I.	Introduction: Acquiring Property
A.	From other peoples – The meaning of sovereignty
Chapter 1 (pp. 1-32)
Johnson v. M’Intosh
Focus on the concepts of sovereignty and chain of title (how one justifies claims to ownership in property)
Facts: Proclamation of 1763 forbid private purchase but in 1773 and 1775 people still bought land from the Indians directly.
Chain of title
P Joshua Johnson received the property by will  Thomas Johnson received by 1775 sale/deed  Piankeshaw owned the land by possession, this was a fairly sophisticated legal deal.  The colonist anticipated the problem of communal ownership so they negotiated with the chiefs to ensure that they had the power, legitimacy to convey the land.  The Piankeshaw may have gotten the land through conquest.
D M’Intosh received property by 1818 patent/sale  United States rec’d property by 1783 ceding  Virginia took by force 1776  Great Britain by discovery under monarchy of James I 1603-1640.  Discovery gives the right to go in and conquer or purchase as agreed to by all European nations.
1773: Murray et al set up two transactions, he wants to go with legally valid transactions with the Illinois Indians.  The second deal was in the name of the king.  Raises the question of who owns it.  The court finds neither transaction valid.  In answer the question of who legally holds the land, the court says specifically the king.  The deal between William Murray and the Illinois Indians was considered an unusual, unknown transaction.  Murray et al wants the protection of the crown.  Also there was uncertainty due to the Proclamation of 1763 which says they can’t do what they are doing.  They had the gall to put in a request for the King’s protection, recognition of ownership.
Was the deal with the Indians a fair one?  It was bargained for, they were paid a significant sum of money.  Illinois rec’d 24,000 and the Piankeshaw rec’d 31,000.  The documents were drawn up by the buyers to ensure that George won’t get it.  The money from the buyers to the Indians, not the king.  William Murray owns the land. They are really land speculators directly flaunting the royal proclamation so they determine that if they lose the property they want it to go to the crown.
Beneficial Trust: Murray was creating a trust, a legal construct.  One party holds legal title (George III), but he or she holds wealth for the use, benefit, and behoof of someone else. Marshall says sales of Indian lands to individuals are invalid.  The legal title belongs to George III.  William Murray has use and benefits of the land.
Cause of action: common law action for ejectment.  Only tenants can bring the action.  
Johnson’s argument: 
1)	First in time/superior claim.  P is asking the court to evict the current occupant and recognize his superior claim.  Get rid of M’Intosh because Johnsons have a legal claim to the land.  The Johnsons are looking for a declaration that the land belongs to them as a result of the 1775 sale.  
2)	The Indians are not subjects of the crown.  If the proclamation of 1763 is an unconstitutional act then the Johnsons get the land because the Indians were within their rights to convey.
3)	P Natural Law Arguments: The government cannot divest one of the use of land without a representative process and compensation.  P also uses a constitutional argument, can’t deal with colonies like conquered territory.  Mere act of the executive government cannot divest the Indians of rights in the land.  Invalidates the Proclamation of 1763.  Validates deeds of 1773 and 1775.  Can’t be taken away without some sort of process.   Land speculators, don’t really care.
MacIntosh’s argument: 
1)	Possession requires going to the land. The Johnsons never went to the land and weren’t present at the time of the dispute over the land.  M’Intosh is on the land and wanted the use of the land.  He went there and was in possession of the land – “became possessed thereof.”  Johnson claiming that he is seizoned by having the deed delivered to him.  
2)	Notion of superior sovereignty.  “Conquest gives title which the courts of the conqueror cannot deny.”  The sovereign wants the exclusive right to extinguish title.  Why is this important?  Otherwise disorderly scramble for land, multiple, unauthorized sales.  A registry of deeds type decision. The Indian’s don’t have enough sovereignty to alienate their own land.  They have the right of occupancy from continued use of the land.  Inhabitants, organized group, entered into treaties.  Authorized to enter into deals and treaties.  They have their own sovereignty though it is diminutive.
3)	D Natural Law Arguments: People ought to learn to share.  Don’t have any right to more than you need.  Two sovereigns: U.S., just desserts argument.  Have the Indians put enough labor into the land to decide to keep it?  Moral entitlement/idea of productive use view.  But the Indians wouldn’t say they had more than they needed.  Indians did not have enough control over the land to be recognized, use of the land not intensive enough.
-	Idea of Productive Use: Marshall admits may be a question of whether one use of land is superior to another. If principle asserted in the first instance it cannot be denied later.  But steps back at times to demand that humanity comes in.  Settlement made the land valuable, either give up the land or assert power.
4)	D Positive Law Arguments: D argues that the Indians have no dominion/sovereignty and they didn’t have it in 1763.  The Proclamation of 1763 is valid because the Indians were subjects and only held an Indian title that could be extinguished by U.S. act, in this case the land grant of 1818 to M’Intosh.  Distinguishing the purpose of being on the land from inhabiting land. Intensity of use required to get rights to the land.  The Indians are a defeated nation subject to the British crown.  Even if the sale is valid, all P got was Indian title that can be extinguished by an act of the crown. Man made law, statutory, constitutional.  The Indians do not have the power to give and individuals to receive title.  The Proclamation of 1763 did bind the Indians.
Rule: Gives judgment to MacIntosh, Indian’s have Indian Title but don’t have the right of alienation.  Have the use of the land at the approval of the sovereign. Marshall relies on the Proclamation of 1763 to recognize that Great Britain had exclusive right to sell property, based on discovery, implicit, not direct.  There is a question of Virginia’s jurisdiction because Virginia’s proclamation of 1779 occurred after the sales of the 1773 and 1775 have been completed.  Can’t grandfather back land right restrictions.  Marshall uses Proclamation of 1779 to state the rights, because he characterizes the Proclamation of 1763 as a fundamental right.
Why does Marshall need to state it so clearly if its already fundamental, stated in Proclamation of 1763, VA Proclamation of 1779?  It is not clear that it is an obvious, fundamental right.  Really a political move, why not rely on the Proclamation of 1763?  Based on his thoughts on its legitimacy.  “Mere act of the executive government.”  This is a legal/political question, constitutionally invalid, not a conquered territory of Marshall law.  This is a way for Marshall to not recognize the Proclamation of 1763 without losing effect – codifies existing law.
Upham Perspective: Is Marshall’s opinion totally ruthless?  Conquest gives title that the courts of the conqueror cannot deny.  What is the source of sovereignty?  Can’t deny title taken by force, Mao Tse Tung, power comes from the barrel of a gun.  Upham likes parts of the opinion.  
Joint Tribal Council of the Passamaquoddy Tribe v. Morton
Facts: P wants declaratory judgment that U.S. Government is required to sue the state of Minnesota for violation of rights.  P gave up land for value, negotiated a treaty.  P wants either the land or the value of the land in the end.
Holding: the tribe is entitled to have the U.S. Government sue the state of Minnesota.  The U.S. Government cannot deny P on the sole ground that no trust relationship exist.  No injunctive relief, they don’t have to sue. Passamoquoddy’s don’t have to be recognized specifically to have a trust relationship.  They are included in the Non-Intercourse Act under the generalization of “Indian Nations.” 
Parens Patria: the parent can sue on behalf of the ward, no right to title.  The Proclamation of 1790 is similar to 1763, 1779, it is the Non Intercourse Act.  The court posing the question of if can sue to establish statute of limitations.  The government has a conflict of interest.  It is supposed to represent the interest of the Indians. It is also interested in not clouding titles.
Upham Perspective: The government could not take the case for other reasons – the Passamoquoddy’s not consistently a tribe over time.  In this case it was stipulated that they had been in continuous existence.
Oneida v. Oneida Indian Nation
Issue: will the government invalidate titles based on an act 200 years ago or will it be time barred? Will the European American’s long occupation of Indian land extinguish Indian claims? As such it boils down to a statute of limitations type case – which opinion gets it right?
Majority: the outcome will not be time barred.
Dissent: Should be barred by gross laches.  Acts not kept secret, no subterfuge, too much time has passed.  Third party would be effected, people who have been living on the land with current investments.
Doctrine of laches: those that sit on their rights cannot receive the benefit of the courts.  Determined by a statute of limitations and looking at other factors.
Upham Perspective: The doctrine of gross laches against the whole idea of parens patria: sat on rights too long, didn’t protect yourself and people counted on you not protecting yourself.  Says not fair, Indians knew about the trade, sale to others, they have to protect themselves.  Against the whole point of parens patria, should not be punished for not acting.
Benedict Kingsbury - International v. National Law and doctrine of aboriginal title (Mabo)
Close interaction between international law and local property law issues.  See int’l. law as a continuum, social practice, judicial understanding, courts talking to each other.  Integration, trying to get to a broader understanding.
Europeans agreed on legal ideas based on shared Christian ideas, shared thoughts about natural law.  No sharp differences with international law.  In the scramble for colonization needed some law to adjust claims, to get to shared solutions.  Law of title/territory quickly evolved.  In the cases, see close relationship between law of title and territory and how they would deal with the law of indigenous peoples.
Doctrines of title and territory existing prior to Mabo:
1)	Discovery followed by occupation over terra nullius: land belonging to nobody, if you discovered it can do what you want. Discussed in Mabo, was it right to think of Australia as terra nullius.  Discoverers established the first claim but it had to be followed up by occupation or some form of control.  Can give title to terra nullius.
2)	Discovery and occupation of occupied territory: distinguished among a range of occupation.  Why would the Europeans want a doctrine that would say if there were people there you have to treat them differently?  They might find that the locals are too strong for them.  The British didn’t try in China what they did in Americas.  Even in the colonial context, there were some countries that were already settled, that other powers wanted to get a hold of.  Some situations where you already had French or British living on the island.  The current occupier does not want to find that they have been termed terra nullius.  There was a presumption of continuity of property rights, where land has already been settled.  There was no logical distinction, why China could be treated differently?  People who are barbarous, without any existing law.  They should not count and their land should be treated as terra nullius.  Doctrinal idea of a standard of civilization and some people do not stand up. Would normally make sense to respect local laws initially.  Question of whether to emphasize the doctrine or to look at the practice.  The practice used at first to uphold local property rights.  Then flipped once whites were in the majority, then see the cases turn against aboriginal title.  Early cases not reported well, later cases made Mabo possible.
3)	Conquest: common means of acquiring territory.  Applied in Europe also.  A presumption that in the case of conquered territory the local law continued.   The conqueror had the power to change local law, but if he chose not to, local law continued.  Ordinarily would continue, but these people are so uncivilized that their law does not continue.  Their occupancy can continue but not on the basis of their law.  (Johnson – Marshall).  Aboriginal occupancy by Indians is at the mercy of the gov’t. and can be terminated by it at any time.  Non-compensable taking of land.  Big issue – has there in fact been a conquest?  Australia not conquered, were the Americas truly conquered?
4)	Cession: often done by treaty in the Americas.  Might presume that if a country would enter into a treaty with native people, there is the presumption that the native people have the power to enter into that transaction, assumes some form of sovereignty.  Some are explicit acts of cession; others seem just to offer the Europeans something – rights to set up a trading post, purchase land.  Others look like conveyances.  Treaties have a lot of different forms, do different things.  How far were they really treaties?  How much did they actually deal with the recognition of sovereignty?  Published in the treaty books of the European countries.  General presumption that the treaties were on a footing with other European powers.  Part of the world of treaty making.  American approach.  Part of U.S. law in the same way as a treaty between the U.S. and France.  Treaties rank with equal force with statutes, but below the constitution.  Treaties can displace statutes.  Part of the business of international law waned in the second half of the 19th century with the treatment of indigenous peoples as barbarous.  U.S., by decision, stopped making treaties.  Do past treaties connote recognition of sovereignty with those groups, when did that sovereignty end?  The treaty itself embodies the structure of the relationship with the parties.  A relation among sovereigns.  Involves recognition that the signatories are not just part of the citizenry, something special there.
Sources of Law Used to Overrule Terra Nullius
International Norms: Strong idea that if you had an organized society you had the attributes of statehood.  The international law group protected the presumption of statehood.  When Iraq invaded Kuwait, seen as a gross attack on Kuwait’s sovereignty, against international law ideas of what exist and why?  States not admitted to this club were not states and were not protected by this system.  Recognized states have to follow international law, if you are dealing outside of that you can do whatever you want not governed by international law.  
How does race factor into that?  Ethiopia was Christian, still not recognized as a state, while other Christian states were recognized.  Japan, recognized though not Christian, power overcomes doubts about civilization.  
League of Nations covenant of 1920, pre dates UN, global organization. Japan came to the table, asked for racial equality to be put in the charter.  Much grumbling, did not get in, not accepted by the U.S., Britain, Australia, etc.
International understanding incorporated into ideas of local law.  The local law there before should continue to apply.  The same thing would apply to whichever indigenous group was there.  Usufructory: idea that aboriginal people were using the land, that use ought to continue.  Could continue under aboriginal law. In the U.S. would continue under occupancy.  Tee Hit Ton (1955), Supreme Court decision that occupancy is not by title, but by the sufferance of the government.  Is still the law.  Limited view of aboriginal title.
Natural Law argument: Made in U.S. at the time of the Marshall cases.  Indian Removal Act debate in the Senate. Idea that everyone is a human being.  However, they use land is what nature intended.  Undercurrents of doctrine.  Marshall pays deference to it.
Customary law of the indigenous peoples itself applies: local rules about how land and property is owned applies.  
Inalienable: the highest form of owning property is that you can’t get rid of it. Customary law of indigenous people.  We are on the land now, but holding for later generations.  Much more of a flowing, different allocation of rights to land, harvesting. 
Alienable: the idea that property can be sold.  How do you now prove what was the custom of the local people before Europeans came in.  Suspicion that indigenous peoples testimony now may be self-serving.
Look generally at customary practices and usages of the people and to uphold those under modern law.  Leads to saying you can only do what you did before.  If there are resources you didn’t use or know about you have no rights to it; oil, bauxite, gold, etc.  Common way to deal with aboriginal title.  Only allow traditional use.  Question of how to deal with commercial rights, i.e. selling salmon rather than just eating it.
Aboriginal Title: Is there aboriginal title at all?  Initially was the tendency to accept aboriginal title.  Done formally, on paper or de facto sufferance.  Tendency to dismiss aboriginal rights.  We will provide an allotment for you, dispossessed Indian’s of land.  If property given is one acre, the family is stuck on that.  Revival of aboriginal title in Canada, Calder in Supreme Court of Canada.  The claim was to aboriginal title, not upheld by the court.  Three judges said there is title to the land unless it has been extinguished.  Now the issue is has it been extinguished in the particular case.  What has the government done that is inconsistent with the continuance of the title?
Is the whole system of crown grants inconsistent with Indian Title, so that the whole system is inconsistent with establishment of Indian Title?  All title would arise from the crown so aborigines only have rights in the land that come from the crown.  All of that really showed that the introduction of British law was to give no respect to Indian Laws.  No recognition of Indian rights except as granted by the crown.
Guerin, Canada 1984, holds that the Canadian gov’t. is under a quasi duty to the Indians, not free to extinguish rights.  Has to act in some way that respects the Indians.  Interprets the 1982 Constitution and Charter of Rights, patriated to Canada from Britain.  The case law later holds that these instruments expressly preserved existing aboriginal rights.  Constitutionalizes it and vastly restricts the ability of the gov’t. to extinguish it.
Similar decisions in New Zealand, recognizes possibility of rights to fish.  
All of this behind the thinking of the Australian court as they were approaching Mabo.  They saw that other common law countries had recognized aboriginal title. They could not flout it. They were also influenced by the denunciation of the terra nullius doctrine internationally.  It would seem odd for the Australia to have its doctrine depended on the doctrine that was no longer recognized.  Influenced by the changing environment, recognition of doctrines against racial discrimination and the growing belief that there was an international body of law dealing with establishing rights for indigenous peoples. Australia wants to keep property rights as they are but they are faced with the tension between what is happening in the common law and the development of indigenous peoples law internationally.
Mabo v. State of Queensland
Parties and what they wanted: representatives of the Merriam people wanted a statement that they had rights to the Murray Islands.  Lawsuit precipitated by the Queensland Amendment Act, which establishes a system of making land grants.  Was the Queensland Gov’t. about to evict the Merriam?  Making grants on trust, not about eviction, about control.  Queensland in the North of Australia, most southern culturally.  Aboriginal rights are an issue there more so than in New South Wales.  Trying to establish a clear sense of control, not going to evict the Merriam but wanted to make it very clear who was in control.  Eddie Mabo wasn’t going to let this happen.  Rosa Parks of Merriam.
Queensland position
Radical title: about a right to dispose of the land as the sovereign wished.  Fundamental, sovereign right to deal with the land.  
Beneficial title: not implied by radical title, because structure of government and legal rights that decides who is going to have title to the land.  Recall from Johnson title going from sale to George III who holds for the benefit of.
How would the Johnson court have decided the issue?  
How would Marshall have dealt with this with different facts in Johnson, if it had been shown that the Piankeshaw were not nomadic, fierce, high spirited?  They would have been found civilized and had a stronger claim to the land.  Would not have mattered at that time.  
In the Mabo case, the Toohey opinion in particular, talks about what is necessary to rise to the level of Indian Title, does the group have to be able to trace it to time immemorial, or can it be just before the Europeans got there?  Does the use of the land have to be exclusive?  Brennan says no, doesn’t have to be exclusive.  None of the justices thought you had to have the right of alienation under Merriam customary law.  The Murray Islanders could not alienate their customary title.  Gets back to what land is for in Merriam society.
Think about Johnson in light of Mabo, Mabo answers the question of the constellation of rights.  
Would more information about Native American law, customs, interaction with the land have mattered?  Property rights have to do with power, may not have mattered.  The idea of Mabo representing aboriginal people directly is much different than the case in Johnson.  The less attractive group in Johnson was the group that represented Native American rights – speculators.  If had found for them, they would have gotten the land, dispossessed the Indians on the land, trust established by the 1763 Proclamation would have been obliterated.
What, if anything, was different in the American and Australian treatment of indigenous people’s claims to land?  
Query: the pressure on the Mabo majority to recognize aboriginal title after 150 years of established property title.  Different than in U.S., because U.S. not as fully integrated into the common law family.  For two reasons: 1) most of the other common law systems contain a right of ultimate appeal to the privy counsel in London.  2) the U.S. is generally much less sensitive to or interested in what other legal systems are doing, even other common law systems.
No question of sovereignty in Mabo, premised on common law recognition of aboriginal title, not on a series of treaties.  Australia is the only country that deals with indigenous peoples without treaties.  Fundamental difference between American and Australia approach.
Millirpum decision discussed in Toohey dissent.  Recognition that the aborigine’s had certain moral claims.  The court goes farther to describe their law.  The social rules and customs of the aboriginal people cannot be described as lying on the other side of an unbridgeable gulf.  Recognizes the aboriginal society as a system of laws not of men, not an unbridgeable gulf.  In Johnson terms, the aboriginal society would be recognized as civilized.  But it required another step before the Millirrpum court could recognize aboriginal title.  If willing to overthrow doctrine of terra nullius could we then recognize native title?  Is native title capable of recognition?  Recovery of lost memory.  Go back and find the old cases that recognized Indian title when power was not enough to quash it.  But there still was a problem, in Millirpum, the court felt that aboriginal title had to be proprietary/exclusive, had to look like something we call property.  Plaintiff failed in Millirpum because they were not able to show this.
In Mabo, there were proprietary, strong ties to the land.  Perfect P, as opposed to the nomadic lifestyle of the internal aboriginal people.  The Merriam Islanders were sedentary, gardeners, fisherman, they knew what land was there’s.  Was this an important aspect of why the court veered away from Millirpum?  No, because of the anti-discrimination act of 1975, couldn’t vest them with more rights to the land because they used it more.  Is this different from racial discrimination? Not really if the effect is the same.
Holding: the granting of a free hold estate (FSA) would extinguish native title, but the status of native title was less clear.  For the grant of lesser estates, mining rights/pastoral leases, less certain.  If inconsistent with native title might extinguish it.
Open issue: what would happen to aborigines who had ideas of property less like western ideas?  Merriam islanders more like the west, gardening/fishing.  What about nomadic people?
State of law in the U.S. today: Indian occupation held at sufferance, land can be taken without compensation.  Mainly reiterated by state governments.  Question of taxes, gets to issue of sovereignty. Would be hard to take the land politically.  Just because that happens to be the law doesn’t mean that the court will uphold it.  Changing times lead to changing law.
Upham Perspective: Kingsbury described how Canada constitutionalized the recognition of aboriginal title, this hasn’t happened in U.S. where Indian title is held at the sufferance of the sovereign and can be extinguished without compensation.  But there does have to be notice of extinguishment.
Canada:  Delagamuuk, 1997, goes even further than Mabo.  Says yes there is Indian title for the whole culture, group, rights are not confined to their traditional uses, can use for whatever they want as long as its consistent with other uses.  Hugely important, shifted the whole environment in Canada, the gov’t. has to negotiate with the aboriginal groups.  Catalytic effect of a single court decision.  Similar to Brown v. Board of Education.
See rich countries going along with this shift.  Changing view of what international law is all about and the legal/political view of the composition of society.  Historically, international law was about how the state was constituted, this idea is being reasserted and developed.
Equador: rights to participation, freedom from gross abuses, idea of indigenous land rights, allocation of land to indigenous groups.  Came in through outside pressures.  Idea of national sovereignty changing so much that individuals can stop the state.  Not really the case in Equador.  Beginning to see a shift. Conoco pulled out. Excerpt from Joe Kane, Savages. Diane Jean Schemo, “Ecuadorians Want Texaco to Clear Toxic Residue,” NYT
Joto v. Texaco: U.S. case, brought by Ecuadorians against Texaco for contamination.  2d Cir. said the case can go ahead, initially struck out for forum non-conveniens.  Equador intervened, reversed, we should stop this indigenous rights are important, want case to go ahead.  Change in social consciousness to a point.
Equadorian state not yet in a position to deliver on this domestically.  Can’t really clean up the environment, control military powers, not a strong effective state.  So supporting litigation in another country, trying to get leverage back to control what major companies do in their country.
International Law development
1)	Human rights and non-discrimination: this prohibition now has international expression.  Prohibited what the state could do.  In Mabo, stopped discrimination, constraint on the exercise of sovereignty.
2)	Minority rights: Yugoslavia, conflicts between groups, one solution is to make sure minorities have more rights.  Indigenous peoples programs doesn’t depend on this that much.  Rights of aboriginal people in Canada may not be carried forward to Yugoslavia.
3)	Indigenous Peoples rights: difference relates to land and property. Can be associated with white guilt and ideas of how things were, need to be rectified.  Kept it indigenous, linked to the past.  Separate identities, title doctrine connected with idea of discreet civilized societies.  Effort to identify how those societies functioned, to show that they were civilized.  Idea of indigenous peoples as distinct actors on the international stage
4)	Sovereignty and self-determination: the beginning of a reversal of the late 19th century process.  Sovereign states dealt with each other as equals but excluded everything that was not a state.  It was the state that spoke.  Triumph of distinct idea of sovereignty.  Emergence of idea of self-government of indigenous peoples.  Not subject to state tax, not inferior to federal government.  Morton v. Mancari, says that U.S. can advertise to hire Indians, because they are not a racial group they are a political group.  UN Declaration on the rights of Indigenous Peoples.  Allows these groups to go directly to the U.N. to speak for themselves.  Can veto projects.
B.	From nature – The meaning of labor and possession
Chapter 2 Property in Animals (pp. 33-54)
Pierson v. Post
The initial question should be the performance of Post’s lawyer.  Was he responsive to what his client wanted?  How did he lose the case?
Issue: Whether or not possession starts with pursuit.  
Rule: Court defines it as what acts amount to occupancy, applied to acquiring right to wild animals?  Lost because he hadn’t actually wounded or killed the fox.  Court says mortally wounded or manucaption of the fox gives right to wild animals.  Livingston looks to Barbeyrac who says maybe manucaption not required, maybe continued pursuit with mortal wounding.  Converts to pursuing it and being about to capture it.  (“snatching defeat from the jaws of victory”)
Holding: that mere pursuit of a fox does not give the pursuer a property right in the fox.  Can expand to “Mere pursuit of a fox without wounding or conclusively depriving it of its liberty does not give property right in the fox.”  The problem is that you can flip it around to say that wounding or conclusively depriving of liberty automatically gives property rights in the fox.  This is dicta, because this case is not about mortally wounding.  One objective to expanding the holding is that you might be safe to bet that this court would say mortal wounding is property, but not part of the technical holding.
How else might Post have won?  There’s a better factual argument here.  
1)	Post was close to getting the fox.  If this had been proven they might have gone with Post.  Maybe not totally necessary to have manucapture, if Post had chased it up against the ocean, or into a small box canyon, a situation where escape was virtually impossible, this court might have given it to Post.  
2)	He owns it by virtue of custom, he has title. But he really wanted to enjoyment of his pursuit, he had a vested right in the process.
3)	Notice: He gets ownership rights by the fact that he has given notice to the rest of the world that he is after this fox, this expression of intent plus the actual chase and still in pursuit.  Put this factual situation together with custom and he has a strong case. 
Difference between a right to the process and rights over the thing: why Post’s lawyer lost the case.  Post’s lawyer could have approached this case from an interfering with pursuit perspective rather than property rights.  He argued for possessory rights over the fox, the outcome may have been different if he had argued for a right to the process.  See Keeble.
Trespass v. Trespass on the case: Case is an indirect harm, “intentional infringement of nonpossessory ownership rights.” The nonpossessory right here is the hunt, the process of pursuing the fox, stands for property rights.  
Where did Post’s attorney go wrong? Pierson’s attorney filed suit in case, and conceptualized it properly, then shifted the focus of the court from the process of the hunt and Post’s possible rights in the process of continuing the hunt unimpeded to the question of whether the process of the hunt was such that Post got property in the fox. It was the correct cause of action because it was for the intentional infringement of a nonpossessory right.  When that stipulation was made, Post didn’t really have a chance.  Had Post’s attorney resisted it properly, Post would have won.  Went from being an interference with a legitimate activity to being an interference with property rights.  Pierson appeals on the declaration.  We don’t know what the facts were, only what is on the declaration that is before the court on appeal, stipulated that he acquired such a right of occupancy in the fox.  Post did not argue this point and lost.
Occupancy in the fox/Ownership: If don’t find occupation – Post wins, if find occupation – Pierson wins. Not likely that you could get occupation of wild animals by mere pursuit, it was unlikely that a court was going to do that.  Made it more likely because there was an established custom around fox hunting that you don’t have around some other wild animals.  Absent that you’ll never have a court say that pursuit alone is enough to give you occupancy.
Conventional Pierson issues: sources of law, role of custom (Judge Livingston’s dissent), and the meaning of property in animals (how one acquires it and loses it and why this differs as circumstances change).  
Sources of law: 
-	Statutory law.  When a statute is passed it overrides precedent.  The first place to look for a rule is statute.  If there is no statute then look to cases.
-	Precedent.  Then go to precedent to determine general principles of law that would apply.  Is there any reason why judges would deal with it differently now than they had dealt with it in the past?  May no longer apply to the situation at hand due to the passing of statute. 
-	Ancient writers or scholarly writings. Rare that you get a case that says implicitly or explicitly that scholarly writings have a lot of clout.
-	Custom.  Serves to give notice.  The issue is if you have different customs, whose do you follow.  The code of ethics among hunters/custom, custom would have favored the hunter (Livingston’s dissent).  Livingston would force the hunters to deal with it on their own.  Doesn’t give a solution to those that don’t want to meet to work it out.  Not mutually exclusive with a bright line test.  Perhaps the bright line test is that the courts won’t get involved.  So they will then rely on the customs, no government financed way to resolve the dispute; they fall back on custom.
Custom probably would not have resolved this dispute.  Pierson kept the fox.  Post couldn’t get it by going to court.  We have the result.  Does that mean no more quarrels?  Custom would have given the fox to Post. The problem is that there is nothing to enforce custom.  Livingston saying the law should follow custom.  He wants to submit it to the arbitration of sportsmen.  He wants the law to be the same as custom, enforcement applied through arbitration with sportsmen.  If the other side doesn’t want to go along with arbitration judgment, take it to court for enforcement.  Valid as long as settled along the lines of accepted arbitration rules.
Pierson doesn’t think that what he did was wrong.  He doesn’t agree with the custom.  Hurts Livingston’s opinion because if a lot of hunters don’t agree with him then it raises the question of what's custom.  
Hidden assumptions: 
1)	Killing foxes is good, 
2)	There is an established body of custom for sportsmen.  
3)	Pierson was a sportsmen.  But Pierson wasn’t a sportsman he was a farmer.  Problem with custom is that it doesn’t apply to everyone.
-	Public Policy. What is the purpose of defining when occupancy happens?  Public policy.  (Majority/dissent) The policy argument is that “if the first seeing, starting, or pursuing such animals without having so wounded…should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of litigation.” You would have more contested cases of ownership of dead animals to come into courts.  You have limited resources in the courts, don’t want these kinds of cases coming in.  If you think the role of courts is to provide justice and disputes, the court here is saying we are not going to do that.  Saying we are going to come up with a rule that will limit quarrels and litigation for the sake of certainty and preserving peace and order in society.  First obligation is not justice to the parties but to pursue peace and order in society and to eliminate uncertainty.
Public Policy Objectives:
1)	Is this a practice we want to protect?
2)	Depending on how we structure the law, will this practice disappear?  Will fox hunting end if this can happen?
3)	Are there economic rights at stake; business interest vs. other interest?  Courts will favor economic interest.  See Ghenn, Keeble.
4)	Limiting litigation; maintaining order, reducing quarrels.
Hidden Assumptions:
1)	This decision will in fact provide certainty, peace and order. This will provide a bright line test.  Not a reasonable person standard, not mushy.  Manucapture is a bright line test.  Mortally wounding is less bright.  Pursuing with certainty of capture move away from a bright line test.  One way to interpret preserving order in society, is that the court is providing a bright line test so that courts will know exactly how to rule in the future.  Not really a bright line test because they allowed dicta in to muddy the waters. The brightness of the test is not related to what judges do.  You’ve got a quarrel you want to prevent, you provide the bright line test for the people out there dealing with the problems in the world.
2)	Hunters will hear of the news of Pierson v. Post.  Assume that what the courts say will have an effect on society.  That may not be the case.  Draws the majority opinion into question fundamentally.  So how does this decision work its way into social behavior?  
Pierson v. Post Hypotheticals:
1.	Post catches the fox, kills it, and leaves it on the beach to go round up his hounds.  Pierson takes it away.  Does it make any difference whether the fox was killed by Post’s rifle or by his dogs?
The difference is NOTICE.  He does not have possession of it after he leaves it. Hounds probably stay there and do damage to the carcass.  Lets posit that he no longer has possession.  He did not have possession after he left, but does he own it?  Post then sues to get it back; does he get it back?  Yes.  Does it matter if killed by a gunshot wound or the dog?  He may not have killed it directly if done by the dogs but they are his agents so there shouldn’t be a difference.  But there is a difference, when Pierson finds the fox killed by dogs he has no reason to believe it was killed by someone else, whereas if it were shot, he would know it was shot by someone else.  
Custom is evidence of notice. The violation of custom is irrelevant unless it negates notice.  Pierson has not unequivocally given notice that he has appropriated the fox. With a gunshot, Post clearly wins possession.  
Is the difference enough to change possession in this case?  Pierson has an additional argument; I didn’t have notice that someone has taken this animal out of the wild.  Might want to know what the custom would be.  Might look at hunting custom.  If find an animal shot, the custom might be to leave it for whomever shot it.  But the custom might be that if a fox is killed by dogs it is free for anyone that wants it.  Post is going to want the custom to be that its killed by the dogs because if the custom is that its shot, then Post can’t say I came along and it had been killed by some animals.  Post wants proof of custom to be that foxhunters allow their dogs to kill the fox.  Foxes killed by dogs, therefore the finding of it being killed by a gun will mean that Post violated the custom and therefore the fox belongs to Pierson.  If it doesn’t follow custom that’s a reason for Pierson to be able to take it and keep it.
Lawyering Issues:
If you were Post’s attorney would you cite Pierson v. Post?  Yes, rely on for the hypo. (evidence of custom)
If you were Pierson’s attorney would you cite Pierson v. Post?  Not a case about a fox killed by a hunter, a case about a fox not killed by a hunter, so really irrelevant.  It’s clearly relevant, but goes against Pierson.  Might try to distinguish it as done above.  Want to bring it up as a preemptive strike, pretty sure they are going to bring it up.  The real question is do you want the judge to know about the case?  This is a bad case for Pierson, but it will likely come up so you might as well inoculate yourself.  
Whether you have an obligation to the court to bring up a possibly controlling precedent?  You have an obligation to raise the issue to the court.  If you know of a case or part of a case that’s in opposition to your position and that it’s controlling, maybe not if dicta, you have to cite it as an obligation.  It puts everything on the table and makes the discussion about what the law actually says.  You want the judge’s decision to have a firm foundation.  You don’t have to cite it, because it might not be controlling.  But it doesn’t change the reason for the ethical rule.  
What about substantially useful but not controlling authority?  Want the judge to be able to follow the law and the only way she can do this is by knowing the law.  If she has any discretion whatsoever then we don’t care how much information she has.  There is an obligation for the parties to present any information that would be useful in making an informed decision.  Want to make sure she abides by the established law.
2.	Post grabs the fox, but it bites him and gets away.  When it is about 15 feet away with Post in hot pursuit, Pierson blasts it.
Pierson would have the right to shoot and kill the fox.  Post then brings suit asking for the fox back.  Saying the fox was and still is my property.    Post sues for the carcass, he doesn’t get it.  He grabbed the fox, but that doesn’t make it certain that he was in reasonable prospect of getting and keeping the fox.  He had not yet become the owner of the fox.
Change the hypo, he’s holding the fox, Pierson comes up and either shoots it while he’s in Post’s hands, or kills it, grabs it and walks away with it. Now Post asked for judgment.  Stronger case for Post.
Question of res nullius: belongs to no one.  If Post never had control of the fox what difference does it make if Pierson takes and grabs or kills the fox.  When Pierson walks up and sees Post holding the fox, the fox bites Post and gets away, Post reaches for a knife to kill it/rope to tie it up, Pierson sees all of this.  A stronger case for Pierson than if Post was actually holding the fox.
When the fox regained its liberty, when Post dropped it, the fox’s status changed, it was once again an uncaptured wild animal – res nullius – Pierson shoots it, the fox belongs to him.  At no point in this was the fox ever taken out of the wild.  At no point did Post get possessory rights of the fox.  While grabbing the fox, Post gained possessory rights, when Pierson comes up he takes possession, the status changes when he drops it.
He never had certain control; this is an arguable point.
Lets amend to say that Pierson sees all of this take place, then takes out his rifle, shoots it in the air, startles the fox, he drops, gets 15 feet away, Pierson blast it. Sounds like Keeble v. , maliciously hindering and disturbing P.  Post would have a claim against Pierson.  Could argue that Post didn’t have a chance of getting the fox, big dogs v. beagles. Once he lost the fox he wasn’t going to get it again and therefore not his fox, so he doesn’t have a claim against Pierson.  He has a claim but it might not be a property right claim, because once the fox is dropped its not going to be caught again by Post.  
Doesn’t mean he couldn’t sue Pierson for something else.  Interfering by shooting his rifle and causing his distraction.  Cause of action in case for interfering with the fox.  Pierson interfered with the fox, which was Post property at that time, could argue straight trespass.  Two separate acts, one was interference with possession the other was distraction by shooting.
3.	Instead of a foxhunt, Post captures several fish from a large river.  In order to keep them alive, he puts them into a small inlet off the river and blocks the inlet so that they can not return to the river.  Pierson comes along with a grenade and kills all the fish.
Containment is possession.  An element of notice, placed in a small inlet, contained rocks that are blocking the fish from getting into the stream.  Not a natural formation, looks like a trap or device to contain the fish. Other interpretation: Clearly, no notice, nothing unnatural about an inlet with rocks, a guy comes along and is fishing, he takes the fish out.
Issue of Brumagin, what does notice give you?  Didn’t require much to close off the inlet, but the person coming to it wouldn’t know that.  The second person comes and takes the fish out.  Doesn’t matter because I have completed my control over the fish, so I had occupancy and ownership.  You have deprived me of that ownership, give me the fish.
Lack of notice not dispositive, doesn’t determine ownership over the fish.  Post gets the fish back either way.  Even if you have notice it comes down to a question of fact.  The problem of notice could be solved by putting up a sign.  Pierson may not be able to read.  May not want to put a sign up to alert to bounty.  Stipulating that barrier not so obviously artificial that person coming to it would know if was erected by someone claiming possession.
Pierson expends the labor and collects the fish, is it enough for him to get the fish.  He had no reason to know they belonged to someone else.  He is doing to same thing that would give anyone else a right of ownership.  May be a policy argument, do you want to discourage people from taking resources out of nature.  If we make everyone that wants to seize an animal think is this deer domesticated, owned by someone else.  Want to encourage hunting.  It’s so easy for the first hunter to perfect his or her interest.  With no notice you lose it.
Keeble v. Hickeringill 
Noted on p. 35, 2nd paragraph.  What’s the difference between a fish and duck pond?  The fish can’t fly, have no power to escape the pond.  Would describe the relationship between the owner of the pond and the fish as compared to the duck pond, which owner has possession of the animals.  Only the fish owner has possession of the fish.  Though Keeble decided that the duck pond owner had possession of the duck.
Facts:  P has a pond, D is the next door neighbor.  D shoots in the air, scares the ducks off.  P brings the action in case, not interfering with his possession.  
Rule: He doesn’t have possession, ducks not his property, so not in trespass.  He did not win because of ratione soli.  This opinion cites it for possession from the argument of counsel not from Holt’s opinion.
Ghen v. Rich
Ghen and Keeble are about an industry (whaling/ducks); anybody who encounters that industry is going to be in that industry.  The only people involved are professionals, why not use that custom.  Duck pond, he’s involved with that industry if he is interfered with for no good reason, that’s interfering with his livelihood.  Post is just killing animals for fun; he doesn’t depend on killing them for his livelihood.  
When you do have a system of custom, if it is effectively universal then it makes a very good set of norms for social behavior.  Unlikely to have too many Piersons of the world going out hunting whales.  Only few hunt whales so you can impose custom as law in a way that you couldn’t in Pierson v. Post.
Part B Summary
1)	Fish hypo, is there for notice to the community.  It’s important in determining who owns a resource that whether or not the community has notice of that ownership.  As long as the barrier is not so artificial that it gives notice.
2)	Hypos about the dropping of the fox, since possession means ownership in the case of wild animals, and since once Post drops the fox he no longer owns it.  He may have a cause of action in case, but not in straight trespass.  When he’s holding it he has possession, once he drops it and its more than a few feet away and its hard to catch, once its out of Post’s possession its gone, its res nullius, it doesn’t belong to anybody. The point of that is the ephemeral nature of ownership, it can be lost instantly.  It can also be lost over time (Brumagin/Ewing).  
3)	The importance of circumstance, 3 cases of taking animals out of the wild – foxes, ducks, whales.  In the fox one the person who pursued it, put labor into it did not get the wild animal.  In the duck and whale ones they did get the cause of action.  The difference: the lawyers screwed up in Pierson v. Post.  The idea that if Post attorney had argued this in case as he filed it he would have won because there would have been a cause of action for interference with the hunt.  Even if he had not made that stipulation and had stuck with case and not straight trespass its questionable if he would have won.  Why? The same problem we have in Livingston’s custom issue, there is no single custom for people in this situation.  Several customs – sportsmen v. farmers who shoot when they see foxes.  Foxes are liable to be important with both those groups so having custom to deal with them will not work.  Two groups involved and one is recreational, don’t want to go with the recreational use.
C.	From each other – Possession, ownership, and title in land
Chapter 3 Property in Land (pp. 55-88)
Adverse Possession/Relativity of Title
Brumagin v. Bradshaw
Focus on the procedural status of the case to understand its relevance to property law.  
Facts: A peninsula surrounded on three sides by bodies of water.  Possessed in 1850 by Treat, repaired a wall that separated the rest of the land.  Eventually all of the land was under Treat’s possession.  A portion was then conveyed to Dysan.  P is the administrator of Dysan’s estate.  Administrator appointed by a court when the will does not appoint an executor or when there is no will.  P is managing Dysan’s estate.  Suing Bradshaw who came onto his land.
Why?  This was the gold rush, 1849, people that supplied the minors got rich.  Treat and Bradshaw were renting horses.  Dysan didn’t get rich, died penniless we know because he didn’t have a will.  What was Bradshaw doing on the Protrero?  Protrero was used for pasturage, now used for housing.  Bradshaw settled there with others. 
What is the form of the action and what elements must be proved?
Elements of Ejectment:
a.	P has to prove that he was in possession first, 
b.	D went on the land without some right from P, 
c.	D has to be there at the time the suit was filed and 
d.	his presence there has to rise to the level of possession.
What precisely was decided?  
The jury should have been given more leeway to decide with their own values.  The judge may have been correct in identifying these factors but he should not have usurped the jury’s ability to answer the final factual question of whether or not P had enough control, presence, and acts of dominion over this land to constitute possessio pedis/possession.
What will happen next and how can the judge on remand avoid the mistake of the first?
The appellate court says that’s up to the jury.  About whether it’s a question of fact or law, here it’s a question of fact.  The court is saying, because this is a question of fact the judge has to allow the jury to come to the factual conclusion.
Acts can rise to possession at one point and not rise to possession at another point.
Issue: How much is required to make possession?  Same question about aboriginal use of the land.  What’s required to establish control, domination over land so that it will be recognized?  May depend on more than acts on the land, may depend on race, etc.  Here in the same civilization, but still a question of whether certain acts on land amount to possession.
The type of notice is different depending on the various uses of the land.
The acts in 1850 that were sufficient to carve out the pasture, lot, might not be satisfactory to be possession in 1860.  By then have many people moving to the Protrero that were not there in 1850 and the use of land has changed from being used for pasturage to being used for residence.  
If Bradshaw wins on remand, does he own it?
Who owns this land after this case?  It’s not clear, the case was remanded.  Suppose that on remand, Bradshaw wins.  Would mean that P failed to prove the first element – he had possession when D came on the land.  So if Bradshaw wins can he stay in his house?  He can, but he doesn’t have the entire Protrero.  Does that mean he owns it in 1871?  He doesn’t have title, which would show that the person selling it clearly owns it, possesses it.  What has the court said?  That P doesn’t own it.  Looked at as narrowly as possible, how would you describe Bradshaw’s interest?  Better than Dysan’s.
Would Bradshaw have won on remand for sure?  No, it’s up to the jury.
Would you buy it from him?
Only thing guaranteed is that Dysan can’t take the land from Bradshaw.  The risk is that someone could come with a title from before Dysan took the land. Not a great risk though. If we look at this legally, narrowly as possibly this case doesn’t prove much.  There are many possible claimants.  But Bradshaw, probably thought that there were no likely claimants and here comes Dysan.  The only people who can probably prove title are the Spanish Missionaries.
Tapscott v. Lessee of Cobbs
Chronology: 1800 Thomas Anderson dies, he was a landowner  1802 patent for the land issued to the executors of his estate: Harris, Rives, Anderson  1820 – 25 the executors sold the patent at auction, knocked off to Rives  1825 Rives sold the land to Sarah Lewis for an interest in land she owned that was worth part of the price (total purchase price $367.50 paid by Rives to the estate executors).  Rives pays $217.50, assume this is the value of the dower interest that was conveyed.  Sarah Lewis still has to pay the balance remaining ($150) to the executors for the deed to be conveyed.  September1825, Lewis takes possession of the land.  August 1826, an account settled by a commissioner against Rives for “the whole not yet collected” amount of the purchase money.  Rives assumes the liability.  Rives failed to convey the $217.50.  1835 Lewis dies  1842 Tapscott takes possession  1844 Tapscott surveys the land  1846 Tapscott enters into the land and sues for an action of ejectment.
Issue: all of the transactions were not completed.  The problem is that executors cannot go off and make deals.  They operate with a fiduciary duty to the estate. So the deal between Lewis and Rives starts off fishy.  Sarah Lewis gave a dower interest in land that she owned, she had an interest in land by virtue of being the wife of someone who owned it. Assume Rives is the bad actor here because he shouldn’t be doing this. If he was not the bad actor he would not have assumed the liability for the balance.  Also clear because they gave the deed to Lewis.
Then we ask what Mrs. Cobbs has to show to prevail, first under the ‘general rule’ for ejectment and then under the court’s exception.  
Cobbs brought in but really doesn’t have a tenant, it doesn’t matter, and it’s a legal fiction.  Lessee of Cobbs, can’t have title if move for an action for ejectment.
Rule: need strong title to win in the case.  Cobbs doesn’t have it but she still wins, the general rule is that you can only recover in ejectment if you don’t have title. Cobbs does not have clear title.  She wins based on an exception.
Exception: Someone with faulty title in good faith, leases the land to a tenant, the tenant finds out that landlord has faulty title, the tenant finds out that ejectment can only be brought by people with good title, so he refuses to leave knowing that P has bad title.  Exception here, he is estopped from arguing bad title, because his right to be there initially was based on his belief that P had good title.
Since Mrs. Cobbs won, can we assume that she showed the required elements for ejectment?  If not, how did she win and why?
General rule after this case: the right of P to recover rest on the strength of his title or the strength of his invalid title if one relies on his belief of good title to enter into possession.  Ejectment based on P not having title, if P has title can’t bring the action.  
Prior General Rule: The way to get someone off the land initially was to prove you owned it.  How, the person that sold it to you owned it, go back in chain to prove that all titles properly passed.  Have to prove the negative, have to prove you own it and no one else does.  In most cases the only likely person to challenge you is the person there on the land.  That’s why if you had title initially you couldn’t bring ejectment.
This case corrects the misapprehension of the general rule.  Don’t have to have good title, if you do you just set up a lessee to bring it.  Don’t need good title; all you need is peaceable possession.
Clarification Needed: When can ejectment be brought, w/ or w/out good title?  Why?
General rule before case?
General rule after the case?
Again, as with Pierson, think of the lawyers’ strategies and the judges’ responses not only in doctrinal terms but tactical ones as well.
Who owns it after this case?  Cobbs wins, gets to kick Tapscott off.  Not so easy.  P put forth her evidence, what did she try to prove? That she had title.  Assume she had a deed.  At some point somebody in her case had to prove her chain of title, prove that she paid for the title.  She can’t do that and there might be evidence proving conclusively that she didn’t pay for it.  D demurs to the evidence, so what motion; you haven’t proved your case.  12b6 motion – assume the case gets dismissed if successful.  If it fails, P wins.  The case doesn’t go forward.  It’s an all or nothing gamble.  D got nothing.
Why did Tapscott’s lawyer demur to the evidence?
We know that there is no evidence anywhere that Cobbs had possession. He knew what the general rule was, he knew the chronology.  He might argue that Cobbs was not in possession at all, just because she inherited from Lewis doesn’t mean she is in possession.  Lewis was not in possession, according to the rule, prior possession is enough to bring the cause of action.  There is no possession.  Cobbs dies without title, so her land that she has rights to by virtue of possession goes away when she dies.  D says they might overrule idea of having to have title, but if they do they will still require possession. Evidence that Lewis had possession, that she died in 1835, no other evidence that Cobbs had possession.  The whole case rests on this.
If he decides not to demur to the evidence.  The idea of all or nothing gambles was a ludicrous gamble.  Don’t want the lawsuit to hang on these small differences in what you call something.  What to move away from lawyer’s game into social good.  D knew it was a gamble, all he had to do was wait, put on Tapscott, rest.
All Tapscott has to prove is that there was nobody on the land when he entered, clear from the facts.  Why didn’t he just get on the stand and prove it?  What was Tapscott’s lawyer trying to do?  Save time, money?  What was he afraid of?  The jury, why?  Maybe Tapscott was mean, and lessee of Cobbs’ was a sweet old woman.  Initially thought that Tapscott was a free black.  Couldn’t confirm it.  Maybe trying to avoid the jury, we don’t know why.  Cobbs is getting a windfall, she’s like Dysan in the Brumagin case.  Doesn’t make Cobbs an attractive P.  Gave a chance to avoid having to face a jury.
Peaceable Possession/Presumption of Possession: Novel case in this jurisdiction.  Intrusion of a stranger on a peaceable possession.  Court saying peaceable possession is all that is required now, even if holds no title.  Heirs are entitled to the property they are left.
Rebuttable presumption: There is no evidence that she was there.  But there was no evidence that she wasn’t there.  P has the burden, so if no evidence either way, if there is a particular element and there is no evidence to prove or disprove, usually not proved.  The court says we are going to presume it to be proved.  But it is a rebuttable presumption.  But Tapscott demurred to the presumption.
What is the presumption? “but if the possession be not shown to be in another, the law concludes it to be in the heir.”  (p. 69).  Tapscott demurred so he couldn’t prove it.  If he wasn’t in possession, ejectment would not lie.  He wanted to prove that no one was on the land when he took possession of it.
2 kinds of peaceable possession: 
Actual Possession: you have to have actual possession if you don’t have title.  Means you really have to possess it.
Constructive Possession: assumes you possess it and may do it irrebuttably, but doesn’t mean you do.
Constructive Actual Possession: means you actually possess it and you satisfy the requirement of actual possession as well as constructive and we won’t inquire about it because you have a deed.
She can’t have constructive possession, it doesn’t exist.  The possession that she gets can’t be constructive; hereditiments descending is constructive possession that she can get without ever going there.  Thought she owned and possessed.  Cobbs gets the land as heir by deed or will, but this is constructive, not actual until she goes on to the land to possess it.  
The normal constructive possession is that you purchase land from someone and get a deed. The deed is for 36 acres, but the deed is void, doesn’t give you title. You go on and occupy the homestead, and file your deed with the proper authorities.  The deed does not give title; you are in actual possession of the land.  But if you never go to the whole, you can have constructive possession of the whole but actual possession of the land you actually live on.
Cobbs had the deed and a will, that gave constructive possession but not actual because she never went there.  Actual possession is required to win.  If you are ousted of actual possession that seems like a real wrong.  Tapscott comes to land, no one in possession, how is he supposed to know.  In this case the court came up with this rebuttable presumption.  Tapscott may also have wanted to avoid the judge because he appears to be going far to find for Cobbs.  Setting up this rebuttable presumption will never be used again because each person faced with it in the future will rebut it.  Each person that comes into land claimed by someone, not possessed by them, will rebut that the prior persons were in prior peaceable possession.
The judge figured a way to have Cobbs win but didn’t want to change the rule that actual possession supersedes constructive possession.  Cobbs had given no evidence of actual possession.  Since Tapscott demurs to the evidence, why not make a rebuttable presumption of actual possession, so that the rule of actual possession is unaffected.
Finally, who owns the land after the case?
Cobbs, what was the basis of her winning?  Sarah Lewis owned the land, and she willed it to Cobbs, then why didn’t Cobbs just win on the strength of her title?  There was a question of if Lewis owned it because she never settled her debt (Rives).  Executors are waiting to collect, so they still own the land, maybe.  Maybe the executors still own the land.  Executors knocked off some land to Rives.  Who takes the burden for Rives misbehavior?  Executors had not yet sold the land.  There has not been a completed sale.  The court is thinking if she wins it has to be on the basis of possession. 
If you were either Cobbs' or Tapscott’s lawyer, what advice would you have after the case?
Advice to Tapscott: 
1)	Establish a formal case for adverse possession, would have given actual title and extinguished Cobbs’ claim.  
2)	Get the good title and purchase the land from the executors.  Been on the land for 12 years, may not have been long enough for adverse possession. Executors can give a quit claim deed, turn over all their interest in the land.  Tapscott could take that and go and sue.  Gets back to who owns it.  Ownership is greater than prior peaceable possession.  No one’s going to buy it like this.  If you want full value you should go and get title.  Find the executors, will be hard.
Last paragraph (p. 69), saying don’t bother to go back and get the deed from the executors because Cobbs may not have perfect title, but it’s better than yours.  Her ancestor paid good money for this and she was defrauded by one of the executors.  Rives in taking the dower interest, constructively took it for the executors, so the executors constructively received the entire price so we constructively assume the full price to have been paid.  Because the executors constructively took the full value, they are estopped from claiming otherwise.
If Tapscott were a freed slave, would this presumption have more force?  No, because Tapscott’s lawyer could just ask Cobbs to come to the stand to say that she was not on the land.  Wouldn’t Tapscott still have to come to the court?  
Tapscott Summary
1)	The cause of action of ejectment was originally only for termors, people who didn’t own the land, were not able to prove that they owned the land because they didn’t claim to own the land.  Writ of right was before ejectment, required you to prove that you owned it and that no one else did, hard to do because you would have to trace your chain of title and prove that it was robust.  Ejectment became claim for people with ownership, have to prove that your rights are better than those who are in possession.
2)	The court has a general rule that says that P must have good title and that the only exception is the case where D has entered under the color of P’s title.  If Tapscott had been Lewis’ lessee or termor there would have been an exception, and he would not have been able to challenge her title.
3)	This case corrects the law, adding an exception that is as large as the general rule.
Adverse Possession: Two Honest Buyers
Person thinks they own the land, gets constructive title, but has actual possession on the used portion of the land.  Something that is true is better than something presumed to be true.
Lessee of Ewing v. Burnett
Chronology: 1798 Symmes  S. Foreman  Next day gave to S. Williams  1803 Symmes sold to Burnett (D)  1823 Williams owns it Williams died 1824 goes to P Ewing by will or in testate  1825 Ewing owns it  1837 Burnett owns it.
Burnett owns it because he satisfied the 4+1 elements of adverse possession on p. 80.  What was the date at which those requirements were initially fulfilled? Counting from 1803 when does Burnett become the owner? 1824.  Same year Williams died and Ewing began to have a claim.  What is the significance of that?  The clock is not reset once the 21 years starts running.  The transaction in 1824 to Ewing has no significance.  Burnett by this time is the owner because the 21 years have run and he has satisfied the 4+1 requirements.
Logic behind having the adverse possession rule:
-	Don’t have it for the owner, we have it for the adverse possessor and for people buying the land, can determine who owns it.  They can presume that the person who appears to own the land actually does.
-	Want people to invest in land based on the good faith reliance on apparent circumstances.  Puts property owners on notice, requires them to maintain their land.
Title through adverse possession requires 4+1 requirements be met:
1)	Actual possession for the statutory period, often 20 years; (includes exclusivity)
Ewing thought this was an issue because Burnett didn’t physically occupy the land, didn’t build anything, etc. What acts of dominion are necessary on this type of property to amount to exclusive possession.  Getting sand is enough because this lot was not suitable for building on.  
Part of actually possessing includes exclusive use: doesn’t have to mean that you are the only person that possesses it just that no one uses it without your authority.
2)	Regular and uninterrupted possession;
Once you admit this was actual possession, that possession was regular and uninterrupted.  Once get past weakness of actual possession and establish acts of possession can find that they continued.
3)	“Open and notorious” possession, giving reasonable notice to the owner and to the community;
He took people to court when they trespassed, he said it all the time, took sand from the land.  Others went on with his permission or were sued.
4)	“Hostile” possession, without permission from the owner.
Yes here, because he didn’t have permission from the owner.  He might have in 1803 claimed he was the owner because he bought the deed from Symmes, but as of 1837 he is relying on his acts of possession.  He knows that this was the second sale of the same piece of land that was void.  Williams owned in 1802 and 1804, so before and after this transaction.  
+1)	Some states also require that the possession be with claim of right.
Burnett had only the notion that the property was his, he also had a deed, a void deed.  A document that supports his notion that he had title, indicated claim of right.  If he didn’t have a deed would he still have claim of right?  Burnett didn’t have a deed but he did bring lawsuits and kept others off the land.  The deed gives him color of title.  Claiming of right can mean:
a)	Just claiming it as a claim of right, or
-	You don’t have constructive possession, you better have actual possession, can be fences.
b)	Color of Title (stronger): claiming it with a deed merely void that correctly describes the premises.  If it has been registered in the correct place then you have constructive possession in addition to the actual possession of the one-acre, at the end of the period you get the whole thing.  (actual + constructive)
-	Gives constructive possession of the entire parcel delineated by the void deed.  Don’t have to have ever gone there or fenced it in.  The void title gives actual possession of the whole.
-	A deed that says you have the land is enough.  If you have color of title merely void, that will be enough to get you actual possession without the physical acts of possessio pedis that would normally be required.
-	This void deed that correctly describes the premises gives color of title.  You get what you actually possessed, to get the other land you have to actually possess them.  May be able to get them by just posting signs.
-	Most adverse possessors think they own the land because they bought it.  What they really have is a void deed that gives color of title and a shot at getting to the statute of limits of being on the land.
Fraud/Bad Faith Issues – The Ruthless Usurper
Adverse Possession Law: Rule is that fraud doesn’t matter because what the law here is concerned with is the reliance of the community on the appearance of ownership.  If someone appears to own it, has a deed, the deed is registered, lived on the land a long time.  We don’t want buyers that want to put the land to a different use to come along and question ownership/possession. Policy reason is efficient use of property.
Elements of adverse possession include open and notorious, regular uninterrupted, 21 years.  Who will know about that, that B has possession of this land?  Everybody.  Williams himself knew about B’s claim.  
Suppose Williams didn’t know that B was on the land and he died.  Ewing didn’t know that B was on the land and he died.  The true owner had to know or at least should have known, if there is notice enough to the community so that the true owner should have known, will agree.  If it were open and notorious, a true owner would have been given notice.  
What did Ewing Want?
-	Ewing wanted jury instructions that it was bound as a matter of law to determine that the acts on the land did not rise to exclusive possession.  
-	The second argument is that Burnett shouldn’t get it because there is a witness that said that Williams knew that Burnett owned the land.  Ewing discovers a deed and brings an action.  Williams may have known in 1803 that Burnett was exercising dominion over land that Williams owned.  The witness testified that Williams knew this but was unable to defend his interest.   Suggest that Burnett knew that Williams claimed the land. The witness was saying Williams knew he owned it, had intent to claim it, and communicated that belief to others including Burnett.  The court does not believe it, says that since the jury found as they did they must not have believed it.  Assumes that the jury did not believe Ewing’s witness.  Now have no witness.  Claim of right, color of title and other elements fully complied with, more than 21 years, easy case.
BFP, would make the title void.  If he knew that someone else had title he might not be able to enter under claim of right.  Possible that Burnett knew that the other person was claiming it but thought that his claim was better.
Symmes had no valid title to pass: Don’t need notice of the prior deed to make the subsequent one inadequate to pass title.  Still didn’t pass title because Symmes did not have the title to pass.
The deed was merely void: Believing the witness, the most that was shown is that the deed was merely void.  Merely means that there must be something more.  What more could the witness testify to, the nature of Burnett.  Next step beyond merely void is fraudulent.  Symmes sold land many times over, but Burnett is acting in good faith.  No fraud to keep the land once you have heard of another’s claim.  They could go to court to settle.  If Williams goes to Burnett before the sale and states his claim, then Burnett is acting fraudulently.  
Where along the line will the adverse possessor not become the title owner?  There is no requirement of good faith.  If the deed is forged who do you give it to? If we find that Williams has approached Burnett before and says he owns it and Burnett still buys it, Burnett is clearly acting in bad faith his adverse possession does not run.
Paying taxes: an important factor, if you pay taxes the period of adverse possession is reduced, sometimes from 21 to 3 years, an incentive for people to pay taxes.
1837 is the date of this case.
1835	B  Jones
1837	E v. Jones
Is there any reason J would know that B didn’t have the land, if he was paying taxes?  J thinks he owns the land.  It would be unfair to penalize Jones for the possible misdeeds of Burnett.  
Sham Transactions: If B told J that I’m about to be sued by E and I know that there’s going to be a witness that will explain that I knew all about the deed, and I forged a deed.  J says I will pretend to buy the land.  Then we have a sham transaction; you could invalidate that transaction because it’s not real.
Clouded Title: If J bought it under cloud of title where ownership is uncertain.  J is taking a risk but he is not acting in bad faith.  B tells him there might be a problem but it should be OK. 
J’s Possession Mirrors B’s: If J knows that B knew but he wants the land and he believes him.  J can buy the land if he wants and he gets whatever rights B had.  E sues J, since he would defeat B, therefore E beats J.  If J knows that B has the land in bad faith and he buys it, he also has the land in bad faith.
When does a cause of action accrue?  If the cause of action is ejectment, it accrues when D takes possession of the land, here that’s 1803 when B enters land owned by Williams.  What does it mean to have a cause of action accrue?  Here 1803, you have 21 years to sue.  Can Williams still sue in 1825?  He can if D has misbehaved.  
When does cause of action accrue in E v. J?  Just the 21 years and so he can’t sue.  E sues J or B, B responds by saying the events described in the complaint say that I have been in possession of this land for 34 yrs. I move to dismiss.  P then brings up bad faith elements and asks for them to be explored.  Scalia would say look at the rule, the rule says 21 years to sue and if it expires, your time is up.  The rules are there to encourage people to act on their rights in a timely fashion.
1835	B  J
1937	E v. J
What happens now?  Don’t want to reward ruthless usurpers of the world.  Could put them in prison.  Don’t punish others who have relied on it.  Its not the Jones’ that are going to buy, people with mortgages, leases, rely on appearances.  Commerce built around these transactions.  If you take out these transaction after 35 or 100 years.  
What can you do with Burnett?  He is still there.  How often does the ruthless usurper become the owner, not often?  The courts will find some way to make sure he doesn’t get it.  Seen clearly in the problem cases.
The difference with art is that the possibility of it being stolen is much greater.  There’s a higher likelihood of notice.  Question of open and notorious, some art has been displayed in museums.  Similar to Ghen v. Rich, if you find the carcass of the fox or the carcass of the whale.
Marengo Cave v. Ross 
 “The fact that appellee had knowledge that appellant was claiming to be the owner of the ‘Marengo Cave,’ and advertised it to the general public, was no knowledge to him that it was in possession of appellee’s land or any part of it.  We are of the opinion, that appellant’s possession… was not open, notorious, or exclusive…”  
The court finds that the adverse possession was not open notorious and exclusive.  Issue is how do you establish notice?  Marengo Cave company is only possessing it under the land.  How is the land possessed referred to, above/below to the heavens?  It was not exclusive because Ross was walking over the top of it and the owners were underneath in the cave.  Their possession of it was not adverse to his use of the land.  
Exclusivity: In order to be exclusive the cave owners would have acted in such a way that Ross would not have been able to walk over the top of the land or all these years.  Could think of the portions of land as two different pieces. So the cave could have been exclusive because the people that came to the cave paid admission.  If the underground cave is one piece of real property, then clearly the cave’s possession was exclusive.  Lets think of it as a split fee decision, why the court thought it was not exclusive if they thought of it as a split fee.  So the court must have been thinking of it as a whole.
Open and Notorious: Ross didn’t know until it was surveyed that it was on his land.  Ross knew, because he went to the cave.  The courts finding that this was not open and notorious shows that they were intent on reaching this decision.  How could they have been more open and notorious?  They could have notified him, called him up and told him that they were occupying the cave.  How might Ross have reacted?  Would have found it strange.  How could the Marengo Cave have possibly been more open and notorious than they were?   The court is saying not only do you have to advertise but also you have to tell people that it’s true.
Court’s reasons for finding for Ross:
1)	Ross has been there for 50 years.  He’s put good money into the land, relied on it. His family has depended on it.  He didn’t know the cave was directly under his property.  
2)	If you have adverse possession of land on the surface you can see it, its open and notorious, you can look at the boundaries in a way you can’t do with a cave.  The court didn’t like it because the cave couldn’t be seen.  If you don’t realize it there is no notice, it’s not open and notorious.  Defeats the purpose of why we have that rule.  If Ross doesn’t know he can’t protest it.
3)	He had gone to the Marengo Cave and said I would like to do a survey.  They said no surveys. The onus is on the owner to protect her property rights.  Most people do surveys when they have a suspicion of encroachment.  He wanted to do it after the statutory period had elapsed.  Still the court had to make a bad decision that went against the doctrine.  According to the doctrine after the statutory period, someone does a survey, too late, if before 21 years then he can sue and win.  If Ross had come to Marengo Cave before and not been allowed, bad faith exist before rather than after should have made a difference. Can interpret the court as saying that Marengo had some fear that they were on Ross’ land so that they were there with permission of the owner.  A good example of how the most important thing in winning litigation is to convince the decision-maker that justice is on your side.
4)	Could put the onus on Marengo Cave, they were careless enough to buy land without a survey, when the owner sues 46 later, you give it to the owner.
What if the Marengo cave company had won, what would they have won?  They were possessing only the cave, that’s all they would have gotten, they would not have gotten the rights to all that was beneath the land.  Ross has constructive possession of all of it because he has title.  Unless that constructive possession was obstructed by actual possession he still possessed it.
The difference between this case and the eaves overhanging property is that you have notice that the eaves overhang your property if you choose not to sue, its your problem.
Problems with the holding: 
Assume the Marengo Cave Company didn’t know they were under Ross’ land?  Overwhelmingly the case in adverse possession, they are trespassing but they think in good faith that they own it. 
1)	They invested a lot of money in it.  Its unlikely they would have done that if they thought they were purchasing something that the seller didn’t own.  They thought they were buying the cave.  Then want to make sure the adverse possessor holds it notoriously enough so that the true owner knows that they are making the claim that they are possessing.  The clock has started ticking.  The notice has to be from the time the cause of action accrues.  If the intent is that the owner shouldn’t sleep on his rights, in this case he certainly didn’t know because he didn’t know he had rights to sue.  
2)	Question of undermining an economic edifice.  Question is who has the greater responsibility of finding out who owns the land.  Someone comes in they buy something thinking they are getting what they pay for.  Have what appears to be a good chain of title.  But its not, you paid for the lot, you build on it, sincerely believe and have been assured its yours.  Somebody else owns it but they haven’t protected their rights.  The Marengo Cave situation – they come, heard about the cave, buy the land they believe is above the cave, in good faith, they invest in it.  How did Ross find out, he has it surveyed.  Marengo could have had it surveyed as well to find out.  If you think someone’s on your land you get it surveyed.  Ross had it surveyed 46 years after Marengo came on the land.  He should have had it done on day 1.  Because he sat on his rights Marengo has invested a lot.
Wallis’s Cayton Bay Holiday Camp Ltd. V. Shell-Mex and B.P. Ltd. 
Facts: Shortly before the 12 years’ limitation period expired, the garage company abandoned plans for the road, and wrote to P offering to sell to him the piece of land that it had bought but that he was using.  P waited for the 12 years to elapse before replying, and then claimed title through adverse possession.
Rule: even had P been in adverse possession, his failure to reply to the letter would have defeated his title.  But it said that the garage company’s “use” of the parcel had merely been to wait for the road project.  Therefore, P never established possession adverse to that use, and so adverse possession never began to run in his favor.  
Reasons for finding for Gas Co.:
1)	Can interpret the letter as acquiescence in the claim of the owner, so that the farmer is there with the acquiescence of the owner.  Silence by the farmer once he gets the letter can be reasonably interpreted, as the garage sending the letter is an acknowledgment that yes we have been allowing you to use the land and now we are wondering if you would like to buy it.  It can also be interpreted as the gas station just acknowledgment that we have been allowing you to use this land.  Which one is used here?  The court felt that someone was acting poorly.  They could keep within the doctrine by allowing the bad actor to keep the land “hostile possession.”  
2)	The farmer’s use was not adverse to the true owner’s use, no reason to deny.  Their use was to wait and then build the road; nothing that the farmer would have done would keep them from using the road.  It’s still available to build the road.  If the adverse possessor is not interfering with the true owner’s use then the true owner shouldn’t be required to defend the property.  The owner might change his mind about the use of his property, making his use adverse.
3)	The focus on the owner here. The adverse possessor in most cases thinks they own the land, the true owner thinks the same thing.  All based on a mistake, everyone thinks the adverse possessor owns it. If you focus on what the true owner wants to use the land for.  
Problems with holding: If you take the holding to be that the adverse possessor’s use has to be adverse to the true owner.  How is the adverse possessor going to know what the true owner’s use is, the true owner won’t know nor will the adverse possessor know what the true owner’s use is?
Ennis v. Stanley 
Facts: Owner sold adjoining parcels of land to P and D.  P used the land up to a certain fence that he assumed was the boundary.  In different years P raised crops on portions of it.  But it was later determined that D held record title to six acres on P’s side of the fence.  The cross-examination of P by D’s lawyer included the following: (p. 85)
Held: P’s use of the six acres was intermittent, not continuous.  Also, P showed no intention to claim title to the disputed parcels; a mistake does not lead to hostile possession.  
Problems with the Holding:
1)	The court focused on subjective intent rather than actual possession.  If he didn’t intend to get it then why should he give it to him?  This case is ridiculous. He still had adverse possession.  He would win if he knew the land was not his and he still intended to keep it.  Why would the court give it to him?  Courts manipulate fact and doctrine.
2)	What reason would there be here to say that mistake doesn’t get you adverse possession.  If it doesn’t work then any BFP who purchases land that the seller doesn’t have will not qualify for adverse possession and only people who set out to defraud will get it.  
3)	Finding that use was interrupted.  He plowed that six acres for 16 of the 20 years.  It was plenty regular and uninterrupted because he had a fence and the fence defined it and the fence was there the entire time, but the adverse possessor never paid the taxes and he didn’t have color of title.  He may have had claim of right.  
Slatin’s properties p. 87.  If you pay taxes you are in color of title in good faith.  
Facts: In Slatin’s the first owner, Barry, conveyed it to 2 different people – the Haglers, and Slatin’s Properties, a real estate company.  The Haglers did not record their deed.  Slatin’s came along, B said he still owned, they checked the registry of deeds, there was no title listed, they bought it.  Neither party occupied or posted the land to establish adverse possession.  
Issue: The Haglers paid the taxes the entire time thinking that they owned it.  Slatin never paid.  That should have given the property to the Haglers.  
Rule: The court decided that the statute did not take away the common law requirement of actual possession.  You can possess vacant land by just posting.  Should have meant that Slatin properties would get it.  The court said that Slatin’s properties waited so long to enforce its rights that the Haglers were prejudiced thereby.  
There was no reason for Slatins to wait so long.  Slatins was guilty of latches for sitting on their rights to the detriment of Haglers.  
1)	Shows the importance of taxes and the importance of the character of the people who were on the land before you. 
2)	Equitable doctrines force you to look and see what was fair and talk about it openly.  Slatins knows about property, so they should know if they don’t receive a tax bill they should find out what is wrong.  If they had investigated, they would have found out that the Haglers were paying.  Because they slept on their rights the court would not give them the property based on latches.
Tacking
-	To establish continuous possession for the statutory period, the adverse possessor can combine his or her period of possession with that of predecessor, as long as there is privity of estate between the possessors.
-	Each party must have been in possession adversely to the owner.
-	Tacking is not permitted where one party has ousted another, or where the original party had abandoned possession and was replaced immediately by a third party.
Adverse possession is simply the application of a statute of limitations.
Ohio Revised Code Section 2305.04 (1954) – Statute of Limitation
An action to recover the title to or possession of real property shall be brought within 21 years after the cause thereof accrued, but if a person entitled to bring such action, at the time the cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned, such person, after the expiration of 21 years from the time the cause of action accrues, may bring such action within 10 years after such disability is removed.
NY Civil Practice Law Section 212(a) (1978)
An action to recover real property or its possession cannot be commenced unless the P, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action.
NY statute seems to have no consideration for tacking.  Is present in the Ohio statute.  NY puts the onus on P to have been there and been seized of the property for at least 10 years.  The P who does not lose after 10 years in the sovereign.  You can’t adversely possess against the sovereign.
In Burnett, seems like the opposite of NY statute, one individual has to be there for 21 years to have any claim or color of title. The original entry accrues as of 1803.
Problems
1803	B enters
1816	B  S Williams owns the property	B leaves, S enters	1825  B leaves, S enters
1834	E v. S  E owns it						1834  E v. S
Do possessory rights transfer by sale?  No.  (Clarify)
-	The 21 years is up.  In 1816 have a new D, S is there.  Action still for ejectment against whoever’s there.
-	If there is a different person have a different cause of action.
If there is a regular conveyance from B  S time does not start running, it continues to run.  
-	All the conveyances are regular and registered in the registry of deeds.  
-	When people come to trace the chain of title it goes back to B, from B to Symmes, they will think that S is the owner so therefore we want the community to be able to rely on what appears to be ownership even if it isn’t.
If B leaves and S enters, and all the other adverse possession rules continue, then it breaks.  
-	If there is no regular transaction, no papertrail that a title searcher can use and S tries to sell to J.  
-	J does a title search and finds S has no chain of title she is alerted immediately that there is a problem here.  No longer regular and uninterrupted, ceases and there is no 21 years of regular and uninterrupted.
If B leaves and before he gets off S comes in, the law will irrebuttably presume that there was an interruption in the possession.  
-	Even if S comes in and forcibly ejects B, 
-	There is no smooth regular transaction you can’t tack B’s interruption onto S.
If B leaves in 1825, has ownership in 1824 from 21 years of adverse ownership.  B will win.  
1834 E comes and sues S.  All S has is an incomplete adverse possession, but Ewing has color of title.   E will win
-	Because he acquired title from someone who claimed title.   
-	E got the land after Williams died in 1824.  
-	If assume he got title before the 21 years were up, 
-	Williams is conveying good title to E.  E still has color of title.  
-	S is a peaceable possessor; he has a possessory right.  E has color of title.  
-	If we go by Tapscott, as a practical reading of why people win lawsuits, the court was sympathetic to Cobbs because Lewis had paid good money in good faith.  Here Ewing had inherited from Williams who had paid good money.  Also, Ewing has a chain of title, from Williams.  The 21 year period by which B became the owner may be registered but in a different way.  One chain of title is valid and one is not.  If you’re concerned about the regularity of title transactions you want to give it to Ewing.  Most would say S wins.  Once E’s title is extinguished by S’s possession it’s gone forever.  Concerned about the allocation and alienability of resources.
What constitutes a regular conveyance?  The strongest situation is void deeds, describe the right lot.  An oral conveyance may not be regular because it requires a writing.  Any connection between the two parties is OK, they don’t have to speak, they can do it by deeds or over the Internet.
Predecessor in interest: P is going to be the title owner.  The person the title is conveyed to.
1803	B enters			1803
1816	B leaves, S enters		1825	B leaves and tells of no intent to return, 
1834	S enters			1834	B returns and sues S/E v. S
1840	S leaves, J enters
1848	B v. J
B leaves he does not convey it to S, he just abandons.  S comes in at 1834. 
-	It is still Ewing’s, there is no privity between B and S. 
-	They will not find B in title search so it will not appear that S has been there for long.  
-	The fiction that allows this to occur is that whenever there is a break in privity, the true owner has possession, breaks the chain of adverse possession.
The cause of action for this chain is in 1816, if B conveys to S,
-	It’s still one chain, the adverse possession occurs in 1803.  Ewing becomes seized or possessed, the true owner has repossessed the property and thus destroyed the adverse possession.
-	B does not convey to S the property; he only conveys his time on the land, no immediate interest, and just the opportunity to convey immediate possession.  It’s only rebuttable if there is no privity.
B comes back sues for the lot, he gets it.  
-	Once the adverse possessor gets it, it completes his title, he gets ownership and it extinguishes the title of the true owner.  
-	B became the true owner in 1824.  If B leaves and doesn’t pay property taxes, it doesn’t go to the people that occupy it, it may eventually go to the city, doesn’t have to adversely possess.  Can take your property for taxes.
If E returns, E has color of title, now merely void, S has possession, B has got true ownership.  
-	The black letter law is E lost it to B, S has possession – prior peaceable possession, and all E has is a void title, S will win.  
-	Depends on S showing that B gained full title and that it belongs to B somewhere, may be difficult to do.  S may not want to do it.  
-	Also raises the problem in Marengo Cave, Ennis v. Stanley, Tapscott, it sets up the situation where the court sees someone that’s paid good money, acted in good faith, may be sympathetic.  S faces the problem of proving that he doesn’t own it and that all he is a squatter, trespasser.  Even a trespasser has rights over someone who has no other interest.
-	The irrebuttable presumption only comes in where one has title either by adverse title or some other valid title.
J enters, B has possession, because there is no privity.
Adverse possession policy reasons:
a)	Justice, how can you possibly be against adverse possession if you give it to the true owner you are giving a windfall to someone who has not paid any attention to their rights.  And taking it away from someone who relied on the other persons neglect to invest money, start family, took care of the land, put their money into the land and you are going to take it away and give it to someone who didn’t even know they had it until they decided to sue.  The circumstances change, you are holding the fox its your property, you drop it, you’re not.  You’re Brumagin, the people that were there before you have loose control over the Protrero, and lots of people come looking for places to live.  Put pressure on the land, if someone not protecting it they are going to take it.  If you have title its OK, you can lose possession simply because the situation changes.  In adverse possession giving 21 years to loll about while someone labors mightily on their land.
b)	Want to take it away because you picture the useless usurper.  Don’t want to reward someone who has acted ruthlessly.  Marengo Cave, don’t want to punish someone who didn’t know.  Would have decided the other way, but can understand why the court decided the way it did.  Ross went to Marengo Cave and tried to survey it, they told him to go away.  Would still decide for the cave because Ross acted long after the statute had run.  Doesn’t make a difference doctrinally.  Should be harder on Ross because now he is really on notice that he should act.  If Marengo had sold to someone else, do you take it away from them to because the prior owners refused to survey, no but the ruthless usurper is not there?  It’s always harder when the useless usurper is there.
c)	Study found that when the ruthless usurper is still there the courts don’t find for him even though the doctrine says otherwise, explains Marengo and Wallace Bay.  The farmer’s silence when he gets the letter, waits additional weeks for the period to run, it’s hard to be more ruthless, the court could have found implicit permission, acquiescence.  The use doesn’t have to be adverse to the use of the true owner.  Requiring the adverse use to be adverse to the true owner would require alerting them, not required.
d)	Ennis v. Stanley, if mistake is not enough, the rule is that you must be a ruthless usurper otherwise you don’t qualify for adverse use.  Shows futility of good lawyering.  Also brings out the idea of a kind of muddling when you look at real cases.  The not continued regular and uninterrupted is ridiculous, because the fence was there, there was no question between the two who owned the land.  Both agreed the adverse possessor owner.  The true owner continued to pay taxes, the adverse possessor did not have color of title.  He thought he had a deed that described that land, but he didn’t.  Paying taxes is very important, if you pay that dramatically reduces the time the adverse possessor has to wait before claiming ownership. 
Disabilities: 
-	Generally, if the true owner is constrained by infancy, incarceration, or insanity, he or she may challenge the possessor within the statutory period or within ten years after the disability has been removed, whichever is longer.  
-	But a disability arising after the adverse possession has begun does not toll or extend the statute of limitations.
-	Rule here so that people don’t lose their land when they are not in a position to defend it.  Can have guardian ad litum for minors.  It is harder, under disabilities, harder to protect property.
-	Someone who works on the land over that period has a better claim on the land than someone who has been an absentee owner.  Policy of repose and stale evidence.  You don’t want to try cases based on something that happened 81 years ago.
Ohio Revised Code Section 2305.04 (1954) – Statute of Limitation
An action to recover the title to or possession of real property shall be brought within 21 years after the cause thereof accrued, but if a person entitled to bring such action, at the time the cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned, such person (O), after the expiration of 21 years from the time the cause of action accrues, may bring such action within 10 years after such disability is removed.
Apply of the Ohio statute of limitations to the following hypos. In each, assume that: 
-	O is the title owner as of 1950, that (at the time the action accrues)
-	AP enters Blackacre (O’s land) on July 1, 1950, and (when the cause accrues)
-	unless stated otherwise, that O is insane on July 1, 1950.  The age of majority is 18.
1)	O dies in 1960, and H inherits the land.  H has no disability.
AP gets the land in 1971;  
But the statute says, “may bring such action within ten years after such disability is removed.” Use “such person” to refer to the owner at the time the cause of action accrues.  If O at the time the cause of action accrues, 1950, is of unsound mind, might bring a cause of action at the time the disability is removed.
-	O Dies in 1960, that’s when disability ends, 
-	1970 the 10 years is up…, 1971 AP on the land for 21 years.
-	If you’re disabled and the disability is removed more than 10 years before 21, less than 11 years after the cause of action accrues you can’t sue at all.  
-	The disability is removed in 1960; such person H, after the expiration of 21 years from when the cause of action accrued, which was when AP entered.  H after 1971, expiration of 21 years, may bring such action within 10 years when such a disability is removed.  He can sue after 1971, or 10 years after the disability is removed (60 – 70).  He can’t sue.  
-	Should still have that right after the 21 years.  Don’t have to satisfy both requirements, just has to satisfy one.
-	21 years from when the cause of action accrues, not from when the person came onto the land. 
2)	O dies in 1970, and H inherits with no disability.
AP gets the land in 1980 
-	Other interpretation is that the statute of limitations doesn’t start running until the disability is removed. (70 + 10 years)
-	Brings up the question of when the statute starts to run.  The statute doesn’t say when the statute starts to run.
3)	O dies in 1970 when H is 6 years old.
AP gets the land in 1980 
-	The disability in H doesn’t matter, just added 10 years to 1970.  
-	“Such disability” refers back to O, but “such person” (at the time the action accrues).  Justified on policy grounds.  
-	The problem now is that H has to act before he is 18, is that fair.
Disability Concerns:
1)	Cutting short the time at which an AP has to keep it before he or she gains title, at odds with policy of aiding people who are disabled.  Want to give them some aid but if you keep conveying it to people who are disabled it could go on.  At some point you have to cut it short.
2)	We’re concerned about justice and fairness issues, so have more concern about disabled owners.  They can also protect their interest by guardian ad litum.  But people can protect themselves and property which they reasonably believe they own.  We shouldn’t punish an AP more for AP against a disabled person, they won’t know the true owner is disabled.
AP +1 v. AP 4
Want to protect +1 person more, because they are claiming the land with color of title.  They did a title search, paid taxes, occupying the land that you found abandoned where you could not find out who owns it.  Have a good faith claim of right.  At some point possessing becomes claim of right but it will take longer than someone who owns it with color of title.
4)	O is sane in 1950 but dies in 1970 when H is 6 years old.
5)	O is sane in 1950 but goes insane in 1960 and dies in 1970 when H is 6.
6)	O is sane in 1950 and dies in 1970.  H inherits but has been in jail since 1949.  He is released in 1975.
AP gets the land in 1971, doesn’t matter that H was disabled.  O had 20 years to defend the land and chose not to.
D.	Economic perspectives on the role of rights
Chapter 3 (pp. 88-101)
1)	Adverse Use
Easement by Prescription:  “Ownership” of Sunlight
Prescriptive easements are gotten by adverse use.  
-	Affirmative: The right to walk across neighbors land for a statutory or common law period, 20 years, 
-	Negative: You don’t have to possess it, means you keep others off, allow them on with permission.  Can mean you prevent construction to continue getting light and air.
-	An easement is not exclusive of the owner, if you are the only one that can go on then you have bought title.  Normally purchased or bought. 
-	Not personal to the owner, appurtenant to the land, can be passed along with the land.  Anybody else who gets the property gets it.
-	To secure an easement, need use to be: 
1)	Hostile, the best way to prevent an easement from being established is to grant possession because that prevents hostility.
2)	Continuous and uninterrupted, looser, more like regular use.
3)	Open and notorious, notice to the community that you are claiming it and using it both regular and uninterruptedly.  
4)	Don’t have to have actual possession or exclusivity. 
Presumption of a lost grant: If one person is using another’s land with a claim of right without permission, most people think the user must have a right to use that land.  Usually if the use was not allowed it would have been stopped unless they have a right to do it.  We don’t know if there was a grant back in time so that he would own that easement by purchase.  We just know it has been going on for a long time.  We can only guess that if one person is allowing another to use the land it must be because the adverse user has a right, must have purchased by a lost grant.  Develops into an irrebuttable presumption.
Policy Reasons for Easements: 
1)	For the same policy reasons that we had adverse possession we had a desire to give a right to use the easement to people who were using it for a shorter period of time and no one remembers whether there was a grant.  Can no longer presume that there was a grant.  
2)	It would be hard on P to take away something that his ancestors and descendants had been counting on for all these years.  If they had used it for as long as required for ejectment why don’t we just make the presumption irrebuttable.  After 21 years we don’t want to hear whether there was a conveyance or not. 
Statute of Limitations: for trespass, its never up, the cause of action accrues continually.  There are no statute of limitations that will apply here.  Have to make the presumption irrebuttable in order to allow ownership of legal easements.
Absolute Ownership: whoever has it gets it.  (Parker/Acton)
Parker & Edgarton v. Foote
Issue: the idea of how you get a prescriptive easement. What is the nature of sunlight and property in sunlight?  The right to build vs. the right to get light.
Rule: This case is between that point where the law will presume a grant, and the time where they had already assumed the irrebuttable presumption.  The court here decided to make the presumption rebuttable, would have sent the case back to the jury.  Didn’t send it back because there was evidence from the P’s own witness that there was no grant.  Second, that it doesn’t matter because you can’t have ownership of sunlight.  Gave Parker the right to build because felt that he would suffer concrete economic loss if he was prevented from building.  Don’t want to hinder development by granting easements.
Note: Foote could have granted permission, would have removed hostility needed for adverse use.
Reasoning:
1)	Sunlight was intangible, could not be the subject of property.  Clearly not true, because the court talks about whether or not Stebbins received it.  If he had paid for it he would have owned it.  If something is in a deed there could be a reciprocal rights.  Easements in the deed.  If they convey rights to easements, including sunlight they are robust property rights.  Just as good as owning a farm.  Just because it’s not ownership doesn’t mean it can’t be there and give notice to people.  You can have easements to light and air.  Really talking about zoning, set back requirements.  
2)	Interest in exclusive possession.  Lose the right to exclude them from your property.  If you have a right to sunlight coming on your property and it’s invaded you’ve lost that right.  The reason that blocking light does not injure you is because you don’t have a right to prevent them from blocking it.  Sunlight is more concrete and tangible than someone crossing your land.  You suffer an injury, lose view etc., the court decided we’re not going to give you a right to sunlight.  So when someone does invade it, you have no right.  The court has said that you have a right against trespass.
Tensions inherent in this point:
-	If you give a right to sunlight you are taking away a right from someone else.  Anytime we protect a landowner’s right to use her land, we are protecting it from her neighbor’s right to use his land.
-	How do you enforce a right to sunlight?  People build, you can’t sue them.  If the case had gone the other way would have developed a different set of laws – set back restrictions.  In England called it Light and Air Protection.  
Good example of circular reasoning.  Upham doesn’t believe the case is decided wrongly.  Decided correctly on the basis of third ground.
3)	We are a new country, we have a right to develop.  Economic assumption that if you give rights to sunlight you will prevent development.  
-	Assume that development is good.  
-	Underlying that is that what is good for development is efficient.  
-	The decision that will facilitate development, that will take away transaction cost, will also lead to more net wealth.  It’s unclear that this is true.  
-	Have to measure the non-pecuniary cost and the beneficial gains. 
 If the decision is right it is because it facilitated building.  But the country would have developed even if it had gone the other way.
Why can’t you get ownership of the sunlight?  
-	When you use the watercourse, the real owner will know, he will be affected by it in a way that he won’t be by use of sunlight.  Sunlight is intangible, incorporeal.  
-	Because Foote is not being injured in any way, we are not going to take away any of his rights.  If they did, Foote would have to build a fence blocking the light immediately.  Won’t serve any purpose, will cost money, Foote doesn’t want the fence there.  Question of whether there is injury being done.  When you walk across someone’s land what damage are you causing?
The doctrine of ancient lights: if the landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property.  (discussed and rebutted in Parker in favor of absolute ownership)
What is the claim of right?  If the court had adopted the English Courts doctrine, the claim would have been placing my windows on my property; this gives me a claim of right of sunlight.  Don’t have to do anything to have a claim of right unless someone challenges it.
Upham Perspective: Very similar to adverse possession.  Ridiculous to say that light and air are not subjects of possession.  Could say that you paid more money for the easement.  The court clearly believes that light and air can be the subject of property.
Acton v. Blundell
Procedural Stance: Appeal from court below on action on the case.  
Facts: P declared in the first count for disturbance of his right to the water of certain underground springs, streams and watercourses, which as he alleged, ought of right to run, flow, and percolate into the closes of P, for supplying certain mills with water; in the second count for draining off the water of a certain spring or well of water in a certain close of P, by reason of possession of which close, as he alleged, he ought of right to have the use, benefit, and enjoyment of the water of the said spring or well for the convenient use of his close.  P proved that within 20 years before the commencement of the suit, a former owner and occupier of certain land and a cotton mill, now belonging to P, had sunk and made in such land a well for raising water for the working mill.
Issue: Whether the right to the enjoyment of an underground spring, or of a well supplied by such underground spring, is governed by the same rule of law as that which applies to, and regulates, a water-course flowing on the surface.
Rule: falls within that principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water.  This inconvenience to his neighbor falls within the description of that which cannot become the ground of an action.
Rule of Parker/Acton: Absolute Ownership
Parker v. Edgarton, the person can continue to receive the sunlight up until he no longer receives it.  The person building can take the sunlight and keep it.  Opposite of Acton, he doesn’t want the water but can’t get rid of it.  Called absolute ownership.  The person who is enjoying the sunlight does not have absolute ownership, can enjoy it on his land, but does not have ownership.  Really water law rules, came out of water law originally.
1)	Whoever gets it, gets it.  If you build a building and you shade your neighbors, or dig a pit and take all the water from someone else, so what.  Says that, own your land and can build on it.
2)	You can do what you want with your property vis a vis this resource.  These cases would still say you have dominion.  Each person has domain of what’s underneath and above his land.  But in Acton, his domain is taken away. 
3)	Blundell and Acton have the same right in the water.  Its not a property right vis a vis the water.  It’s the right to do whatever you want on the land you own.
4)	In Acton/Parker give the resource to the person who is using the land.  In Acton, D was a coal miner that dug two pits, this affected P’s mill.  Because the well is underground you don’t know whose use is impacting the other.  Who gets the resource in each one?  Saying something about the value given to the court of current use – here it doesn’t count.  In both cases, P’s prior use was of no advantage to them.
5)	The courts laid down the rule that you can build and block someone’s sunlight (Parker), the court made a policy decision that building was good and that this would lead to more building.  In Acton, balancing between the use of a mill and the use of coal – no, just saying that you don’t know who you are going to impact when you dig a pit.  May be a hidden preference for coal mining.  
6)	A case about information, notice and we don’t have enough info about percolating underground water.  It seeps from one place to another in no clearly defined channels.  Now you can tell where it is going.
AO nice because you can do what you want, won’t have to pay damages. 
Problems with Absolute Ownership:
a)	But you can keep it only as long as no one else takes it from you.  In sunlight, the chances of a factory’s solar collectors being blocked are low, not a problem. But in water it can be a big problem.  Dig well, get water like Acton, how secure is that, not very.  As soon as someone comes in, digging and taking away inadvertently, or now digging purposely to take water from you.  
b)	In order to keep water have to dig deeper well.
Reasonable Use: Using the land up until the point when it damages the reasonable use expectations of your neighbors.  Determining reasonable factors can be manipulated by the court and can evolve over time.  (Prah/Evans)
Prah v. Maretti
Procedural stance: reversal of an award of a motion for summary judgment.  Sounds like a 12b6 motion, failure to state a cause for which relief could be granted.  The court here finds that the motion was granted in error and the matter should be remanded for trial on the facts.  Nuisance action, remanded.
Facts: Prah built his solar home on his central plot of land in a new subdivision.  Apparently the place that he built on his land was close to the adjacent plot.  He installed solar collector panels on the roof in accord with his intention to use solar energy in his home.  Maretti purchased the lot adjacent to Prah.  Before Maretti began construction, Prah made him aware of his solar panels and requested that he adjust his plans to shift his home over about 10 feet so as not to obstruct Prah’s solar access.  Maretti did shift his home over and his plans for construction were approved by the planning board.  When Maretti began building he incorporated a grading angle that had not been agreed to before.  According to Prah, the problem arises from a combination of the grade and the distance of D’s home from D’s lot line.
Issue: What rights does D have to the enjoyment of his land particularly as it relates to disturbances to his neighbors.
P argument: told D about panels, he built anyway.  Abiding by the zoning laws does not bar the claim.  The laws are antiquated and do not look to the future.  Matrix of private rights, why should public legislation be able to extinguish them?  Unless the zoning laws say that’s what they are doing.
D argument: already relocated house, don’t want to interfere with enjoyment of the lake, should have given notice before I bought the property.  Telling me before it’s built is not enough notice.  I have complied with the law, zoning and private restrictions.
Why should public legislation distinguish private rights?  
-	If the general public has said that and it doesn’t rise to the taking of your private property, so restricted that you lose property.  
-	Most zoning laws do not restrict nuisance.  But the public rights have restricted Maretti’s rights even more by specifying what he can do on the land.
What possible things each side in Prah would want to bring up on remand?  Criterion below will be whether or not Maretti by building where he plans to build will be unreasonably interfering with Prah’s use of the land.
-	Maretti changed the grade of the property after negotiations with Prah, also after approval from architectural committee.  Could help Prah because the court had held that he was obeying all the rules, zoning etc.  May not matter if ACC standards are not part of zoning rules.  Doesn’t have much to do with zoning.  Sets public law rules, if you’re within those rules you’re fine.  The architectural committee OK’s architectural plans, may not mean that you’re violating public standards, rules.
-	Prah didn’t give notice, his was the first house in the subdivision.  Also didn’t give notice at the time that Maretti bought.  If he had known he might have been able to orient his building at the beginning to accommodate the solar collectors.  Not clear what the notice would have done.
-	Prah didn’t have his house properly oriented on his own lot.  Should have been at the northern most point on his lot, since sunlight comes from the south.
-	Whether or not Prah could move his solar collectors?  How many lumens are lost by Maretti’s building?
The case was ultimately decided on the basis of factors other than the individual parties. 
Policy arguments that were behind the original nuisance rule:
1)	society has increasingly regulated the use of land by the landowner for the general welfare; 
2)	access to sunlight has taken on a new significance in recent years…to a society which has an interest in developing alternative sources of energy; 
Maybe an argument to bring up later, that solar energy is not common in the American community.  Prah may just be a crackpot.  Can’t expect Maretti to know what restrictions solar collectors would put on neighbors, this was uncommon.
3)	the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society.  The law of private nuisance is better suited to resolve landowner’s disputes about property development in the 1980’s than is a rigid rule, which does not recognize a landowner’s interest in access to sunlight.  (Note how policy change can impact the concept of reasonableness, could change over time.)
On remand, there is a decision made as to what is reasonable.  
-	May incorporate idea of a community’s interest.  The community has an interest in letting people have access to sunlight, especially if it aids in saving energy.  
-	May want to balance the value to P of the solar collectors vs. the value to D of moving the orientation of his house.  
Lawyering Discussion: What evidence are you going to introduce to make the case?  What objections might be made to that evidence?
-	Look at custom, it goes to the idea of notice.  But the court is making a policy decision.  If you want to prove that its reasonable or unreasonable to use solar power you see how much it is going to benefit society.  Maybe Prah’s solar panels are just a gadget, that would be important.
-	May also want to assess what is the more efficient use of the land.  Experts to testify on the amount of money to be saved, benefits of solar energy.  Want to show that he is a pioneer but he is not alone.  If the solar energy field is allowed to grow we will reap untold benefits – lower energy cost, less global warming, no dependence on the middle east.  Could also bring in an expert for Maretti to testify to the value of his land if setback restrictions are increased, etc.  Show pictures of what it looks like when solar panels are installed – not picturesque.  If all Maretti can bring in is a decrease in value, not worth more.  Lower taxes may also come in, if you could argue that solar power would decrease taxes because of less dependence on mid east oil.
-	Maybe this isn’t something a court should be doing.  Put in a position of trying to decide what’s reasonable. Trying to decide between these two parties, how to value one side over the other.  Or it could lead to no rule formulation, each dispute decided on its own facts.  Or the court could open it up to policy determination.  The Parker and Edgarton court may or may not have believed what they said, but they did believe they were making policy which was pro development.  Is court the right place to make this decision.  The more you look at this the more clear it becomes that the court should not be making this decision.
Rule:  Parker and Edgarton reasoning no longer true in the Midwest.  The court takes away the absolute right to infringe sunlight and replaces it with the reasonable use (RU) test.  
Majority: We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable in the instant case.  The landowner’s compliance with zoning laws does not automatically bar a nuisance claim.  P’s ability to avoid the harm is a relevant but not a conclusive factor.  Summary judgment is inappropriate here since the court must weigh evidence that is not provided here.
Restatement of Torts, 2d.  Section 821D – Private Nuisance
The owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others.  The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.
A nontrespassory invasion of another’s interest in the private use and enjoyment of the land.  This includes any disturbance of the enjoyment of property.
Dissent: I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.  Further, there is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Mr. Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee.  The majority’s failure to recognize the need for notice may perpetuate a vicious cycle.
Evans v. Merriweather
Facts: Upstream mine that impacted water brought to downstream users.
Holding: D couldn’t divert all of the water for his use because it is not a necessary use, but an artificial use.  P’s use was an artificial need.  It was a jury question as to who gets what.  Tell the jury the question is if a party has used more than his just proportion.  A reasonable use jurisdiction, whichever use is reasonable will win.  Reasonableness is a loose term but one will win.
“A proprietor may make any reasonable use of the water of the stream within the estate, for lawful purposes, provided he leave the current diminished by no more than is reasonable.  Having regard for the like right of other riparian owners to use it for the same reasons.  The only question is whether there is actual injury to the lower estate, the diversion alone without evidence of such damages does not merit a recovery, even for nominal damages.”
Riparian doctrine: the right in water incident to land is established when the land is purchased and you can’t gain riparian rights over water brought onto your land (Stratton).  In a reasonable use jurisdiction the upper riparian owner get rights to use the water reasonably, including using it entirely for his natural wants.  Natural wants can change.  If there is a water law question what is natural and what is artificial will change over time.  The court is aware of that.
Cause of action accrued when they polluted the water, the previous owner had the right to bring an action.  The question becomes could he have, if he has no injury, bring a cause of action?  
-	Assume he could have, if he didn’t the statute of limitations will run.  There is not always one, Oneida.  
-	If he couldn’t say won’t recognize suit when there is no injury.  If in a jurisdiction like that there is no statute of limitation.  Now you come in and claim injury, you can bring suit.  If you are in a jurisdiction that starts the statute, you have to bring suit and if you don’t the statute begins to run.
-	Water law is heavily statutory.  Like circular argument in Parker, can’t take anything from Foote, he wasn’t loosing anything, nothing he could do.  But if we are going to take it from him we have to allow him to sue.  A conundrum which wouldn’t be on a multiple choice exam.
Pabst case: no damage to riparian owner results, but damage to a future user may result, so we will allow an action so that the statute of limitation will not run.
Stratton v. Mt. Herman Boys School
-	You can use it reasonably but even if its for natural/domestic uses, if its off of the riparian lot, you can’t use it, no longer have that right.  
-	Riparian doctrines give you rights in the water when you buy the land, but it must be used on the riparian land.
-	Not a hard and fast rule, based on what non-riparian means.  What if you own the entire water shed?  All the land is riparian, if you own a strip, not riparian.
Rule of Evans/Prah: Reasonable Use
Prah v. Maretti, classic nuisance case, your use of the land cannot unreasonably interfere with a neighbor’s use of the land.  Similar to reasonable use in Evans.  Using water and can continue to use it as long as no one else reasonably uses the water upstream and interferes with your use.  
1)	Evans/Prah, will give it to whoever is the more reasonable user. 
2)	In a reasonable use in a riparian jurisdiction you not only have right to the water and domain out to the edges of your land.  
3)	You own rights in the water, you can’t own the water, rights to the flow, you don’t possess it either.
Strengths of Reasonable Use Doctrine:
a)	Balancing Test.  You build your factory and someone wants to put up an art gallery and they block your sunlight.  You come to court to make an argument for your reasonable use.  
b)	Court could decide based on value of your use, 
c)	The court can also take into account prior use.  Prah would have had no case if built after Maretti.  The problem is that if you came on the land after with an item of high social utility, the prior user could be kicked off.
Problems with Reasonable Use Doctrine:
a)	There doesn’t seem to be an easy line to draw, reasonable use is a hard line to define.
Question of whether Maretti’s building and blocking Prah’s solar panels was reasonable.  Look at: 
-	who was there first, 
-	who gave notice, 
-	what attempts Maretti made not to block the panels, 
-	what efforts Prah made to situate himself so that he would not be blocked.  
-	Or should we just look at economics of solar energy v. cost for Maretti to change the orientation of his house.
-	Look at economy of Wisconsin, if we require all homeowners to shift their house v. the benefit of lowered energy cost if we go to solar.  
-	Third level, should we not solely consider economic cost but also dependence on Mid east oil, military budgets.  Technology allows each person to generate their own energy, leads to less dependence on government v. ruined sense of community.
b)	Institutional capacity – who is going to make these decisions.  
-	Value of solar energy to the nation as a whole as an alternative to fossil fuel.  
-	Have to interpret technical evidence.  
-	Might be better to have people with broader perspectives, more expertise – legislature a good place to decide policy issues.  Didn’t do this in Parker and Edgarton.  Taken as the way the law is, its always been that way.
-	Prah another instance of making policy for the whole state, not cabining selves to this case’s implications.
c)	RU a problem because what is reasonable can change.  
-	Whether having stock, in Evans would still be a natural use in 1999, even in an agricultural area, may not be reasonable.  
-	Opens it up to the potential of a wide-ranging inquiry.
Natural Flow
1)	You have to let the water flow on in the way it came to you.  Its been there a long time, its been that way for a long time.  The natural flow of the stream has to be maintained.  
2)	The Acton court starts with the assumption that they were going to use natural flow.  Based on what is natural, we know its natural because this is how it has flowed.  But we don’t know what is natural because we don’t know how it flows.  So applying natural flow here would be a disaster.
3)	Rule for surface water from Acton v. Blundell: rule of positive law, what has always been done. Thought this would be applied in Acton, but hard to apply if you don’t know what the natural flow is.  Depends on usage for time immemorial.  Might mean that it was legislated, but no one remembers it.  Might be a custom, that has never been changed. 
4)	Means you can never change it.  Sounds like whatever is being done has to continue.  Sounds like prescriptive rights.  But really just the way the water naturally flows.  Not only where, but how, how fast, and how much, and quality of water – murky, mine water, etc.
5)	NF might apply when there is no scarcity.  
Natural Flow, Reasonable use, are Riparian Doctrine, you get incident to the right of the land the use of the water that flows by it by purchase of the land.  Not clear if this really applies to Absolute Ownership.
Problems with Natural Flow Doctrine:
a)	Completely open to manipulation. Look at Raisin River/Sanderson.  
b)	NF doesn’t make sense in water, unless going to use just for its impetus and then replace it.
Pennsylvania Coal Company v. Sanderson and Wife
Facts: P purchased a tract of land in Scranton, PA.  The existence of the stream, the purity of its water, and its utility for domestic use and other purposes, was a leading inducement to the purchase.  A large volume of mine water which D poured into the Meadow brook corrupted the water of that stream to such an extent as to render it totally unfit for domestic use.  This action was brought to recover damages which P alleges she has sustained in consequence of the alleged pollution of the stream.
Procedural stance: the trial court issued a non-suit on the ground that mine water was a necessary incident to mining; that there was neither malice nor negligence shown, and the case was therefore one of damnum absque injuria (reasonable use argument).  P appealed to this court who initially found that P had presented sufficient facts to get to the jury.  The case went back to the trial court, where P was victorious.  D appealed to this court, who then affirmed the trial court.  P appealed the determination of the proper measure of damages.  The prior trial court judgment for P was reversed.  The case went back to the trial court.  P was again victorious.  D again appealed to this court.  This court examined the case as one of first impression.
Issue: Does P have the right to damages?  Taking into account that, “whatever rights P may have to the use of this water, and whatever remedy she may have in this case, or in any other form, in law or in equity, is the right and remedy of every other riparian owner along Meadow brook; and whatever may be the rights and remedies of the owners on Meadow brook are, of course, the rights and remedies of all other riparian owners throughout the commonwealth.
Question of natural use, and consequences of extension of rights.  The court also changed composition. Same thing in Bristol v. Cheetum.  Judges accepted a motion for reconsideration and they changed the decision.  In Bristol, changed to prior appropriation of water, took rights away from those that had invested in land.
The court here applies the natural flow doctrine.  Two things going on here, reasoning which seems specious, like Parker and Edgarton which seems to be circular about how you can’t have property in sunlight beyond the moment of occupancy and that you can’t be injured because you have no rights in sunlight.  Second Parker reason, in the wilds of new England you want development and ancient lights doctrine adds transaction cost, makes it more inconvenient to build, not good for America at this time.  
Here the court is saying since it’s a natural flow jurisdiction trying to show that:
1)	the coal mine’s use of the land was all natural.  As long as they didn’t bring anything on to the premises, though they did by digging, may have brought more water on, but didn’t bring the chemicals on.  Since they were in the water naturally, didn’t bring them there.  The opinion emphasized the natural use of the land by the coal mine over the natural flow of the water.  The natural use of land with coal on it is to mine coal.  Hard to think of a use of land that would not be natural.
2)	Also emphasize that the coal mine was being used reasonably.  Water cannot be discharged by gravity alone it must necessarily as part of the process of mining be lifted to the surface by artificial means.  Saying two things: natural to use coal bearing land for a coal mine and if its necessary to employ artificial means to use the land as it ought to be used, its still natural.  Purposive legal reasoning.  They have a goal, they’re reasoning to it.
Rule: P’s grievance is for a mere personal inconvenience; and we are of opinion that mere private personal inconveniences, arising in this way and under such circumstances, must yield to the necessities of a greater public industry, which, although in the hands of a private corporation, subserves a great public interest.  To encourage the development of the great natural resources of a country trifling inconveniences to particular persons must sometimes give way to the necessities of a great community.  
Distinguishes this case from Fletcher v. Rylands, in particular Blackburn’s true rule.  
1)	D brought nothing upon the land; the accumulated nothing there; the water was there without any act of theirs; and it was the accumulation of it which they sought to prevent.  
2)	They were in the natural use of their lands for a lawful purpose, and the discharge of the mine water was an absolute necessity in order to that use of the land.
Given that, “where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable for damages…Liability, even under the Rylands, is rested on the manifestly hazardous state of things artificially maintained on the land, and not on the natural user of it.
Upham Perspective: like having a bunch of cows without a fence, not like R v. F, the whole analogy is faulty. The court sided with economic necessity.  Also raised the issue of quid pro quo for P who benefited from prosperity that the mine brought to the area.
They even go so far as to say, “P knew that all mountain streams in that section were affected by mine water, or were liable to be.  Having enjoyed the advantages which coal mining confers, I see no great hardship, nor any violence to equity, in their also accepting the inconveniences necessarily resulting from the business.
Sanderson built her house about the same time as the mining company came in, so she didn’t get a prescriptive right.  P’s rights as a riparian owner was not separately discussed in the case.  Distinguished from prescriptive right cases.  But they would not discuss it differently.
Economic Arguments in Sanderson:
1)	If we give a right to Mrs. S, we are giving a right to everyone along the river.  
2)	She only asks for damages, if everyone has a right to damages, everyone can sue and get damages.  The coal mine can pay the damages and continue to operate up until the point where it is inefficient to pay the damages.  
3)	If coal mining is more important than clean water, they can pay the damages and continue to operate.  Lower value, but the amount of coal produced will be the same.  (Coase Theorem).  
4)	But if we give her damages, and injury is ongoing and irreparable, when others come forth and ask for an injunction, we will have to give it.  We don’t want to give damages because it will be followed by suit.  
5)	The only way in which coal mining can operate is by general consent.  Everybody along meadow brook, and those along the stream, all riparian owners will be able to sue, the only way to have coal mining is to get everybody’s permission.  That’s no problem if coal mining is profitable, worth more than the economic cost of pollution.  They can buy everybody’s consent and everybody will be compensated.  Or it will not operate because it is causing more cost or injury than benefit.  (Coase Theorem).  Look at Demsetz for what is necessary for this theory to work.
This case was overturned by Commonwealth v. Barnes & Tucker Co. (Pa. 1974).  “We find that with regard to the facts of Sanderson, the legal doctrine enunciated in that case is no longer viable.”
Raisin River: Mfr. Of cardboard upstream, killed fish in a fish farm downstream, since it couldn’t be filtered, it was natural use.  Like Sanderson, expected use.  When tech changes the court is likely to change entitlements for the sake of economic development.  Changes made by intellectually dishonest arguments.
Prior Appropriation – Rule of Southwest
Who is benefited by custom?  Those that used the water.  Just being there won’t help them unless they used it.  In natural flow, using it first does not make it natural.  If you have been using it and exhausting it, then people will consider it natural.  But if you recently started using it won’t win under natural flow.  But will win under prior appropriation.  
1)	Who ever uses the water first gets a right in it.  Blundell would not be able to get it, because Acton used it first.
2)	Applies in the arid southwest. If you used a riparian doctrine in the arid southwest, would give water to whoever owns the land next to where the water flows.  If everybody uses a little water, everyone will die of thirst.  In order to have development you have to concentrate water rights.
3)	Prior appropriation might be good because it gives notice, but could lead to economic waste.  You can count on it, no one can take it away.  Not good for society because there is no way to factor in the value to society, if you get if first and do nothing with it, you’ve got it and no one else can use it.
4)	Southwest U.S., broke from riparian doctrine, because if you go with riparian doctrine every one would get a little water and there would be not enough for any one to use it productively.  It was necessary to separate rights to the water from rights to the land.  Someone can acquire water rights and use them productively.  The person with the money to acquire the rights is the person that will put them to their most beneficial use.  A much more predictable system.
5)	PA gives certainty if you’re an investor.  Bristor v. Cheetum (after Evans), gets into the question of water law in Arizona and the excessive use of water in Arizona.  Frees the water up to be bought and sold.  Can’t use the water unless you’ve bought it.
Use of Custom in Public Beaches
Beaches, common law says that there is no private ownership beyond mean low tide (greatest area of the beach).  Can own the dry sand area.  California holds with common law, allows for public beaches.  Case in Oregon found a right to continue to use the dry sand area by custom. Did not use the prescriptive easement argument, eliminated problems of abandonment, has to be the same person using it regularly and uninterrupted.  Went to custom directly.  Hawaii is using custom to delineate rights to the sea shore and property rights in land.
2)	Economic Analysis
Demsetz  
Right of control is saleable – sunlight, look at Mabo, Johnson v. MacIntosh, if you can’t sell the land you are limited by what you can do with it.  Can’t get away from the land.
Prior consent of owners – not true here, liability and property protection.  If injured with property right protection you can enjoin them.
There are three important implications of a private property system that are valid in a world in which: 
-	all property rights are assigned and in which 
Not all rights are assigned – to see the stars, see a rainbow
-	the cost of exchanging and 
-	of policing property rights are zero.  Not true, cost of bullets.
A private property system under such conditions, implies that:
1.	the value of all harmful and beneficial effects of alternative  uses of property rights will be brought to bear on their owners, (the coal company will bear the cost only if the three assumptions are true.)
2.	to the extent that owners of property rights are utility maximizers, property rights will be used efficiently, and assumes the point of property is to use it.  Economic theory deals with utility, not wealth.  Values of stars, affection, sense of justice, all have utility, and all would be factored into a correct economic analysis of a policy question – difficult to factor those things in.  Demsetz, is not talking about wealth maximization, talking about utility.  What is utility?  Its what people value.  Expanded to include all of what people value becomes circular.  People value what they want.  If look at what people want to determine value circular.  Determine utility by looking at what people do, not what they say they want.  If you push it out to its furthest reach it becomes simply what people do.  
Far removed from the Raisin River case, difficult to bring these considerations into a concrete case.  Wealth maximization becomes a surrogate for utility.  It can be expanded to include anything to which you can give a phantom price.  Difficulty of doing it means that wealth maximization as priced by the market tends to substitute for any broader concept of wealth maximization.  
Posner’s example of the train running through the wheat field:
-	If running train through is worth 100 to train, and the wheat consumed is worth 50, it doesn’t matter to whom you give the right to, the train will always run through.  Assumes that it doesn’t matter who gets the property rights, they should be assigned, whoever wants them most will pay for them.  (Sanderson spoils this theory, the right to buy the cost to pollute would be prohibitively high, not an efficient way to share rights, few people could demand large sums of money.)
-	Not easy, because the cost of exchanging can be prohibitively high we must choose to give the right to the party that would eventually buy it if all the assumptions were true.  The wheat farmer will give it to the train.
-	The 100 Posner is talking about are not statements of social utility.  They are statements of the tickets, freight charges the train can get and the amount of loss to the farmer from the lack of ability to sell the wheat that is burned.  Its market based, its an incremental/insidious process from something that is very broad based with simplifying assumptions becomes these values.  More complicated than that.  Its contra-factual, these three things are only true for sure if the 5 things we know are not true are true.  
That’s the reason economic analyses seems to lead to giving the right to the wealthy party:
-	Doing correct economic analysis is virtually impossible, fall back on wealth maximization.  
-	Not incorrectly decided from a wealth maximization point of view.  Not necessarily so in Parker, because you can give a value to light and air, could increase wealth by having set back restrictions.  Might have been a bad decision from a wealth maximization point of view.  As far as coal mining is concerned, good decision.
3.	the mix of output that is produced will be independent of the distribution of property rights among persons except insofar as changes in the distribution of wealth affect demand patterns.  (assumes that there will be some kind of output, look at Mabo – is there an output for spiritual identity?  Economist would say yes.  Not assuming the land has to be used for agriculture)  (only true if changes in the distribution of wealth do not affect demand patterns.)
For the Coase Theorem to Work:
1.	All property rights must be assigned.  If you define property as only things already identified as property as property you are wrong.
2.	The cost of exchanging (assumes perfect information, not just immediate cost, but also long term effects.  In order for the exchange to be efficient people must know the value of what they are exchanging – used car, can’t know the condition of the car.  )
3.	Policing must be zero
4.	All owners of property rights must be utility maximizers
5.	All increases and decreases in wealth will not change the pattern of demand.
These 5 things will never all be true.  Each one of them will never ever be true.  The Coase Theorem makes it easy to reason through complex situations.  It will only give an accurate result if all 5 assumptions are true, which will never be the case.  Most people writing on the legal use of economics are not economist, elide all of the ideas.
 Doesn’t make economics useless for law, have theory of second best.  How untrue are the different assumptions.  There is a radical difference.  These assumptions are closer to being true in some situations.
Excerpt from Ibrahim F. I. Shihata, “The World Bank and ‘Governance’ Issues in its Borrowing Members” 
Idea of economic growth and efficiency became the mantra for international trade.  Shihata is general counsel for the world bank.  They were loaning money to no good end.  
-	Determined that one of the reasons the loans were not being used effectively was instability, corruption, and the lack of a reliable property rights system.  
-	Shihata wanted to make a condition of loans a stable legal system.  Charter of world bank, prohibited using any political conditions for the granting of loans.  Can’t require that the society be capitalist.
Governance Issues: the manner in which government decisions are made, or more generally, in which power is exercised in these countries.
-	Explicit in the concept of governance was a stable legal system.
-	The bank’s increasing concern with issues of governance in its borrowing members seems to have come as a logical last step in its gradually expanding involvement in policy reform through adjustment lending, which has been extended to social sectors.
-	This system of rules and institutions is reflected in the concept of “the rule of law,” generally known in different legal systems and often expressed in the familiar phrase of a “government of laws and not of men.”
Reform policies cannot be effective in the absence of a system which translates them into workable rules and makes sure they are complied with.  Such a system assumes that: 
a)	there is a set of rules which are known in advance,
b)	such rules are actually in force,
c)	mechanisms exist to ensure the proper application of the rules and to allow for departure from them as needed according to established procedures,
d)	conflicts in the application of the rules can be resolved through binding decisions of an independent judicial or arbitral body and
e)	there are known procedures for amending the rules when they no longer serve their purpose.
The existence of such a system is a basic requirement for a stable business environment; indeed for a modern state.  In its absence, the elements of stability and predictability will be lacking.
This is a description of the rule of law.  The rules have to implemented and enforced through a formal adjudication process, rules must include property and contract rights.  
Upham Perspective: These banks have spent billions of dollars, assisting/coercing countries into developing a western legal system.  Throwing money away in trying to make this happen.  Belief in the world bank that stable clear rules, articulated and enforced through a judicial process are necessary for economic growth.  Upham thinks that this is not true, based on study of Asian economies, 
-	Clear that a fully mature rule of law system is not necessary for economic growth.  Look at China, no legal system, not necessary.  Japan, rules not articulated through formal judicial processis, articulated in different ways.
-	Not only are stable property rights not necessary for economic growth, they can prevent economic growth.  If we had a stable rule of law system in the U.S. in the 19th century, you would not have had coal mining in PA.  Maybe we would be richer now, but doubt it.  The course of industrialization would have been dramatically different.  Coal mining required destruction of property rights through the judicial system.  Under certain circumstances, property rights can inhibit growth – technological change, biological, social change.
-	Simplification like Shihata’s, which grow out of western experience, cannot be extended to the rest of the world just like that.  Rules are going to be necessary, but Japan stands for that you can have other types of social mechanisms that guarantee a ROI without formal adjudication of economic issues.  Most business people settle matters outside the courts.  Somewhat true in U.S., some are settled in informal ways.
-	Countries that meet these standards probably don’t need help from the world bank.
-	The rule of law comes out of social evolution, which is created internally.  Not from some law professors coming in and making it happen.  Article – do you know how much the rule of law cost?  Social cost is enormous.  Some of these functions are carried out in every country no matter what it is called.
-	Social order is necessary, and you can’t expect banks to give money where there is no reliable regime to accept it.  But rule of law is not the only way of doing it.
II.	Common Law Estates
A.	Estates in land
Chapter 5 (pp. 203-217)
Johnson v. Whiton
Facts: Elder Whiton dies, passes land onto grandchildren.  One of them executes a deed.  There are complications because of clause in the will that bequeaths separately to Sarah Whiton and the other grandchildren.  Uses the words “and her heirs on her father’s side.”  The court is trying to decide if they are words of limitation or words of purchase.
Issue: Was Royal Whiton trying to give something to her relatives on her father’s side, or was he trying to protect her in case of his death?
Rule: it would be contrary to law and policy to prevent Sarah Whiton from getting the title.  Decide that they were words of limitation, not words of purchase. The court saying he was giving a fee simple absolute.  Royal Whiton was trying to create a new estate, an estate that would allow Sarah to sell it if she wanted to.  But if she didn’t and she didn’t have a will it would go only in testate to her heirs on her fathers side.  Holmes is saying that’s a new kind of estate.  It doesn’t fit within one of the pigeonholes (see p. 253).  
Words of purchase: designates a specific taker, tells who’s getting it.  If ‘and her heirs’ were words of purchase, they would mean something, but they don’t. Here ‘my granddaughter, Sarah A. Whiton’ these words identify who takes.
Words of limitation: tell what the person gets.  Define what kind of interest the recipient gets (p. 253). Words of limitation, delimit – means describes the limits of the property.
A to B and his heirs: Fee simple absolute (fsa), the highest interest you could convey.  Nate owns it and has complete power of disposition.  The heirs get nothing until Nate dies.  These are words of limitation, they don’t mean ‘and his heirs’, they mean fee simple absolute.  Tells you what kind of estate is being transferred.
Pigeonholes: We don’t want to allow anyone that wants to create a new one to do so.  The whole point of pigeonholes is to know exactly what the transaction means. You want everybody to be able to come to a deed and know immediately what it is and not have to worry.  Let her have a fee simple absolute.  The court wants to eliminate all of the interpretation problems so we will cut it down to a smaller estate. Johnson stands for the pigeon-hole rule, limiting estates.
Important Messages
1)	The importance of formality: what makes American legal system distinctive is to make the rules work for your side, can turn them inside out, appeal to policy, unjust.  Parker & Edgarton, other prior cases.  But here time to come back to the idea of rules as rules, if it doesn’t fit the rule it doesn’t work.  The emphasis in the beginning is on form. 
-	Ignores the clear desire of the testator, the reason for doing so is to limit the number of pigeon holes, the available forms of freehold estates available to people in Mass.  
-	Second reason is to make this land as alienable as possible, as readily bought and sold as possible.  If there are a limited number of forms it will be easier to interpret a deed or will to know what a person is purchasing.  Deeply connected. 
2)	Collusive Suit to Clear Title: Interesting lawsuit, action to recover deposit paid under an agreement to purchase land.  Buyer makes a deposit on the land, binding on buyer if the sellers produce a marketable title.  Enter into a contract of purchase and sale which obligates the buyer to pay a deposit immediately and the balance when the title is transferred.  The seller will give the deed in return.  The buyer has to get a mortgage, probably a way out of the agreement. Here the seller was not able to deliver a marketable title, because one of the sellers did not have a fee simple absolute, so was unable to sell a fee simple absolute.  
-	Johnson did a title search, and quickly found that S. Whiton got an interest via a will and found that interest on her side.  A cloud on the title, not going to buy land without having the cloud dealt with.  
-	This is a collusive suit because the quickest way for the parties to determine that S. Whiton has a fsa is for the buyer to sue the seller saying you don’t have a marketable title.  The buyer says yes you do but I’m not going to buy until the court declares that you have a marketable title.  Both want the same outcome.  
-	Here others could come in to dispute the title, other heirs of Royal Whiton.  But here there was no opposition.
-	Holmes had an opportunity to enunciate policy on these type of estates.  Have to have a limited number of estates, want to make it as commercially fluid as possible, needs to go into recognized pigeon hole.  Look for words of purchase, limitation.
3)	A court will always simplify transactions, 
-	Try to make all contingencies vest earlier rather than later.  
-	For the same reasons in J v. W, we do not want interest to be fractionated, we want them to be concentrated.  Makes that person look like she is the owner fsa, rather than have a life estate with remainders or reversions.  If we can cut off these people then we will.  
-	Will interpret it to mean that we look to who has already climbed the mountain (see below), who ever has not is out of luck unless the grantor has made it clear.  If it is clear, Son 1 gets a fsa but can’t convey it, invest in it.  
O to A – Life Estate
-	words of purchase ‘A’ identifies who takes.  
-	There are no words of limitation.  
-	The common law says what is being transferred is a life estate.  Because when William the Conqueror took over England he gave land to his knights for as long as he wanted them to be warriors, when they stopped being warriors, he took the land back.  There was no security in the land.  The knights couldn’t sell the land to anyone else. It was the knight’s to use so he could prepare to fight.
-	O to A, life estate and a reversion, no remainder specified, the left over goes back to the grantor.
O to A and her sons – Life Estate
-	words of purchase ‘to A and her sons’.  Sons are not her heirs.  If its not “and her heirs”, its not words of limitation denoting a fee simple absolute.  But it must fit in a pigeon hole.  Must be words of purchase.  
-	A owns the land, she has a life estate.  The sons share a life estate with A.  If A dies, the sons would continue to own the estate until they died.  
-	After all of them died it would go back to O.  
-	There are no words of limitation.  Under traditional common law it means that it’s a life estate and since there is no delineation, we look to how many sons she has, if she has two they will share 1/3 each for their lives.  When A dies, the share of the two sons will move up to ½.
O to A and then to her sons who survive her – Life Estate
-	Words of limitation – describe the type of estate being conveyed.  There aren’t any in this conveyance, so they are only conveying life estate.  
-	A and the sons that survive her have life estates.  It goes back to O when they die, so O still has a reversionary interest.
-	Words of Purchase – “A, sons who survive her,” words that identify who takes, here A takes a life estate, the sons take after A’s death.  What sons, just the sons who are alive when she dies.  
-	The “who” phrase identifies which among the categories of son constitutes the subset who will take.
-	Remainder after life estate of A, can go back to O, called a reversion, reverting back to the original grantor.  When it goes to a third party its called a remainder.  Can be locked in at the time of the conveyance.  
O to A and her heirs – Fee Simple Absolute
-	words of limitation ‘and her heirs’, 
-	words of purchase ‘ to A’.  
-	A can then sell it to someone else, if she dies in testate it goes to her heirs.  
-	The heirs have a mere expectation.  Who her heirs are is uncertain.  
-	Does not mean that O is trying to give an undefined group of people some interest.
O to A and then to her sons and their heirs – Fee Simple Absolute
-	words of purchase ‘to A,’ ‘to her sons’ 
-	words of limitation  ‘and their heirs (attached to son)’ – denotes a fee simple absolute. Limitations – none for A, a life estate.  For sons, ‘and their heirs’, her sons are going to get a fee simple absolute.  If A dies it goes to her sons, when the sons die, it goes to their heirs in a fee simple absolute.  
-	Clear by structure of conveyance and identity of the people that its likely that the first ones were to get a life estate and the others to get the remainder, what’s left after the life estate.  
-	‘And their heirs’ let us know that this is a limitation that they get a fee simple absolute.  
-	There is no contingency there, the sons don’t have to do anything, 
-	A will die so they will get the life estate and they will get it in whatever form the words of limitation give it to them.  In 4, they get a fee simple absolute.  
-	If she has three sons, and then has others, all the subsequent ones are included.  
-	Open categories can make things last a lot longer. 
-	The law assumes irrebuttably can have a child at any age.
O to A and to her sons and their heirs – Fee simple absolute to A and to her sons.
Reversion: reverting back to the original grantor.
Remainder: What comes after a life estate in third parties.
Vested Remainder: The kind of remainder where you’ve got it no matter what happens, O to A and then to her heirs, a vested remainder.  A will die, there are no contingencies.
Contingent Remainder - O to A, then to the sons that survive her, contingent remainder.  May give them a life estate in the land if A dies first.  But if they die first they are not going to get anything, nor will their heirs.  Will never have a vested remainder, the same time when A’s life estate ends and they can take the land.
O to A then to sons who climb Mt. Killamangaro and their heirs – Fee Simple Absolute
-	When the sons try to climb Mt. They won’t get a life estate, they’re going to get a fee simple absolute based on words of limitation “and their heirs”.  
-	When son 1 climbs it goes from being a contingent to a vested remainder.  When son 1 dies, his estate will take that fee simple absolute and it will be distributed to his estate.  
-	Those who have not climbed it will continue to have a contingent remainder.  
-	A has it, when she dies there are 2 choices we can make.  Question of grantors intent, did he intend for the sons to continue to try to climb, the law will recognize that, but it will be a fee simple with an executory limitation.  A fsa but if someone else does something and something happens they may have to share it.  The other interpretation is that O wanted the sons to climb before A’s death, if not, son 1 or his estate gets it all and sons 2 and 3 get nothing.
-	The ones who don’t survive her cannot get a life estate anyway.  
O to A and then to her sons numbers 1, 2, and 3, and their heirs – Fee Simple Absolute
-	If she has a 4th son, he’s out. 
Chapter 6 (pp. 219-230; 237-254)
Van Rensselaer v. Hayes – Covenants Running with the Land
Facts: Stephen was the grand patroon, conveyed to Dietz.  Yearly rent of money and agriculture.  Not a leasing situation.  A conveyance in fee, fsa fee.  Not landlord and tenant, grantor and grantee.  Hayes in the defendant. 
Issue: Grand patroon dies, his son wants Dietz to continue paying yearly rents, but Dietz says that yearly rents ended when Grand Patroon died.  Dietz wasn’t up to date on payments.  Grand patroon didn’t demand payment.  The younger, said you have to pay because its in the deed as promised. Dietz made a lot of promises, pay rent, foul, services.  
VR younger v. Hayes. VR younger trying to make Hayes perform promises to someone for whom no promise was ever made. No one ever promised the son that he would get any of these things.  Hayes never promise to perform to anyone.  Question of if this is an enforceable agreement.  To be enforceable it has be attached to their interest in the land.  
Covenant that runs with the land: Promises which run with the land, whoever gets the land has to comply with these promises even if the person who gets the land has not affirmed these promises.
Que Emptores: a tax statute, attempted to eliminate loop holes in the tax structure in 13th cent. England.  Gone from warrior society with great lords who raised armies based on giving land to those who would fight. Those who fought got income from those who lived on the land while they fought.  As this developed, a group of services and incidents.  Included the obligation to go fight, a service a tenant owed to a great lord, the great lord owed to the king.  Give labor, attend court, act as jurors.  Incidences, most important, when the tenant/knight died, no absolute right for the son to take over, the son would pay to the lord or king an amount to be able to take over.  If the son was below majority, the lord had a wardship, where the lord could take all the profits of the land.  Fee for having children married.  When the tenant died without a son, the land escheated to whoever was above them in the hierarchy.  Became taxes, important for the king’s budget.
Issues resolved by Que Emptores: 
-	When the knight wanted to alienate the land, he would not just alienate to the new knight, it would go from GL – K – K1 – K2, when K1 owed incidence it went to K, it never got up to the king and it rarely got up to the great lords.  A new tenure was created among every alienation, arose a series of lords.  Considered detrimental to the great lords as it deprived them of the fruits of their tenure.  
-	Alienation was by substitution not by subinfeudation.  GL – K1, K off by himself.  Now when incidences were due it went to the great lord, now it was money.
The court here is worried about whether the statute Que Emptores makes this deal illegal.  
-	Dietz could have put in his deed all the same promises that VR put into his.  
-	Could have recreated all of the incidences, creating a series of lords.  If all these deeds had promises, that’s the form Hayes argued that Que Emptores outlawed this transaction.  
-	VR was trying to recreate a feudal society in the Hudson valley.  Where people’s obligations ran as a principle of society from the tenant, fee holding land owner, to the GP and successors and then maybe to the state of New York.  Not running from citizen to state.  Citizens not owing immediate allegiance to the state of NY, level between was the VR family.  Obligations to NY had to go through the family.
-	When Que Emptores was created, some grand lords existed, saying basically no more subinfeudation.  If you have it already, OK, but no new ones can be created.  This case makes it doubtful that it was stopped effectively.
D arguments: Hayes contended this was feudalism, can’t create a fee interest in land, can create tenancy, but not ownership, fee in land that retained to some other party interest that would normally go to the sovereign.
VR wins, the case is about the freedom to contract.  Rent charge v. rent service.  
-	Rent charge: obligation that runs with the land, written into the deed, by the parties, buyer and seller, in the nature of a contract.  Agreement about what will be in the deed.
-	Rent service – p. 224 bottom, common right/common law.  Comes out of common right v. agreement between the parties.  The basic structure of the society before QE was that you could not get out of your tenurial relationship, could alienate land, once you were a knight or a vassal, you always were.  The idea of contracting in or out of such things was foreign.  Society structured along feudal lines, individuals did not have the right to change this structure.  If able to do it here, would have been the recreation of a feudal society.  
-	The court here is saying this is freedom of contract, not a reestablishment of feudalism.  Becomes clear if the parties got together and changed the arrangement.  Doesn’t effect the fundamental structure of society.
Important Messages:
-	Feudalism v. capitalism/market ideology, and 
-	the ability of concentrated wealth to recreate through contract the structure of society during feudalism, 
-	also here the freedom of contract is much more real for Dietz.  The bargaining power behind GP and others like Dietz, imbalance was dramatic.  In modern transactions, not so imbalance, set up as people want it.  Still end up with communities burdened by restrictions.
Melms v. Pabst – Ameliorating Waste
Facts: Melms built a house, 20K, nice residential neighborhood.  He died and his estate became involved in financial difficulties.  The widow sold her life estate to the brewing company.  Common for one spouse to give life estate to the other. Who had the remainder?  His children.  Life estate to surviving spouse, remainder to children. After the purchase, the general character of the area changes rapidly, after a time, it becomes undesirable as residential property.  They grade it down for business purposes, no longer residential.  Changed it to beer brewery.  Square part of the brewery which is a life estate, tears down the mansion, builds a brewery.  The material change was to destroy the dwelling house and transform it into a brewery, clearly constituting waste.  But this change dramatically increased the value of the property to the remainder parties, those waiting for Melm’s widow to die.
Issue: Why would Pabst do that, they thought they owned a fee simple absolute at the time they built it.  Didn’t do a good title search?  Mrs. Melms sold it to them so they thought she was capable of doing it. You can alienate a life estate.  Pabst had a life estate pur eutre vie, alienable.  She sold it because she wanted the money.  Why would Pabst buy it?  They thought they were getting a fsa.  Melms pretended to be selling them a fsa, like Symmes.  What explains this case is fraud by Mrs. Melms.  The alternative is to buy the remainders from the children, its not a problem.  A deal is inevitable if everyone knows what's going on.  To build a brewery under the risk of an injunction is too high a risk even for Pabst.  Would be stupid.  Not clear why Pabst didn’t buy the remainder from the children.  The court is sympathetic to Pabst, probably would not have been if they were responsible for the fraud.
Rule: says that what Pabst has done is not waste.  Bottom p. 241, It may be defined…The value of the property has been greatly enhanced by the alteration.  The court finds a way to give it to Pabst by finding that it would be utterly useless as it was so it could be changed.  P. 242, first para., henceforth, anytime you can show that your tenant makes changes in the premises.  This is not a tenant-landlord case, which was the point of waste.  This is more to do with the usages and customs of the community to determine if it were ameliorating waste, does not include landlord-tenant relationship.
Note: people that hold a life estate are called life tenants.
Reasons the court found for Pabst:
1)	It was not Pabst that changed the character of the property, it was others, they merely adapted to that change rather than caused the change.  If they had caused the change, then it probably would be waste.  Melms was the first person to bring industry in, the house was next to the brewery.
2)	The court was unusually sympathetic to Pabst and wanted to limit the holding to this set of facts. P. 243, resulting from causes which none could control.  P. 244, end of the opinion, If there is a contract between the life tenant and the grantor or the life tenant and the remainder person this won’t apply.  The grantor can eliminate it by putting in a clause “without impeachment of waste”, not true here, dealing with straight common law waste.  If there has been such a complete change, worthless for what it was used before, then you can commit waste.
Gasacre Wife dies leaving a LE in the family home, Gasacre, to Husband, remainder to Son.  H remarries and moves away.  H wants to tear down Gasacre and build a gas station, a change which would increase its value by 1/3.  S sues for an injunction.  What if the change would double the value?  3X?  10X?  100X?
Prohibited by the doctrine of waste because:
-	The son has a right to live in the family home, 
-	radical changing of the nature and character of the property.  
-	Even though it would increase the value, the court would give an injunction.  The nature of the value increase doesn’t make a difference. 
-	 In Gasacre concerned about the intent to benefit the son, doesn’t harm H, still has the benefit of the residence to use it as W intended it to be used, if he doesn’t want to use it he can sell it for someone else to reside there.  Able to vindicate both.
Might be allowed under the waste doctrine if:
-	The surrounding property was changing in character, 
-	Evidence of uselessness, change in the identity of the property.  House is unusable as it is.  
-	Other gas stations opened around the house, to live there would be dangerous for your health, physically unusable.  
-	Might have someone come in to assess the market value.
Tinacre T (testator) owns a remote tin mine.  He dies and the will is duly probated: “Tinacre to A for her life, remainder to B and his heirs.”  A now comes to you with her first tax bill and wants to know whether she can take the tin out.
“Tinacre to A for her life, remainder to B and his heirs.”
-	Words of purchase – to A, and B
-	Words of limitation – for A ‘for her life’, for B ‘and his heirs’ denoting fsa.
-	A has the life estate, 
-	B will receive a fsa, what B has is a contingent remainder.  Contingent on A’s dying, this is a certainty, not really contingent, he has to wait until she dies – vested.
-	Other interest ‘the heirs’, when B gets the tin mine, these heirs might get something depending on how she drafted her will. She could will everything to the state.  She could will it to anybody and will have an expectancy, all have equal interest.  If she doesn’t have a will and dies, they will get it.  They get a mere expectancy, have the same interest in the property as anyone else.  Upham prefers to say that the heirs get nothing, and ‘his heirs’ is just magic language, the fact that the language is there doesn’t give them anything that they didn’t already have. When going through this kind of a problem remember every person involved.
If this had been “T to A for her life then to B, her son, and his heirs if he shall climb M. K before she dies,”
-	it would have been a reversion interest.  Though T is dead it goes back to T’s estate.
A says have a tax bill want to take tin out, what can A take.  
-	If stick to definition of waste, say no. If we enjoin her from taking any tin out, her choices are forfeit her life estate claim by giving it to B.  B could refuse to take it.  If A doesn’t pay the property taxes it reverts to the state, she doesn’t care because she can’t take any tin out.  If A has lots of money and can wait, will she want to?  No, she can’t mine it no matter what the prices are, but worst if the price of tin is high, can’t make a benefit/profit from removing.
-	If you manipulate it, say take as much as necessary to pay for the tax bill.  Waste says you can’t change the physical character of the land, can’t exhaust the value of the tin mine by taking tin out, makes it less valuable.  If A doesn’t pay the tax bill the mine is gone from A, defeats whole purpose of T giving A life estate in the mine, implies the purpose that A would be able to have a life estate if it is taken away because of not paying taxes, the purpose is not met.  
-	If she didn’t pay the property taxes, she would be violating the rule of carrying forth the will.  Implicit in the will is that she gets the life estate but also gives her an obligation not to commit waste.  If she doesn’t pay the taxes the property is taken, she’s committed waste.  Further, if she doesn’t invest in the shafts, etc., its also waste, she has to maintain the mine.  It doesn’t seem right to have her not take any tin out even though it depletes the mine and changes the nature of the estate.  
The question is how much tin can she take out?  
-	Enough to pay the tax bill, maintain mine, enough revenue that she is not committing waste.  
-	Has the purpose of the will been fulfilled?  No.  The testator wanted for A to preserve the mine so that it could go to B or who else gets it after.  A was going to be a caretaker.  If A was a tin mining company that works, but if A is a person, maybe T wanted to give the life estate for another reason.  
-	W gave H a life estate so that he could benefit from it.  The intent of T must be to benefit the life tenant.  And to benefit the remainder person.  How you split that benefit is the crux of the hypo.
-	the amount necessary for A to break even to maintain it and not commit waste.  
-	T looked at a group of pigeonholes and chose this one, the problem is that this one doesn’t seem to fit tinmines very well.   We have to figure out how we are going to interpret the rules.  His intent was to give A property to use and enjoy during her lifetime, but she could not commit waste on.  Enough to break even, anything more?  
Could remainderman B sue to get an injunction?  
-	No, not as clearly as in Gasacre.  
-	Would expect it to issue if the minute you take tin out of the mine you are depleting the value to the remainder person of the estate, changing identity of Tinacre, committing waste.  If A does not pay the taxes, the state tax authorities will come and take the property.  What do they get?  A’s life estate, or the entire fee simple absolute?  If A were to convey her interest in Tinacre she would have no trouble doing it legally.  Tax authorities will come and take it all, they have to give notice to remainder persons who can then come in and defend their interest, pay the taxes.
A cannot fail to pay the taxes or she will be committing permissive waste, 
-	not maintaining things, allowing them to go to rot and ruin.  
-	She must maintain the premises, whatever it takes to mine tin.  It would not be a good idea to prevent her from taking tin out, at the amount that would enable her to avoid committing waste, the amount necessary to maintain the premises.  
Assumptions about Testator’s Intent:
-	Assume that T must have been giving A a life estate to benefit her, not as a bizarre attempt to saddle her with obligations to maintain a tin mine from which she could get no revenue whatsoever.
-	T chose a pigeonhole, a life estate, you don’t interpret what he meant, because the system wants to have as few and clearly defined pigeonholes with clear rules attached to each, the interpretation will be on an objective basis.  
-	We just go with what we generally assume life estates to be.  The life tenant gets the use and enjoyment of the property during the length of her life, after she dies it goes to the remainder person.  There is an intent to benefit both parties.
-	Assume T knew it was a tinmine operating at a certain level.  A should be able to use it as T had been using it.  A should use it prudently.  If A 78 years-old, going to die in 10 years, she could take all the tin out.  Not prudent, might just sell it to get the value of it.  If the price of tin was as high as A thought it would get, might take it all out.  The life tenant has an incentive to take out all the tin during her lifetime.  Do you allow her to do that?  Stephanie idea - No, she has to act prudently, as if she were the owner.  Let the life tenant deal with the tinmine as a prudent owner would.
-	Shows how unsuited life estates are for commercial situations.  The only way A can get any value from this is if she commits waste.  Ramona idea - We allow her to take tin out, but we take those revenues and put it into an escrow account where she has a right to draw on it up to a certain amount, includes the amount necessary to pay taxes, maintain the mine.  Question now is that all she will be able to draw off of it?  Takes away the incentive we normally want in owners of property to use it prudently.  
Doctrine of waste is there to protect the remainder person.  Also want to protect the testator, have to honor his intent to create a life estate.  The idea of a life estate is to preserve the corpus of property for the remainder person.  The problem with Tinacre hypo is that if we honor the testator’s intent, we destroy what must be part of the testator’s intent.
-	One criterion is to say we would allow the life tenant to use the land as a prudent owner.  The only problem being that a prudent owner would take all the tin out when the price of tin hits its high, thus destroying the testator’s intent.
-	Another idea is just to maintain the tinmine.  Not the same as a reasonable and prudent owner.  When the owner thinks the price is high he will take out a lot.  Conversely, when the price for tin drops, a reasonable owner might be enjoined from mining tin.  Forcing her to pay out of pocket to maintain the mine because that’s what a reasonable owner would do.  Reasonable owner may not be a good criterion.
-	Maybe doing what the owner did before he died, hard to prove.  One thing we know about the testator is that he chose a pigeonhole that comes with rules.  No question here of fraud, the premises have not changed and become unsuitable.  No room here for exceptions.  Why don’t we just hold the life tenant to having to pay out of her own pocket?  Bad policy.  Let her break even, she is at least not harmed, could put in a management fee of a few percent per year.
-	T could have given the life estate implicitly stating that waste is OK, since he didn’t, could argue that he didn’t want her to commit any waste.
In this area of interpreting testamentary documents, that form is very important, pigeonholes are important.  Maintaining the integrity on the limitation of the number of estates (Johnson v. Whiton).  There are all kinds of exceptions.  See following cases.
D conveys to W (life estate) and to S and D (remainders).  D gets NA, and S gets SA.  
Testator’s Intent: Divided in half because I love them equally and want to treat them equally.  I want them always to know that and treat them the same.  
Issue: During W’s life tenure the state of Wis. Declares NA to be an endangered ecological zone allowing only low levels of development.  SA is fine, now more valuable than NA because it can be developed.  D comes and asks what can she do, W said, nothing.  D is conveying NA to you, but D said he wanted to treat you equally.  
Rule: Suppose you could show that D knew that NA was going to be declared an ecological zone.  No difference, he chose this pigeonhole, and left what he left.  Too messy to keep readjusting, have no certainty in property. Maybe he didn’t love them equally.  In some areas of law you would say lets open it up.  In property you ask what pigeonhole did he choose?  And then you enforce that pigeonhole.  His intent was to create a life estate, with the remainder as indicated.
Problem 6, p. 86: In re Nesbitt and Potts’ Contract
Nisbett and Potts entered a contract for the sale of a tract of land.  On the date prescribed for the “closing,” Nisbett presented Potts with an abstract of title showing that the property had been owned by Kidd; that Headde had possessed it adversely to Kidd for the specified period; and that a series of valid conveyances had brought Headde’s title to Nesbitt.  
Potts wanted to build on the land.  After the contract was signed, but before title had passed, neighbors informed Potts that they held convenants on the land, obtained from Kidd, that gave them the right to prevent the construction Potts had in mind.  Potts therefore refused to take title, claiming Nesbitt was not delivering marketable title.  Nisbett sued for specific performance, asserting that Headde’s adverse possession had terminated the neighbor’s covenants as well as Kidd’s fee.  The court of appeal ruled for Potts: “unless and until the right of the covenantee has been in some way infringed,…there is no reason either in principle or in fairness, why his right should be in any way affected.”
Issue: adversely possessing against an interest you are not violating.  
The remainder person has no interest, 
-	he cannot take any action against anything the life tenant is doing on the land as long as it is not waste.  
-	Who is the owner, adverse possessor?  Both owners 4+1 period of time, the counter argument that the remainder person may be an owner in some sense, but he is an owner with no possessory rights to the property and cannot bring a trespass actions because his legal interest are not being infringed. 
-	But if we take his land from him we are going to allow him to bring a trespass action.  (Parker & Edgarton).
-	Shouldn’t pit the adverse possessor against the owner, have this doctrine to protect third parties.  Most adverse possessors believe in good faith that they own it all.  Most true owners have no idea that they have title ownership to the land.  It is also true that everybody who looks at that land believes that it belongs to the adverse possessor, not to the life tenant.  Society wants to vindicate the appearances of a reasonable observer.  
-	For the same reason, we want to have a limited number of pigeonholes, don’t have to worry about what the testator meant.  This is what the will says, its been registered in the right place, not challenged, I can count on it.  We want people to be able to rely on it.  The fact that it actually belongs to a remainder person/life tenant doesn’t matter, we will give it to the person that society has relied on as owning it.
-	Who are heirs?  Never know who will be heirs, the person has to die.  They could all die before testator.  Never know who the heirs are until someone dies.  You could give something to someone’s heirs. 
O to A’s heirs and their heirs – Fee Simple Absolute
-	Don’t know who they are until A dies.  
-	Words of purchase – the heirs of A.  
-	Words of limitation – and their heirs.
-	 When you see and his hers, it’s the magic language.  Not saying wait until A dies, its saying what we are giving to A is a fsa, nothing to the heirs.  If A dies without a will, then the heirs will get something.  If its O to A and her heirs.  The heirs will get nothing that they are not going to get anyway.  The heirs will get something if A dies in testate, they would have gotten it with or without the language O to A and her heirs.  Gives nothing to the heirs at all, a mere expectancy, very slight.
B.	Controlling the future (Defeasible Fees)
Chapter 13 (pp. 483-490 and Wolf at pp. 1022-24)
Defeasible: subject to be defeated, annulled, revoked, or undone upon the happening of a future event or the performance of a condition subsequent or by a conditional limitation.  An estate which is not absolute, i.e., one which is determinable or subject to an executory limitation or condition subsequent.  Usually spoken of estates and interests in land.  For instance, a mortagagee’s estate is defeasible (liable to be defeated) by the mortgagor’s equity of redemption.
FSA v. FS Determinable: There is a condition on the estate that makes it determinable.  If its used for certain purposes, it no longer belongs to A.  All come with conditions on how the property can be used.  What the conditions are determined how they are classified.  FSD as soon as that condition is broken the land either reverts to the grantor or it leaps over to some third party.  
Fee Simple Determinable (FSD): O to A and her heirs (fee simple) so long as (not absolute) the property is used for residential purposes (determinable).  
-	If used for business purposes goes back to O.
-	A no longer owns it the minute the condition is broken.  A becomes a trespasser.  
-	O is the title owner, A may still be there.  A probably thinks he is the real owner, adverse possessor.
-	In theory, all the lawyer of the original grantor has to do is call up and say it belongs to me.  But still may have to bring an action of ejectment.  A question as to whether this is state action or not, assuming not direct enforcement of a racially restrictive covenant, just enforcement of fee simple ownership.  (Shelley)
Fee Simple Subject to a Condition Subsequent (FSSCS): O to A and her heirs but if the property is not used for residential purposes, O and his heirs shall have a right of entry and repossession. 
-	A has a right of entry and repossession, goes back when the condition is broken.
-	A still owns it, O can come in and take the property, but if she doesn’t do it continues in A’s ownership.
-	Requires some act, not going to automatically revert, have to sue in court, pay some amount of money.  Have to go to court to get a judgment, violation of restriction gives a power of termination.  Can call up to warn, but the owner will ask for a court order to terminate.
-	Adverse possession depends on who owns it when the condition is broken.  Have to know what statute of limitations applies to the exercise of powers of termination.  The ordinary AP would not apply because the person on the property is the full owner.  Wouldn’t bring it in ejectment, the person has a complete right to be there.  Have to bring an action to remove cloud from title.
Fee Simple with an Executory Limitation (FSEL): O to A and her heirs so long as the property is used for residential purposes, then to B and his heirs.
Fee Simple Subject to an Executory Limitation (FSSEL): O to A and her heirs, but if the property is not used for residential purposes, B and his heirs shall have a right of entry and repossession.
FSEL/FSSEL: equal to FSD, FSSCS, but deal with third parties, not going back to the original grantor.  Instead of reverting back to the grantor, the ownership reverts or a power of termination is in a third person.  These seem archane. But they can be very important.
Van Rensselaer v. Hays – Converted FSD to Contract Case
“And the said party of the second part [Dietz], for himself, his heirs, executors, administrators and assigns, doth covenant, grant and agree to and with the said Stephen Van Rensselaer, his heirs and assigns, …that he, the said party of the second part, his heirs, executors, administrators and assigns, will, from time to time, and at all times hereafter, well and truly pay, or cause to be paid, unto the said Stephen Van Rensselaer, his heirs and assigns, the yearly rent above reserved, at the days and times, and in the manner aforesaid.”
“to reenter, and to have and enjoy the premises as of his former estate, and to put out and remove the grantee, his heirs and assigns; and in that case the indenture is to be void.”
No third party here.  If the rent isn’t paid can file an action to recover the rent.  When you rent something you are promising to pay money for using something.  The court said this was a contract case, and called this a promise.  When a promise is broken under enforceable law you get damages, not the property back.  Not a FSD, or condition subsequent.  Don’t put too much weight on it, a long time ago.
Hagaman v. Board of Education - FSD
“It is the understanding of the parties to this conveyance that the hereinabove described land is conveyed solely for the purpose of being used for the erection and maintenance of a public school or schools and that the Board of Education of Woodbridge Township, N.J., will erect a school thereon on or before the school year of 1926 and use such building for school purposes.”
FSD, because it doesn’t specify entry and repossession.  Sounds like a one-time obligation, we’re giving you this property on the enforceable promise that you will use it as a school, this is done.  Good case for explaining the language, read like a hornbook.  Don’t have to distort language, it sounds like a promise and the promise was fulfilled.
Charlotte Park and Recreation Commission v. Barringer – Converted FSSCS to FSD
“In the event that the said lands comprising the said Revolution Park area as aforesaid, being all of the lands hereinbefore referred to, shall not be kept and maintained as a park, playground and/or recreational area, at an average expenditure of $5,000 per year, for the eight year period as aforesaid, and/or in the event that the said lands and all of them shall not be kept, used, and maintained for park, playground and/or recreational purposes, for use by the white race only, and if such disuse or non-maintenance continue for any period as long as one year, and/or should the party of the second part, or its successors, fail to construct or have constructed the roadway above referred to, within the time specified above, then and in either one or more of said events, the lands hereby conveyed shall revert in fee simple to the said Osmond L. Barringer, his heirs or assigns; provided, however, that before said lands, in any such event shall revert to the said Osmond L. Barringer and as a condition precedent to the reversion of the said lands in any such event, the said Osmond L. Barringer, his heirs or assigns, shall pay unto the party of the second part or its successors the sum of $3,500.”
“Provided that”, FSSCS – not automatic reversion, the payment has to be made.  The court said it was a FSD, regardless of the money, it is clear that if the park is used by others it should revert, after payment.  Before the money is paid, the park still belong to the park people, it does not belong to the Barringers, until they pay the money.  
The court wanted to get the result it got.  
-	Did it all by manipulating private doctrine.  
-	Why distort the language, because of Shelly v. Kramer, if it automatically reverts, doesn’t involve state action. If the state courts are involved in the enforcement of a racially restrictive covenant same as a state action.
-	Interpret FSSCS as FSD to avoid the need to use state courts.  Barringers were the owners as soon as the park was used by anyone else, this case just confirms that.
Shelly v. Kramer – Converted FSD to Covenant
“…the said property is hereby restricted to the use and occupancy for the term of 50 years from this date, so that it shall be a condition all the time and whether recited and referred to as not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of 50 years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian race.”
Not an important case, historically important.  Thurgood Marshall case, can’t enforce racially restrictive covenants, because Shelly stands for the proposition that the use of the courts to enforce them is state action.  4th amendment, constitution, bill of rights does not apply to private action.  Apply constitutional norms to state actions, done by statute.  Before this case there were no statutes.  Such covenants were pervasive.  
Important Messages:
-	This case had to show that the enforcement of restrictive covenants was state action.  Limited to its facts because otherwise all private actions brought in state courts would be state action.
-	Not limited to a fee, sounds like this is going to be a promise, not a limitation on what the person owns.  In the nature of a convenant, which is a promise.  
-	The Mo. court dealt with it as if it automatically shifted back to the prior owners.  Neighbors sued, the minute the court found the violation they referred it back as if it were a FSD, without giving damages.  Supreme Court, says no it’s a covenant, stands for promises, fsa with lots of promises.
Wolf v. Hallenbeck – Converts FSD to FSSCS
“As a part of the consideration for this conveyance, the grantee covenants that on or before 12/1/37, he will cause to be erected on the property a house with a minimum cost of $7,500, and in the event the grantee fails to cause such a house to be constructed, the title to said property shall revert to Hallenbeck and the amount paid therefor of $525 shall be forfeited to Hallenbeck as liquidated damages.”
Influenced by Shelly, makes FSD, it shall revert, clear here it’s a FSD, court interprets it as FSSCS.
Facts: H brought action to remove clouds from title in Denver.  W conveyed property to Lewis, FSD, Lewis conveyed to Hallenbeck, FSD, the house was not constructed – “shall revert.”  The court said it was a FSSCS.  
Issue: Why?  H is not only the original owner, he is the developer of a subdivision, he was the common grantor, the person who had all the land, held in one parcel, and then granted it out to a series of grantees.  The common grantor wanted the neighborhood to have a certain characteristic, trying to maintain a level in the neighborhood, can guarantee affluence to others.  Covenants in an evolution with formal requirements, if not met, some courts were hostile to them.  The developer’s lawyer sought to make them all FSD, the minute these restrictions broken the land will revert automatically.  
Rule: the court interpreted it as FSSCS for two reasons: 
1)	H asking for the land back, if FSSCS its easier for the court to avoid a forfeiture.  H wants to keep the purchase price as liquidated damages and also get the property back, good deal.  The court was hostile to that, as they always will be, anytime where someone is asking the court to totally defeat title and adds that they want to keep the purchase price.  
2)	Also during the depression (1930’s) explains why the grantees couldn’t build a $7,500 house and explains courts abhorrence to forfeiture.  Policy reason.  Just plain sympathy.
Court’s Intellectual Dishonesty:
-	The court interprets “shall revert” as “but if”.  
-	The court did the same thing in Charlotte Park, “it shall revert,” “provided that something else happens.” Sounds like FSSCS, but interpreted it as FSD.  
-	Perhaps the language in CP was more ambiguous, where the language in Wolf seems much more clear.  In Wolf, don’t address the ambiguity.  
-	(In CP) When you overlay the equitable doctrine of abhorring a forfeiture and the other doctrine of interpreting the language against the drafter, plus the language itself “it shall revert.”  Not an automatically reverts as soon as the condition is broken.  Intellectually dishonest, but not as bad as Wolf.
-	Neither court talks about how they have interpreted this language.  The court does say why in Wolf, there is a reason why they called it a FSSCS.  H’s attorney called it a FSSCS, the court went with it, don’t have to justify it.  Like Pierson v. Post, snatching defeat from the jaws of victory.  Wasn’t Wolf’s attorney that did it.
Policy of Avoiding Forfeiture: You have a rule, the rule says that when people express their intent in a particular way, the court is going to enforce those rules.  What the court in Wolf has done is evoke an equitable principle, abhorring forfeitures.  Like a rule, but not quite a rule, really a principle.
Both CP and W raise the issue of the relationship of FSD, FSSCS to Adverse Possession: 
-	If the courts had found FSD and the grantee had continued to violate the condition.  The grantee would have been no longer the owner, because it would have automatically reverted and thus 
-	W and the Barringers would have already owned the property and the city would have been using it as a trespasser and 
-	if we assume they didn’t know, they would have been good faith adverse possessor, they might not have risen to the level of useless usurpers.
In re Nesbitt and Potts’ Contract, split interest situation, violation of a covenant.  
The reason Upham thinks that if you adversely possess against a life tenant you get it all, 
-	the adverse possessor gets a fsa, the whole purpose of adverse possession is not to help the adverse possessor, nor protect the owner but to vindicate the apparent allocation of resources and the marketability of those resources.  
-	If you give an adverse possessor only a life estate pur autra vie, you will be in Pabst’s situation, only have it until someone dies, not conducive to the purposes of the free flowing of commerce.  
The argument on the other side is more rule based.  
-	If you go to the statutes, look at adverse possession as simply the application of a statute of limitations, cause of action accruing.  
-	If you AP against a LT, the cause of action accrues, but the LT has possession, has possessory interest in the land.  Only accrues when LT dies and their interest becomes possessory, should be able to sue at that point.
In those cases where we have a rule oriented judge or a judge who thinks that judges above are rule oriented, she will say:
-	all AP gets is a life estate pur autra vie, however, 
-	the remainder person could have notified the LT, caused the LT to protect interest, been able to bring an action against AP for waste, 
-	the failure of the LT to do that could result in laches.  Same result, equitable doctrine coming in and trumping the rules.  Judges will get to the decision they want, professional socialization is what makes you able to write opinions that get the result you want and is well reasoned.
White v. Metropolitan Dade County – FSD without forfeiture
“This conveyance is made upon the express condition that the lands hereby conveyed shall be perpetually used and maintained for public park purposes only; and in case the use of said land for park purposes shall be abandoned, then and in that event the said [grantor], his heirs assigns, shall be entitled upon their request to have the said lands reconveyed to them.”
Facts: FSD, if not used for park purposes will revert back to grantor.  The land was used as a tennis facility to host a large tennis tournament.  The court construed park very broadly.  On the few days that the tournament was held, the public didn’t have access to the park. 
Issue: P not asking for the park to be returned to them, wanted an injunction. Not asking for a reversion, just a determination that they have the power to threaten.
Rule: cites other Fl. Decision, to broadly define park.  Didn’t outlaw the Lipton Tournament.  Talks about the general public policy argument against forfeiture. Courts abhor a forfeiture, a strong policy.  Courts will distort language when necessary to comply with the policy of avoiding forfeiture.  The court would have been less likely to enforce if it would lead to a forfeiture.
Amendatory Deeds: Case doesn’t tell you anything.  Shows practical importance of this stuff and how it works.  The Mathesons, the holders of the reverter interest, executed several amendatory deeds, what we see in this case is an amendatory deed amendment failure.  They said we don’t like the way you’re running this park.  Dade County is making a lot of money from this.  Matheson’s didn’t like it, so they refused, the negotiation broke down.  
Dead Hand Control: Makes this kind of control of wealth real.  The person that gave the park to Dade county has been dead for a long time but they still control it.  Can exercise private control over public assets, not only while they are alive but after they are dead.  The control seems to be firmer when its private control over public assets than when its private control over private assets.  These people are part of government now.
Standing Issue: Only the Matheson’s had standing, use of the park for the Lipton tournament affected the park broadly.  Normally does not give you standing, you have to have a particularized effect on you.  M said they don’t have to be affected, not bound by the public interest, bound by only what they want to do.  If they overstep their bounds might run into the courts.
First Universalist Society of North Adams v. Boland - FSEL
“Clark for the expressed consideration of $900 conveyed the land in question by a deed containing the usual covenants to the P society to have and to hold to the said First Universalist Society and their assigns, so long as said real estate shall by said society or its assigns be devoted to the uses, interests, and support of those doctrines of the Christian Religion embraced in the Confession of Faith adopted by the General Convention of the Universalist held at Winchester, NH, in 1803.  And when said real estate shall by said society or its assigns be diverted from the uses, interests, and support aforesaid to any other interests, uses, or purposes than as aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever vested in the following named persons, and such persons shall be the legal representatives of any such persons at the time the same so vests as aforesaid in the following undivided parts and proportions, to wit…To have and to hold the above granted premises, with the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to them and their use and behoof forever, as aforesaid…”
O to FU then if to A, B, C, and D named parties, one of whom was a grantor.  
-	Maybe looks like FSD, but the court interpreted it as a FSw/Executory Limitation.  Looks like #4, p. 253.  
-	The court interpreted this way but struck it down because of the rule against perpetuities.
-	In FU, going to all these third parties, have to apply rule against perpetuities, can’t allow it to go on indefinitely.
Rule against perpetuities: 
-	An interest subject to the rule can only continue as long as “A life and being + 21 years.”  Won’t talk about this any further.  
-	Common law developed rule, modified by statute. The common law figured out a way to cut them off, but could only cut off some of them.
-	Tries to put a limit on the length of time in the future that dead people can control property.  
-	Don’t want wealth tied up too long with these archane rules.  
-	It only covers these kinds of defeasible fees, when the fee determines goes to a third party when it comes back to a grantor as in FSD, FSSCS, it doesn’t apply.
Free hold v. Non-Freehold estates: A free hold estate is one in which you are seised.  Had to go to the property and gather neighbors around and exchange a twig.  The person receiving the land became seized of the land.  In Johnson v. MacIntosh, the need to go the land was eliminated by the creation of the concept of trust.
C.	Trusts
Chapter 14 (pp. 505-508, 508-521, and 521-555)
Statute of Uses: a tax statute.  Intended to recapture taxes which were being evaded by people setting up uses.  O to A and his heirs for certain uses.  Taxes avoided if A never dies.  The authorities decided to eliminate uses, don’t see any in real property where the trustee has no duties whatsoever because the only purpose of them was to avoid taxes.  In the creation of those uses to avoid taxes, lawyers began to see that uses would be good for other purposes.  
-	Tax evasion uses were eliminated but uses which were not primarily for tax evasion continued, either not in real property or where the trustee/legal owner had some duties, active use.  
-	P. 519, Silvester v. Wilson – perfect example of active trustee, doing something more than being a straw. In the classic tax evasion use, the trustee did nothing but act as a straw.  
-	The statute of uses addressed the straw subset and made the beneficial owner the legal owner and took the legal owner, the straw, out of it entirely.  Full legal ownership in the beneficial owner.
Other reasons to use Uses: 
-	Fraud, 
-	monasteries couldn’t own land, so they found some way to get the benefit of owning land without owning it.  Gave land to someone to hold for their use.  Disguising ownership
-	Be able to devise land, giving land under a will.  Primogeniture, might disguise
-	Be able to buy and sell land at a distance, if paid money in London for land in Shropshire, did not legally give land in estate there, had to actually go there.  Once someone rec’d money in London for land in Schropshire.  Will just say this is a use, we’ll execute it, can now purchase land without going there.
Concerned with the ones that don’t have incidents.  Conflict between forms and institutions and contemporary needs.  The uses that were not eliminated were the one’s where (historically determined) the legal owner is not seisen.  
O to A and his heirs for the use of B and his heirs.  A free hold estate 
–	words of limitation “and his heirs” describe what A gets, seisen in land a kind of status.  
–	Not the same as ownership.  Can only be seised in real property by going to it.  
–	Life tenant was the first form of ownership, great nobility in the common law.  A life tenant is seised, so are all the other fees, all freehold, the owner of them is seised.  
–	The tax evasion dealt with O to A for life then to B and his heirs both for the use of …, they were seised, if this was in real property and there were no duties for the person that got the property.  
–	The statute of uses says we are going to execute those uses.  Eliminate the legal owner and the beneficial owner becomes both the legal and the beneficial owner, in the book talks about executing the uses.  Becomes owned by B beneficially and legally.
What the SOU did not eliminate, allowed to continue have become extremely important in common law.
-	Pension funds are trust.  Governed by rules that have developed out of split ownership created by lawyers to avoid taxes.  Lawyers continued to use them because they are useful.
-	When you have wealth in a form other than land, and the legal owner owns if only for a term you can still have a use.  O to A for 10 years for the use of B for 10 years.  What’s important is wealth that’s held in a trust form.  
-	If the legal owner is not seised of the land/property, you can have a trust.  You can only be seised in land.
-	If the legal owner has some kinds of duty to perform, to pay out the proceeds to the beneficial owner, exception, universal in trust.
Farkas v. Williams
Sets out rules that could have been done equally well by a text in a hornbook. This case establishes the importance of role, fiduciary duty.  Valid inter vivos (during lifetime) trust.  Use to identify the three parties to a trust:
1)	The beneficiary – Williams
2)	Trustee – Farkas
3)	Grantor/Settlor – Farkas
Farkas is playing two of the three roles here, 
-	he set up the trust and he is the trustee, extremely common.  
-	What he has set the trust up to do is to give something to Williams but to control it until he dies.  You can satisfy that desire in a much simpler way by not executing any documents either way.  If you want Williams to get shares, put it in your will that he gets it.
Williams interest:
-	while Farkas is alive is a mere expectancy, until the moment he dies he can change his will and there is nothing that Williams can do to prevent it.
-	Williams can’t prevent Farkas from doing anything he wants with the funds while he is alive.  You can will something, but if don’t have it Williams can’t receive it.  Farkas could have sold the shares, just because you bequeath you auto, doesn’t mean you can’t sell it whenever it pleases you.  
-	Backwards way at getting at what court did.  Power of Williams over Farkas (0 in will example) and limitation of Farkas’ control over the shares (again 0).  
Issue: When a settler puts in a trustee who is the same person the power to vote the shares, use the income, deplete the shares, is that so much power over the corpus of the trust that its like somebody putting it in a will.  Did the filling out of those forms constrain Farkas in any meaningful way, because if it didn’t looks like a will, if it did, then it’s a trust.
Rule: He can do what he wants, but he can’t sell it to anybody he wants, to revoke it he has to call Investors…He has a fiduciary duty to the recipient, not so great here, but there are some limitations on him. 
What present interest did William’s get at the creation of the trust?
-	The court said it was the interest that cannot be named.  
-	Within Farkas’ power to revoke the trust and eliminate Williams interest all together.  More than 0. 
-	Farkas has to fill out forms before he can revoke.  After Farkas died, Williams could sue the estate for violations done while Farkas was alive because once he was dead couldn’t change the estate.
The court is looking for a particular result, 
-	looking to do justice, fairness, 
-	at the end of the decision the court talks about formalities.  Since we know that Farkas filled out documents and intended for Williams to get something when he died.  Either he created a valid inter vivos document or a testamentary document.  Even if this weren’t a trust, maybe it has the necessary formality to call it a valid will.  
-	The court is saying if this gets overturned, we will shift to a valid will.  The court could have said valid trust or valid will.  They felt that making every document you sign with a mutual fund a valid will is a greater distortion of the policy behind that statute than calling this a valid trust.
-	Maybe this would have been formal enough to satisfy the statute of wills but the court pulls back. Better to have a trust where the settlor really didn’t give up much power, and where the beneficiary doesn’t get that much present interest than it is to fool around with wills.
Blankenship v. Boyle
Facts: class action brought by beneficiaries of the fund of the UMW, against the trustees.  Designated by the union, operators, neutral.  But the neutral was a former operator on the side of the union.
Issue: violation of fiduciary duty.  Should have placed the interest of the beneficiaries as their top priority instead of the union.  Accumulated excessive cash in the union’s bank in a checking account, non-interest bearing.  The union was benefiting because they owned the bank.  Also bought utility stocks to benefit operators.  Boyle, new fund manager, increased monthly pension after he is elected.
Rule: the court finds that these are violations of fiduciary duty.  
Fiduciary duty: the trustees have to do everything in their power to grow the pension fund for the beneficiaries.  This comes from the common law.  Doing something else with the money is clearly a violation of common law duty.  Very narrow definition.
Labor Management Relations Act: a statutory trust, different from common law fiduciary duty.  Doesn’t define the fiduciary duty but it gives a sense of what the duty is.  Required industry and neutrals as trustees implies that it would not be used solely to strengthen the union.  Congressional scheme designed to temper differences and reinforce the most fundamental duty owed to the beneficiaries.
Upham perspective: 
-	Tripartite nature of trustees makes them favor the coal industry, not the beneficiaries.  Some of the beneficiaries are not union members.  All of the abuses favor the union. 
-	Even if the common law fiduciary duty is correct, they didn’t violate it.  Democratic Union, years later Boyle was convicted of murder.  
-	He raised the pensions not a bad thing. 
-	Buying stock in coal companies…This is a pay as you go fund, 97% from everyday royalties.  If the revenue of the coal mines go down, the revenue will go, the fund will go.  
-	The people running this fund did not have a lot of options, high sulfur coal more expensive to use, to mine, so they could either have a big fund for a short time or they could do what they did and probably not really be able to change the course of coal utilization.  
-	Hard to justify the checking account.  The other two problems, straight common law fiduciary duty not that applicable.
Wesley United and Pulitzer are there for the cy pres doctrine and implied powers of sale, but the latter raises many of the tensions between grantor’s intent, pigeonholes, and “common sense” that we discussed with life estates.
Wesley v. Harvard College 
Facts: the cy pres doctrine used to interpret grantor's intent to leave a charitable trust.  In this situation, the grantor asked that $500 scholarships be given to male members of the congregation, if there were overflow, it should be used to create a second scholarship.  Several things changed over time, the trust increased significantly, as did the cost of tuition at Harvard.  Also, Harvard began admitting women.  The court here determined that the trust should be interpreted more broadly to increase the amount of disbursement, include women, extend beyond the congregation, rather than have the trust go to no use due to the restrictive nature of the language.
Issue: can the church use the doctrine of cy pres and do something other than what the testator intended with the trust.  The intent has to be impracticable.  Not enough young men in the congregation to make this work now.  There had to have been a general charitable intent.
Cy Pres: As near as possible.  The rule of cy pres is a rule for the construction of instruments in equity, by which the intention of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect.
Requirements for application of cy pres:
-	The intent has to be impracticable
-	There had to have been general charitable intent.
Parties
-	Why is Harvard in this case?  Beneficiary to the trust, they had to be a party.  They were the original D, didn’t appear.  Their interests were defended anyway. 
-	The heirs of Colson came in to appeal, if cy pres is not applied and this trust is dissolved it goes back to Colson’s estate to his heirs.  
-	The attorney general, have a charities divisions.  There to police charitable institutions.  Want to make sure that cy pres is applied, a lot of money involved here.  In the public interest, a valid charity.  Just dissolving it and sending it back to the Colsons is not.  There to defend the interest of the grantor.
In trust there are limitations on what the grantor can do.  
-	In Wesley, intended to be in the spirit of the grantor.  
-	A way to change the trust despite the clear intent of the grantor.  
-	In order to prevent the little Colsons from getting the wealth the church and Harvard had to show that Colson, the grantor, had a general charitable intent.  
-	In order to make that specific trust work they had to change the specific intent of the grantor which was limited to male members of the congregation going to Harvard.  
-	Could have been refashioned in many different ways.  Make sure done equitably and in a way to serve the public interest, the AG has the power to become involved.
In Re Pulitzer’s Estate
In Pulitzer, the court uses cy pres to construe the grantors intent in favor of the trust beneficiaries and away from maintenance of the newspapers at all cost, despite the grantors specifically stated intent, to avoid economic waste.
-	Another limitation on the discretion of the grantor.  The legal system in a battle to preserve power of testators who die and to try to cut back the ability to do so.  The rule against perpetuities most famous of those efforts.  Also the doctrine of equitable principle that courts abhor a forfeiture, will prevent intent from being implemented if it means that one party will lose entirely.
-	Pulitzer about grantor sovereignty/discretion.  Clear from the grantor’s intent that he didn’t mean for the shares in The World to be sold.  “Under any circumstances whatsoever.” “I particularly enjoin upon my sons and my descendants the duty of preserving, perfecting and perpetuating “The World” newspaper.”
-	The value being cited here is fidelity to the grantor, though hypocrisy.  He did intend the remainderpersons to get something and he put more than 3.5mil in a separate trust to make sure that was accomplished.  The maintenance of The World must have been Pulitzer’s intention and others be damned.
-	Why does the court do this, because the total wasting of assets is something the court’s just not going to go along with? There is no way it could have been made more clear.
-	Court’s comment about vanity.  They trash vanity, the only way to explain intent to keep paper running, they say this is inconsistent with successful business people.
Who defended interest of the testator?  
-	2 people that represented the editors of the newspapers, another party, not P or D.  Supplemental cause of action to be included in the accounting at the sale, rejected.  Appealed, but they lost. Usually it’s the trustees job to protect the grantor’s interest, but that’s like the fox guarding the hen house.
-	Trust are all equitable, the court has great discretion to allow people in, here the editor’s/pressman would be stakeholders and would be allowed to intervene.
D.	Concurrent Estates
Chapter 19 (pp. 851-858)
Joint Tenants: hold undivided shares in an entire parcel of land.  Their possession is said to be undivided because each has a right to use the whole.  Traditionally, creation of a joint tenancy has required “unity” of:
-	time, 
-	title, 
-	interest, 
-	and possession, 
meaning that the tenants must take the same type and duration of interest at the same moment from the same instrument and that each must have a right to the use of the whole.
Tenants in Common: also hold undivided shares in land, but only one unity is required, that of possession.  Thus tenants in common can take different interest in the same property at different times from different sources.
Common Law Presumption: two or more persons who bought land together without specifying the terms of their occupancy became joint tenants.
Modern Presumption: modern statutes in virtually every jurisdiction have reversed the presumption, so that parties who do not express their desires now become tenants in common.
Partition: can occur when any of the four unities are destroyed, sale of the property, and distribution of the proceeds among the former joint tenants.  Tenants in common can force partition.  Upham says this does not have to happen.
Survivorship: when one of the tenants dies during the course of the tenancy, the other becomes sole owner of the property.  If there are three joint tenants and one dies the other two then own as joint tenants.  There are no rights of survivorship for tenants in common, so that when one tenant in common dies, his or her share passes to his or her heirs or devisees, who take over decedent’s place in the shared possession.
McKnight v. Basilides
Facts: Married couple, wife had children from a previous marriage.  Wife died, husband continued to live on the property.  The children think they deserve rent for the time husband spent on the land.  Wife died without a will.  How did they own the property?  In order to know for sure we would need to know what the deed said, need to see words of limitation, looking for “and their heirs.”  Since it says and they owned, we can assume a fsa.   The answer was not JT or TC, because you can have fsa in both.  
Concurrent estates can exist in any of the different fees.
Tenants in common: the children think they inherited something.  Not JT, because it would have all gone to the husband because of a right of survivorship.  JT common between husband and wife, husband would have been the sole owner and the children would have been out of luck.  
There was a child between the husband and wife.  Split was not ½ and ½.  
-	When the wife died, succession would govern, ½ of her ½ interest as a tenant of the house would go to the surviving spouse and then the rest in equal portions to her children. 
-	So the Basillides step children would not end up with half, they are suing for less than half.  Found that the lower court provided that each P had an undivided 1/6 interest in 2 pieces of real estate.  
-	Ruth Allison, daughter of husband and wife, she has it until her father’s dies, may be all she gets because if father dies with a will that cuts her out she may not get more.  If he dies in testate she will probably get more.
Issue: Husband says he owns the entire premises by adverse possession.  On the contrary, the children still own half of the property, and he owes rent.
4+1: 
-	Exclusive possession, 
-	Statutory Period, there long enough, 
-	open and notorious, 
-	regular and uninterrupted, 
-	hostile (without permission of the owner) he is the owner, along with the kids.  The court says it wasn’t hostile because he doesn’t have to ask permission, he is the owner.  But he occupied the whole house, he doesn’t own the whole house, but each party has the right to use the whole thing without asking permission.  So 4+1 not met, because he is not in hostile possession.
Rule: Court going to off-set the rent due by counting improvements and taxes paid.  Not adverse possession. Decision says you can’t have adverse possession among tenants in common.
The Court’s Perspective on Cotenancy and adverse possession: it is a general rule that the entry of a cotenant on the common property, 
-	Even if he takes the rents, cultivates the land, or cuts the wood and timber without accounting or paying for any share of it, will not ordinarily be considered adverse to his cotenants and an ouster of them.  Rather such acts will be construed in support of the common title.
-	Mere exclusive possession, accompanied by no act that can amount to an ouster of the other cotenant, or give notice to him that such possession is adverse, will not be held to amount to a disseisen of such cotenant.
This language could have been interpreted to find adverse possession, acts that amount to adverse possession, acts that give notice.
-	Mere intention , unannounced, is not sufficient to support a claim of adverse title.
-	Although the exclusive taking of the profits by one tenant in common for a long period of time, with the knowledge of the other cotenant and without any claim of right by him, may raise a natural presumption of ouster upon which the jury may find the fact to exist, if it satisfies their minds, yet the law will not, from this fact, merely raise a presumption of such ouster
-	All of these things gave notice to the cotenants of adverse possession.
The Court’s Perspective on Cotenancy and financial benefit: no argument can be advanced for allowing one in possession to reap a financial benefit by occupying property owned in common without paying for his personal use of that part of the property owned by his cotenants.  He should be charged with its reasonable rental value.
Upham Perspective: true owners getting a windfall.  They either didn’t know husband had the property, or allowed stepfather to pay all the taxes during the depression and then come in and try to reclaim the property.
Why decided wrongly?  He should have gotten it by adverse possession,
-	he paid taxes, 
-	collected rent, 
-	acting as the owner. 
-	Didn’t distribute the rent to the other cotenants, 
-	didn’t know he had other cotenants.  
Implications to Adverse Possession Doctrine:
-	This holding and Fallon, makes it extremely difficult to adversely possess.  Most cotenants adversely possessing are not ruthless usurpers, they think they own the whole thing.  So does everyone else, including the co-tenants.  This case takes one of two doctrinally correct approaches but reaches the wrong result.  
-	What if he has been there 1,000 years, still no adverse possession?  No matter to whom he sells the property they just become tenants in common with his step-children.  When he sells it, each time selling it at full value, so what, being faithful to the doctrine.  Can be faithful to the doctrine and still find adverse possession here.
Even if we take the ‘you’ve got to knock on the door of your cotenant and tell them you are claiming the whole thing’ (in order to be hostile), this is a remarkably bad decision, because he has to pay rent.  
-	Can’t require him to pay rent for the time he was there on the ground he had an obligation to pay rent because he didn’t have a right to occupy the whole thing.  Acting adversely to his cotenants.  
-	And then say he’s not acting adversely because he’s not hostile.
-	Most people have no idea that they are tenants in common or joint tenants.  He probably didn’t know, because the wife died in testate.  If she had left a will it would have indicated how it was held.
Big issue in the case: who owns the big and little house now.  
-	Before the case, 2 stepchildren own 50% together and the stepfather owns 50%. Same for both houses. 
-	After the case, the little house is sold, who owns it? The court could have given each stepchild a ¼ of the purchase price.  It is unclear who owns it.  At the time of the sale according to the court, the cotenants didn’t claim the house.  They asked for rental before and after the sale.  An installment sale, alternative to a mortgage.  This is just like the Fallon case.  All B had to sell was 50% interest.  After the sale the owner was X 50% and the stepchildren ¼ each.
Fallon v. Davidson
James and his wife and children owned a tract as tenants in common.  In 1931 D Fallon recovered a judgment against James, and the land was sold by a sheriff under execution.  Fallon purchased at the sheriff’s sale and received a sheriff’s deed purporting to convey the entire interest in the property.  Thereafter he was “in the actual, visible, distant, hostile, exclusive, continuous and uninterrupted possession” of the land and paid all taxes thereon.  Ps, the wife and children of James, sued, asserting their ownership of the property.  Fallon claimed title by adverse possession under an 18-year statute of limitation.  But the Colorado Supreme Court held that Fallon’s possession had been adverse to James, but not to the wife and children.
Facts: James was a tenant in common with wife and children.  James probably incurred some debt, for which he gave his interest in property as collateral and said he owned the whole thing so he could more deeply into debt.  Fallon who gave him the loan, foreclosed, the land was sold at a sheriff’s sale, the deed was for the entire interest in the land. The court said he couldn’t have purchased the whole thing, he could only get what the seller had.
Why decided wrongly?
-	Similar to Basilides case.  Assumed that all the parties assumed that Fallon owned the whole thing.  
-	But since he was a tenant in common could only be for his interest in the land.  Fallon took it with a color of title, merely void, and did the 4 required for adverse possession.  
-	The court went through specious reasoning as in Basillides and said a tenant in common can never be trespassers since they have a right to occupy the whole thing, don’t need permission, so the without permission aspect of adverse possession should not be taken literally and the statute never began to run.
-	If after 27 years, between sale and judgment, is 55/155 enough?
-	Fallon could turn around and sue for back taxes.
Concurrent Estates Problems
In each of the following, identify the interest of each party.
1.	(At common law) O  A+B and their heirs
At common law they are joint tenants, each have a fsa to the entire property, each gets ½.  Have four unities of possession: time, title, interest, possession.  Get at the same time, both have undivided right to possess the whole, title – both getting fsa, interest – both get half.  JT at common law, that was how interpreted by the courts, if ambiguous or if not indicated otherwise.
2.	(Now) O  A+B and their heirs.
Tenants in common, still have a unity of interest, ½ interest, time, title, both having undivided rights to possess the whole.  Have to specify otherwise, there are statutes in all jurisdictions that have changed the common law presumptions to make a new presumptions that conveyances will be tenants in common because the right of survivorship is such a drastic change from what people expect.  If you go in to buy a car, don’t expect other person gets the whole, expect it to go to heirs.
3.	O  A, B, + C and their heirs as JTs.  Then, C  D.
ABC have fsa, 1/3 each, joint tenants.  Then C conveys to D, does it destroy the unities?  Cotenants are ABD, FSA (could be shares of stock), 1/3 each.  Have unity of title, interest, possession, don’t have unity of time.  If the unities are destroyed, joint tenancy is destroyed but you don’t have to sell it off.  
These three people can’t be joint tenants because D got it at a different time.  They are tenants in common.  Are they all tenants in common equally? 
-	A/B have four unities are joint tenants together and the two of them are tenants in common with D.  A/B 2/3 interest – equal interest under joint tenancy.  
-	The advantage of A/B being joint tenants is the right of survivorship.  O wanted ABC to be JT and to have rights of survivorship, C didn’t want it, got out of it, A/B can keep it if they want it.
-	ABD have the same rights to use the land.  Only evaluating their interest in the entire piece of land.  
Note: Tenants in common can have other unities in addition to possession.
4.	O  A, B, + C and their heirs as JTs.  Then, C  D.  Then B dies.
When B dies how to describe the interest.  A gets B share of the property, JT have rights of survivorship.  D still has the same thing he had.  A now owns 2/3, B’s heirs or devisees get nothing, D has 1/3.  Right of survivorship.  A and D’s relationship, tenants in common.  Now only have unity of title, possession, don’t have time or interest because A now has 2/3 interest.
Only important distinction is rights of survivorship.
5.	O  A, B, + C as JTs.  Then, C  D.  Then D dies.
A and B don’t get any of D’s land, his land goes to his heirs and devisees, they get 1/3.  A and B have 1/3 each.  A/B JT and tenants in common with whoever gets D’s land.
6.	A + B are sisters and JTs.  A dies and devises one half of her interest to H and B respectively.
Since A/B were JT, B got everything because of right of survivorship, there was nothing left to give to heirs, B gets it all.  If you are going to break up the JT have to do it before you die, can’t do it in your will.  The right of survivorship is well known.  A can’t die and devise, goes to B by rights of survivorship.
7.	A + B are JTs.  A  H 25% of A’s interest.  Then A dies and devises 2/3 to S and 1/3 to H.
A broke the unity so they become tenants in common.  
A/B JT, A conveys to H 25% of her interest.  How much is H going to get?  H gets ¼ of A’s ½ which is 1/8 of the whole.  That leaves A with 3/8 and B has ½.  These three people are tenants in common because they can’t be JT because A/B/H each have different interest.
Then A dies and devises 2/3 to S and 1/3 to H.  Can A do this, yes, because A is a tenant in common.  S will have…see answer sheet.  S=1/4, H=1/4, B=1/2, all tenants in common.  Once they are tenants in common they can devise.  Can use a will.
If the conveyance is only joined in by one of the JT, they the others remain JTs.
8.	A owns in fee simple.  A  A + B.
Tenants in common because you can’t create JT with yourself.  If A wanted to B JT with B, could go through a straw transaction, convey to another and reconvey to yourself, a way to avoid having the formal rules kick in.  Under statutes, If A wants to B JT’s all she has to say is A to AB as JT.  At common law have to go through a straw because don’t have unity of time.
9.	O  A ¼ interest + B ¾ interest as JTs.
Can’t be JT’s, don’t destroy the whole conveyance they just become tenants in common.
10.	O  H + W at common law.  Now.
Tenancy by the entireties, available only to married couples.  Both described as holding the entire interest.  Don’t hold ½, both hold all of it. Both as a unit hold all, neither having an individual interest.  Don’t need to know it.
The only way H and W could own property is tenancy in the entireties, unless designated.  Owned collectively, have no individual interest.  Same as JT, requires 4 unities, rights of survivorship. Tenancy by entirety cannot be broken, partition cannot be forced except by the voluntary act of both parties or by a divorce.  
Can’t be defeated by the act of one spouse.  Safeguard for the wife so the husband could not sell the property out from under her.
Policy Implications:The law does not smile on JT, won’t find them unless they are very clear and meet the formal requirements. Manipulating the rules is probably not going to work.