Chapter 1. Personal Property. I. Finder’s Rights. (7 cases, 2 cited, 3 notes). II. Bailments. (4 cases, 6 cited, 1 notes).III. Gifts. (3 cases, 5 cited). IV. Unauthorized Possession and Bona Fide Purchasers. (5 cases).IVA. Adverse and Other Possessors of Personal Property. (4 cases). V. Accession.

Chapter 2. The Law of Neighbors. A. Adverse Possession.

1. Statutory Basis. (1 case). 2. The Elements of Adverse Possession. 3. The Policy and Future of Adverse Possession.

B. Rights of Lateral and Subjacent Support.1. Lateral Support.2. Modifying the Duty of Support by Statute. 3. Subjacent Support.

C. Air and Light.1. Airspace. 2. Rights in Air and Light.

D. Nuisance. E. Water Rights.

1. Diffuse Surface Water. 2. Groundwater.3. Riparian and Littoral Rights.

Chapter 3. Servitudes and Easements. I. Easements.

A. Creation of Easements. (3 cases). B. Easements Implied by Necessity. (3 cases). C. Easements Implied by Past Use. (1 case). D. Prescriptive Easements. (2 cases). E. Scope of the Easement. (3 cases). F. Transferability. G. Termination of Easements. (1 case).

II. Real Covenants. (4 cases). III. Equitable Servitudes. (1 case). IV. Termination of Covenants (or servitudes). (1 case).

Chapter 4. Estates in Land. I. The Fee Simple (6 cases). II. The Fee Tail. III. The Life Estate. IV. Marital Estates.

A. Common Law. B. Statutory Changes in Marital Estates. C. Community Property. D. Homestead Rights. (No cases).

V. Concurrent Estates.

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A. Basic Characteristics. (No cases). B. The Creation of Concurrent Tenancies. C. Relations among Concurrent Tenants. (0 cases, 5 notes). D. Termination of Concurrent Tenancies. (2 cases).

VI. Reversions, Reverters, and Powers of Termination. VII. Remainders.

A. Creation of Remainders. B. The Classification and Characteristics of Remainders.

VIII. The Statute of Uses and Executory Interests. IX. Powers of Appointment.

Ejectment: Recovering possession of land. Jury trial. Trespass: Provded a remedy for any direct and tortious interference with the actual possession of either land or chattles. Money damages were included. Case or Trespass on the case: remedy for indirect or consequential injury to land or chattels resulting from the wrongful act of the defendant. Trover: remedy where the defendant has “converted” the plaintiff’s chattel to his own use by wrongful seizure, withholding, or disposition. (Owns it later). Replevin: Action to recover possession of chattels. Never expanded beyond seizures by way of restraint. (Later broadened). Detinue: Defendant, if found wrongfully to withheld possession of the plaintiff’s chattel, had the option of returning the chattel or paying its value in damages. (Latter similar to the outcome in trover).

Equitable actions: injunctions against interference with such interests, rescission of property transactions, reformations of instruments, and removal of “clouds” on title to land.

Jus tertii irrelevant in ejectment and trover. Cases divided in replevin and trespass.

Chapter 1. Personal Property. I. Finder’s Rights. (7 cases, 2 cited, 3 notes).

Can master have a claim against chimney sweep boy? (VL in reverse). Personal property litigation usually all or nothing. Not much balancing. Two things required for possession. 1) Actual power over the thing. 2) A manifest intent to

control. As a possessor, have a right against everyone except the rightful owner. Armory is not a very important case in the law of damages. Most cases will turn out like the

lottery ticket and the fire hose, liable only for the ordinary consequences of what the defendant has done.

Clark v. Maloney . Prior possessor wins, even though his logs were floating rather than being in the prior possessor’s possession.

Law often depends on possessory rights, because people don’t keep receipts. Keron v. Cashman . (HDL case). Court held joint find. RH says Judgment of Solomon. Kicking a pebble is not a manifest intent to control it. Giving the money to their father was not intent to abandon. Intention matters. Knowledge of a thing’s value not required for someone to possess it. (Narcotics exception).

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Conversion makes you the owner (not liable to others, I think). Barker v. Bates . The claim of landowner extends to anything on the land. “Ratione soli.” Helmholz’s log story. Distinction between lost, abandoned, and mislaid property. Depends on the mental state of

the prior posessor. Difficult to reconcile Sharman’s broad holding with other cases. Distinguish Sharman and Hannah (defendant never in physical possession of premises, rather

than the employment issue in Sharman). Distinguish damages in Hannah (£66 rather then £88, what jeweler sold it for) and Armory. Could Hannah sue the jeweler? (BFP). Courts often judge decisions on the conduct of the plaintiff in the case. Favorite v. Miller . Could have sued museum if transaction went through (BFP). Embedded property in Favorite belongs to owner. Nontrivial or technical trespass enough to

deprive finder.

Armory v. Delamirie . Clark v. Maloney. Barker v. Bates. South Staffordshire Water Co. v. Sharman. Hannah v. Peel. McAvoy v. Medina.

Bridges v. Hawkesworth . Elwes v. Brigg Gas Co. Keron v. Cashman . Wallender v. Barnes. The Winkfield.

II. Bailments. (4 cases, 6 cited, 1 notes) E: Bailment is rightful possession of goods by one not their owner. Tripartite standard from Roman law. Mutual benefit (bailee must use ordinary diligence to

protect from damage or loss), Sole benefit of bailor (liable only for gross negligence), Sole benefit of bailee (extraordinary care).

Contractual limitation: Even by K, bailee generally may not relieve himself of gross negligence.

Must show bailor knew of it and accepted it. A bailment is a delivery of possession. Either an implied (fictitious) contract or lawful possession of an item by one not the owner. Whether a K is a bailment depends on a “fair approximation of their expectations.” License to occupy space is not a bailment. Delievery and acceptance are essential for a bailment. Liability in Peet v. Roth for ring because “only the unusual value was concealed.” No liability in Samples v. Geary. (fur piece concealed in coat). Find cases that fall between Samples and Peet. Normally burden of production and persuasion for negligence are on the bailee. Bailee has the burden to establish that its negligence did not cause the loss. Is the dead dog case a bailment? More like surgery or taking your pants to the cleaners? Allen v. Hyatt . Issue is whether enclosed parking is a bailment. Is there control over car?

Need ticket to get out. What about storage facilities? Trend has been to hold that parking lots are not bailments. NJ dumps bailments and has

presumption of negligence instead. Think of implications for other cases. (Locker downstairs, marina, etc.) Difference is waivers in Allen and Carr. Damages can be unpredicatble and extrememly

high in Carr.

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Generally, posting signs or handing out receipts is not enough to limit liability for bailments. Courts will not allow you to limit liability for conversion unless you are very specific. Although, some states consider disapperances presumption of conversion. Waiver will only

be effective if D can prove he didn’t convert. Cowen v. Presspich : Voluntary vs. Involuntary bailees. (Exercising dominion). Burning the

bond, making a paper airplane. Voluntary bailee has an absolute duty to deliver to the right owner. (Liable for conversion

when misdelivery). Involuntary bailee had no duty so long as loack of volition continues. Boyer says involuntary bailee under duty of ordinary care under the circumstances. Chickens hypothetical.

Peet v. Roth . Allen v. Hyatt Regency. Cowen v. Presspich. Carr v. Hoosier Photo Supplies,

Inc. Samples v. Geary . U.S. v. Atlantic Coast Line R.R. Riggs v. Bank of Camas Prarie.

Dispeker v. New Southern Hotel. Rhodes v. Pioneer Parking Lot. Weaver v. American Oil Co.

Swarth v. Barney’s Clothes, Inc .

III. Gifts. (3 cases, 5 cited). E: A gift is a present transfer of property w/o any consideration or compensation. Gifts generally not revocable (except causa mortis). Delivery: Symbolic or constructive delivery OK when impossible or inconvenient to deliver.

Something representing the gift, or the means to obtain the gift. Most courts also hold written instrument is enough for delivery of the gift. Intent: the right must be given, though the enjoyment may be postponed.

Inter Vivos Gift must have: 1) Intent of the donor to make a transfer. 2) Delivery of the gift, actual or constructive, to donee. 3) Acceptance by the donee.

Intent requires an intent to transfer an interest in the chattel at the present time. Gift in the present of a future interest is OK.

Irons : There was intent, but no delivery. See Harlan Fiske Stone law review article on delivery. Helmholz and the Hershey bar. “Grantor reserves the right to eat the candy bar and also to

revoke the gift entirely.” Gifts are inter vivos are irrevocable. Gruen gave to his son the remainder interest in the picture, but retained in himself a life

estate. Delivery must proceed to a point of no return. For stocks, that means a transfer of record on

the stock books of the company (Szabo). Deliveries may be made to third parties, as a trustee for the donee (not an agent for the

donor). Statute of Wills: In order to make a gift that applies at the time of your death, you have to

meet certain requirements. Helmholz could be dead at 2:35. Engagement rings as conditional gifts. Iowa: “A gift ma be conditioned on the performance

of some act by the donee, and if the condition is not fulfilled the donor may recover the gift.”

Gifts Causa Mortis. Exception to Statute of Wills. Applies to chattels.

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Gift Causa Mortis must have: 1) Intent to make a gift. 2) Gift must be of personal property. 3) Must be made under apprehension of imminent death. 4) Must be delivered at time of the gift to the donee, or someone for the donee, and donee must accept the gift.

Ownership is dependent on the donor’s death. Two arguments in Woo: the UCC says mere delivery of a check is not as assignment of

funds, and delivery must be “actual and complete, such as deprives the donor of all further control and dominion.”

Delivery requirement seems to contradict Gruen’s “circumstances” test. But gifts causa mortis are revocable. Shouldn’t delivery requirements be less stringent? E: Courts less likely to accept symbolic and constructive delivery of gifts causa mortis.

Irons v. Smallpiece. Bunn v. Markham. (cited). Gruen v. Gruen. Young v. Young. (cited). Matter of Brandeth. (cited). Speelman v. Pascal (cited). Matter of the Estate of Szabo. (cited). Woo v. Smart.

IV. Unauthorized Possession and Bona Fide Purchasers. (5 cases) Bona fide purchasers: One who is in wrongful possession of goods (thief, defrauder, finder,

etc.) sells them to one who buys for value and without knowledge that the seller has no title. General rule: seller cannot convey better title that that which he holds. Always applies to theft. Exceptions for “voidable title” (B obtains by fraud from A and then sells to C. A cannot

recover). Exception for estoppel. (A expressely or impliedly represents that B is owner of the goods or

has authority to sell them). UCC has entrusting goods to a merchant. Anderson v. Gouldberg broadens possessors rights to include trespassers (exception for

rightful owner or owner of locus in quo). Not all wrongful possessors will be protected. Dorell v. Clark, money in slot machines. Three distinctions between Anderson and Hill. 1) Presumption of title is rebutted by the true

owner in Hill. 2) Tresspass in Anderson vs. Trover in Hill. 3) The fact that the owner was known in Hill, and not in Anderson.

If O’s property is stolen, he can sue anyone who converted the item. Porter case seems more like theft than deception. No intention that title would pass. UCC rules supplement, rather than replace, common law on BFP’s. Equitable estoppel: distinguish Porter and Zendman (jewelry merchant). Equitable estoppel can rely on a number of things. (nature of the item, merchant, clothed

with indicia of ownership, fraud vs. theft). Could be found in Porter. Perhaps customary practices in art world should constitute good faith. L.Rev. article: Protection against double liability usually the most common jus tertii defense.

Anderson v. Gouldberg . Jefferies v. The Great Western Railway. Russell v. Hill. Porter v. Wertz. Zendman v. Harry Winston, Inc. (cited).

IVA. Adverse and Other Possessors of Personal Property. (4 cases). A cause of action (and the S/L) cannot accrue until there is a wrong.

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Often different S/L’s to recover land (real property) and chattels (personal property). In Chapin, S/L probably began with the mortgate (inconsistent with the agreement). But when could defendant have received notice that an S/L was running? Many states say S/L won’t run during fraudulent concealment. Estate of McCagg : S/L will not run until a wrong occurs. (Demand and refusal). Lubell : Laches might be different if painting was stolen from private party and displayed in

museum instead. In New York, replevin S/L runs from demand and refusal (unless in possession of a thief). New Jersey imposes a due diligence requirement and S/L runs when theft is discovered. Court did not impose a diligence requirement on museum (even though Porter said custom

wasn’t good enough). Laches is a delay coupled with prejudice. Lubells would lose out on the art market and more

difficult to track down original thief. Could Lubells sue the Elkon Gallery for $200,000 rather than $17,000? Four possible rules for stolen art. Helmholz agnostic as to which one is the best. Page 21. New York’s clear demand and refusal rule somewhat diluted by laches.

Chapin v. Freeland . Solomon R. Guggenheim Foundation v. Lubell. O’Keefe v. Snyder. Moore v. The Regents of the University of California.

V. Accession. When the goods of two different owners are incorporated together, the titel to the resulting

product goes to the owner of the principal goods. Principle of severability: U.S. rule is no accession when it can be removed w/o damage to

the principal parts. Exceptions for security interest, unless added part is owned by a 3rd party, or the part has a security interest in a 3rd party. (for debtor is not harmed nor benefited).

Court might also hold a severable part to be an accession to protect persons who detrimentally rely on an apparent association of parts to the whole. (Circumstances and equities of the case).

Accession (turns logs into cabin). Specification (2x4’s). Confusion (mixes them). In all three cases, the change causes the title to be lost. In Bank of America, were the engine, tires, and transmission accessions to the car? No.

Court rejects the “usefullness” theory and adopts the “removability” theory. Bank could recover the parts, but not the services. Restatement of Restitution 42(2) says duty to compensate for value of the repair work and

the enhanced value of the van depends on the remedy sought by rightful owner (in this case, the Bank). If replevin, no duty, if conversion, such value is deducted from damages. (This is all predicated on the mistaken belief that the improver or a third person on whose account he acts in the owner).

Restatement says when chattels cannot be profitably severed, there can be no specific restitution. If the removal of chattels is all possible, specific restitution is allowed, or alternatively the value of the chattel added.

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A.M. Leasing v. Baker : Denied recovery for removable parts. No “mistaken belief” that he (or the third party) owned the backhoe. Parts were added on reliance of a third party’s promise to pay. Restatement only applies to fourteen “mistaken beliefs.”

Things might have been different if JS knew of the bank’s security interest, or made no effort

to locate the true owner. (Mistaken belief won’t include ostrich with his head in the sand). Also would be different if Bank sued Duncan after Duncan paid for the parts. Bank might have tried to claim title to the car by specification, but the case is more like

accession. See Restatement of Restitution on page 80 of casebook. Differences between replevin and

conversion. If Bank later sold car to a BFP, JS could still recover the parts unless equitable estoppel.

(Like why not sue immediately rather than waiting for the sale to a BFP?) For confusion, when unintentional or mutual consent of owners, each contributor owns his

proportion. When one party intentionally confuses, he has the burden of establishing the extend of proportional ownership, and all reasonable doubt is resolved against the other guy.

Bank of America v. J. & S. Auto Repairs . Law review articles.

Chapter 2. The Law of Neighbors. A. Adverse Possession.

E: Suits to recover property are called ejectment suits. Once S/L passes, wrongful possessor gets title to the land.

Only need to check the chain of title S/L when purchsing property. (Perhaps longer if owner was under a disability.

Open, notorious, and visible means similar to a typical owner of similar property. Hostile means w/o owner’s consent. Minority of states bar bad-faith possessors. No squatters. Most AP cases are boundary disputes. If true owner re-enters the property, S/L starts from scratch. Tacking only allowed if privity. Most courts hold tacking applies whether A recites the

true or false boundaries to B. Tacking applies to both owner and AP. AP cannot record title, because he has not deed. Judicial determination recorded as if a

deed. Buyer of property must inspect to be sure record owner still owns it and can convey a

good deed. Conflicts: generally first possessor has priority over subsequent one.

1. Statutory Basis. (1 case). Fleming v. Griswold . 10 years after such disability be removed. But S/L began to run when her father owned the land, even though she was under a

disability. She had no interest at the time. Kept running. Relation back. Once the S/L has run, the adverse possessor is given the same rights as if

he held the property from the time the S/L accrued. Under it, the holder of the record title has no claim to damages to the land during the period of adverse possession. It would be a “contradiction in terms.”

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S/L can’t wipe out tax lien on property before S/L runs. The lien is the right of the government.

Fleming v. Griswold . 2. The Elements of Adverse Possession.

Actual. Continuous. Exclusive. Hostile. Open and Notorious (notice). Issue of taxes. Suppose taxes weren’t paid? Usually relates to hostility. Some states require that taxes be paid for A.P. Belief in ownership. Taxation doesn’t come up much in border dispute adverse possession. When there’s a deed, “color of title” doctrine applies. No deed in Anderson. In constructive adverse possession (with deed), adverse possession of part brings A.P to

all. In Anderson, hostile possession only requires occupying the property with the belief that

it is his property and not another’s. In Anderson, exclusive possession means defendants acted as an average landowner

would for exclusive possession. In accretion, (slow change) boundaries change. In avulsion, (sudden) they don’t. Tacking: If there’s privity between the parties, S/L continues (not if I grab it from RH).

The same no matter which side dies. Hostility requires intention towards the land, rather than intention towards the owner. Since Mr. Budd in Dillaha acknowledged the Temples’ interest in the property, he lacked

the element of hostility required for an adverse possession claim. Offers to purchase the land in dispute may or may not negate hostility. Could be a

compromise on a legitimate claim, or an indication of lack of hostility. Usually govt. owned land can’t be adversely possessed. Anderson v. Cold Spring Tungsten . Dillaha v. Temple.

3. The Policy and Future of Adverse Possession. See four policy reasons for adverse possession. 1) It’s there to settle border disputes between neighbors. RH thinks it creates disputes

rather than mitigates them. 2) Law for the have-nots, the landless. Gives them a chance to get property by

possessing it. But it also gives landowners the incentives to keep squatters off. 3) Was it to help us as a new nation tame the wilderness? And now that we’ve tamed the

wilderness, can we let it go? They still had the rule in England. 4) What about personality theory? One’s personhood becomes bound up with objects or

land that we possess. Meyer v. Law . Reliance on an incorrect survey and interpretation of Florida statutes. Two ways to obtain adverse possession in FL: 1) Seven years of open continuous, etc.

possession paying the taxes and enclosing and cultivating the land. 2) Under color of title, must have a written instrument of conveyance (recorded) with continued occupation and possession of the premises for seven years.

B. Rights of Lateral and Subjacent Support. If P’s building is damaged, and he can show his land would have been damaged even

with no building on it, courts are split as to whether D is liable in absence of negligence. Right to subjacent support arises only when sub-surface rights (mineral rights) are

severed from the surface rights.

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Surface owner has absolute right ot support, not only of unimproved land, but all structures existing on the date the severance took place.

1. Lateral Support. Ancient rules are in place, but they have been mitigated by things like equitable factors

that cannot be supported by the rules. Traditional rule is that removal of either lateral or subjacent support is strict liablility. Second rule is that the measure of the duty is simply supporting the land in its natural

state. (No recovery for woman hanging clothes when land collapsed. RH doubts a court would reach that result today).

In England, the right to lateral support was one of four pemissible subjects for a negative easement—the others being, light, air, and flow of a watercourse.

First, liable for consquential damages (loss of a house). Second, liability for negligence even for land not in natural state. Lots of possible negl. Often swearing contests if the Sears Tower’s weight contributed to the collapse. Third, there is a statutory duty that can vary among landowners. Results of these cases have been unpredictable. See page 29. Ancient rules are in place, but there are equitable factors and other inexplicable results. Two special situations: 1) Implied restriction not to dig if I sell you the Sears Tower next

to me. Can be waived expressly. Restriction still applies if transferred to 3rd party. 2) Prescription. When I own Sears Tower long enough, I acquire a right that my neighbor can’t dig. American courts tend to reject this.

Noone : When natural support is replaced by artificial support (like a wall), there is a duty to maintain it.

But the wall was built before house, so duty under negl. theory could not be enlarged. In Walker and Beaver, house was built before wall. Hence, the court imposed liability

for negligent excavation and failure to shore up an excavation. Urosevic v. Hayes : Lightning struck a wall. Act of God. Instead of imposing liability,

landowners split the costs of rebuilding 50/50. Frederick v. Burg held that the party that does the excavation, not the current landowner,

is liable. But another court held the opposite. If I sell you the Sears Tower, I made an implied agreement (easement or covenant?) not

to dig on my lot. (Can explicitly contract around this). Future owners would be bound. English courts allow prescription to prevent neighbor of Tower from digging. American

courts reject this, nothing to keep S/L from running.

Noone v. Price . Walker v. Strosnider, Beaver v. Hitchcock (cited). Klebs and Hutter v. Yim (notes).

2. Modifying the Duty of Support by Statute. See Illinois statutes on pages 108-109.

3. Subjacent Support. Standard of liability the same. Strict liability plus possible negligence. there must be a severance of the mineral and surface estates. Must support land in its natural state at the time of excavation. Neglignce might come in if Similarities and differences between subjacent and lateral support.

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In many cases, no evidence as to why the land collapsed. Burden of proof important. Negligence includes malice, failure to notify of excavations, unnecessarily dangerous

method (don’t shore up land), change in procedure after notification. Island Creek : “Natural state” is the condition of the surface, including reasonable and

foreseeable improvements, thereon, at the time the coal is severed, (different than lateral support), not from the fee, but from the earth. (Strict liability applicable).

Island Creek Coal Co. v. Rodgers . West Kentucky Coal Co. v. Dillback (cited).

C. Air and Light.1. Airspace. (3 cases).

E: Only airplanes directly over land and within “immediate reaches” may be brought in trespass. Some states permit nuisance suits if flights are low, frequent, and noisy enough. Might also permit inverse condemnation suit under the takings clause.

Generally, a landowner has no right to sunlight. A might have a claim if he’s using solar energy.

Title to subsurface and airspace can be severed from the title to the surface. Murphy finds a property, not liability, right to airspace (ejectment not nuisance). It was

an physical ouster, not an interference. Many exceptions, though the right of a landowner is fairly complete. Most courts hold that prescriptive easements can not be obtained through airspace. Hot air balloons vs. high tension wires? Trees vs. overhanging roofs. (Trees grow naturally). What about self-help by the owner? Cut the branch?

Takings is limited exception to sovereign immunity (can’t sue govt. for nuisance). Causby was the taking of an easement, rather than a fee. Flights over private land are not a taking, unless they are so low and so frequent as to be a

direct and immediate interference with the enjoyment and use of the land. Does it matter whether plane flew directly over the land? We would have to find

substantial rather than incidental damages. (Cases go both ways). No compensation for incidental damges from a railroad (nuisance). Any difference if it’s

a plane not over your land? Most airline suits have been against municipal authorities, and courts split over

compensation for a tenant not directly under the airplane.

Tradeable air rights used to deflect takings challenges to zoning laws. (Compensation). Gordon v. Southern Flamingos says you can’t sell the air rights if the property is

mortgaged to A. A owns them. Wing Ming : Air rights are simply development rights and not rights to exclusively

occupy the physical airspace. (No problem building air conditioning units). Moreover, mechanical equitment was excluded from the zoning regulation.

Airspace vs. Air rights. Airspace can be trasferred by not moved. a) Air rights can be purchased by a landowner to preserve a view and prevent building. b) Air rights can be

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transferable development rights (TDR’s), allowing the owner to exceed the height restrictions.

Murphy v. Bolger . U.S. v. Causby. Wing Ming v. Mott.

2. Rights in Air and Light. (4 cases). Sundowner : No property owner has the right to erect and maintain an otherwise useless

structure for the sole purpose of injuring his neighbor. Suppose it had been a hedge, rather than a concrete fence? Easier to impute malice? Court left out the competitive advantage purpose, but maybe the fence was malicious. White v. Bernhart : Dilapidated house not maliciously erected. When a person acts with pure malice, the conduct is presumed to have no utility. (Mixed

motives usually insufficient). Fountainbleau : numerous theories for π to rely on. (Ancient lights, prescriptive

easement, spite fence, zoning ordinance). No American decision has recognized that an owner has a right to free flow of air and

light. Courts universally hold that obstructing a view is not a nuisance. Would effectively grant

a prescriptive easement and a flood of litigation would result. Prah : court rejected the three reasons not to expand sunlight rights. Expanded nuisance

law to include unreadonable obstruction of access to sunlight. Court remanded for trial under a “reasonable use” standard for nuisance. Seems like an extra sensitive plaintiff. Other interesting facts in Prah (see brief). Prah criticized Fountainbleau for assuming there is no right to protection from

obstruction of access to sunlight. Today there is more regulation of private land for the general welfare, sunlight more important, rapid development less important. A nuisance today might not have been a nuisance in former times.

Most academic comment of Prah has been positive. Brion criticized it for lacking economic sense (Coase’s theorem, let parties bargain) and allowing Prah to devalue Maretti’s land w/o compensation.

Rose v. Chaikin windmill was held to be a nuisance. Court split over whether property owner has a right to clouds and water in them.

Sundowner v. King . Fountainbleau Hotel v. 4525, Inc. Ramsey v. Lewis (notes). Prah v. Maretti. Rose v. Chaikin (notes).

D. Nuisance. (3 cases). E: Substantial damage only if a person of normal sensitivity would be seriously bothered. P must show D’s conduct was negligent, intentional (knew w/ subst. certainty that such

interference would occur), or abnormally dangerous. If intentional, must be unreasonable. Trespass requires a physcial invasion. No damages need be proved, absolute right.

Balancing. Nuisance protects use and enjoyment. Not absolute right. Public vs. private nuisances.

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Nuisance per se vs. Nuisance per accidens. Shooting bullets or arrows across land is trespass. Smoke and soot is nuisance. Maybe

volition is the difference. Requirements of nuisance: 1) Unreasonable use of defendant’s land (not strict liability). 2)

Substantial harm to plaintiff. Nuisance law gives us guidelines, but not clear rules. Five things to consider in unreasonable use: 1) Does conduct fit nature of the land?

Chainsaw on wooded land as opposed to the city. 2) Motive. Why are you using the chainsaw? To cut a tree or cut paper? 3) Can it be done in a less harmful way? Is there an alternative? 4) The legality of the use? 5) The utility of the use. Is there a good purpose or a frivolous, idiosyncratic use?

Substantial harm: 1) Mere depreciation in property value not enough. (trashy neighbor moves next door).

2) The Bove court called the harm “imaginary, theoretical, mere annoyance.” 3) Moving into the industrial area “coming to the nuisance” also effects the harm. 4) Also, the “eggshell rule.” Plaintiff must prove causation between defendant and harm. Often difficult to make in

industrial area. Buffalo council allowed the mill in Bove. Doesn’t always mean no nuisance, but much

easier for plaintiff to win against illegal nuisance. Law of nuisance grew up in a world with no planning permission.

Bove lost because she 1) came to nuisance. 2) causation problem. 3) Buffalo council decision. 4) Up to date mill.

Helmholz suggests features of nuisance similar to our law today (balancing tests, more regulation of land use, more power in judiciary rather than legislature).

See four nuisance hypotheticals on page 154. Boomer is on shaky grounds. But the Restatement says when benefits of a nuisance outweigh costs, damages should be

assessed rather than injunction. Sometimes there are bargaining problems (uncertainty) that only a court can solve. Remedy in nuisance cases is reversed (injunction given. Damages only if inj. is inadequate). Flexible remedies available. Getting injunction before plant is built is difficult. Only for nuisance per se. (Exception for

funeral homes in residential areas). Restatement suggests balancing is inappropriate when computing damages. Takings implications. Is Boomer unconstitutional? Bove v. Donner-Hanna Coke Corp . Boomer v. Atlantic Cement Co. Whalen v. Union Bag

& Paper Co. (cited)

E. Water Rights. Start by classifying the water: surface, percolating groundwater, and water from channels

or banks. Springs could be #2 or #3, depending on their source. We have the right to use water, but we don’t own it (no right to exclude). Riparian or littoral water rights only for the person contiguous with the water.

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Water rights are a ratchet: if land if united, X can only use water on the old property bordering the water.

Water rights can’t be sold, though this is changing in the west. Who owns the land under the water? Depends, sometimes the state. Most riparian water use cases are about reasonable use. RU: 1) Even states w/ common enemy rule make landowners take into account the effect

of surface water on others. 2) Under oil and gas law, Y can drill and take the oil and gas under two people’s land. (Not the case with water). 3) In times of shortage, each gets less. 4) Sometimes size of the land makes a difference (irrigation). 5) Public regulation can be a strong limit on riparian rights. 6) Riparian rights must be beneficial use. Wide range, but two examples of non-beneficial use. One was to clean debris from tubs. The other was to make duck marshes for a duck hunting club.

The traditional “natural flow” riparian doctrine gave owner water rights for domestic purposes only. Today, X still can’t use water for non-domestic (or unreasonable?) purpose to the detriment of a downstream owner.

Seven difference between East and West on water law. (Riparian vs. prior appropriation.) Differences also apply to underground waters:

1) Prior appropriation means to give a preference to the person who stakes a claim first. One of the striking things under riparian law is the little attention given to the first possessor. Very different from the law of finders. In riparian law, it makes no difference. Everyone, newcomers included, are entitled to an equal share. That is not the assumption in the West. The assumption is that prior approriation will prevail.

2) In the East, only riparian use is allowed. In the West, use off the premises is permitted.

3) During shortages, in the East, people share, which we saw in Harris. In the West, in general, the most recent appropriator loses. The prior appriator trumps the later one.

4) In the East, no special amount is designated. You have a right to reasonable use, but no speific quantity. In the West, a specific quantity is allotted.

5) In the East, there are some restrictions (maintaining natural flow). In the West, any beneficial use is permitted.

6) The extent of regulatory overlay is much greater in the West than in the East. East is generally left to litigation. The West leaves it to regulation and a permitting system.

7) In the East, the federal government has no special rights except navigational easements. In the West, there are federal reserve rights that are a trump to state regimes. It is much disputed how much the feds have retained a right to water in the West.

1. Diffuse Surface Water. E: Cts. split over right to drain surface water onto property of others. Most apply a

reasonable use under the circumstances standard. Westland : Rejects common enemy rule (an unlimited privilege to deal with surface water

without regard to others) and civil law (natural flow) rule (higher elevation tracts ahd an easement or servitude over lower tracts for all surfae water that natually flowed downhill. But anyone who increased or interfered with the natural flow of surface waters was strictly liable) and endorses reasonable use for surface water (liability only when one’s harmful interference with the flow of surface waters is unreasonable).

Compliance with the buildings codes not necessarily reasonable use, though may be evidence of it.

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Helmholz wonders about Westland in reverse. What if ice rink gathered the water and depleted the Buick’s fountain? Difficult question.

Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc .2. Groundwater.

E: Most American states apply reasonable use of ground water. Usually may not divert the water to other properties which he may own.

Macartor : Creative remedies with injunction under reasonable use standard. Court micromanaged the remedy. (Like a nuisance remedy).

Law has moved from an absolute ownership to reasonable use standard, mostly due to new scientific knowledge.

Look up cited cases. Law treats flowing underwater streams as riparian, not groundwater. C: 1) Absolute ownership doctrine. Only limit is that may not draw water for the

malicious purpose of injuring others. 2) Reasonable use doctrine. Any use on the land is reasonable, unless malicious or

simply wasted. Use off the land is “unreasonable.” 3) Correlative rights doctrine. An owner may not deplete his neighbor’s supply, and in a

shortage, water is apportioned. Macartor v. The Graylyn Crest II Swim Club, Inc .

3. Riparian and Littoral Rights. E: Common law approach was no advantage for priority of use. Each riparian owner

(abutting the water) is entitled to as much water as can be put to beneficial use. Western arid states apply prior appripriation doctrine. Must apply for permit, anyone can

apply, user’s priority dates from the time of the application. Harris : Court issues injunction at 189.67 feet, the level at which plaintiffs would be

reasonably interfered with. Court discusses natural flow theory (for riparian rights) also natural level for domestic

use only. C: Natural flow doctrine: Owner may consum as much water as need for “domestic”

purposes. Beyond this, owner may use the water for “reasonable” artificial or commercial purposes, subject that he does not substantially or materially diminish the quantity or quality of water. No water may be transported to land beyond the riparian land.

Reasonable use theory allows the user water that is reasonable, with due regard for the

rights of others on the shore. Court endorses this, with qualifications. 1) Domestic use is superior to other uses (fishing, recreation). 2) All other lawful uses of water are equal. 3) When one lawful use is destroyed by another, the latter must yield. 4) When one lawful use interferes with another, a question arises as to its reasonableness.

C: Riparian owner may make any reasonable use of the water, so long as it does not unreasonably interfere with the other riparian owners’ opportunity for reasonable use.

Considerations for RU: Purposes of use, its economic value, its social value, cost and practicality of other uses, how much a use impinges on others, etc. Domestic uses are favored. In the West, irrigation may be favored.

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Five elements of prior appropriation (used in western U.S.) 1) Qualified person must acquire the right. 2) Must establish that he is the first to appropriate the water. 3) The water appropriated. Some are beyond use. 4) The use of the water. Must be put to actual and beneficial use. 5) Element of priority – being first in right. Last appropriate right is first to be terminated in the event of a shortage.

Harris v. Brooks .

Licenses: E: A license is a right to use the licensor’s land that is revocable at the will of the licensor. This

revocability is the main thing that distinguishes licenses from easements. May be given orally. (Tickets to games, oral permission to park is license, not easement).

Exception: a license is irrevocable if its use would have been an easement except for failure to meet the Statute of Frauds, and the licensee makes substantial expenditures on the land in reliance on the licensor’s promise that the license will be permanent or of long duration.

Chapter 3. Servitudes and Easements. I. Easements.

E: For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (the dominant tenement).

An easement in gross is one whose benefit is not tied to any particular parcel. A profit is the right to go onto the land of another and remove the soil or a product of it. Thus

the right to mine minerals, drill oil, or capture wild game or fish, are all profits. (In the U.S., profits are functionally identical to easements.)

There are four ways to create an easement: (1) by an express grant; (2) by implication; (3) by strict necessity; and (4) by prescription.

Express easements must be in writing (deed or will). Often done when owner conveys and reserves for himself an easement.

At common law, could not grant an easement to stranger to the deed. Most modern courts have abandoned this.

Implied easements need not be in writing. (1) must be severance (prior unity of title); (2) the use for which the implied easement is claimed must have existed prior to the severance; and (3) the easement must be at least reasonably necessary to the enjoyment of the dominant tenement. (If given by grant, more likely to be construed against grantor).

In most states, easements of light and air cannot be acquired by implication. Easements of necessity: 1) Common grantor. 2) No prior use required. (Necessity can arise

after the land is split). 3) Usually for landlocked parcels. Prescriptive easements : 1) The statutory period does not begin to run until the owner of the

servient tenement gains a cause of action (like for trespass). Never can happen for light and air. 2) Must be without permission. 3) Continuous and uninterrupted (enough for notice). 4) Tacking. There can be tacking on the dominant side.

Scope : 1) Prescriptive easements only what was used during S/L. 2) Development of dominant estate: Regardless of how the easement was created (e.g., whether by implication, prescription, etc.), the court will allow a use that increases dues to the normal, foreseeable development of the dominant estate, so long as this does not impose an unreasonable burden on the servient estate. 3) The holder of the dominant estate is normally not allowed to extend his use of the easement so that additional property owned by him (or by others) is benefitted.

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Transfer : Easement burden stays with servient tenement. Appurtenant easements usually run with the land. if the dominant estate is sub-divided into

smaller lots sold to different people, and the geography is such that each of the smaller lots can benefit from the easement, then each will generally be permitted to do so. (But this will not happen if this would result in an extreme increase in the burden to the servient estate.)

Easements in gross at common law, were not transferable. Today, most commercial easements in gross are transferable, “personal” easement in gross aren’t.

Adandonment : Words alone insufficient. Must be intent plus conduct. Might be inferred from non-use. (Parking on the street instead of in easement).

Six characteristics of an easement in the Restatement. 1) Interest in land possessed by another. 2) Interest which permits limited use of that land. 3) Interest which is protectable against interference by third parties, including the party who

owns the land itself. 4) Not terminable at will. (Not necessarily perpetual – can have a time limit, can be lost,

etc.) 5) Not a normal incident of an ownership interest in property. (Not a right). 6) It can be created by a conveyance. (Ordinarily created by conveyance by the owner of the

land). May be affirmative or negative (prevent owner from doing something). Appurtenant easements may benefit owners of adjacent land. Treated as integral parts of the

dominant estate. (Possible overburdening if the dominant estate subdivides). Easements in gross may benefit non-adjacent owners, and may be transferred from one

holder to another unless its terms are personal to the holder. No easements in Macartor or nuisance cases because these are rights of owning the land, not

a an interest in other land. Why can’t appurtenant easements be transferred? Difficult to say. An easement limited to person involved is not appurtenant easement, but easement in gross.

A. Creation of Easements. (3 cases). Thompson v. Wade : no appurtenant easements can be given to “strangers to the deed.” Policy reasons: favoring certainty to real property, protection of BFP’s, and to avoid

conflicts of ownership. But we’re more concerned about easements on our property, not easements we own.

Helmholz seems to think this is a crazy rule. Commericial easements are by their nature transferable. (Noble’s personal easement

couldn’t be transferred in the quitclaim deed). Problem was Noble reserved only a personal easement in gross to himself. We can discern

personal easements from 1) the words conveying it or 2) the intent of Noble from the words he used.

Did Noble include “My successors, heirs, and assigns”? Helmholz thinks a court would still hold Noble’s easement in gross non-transferable, but he’s not sure.

There is a general rule against strangers to the deed, even outside of easements. Inroads are being made.

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Helmholz suggests the policy reason for the rule is to protect the chain of title in the servient estate. Someone should know if he’s going to be burdened by an easement (this does not support the result in Thompson.

Restatement allows easement grants to 3rd parties if intent of grantor is clear. Baseball Publishing : Court found an easement in gross and granted specific perf. The definition of a lease is the transfer of possession (not ownership) of the property. Mere fact the parties call it a lease doesn’t make it a lease. Fact that K is in writing makes it more like an easement than a license. (Licenses revocable

at the will of possessor). Easements still must be in writing. (Livery of seisin inappropriate for easements, today we

use register of titles). No seal required for easements in equity. Usually breach of K (license) gives rise to damages. But not with conveyances of land,

(easements) because they are unique. Specific performance usually awarded. Also an easement (in gross) because 1) right to maintain the sign (not just trespass). 2) For

specific period time (not terminable at will). 3) $25 was paid. No one would pay for something terminable at will. 4) Commercial nature. Why would commercial agreement be terminable at will?

Bunn v. Offutt : Right to use a swimming pool was a mere license, not running with the land. Run Baseball Publ. analysis: probably consideration, unlikely to be revocable at will, in

writing (though not in deed), the word “use” implies more than once. Maybe it’s an easement after all (why not a personal easement in gross?)

The deal made in 1962 determines the rights in 1969, and nothing you do between then will make a difference.

The deed controls, except where it does not say anything about the contract of sale. Representations made from Bunns to Wynns irrelevant to the case. A profit means a right of access to the land of another to take some natural product. Crossing land to get water from a stream would not be a profit because the servient tenant

doesn’t own the water. Mining, oil and gas exploration, are profits. Coming on to property to take corn would be a contract, not a profit. Industrial product, not

a natural product. Orchards are the hardest case. Are the grants to railroads easements or fee simple? If easements, government must pay for

the new purpose. Purpose of… cannot control a fee. Thompson v. Wade . Baseball Publishing Co. v. Bruton. Bunn v. Offutt

B. Easements Implied by Necessity. (3 cases). Law requires three separate elements for creation of an easement by necessity: 1) Prior

common ownership of the dominant and subservient estates. 2) Transfer of one of the estates by the common grantor, creating the lack of access, and 3) Necessity of the easement for making use of the transferred estate.

Kingsley : No easement of necessity when land is partially surrounded by navigable waters with a public right of travel. (Distinguished in Morrel, where it would cost $300K to use a boat).

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Maybe there’s a difference between a change in the land and buying the land as is. Could be based on 1) presumed intent of grantor or 2) public policy reasons. Implied easement by necessity ceases when the necessity is removed (builds a new road).

What about a river changing course? Look at the type of access granted by the easement. If necessity arises after the grant, must appeal to public policy reasons for easement. Leo Sheep : government’s eminent domain power makes implied easements unnecessary. Chandler Flyers : No easement of necessity to fly an airplane. Standard is “reasonable

access to property.” Restatement is “without which the land cannot be effectively used.” Helmholz: The easement by necessity should be understood by what the specific piece of

land was designed for. Because AZ had a private condemnation statute for easements, Helmholz thinks Chandler

was trying to avoid paying at all. The AZ statute applied to mining. See notes on statutory construction. Is there a takings

problem? (Maybe the road is a public road). Two arguments for “public” easement: 1) Land is more valuable raises tax revenues. 2)

Landlocked parties can’t get out and vote. Use these to compare with other takings issues. Courts continue to say that a very high degree of necessity is required to establish an

esaement by necessity. “Strict” or “absolute” necessity. Some states make a difference if the grantor or grantee is claiming the implied easement

(stricter standard for the grantor). Hollars : No easment under the MO statute. No common law easement by necessity because

there was no unity of title. Court held the land in Hollars was only one tract. Wiese v. Thien found separate tracts. Hollars seemed more like an inconvenience than a necessity. Do the easement condemnation statutes supplement or replace the common law easements

implied by necessity? How do the statutes change the parties’ bargaining power?

Kingsley v. Gouldsborough Land Improvement Co . Morrel v. Rice (notes). Leo Sheep Co. (notes). Chandler Flyers, Inc. v. Stellar Development Corp. Hollars v. Church of God of Apostolic Faith, Inc. Wiese v. Thien. (cited).

C. Easements Implied by Past Use. (1 case). Common law test for Implied easements or “quasi-easements”: 1) prior common ownership

of the dominant and servient estates. 2) intent. 3) continuous and apparent use of quasi easement. 4) reasonable necessity for enjoyment of dominant estate.

Higher degree of necessity required for easements implied by necessity. Flax : Not about physical access to the property, but water lines. Helmholz says intent is problematic in Flax. The court’s reliance on presumed objective

intent is nonsense. For easements implied by past use, necessity required is between mere convenience and strict

necessity. Helmholz: How can a water pipe or sewer be “apparent” in the same way as landlocked

property?

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Maybe all that is meant by apparentness is that it is possible, or likely, that some kind of link to the street is going to exist.

Flax v. Smith .

D. Prescriptive Easements. (2 cases). In general, same requirements as for adverse possession, although scope of the right is

different. (See page 55 in notes). Actuality means the kind of use (or possession) that is appropriate to the easement (or

property). Continuity: can’t be in an easement continuously. Exclusivity: can’t mean the same thing in prescriptive easements. Always shared at least

with the servient owner. Hostility: can’t mean thinking you own the property. Maybe it means real hostility.

Helmholz says easier to establish in prescriptive easements. Open and notorious: must give serivent owner notice. Can’t just drive your truck at 2am. Some states have statutes for S/L in prescriptive easements, but difficult because each use is

a separate act of trespass. Reed : Erecting barricades not enough to prevent prescriptive easement from ripening. “Neighborly accomodation” is not permission. Besides, the barricades negate permission. Helmholz thinks giving permission or a license is not a good idea to block a P.E. Connecticut statute allows notice to block a P.E. Does it supplement or replace the common

law? Must one comply with the statute? A purchaser of servient property must be notified by either record notice, actual notice, or

inquiry notice. Difficult with underground pipes, but holders of such easements usually win. Very untidy area of the law.

Recording acts not desinged to give protection from adverse possession. Haman : no prescriptive easement can be acquired by the public at large to use beach, even

after rejecting the “lost grant” theory. (Who does the owner sue for ejectment? How can it be continuous?) Court found this was a permissive use.

Dedication: courts split over whether positive intention by the owner is required. The issue of custom in Haman. See seven elements on page 57 in notes. Maybe judges don’t

know how to make it work. Custom can be 1) An interpreter of what the law means. 2) A source of law itself.

Also public trust doctrine. Courts should be skeptical of legislatures giving away such land.

Reed v. Piedimonte . State ex rel. Haman v. Fox.

E. Scope of the Easement. (3 cases). It is hornbook law that in all such situations the holder of the dominant estate may not

unresaonably increase the burden on the servient estate. Exact usage of the easement is not frozen, however. See law review article. Brown v. Voss : An easement appurtenant only to B may also be used for parcel C. Trial

court gave four reasons in this situation. 1) Plaintiffs have made no unreasonable use of the easement (other than the slight trespass). 2) If an injunction were granted to bar access to C across the easement, C would be landlocked. No appreciable hardship to defendants if

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injunction is denied. 3) Framing of an injunction to bar access to C would be impractical. 4) Plainitffs have acted reasonably in developing their property.

There was a dissent, calling this a misuse of the easement. Case brought in equity, so there’s balancing of hardships. Must be actual and substantial

injury sustained by the person seeking the injunction. In trespass cases, no balancing. In nuisance cases, balancing. Misuse of the easement is a trespass. Maybe easement should be forfeited if a proper injunction can’t be made. There’s an element of estoppel because the defendants had already spent $11,000 dollars. In this case, C was not really landlocked, so no easement of necessity. Dissent said to use private condemnation. But what would it be worth? $1? Perhaps we should facilitate bargaining between the parties. Hayes : Same parcel of land, but expanding use from a pier to a marina. Misuse of easement

rather than trespass. One must show a lot to prove an overburden (love boat docks in the marina). A deed must specifically limit its use (cars, not trucks, etc.) Permissible to pave the easement. Reasonable improvements can be made, but you cannot

change the easement. How would the issues be different in prescriptive easements? No language in a grant. We

have to interpret the “grant” by what the parties have done. Courts are split over whether roadway easements can be unilaterally relocated. Could be

holdout problems. Restatement allows it. Most cases don’t. Cushman Corp .: Dominant owner may subdivide tract for residential and commercial uses.

This does not necessarily consititute an additional burden, but an increase in the degree of burden.

Once located, should a roadway easement ever be subject to unilateral re-location by the dominant or servient owner?

Brown v. Voss . Hayes v. Aquia Marina, Inc. Cushman Corporation v. Barnes. (cited).

F. Transferability. (2 cases). Martin : Court finds an appurtenant easement because it is connected with the land. (Though

railroads, pipelines, and roads to beach may be easements in gross). General rule that easements in gross are not favored, and will be construed as appurtenant,

rather than a mere personal right, if possible. Because this is an easement appurtenant, the issue is whether or not it is unduly burdened by

extra houses on the sewer. Court says no. If a dominant estate is divided or partitioned, the owner of each part may claim the right to

enjoy the easement, if no additional burden is placed upon the servient estate. (undue burden).

Courts are reluctant to go beyond the text of a grant in property law. Adding the terms “successors and assigns” might make it seem even more like an

appurtenant easement. To limit use of an easement, be specific in the text of the grant. “For single family house,”

etc.

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Miller : Bathing rights not written in grant (could they be implied from boating? What if boat sank?)

Bathing rights were implied by prescription. (Though how can Frank be hostile to himself, as owner?)

Court said it was an easement in gross, (commercial), but argument might be made for appurtenant easement if not commercial.

The importance of non-navigable waters. If navigable, defendants would have an easement to get to their boat.

Commercial easements in gross are assignable. Easements in gross may be divided, but persons must use it as one stock. The one stock requirement has been abandoned in favor of a requirement not to cause a

significant increase in burden to the servient tenement. Example: If phone company has easement to run wires, they are usually alllowed to have the

cable company run wires as well (doesn’t change the nature of the easement).

Martin v. Music . Mannin v. Adkins. (cited). Miller v. Lutheran Conference.

G. Termination of Easements. (1 case). Principal means are: expiration, merger, release, abandonment, forfeiture for misuse,

changed conditions, laches, and adverse possession. Easements by necessity normally terminate when the necessity is removed. (See examples on page 64).

Abandonment usually must be shown by some affirmative act or at least its equivilent. One cannot lose fee simple interests in land by abandonment. (Escaping taxes).

Lindsey : Use of wrong location not an intent to abandon an easement. No prescriptive easement because not long enough, but not really hostile. More like

neighborly accomodation. Maybe plaintiffs took south easement by building on it? Seems harsh to Clark. Problems in adverse possession when neither actual permission nor actual hostility. If you have the right to drive in an easement, can you park? RH thinks not. But could be

right of access, like swimming to a boat. Mere planting of shrubs is not like a house, and lacks actuality to extinguish the easement by

prescription. Could Lindsey claim as a BFP that his deed said nothing about the easement? No. If it had

been in the chain of title, he was on notice. As long as easement is appurtenant, makes no difference that the particular deed lacked it.

Court gives a creative equitable remedy.

Lindsey v. Clark .

II. Real Covenants. (4 cases). 1) Covenant in writing. (Doesn’t have to be in deed). S/F requires contracts about land to be in

writing anyway. 2) Parties intend covenant to run with the land. Can be implied or shown from extraneous

circumstances. Passive voice?

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3) Must “touch and concern” the land. Bigelow’s test most influential. (On the burden’s side, is the property less valuable as land because of the covenant. And on the benefit’s side, is the land of the promissee become more valuable as land as a result of the covenant). Must be a nexus between the land and the legal relationship. Health club example is difficult. Private school promise wouldn’t count.

4) Privity of estate. Must succeed from the grantor and grantee. (If there are many successor, can they do it by majority vote? Helmholz isn’t sure).

Covenantor or covenantee are always bound by their agreements. Issue is whether it runs with the land.

Rogers : Requirements relaxed a bit in equity. “Touch and concern” is more easily met and “privity” requirement is replaced by one of notice. Intent can be implied as well as express.

Good to put reasons in your covenant. Usually construed against grantor, and don’t want it to look arbitrary. (But purpose can also narrow its scope).

How does one define “similar structure”? “Commercial use”? (Day care center). Covenants against commercial use engender litigation (hobbies like 50 dogs). Neponsit : An affirmative covenant to pay money, not a restrictive covenant. But Neponsit says

the affirmative act will no longer be fatal to the touch and concern requirement. Common law probably would not have allowed affirmative covenants to do something new,

rather than simply maintaining or preserving the property. Has often been said that a covenant to pay a sum of money is a personal affirmative covenant

with does not touch or concern the land. Usually in NY, affirmative covenants do not run with land. (Miller v. Clary).

Neponsit “touch and concern” test: covenant that runs with the land must affect the legal relations – the advantages and burdens – of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general, such as taxpayers or owners of other land.

Covenant in Neponsit did touch and concern land. (Money used for public purposes which must be maintained). Substance over form.

There was also privity in Neponsit. Though property owner’s association did not succeed to the grantor, it is an instrument for property owners’ to advance common interest. Substance over form. (Also another case in equity).

Helmholz says court attenuated privity requirement. There were many property owners who succeeded the original grantor.

Health club doesn’t improve the beach itself, but makes property more desireable place to live. Helmholz won’t predict it.

Rhue : covenant requires one to submit plans to a committee. So long as the intention of the covenant is clear (in this case, to protect property values), covenants will be upheld if they lack specific restrictions for the committee to act on. However, a refusal to approve plans must be 1) reasonable. 2) made in good faith. 3) not be arbitrary and capricious.

Contracts usually the product of free will. Should restrictive covenants be scrutinized more carefully? What about autonomy? Efficiency? (Encourages stability, but also dead-hand control).

Are the Rhue safeguards sufficient to minimize inefficient decisions? What if committee had approved a single federal-style house, then refused the Spanish-style house?

Oftentimes many successors can enforce the covenant. Might be holdout problems. But not much litigation on this. Helmholz has four explanations: 1) Property owners’ associations. 2)

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Injunction is equitable, so court may disregard the holdout or malcontent. 3) Might not be worth suing for damages if only one person objects. 4) Reasonableness standard unlikely to be met if only Z objects.

Right to enforce the covenant is held by all successors severally. What if the restriction is “no pets,” B-Y had dogs, (Z didn’t care). A brings in a cat. Can Z

object? What if he’s allergic to cats and not dogs? The touch and concern requirement is not about the specific pet, it’s about the requirement in a

more abstract sense. Rhue ’s reasonableness might apply if there’s no external consequences (no alcohol, no sodomy). Feider : Right of first refusal. There was intent to run with the land, but that’s not enough. No

horizontal privity and did not “touch and concern” the land. Robroy (cited): A right of first refusal is not an interest in land and, consequently, is not a

restraint on alienation. Feider was a personal contract (duration presumed to be reasonable time). The easement paragraph in Feider was an attempt to create horizontal privity. One person could own both lands and grants one to the other to get h.p. H.P. looks at the initial

transaction and finds privity from the common ownership, a continuing relationship between O and A.

Common ownership in Feider was before the covenant was made. Helmholz agrees with the court that the easement is not enough for horizontal privity. Both

parties must have a continuing interest in the land (reversion, etc.) Court: Horizontal privity did not exist because the right of first refusal did not pass with an

estate in land or relate to coexising or common property interests. Right of first refusal does not touch and concern the land. Doesn’t really effect value, and

Helmholz thinks that’s right. Runyon v. Halley case on privity.

Rogers v. Watson . Neponsit v. Emigrant Industrial Savings Bank. Rhue v. Cheyenne Homes, Inc. Feider v. Feider. Robroy Land Co. v. Prather. (cited). Runyon v. Halley (class case).

III. Equitable Servitudes. (1 case). Tulk : Starting to relax horizontal privity. It was grant of fee, so grantor retains nothing. So it

can’t be said that you meet the horizontal privity requirement in the sense of a continuing interest in the land.

Horizontal privity test is now one of notice, rather than right. In Tulk, defendant had actual notice. Constructive notice is if it’s in the chain of title, even if not

in your deed. Inquiry notice (person sees the uniform style of houses when he looked around). Tulk is of great historical significant. Is there a common scheme of development? And does X take his land with notice of it? Sanborn v. McClean : If there is a comprehensive plan, landowners are bound (inquiry notice). Can common scheme of development be implied by an ad in the newspaper? Tulk does not do away with intent or touching and concerning the land. Tulk v. Moxhay . Sanborn v. McClean. (class case).

IV. Termination of Covenants (or servitudes). (1 case).

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Can be terminated according to terms, by unilateral actions, or by bilateral actions. Most litigated is example in Grange (changed conditions).

Defendants didn’t agree to this restriction, but they had notice. Possibility to interpret covenant against the guy who drafted it, but courts have rejected this

view. Treated more as contract law, discerning the intention of the parties. How long does the covenant last? Feider suggested a “reasonable time.” Helmholz suggests 50

years and then chop. Iowa says they expire in 30 years unless parties agree to renew. (Holdout problems?)

But there’s a lot of property that’s been restricted for very good reasons. Grange court says conditions didn’t change enough. “there must be a change in the character of

the neighborhood sufficient to make it impossible to secure in a substantial degree the benefits sought to be realized by the restrictions.” (Thodos v. Shirk).

Dogs and other businesses were a “trivial, temporary, and immaterial nature.” Mere pecuniary loss to a defendant from enforcing restrictions not enough to defeat specific

performance. Restatement gives four such defenses to covenants: 1) Conduct of the parties (8 different types:

recission, release, merger, unclean hands, acquiesence, laches, abandonment, estoppel). 2) Change in circumstances. (Most courts require some kind of physical change). 3) Relative hardship. 4) Government action. (Covenant usually terminated with eminent domain).

Court disallowed the trailer park, despite the dogs (maybe conduct of the parties would have been better?)

Helmholz suggests if we read the covenant against the drafter, the trailer might be allowed. Make the grantor explicitly reject trailers in the covenant. But courts have generally rejected this view. In property law, strict interpretation is normal.

Restatement Third on Servitudes has proposed to unify easements, real covenants, and equitable covenants. 1) Must not violate the law or public policy. 2) Must be intention of the parties that successors will be bound. 3) Must be notice in order to enforceable against a successor, either actual, constructive, or inquiry.

Restatement: privity is gone, “touch and concern” is gone. Unifies and simplifies the law. Privity could never bind adverse possessors, notice can. Adverse possessor could never be bound without privity, now he can. Must know the old law and new law.

Chapter 4. Estates in Land. Reversions are completely alienable. Contingent remainders can be destroyed by natural and articifical destruction, and by merger. Three differences between vested and contingent remainders: 1) Contingent remainders are subject to the Rule Against Perpetuities; Vested Remainders are Not. 2) Vested remainders were always transferable inter vivos. Today, contingent remainders are, but not always. 3) Contingent remainders could be destroyed, though no longer today. Many states have abolished the Rule in Shelley’s Case. Shelley applies even if there is an intervening estate (merger wouldn’t). DWT today is a more a rule of construction (it applies only to grantor giving future interest to one’s heirs). Statute of Uses converts equitable estates into legal estates with a bargain and sale.

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Rule of Convenience closes the open class hen the time for distribution has arrived.

I. The Fee Simple (6 cases). Common law divided title to land between legal and equitable title. (Trust—can’t convey

without consent of both. Sometimes women had equitable title so the husband couldn’t get to it. But Sarah was the only

person named in the will, so she got both. “Sarah… and her heirs on her father’s side” were words of limitation, not purchase. Words of limitation do not limit to whom B can convey, it limits what B is taking. “To B and B’s children” are words of purchase. The children take the property now, the heirs

take nothing. “To Abraham and his seed forever.” Not words of purchase. We can’t see or point to the seed.

But they do restrict alientability. He can’t convey to the Red Cross. Royal had a choice. He could disable Sarah from conveying it, or just convey fee simple to

Sarah. Johnson suggest that if there’s an ambiguity as to the interest, we assume a fee simple. But if there’s a repugnancy, the second part is void. Hall : Fee simple subject to a conditional limitation and an executory interest in the children. Hall : future interest in children. Not limited to surviving children. Grant during widowhood is valid in TN. (Are others not valid?) Peters : Distinction between words of purpose and words of limitation. Sometimes courts will

prefer a fee simple absolute (especially if reverter clause not included). Helmholz suggest a reverter would probably go to the children living at the time the land reverts.

(Check this). Mountainbrow : A fee simple with a condition, rather than a fee simple determinable. Restrictions on use valid, restraints on alienability not. (Mountainbrow severed the two clauses). Also could be pigeonholed as a covenant or an easement. Look for magic words. Also: 1) Laws preference for conditions subsequent over determinable

fees. 2) Trying to discern intent of grantor. 3) Other, more cynical, considerations. Restraints on alienation are void. 1) Historical repugnancy explanation. 2) Modern reason to

promote the open market. 3) L&E most productive use arguemnt. Conveying land to two people makes it more difficult to alienate. Some statutes are limiting the time a fee simple can be defeasible. Rooney : Even a limited restraint on alienation for a time void, though others might be valid. Also provision that limits alienation to a group of people is void. (What about condo agreement? Seizure of property depends on the ability of the person to sell it. Courts treat voluntary and

involuntary sales as the same thing. Beck : If we say: “O to T in trust for A and A’s heirs, but A may not alienate,” we’ve created a

spendthrift trust. T’s consent required, and the creditor has no claim against T. T will be controlled by the language of the trust.

Beck had no express language creating a trust, the executor has the trust relationship. No trust in Johnson because there was no possible trustee.

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Johnson v. Whiton . Hall v. Hall. Peters v. East Penn Township School District. Mountain Brow Lodge No. 82 v. Toscano. Regular Predestinarian Baptist Church of Pleasant Grove v. Parker (cited). Bank of Powhattan v. Rooney. Estate of Elizabeth Black.

II. The Fee Tail. (1 case). Need language of procreation. At common law, could be converted into fee simples by “docking.” Four ways to convert fee tails. Convert fee tail into a fee simple absolute in the first taker (most common). Convert the fee tail into a life estate in the first taker, with a remainder in fee simple in the first

taker’s lineal descendants; Preserves the fee tail in the hands of the first taker, but convert it into a fee simple absolute in the

hands of the lineal descendants; Preserve the fee tail but allow any taker to convert it into a fee simple by making an inter vivos

conveyance of the property. Armstrong : “Offsprings or heirs” is intent to create a fee tail. Also, the land was not not to be mortgaged or sold. “A to B, but if B dies without issue, to C.” At common law, this was a fee tail because law

favored an indefinite failure of issue construction. Today most courts favor a definite failure of “issue” consturction (first taker), so first taker has a

fee upon condition subsequent, a determinable fee, or a life estate. Rule in Wild’s Case says “O to A and A’s children” means tenants in common if children are

born. If no children at time of conveyance, A takes a fee tail. (How else to explain if A has no children?)

Test “O to A and the heirs as A’s body, remainder to B and B’s heirs” under the 4 statutes. Armstrong v. Smith .

III. The Life Estate (and the law of waste). (5 cases). Life tenant ordinarily has duty to maintain property in a reasonable state of repair to maintain

value to holders of future interests. The law of waste. Thompson : “To have and to hold the above-rented premises unto the said party of the second

part [tenant] his heirs, executors, administrators, and assigns, for and during the full term of while he shall wish to live in Albert Lea, from and after the first day of December, 1904” creates a determinable life estate.

Other life estate language: “so long as the waters of the Delaware shall run,” etc. Not a tenancy at will, tenancy at sufferance, or tenancy from month to month. Smith : “as long as she wishes” is a life estate. (In Hall, by contrast, the widow had “full control

and full power,” suggesting a fee subject to an executory condition). Also, Smith required life tenant to split the proceeds on sale, inconsistent with a life estate. Court also rejects presumption against partial intestacy here (didn’t dispose of remainder).

Presumption overcome because there were other cases of partial intestacy in the will. Permissive waste (nonfeasance), voluntary waste (aff. action), equitable waste (malice to injure

the remainderman), innocent waste (third party damages, cases go both directions), ameliorative waste.

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The objector in waste must have some interest in the property. (Check to see if grantor retained anything, and his heirs could object).

At common law, only a vested remainderman had an action for waste. (Boyer). Waste applies to life tenancies, term of years, co-tenancies, contracts to convey land, and

guardianship. Three execeptions to the law of waste:

1) The grantor permits the life tenant (to cut down trees, for example). W/o impeachment. 2) The “open mines” doctrine. If oil well is already there, life tenant can continue to extract. 3) Long term lease, 999 years. Waste permitted because equivalent to a fee.

The normal remedy in waste is damages. But easier to get an injunction because A’s heirs, not A, would benefit. Foreiture and triple damages were allowed by the Statute of Gloucester, not in AK. Receivership (goes to a trustee) and partition (land is sold) also possible, but rare. Melms allowed ameliorative waste because 1) brewing company thought in GF it had the fee. 2)

Complete change in conditions, premises were worthless as a house. But Brokaw says you can’t change for the better. Testator said “my residence.” The life tenant can always bargain with the remaindermen, but sometimes we can’t see them

(“surviving children.”) What kind of damages could remaindermen get? They’re benefited. Life tenant and remainderman share expenses for benefits forced on them (an assessment). RH

also thinks remainderman should contribute to lifting a pre-existing mortgage. Sharing situations are separate from the waste cases. S/L cannot run against the remaindermen until we know who they are. Livingston : A railroad company, (or other public agency), which enters lawfully opon land and

improves it in good faith, may exclude the value of the improvements in proceedings brought thereafter to condemn a hostile right.

Livingston introduces a new principle in the law: remainderman can share in the expenses of improvements. A small window.

Possible issues of estoppel by the remaindermen, (waiting before bringing action for waste) though the court doesn’t say this. (They were contingent remaindermen).

Railroad was in good faith because it saw the restraint on alientation and assumed the whole thing was invalid. In fact, it was separable.

Tillman : life tenant has duty to pay the taxes. When seized by the state and repurchased, he only revives his life estate (anyone else would get the fee). State can seize the remainder, too.

Is B liable to C is land is seized for taxes? Couldn’t C have paid the taxes for him? Continuing problem: allocating the income and liabilities between life tenant and remainderman.

Thompson v. Baxter . Smith v. Smith. Brokaw v. Fairchild. New York, O. & W. R. Co. v. Livingston. Tillman v. Richton Tie and Timber Co.

IV. Marital Estates. (Dower and Curtsey). A. Common Law. (1 case).

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At common law, husband and wife may choose to take title as joint tenants or tenants by the entirety; but if they do not, their income and the property purchased with their income belong to them individually.

Widow got one-third share of lands of which the husband had been seised of an estate of inheritance at any time during the marriage. (Fee simple or fee tail, not life estate).

Widower got a life estate in all lands the wife held in fee simple or fee tail during the marriage, provided a child had been born alive to them during the marriage.

If the fee tail no longer exists because of failure of issue, surviving spouse takes an life estate before it reverts.

Always a risk that B’s widow might show up at C’s door to demand her dower. Changes in marital estates sketched out on page 303. Melenky : Cardozo holds against dower attaching. Son had promised to reconvey to father,

but he didn’t do it. “Seizin there is none in deed or in law.” Seizin in law is when B has received a contract to purchase. Common law had dower attach. If father had put in a right of reconveyance, he’d have an equitable title, which the Statute of

Uses would execute and give him the full title. If there had been a wrong to the wife (fraud by the husband) the case might have come out

differently.

Melenky v. Melen .

B. Statutory Changes in Marital Estates. (0 cases).

C. Community Property. (1 case). Property earned by either husband or wife duing the marriage belongs to a marital

community of which each is half-owner. (As opposed to common law’s “forced share.”) Property owned prior to marriage, and property acquired by inheritance, devise, or gift

remains the “separate property” of each spouse. Property retains the same character as it moves from state to state. Kessler : Wife’s one-half interest taken on death is taxable. Tax commissioner called it a

mere expectancy interest, wife called it a vested ownership interest. (OH statute related to joint tenancies).

Other problem with Kessler statute: wife had the right to immediate possession and enjoyment of the whole of the property during the marriage. (but she lacked control).

Court rested its decision on control. Community property and joint tenancies different only at the moment of succession. Wife

takes half instead of whole. In re Kessler’s Estate .

D. Homestead Rights. (0 cases). Right to a homestead exemption from the claims of creditors of either spouse. It is a property

interest that cannot be convyed without the other’s consent. Generally applies to a married couple’s principal residence.

V. Concurrent Estates.

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A. Basic Characteristics. (0 cases). Joint tenancy: Must have four unities: title, time, interest, and possession. Survivorship

right. Tenancy in common: Only unity of possession required. No survivorship right. Coparency: Obsolete Tenancy by the entirety: Only for h/w. Neither has right to partition. Divorce terminates

this.

B. The Creation of Concurrent Tenancies. (1 case). “O to A and B” usually tenancy in common. Common law presumption for joint tenancies,

modern presumption for tenancies in common. If there is a repugnancy, the first section prevails. (Camp). Hornbook says parol evidence is admissible to explain an ambiguity in the deed, and nothing

else. Camp v. Camp .

C. Relations among Concurrent Tenants. (0 cases, 5 notes). Because each cotenant is entitled to enjoyment of the whole, no action lies in favor of out-of-

possession cotenants for such enjoyment. 1) Statute of Anne made an inroad on this rule. Required that where on cotenant received

rent for the land from a third person, that cotenant must account to others for their share. 2) Action for waste available to co-tenants. 3) Duty of one tenant to the other. Inability of one to take through adverse possession. State v. Superior Court . Husband kicking in door held jointly was “damaging the property of

another.” Bennis v. Michigan says automobile owned in joint tenancy can be forfeited even though

wife didn’t know about it.

D. Termination of Concurrent Tenancies. (2 cases). Concurrent tenancies come to an end when the property subject to them is conveyed to a

third person. Joint tenancies may be severed either by sale or by agreement of the parties. By conveying to a third party, each joint tenant has the right to sever the tenancy and destroy

the survivorship feature without the agreement of the others. In an action for partition, the court will first try to physically divide the property, if not

possible, then it’s sold. The conveyance itself will destroy the four unities. Community property is a default regime, not a mandatory one, and you’re free to take

property in joint tenancy. Riddle v. Harmon : Joint tenant can sever by conveying to herself, no more need for

strawman). Would we upset the stability of title by not using a strawman? Helmholz thinks so. Under the Recording Act, a BFP takes free of unrecorded interests, but Riddle puts a burden

on the purchaser.

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Possible opportunism by joint tenant drafting conveyance, keeping it secret if he lives, and delivers it to the kids if he dies.

The deed in Riddle was executed, but not filed. Agreements among co-tenants not to partition are invalid restraints on alienation (though for

limited time might be valid in business, for example). An expression in a will to sever is a nullity. Allison v. Powell : An action to sever not enough. Must be “unable to retreat.” (The guy

died). The four unities remained undisturbed and title transferred to the Powells. The action must be completed to sever the joint tenancy. The unilateral self-conveyance in

Riddle was complete. Yannopoulos : An agreement between joint tenants to sell the property is valid because of

doctrine of equitable conversion. Divorce severs tenancy by the entirety, but not joint tenancy.

Riddle v. Harmon . Allison v. Powell.

VI. Reversions, Reverters, and Powers of Termination (right of re-entry). (3 cases). If there is a contingent remainder, O must retain an interest. Reversions, reverters, and right of re-entry all exempt from Rule Against Perpetuities, though

some states have limited their length. See page 117 for a tough example. Keithley : An attempt to alienate a right to re-enter for condition subsequent is a nullity. Note cases split on whether an attempt to alienate voids O’s right of re-entry. Why not alienate such hopes? 1) Paternalism. 2) If it can be sold, creditors can take it. D.C. passed a statute that said “expected estates shall be descendible, devisable, and

alienable in the same manner as estates in possession.” (Contingent remainders). Under common law, vested estates could be alienated. Issue is how far we go when the

estate is not vested. Putnam : Grantors heirs were permitted to convey the right of re-entry to the grantee. Promotes free alienability of land by converting it into a fee simple. The release (Putnam) is treated differently than a conveyance (Keithley). Policy of the law encourages release to party “already possessed of some substantial estate.” “O to A in fee upon condition subsequent.” O dies, leaving X, Y, and Z as his heirs. Can X

convey the interest to Z under Putnam? XYZ together could release their interest to A. If A’s heirs get together with B, who turns it into a casino. There seems to be a public

interest in upholding the intent of the grantor. Inexplicable for the Putnam court to say the heirs took by representation and not descent. This is because the 1893 heirs would give away some interest of the 1926 heirs. Tensions between the intent of the grantor and the free alienability of land. The Rule in Dumpor’s Case says once the person with reverter (right of re-entry) allows the

property to be otherwised used, he may not later assert the right of re-entry. (inroads made). Long v. Long : Vested reversions from fee tail are descendible and deviseable. Jesse could convey his one-third reversionary interest in the fee tail. A reversion was not considered “real estate” under Henry’s will. In Keithley, the right to re-enter was not an estate. A vested interest is an estate. This is a continuation of an old distinction.

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Village of Peoria Heights v. Keithley . Trustees of Calvary Presbyterian Church v. Putnam. Long v. Long.

VII. Remainders. A. Creation of Remainders. (3 cases).

ALI Definition: “Any future interest limited in favor of a transferee in such manner that it can become a present interest upon the expiration of all prior interests simultaneously created, and cannot divest any interest except an interest left in the transferor.”

If grantor transfers his reversion to B, B’s interest is still treated as a reversion. Schmidt : Grantor tried to create a vested remainder subject to divestment. He failed because

divestment was in separate paragraphs. Court treated it as a repugnancy and gave remaindermen fee simple absolute.

Generally held that life estate to spouse, with absolute freedom to alienate, remainder in whatever is “left over” is void. Contradiction between fee simple and remainder.

“To B and his heirs, but if B dies, to C and his heirs?” How should this be interpreted? In Tomlin v. Laws, the contingency of “death” refers to death during the lifetime of the testator, unless otherwise indicated.

Arguments pro and con about remainders by implication. “A to B for life, and if B has no children, to C in fee.” Do B’s children take? Partial intestacy vs. re-writing a will.

Seven things about the Rule in Shelley’s Case. (Only effect is to change the remainder). Merger unites the two vested estates. Not contingent remainders! McRorie : Rule in Shelley’s Case does not apply because “heirs” meant “issue” (not heirs in

its technical sense). C.W. was an heir. Three possibilities in McRorie with the implied remainder: 1) A literal reading would be a contingent remainder with reversion in the grantor. 2) Implied remainder in her heirs (Shelley would apply and she’d have a fee). 3) Implied remainder in her issue. (She’s only have a life estate). Hauser v. Craft (cited) also implied a remainder in children rather than making it a fee

defeasible on her death without children. Doctrine of Worthier Title . Operates to convert a remainder professedly limited to the heirs

of the grantor into a reversionary interest in the grantor. Stewart : Sophisticated ignorance. Was “heirs at law” in a technical sense when distributed

“in equal shares”? Also a problem that the attorney, rather than Stewart, set up the trust. Rule was that “the sole beneficiaries of a trust, created by themselves as settlors, may revoke

the trust without the consent of the trustee, although they do not reserve a power of revocation.”

Statute applied is close to the Doctrine of Worthier Title: “Where a deed, will or other instrument purports to create any present or future interest in real or personal property in the heirs of the maker of the instrument, the heirs shall take, by puchase and not by descent.” If the statute applies, the heirs take by purchase, and the trust is irrevocable.

Court relies on the intent of the trust and bails out Stewart.

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Stewart couldn’t have drafted a will to destroy the heirs at law’s interests, because he can always destroy his will.

Schmidt v. Claus . McRorie v. Creswell. Stewart v. Merchants Nat’l Bank of Aurora.

B. The Classification and Characteristics of Remainders. (5 cases). Contingent remainders cannot be alientated; vested remainders can. (Rights of creditors,

bankruptcy, suits for waste, eminent domain). In all those, the vested remainder is treated better.

Ryan: Both contingent remainders fall to the ground and were naturally destructed. Artificial destruction is when a life tenant purports to convey the fee. “A for life, remainder

to B if B survives A,” A could destroy B’s remainder by making a tortious feoffment. The reversion went back to the grantor and to James P. At common law, if a contingent remainder does not vest at the natural termination of the

estate, it fails. (Often contrary to the intent of O). Today, most jurisdictions would hold the contingent remainders open to see if the

contingency is met. It would be a reversion subject to outstanding interests. Rule in Shelley’s case might apply to James’ P.’s interest. See discussion. Four types of contingent remainders. 1) The persons who take it are unascertained (heirs of James P.) 2) At least as frequent, is a remainder where the contingency is survivorship. “Remainder to

A’s surviving children.” Those are vestsed in terms of the person who takes, but they are contingent because they have to survive the life tenant. So they are treated as contingent remainders. We don’t know until A dies.

3) Age conditions. Quite frequent. “O to A for life, then to A’s children, who reach the age of 35.” “O to A for life, then to B, if B reaches the age of 35.” Why the age condition? Grantor wants the taker to be mature enough to handle the money, or have established a family. It is possible, and not infrequent to fix such condition.

4) Encouragement conditions. “O to A for life, then to A’s children, if they stay drug-free.” They will get fee simple at the death of A, to promote free alienability of land (unless contrary intention is shown).

At common law, grantors used trusts to avoid the destructibility of contingent remainders. “Remainder to trustees, terminable upon B’s turning 25, and remainder to B when turns 25.” If condition is for B to reach 25, and he dies at 24, reverts back to O. “O to A for life, remainder to B’s children.” Vested remainder subject to open until A dies.

(We don’t know if O meant A’s specific children, or all the children he would ever have). Buckley : Early vesting of estates in favored. The remainder in Walter and Maurice vested at

the death of the testator. (What if they hadn’t been born yet?) If the class were determined at the death of Oakey, it would be a contingent remainder,

contingent on survivng Oakey. Vested remainders are an asset of the estate that are taxed at death. “To my husband H, and at his death to my children A and B or my heirs.” This was held to

be a contingent remainder on survivorship due to “or my heirs.”

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Remainders may be held in any of the following estates: in fee simple (absolute, determinable, subject to a condition subsequent or executory limitation), for life, or for a term of years. They have four features in common.

1) They are created simultaneously with and in the same document as a prior possessory interest, and it is what “remains” ager that prior interst;

2) the prior interest must be immediate prior to the remainder and there may be no gap in seisin between them, if there is, if can take effect only as an executory interest;

3) the prior estate must end naturally and it cannot be cut short by a divesting event, or the future interest can take effect only as an executory interest;

4) they must be held by a person or persons other than the grantor of the document in which they are created.

See six examples on page 346-347. (“But if…” is vested subject to divestment). No difference between vested remainder subject to divestment and condition precedent in

effect, it’s just the wording. Danz : To accelerate, a remainder must be 1) vested, not contingent. (In this case vested

subject to divestment). 2) Acceleration depends on the intent of the testator as to the time for distribution. (Must the remaindermen outlive the wife or do they take if she renounces against the will?) 3) No intervening (executory) interests. (Court holds that the time for distribution has arrived, and the divesting condition had not been met).

The remainder was vested because there were named persons ready to take possession at any time.

“O to A for life, then to B if B stays drug free.” We would not accellerate if O renounces, because it’s not the intent of testator. (#2).

Executory interests, unlike contingent remainders, were indestructible at common law. If for some reason the remainder couldn’t be accelerated, it would depend on the intent of

testator. Black v. Todd seems to allow contingent remainders alienated once the remaindermen are

ascertained, even though there is still a condition precedent. Browning : Court holds an ambiguous remiander to be contingent. Reasons for keeping the early vesting rule presumption: 1) reducing the number of persons

having interest in the affected thing, making it easier to secure a conveyance of the ownership. 2) Reduces uncertainties as to the created interest. 3) Rule against perpetuities operates more destructively to interests subject to a condition precedent.

Uniform Probate Code reverses the common law presumption in favor of vesting (trusts only). “A future interest under the terms of a trust is contingent on the beneficiary’s surviving the districution date.” (Tax reasons). Increases escheat – can’t be devised.

See discussion of “O to T in trust for A for life with a remainder to B and his heirs in fee.” Page 140.

Ryan v. Monaghan. Buckley v. Buckley. Examples of Remainders. Danz v. Danz. Black v. Todd. Browning v. Sacrison.

VIII. The Statute of Uses and Executory Interests. (1 case). It converts what was previously an equitable estate only into legal estate. (Bargain and sale).

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If you turned over the clod, you still used the common law mechanism. Trustee must be seized of a freehold estate for the Statute of Uses to apply. See the four new estates possible under the statute of uses. Restraint on alienability in Blackman v. Fish is valid because it was a forfeiture restraint, not an

alienation restraint. If you alientate, it goes to someone else. Blackman : the forfieture defeats the life estate before its natural determination, so the limitions

are executory devises. The rules on contingent remainders do not apply and all children whenever born are objects of the gift. Class will not close.

A contingent remainder only happens on the natural termination of the previous estate. Unlike contingent remainders, executory interests not destructible like in Ryan. Purefoy v. Rogers says an interest capable of taking effect as a contingent remainder or an

executory interest will be treated as a contingent remainder. Under Purefoy, the class would close at life tenants death and future children would be excluded. But in Blackman, the defeasance interest could never be treated as a contingent remainder. The executory interest holds it open for future children because it executes the use, just like to A

if A attends B’s funeral. (Awkward because title is held in abeyance). Time in abeyance limited by Rule Against Perpetuities. Executory interests can also “cut short” a vested future interest, but not a contigent interest, else

you’d have alternate contingent remianders. (Danz). No contingent interest could be created to follow a term of years, but “O to A for 20 years, then

to B in fee” would not be an executory interest. Common decided A was seized to the benefit of B.

You can save contingent remainders from destruction by merger by inserting a time space. Purefoy : “A for life, then to B if B graduates before or after A’s death.” A has split the

condition and created two future interests, the latter executory and safe from destruction. This would not work if “A for life then to B if B graduates from law school.” Purefoy would

apply there.

Blackman v. Fish .

IX. Powers of Appointment. A. The Nature of Powers.

Donor, donee, appointees, taker in default. Common law would not permit devise of real property. The donee would be seized, so it’s

not a devise. Statute of Uses executed the use in O and took away this ability to will property. Statute of

Wills was then passed. The relation back doctrine. A just fills in the blank for O. Gilman : Wife given life estate during Robert’s life, Robert given general testamentary power

of appointment to frustrate creditors. Wife gets nothing at Robert’s death. Robert’s power not mandatory because of default provision. And the takers in default have a

vested remainder subject to divestment (as soon as they are born). The will can always be destroyed.

Taxation : Feds impatient with relation back. If A appoints by will, (general not special) that’s enough to tax.

The power to appoint by will is equivalent to a gift in your estate.

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The IRS taxes an default (general?) appointment as well. (Can’t escape taxes by dying intestate.

IRS does not tax a special power of appointment, because the true owner is not A, it’s the appointees.

Bank of Dallas: When settlor creates trust and makes himself the beneficiary, and reserves to himself a general power to appoint the remainder by deed or will, creditors may reach it.

Different than Gilman because here the settlor was the beneficiary. In Dallas, the remainder is in the children. In Stewart, the remiander is in the heirs. (DWT

applies). So “children” would prevent the trust from being terminated, but it would not keep the creditors from reaching it.

Restraints on alientation OK in a spendthrift trust, but not in Rooney.

B. Varieties of Powers. General powers permit appointment in favor of anyone the donee chooses. More frequent are special powers, in which the class of appointees is circumscribed. “Appoint by will” restricts the power to testamentary dispositions. If the power allows the donee to appoint to one or more of the appointees, but not necessarily

to all, it is called an exclusive power (as opposed to non-exclusive). Presumption is in favor of an exclusive power, unless otherwise indicated. Powers of appointment may be mandatory (also called powers in trust) or discretionary. No donee can be forced to exercise the power. If a taker in fault exists, must be a discretionary power of appointment. A general power can never be a mandatory power. If an attempted exercise of a discretionary power is void, the property passes to the takers in

default, if there are none, then to the donor. Unless the Doctrine of Capture is employed. Failure to exercise a mandatory power results in property passing to the objects of the power

in equal shares. Capture applies when donee makes an ineffective exercise of a general testamentary power.

(If he fails to exercise it, it still goes to donor’s estate).

Don’t need the word “power” to create a power of appointment. Rowland’s Estate : Court says this is a special power of appointment, limited to “my

friends.” Court says power is mandatory as to Maria Discombe, discretionary as to her close friends. Power is mandatory when: 1) the subject of the power (property to be disposed) is certain.

2) the objects (beneficiaries, a class is enough) are certain. 3) the power is imperative (if the testator shows he wants the power to be executed, it is the duty of the donee to execute).

A properly though out power usually includes a gift in default of appointment. If it does not, however, where the power is special a gift to the possibhle appointees is

usually implied where the class in not too large, even if the donee does not exercise the power.

If the power is general and no gift in default exists, the assets revert to the estate of the donor. If, however, the donee of a general power makes an ineffective attempte to appoint, it is held

that the assets become part of the donee’s estate. In effect, the donee “captures” the assets subject to the power.

Does the court allow A to try again? Not if he’s dead. If he’s alive, that’s Rowland’s Estate.

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What about “every member of the human race except…” Should court treat it as special power?

“O to A for life and then to such children as A appoints.” If a child is dead, can be appoint to his grandchildren or must it pass through intestacy?

Takers in default take a vested remainder. And creditors therefore have a right to reach it.

X. The Rule Against Perpetuities. Rule covers: contingent remainders, executory interests, and vested remainders in a class. Rule does not cover contracts (except option contracts to convey land, etc.) Rule does not apply to reverters, rights of re-entry for condition broken (these interests are

contingent but treated as vested for purposes of the Rule), or vested remainders in an individual. The lives in being must not be so large that survivor cannot be determined by the ordinary

evidentiary process. Purpose of the Rule is to promote earlier alienability and certainty of ownership that leads to

earlier alienability. Connection with power of appointment and relation back. We must measure from the time the

power is created, not exercised. When a general power is exercisable by the donee, you don’t relate the appointment back. For

special powers, we take relation back more seriously. A general, but testamentary, power would relate back.

Union Oil : held that an option contract violated the R.A.P. The option was contingent because Union had to exercise it and the city had to acquire rights. There has to be a connection between the lives in being and the grant (Victoria’s granchildren

was upheld). One can argue that an interest does not violate the rule if the fee can be alienated. “O to A for 99

years, with an option to renew.” If A can convey the option with O, that’s argument for the grant’s validity.

Court in Union Oil rejects “wait and see” doctrine, which considers events that occur after the period fixed by the rule has commenced. Which lives in being do we choose?

Equitable considerations (estoppel, reliance) have no application to the R.A.P. Jee : A remainder to a fee tail violates R.A.P. because of indefinite failure of issue construction. Possible to construct the will as referring to “these daughters” rather than “daughters then living”

because of the parents’ age and the use of the word “daughters” rather than “children.” “O to A for life and 25 years after A’s death, to A’s descendents living at his death, and then

living.” This class is not subject to open, it’s subject to closing, shrinkage. (I think it’s void, and I think it can’t be alienated).

One of the good things about class closing rules is that the save gifts from the Rule Against Perpetuities.

Manson’s Estate : The remainder to the unknown “widow” was void under NY law, but fine under the traditional rule.

The gift to the daughter was contingent upon her outliving the wife. Thus, this remainder is contingent and cannot be accelerated. Hence, no valid disposition of the remainder is made.

One could say “wife if she is living at the time of my death.” That would save it from the Rule.

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Suppose the remainder at wife’s death, was to “Dorethea and her heirs.” It would be a vested remainder and not subject to the Rule Against Perpetuities. Dorethea can join with the wife to convey the fee. She has a vested remainder, and the rule works exactly as it’s supposed to. Vesting occurs as soon as we find out.

We want to avoid perpetual overhanging interest that would prevent the fee from being alienated. Check to see whether it is a devise or a conveyance for the create, kill, and count approach. Watch to see if C is getting a life estate or if there is a survivorship condition. If C has to be

alive in order to take, it does not violate the Rule. If it’s a contingent remainder (and destructible within lives in being) it’s OK. If contingent remainder is not destructible, it’s a problem. We strike only the invalid interest: “O to A and heirs, but if it ceases to be used for alcoholic beverages, then to B and heirs.”

Shifting executory interest is invalid. A gets a fee simple absolute. “O to A for as long as it is used for alcoholic beverages then to B and heirs.” B’s interest is void.

“Then to B and his heirs” is invalid. So the estate would be. “O to A for as long as it is used for alcoholic beverages.” Determinable fee, with possibility of reverter in O.

What about a devise with a residuary clause? “O to A and heirs, but if it ceases to be used to for beer, back to O.” Then O has a residuary clause in his will to B. Helmholz thinks this is too close to parody the Rule.

Sears v. Coolidge . Sets up a trust that’s irrevocable, but amendable in any way. Trust was to

come to an end under two possibilities: 1) The death of the last survivor of those of my children, grandchildren, and great grandchildren who shall be living at my death, or 2) the attainment of 50 years by the youngest surviving grandchild of mine who shall be living at my death.” Which ever occurred first would terminate the trust.

The court says if you have two possibilities, the court allows you to take the one that acutally happens. If A is invalid under the Rule, that doesn’t mena that B is invalid. Court allows you to look at the condition that actually happens.

Court says settlor’s power to amend was tantamount to a power of appointment. Problem is the relation back doctrine (when there’s a special power of appointment). Children

might not be lives in being. The initial power to appoint does not violate the Rule, because it must be used at A’s death. You

could have a power that was to occur at too remote a period, but that’s not the case here. The second look doctrine says if it is true that all the children of A were in being at moment one,

there is no violation of the Rule. Unusual case because 1) It wasn’t really a power of appointment, that Thomas maintained, it was

a power to amend. 2) He didn’t exercise it. Second look applies only to powers of appointment. Wait and see applies generally. Eight or nine states have abolished the rule. Policy considerations: Inherited wealth, dynasty

trusts can be taxed, etc.

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