Property Law Questions

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Rule of Capture. In Pierson v. Post, the court held that the farmer
who had shot the fox had superior property rights to the fox-hunter
who had been in pursuit of the fox. The dissent emphasized that the
fox-hunter’s claim was better grounded in social custom—the social
custom of foxhunters. Why, then, did the court rule the way it did?
What does this ruling reveal about the relationship between social
custom and legal precedent in American property law?
a.
Finders. The common law rules of finders established a
hierarchy of property—mislaid, lost, and abandoned
property—with separate rules governing the rights of the
finders according to how the property is classified.
Briefly summarize those rules, using the cases we have
covered.
Review the cases discussed at notes 3 and 4 at pp. 138-39 of
the Textbook: Hoel v. Powell, Benjamin v. Lindner
Aviation, In re Seizure of $82,000 More or Less, and Terry
v. Lock Hospitality. Then answer this question: Why did
these decisions reach different conclusions about the
classification of the found property? What do these
different decisions reveal about the judges’ approach to
the facts in each case?
b.
Gifts. In Gruen v. Gruen, the court made a fundamental
distinction between title and possession—a distinction that
does not appear in the common law rules governing finders.
Why?
c.
Adverse Possession. Review and reflect upon the basic common
law elements of adverse possession. Then, using the cases we
have covered, answer the following questions.
What do these rules reveal about Americans’ conceptions of
property? Are these rules fundamentally about how
property should be owned?
What are your thoughts about the relationship between the
common law rules of finders and the common law rules of
adverse possession? Are they different, and if so, why do
you think they are different?
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a.
Future Interests. We spent a considerable amount of time this
semester on the rules concerning future interests: the Rule
against Perpetuities, the Rule in Shelley’s Case, and the
Doctrine of Worthier Title—but especially the Rule against
Perpetuities.
What is the general justification for these rules, especially the
Rule against Perpetuities? Do similar rules exist under
Saudi law, and if so, what are their justifications? (For
example, it may help you to reflect upon why vested
remainders are immune from the Rule against
Perpetuities, while executory interests are not.)
Consider the various responses to these common law rules at
pp. 328-335 of the Textbook. Do these modern reforms
improve upon the still-dominant common law approach?
Why or why not?
b.
Concurrent Ownership. Consider the rules governing joint
tenancies. Then answer the following questions.
Why do joint tenants enjoy the right of survivorship, when
tenants in common do not?
In Riddle v. Harmon, the court allowed Mrs. Harmon to
terminate a joint tenancy by conveying her interest to
herself. Why did Mrs. Harmon seek to do that, and why
do you think the court allowed it?
Review Harms v. Sprague. What are the respective
advantages and disadvantages of adopting the “lien”
theory instead of the “mortgage” theory?
c.
Landlord-Tenant law. A major theme in our coverage of
landlord-tenant law is the evolution from older, property lawbased rules to more modern, contract-law based rules.
In Hannan v. Dusch, the court was forced to decide between
the “English Rule” and the “American Rule” for
holdover tenants. Briefly explain these two rules. Which
rule is the better rule, and why? What is the best way to
resolve the problems that each of these rules present?
How does Ernst v. Conditt reflect the general evolution from
property-based rules to contract rules?
Modern landlord-tenant law has established new rules that
have transformed the legal relationship between the
landlord and his or her tenants: rules governing self-help
eviction (Berg v. Wiley), rules requiring the landlord to
mitigate his damages (Sommer v. Kridel), the covenant of
quiet enjoyment and the idea of constructive eviction
(Village Commons LLC v. Marion County), and the
implied warranty of habitability (Hilder v. St. Peter). Why
do you think the courts established these new rules? In
answering this question, consider how both leased
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property and the relationships between landlords and tenants governed
by the older rules have changed during the 20th Century.
8. Nuisance.
a.
Using Morgan v. High Penn Oil Co. and Boomer v. Atlantic
Cement Co., explain the concept of intentional nuisance.
b.
In all of the nuisance cases we covered in class, what is the general
justification for awarding injunctive relief? Why did plaintiffs
obtain injunctions, even when the cost of the nuisance damage
(and the value of their property) were much smaller than the value
of the enjoined activity? Should the courts have considerable
latitude in awarding the equitable relief of injunctions?
9. Easements.
a.
Review Holbrook v. Taylor, Van Sandt v. Royster. What are the
principal differences between an irrevocable license and an
easement by implication? What do you think accounts for these
differences?
b.
Easements do not terminate based on changed conditions. In this
regard they differ from equitable servitudes, which can be
terminated based on changed conditions. What reasons do you
think account for this different treatment? Do you agree with these
reasons?
10. Covenants and Servitudes. By now you are familiar with the basic
elements required to enforce an equitable servitude, a covenant
respecting the use of land. Review these elements and then answer the
following questions:
a.
In Sanborn v. McLean, the defendants lost their case, even though
their deed did not provide them with notice of the covenant
prohibiting non-residential uses. How did the court find that the
defendants had been put on notice of this prohibition? Do you find
that explanation convincing?
b.
Review Western Land Co. v. Truskolaski and Rick v. West. Under
what circumstances would an American court find that an
equitable servitude is no longer enforceable? Returning to your
answer to Question 9.b. above, do you have any further comments?
11. Eminent Domain.
a. Which group of judges has the better argument in Kelo v. City of New
London, the Majority (which finds that the City’s actions do not
constitute a taking) or the Dissent (which believes that the City’s actions
do constitute a taking)?
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12. Zoning and Regulatory Takings.
a.
Review Village of Euclid (1925), Lucas (1992), and Kelo (2005).
The Textbook explains the difference between zoning and takings
as follows: with zoning, the government regulates use for public
purposes but does not take title; but with takings, the government
takes property for some public use or purpose. Do you find this
distinction convincing? Why or why not?
b.
Review Pennsylvania Coal and Penn Central, attending to both the
majority opinions and the dissenting opinions. Which interests—
those of the public, or those of private property owners– are served
by treating the property under review as a whole, and not as its
constituent parts? Regarding regulatory takings generally, where is
there common ground between the public and private property
owners?
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