I. PROPERTY CLAIMS

A. Introduction: Property in Context

1. General Arguments (Policy Considerations) for Social Property Rights

a. Fairness/Justice/Rights

b. Social Utility - good for society

c. Certainty/Administrability - effect on ability to administer

d. Judicial role

2. Justification for Awarding Property Interest

a. Labor and investment

b. Use/waste

c. First possession

d. government distribution of land

d. Need.

e. Family.

g. Relativity of Title - property right not against the public but against a competitor, or not against true owner but against a third party.

B. Original Acquisition and Allocation

Ownership by Occupancy - a thing capable of ownership but not then owned belongs to the person who acquires actual or constructive control or dominion over it and has the intent to assert ownership over it.

1. Labor, investment, and possession

a. Wild Animals

Wild animals in their natural state are unowned. They become private property upon being reduced to possession = occupy. Title can be acquired by: (1) Possession -the first person to exercise dominion and control over a wild animal becomes the owner of it. (2) Constructive possession - animals caught in a trap or net belong to the owner of the trap or net. (3) Mere pursuit --> property right in animal. However, where animal has been mortally wounded so that actual possession is inevitable, then vested property right in the animal that cannot be divested in another's intervening act to kill the animal. Pierson v. Post (fox hunter chasing fox with dogs, and Post kills the prey.)

Capture, reasonable prospect, possession - confers property right in Pierson v. Post. Labor and investment - does not confer property right.

b. Oil and Gas

Capture - each one could drain oil away from beneath land of the other, so long as non-negligent waste (drilling mud of insuffic. weight caused well blow out.) P could sue for waste. Elliff v. Texon Drilling Co. Why does P oil well driller have a stronger possessory claim than either of the fox chasers: the oil is under land each owns.

Rule of Minerals Ferae Naturae - every landowner is entitled to tap any oil or gas to which he has access, regardless of whether others had already tapped it. Majority rule in the U.S. Must be reasonable taking. Public policy used to decide dispute among land owners.

Three rules of right to possession of minerals

(1) Law of capture - the owner of a tract of land acquires title to the oil and gas which he produces from wells on his land, even though part of the oil or gas may have migrated from adjoining lands. He may extract the oil and gas that have flowed from adjacent lands without the consent of the owner of those lands, and without incurring liability to him for drainage. (Supports rapid extraction of resources, but not wasteful extraction)

(2) Correlative Rights - each landowner should be afforded the opportunity to produce his fair share of the recoverable oil and gas beneath his land: correlative rights over a common reservoir of oil or gas. If unable to develop, P could sell right to D.

(3) Reasonable Use - each owner must accommodate the others. Cannot destroy other owners rights to possess through negligent destruction, etc. No owner should be permitted to carry on his operations with reckless or lawless irresponsibility.

c. Groundwater

Prior Appropriation - grants property rights to the first owner who invested in withdrawing the water. Usually applied to water, not mineral or oil and gas rights.

Free use or absolute ownership doctrine - each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability, even if it has the effect of withdrawing water from beneath his neighbor's property. Exception: not allowed to withdraw water in a way that wastes it.

Reasonable use test each owner must accommodate the interests of his neighbors; alternatively, the courts have to balance the interests of the parties.

Correlative rights - allow each owner to withdraw a specified portion of the groundwater, perhaps in proportion to the percentage of the aquifer under his property.

d. News

News is quasi-property. News is NOT abandoned when published in newspaper. Publication is abandonment for limited purposes: benefit readers, not for merchandising, not to deprive AP members of just return on expenditures. Int'l News Serv. v. Associated Press This decision rewards labor and investment, unlike Pierson v. Post.

Restraint only to point of unfair competition. AP wins = possession, property right. Opposite result as fox case. Relativity of Title - property right not against the public but against a competitor.

Policy Concerns: 1) unfair to reap what you did not sew; not an unlawful gathering of information. 2) want to reward investment/news gathering not news copying. 3) INS could buy a license from AP - encourage competition by preventing a monopoly.

e. Human Genes

Patient may sue doctor and hospital for breach of fiduciary duty connected to lack of informed consent on development of lymphokines from his body cells, but NOT conversion. Tort damages may be limited to pain and false representation, but property interest would confer control and share of the profits. Element of conversion = prove ownership (property). In this case, LABOR wins, not FIRST POSSESSOR. Judicial Role - let legislature decide if property interest in cells, not judges.

Social Utility: The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials. Once cells taken out of your body, you no longer have any property interest in it.

2. Conquest: Competing Sovereigns

a. Johnson v. M'Intosh (Occupancy right or possession v. ultimate legal title). Must trace land to legitimate owners. The indians had no legitimate title. The U.S did. Marshall recognizes indians have "occupancy rights," but not "ultimate dominion" or "absolute title." 1. Title by Conquest; 2. Title by Discovery.

Johnson v. M'Intosh chooses positivism (law is what law says) over natural law (look above). "This is the law of the land, and cannot be questioned." Conquest gives title, which the courts cannot deny.

3. Government may redistribute lands despite any possessory right claims.

(1) expropriated vast amount of American Indian land. (2) Great deal of land given to railroads for free: circa 1850, 1/9 of total land area for RR use. (3) some land was sold off. (4) Other land in the West was sold or distributed by the government at below market prices. (5) Still other land was sold at fair market value; some of this land went to speculators who resold it. (6) Squatters often defeated federal land policies by trespassing on public lands; many of their claims were later recognized by the federal government. Together: an activist government taking and distributing land for a variety of purposes; fair amount of self-help and creation of law by communities of settlers who squatted on government land.

Factors for homeless squatters on city property: 1) building will be improved, 2) rewards self-reliance, 3) centralize problem. Factors for city: 1) bad to encourage congregation of homeless, neighborhood will go down; 2) quality control issues - safety issues; 3) handout rewards law breaking; 4) plan is in effect.

4. Family, Labor, and Need

a. Factors to consider in a divorce: court will divide property based on duration of the marriage and prior marriage of either party, income-earning factors, custodial provisions, whether apportionment is in lieu of additional maintenance. The court shall also consider the dissipation in value of the respective estates and the contribution of a spouse as a homemaker.

b. Court may create separate fund or trust for the support of children

c. As general rule, award house to custodial parent - so that children will not be uprooted. The court will order the sale of the family home where neither party has the resources to afford the maintenance costs of the home.

d. Community property - each spouse has right to 1/2 of income and wealth accrued during the marriage. Same at divorce.

e. Separate property - husband's income and wealth during marriage is his. Wife keeps hers. At time of divorce, income/wealth during marriage is equitably distributed. Also have separate factors to consider for assets brought to the marriage. This applies to property, not future support.

f. IN RE MARRIAGE OF KING - needs of each of the parties is important. By statute, grounds for divorce not considered in dividing property. These statutory factors not considered: age, health, employability. Gave most weight to children's interests.

g. Statutes give huge discretion to judge. Statute offers standards as opposed to rules.

h. Testamentary freedom - In the U.S. (unlike Europe), parent owners can entirely disinherit their children if they wish. In this sense, individualism trumps family.

i. Testamentary Rights - Married owners in the U.S. cannot entirely disinherit their surviving spouses. If an owner attempts to do so in a will, the spouse can "elect against the will" and receive a certain percent of the estate, despite the contrary wishes of the previous owner. Here family trumps individualism. REWARDS LABOR, meets NEED

C. Lost, Mislaid, and Abandoned Property

Indian artifacts buried with decedents serve some spiritual, moral, or religious purpose of the descendant/owner. Do NOT relinquish ownership to a stranger: desecration of graves. Human remains and burial goods are not "treasure," and therefore not subject to occupancy or discovery. CHARRIER v. BELL

1. Lost - the owner accidentally or involuntarily misplaced it; mislaid - the owner intentionally left it somewhere, and then forgets where she put it; abandoned - the owner intentionally relinquishes all rights in the property. Lost or mislaid property may eventually become abandoned.

2. The finder of lost or mislaid property does not gain ownership rights (title) over the true owner, contrary to the saying "finders keepers, losers weepers." Only abandoned property is up for grabs. Thus whether finder gets to be keeper depends on whether the owner abandoned the property, or merely mislaid or lost it. Title of owner persists when property is merely lost or mislaid.

3. If the true owner does not know the whereabouts of the property and is unaware that it has been found and therefore does not claim it, the finder is entitled to keep the property as against third parties.

4. If property found while trespassing, it goes to the landowner. If found by an invitee, the courts are divided. If found in a private home, usually to the home owner. Some courts give lost property to the finder (perhaps to reward him); mislaid property to the landowner (perhaps because true owner might come back to reclaim it). Many states statutorily give title to the finder if not claimed by original owner in a reasonable period of time.

D. Reliance, Possession, Use, and Title

1. Relativity of Title

a. TAPSCOTT v. Lessee of Cobbs. RULE 1: Plaintiff in ejectment action must have "good title" in order to get the court's help in throwing someone else off the land. RULE 2a: If the original owner or someone has entered on the strength of P's clear title to start with, then he wins the land without dispute. RULE 2b: Whoever has "peaceable possession" over land, he and his heirs have superior possessory rights over other settlers or adverse possessors (intruding strangers). Only Rule 2b applies in this case.

RATIONALE: 1) Avoid disorderly scramble (social utility), 2) Avoid clothing trespasser with means of maintaining his wrong (fairness, justice, illegality); avoid rewarding wrong. 3) For D, labor and possession reward.

b. Bona Fide Purchaser (BFP) - innocent purchaser of property that may be stolen. General RULE: A thief can never obtain title and therefore can never pass a title to a BFP.

TWO Exceptions - VOIDABLE Title - where thief has power to vest title in BFP:

1) Under the UCC, a BFP will prevail over the true owner when the true owner has entrusted the property to a merchant who regularly deals in the goods, but who wrongfully sells good to a BFP.

2) If an owner is induced to sell his property by fraud or duress, the seller may recover the property from the buyer unless the buyer has subsequently transferred the property to a bona fide purchaser.

Rationale: we want people to trust the market and not have to research title for every purchase.

2. Improving Trespasser - may get some or all property interest tempered by cost to pay for it.

Traditional approach: an innocent improving trespasser will be ordered to remove improvements from the land of an innocent landowner, even if this results in a windfall to the landowner. (Clearly favors landowner, even in the event of windfall)

a. Relative Hardship Doctrine: If encroachment is innocent (result of a mistake), the harm minimal, the interference in the true owner's property interests small, and the costs of the removal substantial, the courts often refuse to grant an injunction ordering the removal of the structure; instead they order the trespasser to pay the owner the fair market value of what was lost.

If the removal costs are insubstantial or interference with neighbor's ability to use his property is substantial, then court will usually order removal. Mere inconvenience and expense are not sufficient to withhold injunctive relief. The relative hardship must be disproportionate.

b. Bad Faith Exception - court will usually order removal of structure regardless of cost if builder knowingly built on neighboring property. A bad faith improver -one who deliberately builds on someone else's property - will not be granted a right to compensation.

c. Illustration of the Modern Rule. SOMMERVILLE v. JACOBS - Plaintiff/builder, after non-negligently relying on lot survey, builds warehouse on neighbor's lot by mistake. Court gives D the right either (1) to keep the land but pay P for the cost of the improvements (building) or (2) to sell the land containing the warehouse to P at fair market value minus the cost of the improvements. Rationale: avoid unjust enrichment, promote development, no need for extra surveys, make builders feel secure. Opposing Arguments: avoid unjust enrichment, avoid rewarding trespass, want landowners to feel secure, want careful builders who buy insurance and check lots correctly, avoid involuntary land transfers.

3. ADVERSE POSSESSION

Title to real property through adverse possession. (Easements acquired through prescription.) Title by adverse possession results from the operation of the statute of limitations for trespass to real property. If an owner does not, within the statutory period, take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing suit for ejectment. Moreover, title to the property vests in the possessor.

(6 requirements) - when all requirements are satisfied, then adverse or hostile possession is often presumed. NOME 2000 - P regained land through these six requirements.

(1) Actual possession by adverse party - designed to give the true owner notice that a trespass is occurring and extent of the trespass. As a general rule, adv. possessor only gains title to land that she actually occupies. Actual possession consists of the kind of use a true owner would typically make of the parcel.

Example: A's occupation of an entire parcel of farmland would be actual if he cultivated or enclosed the entire parcel. It would not be actual if she only occasionally grazed cattle on it. However, if the land were range land, grazing cattle might be sufficient if this were consistent with its normal use.

The Fagerstrom's use of the trails and picking up of litter, although perhaps indicative of adverse use, would not provide the reasonably diligent owner with visible evidence of another's exercise of dominion and control. To this, the cornerposts add virtually nothing. Two of the four posts are located well to the west of the disputed parcel.....We fail to see how two posts on a rectangular parcel of property can constitute the "objective act of taking physical possession of the parcel." NOME 2000

Possession of Part: Actual (build a fence) vs. Constructive (deed)

Actual possession of a portion of a tract of land is sufficient adverse possession to give title to the whole of the tract of land after the statutory period if that person, e.g., builds a fence around the entire tract (ACTUAL - closure by boundary). Alternatively, as long as there is a reasonable proportion between that actually possessed and the whole of the unitary tract, and the possessor has color of title (i.e., a document purporting to give him title) to the whole tract (CONSTRUCTIVE), then adv. possession occurs over the whole tract. Usually, the portion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession.

Policy arguments against / for ACTUAL NOTICE: 1) should not be able to walk away for too long / should be able to walk away; 2) Adverse Possessor values property more / avoid promoting insecurity; 3) owner must be responsible / wasteful vigilance.

(2) Open and Notorious Possession

"possession such as the usual owner would make of the land." The adverse possessor's occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring. If, for example, Water Company ran a pipe under Owner's land and there was not indication of the pipe's existence from the surface of the land, Water Company could not gain title by adverse possession because there was nothing to put Owner on notice of the trespass. EVIDENCE: testimony of neighbors who thought party acted like owner.

(3) Exclusive Possession - No Sharing with Owner. (1) mainly excluding true owner, and (2) establish some right greater than the general public. Two or more individuals may work together to obtain title by adverse possession. If they do so, they will obtain title as tenants in common.

Example: A and B are next door neighbors. They decide to plant a vegetable garden on the lot behind both of their homes. A and B share expenses and profits from the garden. If all other elements for adverse possession are present, at the end of the statutory period, A and B will own the lot as tenants in common.

(4) Continuous Possession - not required to live on parcel until the statute runs, only that you use it a great deal. Continuous possession during statutory period requires only the degree of occupancy and use that the average owner would make of the property. For example, intermittent grazing of cattle will probably not defeat continuity if the land is normally used in this manner.

Tacking Permitted

There need not be continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession of her predecessor. Separate periods of adverse possession may be "tacked" together to make up the full statutory period with the result that the final adverse possessor gets title, provided there is privity between the successive adverse holders.

Privity - is satisfied if the subsequent possessor takes by descent, by devise, or by deed purporting to convey title. Neither tacking nor privity is permitted where one adverse claimant ousts a preceding adverse claimant or where one adverse claimant abandons and a new adverse claimant then goes into possession. Privity is a link/agreement between two parties that transfers rights.

Policy Arguments against / for privity: 1) true owner sleeping on his rights just the same / reward labor; 2) "peaceable possessor" remedy to invoke the aid of the court (Tapscott) / otherwise encourage piracy just before statute expires.

(5) Hostile Possession

The possessor's occupation of the property must be hostile (adverse). This means merely that the possessor does not have the true owner's permission to be on the land. It does not mean anger or animosity. The state of mind of the adverse possessor is irrelevant. By the large majority view, it does not matter whether the possessor believes she is on her own land, knows she is trespassing on someone else's land, or has no idea of who owns the land. OBJECTIVE TEST: (1) no permission, (2) activities - as if he owned it.

a. LACK OF PERMISSION - often just presumed. Burden on true owner to show that he gave permission to adverse possessor. If the possessor enters with permission of the true owner (e.g., under a lease or license), the possession does not become adverse until the possessor makes clear to the true owner the fact that she is claiming "hostilely." This can be done by explicit notification, by refusing to permit the true owner to come onto the land, or by other acts inconsistent with the original permission.

b. Intentional dispossession - adverse possessor actually says that he is trying to oust the true owner.

(6) Running of Statute

The statute of limitations begins to run when the claimant goes adversely into possession of the true owner's land (i.e., at that point at which the true owner could first bring suit). The filing of suit by the true owner is not sufficient to stop the period from running; the suit must be pursued to judgment. However, if the true owner files suit before the statutory period (e.g., 5, 10, 15 years) runs out and the judgment is rendered after the statutory period, the judgment will relate back to the time that the complaint was filed.

Tolling - if injured, incompetent, or a child owner, then statute may not run as fast or begin until you are well. The statute of limitations does not begin to run for adverse possession (or easements by prescription) if the true owner was under some disability to sue when the cause of action first accrued (i.e., the inception of the adverse possession). Typical disabilities are: minority, imprisonment, insanity.

Examples: 1) O, the true owner, is five years old when A goes into adverse possession. The statute will not begin to run until O reaches majority.

2) O, the true owner, is declared insane six months after A begins using a pathway adversely. The statute is not tolled, since O's disability arose after the statute began to run.

No Tacking of Disabilities.

Only a disability of the owner existing at the time the cause of action arose is considered. Thus, disabilities of successors in interest or subsequent additional disabilities of the owner have no effect on the statute.

Examples: 1) O is a minor at the time A goes into adverse possession of O's land. One year before O reaches majority, O is declared insane. The statute is not tolled by reason of O's insanity (a subsequent disability). Thus, the statute begins to run from the date O reaches majority, whether she is then sane or insane.

2) O, the true owner, is insane when A begins an adverse use. Ten years later, O dies intestate and the land goes to her heir, H, who is then ten years old. The statute of limitations begins to run upon O's death and is not tolled by H's minority. H's minority is a "supervening" disability and cannot be tacked to O's.

TIOGA COAL CO. v. SUPERMARKETS GENERAL CORP. Philadelphia planned to lay street within Supermarket's property and bordering Tioga's property. City never did, but Tioga used the street land and padlocked gate giving access to street. Court finds all the grounds necessary for adverse possession, except hostility.

If a subjective test is applied, then Tioga fails: it thought the land belonged to the city, and you cannot adversely possess gov't land. This court rejects the subjective test. If the true owner has not ejected the interloper within the time allotted for an action in ejectment, and all other elements of adverse possession have been established, hostility will be implied, regardless of the subjective state of mind of the trespasser.

POLICY REASONS for choosing the OBJECTIVE TEST: 1) discerning mental state of adverse possessor is exercise in guesswork (CERTAINTY); 2) promotes use of land against abandonment (SOCIAL UTILITY); 3) equitable consideration for person who has put down roots and become attached to land (FAIRNESS).

Arguments against adverse possession: 1) reward theft, 2) right to security in boundaries, peaceable possessor; 3) Development not always good, inactivity may be good too, 4) deter investment, produces insecurity (SOC UTIL); 5) inviting litigation, adds to backlog (ADMINISTR)

Arguments for adverse possession: 1) reward labor and investment, 2) punish sloth, sleeping on rights, 2.5) different types of use; 3) promote development is good, productive use (SOC UTIL); 5) clear titles, no long chain searches (ADMINISTR).

4. Boundary Line Agreements - another way of getting property rights without satisfying the technical requirements of adverse possession.

This doctrine operates where a boundary line (usually a fence) is fixed by agreement of the adjoining landowners, but later turns out not to be the "true" line. Most courts will fix ownership as per the agreed line, provided it is shown that (i) there was original uncertainty as to the true line; (ii) the agreed line was established (i.e., agreed upon); and (iii) there has been lengthy acquiescence in the agreed line by the adjoining owners and/or their successors.

Establishment Requirement

The establishment requirement can be implied by acquiescence. A past dispute is not necessary to show uncertainty, although it can be good evidence of it. But a showing of original uncertainty is required; otherwise, in a court's view, a parol (oral) transfer of land would result.

5. EASEMENTS Generally

Easements, profits, covenants, and servitudes are nonpossessory interests in land. They create a right to use land possessed by someone else. The holder of an easement has the right to use a tract of land (called the servient estate) for a special purpose, but has no right to possess and enjoy the tract of land. The owner of the servient estate continues to have the right of full possession and enjoyment subject only to the limitation that he cannot interfere with the right of special use created in the easement holder. Typically, easements are created in order to give their holder the right of access across a tract of land, e.g., the privilege of laying utility lines, or installing sewer pipes and the like. Easements are either affirmative or negative, appurtenant (affects use/enjoyment of another tract of land, the dominant estate) or in gross (independent of another tract of land). An easement is attached to the deed to the land and is sold with the land.

a. Affirmative Easements

Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it for such purposes as laying and maintaining utility lines, draining waters, and polluting the air over the servient estate. The right-of-way easement is another instance of an affirmative easement. Thus, an affirmative easement privileges the holder of the benefit to make a use of the servient estate that, absent the easement, would be an unlawful trespass or nuisance.

b. Negative Easements

A negative easement does not grant to its owner the right to enter upon the servient tenement. It does, however, entitle the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, were it not for the existence of the easement, he would be privileged to do. In reality, a negative easement is simply a restrictive covenant.

Example: A owns Lot 6. By written instrument, he stipulates to B that he will not build any structure upon Lot 6 within 35 feet of the lot line. B has acquired a negative easement in Lot 6.

Courts traditionally limited negative easements to protection of access to light, air, support, and protection from interference with the flow of an artificial stream. Many states now recognize conservation easements to protect the environment, solar easements to protect access to light for solar energy, and easements for a view to protect an owner's right not to have a particular view blocked by construction on the servient estate.

c. Acquiescence - means the true owner has failed to attempt to stop the adverse use by bringing a trespass action, build fence, kick us off.

PRESCRIPTIVE EASEMENTS

Acquiring an easement by prescription is analogous to acquiring property by adverse possession. Many of the requirements are the same, although exclusive use is not required. To acquire a prescriptive easement, the use must be open and notorious; adverse and under claim of right; and continuous and uninterrupted for the statutory period. Note that the public at large can acquire an easement in private land if members of the public use the land in a way that meets the requirements for prescription.

1) Open and Notorious

The user must not attempt to conceal his use. Underground or other nonvisible uses, such as pipes and electric lines, are considered open and notorious if the use could be discovered (e.g., through surface connections) upon inspection.

2) Adverse

The use must not be with the owner's permission. Unlike adverse possession, the use need not be exclusive. The user of a common driveway, for example, may acquire a prescriptive easement even though the owner uses it too.

3) Continuous Use

Continuous adverse use does not mean constant use. A continuous claim of right with periodic acts that put the owner on notice of the claimed easement fulfills the requirement. Note that tacking is permitted for prescriptive easements, just as for adverse possession.

4) When Prescriptive Easements Cannot be Acquired

Negative easements cannot arise by prescription, nor generally may easements in public lands. An easement by necessity cannot give rise to an easement by prescription. However, if the necessity ends, so does the easement, and the use is adverse from that point forward.

COMMUNITY FEED STORE Company wins prescriptive easement on neighboring business land to turn around its trucks. Requires only general outlines of the boundaries of the easement, not the precise details of width and length. Open and notorious use will be presumed to be hostile; (trial court assumed absence of hostility as basis for denying easement). Predecessor company had used easement - may tack on time.

Why is hostility presumed? It is inconceivable that if the adverse possessor actually takes possession of the land in a manner that is open, notorious, exclusive and continuous, his actions will not be hostile to the true owner of the land as well as to the world at large, regardless of the adverse possessor's state of mind.

Distinguish: Prescriptive easement (actual use) v. Adverse possession (actual possession)

II. LAND USE REGULATION

sic utere tuo ut alienum non laedis - one should use his property so as not to injure the rights of others.

A. RIGHT TO EXCLUDE AND ITS LIMITS

1. Common Law Public Policy Limits on the Right to Exclude - innkeepers and common carriers could not discriminate. Some states expanded to include service stations, hospitals, theaters. Most states, however, retain the traditional right to exclude without cause and limit the right of reasonable access to innkeepers and common carriers. Common theme: property rights are an important delegation from the sovereign, but they can be used illegitimately.

a. Migrant Workers

Under our state law, the ownership of real property does not include the right to bar access to gov't services available to migrant workers and hence there was no trespass within the meaning of the penal code. STATE v. SHACK

A man's right to property is not absolute. Sic utere tuo ....

RELATIVITY OF TITLE - We see no legitimate need for a right in the landowner to deny the migrant worker the opportunity for aid available from federal, state, or local services, or from recognized charitable groups seeking to assist him. Hence representatives of these agencies may seek out the worker at his living quarters. Migrant worker must be allowed to receive visitors there of his choice, so long as not hurtful to others, and the press may not be denied access so long as migrant worker is willing to speak to him. Landowner may exclude solicitors, peddlers, and others.

Court chose not to clothe migrant workers with protections of tenants, because these workers typically do not pay rent for their lodgings.

Employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied on the basis of interest in real property and too fragile to be left to the unequal bargaining strengths of the parties. Freedom of Association - FIRST AMENDMENT right - Example where this constitutional right, which normally restricts the government, is applied to a private party. STATE v. SHACK

Policy arguments for Tedesco: 1) right to conduct farming; 2) security; 3) limit responsibility. 4) statements about visitors of choice and customary associations are dicta. FOR WORKERS: 1) customary association, right of association; 2) well-being.

b. Property Open to the Public

The current majority American rule (as of 1982) has for many years disregarded the right of reasonable access, granting to proprietors of amusement places the absolute right arbitrarily to eject or exclude any person consistent with state and federal civil rights laws.

In NJ, (extend common law to) all places of public accommodation, where all of the public has right of reasonable access. When property owners open their land to the public in pursuit of their own business and property interests, they may only exclude with reason. USTON v. RESORTS INT'L HOTEL One reasonable cause - breach of peace, threat to security, disrupt.

c. Common law interests that overcome property interests

1. necessity; 2. Protection of human life; 3. Protection of other property; 4. Privacy and freedom of association (migrant workers); 5. Freedom of speech; 6. Antidiscrimination in property open to public; 7. Access to beach and waterways.

2. Public Accommodation Statutes

To learn what individual words mean, look to the purpose of the statute.

a. Civil Rights Act of 1964

Title II does not mention gender and rightly so. Focused on enumerated groupings: race, color, religion, or national origination. Gender is mentioned in Title VII. Stores are not included in Title II; they may be covered by state civil rights act, which are often more expansive than the federal legislation.

For equal protection, supposed to look at intent. Other areas focus on impact.

b. State statutes. The Minnesota civil rights statute broadens the categories for discrimination and generalizes to any public business. The common law adopts (1) a narrower purview for places covered, but (2) a much broader interpretation permitting no discrimination at all for innkeepers and common carriers.

US JAYCEES v. McCLURE In Minnesota, Jaycees are considered a "public business facility" and thus covered by the state civil rights statute. Jaycees prohibited from excluding women. Old statute focused on sites, new statute focuses on conduct. Jaycees regarded their members more as customers than as owners. By virtue of sale of indiv. memberships, the national organization is a business.

Two criteria for deciding if public or private: 1) the selectiveness of the group of admitted members. 2) the existence of limits on the size of the membership. Jaycees strive for growth and are unselective.

Massachusetts Supreme Court, by contrast, has held the state's public accommodation statute does not apply to the Jaycees. Mass. gave the word "place" its ordinary meaning.

FRANK v. IVY CLUB Since some 90% of upperclass students receive their meals from these dining clubs, the clubs are integrally linked to Princeton University. Princeton is indisputably subject to NJ's Law Against Discrimination. Therefore, women had to be allowed to eat in these traditional all male eating clubs.

c. Other hypotheticals. Consider arguments pro and con for allowing homeless people into stores. Consider also whether a buzzer on a door can be racially motivated. Ostensibly, buzzer is there for security and safety. A buzzer is not quite private enough, still an establishment open to the public.

d. Disability - Americans with Disability Act of 1990 applies very broadly to include work, public establishments, and schools, among others.

B. LAND USE CONFLICTS AMONG NEIGHBORS IN ABSENCE OF AGREEMENT

1. Nuisance

If the land is invaded by intangibles, e.g., odors or noise or radiation, that substantially harm and unreasonably interfere with use and enjoyment, the landowner may bring an action for nuisance. trespass (physical, tangible invasion) Nuisance protects right of quiet enjoyment, not exclusive possession. Both nuisance and negligence may use a reasonableness standard, but nuisance focuses on the result, consequence, or condition, whereas negligence focuses on conduct.

Example: Neighbors of a crack house - want owner to get trespass/ejectment action against the dealers. May want an injunction; they do not own the property and cannot bring the civil law to act on the drug dealers. May want damages for interference with enjoyment of their property. Damages for society's sake - deterrence against just waiting for court action.

Page County Appliances Center v. Honeywell. Radiation interference leaked by an adjacent store owner's computer distorted the t.v. reception of P's store. At trial level, court held this to be a nuisance, but reversed and remanded on appeal for improper jury instructions. RULES: One's use of property should not unreasonably interfere with or disturb a neighbor's comfortable and reasonable use and enjoyment of his or her estate. A fair test of whether the operation is lawful is the reasonableness of conducting it in the manner, at the place, and under the circumstances shown by the evidence.

Priority of occupation and location - "who was there first" is a circumstance of considerable weight. D asserts P's use of his premises amounted to a hypersensitive use and equates this situation to cases involving light thrown on an outdoor theater screen in which the light-throwing Ds have prevailed. Nuisance is ordinarily considered as a condition, and not as an act or failure to act on the part of any responsible party.

SEE PP. 354-363 for social utility theory v. rights v. judicial role v. administrability

2. Factors to consider in Nuisance suits:

(1) Gravity of Harm: Is the harm to P so substantial that it violates P's rights to enjoy his property?

(2) Utility of Conduct: Is the condition unreasonable from social welfare in that the harm outweighs the benefit to society?

(3) Priority in Time: Who was there first?

(4) What are the burdens upon D to change?

(5) Normal expectations of neighbors: Is P engaged in hypersensitive use of land? - Yes, then D not liable.

A rule is fairly rigid (snarl), while a standard is flexible (purr). In a case of rigid v. flexible, a standard sounds better. But we could also phrase it as (predictable, clear) v. (speculative, uncertain, vague), in which rules would come out better.

Many of these arguments will concern FREEDOM v. SECURITY.

Entitlements / Relief

3. Rejection of Nuisance: No Easement for Light and Air

FONTAINEBLEAU HOTEL v. FORTY-FIVE TWENTY-FIVE, INC Hotel cannot enjoin adjacent hotel from adding on to Fontainebleu in a way that shades the adjacent hotel's swimming and pool area. Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise have been available. Adjoining landowners have an equal right to build to the line of their tracts and to such a height as is desired by them.

Two competing rules: 1) nuisance; 2) no presumptive right to light and air.

Court rejects notion of negative prescriptive easement. People can buy and sell rights, but in America, there are no negative easements by prescription.

Fontainebleau brings up issue of malice to characterize bldg as "spite fence." Court says if the structure serves any useful purpose, then it can stand regardless of whether it may have been built in spite.

4. Nuisance Doctrine Applied to Provide Light

PRAH v. MARETTI Obstruction of access to light might be found to constitute a nuisance in certain circumstances. The result will depend on each case as to whether the conduct complained of is unreasonable. POLICY considerations: (1) society has increasingly regulated the use of land for the general welfare. (2) access to sunlight has taken on new significance. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy. (3) the policy favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

POLICY arguments FOR Prah: 1) not unusual for courts to fashion new law to meet case of first impression (alternative energy use). 2) times have changed.

POLICY arguments AGAINST Prah holding: 1) P could have bought easement for light, the court should not interfere 2) unreasonable element missing in neighbor's construction of house on his property, 3) social utility argument not valid, private individual with his energy source; 4) ultrasensitive, occurs in Wisconsin, unfair surprise; 5) internalize costs - P already benefits; 6) not a spite fence, because house serves some useful purpose. Fontainebleau; 7) better area for legislature to resolve than courts; 8) right to build on residential property.

5. Flooding and Diffuse Surface Water

ARMSTRONG v. FRANCIS, Issue: Is damage suffered by the Ps damnum absque injuria, namely the non-actionable consequences of the privileged expulsion by D of waters from its tract as an incident to the improvement thereof. Holding: There is no reason why the economic costs incident to the expulsion of surface waters in the transformation of the rural or semi-rural areas into urban communities should be borne by adjoining landowners rather than those who engage in such projects for profits. Court held NJ would expressly adhere to reaonsable use rule, which had been practiced by lower courts.

Court considered three tests: (1) COMMON ENEMY - water is common enemy and each person may defend himself with immunity. A possessor of land has an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm which he may thereby cause others. Unlimited legal privilege to use land without liability.

Exception: major quantities, artificial diversions

POLICY arguments against common enemy: lead to unbridled competition, wasted resources diverting water. A case-by-case determination is better than stare decisis rule. Unfair based on wealth distribution - those most hurt may not be able to pay to divert.

(2) NATURAL FLOW CIVIL LAW RULE - a person who interferes with the natural flow of surface waters so as to cause an invasion of another's interests in the use and enjoyment of his land is subject to liability to the other.

Exception: minor alterations.

(3) REASONABLE USE - privilege to use land to divert surface water, but only if reasonable in the circumstances. (Might be able to count heads with this test, but not with common enemy test).

6. Subjacent Support

Friendswood v. Smith-SW Indus. In Texas, landowners who withdrew percolating ground waters from wells located on their own land are NOT liable for subsidence which resulted on lands of others in the same general area. However, in the future, if the landowner's manner of withdrawing groundwater from his land is negligent, willfully wasteful, or for the purpose of malicious injury, and such conduct is a proximate cause of the subsidence of the land of others, he will be liable for the consequences of his conduct. The addition of negligence as a ground of recovery shall apply only to future subsidence proximately caused by future withdrawals of groundwater from wells which are either produced or drilled in a negligent manner after the date this opinion becomes final.

Majority focuses on negligence (conduct), not nuisance (consequence). Adopts rule only for future - not uncommon in property cases. Dissent argues either negligence or nuisance should apply.

Support for P's veto rights: strict liability, R₂P

Support for Reasonableness: Nuisance, Negligence

Support for D's privilege: Acton, East, Restatement (First) Property

POLICY arguments for holding Ds liable for SUBSIDENCE: 1) negative externality, therefore internalize the costs. 2) destroying land by subsidence = destroying land by other unlawful means. Same consequence. 3) Acton, East line of cases dealt with who owned stuff underground. (econ. value). Here we are concerned with destroyed land (econ. harm).

POLICY for holdings Ds immune: 1) easier to predict movement of surface water, but not groundwater. (Not foreseeable). 2) administrative efficiency. 3) Ds relied on past law.

LAW AND ECONOMICS ARGUMENTS - focus on society's benefit rather than justice and fairness. Consequentialist approach. Normative - how courts out to decide; Descriptive - what the law actually does (see evidence of courts trying to get efficient solutions). Often identified with conservatives and neoclassical economics - market best determines value. Individuals are wealth maximizers. Also part of multidisciplinary approach to law.

P's law/econ pro-liability: 1) important to internalize costs. 2) transaction costs = 0. Court has to compensate by awarding rights. 3) market not always efficient, e.g., bid/ask spread. Many of the court assignments of rights will be outcome determinative.

D's law/econ rebuttals: 1) really a question of joint costs, Coase's Theorem. Let market decide. 2) how is the court supposed to know the most efficient use. Market imperfect but the best we have.

External critiques: 1) distributive issues - initial, consequences. 2) how do we define voluntary exchange - medicine?, bargaining power, suspicious of benign characterization of the market. 3) transaction costs. 4) commodification limits - market for babies. 5) misapprehension to believe individuals are fully rational. In Fontainebleau, person located next to hotel in part for spite. 6) wealth maximization is not the highest value.

C. AGREEMENTS AMONG NEIGHBORS

Terminology:

Servient estate - property burdened by easement.

Dominant estate - property benefitted by easement.

License - permission by grantor for limited time and often for specific use of land; usually revocable at will by grantor; not transferable, nor can they be inherited or left by will.

Real convenant - [at law to seek damages].

Equitable servitude - [at equity to seek injunction].

Easement by Estoppel - an investment + substantial reliance. Where the owner is estopped from denying access to his land as long as justice requires.

Easement by reservation - grantor retains easement on land of grantee.

Easement by grant - grantee retains easement to go across grantor's land to get to his (landlocked) land.

Profit, profit a prendre - right to remove objects (pick apples, cut trees) from land.

Four instances where licenses cannot be freely revoked: 1) license coupled with an interest, e.g., to retrieve personal property; 2) promises to grant a license, e.g., theater ticket; 3) easements by estoppel; 4) constructive trusts.

Restrictions on land development and building usually come from real covenants at law or equitable servitudes. If seeking damages, then relief from real covenant at law. If seeking injunction, then relief for equitable servitude. Often encounter LEGAL RULES and EQUITABLE STANDARDS.

Writing and Notice Requirements: Easements generally must be in writing to be enforceable under the Statute of Frauds.

Exceptions: 1) prescriptive easements, 2) easements by estoppel, 3) implied easements, 4) easement of necessity, 5) constructive trusts.

Policy Exceptions: (1) reliance, (2) past dealings

Three types of Notice: (1) Actual - where owners know of the easement, (2) Constructive -where easement is stated in the deed or in the record chain of title and owners should have known if they conducted proper title search. (3) Inquiry - if there are visible signs of use by non-owners, owners should have known of easement if they conducted reasonable inquiry.

1. EASEMENTS BY ESTOPPEL; CONSTRUCTIVE TRUSTS (equitable remedies to prevent unjust enrichment)

HOLBROOK v. TAYLOR

P needs to use road across D's property to get to his house. P has no easement in writing. P had a revocable license, which D tried to revoke. Now P is claiming an easement by estoppel. From D's perspective: if he denies permission, then prescriptive easement; if he gives permission, then easement by estoppel. The majority of jurisdictions allow easement by estoppel to prevent extortion. JUSTICE due to RELIANCE required a continued use, not adverse possession.

Where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements (including construction of a $25,000 house) at considerable expense.

What justifies making a license irrevocable against the wishes of the grantor? Answering this question requires the court to balance the grantor's intent / interest in controlling his property and protecting the grantee's interest in reasonable reliance on continued access.

RASE v. CASTLE MOUNTAIN RANCH

This constructive trust is not really a trust. It is a form of equitable relief. Court not only omits the requirement for a writing, but rules exactly the opposite of what the writing says. Folks build houses around a lake. They have 20 years worth of investment and reliance. The court receives a mixed message. In a mixed message situation, often equity lies on the side of the person who doesn't have a formal document.

The court granted the cabin owners a six month period in which they have the option to be exercised by written notice to the defendant to recieve payment from the cabin structures and fixtures. Otherwise, they may continue to occupy the cabins until December 31, 1987. Beyond that time, the licenses to occupy shall terminate and if the improvements were not removed as set forth in the license agreements, the improvements should become the property of D without payment.

The court seems to want to enforce the parties' intentions, a deal-like structure based on past dealings. "P misled the cabin owners (about the deal)" so the court seems to want to punish him. SOMETIMES PROPERTY RIGHTS ARE ENFORCED THOUGH NOT IN WRITING. PRO-RELIANCE OPINION.

P used license agreement to protect against adverse possession. Court creates a constructive trust in place of easement of estoppel.

STUDENT KICKED OUT OF DORM ROOM FOR EDITORIAL: HYPOTHETICAL

Did the student improve the room? - invest in loft, etc. Time argument here runs against much reliance. Best argument: move will disrupt student's life. Generate reliance arguments. Based on university catalogs, students may reasonably have expected the university to promote open minds and open ideas.

2. IMPLIED EASEMENTS FROM PRIOR USE AND REASONABLE NECESSITY (Quasi-Easement) Based on presumed intent.

THREE REQUIREMENTS: (1) Common ownership - of the claimed dominant and servient parcels followed by conveyance or transfer separating that ownership.

(2) Prior use - one party had to be burdened by apparent, obvious, continuous, and permanent use. The more obvious the prior use, the more likely a court will be willing to grant the quasi-easement. (3) Must be reasonably necessary for the enjoyment of P's land. GRANITE

GRANITE PROPERTIES v. MANNS

Court could have said "you should have reserved easement especially since (1) you were the grantor and (2) use is not necessary." But the court was swayed by prior use being so obvious with these driveways: (1) prior use and (2) defendants' knowledge of prior use. The court presumes that the grantor and the grantee do not intend to render the land unfit for occupancy.

3. EASEMENT BY STRICT NECESSITY

Easment last only as long as necessity lasts, e.g., if town builds road and touches landlocked property, then no longer need for easement.

TWO REQUIREMENTS: (1) Common ownership, (2) very strict necessity - absolute need for the easement. No alternatives.

FINN v. WILLIAMS Where Finn is landlocked and could not get to main road. Other roads in prior use were closed; permission was denied. So new easement carved out of prior owner's land. When permission to travel over strangers' property is denied, the subsequent grantees may avail themselves of the dormant easement implied in the deed severing the dominant and servient estates.

Where an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way of necessity exists over the remaining lands of the grantor.

POLICIES for easement by necessity: 1) effectuate the intent of the parties; 2) promote the efficient utilization of property.

Private right of condemnation - way for landlocked parcel to bust out, even if land was not prior owned in common.

4. EXPRESS EASEMENTS - in the record or chain of title.

a. Appurtenant - benefit runs with the land through subsequent ownership. Involves adjacent property. The easement cannot be sold separately from the land. There is a strong presumption for appurtenant easements.

b. In Gross - benefit does not run with the land, is not attached to a particular parcel of land, and there is no dominant estate. Runs with the person. Note utility company owns no adjacent land; there is no DOMINANT ESTATE.

c. Three prong test to decide whether appurtenant or in gross: (strong presumption for appurtenant)

1. Look to the writing and the language of the easement.

2. Intent of the parties.

3. Scope: a) type of use; b) intensity of use.

"for ingress and egress" sounds appurtenant; "for roads and utilities" if clause by itself or with particular names then it sounds in gross

d. Transferability.

Easements in gross are now generally assumed to be transferable. This is especially true for commercial easements, such as the right of way of utility lines. It is also true for the subcategory of profits a prendre. Profits are presumed to be freely alienable. If an easement in gross is for personal convenience or enjoyment, e.g., the right to swim in a private lake, courts may rule that the grantor did not intend the easement to be transferable to others. Generally, easement in gross is not assignable unless the owner was excluded from the activity. (Utility company can sell easement in gross to another company to use its cables or place own cables on the utility's poles.) If the easement is nonexclusive - meaning the grantor reserved for himself the right to use the easement in conjunction with the grantee - then it is not apportionable: the grantor could sell further rights to others so long as those new easements did not interfere with the use of the existing easement by the first grantee. The courts presume that the grantor would want to retain the right to obtain the economic benefits of any future easements.

Easements appurtenant. writing, intent, notice. In subdivisions, still appurtenant because easement runs with the land and subdividing is simply a use of the land. However, if more land is bought, the easement does not run with the new land. Therefore, the owner must purchase a new easement.

GREEN v. LUPO There is a strong presumption that easements are appurtenant to some particular tract of land; easements in gross are disfavored. An easement is not in gross if anything in the deed or the situation of the property indicates that it was intended to be appurtenant. FINDINGS to support easement appurtenant: 1) granted for ingress, egress, (OVERSHADOWS) and for road and utility purposes. 2) P's use of the easement was "to obtain access to the land." However, court will place reasonable restrictions on use (SCOPE) to assure that motorcycle traffic does not become a dangerous nuisance.

P & D had contracted to give an easement on D's land in exchange for a deed release to part of land sold to D, to be used as collateral for financing. D: the easement we granted was in gross and not to be used by motorcycles; argument: "To Don Green and Florence Green" Argument for appurtenant: "grant of ingress and egress" Therefore ambiguous, and court looks to parties' intentions.

COX v. GLENBROOK COMPANY Those who succeed to the possession of each of the parts into which the dominant estate may be subdivided also succeed to the privilege of using the easement appurtenant. The Quill conveyance does not contain a restriction that the easement granted is to be appurtenant to the dominant estate only while such estate remains in a single possession, and none may be imposed by judicial declaration. MAJORITY RULE.

The owner of an easement may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created. The owner may not cause undue burden (SCOPE) on the servient estate, nor an unwarranted interference with the independent rights of others who have similar use. Here P's attempt to widen the road would cause an undue burden.

Developer brings suit for declaratory relief, so that it can know whether it should develop its land. Court holds easement is appurtenant. Therefore, not limited to single family dwelling. But developer cannot widen road. Developer has use but not economically feasible. Court does not have enough facts yet to determine whether multiple car use on single lane road will lead to overburdening. Leaves developer in great ambiguity. COX

HENLEY v. CABLEVISION In gross easement. One who grants to another the right to use the grantor's land in a particular manner for a specified purpose but who retains no interest in exercising a similar right himself, sustains no loss if, within the terms of the grant, the use is shared by the grantee with others. Thus, insofar as it relates to the apportionability of an easement in gross, the term "exclusive" refers to the exclusion of the owner and possessor of the servient estate from participation in the rights granted, not to the number of different easements in and over the same land. The owner of an easement may license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted.

The unsurprising fact that the drafters of the 1922 easements did not envision cable television does not mandate the narrow interpretation of the rights and privileges urged by the Ps. It is in the public interest to use the facilities already installed for the purpose of carrying out this intention to provide the most economically feasible and least environmentally damaging vehicle for installing cable systems.

e. Scope

Three issues to consider on whether the easement owner is exceeding the scope: (1) whether the use is of a kind contemplated by the grantor; (2) whether the use is so heavy that it constitutes an unreasonable burden on the servient estate not contemplated by the grantor; and (3) whether the easement can be subdivided.

ANSLEY SUMMARY: 1) subdivider can still use easement; 2) life changes, covenant does not restrict easement to particular vehicles; 3) no problem to pave easement; 4) problem to widen easement; 5) easement is not appurtenant to additional land acquired after easement established. (One can expressly draft around some of these issues)

f. Terminating Easements

Easements last forever unless they are terminated by (1) agreement in writing (release of the easement by the holder), (2) by their own terms, e.g., last only 10 years, (3) by merger, when the holder of the servient estate becomes the owner of the dominant estate, (4) by abandonment, and (5) by adverse possession or prescription of the owner of the servient estate or a third party.

Many states have enacted "marketable title acts," which require that easements, along with other property encumbrances, be recorded periodically (generally every 30 to 50 years) to be binding on future purchasers. The purpose of these statutes is to limit how far back a buyer must look in the chain of title to determine encumbrances on the land. They also have the effect of terminating old easements that were not re-recorded.

5. EQUITABLE SERVITUDES - at equity AND RESTRICTIVE COVENANTS - at law

Often a single document can be interpreted as either an equitable servitude or a real covenant.

When a developer subdivides land into several parcels and some of the deed contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied under the doctrine of "reciprocal negative servitudes." The doctrine applies only to negative covenants and equitable servitudes and not to affirmative covenants. Two requirements must be met before reciprocal negative covenants and servitudes will be implied: (i) a common scheme for development at the time the lots are sold, uniformity requirement (well-defined similarly situated), and (ii) notice of the covenants.

The developer's common scheme may be evidenced by a recorded plat, by a general pattern of prior restrictions, or by oral representations, typically in the form of statements to early buyers that all parcels in the development will be restricted by the same covenants that appear in their deeds. On the basis of this scheme, it is inferred that purchasers bought their lots relying on the fact that they would be able to enforce subsequently created equitable servitudes similar to the restrictions imposed in their deeds.

The requisite notice may be acquired through actual notice (direct knowledge of the covenants in the prior deeds); inquiry notice (the neighborhood appears to conform to common restrictions); or record notice (if the prior deeds are in the grantee's chain of title he will, under the record acts, have constructive notice of their contents).

EVANS v. POLLOCK (1) Provisions in restrictive covenants that the restrictions may be waived or modified by the consent of three-fourths of the lot owners constitute strong evidence that there is a general scheme or plan of development furthered by the restrictive covenants. (2) the restricted district need not be the whole subdivision nor include the whole retained tract. (3) the general plan or scheme may be that the restrictions only apply to certain well-defined similarly situated lots. (UNIFORMITY requirement) (4) The original subdividers intended the restrictions to apply to all the lakefront lots but not to the hilltop.

Lack of uniformity may be enough to remove restrictions on lots that do contain covenants in their deeds.

Once drafted, the negative reciprocal covenant may still contain ambiguities in terms of scope.

DUTY TO LOOK AT DEEDS OF OTHER PROPERTY - depends on jurisdiction.

Arguments FOR requiring DUTY to look at other's deeds: 1) On notice of plan, not so bad to have to search with your plan; 2) rule protects their investment and expectations (against depreciation in value with errant building)

Arguments AGAINST extending DUTY beyond own deed: 1) party should be able to rely on his own deed; 2) more predictable and cheaper. REPRESENTS MAJORITY VIEW: Party would not have to search beyond his own deed. 3) Generally, problem with constructive notice is increased expense, increased liability for attorney, inefficient use of time - not every deed will have covenant for which you are searching.

Arguments FOR real covenants/equitable servitudes: 1) facilitate cooperation; 2) enhance property values; 3) promote rational development.

Arguments AGAINST real covenants/equitable servitudes: 1) exclude poor, Disney-like walls; 2) racial restrictions; 3) anti-restrictions on competition.

5. REQUIREMENTS TABLE

Horizontal Privity - original covenanting parties. Can only happen once. Landlord-tenant, Buyer-seller, Grantor-grantee - OK; neighbor-neighbor - NOT OK. Met by instantaneous privity - covenant created at time title or lease passes, or mutual privity - one of the parties holds an easement in the land of the other. Two most important relationships excluded: 1) neighbor-neighbor w/o conveyance and 2) agreements between grantors and grantees that are not contemporaneous as the conveyance of the property interest burdened or benefited by the covenant. Required for burden to run with the land. In the majority of states today, horizontal privity is not required for the benefit to run. As a consequence, if horizontal privity is missing, the benefit may run to the successor in interest to the covenantee even though the burden is not enforceable against the successor in interest of the covenantor.