Someone recently bought our

students are currently browsing our notes.


Rights Of Ownership And Their Protections Outline

Law Outlines > Long Merril & Smith Property Outline

This is an extract of our Rights Of Ownership And Their Protections document, which we sell as part of our Long Merril & Smith Property Outline collection written by the top tier of University Of Virginia School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Long Merril & Smith Property Outline. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Rights of Ownership and Their Protections The Possessory Interest Trespass?One has a general duty not to enter someone else's land without permission In general, trespass is like battery- trespassers are punished for the right to personal autonomy, rather than exclusively for the harm caused o Trespass actions were used historically to resolve disputes over land and courts did not want to require or encourage there be an aggressive act on the land to get the case resolved Exceptions to the Duty Not to Enter:

1. Necessity - imminent threat to life or limb

2. Public Access

3. Government officials

Jacque v. Steenberg Homes: The easy question in this case was in regards to primary legal rights and obligations - Jacque had the right to exclude people from traveling on his land, and he indeed explicitly asserted such right against Steenberg Homes, but Steenberg still traveled the land anyway to pull a motor home. Ground was snow covered, so no physical damage to the property.Key question in the case: what is the appropriate remedy? [remedies are dependent on the purpose of primary rights and obligations]
o No compensatory damages were awarded, only nominal. The question is thus whether nominal damages will allow for punitive damage recovery
? If we DON'T allow punitive recovery, the lack of compensatory damages will allow others to decide whether it is worth it for them to trespass??Hence, compensation is not enough in this instance to support the purpose of the primary rule, we want people not to trespass, as opposed to reasonably/profitably trespass Steenberg Homes Rule: Nominal Damages, in the absence of compensatory, will NOT preclude punitive damages; they may be awarded in the discretion of the jury (not all jurisdictions adhere? but you can make the argument why they should [absence of other deterrents]

Side note: why have nominal damages in cases where there are no compensatory damages?: Nominal damages provide a legal remedy settling a boundary dispute (so the parties can get a legally dispositive answer that they need to know Remember the possibility of Necessity (See below) Stands for many different remedies available to the landowner to protect their right to exclude, depending on the particular situation (call & have

them arrested, compensatory (make them pa for damages), punitive damages (make them pay just for trespassing)

The Ad Coelum Rule Ad Coelum Rule: Says that an owner of real property has rights that extend below and above the earth. Justification for the rule is that land lacks value if it is not accompanies by the right to place structures on the land. Hinman v. Pacific Air Transport: Concerns where the exclusion line lies (ex. how high above your property). There are clear lines on the surface, but people use "up" as well. How far can they go up or down??The CL rule was a latin phrase that says you own all the way up and all the way down. This is obviously not true. Court holds that airplane overflights are NOT trespass. In terms of land rights: o

Owner can build up as high as he wants, but nobody else can build in your vertical lines up (overhang). The owner of land owns as much of the space above him as he uses, but only so long as he uses it.

If there were no height restrictions and you build an Eiffel tower and a plane crashes into it, they have now trespassed Might be able to have a claim against the overflight on a nuisance ground. Probably a substantial interference-planes are very loud, but most likely not unreasonable-benefits far outweigh the costs. o What about if it is really close? Shouldn't there be a personal bubble?
o?Second Restatement of Torts: ["Personal Bubble Rule"]
Tresspass if within "immediate reaches" of the airspace and interferes substantially with the enjoyment of your land.

How far does the right to exclude go? Does not extend upwards indefinitely, limited to what landowner uses above his land, usually subject to a personal bubble [nobody can build on your vertical lines up - (as that would prevent you from building), but no remedy for air travel absent such buildings

Exceptions to Right to Exclude Necessity Doctrine of Necessity: Limited doctrine that requires a serious situation (ambulance that needs to drive through the land)

Ploof v. Putnam: Defendant was the owner of a dock, plaintiff was with his family sailing in a violent storm. Plaintiff attempted to sail up to Defendant's dock to dock himself to safety, but the defendant's servant refused and the boat crashed, severly injuring the plaintiff and his family. Plaintiff is suing defendant for not allowing him to attach to his dock in a time of necessity.?"the doctrine of necessity applies with special force to the preservation of human life" Court holds that in cases such as this, plaintiff has a right to "trespass" (although it is not called trespass) on the land of another. Right to exclude temporarily shifts to those in necessity (temporary easement?)

Why do we have a doctrine of necessity?
Because of the hold-out problem. Ploof would try to negotiate to use his dock, but since Putnam knows his life is at stake he will demand a ridiculous price. So, we let Ploof tie up. Vincent v. Lake Erie: Boat at dock was tied up lawfully. It was supposed to leave but wouldn't because a storm was coming. Storm came and slammed boat into dock, damaging the dockVincent stands for paying restitution for damage done to property during necessity o Possibly also compensation for rent at the dock, especially if the owner suffered an opportunity cost with you using the property (nobody else could use it)Necessity only changes "ownership" temporarily (different than imminent domain in that imminent domain changes property rights forever) Restitution protects the right to exclude here - those in necessity are in the best position to make choice w/r/t to use and access, but they should have to pay for what they needPublic Access

Uston v. Resorts International Hotel: Resorts International Hotel has excluded Kenneth Uston from the blackjack tables at its casino because Uston's strategy of card counting can tilt the odds in his favor.


Casinos are in the category of "businesses open to the public", in contrast to a "by appointment only" tailor that is NOT open to the public. Resorts International claims to have the right to revoke people's "right to enter" whenever they want o This is a right in some jurisdictions and not others Rule: You do not have to be open to the public, but if you are you can only exclude people on reasonable grounds [and in this case it is not reasonable because the New Jersey Gambling Commission makes the rules for all casino games]
o "Common law right to exclude is substantially limited by a competing Common Law right of reasonable access to public places" o FORK: Some jurisdictions give owners of entertainment venues absolute discretion to exclude persons from their premises [Brooks v. Chicago Downs] as long as there is no discrimination based on "race, color, creed, national origin or sex" o Right to exclude is balanced against a reasonable use that if afforded to all places open to the public

Trespass, Nuisance, and Coase Theorem Distinction Between Trespass and Nuisance

General Distinctions:?

Generally trespass concerns invasions of land by large moveable objects, whereas nuisances involve invasions by particulate matter or immovable objects o Nuisance Classifications -
? Physical Invasions by Particulate Matter
? Noise invasions (sound waves)
? Smell invasions (minor particulate matter)
? Non-Physical Invasions Where the Source of the Harm is Easily identifiable
? Aesthetic harm/visual invasion Trespass protects interest in possession of land; nuisance protects use and enjoyment of land


Nuisance: Non-Tresspass, Substantial and Unreasonable interference with another's property. Comprised of both physical and other intrusions. Hendricks v. Stalnaker: Plaintiff alleged water well was a private nuisance (Private: injures one or only a limited number of persons, Public: to his land because he cannot put a septic tank on his property affects general public as public) because the only available area was legally restricted because of the well.Difference between trespass and nuisance: idea of nuisance is defined by idea of trespass

Buy the full version of these notes or essay plans and more in our Long Merril & Smith Property Outline.