive
to productively exploit resource once a right is established; &
 Countervailing disincentive effect on other potential capturers of granting an exclusive
right to 1st pursuer.
 Strongest if taker knowingly freerides on 1st pursuer’s efforts & by taking adds little value.
 Weakens as probability of success (capture) by 1st pursuer diminishes so long as
allowing others to pursue good increases probability of success.

Abandoned Prop.
 Cases
 o Eads v. Brazelton (recovering lead from a shipwreck in Mississippi), p. 17
 Analysis: if owner of lead had presented a claim, then they almost certainly would have recovered
lead but subject to a duty to compensate salvor.
 holds Brazelton (the putative salvor) didn’t do enough to establish exclusive right to work wreck
by locating wreck, marking trees to identify location, & marking wreck w/ buoy. Brazelton lost
whatever right he may have had by failing to work wreck for months.
 Policy: Don’t want people tying up right to exploit costly to pursue opps by merely claiming a
right to pursue opp. They need to make some effort. effort required by Eads to recover lead also
cuts against fairness arg for giving Brazelton recovery.
o Haslem v. Lockwood (“trover for manure”), p. 19
 Manure is abandoned by owners of horses who drop it.
 Ct gives P 24 hours to recover manure it collects into piles.
o Ritz v. Selma United Methodist Church, p. 22
 holds that buried money is not abandoned
o Taber v. Jenny & Bartlett v. Budd, p, 14.
 P kills whale, anchoring & marking it, planning to retrieve it later. Storm casts whale adrift &
knocks off marking. D retrieves drifting whale. cases hold whale remains prop. of P.
 P didn’t abandon whale. Remains P’s prop. Assumes what P did sufficient to establish ownership.
Args for why sufficient largely that D may be reasonably unaware whale belonged to someone
else. cuts against recgnzing right prtclrly if D makes substantial expenditure rendering whale into
oil & blubber.
o p. 22, Popov v. Hayashi.
 B. Bonds hits home run 73 into stands. lands in webbing of Popov’s glove. Crowd (mob) swarms
Popov. He loses ball. Hayashi, who was also knocked down by crowd, grabs ball.
 MLB didn’t claim ball. Had Popov acquired possession of ball & then dropped it, either
inadvertently or bc he was jostled, he would be entitled to recover ball. ct held that Popov didn’t
acquire possession. also held that active pursuit wasn’t enough in case of a baseball. If Hayashi
had assaulted Popov, then Popov would win even though he didn’t yet have possession of ball. If
it’s more likely than not he would have established possession but for attack, then ball is his bc
assault was cause in fact of his loss. If unknown, then doubts resolved against wrongdoer.
Hayashi was a by-stander so might think he gets ball. Instead ct decides that Popov has a “legally
protected pre-possessory interest” that gives him a claim to ball of equal stature to Hayashi’s
possessory interest.
 New rule: If T wrongs P preventing him from securing prop. to D’s ultimate benefit, then P & D
will share prop.
o State of North Dakota v. Dickinson Cheese Co., p. 16
 Legal doctrines that are used to determine when & how a person acquires ownership of wildlife
sufficient to prevent others from taking their prey should not also be used to determine whether &
to whom a polluter is liable for destroying wildlife.
 Hypos
o If after a steamboat sinks a passenger’s chest is found floating in river, then chest is not abandoned &
passenger may recover it.
 Rules
o Lost or stolen prop. is not abandoned by owner.
o Abandonment is intentional relinquishment of ownership of prop.
o Taker of lost prop. may not deflect claim by 1st pursuer on ground that prop. hasn't been abandoned.
 Generally cannot assert someone else’s prop. right.
o Abandoning pursuit of prop. is not same as abandoning prop.

Finder’s Rights
 Cases
o Armory v. Delamirie, p. 22.
 P found jewel & took it to jeweler to be appraised. jeweler’s apprentice sold jewel. finder v. thief.
Finder wins. P allowed to recover against master bc apprentice stole jewel in course of
 employment. P relieved of burden of proving what jewel worth, bc P had gone to D to get jewel
appraised. Wrong complained of made it impossible for P to satisfy evidentiary burden.
o Clark v. Maloney, p. 23.
 P finds & then loses prop. D finds lost prop. P wins.
 Explanation is that P didn’t abandon prop. As a prior finder P has superior title to D. D cannot
assert title of others to deflect P’s claim.
 Hypo: If follow logic of Blackstone excerpt on pp. 4-5, then result would be different if F1
captures a wild animal, which escapes, & then F2 recaptures animal. explanation is that if F2
captures animal in its natural habitat he or she’s unaware of F1’s prior claim.
o Barker v. Bates, p. 23.
 D trespasses on P’s land to take timber that has been washed ashore. P wins.
 D is not allowed to profit from its wrong of trespassing.
o Goddard v. Winchell, p. 21,
 Minerals were a meteorite. made no difference. But it might have made a difference if stones
were dropped or hidden by a person.
o Bridges v. Hawkesworth (1851)(pp. 26-27).
 F, customer, finds a parcel containing £65 on floor while leaving L’s shop. case holds that money
belongs to F invoking principle in Armory v. Delamirie, p. 22.
 Opinion analogizes to money find right outside shop, which clearly belongs to F.
o Elwes v. Brigg Gas Co. (1886)(p. 28).
 F, lessee (under a 99 year lease!), finds a prehistoric boat embedded in L’s soil. case holds relic
belongs to L on reasoning that relic is analogous to minerals & its ownership followed from
ownership of land.
 Bridges can be dstngshed on fact that parcel found was on surface of land.
o SS Water Co. v. Sharman (1896), p. 25.
 F, laborer employed by L to clean a pool owned & operated by L, finds 2 gold rings at bottom of
pool. case holds rings belong to L.
 Stated basis is a rule that an owner has right to everything attached to or under land whether or
not he’s aware of it.
o Hannah v. Peel (1945), p. 26.
 F, soldier stationed in a house owned by L (but which he never occupied), finds a brooch in a
crevice at top of a window frame. case holds brooch belongs to F.
 Elwes is dstngshed on ground that was buried prop. ct supplies an alternative basis for result in
Sharman, which is that finder in that case was in employ of owner.
o McAvoy v. Medina (Mass. 1866), p. 29.
 F, customer, finds a pocketbook w/ money while leaving L’s barbershop. case holds money
belongs to L.
 Ct dstngshes Bridges (holding that customer who finds money on floor of shop owns money &
not owner of shop) on ground that was lost prop. while this is mislaid prop.
 Policy: rationale for this distinction is that mislaid prop. should go to landowner bc true owner
may remember where he left it & return to retrieve it.
o Anderson v. Gouldberg (Minn. 1892) & Russell v. Hill (N.C. 1898)
 In both P cuts timber on land of a 3rd party (T) & stores logs in public place. D takes logs from
storage place. Clark states what cts take to be relevant rule: “Possession is certainly prima facie
ownership of prop. Called prima facie bc it may be rebutted by evidence of better title.” Q is
whether D may overcome P’s prima facie title by possession by asserting T’s title.
 Anderson
 P wins. No suggestion in Anderson that P thought it had right to cut timber where it did.
Instead D acted in g-faith in seizing timber, thinking it had been taken from land of
someone on whose behalf it acted.
 Policy: contrary rule would invite people to grab prop. in possession of others if someone
else had better title than other.
 Russell
 D wins. P cut timber in g-faith in Russell thinking had paid 4 right from landowner.
  Policy: Unfair to give logs to P bc this would leave D exposed to a claim by T for
conversion but w/ no logs. isn’t satisfactory for P is left exposed to a claim for conversion
& has no logs.
o Anderson is rule most everywhere.
 Hypos
o Landowner (L) is unaware of a cave on his land on which natural stones of considerable beauty & value
may be found.
 A camps on land w/ owner’s permission. finds cave & takes some of stones. L owns stones for he
merely gave A permission to camp.
 B leases land from L. B finds cave & takes some stones. Goddard p. 21, is authority that stones
still belong to L. premise is that a lease conveys right to use land but not to take things from land
that are unconnected to use right. Had this been a mineral lease B might get stones.
o Huey, Louie, & Dewey play together. Huey finds disreputable looking bag. 3 toss around for while. Huey
tosses bag to Louie. bag breaks open b4 Louie catches. Dewey grabs money that falls out.
 Arg can be made for any of 3 using concepts of possession & abandonment. Huey found bag. 1
could argue that tossing it to others is not an act of abandonment. Or 1 could argue that it was an
act of abandonment or even a gift to Louie. Or could argue that while Huey (or perhaps Louie)
had title to bag this didn’t carry w/ it possession or title to money for no realized money was in
bag. If sold or gave away a car unaware wallet was between seats, buyer or donee would not get
title to wallet. Looking at it this way perhaps Dewey has best claim for he’s 1st to possess money.
 Policy: No reason for favoring 1 over other. None made any effort that merits reward. interest in
finality & in having a clear rule doesn’t cut any weight bc concepts of possession & abandonment
don’t themselves provide a clear answer.
 What ct did in actual case upon which hypothetical is based, Keron v. Cashman, is to split money
between points on reasoning they jointly took possession of bag.
 Law: Iowa Code Section 556F.6-.12, p. 30
o Finder given an incentive to report find by rule giving him title (even against true owner) after 1 year.
o Subsection .12: If someone claims a find as owner & finder disputes it, then there is a summary hearing
w/ 1 day’s notice & no right of appeal.
o Policy: summary procedure is justified bc who wins these cases is less important than resolving disputes
over ownership quickly w/ as little litigation as possible. But this may be an illusive goal when large sums
of money are at stake.
 Rules
o Usually, P seeking to recover dmgs for destroyed or lost prop. bears burden of proving value of prop.
o F wins if it’s lost prop. that is not buried (or perhaps attached ) to land.
o L wins if mislaid prop., if prop. is buried or attached to land, or if F finds prop. while working for L.
o Generally, claimant may not assert title that belongs to someone else.
o Finder of lost prop. who holds for owner is not a converter but they have a duty of care to owner.
 Policy
o No strong reasons in law, policy, or fairness to favor finder over landowner.

Treasure Trove
 Cases
o Favorite v. Miller, p. 31.
 D knowingly trespasses on P’s land searching for a lost piece of a lead statute, finding head. trial
ct rules head belongs to P reasoning this is mislaid prop. turns on a factual Q, which is whether
person who left head in swamp did so intending to come back & get it. Connecticut SC rejects
this basis for decision, reasoning that factual conjecture is an insufficient basis for determining
ownership in this situation, when prop. had been there over 2 centuries.
 Ct decides for P on alternative ground that a landowner has better claim than a trespassing finder
who finds buried prop. See p. 34.
  Hypos: While this suggests result would have been different had head been on surface, 1 expects
this fact would not make a difference. More difficult is Q of what result if Miller had mistakenly
(but in g-faith) thought swamp was technical land. ct leaves open possibility that a “trivial or
merely technical” trespass might be excused.
 Rule: F keeps treasure trove even though it’s buried prop.
 Policy:
o Finder of treasure trove may expend significant effort.
o While treasure trove is akin to mislaid prop. its antiquity negates reason for giving a landowner title to
mislaid prop. (which is to hold it for true owner).
o Reason for giving a landowner title to buried prop. is it’s analogous to minerals.
 Treasure trove is a narrow exception w/ fairly clear boundaries that avoids problem of dstngshing
between objects buried by man & objects buried by natural forces.

Salvage
 Salvor= recovers prop. on behalf of true owner.
o Entitled to keep a share of recovered prop. as a reward for its efforts.
 Cases
o Bemis, pp. 34-35
 Salvor establish exclsv right to work wreck w/ less effort than finder, citing Eads as authrty.
 Misreading of Eads, which was a finds case. Still an arg can be made for giving a salvor an
exclusive right w/ less effort bc salvor gets a lesser reward.
 Suggests abandonment of a shipwreck by an owner may be assumed if owner doesn’t assert its
claim in salvage proceeding.
 Policy
 Reqing an owner to step forward when a wreck is discovered b4 it’s worked so a salvor
knows terms under which it’s working.
 Reqing an owner to step forward once prop. is recovered & there is litigation over who
owns it. Leaving ownership in doubt undercuts market for salvage bc buyers will
discount based on risk of a claim by owner.

Gifts
 Summary: While ultimate goal is to fulfill donor’s intent this is mediated by rules that impose formal reqs for gift
for evidentiary & cautionary reasons.
 Gift requires:
o Intent to make a gift
o Delivery
o Acceptance.
 Will is a revocable testamentary disposition of prop.
o Generally, will is in writing & is signed by testator in presence of witnesses who sign will.
 Formal reqs for a will are paralleled by formal reqs under statute of frauds that require a writing
as evidence of a conveyance of an interest in land & for certain contracts
 Ex: Sale of goods worth more than $5,000
 Ex: Contract to make a will
 Gift causa mortis= gift made in anticipation of an impending death
o Unlike an ordinary gift bc implicit condition that donor may recover prop.
 Like a will for disposition is revocable up until time donor dies.
 Unlike a will bc delivery substitutes for req of a signed writing & witnesses.
 Cases
o Flower’s case, (1587) p. 65
  A borrowed $ from B. When he appeared to repay $ he threw it on table. B said keep it. brief
opinion suggests ct thought it crucial that B had possession of $ briefly. brief opinion also
suggests that a written release would have been effective though an oral release would not.
 Written release=good evidence B intended to release A from debt. If witnesses, then throwing
money on table & being told to take it back is some evidence that B meant A to have it.
Cautionary reason=to be confident B really meant A to be released from debt & that this wasn’t
casual or unconsidered act. Once money is in front of B, it takes more of act of will for B to tell
A he wants to forego money. & hope is that people think carefully b4 putting things in writing.
Predates statute of frauds (1677).
o 1884 English case, Foakes v. Beer
 Holds a written release given by B to A is not effective under contract law.
 Ct ignored possibility of treating a release as a gift. In many states a statute overrides this rule,
making a written release effective. statement in case that a writing will suffice is not inspired by
statute of frauds.
o Irons v. Smallpiece, p. 65
 P is son. D is executrix & residuary legatee of father’s estate, presumably father’s wife &
perhaps his 2nd (or 3rd) wife. father’s alleged gift of colts to son is legally ineffective bc there
was no delivery. opinion suggests result might have been different had son paid to feed horses in
year between gift & father’s death. would be evidence that father & son understood son had title
to horses while father kept possession.
o Gruen v. Gruen, p. 67
 P is Victor’s son Michael. D is Victor’s wife. Dispute is over valuable painting. Michael claims:
In 1963 Victor gave him right to painting on Victor’s death while keeping possession. Using
terminology from land law, Victor gave Michael “remainder” in painting while keeping “life
estate” for himself.
 According to Blackstone excerpt, n. 3, p. 67, not possible to carve up chattels in this way, i.e.,
making a gift of a remainder in a chattel while keeping life estate. Usually people think
possession of chattel implies ownership & power to sell. Blackstone makes an exception for gifts
on death bccommonplace that on death of a spouse use of household possessions & like would be
given to other spouse for their life & then to convey to decedent’s other heirs. New York Ct of
Appeals holds that it’s possible to create a remainder in a painting while reserving a life estate.
 Q becomes if “delivery” & “acceptance.” ct begins by saying there need not be physical delivery
of prop. & that “constructive or symbolic delivery” will suffice. As for what constitutes
constructive or symbolic delivery, that answer turns on purposes of delivery req—“to avoid
mistakes by donors & fraudulent claims by donees”—taking into account “the nature of prop. &
circumstances & surroundings of parties.” In other words, ask if what putative donor did
responds to cautionary & evidentiary reasons that underlie delivery req. Pointless to require
physical delivery of a large valuable artwork when donor only intends to give a remainder while
keeping possession through a life estate. letters make it clear that Victor intended to give a
remainder to his son. letters were written by lawyers or w/ advice of lawyers. makes it clear that
this is not a casual or unconsidered act by Victor.
o n. 2 p. 72.
 Mother, on deathbed, gives Son shares of stock. corporate charter provides a transfer is effective
only when change in ownership is reflected on corporate books. case holds gift is ineffective bc
delivery occurs only when change is recorded on corporate books.
 Hypo: Father wishes to make a gift of a heavy antique cabinet to Daughter. He says to her “This is yours; we’ll
empty it & you can take it away when you can.” Put to side Q of who gets a negotiable bond taped to bottom of a
drawer. Given what Father said (“we’ll empty it”), answer seems pretty clear. But what about cabinet itself?
Physical delivery is impractical. But this was an oral gift. No written evidence of gift. absence of a writing &
 circumstances (Christmas day) may suggest it wasn’t a considered gift. While Father’s intent is a Q for a jury (as
is any Q about what Father said & did) whether Father’s conduct constitutes delivery is a Q of law for ct.
notwithstanding fact that answer on Q of delivery will largely turn on whether a ct believes Father made a
considered decision to give cabinet to Daughter.
 Rule: promise to make a gift is not legally binding.

Sales & Bonafide Purchasers

 Summary: rules protecting bona fide purchasers resolve conflicting claims to title to personal prop. in favor of
owner unless owner was at fault in leading other to believe she had acquired prop. rightfully & other person will
suffer a harm if divested of prop. Ownership is vindicated but it gives way if an owner’s neglect in handling prop.
leads another to believe to their detriment that they have acquired prop.
 Cases
o Jefferies v. Great Western Railway, p. 37
 Debtor sold some goods to A, then sold them again to B, & then defaulted w/ ct directing
bankruptcy trustee to sell goods for state. B thought it had better title but had rug ripped out from
under it when it turned out bankruptcy trustee had title.
 Possession of prop. of uncertain ownership may supply title against world bc none of potential
claimants finds claim worth pursuing given risk some other claim will be held good.
o Midway Auto Sales, Inc. v. Clarkson, p. 74
 Haddock buys car from an unnamed Oklahoma resident, giving a forged check. Haddock then
sells car to Bowen, who sells it to Clarkson, who sells it to Midway. P is Midway who sues
Clarkson. Clarkson impleaded Bowen. claim is breach of warranty of title. ct holds Bowen &
Clarkson had good title. straightforward Appl. of 2-403(1) except for Q whether fact car was
unregistered (and so was sold w/ “open title”) meant purchases were not in g-faith. ct holds no.
 Arg this doesn’t put buyers on notice is that purpose of registration is to ensure state is paid
registration tax/fee. Automobile registration systems aren’t designed to ensure security of title in
autos. Relatedly often people don’t register cars. While these people cheat on their taxes, not
much of a signal that they are likely to be scoundrels in dealings w/ other people.
 Under 2-403(1) Midway has right to recover car from OK resident who sold it to Haddock. policy
returned car to Oklahoma. Not clear why Midway didn’t pursue that person. Perhaps it couldn’t
get jurisdiction over him or her in Arkansas & it wasn’t worth suing in Oklahoma.
o Porter v. Wertz, p. 76
 Spring 1973 Porter lends painting to Van Maker (using alias Wertz) to hang in NY town home
while he’s deciding whether to buy it. Porter believes VM is an art-dealer. May 1973 Porter sees
painting while visiting Van Maker (@ Wertz)’s country home. June 1973 Porter tries to retrieve
painting but can’t reach Van Maker (@ Wertz). Early July 1973 notes given by Van Maker to
Porter for other paintings are returned dishonored. Porter investigates & learns Wertz is Van
Maker & has a criminal record. Later July 1973 Van Maker gives painting to real Wertz, deli
employee, who takes painting to several galleries, eventually selling painting through Feigen
gallery to Brenner. (The timing of this doesn’t appear in opinion in casebook. Again trial ct
thought it significant in ruling against Porter.) August 1973 Porter & Van Maker (still using alias
Wertz!) execute agreement stating VM holds painting on consignment w/ a client & that VM will
return painting or pay for it within 90 days.
 Clear that Feigen doesn’t have a defense under 2-403(1). Porter lent painting to Van Maker.
There was no transaction of sale. Whether agreement of Aug. 1973 was a transaction of sale need
not be decided bc it post-dates sale by Wertz. App. Div. holds that Feigen doesn’t have a defense
under 2-403(2) bc purchase wasn’t in g-faith. For merchants ordinary course includes g-faith
defined as taking reasonable care. Feigen purchased painting from Wertz not knowing who he
was, how he got painting, or making any effort to investigate these matters. Had Feigen been
insolvent it’s possible that App. Div. would have cast loss on Porter rather than Brenner bc
 Brenner arguably acted in g-faith. He bought painting through an established art dealer, who he
might have trusted to check bona fides of Wertz.
 App. Div. treats equitable estoppel as a separate defense that might cloak Feigen even though 2-
403(2) doesn’t. App. Div. reasoned that Porter’s conduct wasn’t a basis for estoppel bc while it
was blameworthy “It cannot be said that Porter’s conduct in any way contributed to deception
practiced on Feigen by Von Maker & Wertz.” This just isn’t true. Had Porter acted quickly to
recover painting in May or June perhaps Wertz wouldn’t have had a chance to sell it to Feigen. At
p. 80 App. Div. offers a different reason. Essentially while Porter may have acted negligently
Feigen’s conduct was worse bc he acted in bad faith. thought is that Feigen was almost willfully
blind to possibility that suspicious Wertz had no right to sell painting.
 NYCA affirms but on a more technical ground that is unsatisfactory. that a defense under 2-
403(2) is not available bc while Porter entrusted painting to an art dealer (Van Maker under alias
Wertz) painting wasn’t sold by Van Maker. Instead it was sold by Wertz. end of opinion may
indicate why NYCA grabbed a technicality. NY Atty General filed an amicus brief asking ct to
essentially adopt reasoning of App Div, which imposed a duty on art dealers not to buy art of
sketchy province. Art Dealer’s Ass’n filed an amicus brief arguing imposing this duty on art
dealers would have ruinous consequences for NY art dealers.
 Law:
o UCC § 2-403(1)
 Protects a “g-faith purchaser for value” from a seller who has “voidable title.”
 If B acquires a car from A “under a transaction of purchase,” then B acquires at least
voidable title in car.
o If B holds himself out as T, & B forges a check in T’s name
o If B gives A a forged painting in exchange for car
o A could recover car from B.
o A also could recover car from C if B made a gift of car to C.
o A could recover car from C if C bought car from B knowing B had obtained car
by defrauding A.
o A could not recover car from C if C was “a g-faith purchaser for value.”
 Policy: underlying problem is deciding who as between A & C should bear loss from dealing w/
scoundrel B.
 Logic of casting loss on C if he doesn’t give value for car or if he knows B acquired car
dishonestly is obvious.
o In 1st case C has suffered no loss.
o In 2nd case C is a fault & should be made to bear lost.
 But why cast loss on A if B acquires car “under a transaction for purchase” but otherwise
not?
o Thought is that if A voluntarily transfers car to B in a transaction for purchase,
then A ought to protect himself from risk that B is a scoundrel.
o Should C buy car in g-faith from B, seems more at fault than B & is made to bear
loss.
 Desire for clear predictable rules sometimes push cts to live w/ unattractive outcomes.
 Reference in statute to a “cash sale” overrides a line of cases that would have allowed A to
recover car from C if B paid for car w/ counterfeit money or otherwise agreed to pay cash for car
but failed to do so while somehow acquiring possession.
o UCC 2-403(2) casts loss on a wrongful sell of goods on a person who gives possession of goods “to a
merchant who deals in goods of that kind” if a buyer purchases goods “in ordinary course of business.”
  Thus if A takes expensive clothing to a tailor to be repaired, & tailor sells clothing to C, bears
loss if tailor regularly sells clothing (perhaps it runs a consignment shop) while C bears loss if
tailor doesn’t.
 Thought is that C more at fault if she purchases item from a person who doesn’t regularly sell
such things while A is more at fault if she entrusts her prop. to a person who does regularly sell
such items without taking steps to ensure person won’t sell prop. entrusted to him.
 As stated at bottom of p. 77, “ordinary course of business” is defined to include g-faith, which for
merchants means taking reasonable care.
 Rules:
o Void Title
 Possession of a chattel owned by A passes to B who then sells chattel to C, misrepresenting that
chattel is B’s to sell. As a rule B can give C no better title than B has.
 Thus, if A lost chattel & B found it, then A may recover prop. (or its value) from C.
 If B stole prop., then A may recover prop. (or its value) from C.
o Voidable title
 Rather clumsy way of describing circumstances in which B can give C good title against A.
o Some valuable assets to which rule a transferor can give no better than she had doesn’t apply.
 For such assets if B steals asset from A & then passes it to C, who takes asset in g-faith in
exchange for value, will be unable to recover asset from C.
 Currency (money) is most familiar example.
 Negotiable instruments (checks, commercial paper, securities, etc. . . .) are similar.

Accession/Fixtures
 Summary: These rules define what is prop. & assign ownership in cases of involuntary transfer to protect owner
unless it would result in owner being unjustly enriched at expense of other. Serving a quite different purpose, they
also supply background rules to facilitate voluntary transfers of interests in prop.

Accession
 Rules on accession determine whether combining 2 chattels owned by different people (or sometimes mixing 1
person’s labor w/ another’s chattel) creates a single chattel.
 Restitution
o Ex: mistaken transfer of money.
 Someone who receives money by mistake has to give it back unless they have a defense of
change of position, as they might if they gave money to charity thinking it was their own.
o Traditionally, mistaken improver of land or chattels (who wasn’t acting under what he thought was a
binding contract w/ owner) not entitled to recover for increased value of land or chattels from
improvements unless “incontrovertible benefit” to owner & if circumstances allayed concern about
putting landowner to a “forced exchange,” being made to pay for a benefit she didn’t request.
 New paint job is of dubious & in any event immeasurable benefit to a car owner & it’s thought
unfair to force owner to pay for a paint job she didn’t request.
 Mistaken improver would be on stronger grounds if improvement clearly increased value of prop.
& owner sold prop., realizing cash for improvement.
 Cases
o Ballard v. Wetzel, p. 85.
 P is mother Ballard. Her son, Tyrone, took a Corvette hulk from her garage (this is described as
theft!) & sold it through a parts dealer or junkyard to Wetzel. estimated value of hulk is $900.
Wetzel spent $5,000 & 100 hours restoring Corvette to a value of $7.950. Mother Ballard is suing
to recover restored car. Wetzel cannot claim time as a g-faith purchaser for value bc Tyrone stole
 car. Instead ct holds Wetzel acquires title by accession bc he acted in g-faith & parts he supplied
& labor were worth much more than hulk.
 Resulting product might also be called Wetzel’s under doctrine of “specification,” if restored
Corvette is new product compared to a hulk. Mother Ballard still should be able to recover $900
for value of hulk on claim for conversion. Wetzel converted hulk when he incorporated into his
car. Had Wetzel known (or had reason to know) hulk was stolen, then he loses. He doesn’t get to
keep restored car. He also probably has no claim for restitution for value of material & labor. note
at p. 87 suggests that Wetzel would have better luck w/ a claim for restitution in this situation
against a lien holder. Though this claim would only be for cost of work & not for increase in
value. & it might not include value of Wetzel’s labor.
 Rule: Appl. of law of accession depends a great deal on relationship between parties.
 Hypo: B has possession of A’s car & makes following improvements: add seat cover, buy new tires, refurbish
engine, incl. replacing significant parts, & repaint car. Knowing nothing about relationship between A & B, seat
covers don’t become part of car & paint job does.
o Under rule of severability stated at p. 83, tires don’t become part of car. gist of test is whether separating
car for tires reduces value of either standing alone. work on engine is a closer Q for it may be that
removing move parts will either harm parts or harm engine. As stated test is indifferent to amount of labor
it takes to separate prop.
o Hypo:
 If B acquires A’s car from a thief unaware that car was stolen, then there is no doubt that B will
be allowed to recover tires. B may even have a shot at recovering parts installed in engine. law of
restitution will not allow B to recover money dmgs for value of paint job.
 Policy: Returning these items to B avoids an outcome on which A is unjustly enriched at
B’s expense as a result of B’s mistake regarding ownership of car.
 If A holds title to car under a financing agreement w/ B, & A repossesses car, then A almost
surely will get to keep tires & certainly will get to keep parts. Allowing A to keep items doesn’t
result in unjust enrichment for value it adds to car will go to repay B’s debt to A.
 Policy: Allowing a lender to retain value of expenses to maintain prop. securing a debt
facilitates lending transaction.

Fixtures
 Rules on fixtures determine whether an addition to land becomes part of land & so is conveyed w/ land or
otherwise is treated as part of land.
 Test: whether person who affixes a chattel to land intends chattel to become part of law.
o pp. 89-90: such an intent presumed if chattel attached to land but not if chattel merely placed on last &
rests there by gravity.
o Rules on fixtures largely try to determine whether an owner of a chattel who affixes it to land & later
conveys land also intends to convey chattel.
 1 expects that if B mistakenly constructs improvement on land owned by A, intending
improvement to be permanent, then B allowed to remove improvement if A recover land.
 Cases
o 1st Tr. & Sav. Bank of Moville v. Guthridge, p. 88.
 Bank trying to recover some large & costly “bunks” purchased by son Guthridge w/ money
borrowed from bank, giving bank a security interest in bunks, from mother Guthdridge. Son
worked farm under a lease from mother, who had a life estate. Son had a remainder giving him
farm when mother died. Son conveyed his interest in farm to mother in satisfaction of past due
rent. majority holds bunks not to be fixtures in order to allow bank to recover them. dissent
explains why this was important. If bunks were fixtures, then bank was required to file its lien w/
 local registrar of deeds & not w/ secretary of state. Liens on goods generally are filed w/ secretary
of state. Liens on land generally are filed w/ registrar of deeds.
o Everitt v. Higgins, p. 91.
 Higgins convey a home w/ “a modern gas heating system” & 2 antique wood cook stoves to
Everitts. 1 connected to chimney flu & functional. other unconnected & is purely decorative.
 If take rule in Guthridge literally, then connected stove is fixture while other is not.

Adverse possession
 Summary: rules on adverse possession, in particular statutes of limitations, supply an alternative legal basis for
divesting a person who has better legal title in favor of a possessor prop.
 Policy:
o D may justifiably rely on a stale claim not being asserted, such that asserting claim harms D & may
unjustly enrich claimant (as when prop. has been improved).
o Staleness of a claim may suggest right being asserted by claimant is not that important to him or her.
o Older a claim, harder it’s to resolve it accurately.
o Cutting off litigation is just a good thing as litigation is costly & ruinous to human relations.
 Cases:
o Chapin v. Freeland, p. 94
 1867 Warner installs counters belonging to D in his shop. 1871 Warner mortgages premises to
DeWitt. 1879 Dewitt’s executor forecloses mortgage & sells shop, incl. counters, to P. 1881 D
takes counters from P. 188? P sues to recover counters.
 Assume that Warner stole fixtures from D. P doesn’t acquire title to counters as a bona fide
purchaser or on ground they became fixtures when Warner installed them in shop bc as a thief
Warner had no power to convey title in fixtures that was good against D to anyone either by grant
or by affixing chattels to land & then conveying land. relevant statute provides “the following
actions shall be commenced within 6 years after c.o.a. accrues, & not afterwards.” p. 93, bottom.
 1st issue in case turns on fact that D recovered counters by self-help. Read literally statute only
bars an action to reclaim prop. doesn’t bar self-help. Holmes interprets statute also to bar self-
help but he recognizes this isn’t obvious. He argues this is majority rule, though he doesn’t
compare Massachusetts statutes w/ other statutes that are basis for practice. He alludes to an
underlying worry when he leaves open Q whether D might use self-help to recover his prop. if it
was taken to another state notwithstanding Massachusetts statute. underlying worry grounds on a
view that prop. is D’s as a matter of natural right or law & that nothing Massachusetts can do can
cut off this right. Holmes was a positivist so he didn’t look at rights this way.
 Reading statute literally, it doesn’t cut off D’s claim against P bc clock didn’t begin to run until
accrual of D’s c.o.a. for conversion against P, which would not have been b4 1879. Holmes gets
around this by reasoning that once Warner acquired title by possession he could pass it to P. He
leaves open Q whether D would get to tack Warner’s holding period on to his own if he acquired
prop. b4 period had passed.
o Lubell.
 Not clear when museum learned painting had been stolen. claims it didn’t know until 1969-1970
when it conducted a decennial inventory. Lubells bought painting in May 1967. They showed in
publicly in gallery where they bought it in 1967 & again in 1981. At other times they displayed it
in their home. museum learned Lubells had painting & sought its recovery in 1985 & 1986.
 Lubells have a decent shot at getting summary jdgmnt under open & notorious rule for they
displayed painting as would an ordinary owner, & in particular twice made it available for public
display. Note this rule goes both to g-faith of possessor & to fault of owner.
 Looking at it from museum’s perspective, fares best under laches doctrine. To invoke laches,
Lubells must establish that had museum acted reasonably in keeping track of its prop. & pursuing
lost prop., then museum would have learned painting was stolen b4 May 1967, that it would have
 notified art world, & that dealer or Lubells would have been put on notice so that Lubells would
not have purchased painting in May 1967. pretty difficult story to tell.
 Lubells fare a bit better under discovery rule. statutory period is 3 years. Lubells need merely
persuade ct or jury that had museum exercised reasonable care it would have discovered they
possessed painting sometime b4 1982-1983, or more than 3 years b4 action to recover painting
was filed. pretty easy story to tell for if museum had investigated employee it might well have
found sale to dealer & from dealer learned of sale to Lubells.
 Hypo:
o Problem p. 97.
 O makes indefinite loan of paintings to M (a museum). Dies 10 years later. Will makes no
mention of paintings. not listed as part of her estate. 50 years later H, O’s residuary legatee, learns
of loan & demands their return. museum refuses & O immediately sues to recover.
 Museum doesn’t have a statute of limitations defense as it acted as owner of paintings in a way
that might constitute conversion of paintings. Using terminology of law of adverse possession to
land, would say that M’s holding of paintings wasn’t hostile to O’s ownership as it held paintings
on an indefinite loan. Nor has O made a gift of paintings to M for there is no delivery & no
evidence that O intended to make such a gift.
o Variation of problem on p. 97
 In 1920 O makes indefinite loan of paintings to M (a museum). She dies in 1930. Her will makes
no mention of paintings. not listed as part of her estate. In 1955 M sells painting to B. In 1980 O’s
residuary legatee learns of gift & sues M & B.
 Law: Cal. Code Civ. Pro. Section 338(c), p. 96
o C.o.a. accrues when owner actually learns of location of stolen prop. pretty clear this means actual
knowledge for statute goes on to describe 2 narrow forms of constructive knowledge, owner’s agent
learns or law enforcement agency that originally investigated theft learns.
 Rules
o New York rule reaffirmed in Lubell, pp. 97-101
 Quite protective of an owner. statute begins to run only when owner demands return of his prop.
& innocent purchaser refuses. rule is ameliorated by equitable doctrine of laches.
o Open & notorious
 Statute runs if possessor uses prop. as openly as an ordinary owner, particularly if use gives true
owner a reasonable opp to discover.
o Discovery rule
 Statute runs when owner knows or reasonably should know of his c.o.a. & identity of possessor.
o Laches
 Claimholder is barred from asserting a claim if it delayed unreasonably in asserting claim & delay
is prejudicial to other party.
 Prejudice=harm in this context.
o Estoppel
 Misleading & unreasonable conduct inducing detrimental reliance.

Human Tissues
 Case: Moore v. Regents of University of California (Cal. 1990).
o Holds that a conversion claim doesn’t lie for a human cell line but that Moore – source of cell line – has a
breach of fiduciary duty claim & a lack of informed consent claim against physician (Golde) who
extracted his cells planning to use them for research without 1st getting his consent.
o Cell line is a result of cultivation & repropagation of Moore’s cells. Footnote a in opinion states that value
of Moore’s cell line lies in ability to identify genetic material responsible for production of specific types
of proteins. Moore’s cell line has this prop. bc of a disease. Golde is physician who acquired Moore’s
 spleen for research purposes without Moore’s consent. Regents of UofC hold patent Moore obtained on
cell line. Genetics Institute & Sandoz fund Moore’s research & have a license on patent. If cell line is
Moore’s prop., then they would be liable for conversion if they actually were in possession of cell line.
People who use or benefit from knowledge acquired from cell line would not be liable for conversion.
Moore is seeking only dmgs.
o If cell line is his prop., then Moore should recover possession of line. Right to recover possession would
put him in a position to demand a payment from firms that wanted to use his cell line.
o Cell line lacks some of characteristics of prop. From Moore’s perspective, not costly to acquire or create.
To extent line can replicate use of cells in line is not rival. & majority in Moore makes a great deal of fact
that it’s difficult for users of cell line to determine if this is someone’s prop. that ought not use. features
make some of legal characteristics of prop. worrisome when it comes to cell line. Giving Moore power to
recover possession of cell line would allow him to hold up users, realizing what some think is a windfall.
If prop. in a cell line is not clearly demarcated, then it’s troubling to make innocent infringers liable,
particularly if Moore can hold them up by demanding a large fee for use of his cell line after they’ve
begun work on it.
o Claim for conversion of excised human tissue under existing law (doctrinal & textual arg)?
 Privacy rights in general & right of publicity in particular as supporting Moore’s claim. See p. 6.
For most people their name & likeness is more central or essential to their identity—and so its
taking is more disruptive—than excised cells. was immediately qualified by noting that people
could feel differently for religious or similar reasons. real worry is that people who have access to
Moore’s genetic material may be able to learn things about Moore than most people prefer to
keep private (or not to know at all).
 Cal. Health & Safety Code section 7054.4 as cutting against Moore’s claim. See pp. 7, 16, &
20-22. statute requires destruction of anatomical parts & human tissue unless it’s used for
scientific purposes. 1 point made was that statute cannot prevent people from owning ashes of a
loved 1. Another point made was that statute says nothing about right to control one’s tissue
insofar as it’s used for scientific purposes.
 Patentability of human cell line as cutting against Moore’s claim.
 Uniform Anatomical Gift Act as supporting Moore’s claim. See pp. 14-16. ct of appeals relied
on Act in allowing a claim for conversion. helpful to Moore bc it does give people power to
control use of their organs after they are dead. But it doesn’t give them power to sell organs.
Indeed, it prohibits their sale.
 Mosk’s arg: concepts of prop. & ownership is our law are extremely broad [and] is sufficiently
comprehensive to include everything which 1 can own & transfer to another.
o Should be a claim for conversion as a matter of policy or morality (normative arg)?
 J. Panelli posits 2 goals: protecting individual autonomy & facilitating scientific research. gist of
his arg is that breach of fiduciary duty/nondisclosure claim against Golde adequately protects
individual autonomy & that giving Moore a prop. interest in cell line will hinder research bc
downstream users of line will worry about potential legal liability.
 Gist of Broussard’s position is that downstream users only need worry about unusual cases in
which extracting physician doesn’t get consent to use for research & that even in those cases their
liability is limited to paying a fair price for line they use. Broussard is on fairly strong ground on
latter point under rule on accessions & usual rules for measuring dmgs for innocent conversion
(the fair market value of converted prop.). He’s on somewhat weaker ground on 1st point for this
assumes that consenting to use of extracted tissue for research should be treated either like a
transfer in a transaction for purchase (?!) or like putting chattels in possession of someone who
sells them in ordinary course of business (?!). Perhaps Broussard would craft analogous rules for
donated human tissue.
 Mosk takes Panelli’s policy args head on. Mosk argues that liability is justified bc not fair for Ds
to profit from Moore’s cell line without sharing some of profit w/ Moore. rejoinder is that while
they may be profiting it’s not at Moore’s expense & not where he has sown.
 J. Arabian arg at pp. 11-12 is that a body part should not be commodified. irony that Ds are
allowed to commodify Moore’s cell line.
o Whether a ct is appropriate body to resolve normative Q (institutional arg)?
Intellectual Prop.
 Reasons for & against recognizing a prop. right in knowledge are similar to reasons for recognizing a prop. right
in tangible resources taken from public domain
o Goals are to encourage efficient production, management, & use of a valuable resource.
o Granting someone a prop. right in a resource is to give them a monopoly over resource that is good
against world, even innocent infringers as a general matter.
o Character of knowledge as a public good & its intangibility explain starting premise that knowledge
placed in public domain generally is no-one’s prop.
o Usual reasons for making knowledge someone’s prop.: to reward & encourage creation of knowledge &
to protect against misappropriation, particularly free-riding that if permitted would deter creation of
knowledge.
o Brandeis’s dissent in INS v. AP & Hand’s opinion in RCA make point that need bright-line rules defining
what knowledge is someone’s prop., who owns it (some would add preferably concentrating ownership),
& what constitutes infringement.
 These rules should be designed to reward production of valuable knowledge without unduly
crimping use of knowledge.
 Brandeis also argues that such line drawing is best done by legislatures & administrative
agencies that make rules prospectively & weigh competing interests.
 Materials on copyright prtctn of factual compil. illustrate line-drawing in specific context.
 Underlying goals are pretty clear.
o To encourage & reward people who produce compilations without unduly
impairing use of info in compilation.
 2 quite different rules
o Prohibits “copying” factual compilation.
 Focuses on character of infringing conduct
o Protects a compil. only if it has sufficient value in originality & creativity.
 Focuses on character (value) of compilation.

Misappropriation of Info
 Raise fundamental Qs about approp role of cts, exercising their power to make common law, to create prop.-like
rights in knowledge or to create other forms of legally protected interests in knowledge, good will, etc.
 Cases:
o RCA Mfg. Co. v. Whiteman
 Raises issue of power of private actors to use contract to create rights in resources that are good
against non-parties.
o Chirco v. Crosswinds
 Raises issue of discretion of cts to under-enforce prop. rights when strict enforcement is unfair
either bc P led D to believe right would not be enforced or bc enforcing right would impose an
undue burden.
o INS v. AP
 P is seeking a preliminary injunction. benefit to getting a preliminary injunction to order INS to
stop bribing its employees (which clearly is a wrong) is this exposes INS to coercive sanctions if
it continues conduct.
 AP alleges INS is bribing its employees, inducing its member to breach their contracts, &
copying news from bulletin boards & early editions on east coast & retransmitting news to its
subscribers on west coast. wrongfulness of bribery & inducing breach of contract is uncontested.
Q b4 ct is whether copying & retransmitting published news is a wrong.
 “Prop., creation of law, doesn’t arise from value although exchangeable—a matter of fact . Prop.
depends upon exclusion from law by interference.” Holmes, p. 841
 “Essential element of individual prop. is legal right to exclude others from enjoying it fact that a
product of mind has cost its producer money & labor, & has a value for which others are willing
to pay, is not sufficient to ensure to it this legal attribute of prop.” Brandeis, pp. 841-842. Just bc
something is of value & is costly to produce doesn’t make it prop. Brandeis continues: “The
general rule of law is, that noblest of human productions—knowledge, truth ascertained,
 conceptions, & ideas—become, after voluntary communications to others, free as air to common
use.” p. 842
 Brandeis’ point is that generally knowledge is not prop. & this is true even though it’s
valuable & costly to acquire or create. most obvious difference between info & chattels is
that use of public info generally is nonrival, 1 person’s use doesn’t interfere w/ another
person’s use. Another difference is that it’s difficult to demarcate knowledge or info as
someone’s prop. Chattels have easily discerned boundaries. Knowledge generally
doesn’t. & it’s easy to see if someone uses a chattel. not so easy to see if someone uses
knowledge.
 Pitney describes news as AP’s prop. or quasi-prop., but nature of AP’s prop. interest is
unusual. Whatever right AP has in news is good only against INS & not against world. &
it’s good against INS only on theory that INS is knowingly misappropriating news. Prop.
rights generally are good against world & against an innocent infringer.
 Pierson v. Post (taking a fox being chased by P), p. 1; Ghen v. Rich (taking a whale killed
by P from a beach), p. 13; & Eads v. Brazelton (taking a ship wreck found & marked but
not yet worked by P), p. 17.
o All are cases in which a P is pursuing a valuable opp, making varying degrees of
effort, & D takes object P is pursuing.
o A difference is that here P is pursuing an object not capable of possession.
Relatedly, in copying news INS doesn’t deprive AP of anything it might possess,
though it does undercut value of news to AP on west coast.
o Many of Pitney’s args in INS v. AP echo args seen earlier.
 In particular, Pitney decries reaping where another has sown (2nd full
paragraph, p. 839). connotation is that INS is taking fruits of AP’s labors
& adding nothing of value. Pitney also argues that allowing this sort of
conduct will eliminate AP’s incentive to collect news, echoing an arg
made in Ghen v. Rich. See p. 840, 1st paragraph.
 Also echoing Ghen v. Rich, Pitney argues that there is nothing AP can do
to protect itself from this sort of conduct bc of time difference between
east coast & west coast. See pp. 838-839.
o Side point is that liability in INS v. AP cannot ground on principle in Keeble v.
Heckeringill (shooting a gun to drive off waterfowl from P’s decoy pond) , p. 7.
While cases are similar in that D is interfering w/ P’s trade, in which P has
expended great effort, interference in Keeble was malicious. Here it’s just hard-
nosed business.
 Rule: law prohibits a competitor from knowingly free-riding on productive efforts of another if
free-riding adds no or little value, it imperils productive activity, & nature of activity makes it
impractical for other to prevent such free-riding by self-help, contract, etc
 Brandeis would find even this rule objectionable for reasons stated at pp. 843-844. Appl.
of rule requires difficult factual & policy jdgmnts about extent to which conduct imperils
activity in Q & whether conduct adds anything of value. Brandeis thought it best to leave
this sort of Q to legislatures or, even better, regulatory agencies, who have expertise &
resources to investigate these Qs.
o Chicago Board of Trade v. Dow Jones
 BoT is seeking a declaratory jdgmnt. simply a declaration of one’s legal rights. not an injunction.
BoT is seeking to resolve its rights in advance bc it plans to spend significant sums of money
developing futures contract & trading. If it spends this money & then finds out it doesn’t have a
right to do so, then Dow Jones will have a great deal of leverage in settling dispute.
 Ct holds DJ has protected interest in index even though BoT is not competitor & even though
allowing BoT to use index as a basis for a futures contract will not imperil DJ’s activity. reason ct
gives for giving DJ a protected interest against BoT is it thinks this will provide an incentive to
devise other, better indices. Regulatory agencies had decided otherwise & that it was best that
BoT based futures contract on an established & familiar index.
 Hypo: P opens a gourmet Vegan restaurant on upper Solano Ave. becomes a hit, attracting Vegans from all over
Bay to Solano. D opens a competing restaurant a few blocks down on Solano, offering very similar food at lower
prices. P credibly complains that there is not sufficient demand for 2 such restaurants.
 o Instinctive reaction is that cts have no business deciding whether North Berkeley can support 2 Vegan
restaurants & whether a 2nd restaurant adds value. That 2nd restaurant benefits from demand created by
1st restaurant is just tough. On other hand law would step if D gives it’s restaurant a name, décor, & menu
in a way that is calculated to confuse patrons into believing it’s connected to P’s restaurant. passing off &
a core example of an unfair trade practice. Holmes would have grounded a decision for AP in INS v. AP
on this rule broadly applied, forbidding INS from retransmitting news taken from AP without crediting
AP as source. law of unfair competition will also reach border-line tortious conduct that law may not
generally prohibit but that it will prohibit amongst competitors. For example, it would be unfair
competition for D to hack into P’s computers to take its menus (or to use other means of spying) even if
means aren’t generally tortious. & it would be unfair competition for D to spread rumors P uses non-
organic food even if rumor-mongering is not generally tortious.

Copyright
 Materials in book address what is an “original work of authorship” in context of a factual compilation. In class,
talked about req that work be “fixed in [a] tangible medium of expression” meant that an improvised
performance is not protected by copyright. What is protected is a recording or broadcast of an improvised
performance.
 Law:
o Copyright Act of 1790 secured right to copy “maps, charts, & books.”
 Amendments to act in 19th century extended protection to other creative works (e.g., music) &
some derivative works (e.g., right to public performance of a printed drama).
o 17 USC §
 101 Defines above concepts.
 102
 Major recodification in 1976 to define copyrightable subject matter broadly as “original
works of authorship fixed in any tangible medium of expression.”
 (b) states basic principle that while copyright gives owner exclusive right to exploit
expression (in enumerated ways) it doesn’t give owner exclusive right to ideas. states:
o “In no case does copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation, concept, principle,
or discovery, regardless of form in which it’s described, explained, illustrated, or
embodied in such work.”
 103
 It provides:
o That a compilation is copyrightable
o That “The copyright in a compilation extends only to material contributed by
author of such work, as dstngshed from preexisting material employed in work,
& doesn’t imply any exclusive right in preexisting material. . . .”
 Echoes idea-expression dichotomy.
 Compiler gets a prop.-right only in compil. itself or product of compiler’s efforts.
 106
 Copyright protects only those uses of copyrightable subject matter enumerated here.
Again these are quite general & include rights “to reproduce copyrighted work,” “to
prepare derivative works,” “to distribute copies,” “to perform copyrighted work
publicly,” & “to display copyrighted work publicly.”
 107
 Provides for a right of “fair use.”
 109
 Provides a right to sell a lawfully acquired copy.
 Cases:
o Rockford Map, p. 852, & Feist, p. 855, involve factual compilations.
 Feist post-dates Rockford Map & changes law on when a factual compilation is copyrightable. 2
cases are quite similar. In both P compiles & publishes factual info (a map depicting land
ownership in Rockford Map & a telephone directory of residential listings in Feist). In both D
creates competing factual compilation, using P’s publication as a starting point & then verifying
 & supplementing info. In both cases D‟s compilation included false info inserted by P in
publication (middle initials, fictitious telephone subscribers). But outcomes in cases are different.
 Rockford Map
 Finds map is copyrightable & that D‟s conduct infringed on copyright. According to ct,
neither much effort nor originality is required for a factual compilation to be
copyrightable. Indeed, ct says a directory of names is copyrightable. But only right of a
compiler of facts is to prevent someone else from copying his compilation. take away
rule from Rockford Map is that a 2nd compiler of facts must start afresh in compiling
facts, & may not use an existing compilation as a starting point. But D could use P‟s
map to check its work. See pp. 854-855. point was made in class that this is a fine line.
upshot is that D cannot recover its working materials, erase middle initials, & then
republish maps. still would have used P‟s maps as starting point.
 Feist Publications, p. 855
 Holds a phone book is not copyrightable bc it lacks essential elements of “originality
plus a modicum of creativity.” When spent a fair bit of time in class dancing around Q
what J. O’Conner means by originality & to what extent this is something more than a
req that P have created a new compilation of facts that wasn’t available b4.
 Can be read to say in last sentence of long paragraph on p. 856 that even if a factual
compilation is copyrightable it can be used to create a new compilation so long as
“original” selection & arrangement is not duplicated.
 Possible to explain both Rockford Map & Feist under a rule that prohibits using a
“factual compilation” to produce a competing compilation
o If:
 Underlying info can be obtained from other sources;
 Use exploits (free rides on) effort by initial compiler;
 2nd compilation adds little value; &
 allowing use imperils production of initial compilation.
o Rule tries to balance social interest in creating social incentives for making
complication & social interest in allowing others to use compilation to produce
other things of value. Key differences in cases are
 phone company produced compilation at almost no cost, &
 it was very costly for D to duplicate this info.
o Mid-America Title Co. v. Kirk, p. 857-858
 (holding a title history of prop. is not copyrightable bc created by rote techniques), suggests
effort is not enough.
 Might be explained by fact that there are ample incentives to use care in creating a title report
even if 1 cannot prevent others from copying report.
o Random House, Inc. v. Rosetta Books LLC, p. 859
 Authors sign Random House contracts licensing exclusive right to “print, publish & sell Work in
book form.” Q in case is whether Random House can stop creation of e-books. clear that under
contract author retains right to produce or license derivative works, such as right to license a film
adaption of a work. Either author or Random House has right to control production of e-books
for these are “copies” of book. Section 106 of Copyright Act gives “the owner of copyright
exclusive rights to do & to authorize” “to reproduce” or “to distribute” “copyrighted work” in
“copies.” Section 101 defines copies:
 “Copies are material objects in which a work is fixed by any method now known or later
developed, & from which work can be perceived, reproduced, or otherwise
communicated, either directly or w/ aid of a machine or device.”
 Case turns on whether a e-books are included within license of a right to produce books. ct
denies a preliminary injunction bc good chance they aren’t under a New York rule interpreting
licenses narrowly.
 Random House revised its standard form licensing agreement in 1994 to include exclusive right
to “electronic versions of work,” which is defined include any means or medium “intended to
make such Electronic Versions of work available in visual form for reading.”
o RCA Mfg. Co. v. Whiteman (2nd Cir. 1940), p. 844
  Backdrop: Why copyright law didn’t cover musical performances in 19th century. In a world in
which a musical performance cannot be recorded or transmitted—i.e., in world prior to invention
of phonograph & radio—is it hard to describe a classical orchestra’s legal interest in charging for
right to hear a performance of a classical composition as a prop. right in performance bc
performance is not (and cannot) be embodied in anything tangible that a performer is able
control or transfer. What control performers had was in ability to set up a fence or wall around
where they performed & charge people to attend. Someone outside wall could listen for free. &
people who attended could whistle or sing remembered bits. right of a composer to a musical
score was thought different bc score is embodied in a manuscript like a book or a picture. right to
an unpublished score was protected by common law copyright while right to a published score
was protected by Copyright Act. In addition (and importantly but non-obviously for RCA case)
copyright holder in a score was thought to have right to control performance of score, incl.
reproduction of a heard tune by memory. For an unpublished score this was by common law
copyright, which is a matter of state law. Fed copyright law doesn’t protect recordings of musical
performance. Indeed it didn’t for another generation.
 Whiteman conducts orchestra. RCA records concert & sells recordings, w/ imprinted legends
limiting use to private use & prohibiting resale for purposes other than private use. RCA sells
recordings to Bruno—Bruno acknowledges that it’s bound to imprint. Bruno sells recordings to
WBO, which plays them over radio. Told to assume WBO knew of legends & that Bruno
breached its contract w/ RCA in selling recordings to WBO. broad Qs presented are whether
common law will give a performer or recorder a prop.-like interest in a recorded performance &
whether law will enable people to secure prop.-like rights using contract. Hand rejects both
moves. He won battle but lost war. New York state cts later held recordings did have common
law protection.
 Whiteman & RCA bring common law copyright & unfair competition claims.
 District ct holds
o Whiteman had a common law copyright in performance;
o Whiteman assigned his right to RCA;
o RCA had no common law copyright in recording of performance;
o Whiteman had an unfair competition claim against WBO.
 RCA greedily argues ct was wrong in denying it independent copyright in recording bc of effort
in making recording & wrong in giving Whiteman an unfair competition claim against WBO. On
latter point RCA wants to be able to license broadcast without having to get Whiteman’s consent.
On former point RCA wants to be able to control rebroadcast of its recordings even if it doesn’t
acquire common law copyright in performance.
 At p. 845 Hand concedes arguendo that Whiteman had a prop. interest in performance & RCA
had a prop. interest in recording. He also concedes arguendo that these rights aren’t abandoned if
a conductor agrees that a performance will be broadcast over radio. But he says these rights were
lost when recordings of performance were sold. difficult to untangle why this should be so.
Hand’s arg would be clearer if he hadn’t conceded possibility that a common law prop. interest is
not lost if a performance is broadcast publicly. He could then argue that placing a performance in
public domain—either by broadcasting it or by selling recordings—is a relinquishment of any
right to prevent others from using performance. Hand is making a less emphatic version of this
arg exploiting general principle that sale of a chattel (the record) relinquishes full control of
chattel to buyer. underlying principle is stated at bottom of p. 846. that people seeking to assert a
monopoly over info they place in public domain are asking for something quite exceptional &
should go to Congress.
 Another striking feature of case is rejection by Hand of any possibility of a tortious interference
or similar claim against WBO in last paragraph on p. 847. broader Q here is important—to what
extent may people use contract to create prop.-like rights to control down-stream use of things
they place in hands of others.
 Hand’s opinion is RCA is best remembered for his description of doctrinal basis of INS, tort of
unfair competition, as basically a dead letter not to be applied in any other case. Hand’s was
dominant view on viability of a general common law principle that precludes misappropriation
of info placed in public domain for much of last century.
o Chirco v. Crosswinds Communities, Inc., p. 861.
  On Dec. 31, 2000, D (Crosswinds) begins Heritage condo project using plans allegedly copied
from P’s architectural plans. On Apr. 1, 2001, P (Chirco) sues for copyright infringement,
seeking injunctive & monetary relief for Heritage project. By April 16, 2001, if is clear from D’s
internal records that it’s undertaking a 2nd project at Jonathan’s Landing (“JL”) using same
plans. By Oct. 16, 2001, clear that P is aware of project & use of its plans. P doesn’thing. In May
2002 D breaks ground on JL project. More than a year later, on Nov. 14, 2003, P files a lawsuit
to stop work on JL project & destroy work that has been done. 252 units were planned for JL
project. Presumably these plans have been approved & basic infrastructure for all 252 units was
in place. At time of appeal 168 units have been constructed, 141 are sold, & 109 are occupied.
 Appeal turns on Appl. of doctrine of laches as a defense to copyright infringement.
 One is point that architectural plans are copyrightable. “Reverse engineering” or copying from a
building is ok, at least w/ respect to non-utilitarian elements (which is broadly defined). Copying
plans is a no no, which is what D is alleged to have done. 2nd point is that copyright statute of
limitations is 3 years. Usual problem is whether statute precludes recover for copyright
infringement that goes back more than 3 years prior to litigation. discovery rule, concepts of
estoppel, & right to recover in a case of on-going infringement for conduct within 3 year period
are available in such cases to provide some relief to a P. Finally, potential claims against people
who purchased homes raises point liability for copyright infringement is strict if purchasing a
home built w/ copyrighted plans is an infringing act.
 On laches defense, what is striking is that ct of appeals directed district ct to treat Ds quite
harshly while saying it was adopting a position more lenient than some other cts. district ct had
denied any remedy. ct of appeals said P’s delay of suing was a basis for a laches defense but only
to deny requested relief that “buildings already occupied, sold, or substantially constructed” had
to be destroyed. Stopping work on remainder of project would inflict a substantial loss on D bc
of its sunk costs. injunction reqing stoppage puts P in a strong bargaining position. severity w/
which ct enforces a prop. right is striking & not unusual. reason ct of appeals gives for not
deferring to trial ct’s assessment of equities is also striking—the ct argues that deference to
Congress requires enforcing right to hilt if a claim is brought within statutory period absent very
compelling reasons to contrary.

Moral Rights of Artists

 Moral rights of artists are unusual among intellectual prop. rights in their justification, which is thoroughly non-
instrumental & non-utilitarian.
 Materials pick up on several themes of course.
o Importance of being able to tie a prop. right to a tangible thing.
o Availability of remedies for infringement of a right that don’t depend on proving actual harm.
o Need to craft rules to protect a purchaser without notice of prop. burdened w/ a limitation.
 Laws: fed & state statutes protect only interests in tangible art.
o Visual Artist Rights Act of 1990 (“VARA”) applies only to “A work of visual art,” which is defined as
“a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or
fewer that are signed & consecutively numbered by author . . .”
 Mass. Art Preservation Act is similarly limited.
o Neither statute prevents someone from making a parody of a song or a book. Neither statute prevents
someone from making a copy of a painting & then defacing copy. VARA, 17 USC § 106A(a)(3), is pretty
clear on this. provides:
 “Author of a work of visual art shall have right to prevent any intentional distortion, mutilation,
or other modification of that work which would be prejudicial to his or her honor or reputation, &
any intentional distortion, mutilation, or modification of that work is a violation of that right.”
 Protected work is tangible painting itself. copy of painting is not protected. & copying painting is
not prevented by VARA. might be prevented by copyright law. important limitation on moral
rights of artists for what statutes prevent only is mutilation or modification of tangible works they
create. They don’t give artist any control over underlying ideas or content. moral right is
embodied in a tangible object & limits only certain actions affecting that tangible object.
o California Resale Royalties Act, p. 879.
 For artist life plus 20 years artist (or heirs) get 5% of resale price of a work of fine art if price is
more than $1,000. enacted in 1977 & is effective for art purchased b4 & after enactment.
  Cases
o Martin v. City of Indianapolis, p. 868.
 Martin installs removable sculpture on land owned by LaFollette. City buys land & destroys
sculpture. Even without VARA Martin would have a decent arg sculpture was his prop. 1 arg
would be that his right to recover sculpture is a servitude of which city had knowledge. Or he
could argue that sculpture was his prop. when city bought land & that sculpture wasn’t a fixture
as it was designed to be removed from land. latter arg is problematic bc pretty clear LaFollette,
landowner, thought it owned sculpture. issues actually were relevant in case bc sculpture was
finished in 1987, 4 years b4 VARA became effective. VARA applies to artwork created b4 1991
only if artist retained title to artwork in 1991. trial ct found that Martin had retained title,
reasoning this wasn’t a work-for-hire under logic of Carter v. Helmsley-Spear, pp. 873-5. arg is
dubious given common understanding of Martin & LaFollette that latter was purchasing physical
sculpture.
 Martin almost certainly had a good contract claim against city. Appl. of VARA is important bc it
allowed Martin to collect statutory dmgs. At time copyright law provided for statutory dmgs in
lieu of actual dmgs or profits between $500 & $20,000 for a non-willful infringement & up to
$100,000 for a willful infringement. (These now are $750, $30,000, & $150,000 respectively.)
trial ct assessed $20,000, maximum trial judge thought possible since this wasn’t a “willful”
infringement. interesting & non-obvious definition of willful for it assumes willfulness requires
that a D have known it was violating Martin’s right under VARA & not just that city have known
& intended to do acts that constituted a violation of Martin’s right under VARA.
 Availability of statutory dmgs is crucial to enforcing VARA for, almost by definition, artist will
be unable to establish economic dmgs (pecuniary harm) from destruction of a statute artist has
sold. Here Martin cannot establish dmgs for it appears no 1 wanted to buy statute & he was
unwilling to pay to move it.
o Lubner v. City of LA, p. 880
 Shows that artists may not recover when artwork they owned is destroyed if they cannot establish
art had a market value.
 City is appealing trial ct’s decision that work was of “recognized stature.” City’s arg is
evidentiary & that this requires expert testimony, of which there was none. There was
disagreement in class about whether this should turn on expert testimony. answer may depend on
what think is purpose of req & views on what makes art valuable. VARA prohibits destruction of
work of “recognized stature” while prohibiting “intentional distortion, mutilation, or other
modification” of all covered artwork. Perhaps this suggests purpose of req is to protect people
who unwittingly destroy artwork not realizing its value.
o Moakley v. Eastwick, p. 875. 1971
 P affixes a mural painted on ceramic tiles on a concrete wall by commission of Unitarian Church.
1989 D, Grace Bible Church Fellowship, purchases prop., which is in dilapidated condition. P
sought a preliminary injunction when church began to remove mural. 1 can only imagine what
members of Bible Church Fellowship thought of mural given its age & political & social
message. Mass Ct of Appeals (the highest ct) reverses holding statute doesn’t apply retroactively.
 Some statutes do apply retroactively, meaning they protect artwork created b4 enactment of
statute against infringing conduct post-enactment. concern for notice to a person who purchases
prop. “burdened” w/ artwork might justify applying statute prospectively. But a purchaser
without notice is protect in any event by § 85S(h), p. 878. provides that if art is attached to a
building, “which cannot be removed without defacement or destruction,” art is protected only if
owner of building signs & records a writing expressly (p)reserving right against destruction,
etc . . .” Perhaps Ct of Appeals didn’t take refuge in this rule bc mural was on tiles & might have
been removable.

Right to Publicity
 Right to publicity grows out of right to privacy.
o In early cases cts recognized personal right of an individual to prevent use of his or her name or likeness
in commercial advertising.
 Cases
o Pavesich, pp. 886-888, & Roberson v. Rochester Folding Box, p. 895 (which denied claim & was
reversed by a NY statute).
 In both cases an individual who wasn’t a celebrity complained about use of their likeness in
advertising. Compelling reasons to protect individuals from this sort of thing that are non-
economic, incl. interests in personal autonomy, anonymity, & reputation. personal right morphs
into a right to publicity, which is conceived as a prop. right of economic value.
o Haelan Labs v. Topps Chewing Gum, p. 881
 Athlete (A) grants P exclusive license to use photograph in connection w/ sale of chewing gum.
suit by P against another company using A’s photo in selling chewing gum.
 Frank dstngshes 3 cases:
 (a) A directly grants D an infringing license (by contract made w/ D’s agent)
 (b) A grants R an infringing license. R assigns infringing license to D
 (c) D uses A’s photo in connection w/ sale of chewing gum without A’s permission.
 We began w/ point that P doesn’t have a claim under New York Civil Rights Law sections 50 &
51, summarized top of p. 895, in any of these cases. claim seems to be a personal 1 belonging to
athlete. Frank conceives of claim he allows as a common law claim. Note 1, p. 887, reports a
1990 2nd Circuit decision reversed Haelan Labs based on Stephano. case only holds that under
statute right doesn’t survive an individual’s death. doesn’t hold right is non-assignable.
 3 cases are different bc P would have a breach of contract claim against A in cases (a) & (b) but
not case (c). At top of p. 882 Frank acknowledges possibility of a tortious interference claim by
P against D in case (a). claim Hand rejects in RCA. There clearly is no tortious interference claim
in case (c) as A didn’t breach its contract w/ P. Frank assumes there is no tortious interference
claim in case (b).
 Frank allows P to proceed against D in cases (b) & (c) by holding A’s right is assignable to B,
basically treating right as akin to a prop. right. His arg is that assignability is essential to securing
value of right to A. isn’t obvious for so long as A is alive he can sue an infringer & so protect
interests of a licensee. Making right assignable makes it harder for A to change his mind by
giving P power to directly enforce right against D. casebook raises Q in passing whether right to
publicity might pass to a person’s creditors in bankruptcy. Frank intimates at p. 883 that D’s use
of photo is actionable by P only if D knew of P’s exclusive license. doesn’t follow if treat right
as a prop. right generally.
o MLK Jr. Center v. American Heritage Products, p. 884
 D manufactured & sold busts of King in a manner calculated to induce buyers to believe Center
supported sales. brochure sold w/ busts reprinted portions of King’s copyrighted speeches.
 Case begins in fed ct. district ct enjoined copyright infringement. would have enjoined use of
Center’s name but D agreed to stop doing this. didn’t enjoin production & sale of busts on
ground that right to publicity required King exploiting right in his lifetime. case is in Georgia SC
bc US ct of appeals certified 3 Qs stated at p. 886 to ct. Certification is 1 device fed cts can use to
determine law on undecided Qs of state law. reminds us that right to publicity is a common law
right, like unfair competition (INS v. AP) & common law copyright (to extent it still exists).
 Q 1—does Georgia recognize a right to publicity distinct from a right to privacy?
 Pavesich, pp. 886-887, doesn’t resolve Q bc this is a claim by a non-celebrity to prevent
use of their likeness in advertising. Cabaniss v. Hipsley, pp. 888-889, comes closer. P is
an exotic dancer. photo she used to advertise her act was used by Playboy Club in its
advertisements. justification for claim echoes INS v. AP. D’s use of photo exploits P’s
investment in her appearance & in making photo to compete against D, perhaps cutting
into her business.
 That interest is an economic interest is clear from discussion of dmgs at p. 889. ct
dstngshes right to publicity from privacy on ground that “general dmgs” are available for
latter while only “special dmgs” are available for former. General dmgs are presumed
dmgs that don’t require showing actual harm. available for certain forms of defamation
on view that certain reputational harms are injurious without regard to whether there is
provable pecuniary harm or provable emotional disturbance. tend to be very personal
interests & rights. That dmgs are available for infringement of right to publicity only if a
P can establish “special dmgs” indicates interests of a different sort are being protected.
  But a P need not prove actual harm to recover dmgs. In MLK Center will be able to
recover D’s profit from sale of 200 busts even if it cannot show it was harmed by sale of
busts. & Center may enjoin D from further manufacture & sale of busts without showing
pecuniary harm. bc Center has exclusive right to profit from use of King’s name &
likeness in this way. Many prop. rights have precisely these qualities—the interests
protected by law are economic but they are protected in a way that preserves right
holder’s exclusive right to control profitable use of asset.
 Q 2—does right to publicity survive death (is right descendible)?
 Ct says yes, taking position that descendability follows from assignability. Once 1
perceives right as a prop. right it does seem natural to treat it as both assignable &
descendible for it becomes a thing detached from individual. But this doesn’t follow.
Might cut off right at individual’s death to avoid Qs about at what point a celebrity’s
name & likeness are free for anyone to use
 Q 3 in MLK Jr. Center—must “owner” have commercially exploited right to publicity for it
to survive?
 Q should not arise if a public figure is still alive for their interest in being able to control
their image & what their name is associated w/ should suffice to be able to enjoin most
non-consensual commercial uses of their name & likeness.
 Suggests might also be an exception for use by non-profits.
o Stephano v. News Group Publications, p. 893
 D (New York magazine) hired P to model a jacket for an article on fall fashions. used a photo
from session in another column “best bets,” which included info on jacket’s likely price & a few
stores where jacket could be purchased. might seem to both advertising & a trade purpose (to sell
magazine). New York Ct of Appeals (the highest state ct) says whatever these terms mean they
don’t encompass use of a person’s name & likeness by a news organization in reporting news.
What is a news organization & what counts as news is being broadly defined. logic behind this is
pretty clear. Often when celebrities complain about use of their name & likeness in news it’s not
bc it undercuts their ability to profit from their celebrity by licensing but rather bc they are
unhappy w/ what is being reported. broad per se defense avoids claims to harass news entities
that are doing their business, which is to make money by informing & entertaining us w/ news of
day.
o Zacchini v. Scripps Howard (US 1977), pp. 883-884
 Holds no constitutional privilege protects television broadcast of entire act of human cannonball.
result is partly explained on issue being framed as constitutional—SCOTUS thought it best to
leave Q where to draw line to state cts. Also important is fact that D showed entire act perhaps
undercutting P’s market.
o Eastwood v. Superior Ct, p. 884 (Cal. App. 1983)
 Holds National Enquirer’s use of Clint Eastwood’s photo on cover & in television advertising
may be actionable. opinion blends several facts—this being Enquirer it wasn’t really news
(indeed story wasn’t true), cover of Enquirer is basically advertisement, & photo was used in TV
advertisement.
o Hicks v. Casablanca Records, pp. 891-892
 Holds that a fictional account of episode in Agatha Christie’s life is protected by 1st
Amendment. similar rule in California law that protects “transformative” uses of a name &
likeness. rationale is similar to that for fair use doctrine in copyright law.
 Rule:
o Right to publicity generally only protects right to use a person’s name or image in advertising & for
certain other commercial purposes.
 New York statute protects against use for “advertising or trade purposes.”
o Scope of what is protected varies greatly from state to state.
 NY Civil Rights Law Section 50 prohibits use of “the name, portrait, or picture” of a person.

Patents/ Trademarks
 Broad outlines of trademark & patent law conform to underlying themes of materials on intellectual prop.
 o General goal to encourage efficient production, management, & use of knowledge (ideas, info, &
symbols), granting a prop. right when desirable to give someone monopoly over same.
 Done by crafting more or less bright-line rules to define when knowledge is someone’s prop.,
who owns it, & what constitutes infringement.
 Qual. of knwldg as public good justifies general principle that no1 owns knowledge.
o Prop. is created in knowledge only if there is a good reason to do so.
o Intangibility of knowledge means that prop.—what is protected & against what—
is defined by proxy.

Trademarks
 Social value of trademark is in power of a symbol to communicate source of a good or service to a customer.
o Validity of a mark can established either by showing:
 Symbol is inherently distinctive; or
 creation of an inherently distinct symbol adds to potential store of symbols & doesn’t
diminish people’s rights to use existing symbols.
 Symbol has acquired 2ndary meaning in consumer’s minds.
 Preserves communicate value of established symbols.
 The different rules on priority stated at p. 903 are consistent.
o One can establish priority to a distinctive symbol simply by being 1st to create symbol.
o One can establish priority to a non-distinctive symbol by being 1st to have a symbol w/ communicative
value.
o Traditional rule that use of symbol was actionable only if caused “consumer confusion” obviated sort of
Qs worried about in context of using people’s names & likenesses in news or in creative works.
o Recognition of dilution of mark as actionable makes trademark law more problematic.

Patents
 Right to a patent is conditioned on showing idea is new, useful, & not obvious.
o Get a monopoly over an idea only if it’s sufficient value.
 Monopoly is only for a while, generally 20 years.
o Patents are publicly registered.
 Patent must describe invention in full, state best manner for carrying out invention, & specify (“claim”) both
means & end to be achieved.
o Reqs serve 2 broad purposes.
 One is that getting a patent is conditioned on putting an idea in public domain in such a way that
people can use it.
 Other is to put others on notice that an idea is owned & what precisely constitutes an infringing
use of idea.
 Cases
o Rasterops, p. 906
 A & B independently produce same invention. rules that define who gets patent echo Ghen v.
Rich (whales), Eads (shipwrecks), & Haslem. 1st to conceive of idea gets patent but only if he
uses reasonable diligence to reduce idea to practice. Even if a person is 1st to conceive & uses
diligence to reduce idea to practice he may lose if he “abandoned, suppressed, or concealed”
invention.

Land
 Security interest is taken by a lender in prop. to secure repayment of a loan.
o Lender can take prop. to repay loan if borrower defaults.
o Properly recorded or “perfected” security interest is good against world, incl. a purchaser who is ignorant
of interest if recording (perfection) gave purchaser means to discover interest.
 Manner of perfection depends on prop.
 For vehicles lender may actually hold title in vehicle, which is registered w/ state.
  For other personal prop. lender will file a financing statement w/ state.
 For patents a security interest is filed w/ Patent & Trademark Office.

Enforcing exclusivity by injunction

 Injunction=judicial order to do or not to a specified act.
o Person who violates injunction can be held in civil contempt & fined or even jailed.
 Usually this is a misdemeanor.
o Reqs:
 Establishing a legal injury to P
 Injury=technical term for an infringement of a legally protected interest.
 Must be irreparable=legal remedy of dmg award inadequate to rectify injury
o Traditionally, P had to show would suffer an injury for which no adequate legal
remedy.
 Original purpose of rule was to limit jurisdiction of Chancellor/Equity &
preserve jurisdiction of Common Law cts.
o But cts continue to recite rule & sometimes invoke as a ground for denying
injunctive relief.
 Various discretionary considerations.
 Administrability=act ordered or forbidden is specifiable & verifiable.
 Undue burden (“balance of hardships”)=cost to D of complying w/ injunction grossly
disproportionate to benefit to P.
 Public interest
 Estoppel & laches
 Equitable doctrines & maxims
o “One Who Seeks Equity Must Do Equity”
o “One Who Comes Into Equity Must Come w/ Clean Hands”
o “Equity Aids Vigilant”
 Award of dmgs merely creates a debt.
o Only immediate consequence of non-payment of a jdgmnt is liability for interest.
 If a D refuses to pay, then a P has to find assets that he can collect against through additional
legal proceedings.
 If D is insolvent or is successfully able to hide assets P is out of luck.
o D cannot be imprisoned for refusing to pay a debt.
 Fashionable to dstngsh between “prop. rules” & “liability rules” as different ways to secure entitlements to
resources in order to ensure efficient use of resources.
o Prop. rule enjoins non-consensual use of an asset or resource.
 Encourages efficient allocation of assets by reqing a user to obtain consent of an owner b4 using
an asset.
 Internalizes costs by compelling injurer to bargain for right to inflict injury ex ante.
 Best when transaction costs low & harm to owner from use of asset difficult to measure.
o Liability rule makes non-consensual user of an asset pay for harm to owner caused by use of an asset.
 Encourages efficient allocation of assets by reqing a user to compensate an owner for harm
caused by a use of an asset.
 Negligence law imposes a “liability rule” & not a “prop. rule” bc injurer is made to pay for harm
he causes.
 Essentially internalizing costs.
 If make an actor pay for losses action causes, then he will act only if benefit to himself
outweighs cost to another.
 Once costs internalized, satisfied from a perspective of efficiency.
 Civil liability rules internalize costs ex post through a dmg action, which is costly &
uncertain.
 Liability rules work best when transaction costs are high & harm to an owner from use of an asset
is easy to measure.
 Sources of high trnsctn costs that may justify protecting entitlement w/ liability rule.
 o Trnsction transferring entitlement would require consent of numerous parties.
 Ex: Tragedy of anti-commons. Airplanes flying over land.
o Bilateral monopoly=situation in which a user has no choice but to bargain w/ an
asset owner & value of use to user is disproportionate to harm to owner.
 In early 19th century, quite likely that ownership of land was uncertain, both bc confusion over who had good title
& confusion over boundary lines. Cuts in favor of a liability rule bc uncertainty over who holds entitlement
complicates bargaining. By early 20th century, boundary lines & title to land probably were pretty well-
established, even in undeveloped areas.
 Cases
o Pardee v. Camden Lumber Co. 1911 decision by West Virginia SC.
 Prior, to get injunction ordering a D to stop taking timber from land a landowner had to show he
owned timber, D was taking it, & D was insolvent or some other circumstance making dmg
award inadequate. See 2nd paragraph, p. 1. Holds “A clear case of trespass by cutting of timber
should always be enjoined.” See penultimate paragraph, p. 3.
 Gloss on principle that an injunction is routinely available to protect ownership of land. Ct
reasons this principle also covers trees, which are attached to land. Old rule on trees followed
from fact that trees used to be thought of as being a nuisance bc they had to be cleared to make
use of land & had no market value. Times changed & now trees have market value.
 Trees may have value to an owner apart from their market value. Dmgs aren’t an adequate
remedy if an owner has intrinsic or subjective interest in having a mature stand of trees on his
land. Outcome didn’t turn on last point. That a resource connected to land has economic value is
enough to enjoin non-consensual taking of resource.
 Repeated suggestions that dffrnt rule might apply to personal prop. Suggestion that an owner
wouldn’t get injunction to recover a horse bc he can always buy another horse. Not clear why law
should treat chattels differently than land for these purposes.
 Why not let lumber company cut timber so long as it can pay value of timber.
 May not know value.
 By enjoining cutting, compel timber company to bargain w/ owner.
o Price will better determine true value placed by owner on timber.
 No impediment to bargaining for timber cutter can get permission from landowner. No bilateral
monopoly for timber rights can be gotten elsewhere & lumber can be bought on market. Doesn’t
depend on timber being of subjective value to an owner. Possibility that it’s of subjective value
strengthens arg for a prop. rule.
o Howell Pipeline Co., note 6 (above e-Bay)
 (enjoining pumping natural gas), is consistent w/ above for unlikely that natural gas has intrinsic
or subjective value to landowner.
o Ebay Inc. v. MercExchange (U.S. 2006)
 Involves a business process patent. Case from SCOTUS in summer 2010, Bilski, addresses
general Q of availability of a patent on a business process.
 Rejects rules applied by both trial ct & Fed Circuit. Trial ct announced rule denying permanent
injunction to enforce patent when P doesn’t itself use or license patented technology. Concern
here is “patent trolls,” meaning firms that buy up portfolios of undeveloped patents & then bring
infringement claims. Fed Circuit applied presumption granting permanent injunction to prevent
patent infringement.
 The SCOTUS reverses & remand. J. Thomas merely tells trial ct to apply well-established 4 fact
test stated in Section II of opinion. Doesn’t hint how test should come out.
 No well-established 4 factor test. Cases relied on involve preliminary injunction &
permanent injunction that was functionally equivalent to a preliminary injunction.
Hardships are balanced in preliminary injunction bc rights aren’t-established. Factors 1)
& 2) are redundant. Difference is that injury spoken of in past tense in Factor 1). If this
difference is meaningful it’s wrong. Often injunctions are granted to avoid future harm.
Factors 3) & 4) take equitable defenses & make negating defenses part of prima facie
case to get an injunction. Factor 3) doesn’t suggest that P’s interest should weigh more
heavily in balance, which is rule on permanent injunctions. Factor 2) conditions an
injunction on a showing that “dmgs are inadequate.”
  J. Roberts tells trial ct to apply test while keeping in mind historical practice of enjoining patent
infringement in almost all cases. Basically, telling trial ct to resolve any doubts regarding appl. of
test if favor of granting an injunction.
 J. Kennedy explains specific facts in this case that cut against injunction. Reasons are:
 P doesn’t use patented tchnlgy to produce/sell goods, instead merely licenses patent;
 Gives P leverage to charge an exorbitant fee
 Patent may be to a small component of product
 Such patents often are of doubtful validity & burgeoning thicket of business patents that
make innovation risky.
o Picture patent troll hiding in patent thicket waiting to jump successful innovators
w/ tendentious claims of patent infringement..
 Strikingly different from Pardee, which held that irreparable injury is presumed at least when it
comes to cutting trees on P’s land. J. Kennedy reasons resonate w/ economic justification for prop
rules & w/ equitable concerns that underlie defense of undue burden. Many people think Ct got it
right as a matter of policy. Worry that rule favoring firms that use patents to produce & sell
products over firms that don’t in availability of injunctive relief favors big companies over small
& concentration over fragmentation of industry & innovation. Makes it easier for firms that use
patents in providing goods or services to get injunctions for infringement may cause lost profits,
which by nature are difficult to measure. Thus rule discriminates against independent inventors.
 Hypo:
o If T innocently but mistakenly builds a retaining wall on O’s land & it would be very costly to T to
remove & replace wall while law imposes a slight burden on O, then an injunction is likely to be denied.
But O will get an injunction reqing T to remove wall if trespass was knowing.
 J. Kennedy’s views of situation: infringing on a patent of debatable validity hidden in a patent
thicket & held by a patent troll is more like 1st case than 2nd case.

Adverse Possession
 Rules on adverse possession supply an alternative legal basis to acquire title in land.
 Elements:
o 1) Actual
o 2) Exclusive possession
o 3) Continuous for statutory period
o 4) Open & notorious
o 5) Hostile (adverse)
o Some states
 6) Under claim of right or color of title
 7) Pay taxes
o Elements 1) through 5) all get at same underlying Q in different ways, which is whether AP acts w/
respect to land in Q in way people in relevant community think an owner acts w/ respect to his or her
land. If AP acts in such a way, he probably thinks he’s owner (or will become owner) & TO has reason to
know AP believes they own (or will own) land TO owns.
 CA:
o Gist: To establish title by adverse possession, person must overtly act as owner of prop. for 5 years. CA
landowners protected by a strict req that adverse possessor pay prop. taxes.
 Policy:
o Impose losses from misunderstanding regarding ownership of land on true owner (“TO”) when his laxity
in policing ownership leads adverse possessor (“AP”) to believe land is hers.
 Conceives of purpose of doctrine as akin to equitable estoppel & laches. AP gets land if TO, by
his laxness in protecting his land, has led AP to rely on right to use land.
o Eliminate stale claims & cure errors in land conveyances, treating long-term possession of land as
evidence of a title when title is uncertain.
 Conceives of purpose of doctrine as akin to clean-up rule that uses possession to resolve title
when usual rules & procedures for establishing title misfire or don’t yield a certain answer.
 Cases
o Fleming v. Griswold, p. 106
  Tallman acquired legal title to land in dispute in 1795. Griswold was in possession of land from
1805 on. Fleming, Tallman’s daughter, acquired an interest in land by inheritance in 1815. At
time she was married & so legally incapable of bringing a suit on her own. Her arg is that 20 year
statute is tolled from 1815 to time of lawsuit (c. 1840) on ground she was a married woman. Her
claim was rejected on ground that once clock began running against Tallman it continued to run
against his successor though successor was subject to a disability. If Fleming had acquired her
interest in 1807, shortly b4 she married, & Griswold’s began possession in 1810, then tolling rule
would apply & she would not lose her interest to adverse possession.
o Anderson v. Cold Spring Tungsten, p. 108
 Ds purchased a cabin on rural land owned by P. Presumably conveyance also was of some land.
They used cabin during summers mostly on weekend for over 30 years. Trial ct held Ds didn’t
acquire land by adverse possession bc their use was neither “hostile” nor “exclusive.” Colorado
Supreme Ct reverses. Trial ct incorrectly defined hostile as reqing that possession be non-
peaceable. Hostile means Ds held land thinking they owned it (or at least thinking they would
own it once statutory period passed).
o Lovejoy, p. 110
 Comes at same point from landowner’s side. For many years private owners permitted a public
school to continue to operate on land they acquired from state. While county may have thought it
owned land possession wasn’t hostile bc there was a custom & practice of landowners permitting
use of their land for schools. Possession wasn’t hostile bc likely that landowners thought it was
permissive.
 On exclusivity trial ct reasoned possession wasn’t exclusive bc Ds allowed other people to use
land around cabin. SCOTUS says prop Q is: while permitting others to use land around cabin did,
did D’s act as would an owner? Depends upon nature of prop. & local mores regarding
ownership. Possession need be no more exclusive than inheres in circumstances & mores of
ownership. Q would be similar if P argued use of cabin mostly on weekends in summer is not
“continuous” or if P argued possession wasn’t “open & notorious.” Ds satisfy these reqs if use is
as continuous & as open & notorious as a typical owner would make use of prop.
o Grace v. Koch, p. 112
 Kochs had greater physical presence on side yard in dispute (it was fenced, covered w/ their stuff,
they built an improvement on it, & they maintained it) than Ds had in Anderson. In addition we
are told that neighbors assumed Kochs owned side yard. Nevertheless they lose. Use wasn’t
hostile bc they had asked permission to mow strip. Also fence was built & use began when 2
parcels were owned by parent & child, which also suggests use is understood to be permissive. Ct
reinforces this result by putting a heavy burden on a putative adverse possessor—they must
establish all elements of claim by “clear & convincing evidence.” In principle this means that
doubts about whether a person acted as owner (and should have been so understood by owner) are
resolved against a putative adverse possessor. In practice this enables trial cts & appellate cts to
decide factual issue almost de novo.
o Meyer v. Law, p. 116
 Illustrates how some states have raised additional hurdles to acquire land by adverse possession
often through formal reqs of evidence that a person observably holds land as owner. Respondents
fenced in land mistakenly thinking it theirs relying on an incorrect survey. Applying traditional 5
factors this would be adverse possession. They lose bc of way Florida SC interprets statutes at pp.
115-116. They can’t acquire land under § 95.18 bc they don’t satisfy condition of having paid
taxes on land. Ct holds they don’t acquire land under § 95.16 bc they don’t satisfy condition of
taking possession of land under a recorded instrument such as a deed. interprets a req of color of
title as being recorded title.
 Textually statute supports this interpretation. Ct’s policy arg—recording gives true owner notice
—rings hollow for people are unlikely to check title records unless there is a conveyance & even
then they won’t find deeds outside their chain of title. Better arg grounds on view that adverse
possession serves only 2nd purpose stated above. District ct interpreted color of title to mean
basically g-faith belief in ownership, which incorrect survey gave respondents. dissent makes a
nifty textual arg using § 95.17(2).
 Dissent has to add an unstated req of g-faith to § 95.17(2) so as not to undercut § 95.17(1) in
boundary cases.
  Hypos
o Problems c) & d) on p. 107.
 In c) B has until 2030.
 When X takes possession O has already divided land, giving A a possessory interest & B
a non-possessory interest. clock runs against a non-possessory interest—such as a
remainder—only when interest becomes possessory. But this is true only if non-
possessory interest exists at time adverse possession begins.
 A [who has possessory interest] by sleeping on his rights may only imperil his interest in
land.
 In d) she has until 2010.
 X begins possession b4 remainder is granted.
 O having slept on his rights cannot covey a greater interest to B than O has. O’s interest
is clouded by X’s possession. Another way to put it’s that once X acquires land by
adverse possession his ownership “relates back” so that O doesn’t have title to give B a
remainder interest after X’s possession begins.
 Way to think about X’s interest is that it’s possessory interest that ripens into title once statutory
period passes. Once X is in possession true owner cannot create an interest that is greater than
what he holds, which is an interest subject to X’s ripening interest. tacking rule can be explained
in same way. If AP1 acquires possession of land & conveys his interest to AP2, then AP2 tacks
on AP1’s holding period. AP2 is stepping into a possessory interest that is ripening into legal
title.

Lateral & subjacent support

 If an excavation would cause subsidence of land in its natural condition
 Ronald Coase
o Example is a case in which sparks from A’s train land on farmer V’s dried & stacked hay, igniting a fire
that destroys V’s hay.
o All accidents involving humans are jointly caused by conduct of actor & victim. Had V not grown, dried,
& stacked hay next to railroad tracks, then accident never would have occurred. Coase’s purpose in
making this point is to say that who we treat as legally responsible for loss should not depend on who we
think caused fire. Instead Q is to whom we grant relevant entitlement—the railroad to run a train casting
sparks or farmer to grow, dry, & stack hay next to train tracks. As an economist Coase would have us
grant entitlement to promote efficient use of resources.
o Common law rule on lateral & subjacent support is illustration of sort of causal thinking Coase warns
against & difficulties such thinking gets us into in modern world.
 Common law rule may have been a sensible way to allocate entitlement to excavate in an uncrowded world that
hasn’t been much changed by humans.
o In a crowded world thoroughly changed by humans rule breaks down in a spectacular fashion.
o One way to think about common law rule is that it takes natural state of world as setting a baseline to
define entitlements.
 Hypo:
o A excavates soil from downhill parcel, causing V’s heavy structure on uphill parcel to collapse when hill
gives way under V’s structure.
 According to principle stated in Wilde v. Minsterly (1639), p. 120, A is legally responsible for
hill giving way if & only if excavation would have caused V’s land to subside had land been in
its natural state.
 Noone v. Price, p. 120, adds that if this is so, then is A liable for dmg to V’s structure?
 Loss of structure is within A’s scope of liability for acting in a way that would cause
land to subside in its natural state. Liability is strict. Means that A is liable no matter
how careful he’s excavating his land.
 Goes on to note that if excavation would not have caused V’s land to subside in its
natural state A might still be liable on grounds of negligence. But passage at pp. 123-124
makes it clear there is not a general duty of care that would make A liable for excavation
bc risk to uphill parcel outweighs expected benefit to A. more limited duty. has right to
develop his land but when he excavates he must notify V (so V can take precautions) &
he must use reasonable safeguards while excavating to protect V. balance ct is striking
 here is trying to give A right to do what he wants w/ his prop. but in a way that
minimizes risk to V.
 Cases
o Noone
 A excavates soil from downhill parcel & builds a retaining wall in 1919. D purchases prop. from
A in 1955. retaining wall is disrepair at time. P purchases a house on uphill parcel in 1960. house
was built in 1928. In 1964, P’s foundation gives way, P claims bc of D’s failure to maintain wall.
 Holds that D is liable if failure to maintain wall would have caused subsidence had P’s land been
in its natural state. implication is that D is under this much of a duty to maintain wall. But ct goes
on to hold that D cannot be liable on ground that it was negligent in not maintaining wall. See p.
124. Underlying thought seems to be that insofar as negligence is concerned D is guilty only of
nonfeasance, not misfeasance, & so there can be no liability. instinct behind this is that both
parties purchased prop. while wall was in bad shape so they seem equally responsible.
 Ps couldn’t bring a trespass claim bc no physical intrusion on their prop. Caused by D. removal
of lateral support harmed their prop. by what is literally a physical extrusion, their soil slipped
away. Ps would have a negligence claim for they suffered a physical harm but they would have
to show that Ds had been careless or acted unreasonably. Advantage of a claim for failure to
provide support is that liability is strict if they can satisfy scope condition that subsidence would
have occurred had their land been in its natural state. Not clear if they have a nuisance claim for
interference w/ their use & enjoyment of their land may not have been intentional insofar. issue
of intent is finessed when a nuisance is an ongoing activity for an undesired but known
byproduct of ongoing conduct is treated as intentional.
o Klebs v. Yim, p. 125
 Even if P could show its land would have subsided in its natural state upon collapse of wall, then
chance still is open for D to avoid liability by showing that changes to P’s prop. caused runoff
weakening wall.
o Island Creek Coal Co. v. Rodgers, p. 128
 In 1905 Island Creek acquires mineral rights in area that becomes Sharp Subdivision. From
1948-1963 Island Creek conducts underground mining. In 1966 Rodgers build a home in Sharp
Subdivision. In 1977 there is massive subsidence in Subdivision, making Rodgers’ home
uninhabitable. At time Cimarron Coal is conducting blasting approximately 1 to 4 miles away.
Everyone blames everyone else, telling different causal stories. Summarizing, ct observes an
“array of expert testimony corroborates & then, on other hand, contradicts each & every [factual]
claim & defense made by parties.” In United States this sort of Q is resolved by a jury if
reasonable people might disagree about conclusion.
 Island Creek tries to avoid liability arguing that baseline defining its responsibility to surface
owner in conducting mining should be condition of land in 1905 when it acquired mineral rights.
ct says no & invokes common law rule. See pp. 130-131. But this passage is quite confused. ct
says baseline is condition of surface (plus reasonably foreseeable changes) at time company
halted mining. change from common law, which makes company liability by asking if there
would have been subsidence in land’s natural condition. But this arguably is dicta for it was
uncontested that cave-ins would have occurred in land’s natural condition. But that suggests
condition of land determines company’s scope of liability—perhaps it wouldn’t be liable for
improvements added years after completion of mining if there were unforeseeable. also is a
change of common law rule. Given artificiality & obscurity of common law rule this sort of
confusion isn’t surprising.

Nuisance
 Coase theorem = given zero transaction costs & some other assumptions allocation of legal entitlement to a
resource will not affect how resource is used for right to use resource will be transferred to user who values it
most.
o Government can promote efficient allocation of some resources by establishing clear prop. rights in
resources & markets to facilitate transfer of resource.
o Case for government allocation of resources by regulation should start w/ a showing of transaction costs
or other reasons why markets cannot be relied upon to efficiently allocate resource in Q.
 o Coase arg for preferring market-based solutions to resource allocation ignores effect of pervasive
inequality of wealth or what some call wealth effects.
o Hypo: Imagine 2 possible states of a world in which only Boomer & Plant exist. Assume these facts are
known to both parties (i.e., perfect info). & assume they can buy & sell entitlement w/ no cost, effort, or
legal risk (i.e., zero transaction costs). Also assume both parties are rational wealth-maximizers & that
both have ample cash to buy entitlement. last assumption properly irritated many of you. reality is that
Boomer may not have money to buy entitlement to stop pollution even though he cares deeply about it.
 1) It’s worth $50,000 to Plant to be able to pollute Boomer’s prop. worth $30,000 to Boomer not
to have his prop. polluted. I.e., efficient for plant to pollute.
 If you allocate entitlement not to have his prop. polluted to Boomer, then Plant will buy
it, paying something between $30,000 & $50,000 to Plant.
 2) It’s worth $30,000 to Plant to be able to pollute Boomer’s prop. worth $50,000 to Boomer not
to have his prop. polluted. I.e., efficient for plant not to pollute.
 If you allocate entitlement to pollute to Plant, then Boomer will buy it, paying something
between $30,000 & $50,000 to Plant. If you allocate entitlement not to have his prop.
polluted to Boomer, then Plant will buy it in Case #1, paying something between $30,000
& $50,000 to Plant.
 Allocation effects who bears $30,000 loss from conflict between Plant’s desire to pollute &
Boomer’s desire to be free from pollution. That is allocation of legal entitlement has a distributive
effect. alters distribution of wealth as between Boomer & Plant. But it does alter how resources
are used, or using a technical term, it doesn’t have an allocative effect.
 1) Everyone knows it’s worth $1 million to plant to be able to pollute while it’s worth $100,000 to
Boomer to be free from pollution. Boomer is given entitlement.
 Example of what Laycock excerpt (see Class 17) describes as bilateral monopoly. worry
is that it creates an incentive for both parties to threaten & not to agree to what clearly is
a desirable trade to capture a larger share of gains from trade ($900,000).
 2) Everyone knows entitlement is worth significantly more to plant than to Boomer but we can
only speculate about actual value each assigns to it.
 Worry is exacerbated by imperfect info. Both parties have an incentive to mislead other
about value of entitlement to them to capture a large share of gains from trade. Both sorts
of behavior have been described as strategic bargaining.
 3) pollution adversely affects 10 prop. owners. Everyone knows entitlement is worth significantly
more to plant than it’s to 10 homeowners. But we can only speculate about actual value each
assigns to it
 Illustrates a collective action problem of sort described in materials Molly gave you as
“tragedy of anti-commons.” Not only is it more costly to negotiate w/ multiple people. In
addition, increase in people who must agree to permit a welfare-enhancing exchange
increases risk that 1 or more will hold out to capture a larger share of gains from trade.
 Rule
o A engages in conduct x to which V objects
 Entitlement to V
 Prop. Rule
o V is entitled to injunction against x
 Liability Rule
o V is entitled to compensation for harm from x
 Entitlement to A
 Privilege Rule
o A is entitled to do x
 Compensated injunction
o If V stops x, then A is entitled to compensation for value to it of x.
 Cases
o Griffin v. Northridge, p. 134
 P brought a nuisance claim. Mrs. N’s vicious campaign against Gs encompassed much of tort
law, incl. trespass (trampling garden, throwing paint on their house), negligence (there was some
physical harm), intentional infliction of emotional distress (this wasn’t a tort in 1944), & tortious
 interference w/ contract. beauty of nuisance is that tort is capacious enough to encompass
everything N did. underscores point in book that nuisance is a bit of a grab bag.
 Basis on which trial ct awarded $1,000 dmgs is not clear, most likely possibilities are
compensation for emotional disturbance & punitive dmgs. Both are available if a nuisance is
sufficiently egregious (for punitive dmgs) & interferes w/ use of one’s home. Had Gs not moved,
then they could have gotten an injunction, incl. an order to remove spite wall (more on this
Monday) & perhaps even a protective order or restraining order to prevent Mrs. N from harassing
them. Irreparable injury is easy to establish given nature of conduct. Injunctive relief generally is
available for to stop an on-going nuisance.
o Boomer v. Atlantic Cement Co., p. 137.
 Trial ct (special term) found emissions from ACC’s cement plant constituted a nuisance &
awarded dmgs for harm up to time of trial. Also estimated permanent dmg to guide parties’
settlement. NY Ct of Appeals (the state’s highest ct) holds that trial ct should enjoin operation of
plant subject to a condition vacating jdgmnt if D pays whatever permanent dmgs trial ct assesses
to compensate landowners for harm caused by plant.
 Up until this case, undue burden wasn’t a ground under NY law for declining to enjoin a
nuisance. See p. 138 bottom. Dissent argues that public policy was a ground for declining to
enjoin a nuisance only if D was a public corporation such as a subway line or a public utility.
While majority opinion begins w/ a homily to irrelevance of public interest in resolving private
rights best explanations for change in NY law to permit denying effective injunctive relief are
instrumental & economic.
 While majority doesn’t point to these sorts of worries to justify its decision these worries do
supply a justification for not giving Ps usual remedy of an injunction for a nuisance that D must
buy out. Right to be free of nuisance generally is what is described as a prop. rule. By limiting Ps
to dmgs ct in Boomer makes it a liability rule.
 Dmgs were awarded even though denial of an injunction on basis of undue burden or public
policy presupposes that D’s conduct is reasonable in sense that benefit to D (and society) from
conduct outweighs burden to Ps & by a significant margin. Whatever reasonableness means as a
standard of liability in law of nuisance meaning is quite different from what reasonableness
means in law of negligence.
o Sundowner, Inc. v. King, p. 154
 Property rights are not absolute. While a property owner generally has right (privilege) to build a
fence or sign on his property so long as it complies with local zoning ordinances case holds that
spite fence is actionable as a nuisance.
o Spur Industries v. Del Webb Development Co, p. 146
 1956 Spur Industries’ predecessor opens a feed lot 15 miles outside of Phoenix. 1959 Del Webb
begins to plan “Sun City,” a retirement community, purchasing 20,000 acres of farmland several
miles north of Spur. 1960-1962 Spur expands from 35 to 114 acres, roughly tripling cattle fed.
1960 to 1967 Webb builds and sells houses, expanding southward towards Spur.
 Ct finds Spur to be a nuisance. (Under a public health ordinance declaring conditions conducive
to breeding pests to be a nuisance.) Spur grew while Webb was spreading south. Even if Spur had
been there first should this give it what is in effect a right to block development in its
neighborhood.
 Webb gets his injunction but is required to pay damages to Spur for its loss from injunction. Here
party who gets injunction is required to buy out nuisance at a ct assessed price (aka damages). An
argument is that it protects people who bought homes from Webb while casting loss on Webb
who profited at feed lot’s expense by buying up agricultural land cheap and developing it.
Perhaps ct could have achieved same result by denying injunction, if one assumes Webb would
then have been forced to buy out plant. Not clear why ct should step in here and set price. Perhaps
worry that Webb would walk away from situation, leaving homeowners exposed to feed lot.

Airspace
 Cases
o Alleghany Airlines, p. 150
 Someone who lives near an airport who is disturbed by frequent over flights will not get an
injunction. Obvious economic explanation for why prop. right to airspace above land gives way
 here. Landowner may have claim from damages on nuisance theory. Goal of system is to
compensate landowners who predictably bear greatest burden. Rule can be described both as a
privilege rule & as a liability rule. Air carriers have privilege to fly over property except for
landowners who have a right to recover under liability rule.
 Shows that a liability rule may take form of strict liability, negligence liability, or some other rule
qualifying liability on quality of A’s conduct and/or V’s harm in x. Standard of liability for
nuisance is somewhere between strict liability and negligence. Shows flip-side of qualified
liability rule is a privilege rule allowing A to harm V so long as A does not violate relevant
standard of conduct. Negligence law bestows a privilege to harm others so long as one’s conduct
is reasonable. Right to an injunction may be qualified based on quality of A’s conduct and/or V’s
harm in x. Property rights are not always strictly enforced.
o Murphy v. Bolger, p. 148,
 D’s overhanging roof encroached on P’s property. If D knew or had reason to know roof
encroached over P’s land, then it is almost certain P will get an injunction to require D to remove
overhanging bit. P will get an injunction even if it cannot prove actual harm. People who want to
build over their neighbor’s property should buy right. Example of a property rule.

Air & Light

 Traditional common law rules allocating entitlements for specific conflicts
o Ex: Blocking sunlight & diversion of surface water).
o Immediate Q is whether traditional rules should give way, & if so what rule should take their place.
o More general Q: Choice between rules & standards.
 Ideally rules provide clear & predictable answers about who has a legal entitlement once 1
knows facts. Standards give decision-makers discretion at point of Appl. speeding limit’s a rule.
Negligence is a standard. cases also raise institutional Qs about appropriate allocation of power
between cts & other institutions (administrative agencies & legislatures) & within a ct between
judge & jury.
 Cases
o Fontainebleau Hotel Corp., p. 157
 Height & location of 14-story addition to Fontainbleau blocks afternoon sunlight to Eden Roc’s
cabana, pool, & sunbathing area. Fontainbleau could have altered design of addition at minimal
cost to itself & avoided blocking Eden Roc’s sunlight. Trial ct granted preliminary injunction
relying on a general maxim a person doesn’t have a right to use his prop. to injure another. ct of
appeals reverses. maxim either is over-broad—often a person may use his prop. in a way that
harms another—or it’s a truism if injury is defined as infringing on a legal right. ct of appeals
turns issue of rights around & reasons that a prop. owner has no right to unobstructed sunlight.
notes that English doctrine of ancient lights, which recognizes an easement to light & air in
limited situations, has never been adopted in US. upshot is that an obstruction of sunlight can
never constitute a nuisance. means that if a landowner wants to protect sunlight he needs to
acquire an easement.
o Prah v. Maretti, p. 162
 Prah constructs a home w/ solar cells on roof near prop. line. Maretti buys adjoining prop. &
plans to construct home near his prop. line that will cast shadow on Prah’s solar cells. I gather
either Prah or Maretti could have avoided problem at little burden to themselves by building
further from prop. line. trial ct denies Prah’s request for an injunction. b4 trial but after trial ct
has been fully briefed & even visited site.
 Wisconsin SC reverses. J. Abrahamson reverses traditional rule that obstructing cannot constitute
a nuisance, justifying this by changing social conditions, particularly denser land use &
emergence of solar power. Suggests that trial ct must apply a general standard of reasonableness
on remand. not clear what this means in context. Bc this is a new Appl. of doctrine of nuisance
there is no precedent on when & why obstructing sunlight is a nuisance.
 Not clear whether Prah limited to interference w/ solar power or if obstructing sunlight to a
greenhouse or pool may be actionable as nuisance. Abrahamson’s decision can be read as
abolishing per se common law rule & as throwing all claims involving sunlight obstruction into
general law of nuisance. Or case can be read be read more narrowly. Emphasizes value of solar
power in justifying Appl. of nuisance. & dstngshes recreational uses of land. take away point is
 that Prah makes law uncertain both in parties’ rights in this & similar cases & in whether
traditional rule still governs other sunlight obstruction cases.

Water runoff
 Westland Skating Center v. Gus Machado Buick.
o WSC is built. large sloping roof increases water off on car dealership below, causing flooding where it
hadn’t occurred b4. Dealership (Seipp) builds a retaining wall, causing water to pool on WSC &
significant flooding. WSC sues to have wall removed. Also takes self-help, knocking a hole in wall to
drain water. Dealership counter-claims. While lawsuit’s pending, WSC closes. Machado buys dealership.
parties work together to solve problem going forward. Seipp drops it counter-claims in return for WSC
dropping its claim for punitive dmgs. only remaining claim is by WSC for dmgs for flooding caused by
retaining wall. important procedurally for it means case goes to jury. trial judge’s jury instruction is
reproduced at end of opinion.
o Under common law “common enemy” rule described at p. 169 dealership would win. Have a privilege to
do whatever you want to protect yourself from water even if it diverts water to your neighbor’s prop.
Under civil law rule described at p. 169, what dealership did was wrong for it’s diverting natural flow of
water. Not clear that what WSC did was permissible. If it wasn’t permissible, then query whether
dealership could redivert water as a form of self-help.
o WSC’s legal position is unclear under civil law rule bc uphill landowner has an easement on downhill
prop. only if flow of water is natural flow. construction of rink no doubt increased amount of water shed
on dealership bc of additional impervious cover. Query whether this is a change in natural flow. If water
was rechanneled & redirected it clearly would be a change in natural flow. Trial ct took position that
WSC was acting within its rights (and therefore flow was natural?) if its improvements where within
building code & regulations.
o Florida SC rejects this position & adopts rule making liability for water diversion turn on
“reasonableness” of both activities. Q of reasonableness is partly an allocative one: what is cheapest &
safest way, all things considered, to handle run off as between these 2 properties (and perhaps other
potentially affected properties)?

“Fee simple” & alienability

 Interpretation & construction of real estate conveyances typically is treated as an issue for ct (not a jury) & often
resolved by established rules of interpretation & construction. In principle rules of interpretation attempt to get at
a grantor’s actual intent while rules of construction bend meaning to serve other purposes, such as making land
alienable & avoiding forfeiture.
 A grant of land for a limited use (such as a railroad) is presumed to be a grant of easement (that terminates w/ use)
rather than a grant of fee (either conditional or unconditional).
 Limitations on use of land are presumed to be covenants (default gives rise to a claim for dmgs or an injunction)
& not conditions (default forfeits land). Avoids forfeiture of land on violation of limitation. & often conditions are
construed narrowly. Thus cited case holds a condition reqing grantee “to erect & maintain a high school” is
satisfied if a high school is built & used.
 Cases
o Johnson v. Whiton, p. 185
 Royal Whiton bequests “to my granddaughter, Sarah A. Whiton, & her heirs on her father’s side,
1/3rd of all my estate .” Q is whether Sarah has fee simple absolute in land passed by bequest.
unconditional ownership forever w/ power to pass land to others. potential buyer Qs whether
Sarah has this power to get out of a contract to buy & recover his deposit.
 Bequest is to Sarah “and her heirs on her father’s side.” This is not same thing as Sarah’s
descendents. Technically an heir is someone who succeeds to an estate in case of intestacy. rules
of intestacy determine inheritance of an estate in absence of a legally effective bequest.
 Intestacy Statutes determine who takes prop. when someone dies intestate. typical scheme looks
like following. If no on is qualified to take on step 1), then you go to step 2), & so on. statute will
specify how prop. is divided if multiple people are qualified to take on applicable step. lower
steps are fairly remote from decedent.
 1) Surviving spouse & surviving children.
 2) If there is no spouse, then children & their descendants.
 3) If no children or their descendants, then parents.
  4) If parents are dead, then their descendants (i.e. siblings of deceased & their
descendants).
 5) If no living descendants of parents, then living descendants of grand-parents.
 6) If no living descendants of grand-parents, then living descendants of great-grand
parents.
 Royal’s bequest literally interpreted prevents Sarah from conveying prop. to people on this list
who also are his descendents. Thus if Sarah’s marries prop. could not pass to her husband on step
1). & if Sarah dies without children & her siblings are dead & have no living children, then prop.
could not pass to descendents of Royal’s siblings on step 5).
 Case holds Sarah got fee simple absolute. Holmes describes alternative as some sort of defeasible
(i.e., subject to a limiting condition) fee simple in which land belongs to Sarah & to anyone to
whom she may convey prop. (and subsequent transferees) so long as they are Royal’s
descendents. Holmes doesn’t consider possibility of construing this as a grant of a life estate to
Sarah & then to “her heirs on her father’s side.” Such a bequest would have been valid.
 What Royal is trying to do is to keep his land in family. would have been possible in feudal times.
Indeed it was norm. To understand feudal land law you need to picture a world in which wealth
apart from labor is mostly in land, markets are weak & currency is unreliable, sovereign or local
lord conditions right to use land on service, & individuals strongly identify w/ their family, clan,
or some other kinship group. In this world land is not thought of as a commodity that 1 buys or
sells. thought of as part of a family’s estate & as entailing service obligations to sovereign or
local lord. note on p. 187 on statute Quia Emptores (1290), gives you a taste of this. statute is an
early step towards commodification of land. made land alienable but preserves any service
obligations attendant to land. Until much later social practice remained to keep land in family.
See n. 2, p. 187. Facilitating this is ability to make a grant in “fee tail” in which possession must
pass to lineal descendents of grantee. & there was a presumption that a grant of land “to Sarah” is
a grant of a life estate to her. To give Sarah fee 1 would have to spell out “to Sarah & her heirs.”
fee tail is abolished in strict form in 1472. By late 19th century nothing resembling a fee tail is
possible. & as casebook observes presumption in favor of a life estate “has everywhere been
abrogated.”
 Holds Sarah got fee simple absolute. not based on Royal’s apparent intent. based instead on a rule
prohibiting creation of a defeasible fee w/ a limitation to “her heirs on her father’s side.” Holmes
supplies several legal grounds for this rule.
 What Royal is trying to do resembles a fee tail, which has been abolished.
 Numerus Clausus principle permitting only established interests in land (i.e., people have
to use approved categories).
 Policy against restraints on alienation.
o Epting v. Mayer, p. 188
 Mahalie bequeaths to Eula & Chloe “all real estate to have & to hold in fee simple absolute & in
case of death of either then to survivor of two, & in event by said 2 daughters should die without
issue, then to my 2 sons, J. Cornelius Epting & Quincy A. Epting & in case either or both of my
said sons should die b4 my said 2 daughters, then & in that event, children of either or both of
them . . .” Chloe is only living child of Mahalie. She apparently has no children. Eula died
unmarried & childless. Dead boys have 8 children between them. Quincy A.’s children are
litigating.
 Once Eula died Q is what sort of interest Chloe has. grant is ambiguous for in place it says Chloe
gets “fee simple absolute” but then later it says that if Chloe dies “without issue” (i.e., children)
prop. goes to dead boys’ children. Ct construes grant as being fee simple absolute based on rules
of construction described at bottom on p. 188 & top of p. 189, which favor interpreting an
ambiguous grant as being of fee simple. Rules of construction for ambiguous conveyances that
favor finding a conveyance to be unconditional fee simple, promoting unitary ownership of land
& alienability.
o Hall v. Hall, p. 189
 T.A. Hall conveys land to his wife, Betty, giving her “my Entire Rite & title to land.” He adds a
condition “should [I] die b4 my wife & leave her a widow then she shall have full control & full
power to handle or do just as she should see fit w/ [land] just so long as she lives my widow but if
she should every marry & other man than this deed becomes void to her & above described prop.
 shall fall to my children.” Betty & some of children & descendants sell land to Dixons. Other
children & their descendants object.
 The Chancery (trial ct) holds Betty received fee simple based on statutory presumption quote at
top of p. 190. ct of appeal affirmed invoking a different presumption that a granting giving an
“unlimited power of disposition” is of fee simple. Tennessee Supreme Ct reverses finding T.A.’s
intent to limit his widow’s interest to be “clear & unequivocal.” take away point is that rules of
construction for ambiguous conveyances often give cts a fair bit of discretion for a rule applies
only if ct finds grantor’s intention to be unclear.
o Peters v. East Penn Township School Dist., p. 192
 Peters conveys land to School District “To have & to hold said piece of ground, & appurtenances,
to School District aforesaid, & its assigns so long as it’s used for public school purposes.”
 Backdrop is prior cases holding:
 A mere statement of purpose of a conveyance is not construed as a limitation on fee.
 A statement of purpose coupled w/ a “reverter clause” stating who prop. goes to if it
ceases to be used for described purpose is construed as a limitation on fee.
 Specific Q: how language of condition (“so long as”) coupled w/ purpose but without reverter
clause should be construed. Ct decides language is sufficient to impose limitation on grant.
School District loses land if it no longer uses it for public school purposes.
o Mtn. Brow Lodge v. Toscano, p. 195
 Introduces rules prohibiting restraints on alienation of land & enormous qualification/exceptions
to such rules, which is that a limitation on use of prop. Effectively prevents alienation is valid.
Particularly true if land is given to charity or to government & there is a condition that land goes
back to grantor if it ceases to be used for designated charitable or governmental purpose.
 In case Toscanos deeded land to James’ fraternal lodge w/ this clause: “Said prop. is restricted for
use & benefit of 2nd party only; & in event same fails to be used by 2nd party or in event of sale
or transfer by 2nd party of all or any part of said lot, same is to revert to 1st parties’ herein, their
successors, heirs, or assigns.”
 The lodge challenges limitation on ground that it’s unlawful restraint on alienation. ct holds
language divesting lodge “in event of sale or transfer” is void. However it holds limitation on use
is a limitation on how land is used (which is ok) & not who uses land (which might be an
impermissible restraint on alienation). Dissent objects this elevates form over substance.

Spendthrift trust
 Case: Estate of Elizabeth Beck, p. 201
o An early case w/ a variation on a spendthrift trust. Mother dies & leaves part of her estate to her daughter
subject to a limitation that executor must pay it directly to daughter & cannot pay it to a creditor.
appellant is a creditor who sought an ordering compelling executor to pay him. He sued executor. ct
analogizes position of creditor to position mother would be in if she held $ that she planned to give to her
daughter. creditor could not get an order compelling mother to pay it to her. creditor has to wait until $ is
in daughter’s hand. In a spendthrift trust money is placed in trust w/ a limitation similar to that imposed
by mother on executor. estate basically is a short-lived trust. Spendthrift trusts are allowed in US
generally.
 For well-to-do families, most wealth planning done using trusts, which unifies management & control of prop in
hands of trustee & directs trustee on distribution of proceeds. Avoids problem of fragmented prop.

Life Estates
 Life estate is possessory interest in prop that terminates on life tenant’s death. Interest is alienable but not
devisable/descendible. Life tenant may only convey life estate. Cases mostly involve interpretive issues.
 Cases
o Bank of Powhattan v. Rooney, p. 198
 Rule prohibiting restraints on alienation is applied to strike down a limitation on a grant. Hugh,
father, dies in 1936. 1 of his sons, D.P. has a long-outstanding jdgmnt debt held by Laflin. Hugh
wants to leave prop. to D.P. but keep it out of hands of Laflin. Hugh does 2 things to accomplish
this end.
 Gives D.P. life estate in a farm & not fee.
 Impose a 3 year restraint on alienation.
  Laflin is not dissuaded. He executes against life estate & D.P.’s fractional interest in other prop.
passed under Hugh’s will. What will happen is that these interests will be auctioned off. Rooney’s
respond by getting a ct order stopping auction based on 3 year restraint. Kansas Supreme Ct
reverses holding restraint void.
 If fragmented interests in prop. were sold but to different people total price would be a fraction of
price of prop. if interests were not fragmented. Fragmenting ownership of prop. reduces its value
bc it creates collective action problems in management & sale. For example, life tenant is likely
to stint on caring for & developing prop. to extent benefit’s reaped by remainder holder,
particularly if this is a stranger. & there are potential hold out problems on sale. Partly for this
reason but also bc in nature of sheriff’s auctions that 1 expects that Laflin & Rooneys will be only
bidders at sheriff’s auction.
o Thompson v. Baxter, p. 208
 In Dec. 1904 O leases residential prop. to D. Rent is paid monthly. lease includes following
clause: “To have & to hold above-rented premises unto [the tenant D] his heirs, executors,
administrators, & assigns, for & during full term of while he shall wish to live in Albert Lea.”
Some time later O sells prop. to P, who takes subject to lease.
 Absent quoted clause, lease would be terminable by P either immediately or w/ 30 days/1 year
notice. Ct thinks last clause indicates this was intended to be a life estate. I am dubious. ct
attaches importance to reference to “heirs, executors, administrators, & assigns.” But 1st 3 are
nullities insofar as a life estate is concerned for it expires on holder’s death. Would be more
persuasive if lease had simply said “assigns.” ct’s interpretation gives D right to assign lease so
long as he lives in Albert Lea. 1 expects this wasn’t O’s intent. Most of cases relied upon by ct
involve gratuitous conveyances typically in a bequest. In many of these cases it’s pretty clear
grantor’s goal was to provide support for grantee for grantee’s life. Not so here or in cases cited
in note on p. 211 where rent is paid. Indeed, if there is not a term adjusting rent for inflation &
tenant lives a long time they will get quite a bargain.
o Smith v. Smith, p. 211.
 Dollie Smith’s will has following clause: “I give my home in Blytheville to my daughter, Lorene
Smith to be used by her as a home as long as she wishes, & in case she should not use it as such
as wish to sell it, then proceeds to be divided between my son, Floyd Smith, & my daughter,
Lorene Smith in equal shares.”
 P is Lorene’s brother, Floyd. If this is life estate, then remainder held by Floyd & Lorene as
residuary legatees of Dollie’s wealth. Residuary legatee takes prop. not other bequested. If a
residuary legatee is unnamed, then prop. passes through intestacy. Lorene relies on presumption
against partial intestacy in arguing grant should be treated as giving her fee. ct declines to apply
presumption & finds this was a life estate. sets stage for Floyd’s claim that Lorene’s failure to
maintain house is waste. life tenant has a duty to maintain prop. to protect remainder. Ct says
waste this is but that under local law forfeiture of a life tenant’s interest is not a remedy for waste.
remands so trial ct can come up w/ a suitable remedy. likely outcome is that prop. will be sold &
money divided between Lorene & Floyd. proceeds will not be divided evenly. Lorene will get
more bc she has life estate & ½ remainder. Floyd entitled to have his interest valued based on
what its value would be if Lorene hadn’t committed waste.

Marital estates
o Policies
o Some of rules treat marriage as an economic partnership.
o Others are designed to provide a surviving spouse w/ support and/or to protect a spouse from dissipation
of marital estate.
o Under common law dower, if husband (“H”) dies owning land in fee simple he acquired by inheritance (as well as
by any other means), then surviving wife (“W”) get as dower a life-estate in an undivided 1/3rd interest in land.
Under common law curtesy, if W dies owning land in fee simple she acquired by inheritance (as well as by any
other means), then H gets a life-estate in all of land. However, curtesy attaches only if W has a child by H.
o Dower & curtesy rights attach b4 a spouse dies. Thus if H acquires & sells land to BFP during marriage & W
doesn’t join in conveyance, then W claim dower on land in BFP’s hand. protects a surviving spouse from
dissipation of marital estate by giving survivor a claim against prop. transferred from estate without spouse’s
consent.
o Dower & curtesy apply only to wealth held in form of land. They don’t apply to financial assets or to personal
prop.
o Cases
o Melenky v. Melen, p. 222
 In 1913 Reuben conveys land to Asher so he might manage it. Asher orally promises to reconvey
to Reuben on request. In 1914 Reuben remarries. In 1918 Reuben asks Asher to reconvey land,
Asher refuses but does convey a life estate to Asher. Reuben’s wife sues Asher & Reuben seeking
a declaration that she has a dower interest in prop. She would have an interest if conveyance to
Asher had been after marriage or if Reuben had conveyed land to hold in trust for him. She would
have an interest if Reuben recovered land in 1918 from Asher in a lawsuit for breach of contract
or breach of trust. very likely that Reuben would prevail in such a suit. & she would have an
interest if Reuben had transferred land to Asher secretly shortly b4 marriage to defeat wife-to-
be’s dower interest. lower ct ruled for wife reasoning this gave Reuben sufficient equitable
interest in land in Asher’s hand for dower to attach. Cardozo says no on rather formalistic ground
that whatever interest Reuben had in land didn’t rise to level of “seizen” as required by statute.
o Couch v. Eastham, p. 224
 Takes more flexible approach. Father makes bequest of land to son w/ proviso “in event [son]
shall die leaving no lawful children surviving him, but leaving his wife my will & desire that title
to all my real estate shall pass” to my daughter. Case holds that son is “seized of an estate of
inheritance” in father’s real estate & so wife’s dower interest attaches. Gives widow dower
interest that exceeds interest father gave to his son for son’s had interest in land after he died only
if he was survived by children. Note that father could have ensured no possible dower interest by
giving his son a life estate w/ a contingent remainder to a surviving child & if not then to
daughter. life estate is not an “estate of inheritance” & so dower doesn’t attach.
o In re Kessler’s Estate, p. 227
 Discussion of when widow became “owner” of half stock she took as community prop. majority
argues that widow didn’t own stock until her husband died bc he had power to sell stock. dissent
argues she owned stock from moment it was acquired by husband & that while husband had
power to sell stock he would be acting as her agent. change in California law described in n. 1 p.
231 strengthens dissent’s view of matter for it gives each spouse power to sell (i.e., manage &
control) community prop. implicitly acting as agent for other. Bc of this feature of community
prop. system doesn’t protect a spouse from dissipation of marital assets. CA statute provides
some protection w/ respect to real prop. by making a conveyance of real prop. effective only if
both spouses execute conveyance.
o Laws
o Ohio & Connecticut statutes & Uniform Probate Code (“UPC”), pp. 224-226, illustrate different ways
dower & curtesy have been reformed & considerable variations in local law remain. All 3 eliminate
unequal treatment of husbands & wives.
 CT statute & UPC also
 Expand assets to which a surviving spouse has a claim to include financial assets &
personal prop.
 Limit claims of surviving spouse to assets owned by deceased spouse at death,
eliminating claims against persons who acquire prop. from a spouse; &
 Change what is received to cash or a fee simple interest in a share of assets rather than a
1/3 life estate in all land.
 UPC also has a formula that calibrates survivor’s share.
 Materials in book omit key feature of OH statutory scheme: Surviving spouse is given an election
to take a statutory share of deceased spouse’s estate in lieu of under a will.
 In this respect Ohio is like Connecticut. statute in book preserves dower in prop.
conveyed by deceased spouse. in addition to statutory share. Thus only Ohio protects a
spouse against dissipation of marital estate by giving a claim against persons who acquire
prop. from marital estate without spouse’s consent.
o Community prop. system has civil law origin. Found in states w/ legal systems partly rooted in French or
Spanish law (i.e., AZ, CA, LA, NM, TEX) & some other western states. core principle is that prop.
earned by spouses during marriage belongs to marital community while prop. brought to marriage or
acquired by gift or bequest during marriage is separate prop. Basically marriage is treated as an economic
 partnership in which prop. acquired during marriage is shared equally. When a spouse dies one-half of
community prop. just is survivor’s prop. much as it would be if prop. was held as tenants in common.
other half passes by will or intestacy. default rule. Rights can be varied by pre-nuptial & post-nuptial
agreements.

Concurrent estates
 Last survivor gets prop held as joint tenants unless severed, which joint tenant can do unilaterally.
o Traditionally severance was done by a conveyance of interest.
 A tenancy by entirety is a joint tenancy that cannot be unilaterally destroyed (severed).
o An interest cannot be unilaterally alienated.
o Possible in around 22 states.
o Protects even further against dissipation as well as surprise destruction of right of survivorship.
 Tenancy in Common
o Power to alienate interest
o Devisable and descendible
o Power to demand partition
 Joint Tenancy
o Traditionally requires 4 unities. destruction of any one which converts a joint tenancy into a tenancy in
common. See p. 233, middle. Title and time means joint tenants must acquire interests at same time and
by same instrument. Unity of interest means they hold identical interests. Destruction of any of 4 destroys
joint tenancy.
 Title, time, interest, and possession
o Power to alienate interest, converts it to a tenancy in common and destroys right of survivorship
o Not devisable/descendible
 Surviving joint tenant takes party
o Power to demand partition
o Property held as joint tenants doesn’t pass through probate. survivor owns property free and clear.
o Joint tenancy protects against dissipation of marital estate in case of real property but not bank or
financial accounts.
o If a bank or other financial account is held as joint tenants, then either tenant may withdraw and use
funds from account, exposing only himself to personal liability to other tenant if withdrawal is wrongful
against other tenant. Generally institution in which account is held and persons in nature of bfp’s who
receive funds without notice and for value are not liable.
o If real property is held as joint tenants, then either tenant may sell his interest in property, which converts
joint tenancy into a tenancy in common. An acquirer takes only transferor’s partial interest in property. In
principle same is true of personal property.
 Co-tenants have equal right to possess and use. If property generates income, then co-tenants share income net of
expenses based on their interest. If this isn’t done amicably it is done by an action for accounting. Acts of one
tenant harming property may constitute waste. In limited situations, restitution claim for expenses of one tenant
preserving or increasing value of property. Rules of tort law, equity, and law of restitution somewhat ameliorate
collective action problems inherent in co-ownership. Rules are quite crude. If tenants cannot cooperate, then
preferred solution is partition, which can be by sale or in kind.
 Hypos: All begin with A, B, and C as joint tenants.
o (a) A dies, devising her interest to X.
 A’s interest expires with A. B and C continue as joint tenants.
o (b) B conveys her interest to Y.
 Severs joint tenancy with respect to B so Y takes a 1/3rd interest as a tenant in common. A and C
continue as joint tenants with reciprocal rights of survivorship. Y has no right of survivorship in
A and C’s interests and they no have right in Y’s.
o (c) B conveys his interest to A.
  1/3rd A takes from B is not part of a joint tenancy vis a vis A and C’s original 1/3rd because
there is no unity of title or time with respect to 1/3rd conveyed by B to A. A and C continue as
joint tenants in other 2/3rd.
o (d) C leases her interest to Z.
 Probably destroys unity of possession. I say probably because cts have found ways to handle
leases to avoid inadvertent destruction of a joint tenancy.
o (e) A dies.
 H, her survivor, has no interest by curtesy because a joint tenancy is not estate of inheritance.
o (f) B marries C.
 Has no effect for same reason.
 Cases
o Camp v. Camp, p. 234, Riddle v. Harmon, p. 239, Allison v. Powell, p. 243—all involve bad lawyering.
Two involve some creative reasoning by cts to clean up afterwards. Nothing good can be said about
lawyering in these cases. I asked you to evaluate behavior of judges in these cases. A more general point
is that areas of law governed by highly formal rules often problems arise because of mistakes by lawyers
in helping their clients navigate rules. Systems of law with highly formal rules still leave judges with
some discretion to clean up after mistakes.
o Camp v. Camp, p. 234
 Robert (son) and Tincy (mother) have property their purchase deeded to them ―as tenants in
common with right of survivorship at common law. Robert dies, leaving a widow and six
children. He is survived by his mother. If this is a joint tenancy, then mother gets property. If it is
tenancy in common than widow and mother split property. Attorney who incompetently drafted
instrument testified that mother and son intended to create a joint tenancy. Not clear whether
Virginia SC treats this testimony as inconclusive or legally irrelevant. Ct bizarrely reasons that
instrument is unambiguous by applying a rule that strikes latter part of grant, eliminating
confusing language. Left with an instrument that is thoroughly ambiguous as a matter of fact but
unambiguous as a matter of law. While this may seem like formalism run amok note that ct
found a way to give half property to widow and her six children who perhaps had great needs. Is
a victory of form over substance if goal is accomplishing what mother and son intended. may be
opposite if goal is achieving a fair disposition of son’s estate. ct would then be seizing on
lawyer’s blunder to do what it thought fair.
o Riddle v. Harmon, p. 239
 Frances Riddle secretly destroys a joint tenancy so half of property they own as husband and
wife passes to someone else. case makes it clear that secret destruction of a joint tenancy is fine.
One suspects that Frances did not have her attorney file deed destroying joint tenancy and that
had she lived (and outlived her husband) it would have been destroyed and nothing said about it.
legal issue in case is that Frances was ill-advised by her attorney who cut corners and did not
convey Frances’ interest to a straw and then back to Frances. ct decides to overlook this
technicality. might seem a victory of substance over form for ct excuses a technicality.
o Allison v. Powell, p. 243
 Henry Allison files a partition action before he dies. Filing action does not severe joint tenancy.
Henry was negotiating a sale of his interest, which would severe joint tenancy. But letter at top of
p. 244 is short of an acceptance of buyer’s offer so ct finds there had been no sale. Henry was
terribly served by his lawyer for severance did not require going to ct. Henry could have severed
by using a straw and then brought a partition action. Ct does not save Henry from his attorney’s
blunder unlike in Riddle.

Land Conveyance

Deeds
 Statute of frauds generally requires a conveyance of an interest in land be evidenced by a writing.
o Statute applies to a gift of an interest in land as well as a sale.
o Applies to a conveyance of any interest in land, incl. a future interest & non-possessory interests such as
easements. exception for leases of a term of year or less
 o To satisfy statute of frauds generally a writing must be signed by grantor(s), have language of
conveyance, describe interest conveyed, & identify grantee.
o Multiple interests may be conveyed in a single instrument.
o Probated will satisfies statute.

Delivery
 Conveyance of an interest in land also requires delivery of a deed, meaning an instrument of conveyance.
 In purchase transaction, buyer & seller typically execute a contract of sale often w/ contingencies.
o Contract of sale (or purchase agreement) doesn’t convey legal title.
 Seller retains legal title & buyer only has a contract right. L
o Conveyance of prop. occurs at closing. Vendor delivers a deed, buyer (vendee) pays purchase price, & if
there is secured financing a security interest is conveyed to lender.
 Vendee and/or lender take title. Will want to quickly record deeds to establish title against world
(more precisely, subsequently acquired interests & many unrecorded prior interests). Ideally,
payment, conveyance, & recording occur simultaneous to protect both sides.
 Deed & purchase money are put into escrow to minimize risks of non-simultaneity.
 Cases
o Anderson v. Anderson, p. 478
 1970 Jewell (mother) executes a will leaving home to Frank (son). In 1972 Charlie (other son)
negotiates w/ Altha (Jewell’s granddaughter) about moving to Hemphill to care for Jewell in
return for home. Altha reluctant to undertake task. In 1973, Jewell conveys her home to Altha by
deed, which is mailed to Altha. Recognizing she has no real right to home, in 1975 Altha conveys
home to William (another son of Jewell) by deed. Jewell dies in 1977. Frank probates will & then
brings a lawsuit to cancel or rescind 1973 deed to Altha.
 Why 1970 will didn’t convey house to Frank? Bc will is revocable testamentary bequest. No
effect until testator dies.
 What result if Altha had sold house to a stranger for cash in 1975? If stranger didn’t have notice
of defects in Altha’s title, would take house free & clear of whatever claims Frank (or Jewell)
might have to recover it from Altha. Altha has voidable title in house bc of conveyance to her.
Note that Altha has title to house even if she doesn’t record deed.
 Stated consideration in 1973 deed is “adequate care & maintenance” of Jewell by Altha during
Jewell’s lifetime. Altha didn’t perform. If this was a condition, then Altha’s would lose prop. bc
of non-performance. But there is a presumption that this is a covenant & not a condition & a rule
that non-performance of a covenant is not grounds for reversing a conveyance of land by deed.
Rules make it possible for someone who purchases Altha’s interest in 1975 not to have to worry
that non-performance of covenant would divest purchaser of prop.
 Fact that prop is held by William, who is not a bfp, lets ct give prop to Frank. Ct applies rule
cancelling deed procured by fraud. Altha made no affirmative misstatements (the ct says she had
a duty to correct Jewell’s mistake), Jewell’s mistake wasn’t of fact but regarding Altha’s future
conduct, & Altha didn’t remain silent w/ a purpose of inducing Jewell to transfer house to her. Ct
stretched to find fraud bc it thought Jewell really wanted Frank to get prop.
o Brtek v. Cihal, p. 508
 Ct makes a debatable finding on delivery to fairly distribute a close family’s land. Brtek clan
owned 3 farms. Vclav (died 1849) & Agnes owned & lived on “the home place.” When Vclav
died he left it to Agnes & their 3 children, Jerry, Joe, & Martha. Agnes got full title from kids in
1950 & conveyed it to Jerry, who farmed place w/ Joe until Joe’s death in 1974. casebook omits
dispute over Pedersen place. Martha & Lad Cihal (her husband) live on & work farm. purchased
in their name w/ family money. part of case included in book is over Urbanek place. purchased in
1952 w/ family money. Title initially was taken in Joe’s name. At Agnes’ direction, Joe deeded
place to himself & Martha as joint tenants. Joe gave deed to Agnes, who held it w/ family papers.
After Joe’s death Agnes gave deed to Martha, who recorded it. In 1975 Martha conveyed place to
 herself & Lad as joint tenants. Jerry & Joe farmed place until Joe’s death, when Jerry carried on
by himself. Agnes died in 1982.
 Ct explains why Martha didn’t acquire a half interest in place when at Agnes’ direction, Joe
deeded place to himself & Martha as joint tenants & gave deed to Agnes to holds w/ family
papers. At p. 511 ct says delivery “is all a Q of intention of parties.” You might think this an issue
of fact on which Supreme Ct should defer to trial ct. But ct turns it into an issue of law by
applying a presumption of non-delivery when a grantor keeps possession of a deed. non-obvious.
“rules” quoted by ct on p. 511 are riddled w/ exceptions & qualifications. & there is a strong arg
that Joe didn’t keep possession of deed when he handed it to Agnes, who held family papers for
family. absence of delivery means that Martha doesn’t even have voidable title in land. partly
justifies presumptions of delivery when grantee is given a deed or when deed is registered for this
cloaks grantee w/ what a 3rd party will think is legal power to convey. You might wonder why
Martha’s recording of deed once Agnes gave it to her didn’t constitute delivery. simple answer is
that Joe was dead at this point.
 Ct makes much of fact that Martha understood she wasn’t going to get prop. until Joe died. But
this is consistent w/ interest she received, which was a joint tenant. In places ct suggests Agnes
controlled prop. dispositions within family. If this is true, then Agnes’s handing deed to Martha
should be delivery. 1 suspects ct is stretching bc effect of vitiating joint tenancy is that Martha &
Jerry split 3rd farm while each take 1 farm outright.
o In these cases, formal rules cut poorly bc people arrange legal affairs w/out seeking legal assistance.

Deed Covenants
 The standard covenants (warranties) in a “general warranty” deed define extent of vendor’s duty to deliver good
title. covenants need not be spelled out.
o Wash. Stat. § 64.04.030, p. 483, provides that a deed stating “conveys & warrants” implies 6 standard
warranties.
 Vendor may add or subtract warranties by giving a “special warranty deed.” More accurately described as
“limited warranty deed.”
o Ex: Vendor limiting its warranty to encumbrances it created
o Wash. Stat. § 64.04.040 provide a deed stating a vendor “bargains, sells, & conveys” warrants prop. is
“free from encumbrances, done or suffered from grantor.”
 Vendor may disclaim these duties by giving a “quitclaim deed.”
 The vendor’s warranties are [a weak] part of our system of title assurance.
 Covenants
o 3 present
 Covenant of seisin
 Warrants grantor possesses estate he purports to convey & has power to convey it.
 Covenant of right to convey
 Warrants grantor possesses estate he purports to convey & has power to convey it.
 Covenant against encumbrances
 Warrants no servitudes, liens, etc
 Breach generally occurs at time of conveyance & statute of limitation generally runs from that
time.
 Covenants of title not of quality
 If toxic wastes are buried on prop. it’s not a breach of any covenants even though it
makes prop. worthless.
o 3 future
 Covenant of quiet enjoyment
 Protects grantee from later dispossession or eviction by grantor or by a paramount claim
existing at time of grant.
 Covenant of general warranty
 Protects grantee from later dispossession or eviction by grantor or by a paramount claim
existing at time of grant.
  Covenant for further assurances
 Warrants grantor will do what he can to make grantee’s title good, such as execute a
document or make.
 Breach generally occurs when grantee is dispossessed or evicted.
 Hypo:
o If A conveys an interest in Blackacre to T & A later conveys fee simple in Blackacre to B who in turn
conveys fee to C, T’s interest is good against C though C is a bona fide purchaser (i.e., C paid for prop.
ignorant of T’s interest). C will have to look to covenants in deeds from B & A to be compensated for his
loss.
 Cases
o Deason v. Finley, p. 490
 Finley conveys to W Robertson, who conveys to E Robertson, who is succeeded in possession by
Moore, who conveys to Deason. Deason tries to sue Finley for breach of a deed covenant.
Generally a grantee may sue an upstream grantor for breach of a future covenant & in many states
for breach of a present covenant so long as they are connected by a chain of title. But Deason’s
inability to produce conveyance from E Robertson to Moore breaks chain & prevents Deason
from reaching Finley. ct observes that while a conveyance from E Robertson to Moore might be
inferred from Moore’s peaceful succession privity of title may not be inferred in this way.
 Indicative of way title works in principle. rightful owner of land ought in principle to be able to
trace title back in time & be able to show actual deeds conveying title bc all should be registered.
missing deed breaks link. problem in home foreclosures today. use of term privity is a bit
unusual. Generally privity means 2 parties stand are in a contractual relationship. Privity of title
refers to multiple parties connected through a chain of deeds.
o Proffitt v. Isley, p. 491.
 Profitts convey a mortgage on prop., which they later convey to Atkinson in 1974, who conveys it
to Carter in 1978, who conveys prop. to Isley in 1980. While mortgage violates present covenant
against encumbrances ct holds that under Arkansas law Isley may only sue Carter for violation of
a present covenant & that he may not sue upstream grantors. & Isley will recover only nominal
dmgs from Carter bc mortgagee has made no effort to enforce mortgage. While Isley can use
upstream grantors under future covenants there has been no dispossession. To recover law forces
Isley to find mortgagee & pay whatever is reasonably necessary to settle outstanding claim.
would establish dmgs in suit against Carter. & there is authority that paying off claim constitutes
constructive dispossession, which would let Isley recover from upstream grantors. logic of this is
settling claim provides a definite measure of harm to Isley from cloud on his title & settling claim
clears title going forward. If Isley cannot find mortgagee or he waits, then he will be able to
recover only & if mortgagee presents claim. statute of limitations may run on present covenants
in mean time. If Isely defends against mortgagee’s claim & prevails, then he won’t recover his
legal expenses bc existence of an invalid claim is not a violation of covenants. Title insurance
does cover cost of defending claims that prove to be invalid.
o St. Paul Title Ins. Corp. v. Owen, p. 493
 Albert makes a gift of land he doesn’t actually own to James & Cheryl, who make a gift of it to
Dennis, who gives a mortgage 1st to UCM & then to GECC. Albert defaulted on note. When
GECC tried to foreclose title problems were discovered. suit by St. Paul, GECC’s title insurer, as
subrogee. subrogee takes over a legal claim after satisfying loss suffered by primary claimant. ct
holds GECC cannot recover from James & Cheryl by construing statutory warranty deed as a
special warranty deed. Albert gave a general warranty deed. But ct holds GECC cannot recover
from Albert by applying a rule limiting dmgs to consideration received by grantor on conveyance.
was a gratuitous conveyance so this means no dmgs. Seems that this cap doesn’t apply to legal
fees for ct finds an alternative basis to deny legal fees, which a rule denying fees when claimant
instigated litigation in which fees were incurred. So GECC is left holding bag.

Mortgages
 Creditor obtains several benefits by taking, & properly recording, mortgage or lien on prop. include:
o Priority over other creditors of debtor in collecting against underlying prop. In bankruptcy, creditors w/ a
security in an asset get paid 1st out of proceeds on sale of asset based on their order of priority. Unsecured
creditors get paid w/ what is left.
 o Claim on prop=good against world (later acquired interests).
o Power to proceed against prop coerces debtor to repay if prop is worth more than debt (cf. hostage
taking). ties into problem of forfeiture & various ways law protects debtors from oppression by creditors.
 Often mortgages & secured interests provided by an owner of prop. as a security for a loan. Liens can result from
attachment, jdgmnt, nonpayment of taxes or other public obligations, & nonpayment for work on prop.
 Hypo
o L (mortgagee) lends B (mortgagor) $80,000 to purchase prop. worth $100,000. If this was done around
1500, then in return, B would transfer fee simple to L w/ a condition subsequent that if B pays debt on
time prop. reverts back to B. mortgage gives L option to accelerate entire amount due should B default on
any payment of principle & interest. B defaults. At time $45,000 is owed & prop. is worth $90,000. If L
were allowed to take prop., then it would get a windfall of $45,000 at B’s expense. classic example of
forfeiture. While law cts would enforce condition & leave prop. in L’s hands Chancellor (equity) stepped
in to protect B by giving him an “equity of redemption.” This gives B right to redeem prop. by curing
default (paying principle, interest, & expenses). People in L’s situation responded by asking a ct of equity
to foreclose on equity of redemption. foreclosure sale developed. ct would direct prop. be sold at auction.
proceeds would go to L to payoff debt & then exceeds proceeds would go to B. If proceeds were not
sufficient, then there would be a deficiency jdgmnt against B unless mortgage was non-recourse.
 Cases
o Seaman v. Seaman, p. 522
 Sometime between 1962 & 1964 Malcom assigns (conveys) a remainder he holds in land to Earle
$4,500 loan, payable in 5 years plus 5% interest. In 1971 Earle records assignment & note. after
Malcom pays nothing on note for 7+ years. In 1973 Malcom promises to pay $50 per month. He
eventually pays $900. But Malcom still remains woefully deficient in paying note when life
tenant dies in 1982. At this point, Malcom found a buyer a lender willing to front him money to
repay note plus interest to recover prop from Earle.
 Holds that whatever conveyance may have been called by parties it was in effect a mortgage &
thus Malcom has an “equity of redemption,” meaning that he can recover prop. if he pays debt
plus interest. What Earle should have done was to foreclose in 1971. not clear whether Earle have
avoided having to go through foreclosure by having Malcom sell him prop. in 1962 for $4,500 &
then given Malcom an option to repurchase in 5 years for $5,743 (which is $4,500 plus 5 percent
interest, accumulated & compounded). principle that an arrangement that is substantively
mortgage will be treated as such no matter whatever formal arrangement stated by ct may be
strong enough to reach this case.

Recording Acts
o Recording statute reverses “1st in time, 1st in right” rule to protect bfp from a claim by a prior grantee who fails
to record their grant.
o Recording statute only applies to an interest holder who obtains his interest by “conveyance” or deed. doesn’t
apply to a person who obtains his interest by descent or devise (i.e., will), by expiration of a prior estate, or by
judicial decree. records are maintained elsewhere.
o Types
o Notice
 Around half states.
 Unrecorded interest is subordinate to later interest acquired by a BFP. IA Stat. p. 529. TX.
 Rationale:
 only failure by 1st grantee to record caused any harm
 someone who gives value for prop. knowing of a prior inconsistent conveyance was well
situated to avoid loss (indeed they may well have been acting opportunistically)
o Race-Notice
 Other half.
 Unrecorded interest subordinate to later interest acquired by BFP if BFP records 1st. WA, IN
 Rationale:
  when both parties fail to record they are equally at fault & so tie is broken by asking who
recorded 1st.
 someone who gives value for prop. knowing of a prior inconsistent conveyance was well
situated to avoid loss (indeed they may well have been acting opportunistically)
o Race
 2 or 3 states
 Interest must be recorded to be enforceable against a BFP. See NC, DE statute.
 Rationale: administrative simplicity.
o Hypo
o O sells & conveys Blackacre to A who doesn’t record. Later O sells & conveys Blackacre to B who
doesn’t know of prior conveyance & who does record. A’s claim against B to quiet title fails under any
recording statute. rationale is same as rationale for protecting a buyer who purchases a chattel from a
wrongdoer w/ voidable title. As between A & B loss from O’s misdealing should be borne by A for A
could have avoided 2nd sale to B by prompt recording.
 Recording statute only precludes A from asserting his title against B (and its successors in
interest). may assert his title against rest of world until title is quieted by B. Only B has been
harmed by A’s failure to record. & A does have title from O.
o Problems p. 530-531.
 (a) Under common law 1st in time rule A wins. Under a notice rule C wins. Under a race notice &
race rule A wins.
 (b) C wins under every rule. Under a notice rule while B would beat A, C beats B bc B fails to
record & C’s conveyance is later in time. 1 way to think about it’s that B’s failure to record gives
A something like voidable title. Another way is that B’s failure to record induced C to believe A
had good title. explanation under a race-notice & race rule is that since no one records statute
cannot be satisfied by anyone & so common law rule applies. has title as 1st in time that it
conveys to C.
o Cases
o 1st Trust & Sav. Bank v. Guthridge, p. 88
 Parallel recording system for security interests (liens) in personal prop. lender lost its security
interest in that case bc it recorded an interest in fixtures in wrong place. Other than security
interests there is no recording system for most chattels. But UCC 2-403, p. 73, performs a similar
function. defines when possession of a chattel gives someone without true title power to convey
title to a bfp. You suggested several reasons for different rules on land & chattels. Land is more
valuable. Possession of chattels typically signals ownership. Not so w/ land particularly w/
regards to non-possessory or fragmented interests in land. Note recording is provided for security
interests in chattels, which are non-possessory. Relatedly, interest in land acquired by adverse
possession is not subject to recording statute. reqs that possession be open & obvious put world
on notice of an adverse possessor’s interest.

Indexes
o In most American states, in theory, title must be ascertained by working back through chain of title using grantor
& grantee indexes.
o In reality, title companies & title insurers have created proprietary databases, called title plats, to make relevant
info more accessible & reliable. In many places grantor & grantee indexes can now be searched on-line. In
Alameda County, you can go back to 1969.
o Some states use a tract index.
o Hypo
o Assume A wants to acquire Blackacre from B in 2010. looks in grantee index to find from whom & when
B acquired Blackacre. He finds a conveyance from C to B on May 1, 1987. then looks in grantor index
from May 1, 1987, to time of purchase to see if B conveyed an interest in Blackacre during period he had
record title. also has to continue to look in grantee index to find from whom & when C acquired
Blackacre. He finds a conveyance from D to C on August 30, 1982. then looks in grantor index to see
whether there was any conveyance by C of an interest in Blackacre from September August 30, 1982, to
May 1, 1987. & so on.
Bona fide purchases
o Purchaser=gives value. Need not be equivalent value or even much value.
o “Every conveyance not recorded is void as against any subsequent purchaser or mortgagee in g-faith.” WA p. 529
o Who should bear loss when an apparent owner of prop makes conflicting conveyances?
o Person who acquires their interest 1st in time prevails if they do everything law demands of them to
secure title against later acquired interests by recording their title.
o If person who acquires their interest 1st in time falls short of what law requires, then they will bear loss
unless person who acquired later interest has actual knowledge of prior interest or has a sufficient signal
of prior interest that law faults them for not investigating further when investigation would have revealed
prior interest.
o Cases show that signal may be found in or outside title record & that investigation may be done within
title record or may require going outside title record.
o Forged deed cannot convey title even though downstream purchasers have no way of determining deed was a
forgery. On other hand, a deed procured by fraud is effective to convey title to a bfp.
o Hypo:
o O gives a mortgage to A, who properly records, & then O conveys land to B. B takes subject to A’s
mortgage under common law 1st in time rule. statute doesn’t change this result bc it applies only if a prior
conveyance is not recorded. result could be explained without saying B had notice (and so didn’t act in g-
faith) under statute for statute overrides common law rule only if a vendee doesn’t record.
 In re Ryan, p. 537, & in In re Barnacle, p. 539 (and there by words of statute itself) recording is
said to give A priority over B bc it gives “record notice” or “constructive notice” to B & so
precludes B from satisfying req of purchasing in “g-faith.” Whether A wins bc he recorded (and
so statute doesn’t apply) or bc B had notice doesn’t make a difference to outcome.
o (1) O gives mortgage on land to A to secure loan. doesn’t record. O makes gift of land to B, who does
record.
 B takes subject to A’s mortgage under common law 1st in time rule. statute doesn’t override
common law rule bc B is not a “purchaser or mortgagee.” explanation is that while A may have
misled B by not recording B wasn’t harmed as a result so A is forgiven his failure to record.
o (2) O makes a gift of an easement to A, who doesn’t record. O makes gift of land to B who does record
 Takes priority. explanation is that neither A nor B have given value (i.e., will suffer a loss if
divested) so there is no reason to favor 1 over other. We might flip a coin. Instead we fall back on
common law 1st in time rule.
o (3) O conveys to A, donee. records. O conveys to B for value. B records.
 Prevails here bc he records. Once A records prop. is his & he’s protected even against a later
purchaser.
o Problem 3(c), p. 552.
 O contracts to convey to A for $. doesn’t record contract but goes into possession. O gives
mortgage to M as security for loan. M records. O conveys to A in return for cancelling O’s pre-
existing debt to A. records. takes free of M’s mortgage. explanation is that M is not a bona fide
purchaser. While M gave value A’s possession of prop. should put M on notice that A has an
interest in prop. Inquiry would reveal A has a contract to purchase.
 While a purchase agreement is not a conveyance of land it does give purchaser an equitable
interest in land (literally & figuratively). wary purchaser will record purchase agreement to
protect interest from later acquired interests in land. Under lis pendens statutes mere act of filing
a lawsuit claiming an interest in prop. doesn’t put world on constructive notice of pending claim.
Recording a lis pendens notice does. If lawsuit’s successful, then interest acquired in lawsuit will
take priority over interests acquired after notice was filed.
o O conveys mortgage to A to secure note given for loan. doesn’t record. O conveys fee to B in return for $.
B records.
 B takes title free of A’s mortgage as a bfp. B can convey good title to C even if C knows of A’s
unrecorded mortgage. B’s title as bfp wouldn’t be worth much if B didn’t have power to convey
good title without regard to whether vendee had notice. If rule were otherwise A could tie up
prop. by giving prospective buyers notice of his prior unrecorded interest. But there is an
exception to rule that prevents B from conveying prop. back to O to give O good title. exception
 covers prior owner’s of bfp’s interests who were not bfp’s themselves. exception prevents an
owner w/ notice from cleansing title by passing prop. through hands of a bfp.
o Problem 2(c), p. 530. Assume following conveyances:
 1990 X to O (fee). 1995 O to A (lien). 2001 O to B (fee), who hasn’tice of lien. B immediately
records. 2003 A records O to A (the 1995 lien). 2005 B to C (fee). C immediately records
 C takes free of A’s lien bc not in C’s chain of title if grantor-grantee index system is used to
determine title. To understand why you need to reconstruct C’s search of indexes. Looking at
grantee index to determine from whom & when B acquired prop., C will determine B acquired
from O in 2001. Going further back in grantee index, C will determine that O acquired from X in
1990. C will look in grantor index for conveyances by B from 2001 to 2005 & conveyances by O
from 1990 to 2001, which is period each had title according to grantee index. 1995 conveyance of
a lien by O to A will be under O’s name in 2003 grantor index. C is not expected to look for
conveyances by O in grantor-index after 2001.
 Rather than recording in lien in 2003, should have filed a lawsuit seeking a declaratory jdgmnt
that B holds prop. subject to A’s lien. To protect himself while lawsuit’s pending A should file a
notice lis pendens.
o Problem 3, CB 554
 O conveys ½ of Blackacre to A subject to a restriction prop. be used only for residential purposes.
records deed. O dies & other ½ of Blackacre passes to H. H conveys to B for $ without a
restrictive covenant. B records.
 1) Did O impose restriction on retained parcel when he conveyed to A subject to restriction?
 Yes if conveyance clearly said restriction applied to O’s retained parcel. If it didn’t
answer probably is no unless facts & circumstances indicate O led A to reasonably
believe O’s parcel was burdened.
 2) Is restriction within B’s chain of title or does B otherwise have notice of it?
 Chain of title Q is tricky. answer turns on whether we expect someone in B’s to search
not just grants by O (i.e., prior owner) of an interests in parcel acquired by B but also
grants by O affecting adjacent or nearby parcels while O held parcel acquired by B. Even
if grant to A is not within chain of title B might be held to have inquiry notice of
restriction. depends on facts & circumstances not spelled out in problem.
o Cases
o In re Barnacle
 Whether a recorded but formally defective mortgage (it lacked a required signature by Lapides)
takes priority over a subsequent conveyance for value when vendee didn’t do a title search (it was
to a trustee in bankruptcy). Ct refuses to apply majority rule under which trustee would win
reasoning that it’s culpable neglect not to do a title search & that a search would have revealed
that Lapides had inadvertently failed to sign mortgage. Explanation of majority rule is that a
properly recorded deed takes priority not bc it gives constructive notice but rather bc party
recording has done what law demands. Improperly recorded deed doesn’t satisfy law’s demand &
so Q becomes whether subsequent purchaser of an interest should lose bc it didn’t act in g-faith.
not obvious that failure to investigate title is bad faith.
 Prior conveyance could have been discerned solely by looking in recorded documents.
o JC Penney Co. v. Giant Eagle, p. 542
 Sometimes, recorded documents may put a subsequent purchaser on notice to make inquiries
about background facts. QV-TD/JCP lease gives tenant exclusive right to sell pharmaceuticals in
a shopping center. GE leased other prop. in center & sought to sell pharmaceuticals. would be a
breach of QV-TD covenant to JCP, which is enforceable by JCP against GE even though GE is
not a party to QV-TD/JCP lease as a covenant running w/ GE’s leasehold that JCP may enforce.
But this requires that GE have had notice of covenant. memorandum of lease was recorded but it
omitted mention of exclusivity covenant. wasn’t a problem for statute allows for recording of a
“memo” of a lease & doesn’t restrict constructive notice to terms in memo. GE tries to get around
statute by arguing that it doesn’t expressly include lessees among persons who take w/
constructive notice. ct won’t bite. But note that rather than all lessees are held to have
 constructive notice under statute it limits ruling to sophisticated commercial lessees who ought to
expect that other leases in a shopping center may have exclusivity terms.
 TD/JCP lease ran until 1992. GE entered into its lease in 1977. TD/JCP lease was renewed in
1978. If terms of GE’s lease permit it to open a pharmacy (and they seem to if other GE stores in
area sell pharmaceuticals), then GE should have right to do so starting in 1992, when lease that
was 1st in time runs out. 1978 renewal is subsequent to GE’s lease & so cannot cut back on
whatever rights GE acquired in 1977. Nor it should matter that GE didn’t decide to open a
pharmacy until 1990.
o Methonen v. Stone, p. 546
 Sometimes facts on ground supply constructive notice. In 1970 Hedes subdivides land,
keeping a lot w/ well that supplies water to subdivision. recorded plat discloses well but
not service obligation. In 1974 Hedes conveys lot to Albertini, executing a water supply
agreement that is not recorded. From 1974-1976 servient lot passes from Albertini to
Oney to Ostrosky to Methonens w/ language in deeds stating “Subject to well site as
delineated on subdivision plat.” trial ct held language in deed sufficed to create a
servitude burdening Methonens’ lot for water supply. AK SC rejects this basis for finding
a servitude applying a rule that an intent to create a servitude must be clear on face of
instrument. wasn’t. problem here is lack of notice land is burdened by a servitude than
lack of intent by original parties to create a servitude. important for there is a servitude &
legal Q is whether Methonens take free of servitude bc they are a bfp. ct remands case so
trial ct can decide whether a proper investigation by Methonens would have revealed
servitude. ct adds that proper investigation in this situation means asking neighbors. Real
issue on remand likely to be whether Methonens had constructive notice that they had an
affirmative obligation to maintain well & pipes. Appears to be what they objected to.
o Geo. M. McDonald & Co. v. Johns, p. 549
 Q is whether a lender who receives a mortgage as security for an antecedent (pre-existing) debt is
treated as a purchaser who has priority over a prior unrecorded conveyance. ct answers Q in
negative while noting there is authority to contrary & that rule is otherwise in an analogous
context involving negotiable instruments.
 Lender who receives a conveyance of land in satisfaction of an antecedent debt is considered a
purchaser for lender has given up its right to be paid debt. Getting closer to line, n. 1, p. 551,
indicates that a lender who receives a note secured by a mortgage in satisfaction of an antecedent
debt will qualify as a purchaser if note received in exchange is different from note given up in
some respect, such as a lower interest rate, longer term, etc Indeed n. 1 indicates that taking a note
w/ shorter maturity may qualify as giving “value” even though this is in lender’s interest. take
away point is a lender need not give up much (or anything) when taking a mortgage to secure a
pre-existing debt for to qualify as a purchaser.
 A mortgage given as security for an antecedent debt it a border-line case between gift & purchase
bc lender will suffer a loss on loan when creditor defaults if security interest is not given effect
(and thus is like a purchaser) but this loss is not caused (or exacerbated) by failure to record
interest that is 1st in time for lender made loan not relying on having a security interest. Lenient
measure of value is it resolves doubts about whether failure to record caused harm to lender
against party who fails to record. Hair-trigger measure of what constitutes giving value makes
rule easy to administer & avoids litigation.

Torrens
 Most of rest of common law world uses Torrens System. Rather than recording conveyances title is registered.
Public register identifies who has a interest in land. Once a conveyance is register vendee is given a certificate.
Registered interests generally are unimpeachable. Public fund compensates for losses resulting from errors made
by registrar.
 No adverse possession in Torrens
 Cases
o Eliason v. Wilson, p. 562
 Title is established by Torrens system. O gives A their certificate of title to hold. forges a
conveyance from O to himself, which he presents w/ certificate of title to obtain a certificate of
 title in his name. conveys to B, bfp. Held B’s title is good against O. A’s forged conveyance
supplies good title to B, bfp, bc in a Torrens system a certificate of title embodies ownership of
land. Entrusting someone w/ a certificate is much like entrusting someone w/ a chattel for you’ve
cloaked them w/ apparent power to convey land. not clear this is a weakness in a Torrens system
for it eliminates a set of risks that we rely on title insurance to protect bfps against in a recording
system.

Title Insurance
 Title insurance is like other forms of casualty insurance (e.g., fire, theft, automobile collision) in that it protects
from loss.
o Protects from losses resulting from a defect of title that insured purchases or takes a security interest in.
Most homeowners rely on title insurance to protect themselves from title defects & not recording system
or deed warranties. Title insurance generally covers only legal defects in title & not physical defects in
prop. Title insurance also resembles liability insurance (e.g., professional liability & home owner’s
liability insurance) in that a title insurer undertakes to defend claims challenging title. duty to defend as
well as a duty to indemnify against liability claims. But unlike most forms of liability insurance a title
insurer has option to absolve itself of duty to defend by tendering policy limits. liability insurer must
settle a claim to absolve itself of duty to defend.
 Hypo: Qs on p. 570.
o a) An insured (incl. successors to named insured) is covered while they retain an interest in land &
thereafter for claims for breach of a deed warranty. See Condition 2, p. 567.
o (b) An insured is protected if a invalid deed is in chain of title. See Covered Risk 2(a)(1), p. 565.
o (c) Notify insurer upon learning of a defect. Condition 3, p. 568.
o (d) An insured may not settle without consent of insurer. See Condition 9(c), p. 569.
o (e) insurer is subrogated to claims of insured. See Condition 13, p. 569.
 Cases
o Swanson v. Safeco Title Ins. Co
 General Q: What is scope of a title insurer’s liability for a legal cloud on title that investigation &
litigation will dispel?
 In a typical case a title insurer will pay to eliminate a defect on title either by buying out
interest holder or by disproving claim through litigation. Limits on coverage, typically
purchase price of prop., leave an insured at risk for value of improvements if defect in
title causes insured to lose possession. While this may seem hard on insured it makes
sense for insured controls & best knows value of improvements. Some forms of title
insurance allow an insured who makes improvements to pay for additional coverage.
Loss in Swanson is like improvements in that it depended on special situation of insured.
Typically a prop. owner will be protected from loss by an unfounded cloud on title by
removal of cloud even if removal takes some time.
 Unfounded cloud caused Swansons to lose their prop. bc it prevented them from refinancing their
mortgage. In 1983 Swansons purchased a home from seller for $180,000, giving seller a
promissory note secured by prop. probably was a balloon note reqing payment in 1987 for in that
Swansons attempted to refinance, i.e., borrow money from a lender to pay seller’s note. They got
approval for a loan but it fell through when a $100,000 deed of trust for a mortgage on prop. that
was satisfied but never released is discovered. While given time Swansons could have cleared
this cloud on title they didn’t have time for seller foreclosed & bought prop. at a foreclosure
auction for unpaid balance on note. Nasty fellow seller. At time of foreclosure prop. is worth
$140,000 & balance of note is $108,650.
 Useful to dstngsh several losses suffered by Swanson. Lost $40,000 on prop. bc of decline in its
market price. Paid $180,000 for it & it was worth $140,000 when it was foreclosed. Lost $31,350
bc of foreclosure. was their equity in prop., i.e., its fair market value minus outstanding debt.
Revelation of title defect in 1987 caused loss of their equity. Had defect been identified in 1983
they might not have bought prop. If Swansons would not have brought any prop. in 1983 in this
event, then it would be fair to say that $40,000 loss on house was caused in fact by failure to
detect & report title defect in 1983. But even if title insurer was liable in tort for negligently
failing to detect & report deed of trust in 1983 it would not be liable for drop in value for market
loss bc this loss was unrelated to deed of trust. risk that market prices might drop is not among
 risks that made it negligent to fail to detect & report deed of trust. Appl. of doctrine of proximate
cause (or scope of liability) & risk rule. On other hand, lost equity probably is in scope of liability
for among risks that make it negligent to fail to detect & report a false cloud on title is that cloud
will be discovered & prevent Swansons from being able to sell or refinance prop. when sale or
refinancing is time sensitive.
 Ct interprets policy language covering “actual loss” to cover only diminution in fair market value
of Swanson’s prop resulting from cloud. Since it was a false cloud this would be cost of removing
cloud. At p. 573 cts says “actual loss” is ambiguous & that “an interpretation of term most
favorable to Swansons is justified.” This is ironic for ct construes actual loss in a way that is quite
unfavorable to Swansons.
 In 1980s title insurance industry rewrote standard policy to try to achieve result in Swanson. See
§ 8 on p. 569, in particular § 8(a)(ii), which limits insurers liability to “the difference between
value of Title as insured & value of Title subject to risk insured against by this policy.” most
obvious reading of this is loss measure in Swanson. Another possible reading. policy says “value
of Title” & not “fair market value of prop.” These are different things. Fair market value is
objective. Value of title need not be. On other hand, § 9, p. 569, would seem to buttress insurer’s
position that it’s not liable for loss consequent to a removable cloud on title. Section 9(a) limits
an insurer’s liability to cost of removing (curing) a cloud so long as it does so “in a reasonably
diligent manner by any method” & that if insurer does remove cloud “ it shall have fully
performed its obligations w/ respect to that matter & shall not be liable for any loss or dmg
caused to Insured.” But, again, closer reading of policy suggests an arg for Swansons. To see it
consider a variation on facts in which Swansons had a contract to sell home for $140,000 that fell
through bc of their inability to clear deed of trust from their title. loss is within covered risks,
which include “unmarketable title” defined as “Title affected by an alleged or apparent matter
that would permit a prospective purchaser or lessee of Title or lender on Title to be released from
obligation to purchase, lease, or lend if there is a contractual condition reqing delivery of
marketable title.” $31,000 loss on sale lost due to temporarily having unmarketable title is within
§ 8 for this is “the difference between value [to Swansons] of Title as insured & value of Title
subject to risk insured against by this policy.” & if 1 turns back to § 9 limitation applies only if
insurer “cures claim of Unmarketable Title, all as insured, in a reasonably diligent manner.” good
arg that failing to cure to provide marketable title so that a sale may go through is not reasonably
diligent. Returning to facts in Swanson standard policy include among protected risks loss of a
prospective loan as a result of unmarketable title.

Easements
 Easement=nonpossessory right to use land burdened by easement (called servient estate).
o Traditionally, use right was appurtenant to other land (which is called dominant estate) & right ran w/
possession of dominant estate. right of way (“ROW”) easement for a road or utilities is a familiar
example. easement “in gross” is held independent of ownership of land.
o Easements in gross were recognized in US for commercial purposes in 19th century.
 Ex: easement for a billboard & an easement for a power line.
o Some states recognize for non-commercial purposes as well.
 How to create an appurtenant easement that is intended to run w/ dominant estate
o Owner of servient estate executes & delivers a written instrument (typically a deed) conveying a right to
use servient estate to owner of dominant estate.
o Writing is necessary to satisfy statute of frauds.
o Payment (consideration) is not necessary for this is a conveyance of land, which can be done by gift.
 Most deeds have language of consideration to signify legal consequences were intended.
o Instrument should specify right is irrevocable & runs to “heirs & assigns” of dominant estate to make it
clear grant is an easement & not a license. instrument should be recorded to ensure easement is
enforceable against a bfp of dominant estate.
 Why law has stiff formal reqs for construing permission to use land as 1) irrevocable; 2) binding heirs & assigns
of owner, & 3) enforceable by heirs & assigns of grantee, particularly if right is not tied to ownership of particular
land?
o Tends to unify & un-burden legal control of land.
 Doctrines creating easements by operation of law:
 o Necessity
o implied from existing use
o prescription
 Similar to adverse possession.
 Cases
o Estate of Thomson v. Wade, p. 596.
 EJ Noble owned 2 adjoining parcels of land. “annex parcel” fronts a river & has a house. “inland
parcel” is undeveloped & fronts a public road. Noble & public cross inland parcel to access house
& river. Early in 1945 Noble conveys annex parcel. Later in 1945 Noble conveys inland parcel
reserving a right of way for himself (and his heirs & assigns) & for owner of annex parcel (and
their heirs & assigns).
 Arises in 1978 when a motel is built on annex parcel. P owns annex parcel (the motel). D owns
inland parcel. Presumably D blocked road. P responded by bringing this lawsuit to get a
declaratory jdgmnt establishing right to use road. P might also have sought an injunction but
presumably thinks D will respect right if it’s established.
 P is seeking easement based on later deed, which had express language creating an easement.
early deed didn’t. We will see other possible bases for an easement later. include prescription &
implied by existing use. Necessity won’t reach this case. case holds that notwithstanding pains
Noble went through to create an easement benefiting annex parcel in conveyance of inland parcel
his efforts were legally ineffective. reservation failed bc owner of annex parcel was a “stranger to
deed,” meaning grant wasn’t to them. not clear what purpose this rule serves. While a specific
grant to owner of annex parcel would mean holder of easement shows up in index to registry of
deeds easement will be in title records of servient estate in any event. But New York forces Nobel
to make a separate conveyance granting easement to owner of annex parcel.
 Noble’s heir (a foundation) tried to cure mistake by conveying right Noble reserved for himself &
his heirs & assigns to owner of annex parcel. didn’t work bc New York doesn’t recognize an
easement in gross for non-commercial purposes. Since easement retained by Nobel isn’t w/
respect to specific prop. it’s an easement in gross.
o Baseball Publishing Co. v. Bruton, p. 598
 Bit less pathological but still hard to get one’s mind around. In 1934, in a signed writing, D
“agrees to give” P “the exclusive right & privilege to maintain an advertising sign” on a wall of
D’s building “for a period of 1 year w/ privilege of renewal for 4 years more.” In 1937 D removes
sign. P seeks to have agreement specifically enforced.
 Trial ct found this to be an irrevocable license & decreed specific performance. Ct of Appeals
affirms but in a peculiar way. reasons this contract cannot be a “license” for it’s in nature of a
license that it’s revocable at will & that, even if it’s irrevocable, it can be enforced only by dmgs
& not by specific performance. best I can make of this is that that Ct is of mind that an
irrevocable right to use land that is enforced by an injunction is really an easement. gets to 2nd
part of opinion, which notes that while this “easement” wasn’t conveyed by a deed—which is
usual form—the law overlooks this bc, if it’s an easement, then P is entitled to get a deed from D
should he demand it. ct also notes that while this is an easement in gross that is ok in
Massachusetts (a progressive state) bc for a commercial use. case illustrates a pathology of legal
mind—a “hardening of categories”—in that ct thinks easements & licenses have intrinsically
different legal & formal characteristics. Bc this agreement has intrinsic legal characteristics of an
easement (irrevocable & enforced like a prop. right) ct stretches to imbue it w/ intrinsic formal
characteristics of an easement (conveyed like a prop. right by a deed).
o Bunn v. Offutt, p. 600
 Illustration of legal presumption that permission to use land is license & not an easement. In 1962
Wynns purchase house from Temco. purchase agreement provides “Use of apartment swimming
pool to be available to purchaser & his family.” Doesn’t appear in deed. In 1969, Bunns purchase
house from Wynns relying on oral representations from Wynns & Sonnett (the Wynns’ broker)
that use of pool went w/ house. appears apartment complex is owned by Dittmar Co. Both
Dittmar & Temco are owned by Offutt. Sonnett has acted as sales agent for both companies.
 Sonnett & Wynns representations in 1969 cannot bind appellees (Dittman, Temco, & Offutt) bc
they don’t have actual or apparent authority to bind appellees. So Bunns must ground their right
on 1962 purchase agreement. They cannot bc of presumption that permission to use land is
 personal license & not easement. Note presumption applies even thought Wynns were told they
had an irrevocable right that would belong to future owners of their house. Given ct’s reasoning,
Bunn’s would have lost even if language in 1962 purchase agreement had been in 1962 deed. & it
probably is case that Wynns right to use pool was revocable for it wasn’t expressly made
irrevocable, though this is a closer Q. Basically promise had none of trappings of easement.
o Hypo: Note 1 p. 602
 Deed of a long 100 ft. strip of land “to XYZ RR Co., its successors & assigns forever, for purpose
of constructing a railroad thereon. . . to have, hold, & enjoy lands above conveyed & right to use
said land for any & all uses & purposes connected w/ construction, preservation, occupation, &
enjoyment of said railroad.” RR took pains to make it clear this wasn’t a mere license. Less clear
is whether it’s an easement, defeasible fee simple, or fee simple. pretty clear this is not a
defeasible fee simple bc neither express language of condition nor express language of reversion
if land is not used for RR purposes. If it treated as an easement then unfettered control of land
reverts to grantor if it ceases to be used for RR purposes. If it’s treated as fee simple absolute,
then RR has unfettered power to do what it wants w/ land.

Easements by necessity
o Easement arises by necessity when an owner divides land creating a parcel that would be inaccessible without an
easement over owner’s surrounding land.
o Cts vary on standard of necessity.
o Cases
o Kingsley v. Gouldsborough Land, p. 604
 Requires strict necessity & refuses to imply an easement for land access to prop that can be
reached by sea.
o Morrell v. Rice, note 1 p. 605
 Comes out other way, perhaps suggesting a loosening of standard or perhaps suggesting quality
of sea access is key (the tides made seas access intermittent in note case).
o Chandler Flyers, p. 605
 Backdrop is Arizona cases & a statute loosening standard of necessity. Holds that a need to get
aircraft from a flying school & aircraft retailer to a public runway is not necessity for purposes of
doctrine that would justify imposition of an easement. 1 justification for an easement by necessity
is to prevent person who controls access to land from holding up landowner. Hold up is less a
problem when need for access is unusual to P at least as a matter of fairness for person in control
can extract only value unique to P’s unusual use.
 Ariz. Stat. 12-1202(A), which provides:
 “An owner of or a person entitled to beneficial use of land which is so situated w/ respect
to land of another that it’s necessary for its proper use & enjoyment to have & maintain a
private way of necessity over, across, through, & on premises, may condemn & take
lands of another, sufficient in area for construction & maintenance of private way of
necessity.”
 The key language is “necessary for [the dominant estate’s] proper use & enjoyment.” If proper
means “appropriate,” then there is a good arg that it’s appropriate—indeed it may even be highest
& best use—to locate a flight school & airplane sales center close to an airport & runway.
Moreover, 1 can justify a relatively lenient standard of need bc effect of statute is to force
developer to sell an easement at what a ct decides is a fair price. Under common law doctrine
owner of servient estate is not compensated for an easement taken by necessity.
 AZ & MO statutes don’t require prior common ownership of burdened & servient land. No
pretense under statutes that estate taken by private eminent domain is created voluntarily &
intentionally by common owner when they divided prop. in a way that created need for easement.
o Hollars v. Church of God, p. 608
 Ct of appeals gets around a trial ct finding of “strict necessity” (the statutory req for an easement
by necessity) by interpreting statute to apply only when dominant estate doesn’t abut a public
road in any part. Northern half of P’s 40 acres abutted a public road. southern half, which was
difficult to reach bc of a ravine, didn’t.
Easement implied by use
o Elements
o Prior common ownership of dominant & servient estate
o Apparent existing & continuous use
o Reasonable necessity
o Tacit permission to use land to access a house is not tacit permission to use it for access to a newly built motel.
o Cases
o Flax v. Smith, p. 620
 Easement for water & sewer lines was implied by past usage even though cost of replacing line
wasn’t prohibitive & even though buried lines were not readily observable. You explained that a
more lenient standard is justified for an easement implied by past usage than by necessity bc
existing use may involve a sunk cost, it gives us a reason to think burden on servient estate is not
that great, & it supplies notice. discrepancy between value of easement (or cost of relocation) &
slight burden on servient estate also explains why req that a use be apparent is relaxed for buried
lines. interesting feature of case is that prop. was severed, creating need for an easement, when
Lot A was taken from owner to satisfy a tax lien. forces ct to acknowledge that actual intent to
create an easement is not essential & that much of reason for implying an easement is policy.
bears on Q whether Smith purchases Lot C free of easement as a bfp. 1 answer is no bc Smith had
notice of buried line, though this may be a bit of a fiction on facts. But if easement is created by
operation of law & not be conveyance, then it’s not subject to recording statutes. rule on a
prescriptive easement just as it’s for adverse possession.

Prescriptive Easement
o The following elements can be extracted from cases in book:
o “Open, notorious, continuous & uninterrupted use”
o W/ knowledge of owner
o Adverse or hostile (i.e., not permissive)
o For prescriptive period
o Cases
o Reed v. Piedimonte, p. 613,
 P uses driveway on adjacent prop. to access warehouse from 1943 to 1985. D acquires adjacent
prop. in 1970. ct has no difficult finding use to be “continuous & uninterrupted” though P used
driveway occasionally mostly on weekdays during work hours. recalls materials on adverse
possession. use need only be as “open, notorious, continuous & uninterrupted” as 1 would expect
of a person holding such as easement.
 Why “temporary barricades” erected by D’s predecessor in interest in 1950s & by D in 1970’s
didn’t negate “continuous & uninterrupted use” is less clear. reason stated by ct is a bit jarring,
barricades failed to do their intended job for P could easily get around them. suggests law
demands more draconian & hostile action that would prevent P from getting to & from warehouse
on driveway. CT statute offers a more peaceful alternative. Notice that a use is objected to cuts
period of continuous use as matter of law.
 Ties into most interesting feature of case, which is presumption that a use is not permissive.
important for if use is permissive then an easement cannot be established by prescription. 1 way
to explain this presumption is that in most cases in which an easement is established by
prescription party seeking easement has come to rely significantly on use while party burdened
by easement is not much harmed by use. As you noted, this is unlike rules that construe
permission to use land as a license & not as an easement if permission is ambiguous. explanation
is that often in these cases landowner seeking to deny easement is violating settled expectations
for what seems like no good reason, kind of like Smith in Flax v. Smith.
o State ex rel Haman v. Fox, p. 614
 Trial ct found lengthy public use of a private beach to be permissive though 1 expects whatever
permission given was tacit, as in Reed v. Piedimonte. at odds w/ handling of issue of
“acquiesence” in Lehigh Valley, pp. 616-617, earlier Idaho case. Confusingly, acquiescence in a
use is necessary for an easement by prescription in states in which this part of law. Permissive use
prevents an easement by prescription. Lehigh Valley says acquiescence is presumed, which is
 similar to saying non-permissive use is presumed as ct did in Reed v. Piedimonte. cts in State ex
rel Haman v. Fox ignore these presumptions & find use to be permissive & so not prescriptive.
 ID SC supplies an alternative rationale in form of a rule that public cannot acquire a
prescriptive easement. reasons stated for this rule are a bit obscure. plausible reason not-
stated is that if public wants to acquire an easement for public use it can do so by eminent
domain. Compensates owner of servient estate & it requires that decision to take be made
by elected officials. Other cts have created public rights to access to beaches & similar
“commons” using a variety of common law doctrines, incl. prescription, dedication,
custom, & public trust doctrine.
Scope of Easement
o If an easement is expressly created is terms of grant itself?
o Clear terms in grant generally control.
o Hypo
o The last Q was to set up note 3 p. 624. Dominant owner constructs & maintains a sewer line, giving
servient owner right to tap into line. If servient estate is subdivided, then does each parcel have right to
tap into line? A case for next class answers this Q yes. not bc not an exclusive right to use a private sewer
line. Rather it’s bc once owner of sewer line allows a prop. owner to tap in he has in effect granted an
easement to his tenement (the sewer line) & (one coud argue) presumption that easement is divisible if
dominant estate is divided kicks in.
o Cases
o Hayes v. Aquia Marina, p. 621
 Sometimes terms of a grant require looking at entire instrument & surrounding circumstances.
easement for a “private roadway” was interpreted to allow use of roadway for commercial
purposes.
 Reasons:
 In context private seems to refer to road not becoming a public highway.
 From beginning a commercial marina was served by road.
 Grant of easement for “roadway” doesn’t permit easement holder to install billboards along road.
Nor does it permit easement holder to run a utility line. Such uses are prohibited whether or not
Hayes can show it has harmed by use. & Hayes is entitled to an injunction even if he can’t show
use if harmful. Conduct clearly exceeding scope of an easement is treated like any other trespass.
 In absence of clear term whether use of an easement is permissible is determined by a general
rule of reasonableness. general rule of reasonableness is cosseted by a variety of situation specific
rules & presumptions. hard & fast rule that an appurtenant easement may be used only by
dominant estate. strong presumption that dominant estate may be subdivided & every parcel
benefits from an appurtenant easement.
 Marina proposes to increase boat slips from 84 to 280.
 Reasons
 Additional traffic imposes “no additional burden” on servient estate
o Isn’t true
 Expansion is reasonable use of dominant estate.
o Ignores interests of servient estate.
 Better explanation is that benefit to dominant estate of expansion outweighs burden on servient
estate. Curious resistance to candid balancing in this area.
 While burden is greater, good chance that Gnegys (owners of Marina) would be able to redevelop
prop as a water theme park using easement for access without exceeding scope of easement.
o Cushman Corp., p. 623
 Easement for a ROW to a house was held to stretch to permit use of ROW for multi-family
housing & commercial development. Even harder is Q whether Hayes would be entitled to build
a fence to protect livestock bordering 15 ft. roadway if this will make it too narrow for 2 vehicles
towing boats to pass. Note 1, p. 624, is relevant for it shows that uses of servient estate that
interfere w/ an easement are also evaluated by a standard of reasonableness. As some of you
argued, analysis may not get to this point for Hayes could argue w/ some force that an easement
for a 15 ft. roadway imposed no restrictions on his right to develop prop. outside roadway.
 Reasonableness would be an issue only for activities within 15 ft easement on this view. Others
noted that if fence was built out of spite spite fence materials could be invoked. Building on this,
someone suggested framing it as a nuisance.
 Does real estate developer who purchases Hayes’ land have right to use road to provide access to
homes in development? materials on pp. 629-630 provide authority for yes answer. They describe
presumption that easement is not exclusive & that owner of servient estate may grant parallel use
rights so long as they don’t unreasonably burden easement that was 1st in time. Answer would be
different if Q was whether an owner of servient estate may give other people permission to run
lines using telephone company’s poles or to use a private sewer. ROW cannot be exclusive bc of
its spatial character. It occupies a large slice of surface of land often dividing land.
o Ephrata School Dist. v. County of Lancaster, p. 625
 Owners of farmland grant open space easement to County stating their land “shall be restricted to
agricultural & directly associated uses.” School District proposes to build a road across farmland
to access a school. parties are seeking a directed verdict on whether building road requires
County’s consent even if County doesn’t try to make a factual showing that road would interfere
w/ objectives of restriction. Twice in opinion ct says county conceded road “would not violate its
open space easement.” Pp. 626, 630. cannot mean that road didn’t violate open space restrictions
for otherwise there would be no case. Rather it must mean that road wasn’t claimed to harm
whatever interests easement was meant to serve. At bottom case raises Q whether a restriction on
use of land can be enforced like many other prop. rights without having to show harm from
infringement of right. If owners had conveyed land to County in fee simple & retained right to
use land for agricultural uses, then answer clearly would be yes. Characterizing this as easement
makes it possible for ct to come out other way by building on principles that an easement is
presumed not to be exclusive & grant of an easement not restrict use of servient estate so long as
use doesn’t interfere w/ easement.
 State SC came out other way, & not just relying on statute. defensible when 1 looks at terms of
restriction, which are omitted in book. grant provides use of land “shall be restricted to
agricultural & directly associated uses.” “Agricultural uses” are defined as “use of land for
production of plants & animals useful to man.” “Directly associated uses” are defined as
“customary, supportive & agriculturally compatible uses of farm properties in Lancaster
County & are limited to following.” This is followed by a list that includes in addition to
obvious agricultural uses home production of arts & crafts, irrigation & conservation, &
accommodation of tourists, religious uses. list concludes “Other similar uses may be
considered upon written request to Lancaster County Agricultural Preserve Board.” pretty
clear that restriction was meant to prevent any development like road.
Real covenant
 Covenant restricts use of land or imposes an affirmative obligation on a possessor of land.
o Conservation easements are better described as covenants.
 Described as easements bc of discomfort w/ possibility of law recognizing what is in effect a
covenant in gross.
 Easements & covenants are collectively described as “servitudes.”
 Law’s traditional hostility to covenants is explained by several worries.
o A proliferation of covenants raises search costs in acquiring prop. Covenants impose perpetual
restrictions & burdens on use of prop.
o Covenants fragment control of prop.
o Prop owner may deeply discount future cost of a covenant.
o Predictable & unpredictable changes in world are likely to make a covenant undesirable.
o & private re-ordering can be costly particularly if right to enforce a covenant is fragmented or if right-
holders are difficult to identify.
o While easements present similar problems nature of easements as use rights diminish these worries
somewhat. use is more likely to be visible.
 use can expire naturally if user no longer needs use.
 In a sense use rights entail an affirmative obligation on user—use it or lose it.
  Some easements raise similar concerns, such as easements in gross, exclusive use rights, or
easements that significantly constrain use of land.
 Under traditional English law, real covenants were enforceable at law only if initial covenantor & covenantee
were in a leasehold relationship.
o Reason English law didn’t allow an action at law against successors to servient estate is that action at law
would have lain against a person without notice until enactment of Recording Act of 1925.
o Action allowed in equity bc equitable defenses apply incl. defense protecting bona fide purchaser.
o Equitable servitude available only for negative covenant that was appurtenant to dominant estate & could
be enforced only by successors to dominant estate. reqs precluded covenants in gross.
 Traditionally, under US law, Substantive reqs for an enforceable covenant:
o Intent to create a covenant that “runs w/ land,” i.e., that is binding on servient estate & enforceable by
owner of dominant estate.
o Covenant must “touch & concern land.”
o Privity of estate, both horizontal & vertical.
o To these substantive reqs are added formal reqs that apply to all conveyances of an interest in land.
 Writing to satisfy Statute of Frauds.
 Recording to enforce against subsequent purchaser without notice by other means.
 Trend to loosen or abolish substantive reqs that covenant “touch & concern land,” of privity, as well as rules
precluding affirmative covenants.
o Restatement 3rd, Servitudes goes so far as to abolish req that a covenant touch & concern land, req of
privity, & prohibition of affirmative covenants. pervasive use of covenants in planned unit development
of real estate is an important driving force.
 Cases
o Rogers v. Watson, p. 643
 1963 Watsons purchase lot from Bards w/ no restrictions on use
 1963-? Bards convey other lots in 200 acre parcel to various purchasers w/ restriction:
 “No mobile home, trailer, or other similar structure shall be placed or maintained on said
premises without prior approval in writing of grantor herein or his heirs, executors,
administrators, & assigns.”
 1977 Widow Bard conveys lot to Wilkinsons w/ this restriction
 1981 Watsons purchase part of Wilkinson lot
 1985 Watsons install trailer on land they bought for Wilkinsons from ill son-in-law & his family.
 Restriction doesn’t expressly state it binds “assigns” of Wilkinsons or other buyers from Bards.
Neither does it say it’s enforceable by purchasers of lots in 200 acre parcel. Ct construes
restriction to run w/ land, binding downstream purchasers of prop. in parcel. arg for this
construction is preserving uniformity & parity of rights across 200 acres. Ct doesn’t construe
restriction as being enforceable by all lot owners. doesn’t have to address issue bc Widow Bard
was 1 of Ps. arg for not construing benefit to run w/ each lot in 200 acres is that it would require
consent of every lot owner to vary restriction.
 Watsons take land subject to restriction in 1977 deed to Wilkinsons even though it wasn’t
contained in their 1981 deed from Wilkinsons bc Wilkinsons have no power to convey lot free of
restriction & bc Watsons have record notice of it (they may also have inquiry notice). Perhaps
Watsons have a claim for breach of deed warranties against Wilkinsons or a claim against their
title insurer (if restriction was missed).
 Watsons should be able to move trailer to lot they purchased in 1963. No restriction in their deed
& there is no evidence that Watsons knew or should have known of a common plan of restriction.
Sanborn v. McLean & Rieger v. Wessel , note p. 645, are authority for implying a reciprocal
restriction on land retained by Bards (the developers) when they subdivide a larger parcel & sell a
lot in parcel subject to a restriction. Some cts will not imply a restriction against a developer in
this situation. Unless Watsons had notice of a common plan when they bought lot in 1963 there is
no basis for implying a restriction against them. Whether a restriction might be implied against
someone who purchases lot from Watsons after common plan becomes apparent is a more
difficult Q.
o Neponsit Prop. Owner’s Ass’n, p. 646
  Classic case on req that a covenant “touch & concern” land. At issue is validity of a charge of $4
per year per lot to run for 23 years (to 1940). money is used to maintain roads, parks, & paths. a
lien upon land as well as a personal debt of owner.
 Why case is being litigated for an obligation of $4 per year when covenant expires in a few years?
Presumably Bank, which is defending in a foreclosure action, wants to establish general rule that
such covenants are invalid bc it has many such loans clouded by liens. Its mortgage is subordinate
to lien & so Bank is put in a position where it must ensure that mortgagees are paying these
obligations.
 The covenant at pp. 646-647 gives an example of sort of language 1 uses to make it clear that a
covenant is intended to run w/ land. deed provides “The heirs, successors, & assigns [of vendee]
covenants that prop. conveyed shall be subject to” charge. last paragraph reinforces by stating
“These covenants shall run w/ land & shall be construed as real covenants running w/ land. . . .”
 Sets stage for case for under New York law people aren’t free to burden land w/ whatever
covenant they want. To be valid a covenant must “touch & concern” land. P. 648 describes New
York law on validity of covenants to pay money, which follows English law. Generally these are
deemed not to “touch & concern” but there is an exception. 1 formulation of exception—it affects
legal relations of interested parties as owners of land—seems circular to me. more useful
formulation of scope of exception is in last sentence in carryover ¶ at p. 649. charge must
“increase value of a different interest in same or related land.” But, as Lehman goes on to say,
even this is not decisive for there remains a Q of degree. standard & not a rule & it’s a standard
without a clear metric for requisite increase in value.
 Charge satisfies standard in at least 2 ways. ct emphasizes that charge maintained roads &
common areas in which owner enjoyed an easement or right of use. Maintenance of common
prop. also increases value of owner’s land.
 Privity is also issue for Owner’s Ass’n doesn’t have interest in any of land burdened/benefited by
covenant. starting point is NY rule limiting enforcement of covenant to P who owns prop.
benefited by restriction. No covenants in gross. Lehman decides on pragmatic grounds that
Owner’s Ass’s can stand in shoes of owners, whom it represents & who are in privity.
o Feider v. Feider, p. 652
 At issue is enforceability of a right of 1st refusal. At bottom of p. 654 ct reasons that right of 1st
refusal doesn’t touch & concern bc it doesn’t make dominant estate more valuable & servient
estate less valuable (why a valid covenant cannot make both properties more valuable is not
apparent). While this may seem right right of 1st refusal is explained in grant as attached to
dominant estate’s easement for a ROW in servient estate. some value in being able to keep prop.
over which 1 has an easement out of hostile hands. ct in Feider might reject this as insufficient
value for it’s a Q of degree.
 Absence of privity is alternative basis for not enforcing covenant. parties wrote covenant to
establish privity for they said that right of 1st refusal was given to brother as owner of adjacent
land & holder of an easement over servient estate. ct nevertheless held there was no privity.
 Whatever you think about a req of privity it does provide an alternative basis for preventing real
estate developers from imposing a covenant entitling them (and their successors & assigns) to a
small share of gain from future sales.
 Hechts, who were buyers, could take prop. free & clear of right of 1st refusal under Recording
Act. would not be a defense for Francis for he was a party to contract granting right. Indeed,
holding that right of 1st refusal is not recognizable as a real covenant is not a defense for Francis
for he’s liable on contract he made & broke. why it was important that Washington law presumed
a right of 1st refusal was enforceable only for a reasonable time. Why Francis’ life wasn’t a
reasonable time to bind him to promise is not obvious to me.
o Nahrstadt v. Lakeside Village, p. 652
 Holds enforceable a condominium pet restriction that applies even to indoor pets. even more of a
stretch under NY standard. But California law has moved in direction of making covenants
generally enforceable so long as they are “reasonable.” majority decision in case is a paean to
private ordering in planned real development.
 Such a covenant would not survive under NY law under Washington law as it appears in Feider.
might survive under California law or Restatement 3rd.
 o Tulk v. Moxhay, CB 655
 In 1808 Moxhay conveys Leicester Square & Gardens to Elms in fee. prop. passes through
several hands to Tulk. Tulk argues he doesn’t take land subject to restriction bc it doesn’t run w/
land. He doesn’t Q that Moxhay & Elms intended restriction to run w/ land. & he concedes he
knew of restriction. His arg is that English law doesn’t recognize this sort of restriction on use of
land as a matter of prop. law. And, indeed, English law enforced real covenants against
downstream parties only in context of leases. case holds covenant is enforceable in equity (not
law) if a person acquires land w/ notice of covenant. case is starting point for law of equitable
servitudes. materials at CB 664-5 on California law give you a taste of evolution of US law. Until
1968/9 a restriction such as that in Tulk would not have been enforceable in California as a real
covenant but it would have been enforceable in equity as an equitable servitude. CCC v.
Anderson treats these as a single body of law. So does Restatement 3rd.
 Bears comparison w/ RCA Mfg. Co. v. Whiteman, p. 844. Tulk is authority that a limitation on use
of prop. imposed by a seller may be enforced against a downstream user w/ notice. Hand takes
contrary position in RCA Mfg. Co.
o Houghton v. Rizzo, CB 655
 Imposes stiff formal reqs for restrictive covenant. Developer conveys 16 of 37 lots by 13 deeds,
11 containing restriction to a single family residence. developer proposes to build a multi-family
unit on a retained parcel. clear covenant is not enforceable against 11 lot owners whose deeds
include restriction. ct holds that it’s not enforceable against developer! There are 2 doctrinal
bases. 1 is a req that an agreement to subject land to a restriction be express. restriction may not
be implied. 2nd is statute of frauds—the restriction must be in a writing that satisfies statute of
frauds. Thus in Sprague v. Kimball, p. 658, & Frank v. Viscokas, p. 659, developer was held not
to be bound to an oral representation that other land would be subject to a restrictive covenant.
 Looking at specific terms of conveyance on p. 657 suggests an alternative basis for decision. that
developer reserved “exclusive” power to enforce restrictions for itself & its assignees to whom it
expressly granted power. Developer also reserved power to waive restrictions through a clause
stating that a vendee had right to rely on a waiver. Given these terms there is a strong arg that
buyers didn’t have power to enforce restrictions. Snow v. Dam, p. 658, implies a power to enforce
as against other buyers. But this is quite different than implying a power to enforce against a
developer/grantor who expressly said there was no such power. CCC v. Anderson, p. 661,
supplies examples of sort of language 1 might use to make power to enforce a covenant in a
planned development run w/ each parcel in development. covenants are made enforceable by “the
subdividers, grantees, or assigns, or by such owners or successors in interests” in 1958 CC&R.
1977 CC&R “are declared to constitute mutual equitable covenants & servitudes for protection &
benefit of each prop. in subdivision.” I italicize key language. Generally it’s a bad idea to vest
power to enforce in every lot individually. Better to vest it in a governance association.
o CCC v. Anderson, p. 661.
 Developer records CC&R in 1958 for a 60 lot development & a CC&R in 1977 for a 4 lot
development. CC&Rs restrict lots to residential use allowing only “household pets.” D purchases
2 parcels & seek to develop a winery. They keep 7 llamas as pets. D argues they aren’t bound to
restriction bc it didn’t appear in their deeds or in any other deeds conveying lots either expressly
or by reference to CC&R. arg there wasn’t a sufficient expression of intent to subject land to
restrictions. ct holds that it’s sufficient to include restrictions in CC&R even if no reference is
made to CC&R. We didn’t engage w/ ct’s policy args, which are pretty good. As interesting is
unstated premise that what constitutes a sufficient expression doesn’t depend on social practice or
custom. ct doesn’t argue that D did or reasonably should have understood terms in CC&R applied
bc most would so understand. What is a sufficient expression of intent is treated as a Q of policy.
 Note that D acquired 2nd parcel at a foreclosure sale. They didn’t take it free of restrictions bc
liens post-date restrictions & so lien holders take subject to restrictions.
 Hypos
o Real estate developer (RED, Inc.) plans to create a planned community on a 50 acre tract w/ 100 ¼ acre
parcels & remaining land dedicated to roads, utilities, recreational facilities, parks & green space. RED,
Inc. records a plat & a document entitled “Covenants, Conditions, & Restrictions” (“CCR”) dedicating
land to roads, utilities, recreational facilities, parks & green space, & restricting remaining land to single
family residences on ¼ acre or larger lots.
  (a) RED, Inc. conveys 1st lot to A. deed references recorded plat & CCR & states that their terms
benefit & burden A’s lot. Does A have legal right to compel RED, Inc. to complete public
amenities & not to sell lots other than for single family residences?
 Yes under both CCC v. Anderson & Houghton v. Rizzo. deed to A creates covenants &
easements benefiting & enforceable by A on RI’s 49.75 acres, assuming RI didn’t reserve
power to abrogate these obligations. While this may seem a bit harsh it’s in interest of RI
to be able to commit itself to early purchasers to go through w/ project unless it’s willing
to sell early lots at a substantial discount.
 (b) RED, Inc. conveys ¼ acre lots to A & several others referencing plat & CC&R & stating
benefits & burdens run w/ lots. Later RED, Inc., conveys some residential lots by deeds that don’t
reference recorded plat & CCR & don’t state that their terms benefit & burden lot. Does A have
legal right to compel vendees to comply w/ residential restrictions?
 The answer clearly is yes under CCC v. Anderson. I also think answer pretty clearly is
yes under Hougton v. Rizzo for reason that when RI conveys later lots purchasers take
subject to whatever restrictions RI held land subject to. RI cannot convey greater title
than it has. 1 of you argued to contrary under Houghton reasoning that it required a
sufficient written expression in deed to party subject to restriction. But this doesn’t
explain why express restriction ion RI’s retained land in early deeds doesn’t satisfy this
req.
 If RI gave purchases a general warranty deed, then he’s in breach of warranty against
encumbrances, assuming purchasers didn’t have sufficient notice of encumbrances to
impliedly negate warranty.
 Does RED, Inc. have power to convey lots to later acquirers while denying them power to enforce
restrictions on other land?
 The answer is yes. RI holds power to enforce restrictions on A’s land. While typically we
would assume that people who acquire lots from RI step into its shoes, RI could say—if it
did so clearly enough—that it reserves to itself power to enforce restrictions on A’s lots.
For example, so long as RI hasn’t conveyed any other lots, it & A could execute releases
relieving each other from covenants on each other’s land.
 (c) RED, Inc. conveys several residential lots to early purchasers b4 recording plat & CCR. None
of these deeds refer to plat or CCR. Then RED, Inc. records plat & CCR as above & conveys lots
by deeds that expressly make lots run w/ benefits & burdens of plat & CCR. Assume RED, Inc.,
gives all prospective purchasers materials that make plans clear. Do early purchasers purchase
land subject to plan restrictions?
 They don’t under California law as stated in CCC v. Anderson. Particularly important are
rules that restrictions must be stated (or referred to) in deed or they must be prerecorded
in a CCR. Probably same result under Houghton v. Rizzo unless written materials are
deemed to satisfy statute of frauds & to constitute a sufficient expression of an intent to
subject land to restrictions. cases at pp. 645-646 recognizing “reciprocal negative
servitudes” would make these restrictions enforceable against early purchasers from a
common grantor (the developer) if they had notice of common plan & reason to know
their lots were subject to common plan.
 Instead RED, Inc. doesn’t give early purchasers reasonable notice that tract is being developed
pursuant to a plan. Do they take subject to plan restrictions?
 The early purchasers would not take subject to restrictions for they didn’t
apparently agree to do so.
Taking: Public Use
 State can take a person’s prop without their consent so long as it pays just compensation. & state has a great deal
of power to interfere w/ use of prop by regulation. Q often is not what is right decision but rather which institution
can best decide—a legislature, ct, & administrative agencies—and at which level—local, state, or fed. Generally
an owner will recover only market value of prop. taken. no consequential dmgs. no dmgs for emotional
disturbance. Under US takings law an owner will not even recover replacement cost if that is less than market
value of what is taken.
 U.S. Constitution, Amendment 5 states that “nor shall private prop. be taken for public use without just
compensation.” Held to implicitly preclude a taking of private prop. for other than a public use.
 In 19th century state cts applying similar state constitutional provisions often defined “public use” as “use by
public.” See p. 678. takings clause in US Constitution came to be enforced against states in 20th century. Pretty
much from start SCOTUS defined “public use” as use for a “public purpose.” Permits taking for private use &
benefit if there is sufficient public benefit.
 Cases
o Berman v. Parker (1954)
 Permits DC to condemn blighted prop. for urban development w/ mixed private & public uses.
o Hawaii Housing Authority v. MidKiff (US 1984)
 Leading case on what constitutes a public use until Kelo, Much of land is Hawaii was held under
very long term leases w/ fee in hands of a small number of landowners. Hawaii adopted a
program of seizing remainder interests & conveying them to lessees to give lessees fee simple.
MidKiff holds this is within takings power. O‟Connor, who wrote majority opinion, can fairly be
read to say that takings power is as broad as policy power, which is quite broad indeed. She backs
off from this position in dissent in Kelo.
o Kelo v. City of New London (2005), p. 676
 Closely split Ct allows a taking of homes for a mixed-used private-public development in an
effort to build a tax base & boost local economy. Stevens plurality decision for 4 Justices gives
state & local governments close to a free hand. At pp. 680-682 Stevens says economic
development is a permissible purpose for a taking. upshot is that land may be taken to transfer
from 1 person to another bc recipient will use land more productively, generating more jobs & tax
revenues. At end of Part III on p. 680 Stevens says it’s up to legislature to decide what is a
“public purpose.” In 2nd & 3rd paragraphs on p. 682 Stevens says cts should not “2nd guess”
government’s “considered jdgmnt” about efficacy of its development plan or what land it needs
to acquire to effectuate that plan. In particular, plan need only be “rationally related” to its
purpose & amount & character of land taken “rests in discretion of legislative branch.” This is
close to carte blanche for takings though 1 could cite plurality’s emphasis on fact that this was
done pursuant to a plan, w/ technocratic bells & whistles typical in urban planning, to create a
space for challenging takings that are more ad hoc & arguably impermissibly motivated.
 J. Kennedy sounds just this theme in a concurring opinion:
 “Ct applying rational-basis review under Public Use Clause should strike down taking
that, by clear showing, is intended to favor particular private party, w/ only incidental or
pretextual public benefits, just as ct applying rational-basis review under Equal Protection
Clause must strike down a government classification that is clearly intended to injure a
particular class of private parties, w/ only incidental or pretextual public justifications.”
 One objection to majority’s approach is that as a practical matter there is little or nothing left to
principle that government may not take prop. from A for sole purpose of giving it to B, which
majority embraces. See p. 678.
 J. O’Connor’s dissenting opinion attempts to walk back from Midkiff by proposing a principle
that a state may take land for non-public uses only if “precondition use of targeted prop. inflict[s]
affirmative harm on society.” Taking slum housing is ok. Taking middle class housing is not.
 Law
o CA Prop 90, which lost 52% to 48% in 2006, would have prevented a taking such as that in Kelo.
conventional wisdom is that proposition failed not for this reason but bc it would have required
government to compensate landowners whenever a regulation harmed prop.
 “Private prop. may be taken or dmgd only for a stated public use . Private prop. may not be taken
or dmgd for private use.”
 “Public use” shall have a distinct & more narrow meaning than term “public purpose”: its
limiting effect prohibits takings expected to result in transfers to nongovernmental owners on
economic development or tax revenue enhancement grounds, or for any other uses that aren’t
public in fact, even though these uses may serve otherwise legitimate public purposes.” “Public
use shall not include direct or indirect transfer of any possessory interest in prop. taken in an
eminent domain proceeding from 1 private party to another private party . . .”
o CA Prop 99, approved June 3, 2008, might appear to prevent takings in Beantown & Kelo. Here are
relevant provisions from CA Constitution, Article I. Subsections (b)-(d) were added by Proposition 99.
 (a) Private prop. may be taken or dmgd for a public use & only when just compensation,
ascertained by a jury unless waived, has 1st been paid to, or into ct for, owner. * * *
  (b) State & local governments are prohibited from acquiring by eminent domain an owner-
occupied residence for purpose of conveying it to a private person.
 (c) Subdivision (b) of this section doesn’t apply when State or local government exercises power
of eminent domain for purpose of protecting public health & safety; preventing serious, repeated
criminal activity; responding to an emergency; or remedying environmental contamination that
poses a threat to public health & safety.
 (d) Subdivision (b) of this section doesn’t apply when State or local government
exercises power of eminent domain for purpose of acquiring private prop. for a public
work or improvement.
Regulatory takings
 Rules
o Generally, ok to regulate noxious uses and to regulate when there is an “average reciprocity of
advantage.”
o Burden is measured by the extent of the diminution in the value of the property subject to the
regulation.
 Cases
o Pennsylvania Coal Co. v. Mahon, p. 688
 Switches between asking whether Kohler Act is within state’s police power & whether it
constitutes a taking. different issues. At time a state could regulate matters only if they were
within state’s police power. Holding regulation not to be within police power would mean state
could not do it at all. Holding that it’s a taking means that state may regulate coal mine
subsidence but that it must pay coal company for value of rights it has taken away. If dissent had
its way in Kelo then there would be some situations in which a state could not take control of
prop. even if state was willing to pay for what it takes. very different Qs.
 At p. 690 top Holmes says Q “cannot be disposed of by general proposition.” passage from
Kaiser Aetna at bottom of p. 701 is similar but more long-winded.
 Kohler Act didn’t “take” coal in sense of physical dispossession or invasion. At p. 690, in 2nd
paragraph of dissent, Brandeis argues this is relevant & cuts against finding a taking. Brennan
makes a similar point in Penn Central, p. 695 (top) in stating that a physical invasion is more
readily characterized as a taking. You will see in materials for next class that this has crystallized
into a hard & fast rule that a physical invasion is a taking no matter how at least if invasion is not
necessitated by pressing health & safety needs. Anyway this sets stage for discussing regulating
takings, which means regulatory restrictions on use of prop. short of physical dispossession or
invasion.
 Different Justices & cts take strikingly different views on Q whether fact that a regulation greatly
enhances social welfare is relevant & in some circumstances conclusive as to whether it’s taking
for which just compensation is required. In carryover paragraph on pp. 689-690 Holmes basically
says this is irrelevant. If need is great, then government should be happy to pay. Brandeis states
contrary position in 2nd paragraph of his dissent on p. 690, particularly if prohibited use is
noxious or a nuisance.
 State law required coal miners to leave a pillar of coal at edge of prop. they mined when there is
an adjacent mine. Both mines bear burden & benefit from this. principle was used to justify
zoning on view that use, density, & height reqs impose shared burdens & provide shared benefits
(unless you live on edge of a zone).
 Brandeis says “reciprocity of advantage” is not “essential” to a regulation not being a taking if
regulated use is sufficiently harmful (think a noxious nuisance).
o Agins v. Tiburon (see p. 697 bottom)
 Regulation is a taking if “it doesn’t substantially advance legitimate state interests.” corollary is
that a regulation is not a taking if it does substantially advance legitimate state interests. But 2
factors are stated in disjunctive, indicating a regulation might be a taking bc it denies an owner an
economically viable use of its land even if it greatly enhances social welfare.
o Keystone Bituminous
 J. Stevens opinion can be read at pp. 698-700 to take position that strength of purpose can absolve
a regulation from being a taking by itself, particularly if regulation protects health & safety &
 regulated use is a nuisance. Argues that characteristic of regulated use as a nuisance or noxious
relates to whether there is “reciprocity of advantage” bc everyone benefits from general practice
of prohibiting noxious uses & nuisances even if they don’t benefit from a specific rule prohibiting
their noxious use of land. Footnote 20 p. 700 suggests another reason why prohibiting a use that
is a nuisance is not a taking. No right to use that is nuisance & so its prohibition cannot be taking
o Lingle v. Chevron USA, p. 706
 Top, unanimous (?!) Ct says this fact is “irrelevant.” Back to Holmes’ position. Disagreement on
this point may be fundamental. If worry is that socially harmful land-use regulations will be
adopted bc minority or politically powerless bear a disproportionate share of costs, then focus
ought to be on wisdom of regulation as a matter of policy. If worry is wealth-redistribution by
land use regulation, then fact a regulation is good policy is less relevant & may be irrelevant.
 From here we turned to some hallmarks of regulations that cut against finding a taking. 1 is
“reciprocity of advantage” or “average reciprocity of advantage.”
o Miller v. Schoene (1928), pp. 693-694
 Statute reqing destruction of red cedar trees (an ornamental tree) that were infected by cedar rust
to protect apple trees from infection was held not to violate due process. no reciprocal benefit
here. Query whether harm is a satisfactory test once we understand harm to be interactive (see
Coase). & query whether nuisance is a satisfactory standard for uses that may be regulated w/ a
reciprocity of advantage.
o Pennsylvania Coal & Keystone Bituminous Coal
 Landowners had acquired land waiving their common law right to subjacent support. At p. 690
Holmes basically says they should be left bearing this risk since they agreed to bear it. Brandeis
(middle of top paragraph p. 692) & Stevens (1st full paragraph p. 699) argue to contrary that state
should not be precluded from regulating a nuisance just bc people unwisely agreed to bear risk.
strikingly different views on paternalist regulation.
 Turning to factor of diminution of value/frustration of investment-backed expectations, 2
principal cases take strikingly different approaches. key passage in Pennsylvania Coal on this is
2nd full paragraph on p. 689. Natural reading is that it’s sufficient to make out a taking that Ps
will be disabled from extracting some coal that they otherwise would have been able to extract.
 In Keystone Bituminous Stevens says P bears a “heavy burden” (p. 700 bottom) to prove that its
coal operations will be rendered “commercially impracticable.” At p. 702 middle paragraph he
says this has to be proven as a matter of fact. & he makes it clear reduced profitability is not
enough. Driving point home he reinterprets Pennsylvania Coal at pp. 703-704 to turn on fact that
P’s mine would be shut down by regulation. Brandeis’ dissent makes it pretty clear this wasn’t
proven even if it may have been claimed.
 Principal cases also differ in how they define relevant base-unit for assessing whether too
much of an interest in prop. is taken when rights in land have been fragmented or might
be. Brandeis at p. 691, 2nd paragraph, 7 lines down, takes striking position that
devaluation should be judged looking at land as a whole & ignoring fact that a
fragmented interest may have been rendered valueless. Stevens at p. 703 top takes a
similar position that may be more moderate. He says that if prop. hasn’t been fragmented
fact that a part that might be fragmented is rendered valueless doesn’t make a regulation a
taking. Think a limitation on building height if a landowner hasn’t sold air rights. At pp.
704-5 Stevens develops this point reasoning that even if P’s surface rights are treated as
an identifiable interest in prop. separate from mining rights they should be viewed
together in asking whether P has been deprived of too much of its prop. Holmes takes a
contrary position on this.

Categorical Takings
 Cases
o Loretto v. Teleprompter Manhattan CATV Corp., p. 712
 Cable box and wires imposed almost no burden on the building owner.
 Adopts a categorical rule that physical occupation of property is a taking. It is bright line rule
that makes it possible for governments to know some things are takings. The power to exclude
 others is at the core of the concept of real property.
o Note 4, p. 713
 SCOTUS says a municipal ordinance giving long-time tenants renewal rights and imposing rent
control is not a taking. Reasoning that owner of property invited tenants to be there. Query
whether a more general exception to per se rule for regulations that adjusts rights of persons
with competing interests in property.
o Lucas v. South Carolina Costal Council, p. 715
 Regulation is taking if it renders property of no economic value. Premise is that SC beach
ordinance prevented Lucas for building on his property and that inability to build made property
valueless. Rule is not as certain in its application as it might seem because of base unit problem.
Scalia suggests that base unit should be determined by asking whether unit was treated legally
and socially as separate unit of property. Thus, separate lots might be separate units if
expectation was that a house could be developed on each lot and they could be sold separately.
 Scalia’s opinion carves out exception to categorical rule for regulations that prohibit use that is
nuisance. Scalia looks to the common law to define what is nuisance. SCOTUS holds the South
Carolina SC must decide if this is nuisance under state law. Why Scalia insisted on defining what
was in noxious use exception by looking to common law of nuisance? Part of answer is that he
thought most obvious alternative—making an exception for sufficiently harmful uses—left too
much up in the air. Particularly true if failure to realize benefit (say by shifting land to its highest
and best use) can be characterized as a harm. Common law of nuisance provides rules and
principles that channel analysis and constrain what can come within exception. Make law more
predictable. But makes it difficult to bring within exception harms of a sort not addressed by
law of nuisance.
 Ex. cumulative uses that are harmful once tipping point is passed.
 Ex. beach front development.
 Very difficult using law of nuisance that one person may not use his land in ways his neighbors
use their land because the cumulative effect becomes harmful.
o Note 3, p. 725
 Whether wetland protection regulations that prevent developing much but not all acreage on
large parcels constitute a taking of the part of parcel on which development is barred.
o Stop the Beach Renourishment, Inc., v. Florida Dept of Environmental Protection (US 2010)
 4 J.s, in an opinion by Scalia (joined by Roberts, Thomas, and Alito), said that a judicial decision
eliminating a property right could be a taking.
 Here is a passage: “If a legislature or a court declares that what was once an established right of
private property no longer exists, it has taken that property, no less than if the State had
physically appropriated it or destroyed its value by regulation. [A] State, by ipse dixit, may not
transform private property into public property without compensation.”
 Florida beach owner argued that when sand was added to his beach and the added sand was
public property this deprived him of a private right in the form of beach access. The Florida SC
said there was no such property right. Scalia agreed but took the position that had there been
such a right a decision abolishing it might well be a judicial taking. SCTOUS would then have to
analyze whether the decision was a taking under the rules for regulatory takings. The
conception of property rights and property law that underlies the premise that a decision
declaring “an established right of private property no longer exists” is quite remarkable.

17 USC § 101...........................................................................21
 102...........................................................................21 Florida § 95..................................................................32
106...........................................................................21 Iowa Code Section 556F.6-.12.......................................9
106A.........................................................................24 Mass. Art Preservation Act..........................................24
107...........................................................................21 U.S. Constitution
109...........................................................................21 5th Amend................................................................63
Ariz. Stat. 12-1202(A)...................................................56 UCC § 2-403
CA Prop 90....................................................................64 (1).............................................................................13
CA Prop 99...................................................................64 (2).............................................................................13
Cal. Code Civ. Pro. Section 338(c)............................17 Uniform Anatomical Gift Act.......................................18
Cal. Health & Safety Code section 7054.4...................18 Visual Artist Rights Act of 1990...................................24
Copyright Act of 1790..................................................21 Wash. Stat. § 64.04......................................................46