LAW 3330 EXAM 1
state courts
Lowest "trial" courts divided into courts of general and limited jurisdiction. Trial courts can appeal to intermediate appellate courts. No new trial, just the record. Highest court is usually the State Supreme Court.
Creation of Easements
(1) express conveyance (2) implication (3) prescription (4) estoppel
fixtures- intention test
--determining whether personal property haas become united with real property by examining the intent of the annexor -intent of parties gathered from nature of article, relations, situation of parties making annex and structure, use, mode of annexation. not owner's testimony -the controlling test: --i.e. heater for house intent is for it to remain --chandelier-look at objective intent, not owner's subjective intent, Strain v. Green, p.34. ct says if subjective intent, there is never any evidence other than what owner says
cases to revoke a license
-1. When the licensee has exercised the license by expending capital and labor in reliance on the licensor's promise. -2.A license coupled with an interest: An irrevocable license granted to enter the licensor's property and exercise the legal rights he possesses in the licensor's property. -3. Some states have enacted statutes specifying that certain licenses are irrevocable.
fixtures-Annexation Test
-A key fixture test that is met when personal property is in fact annexed, fixed, or fastened onto the real property. -although appears easy, courts do not agree -Constructive annexation test- just due to relationship between real and personal, even if not attached, garage door openers antennae dials -does it have = value if not attached? -assembled industrial plant doctrine-even unattached machinery = fixture is essential to plant operation -does removal damage the real estate? -attach can be gravity -would it like be in a moving van? test if not, then fixture
In Gross easement
-A personal right to use another's property, granted by the owner; does not attach to the estate, and there are no dominant or servient tenements. -only a personal right -Utilities (e.g., cable TV, electricity, gas lines)
Judicial Decisions
-A primary source for determining how the Constitution is interpreted and applied. -Courts also interpret statutes and decide cases and controversies. -Decisions can become precedent and guidance for other courts. -Citations: information listing the volume and page where a decision may be found.
Prescriptive Easement
-A right to use another's property that is inconsistent with the owner's rights and that is acquired by a use - open and notorious, adverse and continuous - for the statutory period; to a certain extent, it resembles title by adverse possession --hostile use: When a person uses land in a manner in which he does not recognize the rights of the --adverse use-open and notorious:must have notice or ability to have notice --continuous: uninterrupted use- w/o judgement or owner action exclusive use- make claim on his own -but the adverse user acquires only an easement (right to use) and not title (ownership).
prior appropriation theory
-A water rights doctrine that confers the primary rights to the first users of water. -To establish priority rights, a person must use the water on a regular basis -Unlike the reasonable use theory, the law of prior appropriation theory does not establish priorities in how the water is used as long as the use is beneficial. -even if land doesn't touch water
legal procedure
-An action is a proceeding in a court of law by which one seeks a remedy for an alleged wrong. -most real estate is done through mediation or arbitration -mediation- like a negotiator, everything is confidential so can't say in ct, can't impose an agreement upon them so can still go to ct -arbitration- talk about procedure before, makes decision as quick as possible, final decision with no appeal, only appeal if extreme fraud or wrongdoing, really hard to appeal
navigable waters
-Any body of water that, by itself or by uniting with other waters, forms a continuous highway over which commerce can be carried on with other states or countries. -state cts also require navigability -once navigable,is it as highway of commerce or can it be used commercially. nav for fun/ recreation as important for commercial purpose.
concluding stages of legal proceudres
-Appeal(s) - (error correction)the lower may appeal to the Appellate Court -collection- (enforcement) --davis case from 3220 got someone to be receiver to go get what is needed -Writ of Execution - the process of carrying out the judgment. writ=order --can be to go get what is stated and in sc can't get what isn't there -Garnishment - satisfaction of the debt from the losing party's property (wages) --can't do this in sc
adr: arbitration and mediation
-Arbitration - submission of the dispute to a neutral 3rd party for decision (can agree in contract) --the 2 attorneys and arbitrator can determine structure --private judge, with typically no appeal --faster, easier, friendlier, etc. --great for business people -Mediation - a neutral 3rd party encourages the parties to settle --can still go to trial or arbitration, mediator cannot tell you what to do,all confidential
fixtures dispute- tenant rules (?)
-Article annexed must fall within one of the tenants' fixture categories. -Tenant must be able to remove the fixture without causing substantial injury to the premises. -Tenant must remove the articles before turning over possession of the premises to the landlord.
water rights
-As water shortages emerge, Americans who have grown used to considering a product's energy costs will also consider water costs. -Water shortages will lead to states battling over water. since 1982, population grown by 50%, but water demand has tripled
mineral rights
-As with air rights, the rights to the depths may be severed and sold apart from the surface of real estate. a/k/a split estate -Ownership Principle: A theory under which oil and gas are owned in place and can be severed and sold the same as a solid mineral. REAL PROPERTY!!! Doesn't move -Exclusive Right: A personal property right to enter, explore for, and extract oil and gas from another's property. -Mineral Lease: A lease that grants to a lessee the exclusive right to enter the lessor's premises to explore, drill, produce, store, and remove minerals specified in the lease. -Bonus Money: Cash paid to the lessor as consideration for the execution of an oil and gas lease. -Delay Rentals: Consideration paid to the lessor for the privilege of deferring commencement of drilling activities during the primary term of the lease. -Royalty Interest: A lessor's right to share in the oil, gas, or other minerals produced under the lease, generally free of production costs. -Capture Doctrine: A doctrine that states that property owners have the right to appropriate all oil and gas from their land, including oil and gas that has migrated from neighboring properties. -Conversion: The intentional and unauthorized possession and control over another's personal property. must use good faith in dealing with neighbors -Fracking: A process associated with natural gas and oil extraction that results in the creation of fractures in rocks, particularly shale, the goal of which is to increase the output of a well.
form of transfer for real and personal property
-Bill of Sale: A written agreement in which one person transfers his interest in personal property to another. -Deed: transfers real property ownership
hybrid approach to control and use of water
-Both riparian and appropriative rights are coordinated, typically by statute, to confine riparian uses to actual uses undertaken prior to a specific date. -The date is usually when the state converted from a riparian approach to a system of prior appropriation.
outerspace
-Countries and companies preparing commercial ventures to colonize outer space, and associated jobs and revenues, will create legal conflicts in space (breach of contract, negligence, criminal acts, etc.). Countries have been working together to develop a law of outer space. -no actual agreement at the moment...moon treaty tried
perfection of security interest
-Creditor files financing statement; or -Creditor takes possession -deed (real estate security interest) goes to the registrar of deeds
private law
-Deals with relationships between individuals, such as contracts, property, and torts. --punching someone in the mouth= tort, could still be processed criminally which would by public law. private law is how you get teeth back -Law of property regulates the ownership, employment, and disposition of property (including real property, tangible and intangible property).
fixtures special tests
-Developed to determine the two types of property vital to agriculture: (1) things growing on land, and (2) manure. -Fructus Naturales: Vegetation that grows naturally on property and not by the efforts of humans. -Fructus Industriales: Vegetation, such as crops, that grows on property by the efforts of humans.
diff sources of law for real and personal property
-Different laws govern real and personal property. -Uniform Commercial Code: A code of law (adopted in its entirety by all states except Louisiana) that governs commercial transactions. Goods (movable/ tangible) -Form of PP, not IP; but IP is personal property. covered under article 2 of UCC
Reyna v. Ayco Development Corp. (1990)
-Duty to Maintain Easement -Whether a servient estate has the duty to repair in the absence of an express agreement? -No. The summary judgement is affirmed and Ayco did not have the duty to repair the cabinet without an express agreement with the City of Austin.
alternative energy sources
-Early 1970s, two developments sparked movement away from traditional reliance on fossil fuels: --Burgeoning environmental movement blaming fossil fuels for polluting the air. --Geopolitical events beginning with the Arab Oil embargo of 1973. -Nontraditional, renewable energy resources such as solar, wind and geothermal power were see as potentially viable, clean and reliable alternatives. -Wind Power: Negative easements are sometimes required so future development does not interfere with the operation. Raised the question of "who owns the wind?" -Solar Power: Also require negative easements (solar easements) ensuring continuous access to the sun -Geothermal Energy: Heat derived from the earth in which water serves as the medium. Geothermal water is generally treated under state laws as a mineral. -Biomass: Bulk plant and organic material that can be derived from food crops used in ethanol.
Patterson v. Paul (2007)
-Easement Classifications -Did the judge error in concluding the easements are affirmative easements not subject to the 30- year limitation set forth in G.L. c 184, §23? -No. This is an affirmative easement, not a negative easement.
Maccaskill v. Ebbert (1987)
-Easement by Necessity -Whether an easement by necessity might also arise where the severed property has legal access but the access is physically impassable? -Yes. The case is to be remanded.
United States on Behalf of the Zuni Tribe of New Mexico v. Platt (1990)
-Easement by Prescription -Can the plaintiff Indian tribe claim prescriptive easement over the property of defendant Platt? -yes
Nonapparent easement
-Easement is not obvious or ordinarily understood to exist. -Land preservation, rights to receive air, wind, or sun
Apparent Easement
-Easement is open and visible or understood to be so. -Private right-of-way, sewage and utility lines
Fontainbleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (1959)
-Easement of Light and Air -Does a landowner have a right to unobstructed light and adjoining land? - No. The judgement of the lower court is reversed.
alienability and apportionment
-Easements appurtenant and easements in gross are also distinguished from each other on the basis of whether they can be alienated and apportioned -Alienated: An easement is "alienated" when it is transferred from one person to another. -Apportioned: An easement is "apportioned" when its use is divided or distributed consistent with the subdivision of the dominant tenement. -easement appurtenant (EA) is alienable when the dominant estate is transferred -EA can't be transferred separately. must be available for dominant owner use. -easement in gross- right to sell depends on if commercial or personal.
special tests emblements cont
-Emblements (synonym for Fructus Industriales): Crops produced by a tenant's labor to which the tenant is entitled; grown annually, not spontaneously, by labor and industry. -1. crop planted by tenant -2. end of tenancy by act of god/ lessor -3. tenancy uncertain end -manure- what produced by land stays on land
Continuous Easement
-Enjoyment of easement can be continuous without interference by man or can be a permanent structure on servient owner's land. -Tree overhand, overhanging roof, sewer and utility lines
Noncontinuous easement
-Enjoyment of easement is in intervals; can be considered continuous for creating an easement by prescription. -Private right-of-way, right to draw well water from another's land
express conveyance and express reservation
-Express Conveyance: A written instrument in which the grantor transfers an interest in land. recorded like deed. -Express Reservation: A right created and retained by the grantor. recorded like deed. --ex: sell easement to you, but reserve easement for certain area
financing statement security agreement
-Financing statement: a dc filed in public record to give notice to 3rd parties of the secured party's security interest. lay away-seller keeps until paid off -security agreement: an agreement that creates a SI
common law
-From England, the principle of stare decisis, of abiding by previously decided cases; provides stability, predictability, but also flexibility. -Distinguished from Civil (Roman) Law which decides cases based on a legal code.
hillary corp v us cold storage
-I: did hillary the purchaser of tract c have an implied easement for prior use across 20 ft strip along the southern boundary of parcel A. -ct ruled tracts been in use over 20 yrs before sold/ use gave rise to ease,ent use menart to be permanent. servient estate said RR tracks not necessity, BUT ct didn't require that it was the only way
air travel
-In cases involving air travel, courts must balance the rights of the surface owner with the public necessity for air travel. so typically, would look at trespass, but that means no "crossing thru land" -Nuisance: An unreasonable interference with the use and enjoyment of land.
use of surface water
-In most cases, the owners can use the full surface, subject to reasonable restrictions. -In some cases, courts have concluded that the riparian owners intended by implication to divide their surface use rights.
Administrative Law
-Law created by administrative agencies: rules, regulations, orders, and decisions to carry out regulatory powers and duties of such agencies. -Administrative Law directly affects the rights and duties of individuals and their relationship to governmental authority. -Administrative agencies are created at federal, state, and local levels, and deal directly with citizens. -They provide assistance and expertise in often highly technical areas. -Agencies create laws by rule-making in the Federal Register.
statutory law
-Laws enacted by legislative bodies (federal, state, or local). -Courts interpret statutes, but statutes prevail over conflicting judicial decisions. --only if it is unconstitutional
the role of ethics in law
-Laws often represent (lag) the moral (ethical) consensus. -suffer in determining what is right and wrong -currently lot of landlord and tenant friction bc covid tenants say shouldn't be kicked out and landlords want to. sc moratorium says you can't kick ppl out rn. if receiving benefits, have to use it to pay for it. gov voucher helps protect everyone bc landowners can only suck it up for so long -have to determine if discussing ethics or feeling -law does not lead the way. this gold standard only does this as well as god as ethics is.
Yarde Metals, Inc. v. New England Patriots Limited Partnership (2005)
-Licensee -Does the plaintiff have an implied right to purchase annual tickets from the defendant? -No. They do not have an implied right and the decision is affirmed.
property
-Meaning of the term varies depending on the context in which the word is used. -Property means things: real or personal, immovable or movable, corporate or incorporeal, visible or invisible, and tangible or intangible. -Legal application: property describes the relationship between people and thing = right to possess, own, use things.
the trial
-Opening Statements -Direct Examination; Cross-Examination -Motion for Directed Verdict -Motion for J-NOV -Jury Verdict
legal procedure cont.
-Plaintiff files a complaint. -Defendant's Response may be a motion to dismiss, a motion for summary judgment, a counter-suit or an answer. Discovery may include: --Depositions- outside of court under oath q and a --Interrogatories (written) --Subpoenas Duces Tecum- give document --Requests for admission- request another party tell truth under oath
legal procedure: procedural law
-Procedural law provides a process for enforcing those rights. -at clemson this would be what is in your syllabus. same for all classes in the sense you know what book you need, what time class is, etc. have criminal and civil procedure --criminal procedure is always same. arraignment to plead guilty or not --civil substances have many different procedures bc so many types of law with diff procedures
Real Property v. Personal property
-Real Property: Land and anything permanently attached to it -Personal Property: All property, with the exception of real property, that can be owned. Moveable.
nonexclusive easement
-Rights limited to one user only. Recipient cannot extend access to others. Owner can convey access to others -Public right-of-way
ownership of land under water
-Riparian Owner: The owner of land contiguous (next to) to flower navigable water such as streams and rivers. --Does real estate extend to the edge of the river or does the owner also own part of the riverbed? ---If water is not navigable the owner of the adjoining land usually owns the riverbed to the center of the river. ---If the water is navigable the state owns the bed to the average or mean high-water mark. -Littoral: Concerning or belonging to the shore (littoral rights) of coasts and waterfronts. -Public Trust Doctrine: Land held in trust by the government for the people to enjoy for purposes of navigation, commerce, and recreation. -commerce clause complicates who can use water, us can control navigable waters dealing with interstate commerce
diff sources of law for real and personal property cont.
-Statute of Frauds: (CL) A law that disallows any suit or action involving certain classes of contracts, such as those concerning interests (what is this?) in land, unless the agreement is evidenced by a note or memorandum in writing signed by the party to be charged or his authorized agent. -ucc statute of frauds says contract over $500 must be in writing and signed by person who is being sued
legal procedure: substantive law
-Substantive law is law which creates or defines rights. -at Clemson substances in classes are diff bc you learn diff things -civil cases all have different substantive
Constitutions
-The U.S. has fifty-one constitutions (50 state constitutions, one U.S. constitution): --U.S. Constitution is the supreme law of the land. --14th amendment guarantees "due process" before taking away life, liberty, or property. -State constitutions cannot impair rights granted under the 14th amendment. -Generally, federal and state constitutions work in harmony. -when constitution originally came out there was nothing saying state govs had to imply until 14a brought in state govs
Jurisdiction
-The authority of a court to hear a case, decide facts, apply the law, and enter judgment. jurisdiction= power to hear a case -2 types: --personal jurisdiction: live in certain area= person over you has power. persuasive authority= look at it, but don't have to use it --subject matter jurisdiction: jurisdiction over certain areas. EX: family ct. get jurisdiction from subject matter statutes- legis body has decided what power that ct has. legis bodies est cts. -after looking at subject matter jurisdiction, have to determine if there is personal jurisdiction, then proceed with case
Ad Infernos
-The corollary of the ad coelum doctrine is that the owner of real estate also has the right ad inferos, that is, to the depths. -Legal controversies arise in several contexts. -Courts generally agree that it is a trespass to enter another person's property beneath the surface.
public law
-The law that concerns the government or its relations with individuals. Example: real estate licenses for realtors and brokers. -Purpose: defines, regulates, and enforces rights in which the government (agency) is a party to the subject matter. --Agency= specialized unit of government --Agencies create regulations...type of law --Statutes are laws created by legis. bodies -Primary sources: written constitutions, statutes, and administrative law.
severance of fixture
-The legal principle that defines the mechanical processes required to convert an item of real property into personal property. -if there is a ceiling fan and you want it, then take it off of the house before you put it up for sale. taking it off after you put it up for sale, then that is illegal.
Sale of Air Rights
-The owner of air rights may sever and sell the rights separately from the surface of the real estate. Air Rights: The legal interest in the vertical dimension of property. -Vertical ownership raises many issues relating to each owner's rights. --What rights does a property owner have when his neighbor's building blocks light and air? ---Common law typically allows the new building, but new exceptions are being created to protect solar energy devices. --What happens if a building settles and an air lot tilts into a neighbor's airspace?
Restatement of the Law of Property (cont'd)
-The owner of the easement is entitled to use and enjoy the land on a limited basis. -The easement owner is entitled to protection from third parties in the use and enjoyment of the land. -The easement owner is not subject to the will of the possessor of the land, as would be the case with a license. -An easement arises from facts other than possession of land by its owner. -The easement is capable of conveyance. -Unlike water rights and right to support, an easement is not an inherent natural attribute of ownership. -easement is a non possessory interest in land. (means that you don't own anything.)
lateral support
-The right of lateral and subjacent soil support is the right to have land supported by the adjoining land or the soil beneath. -Common Law -Statutory Approach
riparian rights theory
-The use of water becomes controversial when two or more riparian owners attempt to use the same limited supply of water. -Reasonable Use Theory: A riparian rights doctrine that confers to riparian owners the reasonable use of the water that flows along their land. what is commonly used today. have to have property along water. -Factors considered by courts when determining whether a particular use of water is reasonable: --Economic and social value of the use --Suitability of the use to the watercourse --Practicality of avoiding or preventing harm --Extent of the harm -Courts also examine whether the uses are natural or artificial uses. When two uses clash, courts generally give priority to the natural uses.
federal courts
-U.S. District Court is the "trial" court. Can hear cases involving federal law, diversity jurisdiction, and federal criminal cases. --diversity jurisdiction is to help eliminate bias and if greater than $75k it can be brought to federal. plaintiff has right to file in either ct -Thirteen circuits in U.S. Courts of Appeal. -U.S. Supreme Court hears only selected cases. -Diversity of citizenship involves parties from different states.
diffused surface water
-Water on the earth's surface that does not flow in a defined channel or stream. Water fed generally by rainfall or melting snow. -Been the subject of considerable litigation. -Common Enemy Rule: Rule from the common law allowing landowners the right to take whatever measures necessary to protect and divert diffused surface water from their property. -Civil Law Rule: A water law rule prohibiting landowners from altering or diverting the natural flow of diffused surface water. -Reasonable Conduct Doctrine: allows landowners to divert diffused surface water if their efforts do not unreasonably harm others.
estoppel
-When a person is prevented from denying or asserting anything to the contrary of that which has been established as the truth, either by judicial or legislative acts or by his own expressed or implied deeds, acts, or representations. -Easement by Estoppel: A party is prevented by his own acts from claiming a right to the detriment of another party who was entitled to rely on such conduct and has acted accordingly.
Disputes Arising in the Transfer of Property Attached to Real Estate:
-When fixtures are sold separately from real estate. -Fixture may be severed from the real estate and then sold. -Landowner may sell articles affixed to real estate before severance.
Ex Parte Brown
-Whether Ruby Brown was in contempt of court and violating the decree by removing articles with a value of $2,900? -Decision Yes. The court affirmed the trial court. They held that there was no error, the defendant was in contempt, and her sentence/ opportunity to repay the $2,900 was not unconstitutional.
in re marriage of graham (1978) concept of property
-Whether in a marriage dissolution proceeding a master's degree in business administration (M.B.A.) constitutes marital property which is subject to division by the court. -Decision No. The Colorado State Supreme Court affirmed the decision on the Colorado Court of Appeals, reversing the decision by the Boulder County District Court that education is jointly owned property. "An education is not itself property subject to division under the act..."
Coastal Oil & Gas Corp. v. Garza Energy Trust (2008)
-Whether subsurface hydraulic fracturing of a natural gas well that extends into another's property is a trespass for which the value of gas drained as a result may be recovered as damages? -No. The rule of capture does not allow the recovery of such damages. Reversing the Court of Appeals prior decision.
Yeadon Fabric Domes, Inc. v. Maine Sports Complex, LLC. (2006)
-Whether the court erred in determining the order of priority afforded to Harriman's and Kiser's mechanic liens and to Yeadon's security interested in the dome? -No. Yeadon is deemed to not have priority over Harriman and Kiser according to section 9-1334 (4), which affirms the lower court's judgement.
Adamson v. Sims
-Whether the hangar is a fixture? -No. The court moved to reverse and remand the trial court's erred decision and the appellant was not liable for conversion.
Heins Implement Company v. Missouri Highway & Transportation Commission (1993)
-Whether the modified common enemy doctrine should be applied to bar recovery by landowners and tenants whose property was flooded because a culvert under a highway bypass was not designed to handle the normal overflows from a nearby creek? -No. The common enemy doctrine no longer is appropriate, which reverses the trial court's decision.
Ace Equipment Sales, Inc. v. Buccino (2005)
-Whether the owners of property abutting a man-made, nonnavigable pond have the right to use the pond for recreational purposes when the majority of the land beneath the pond is privately owned by another party? -No. They do not have the right to use it for recreational purposes.
legal questions and water rights
-Who owns the land under the water? -Who has the right to use the surface water? -What use may be made of water for business or domestic purposes?
wrongful annexation and mistaken annexation
-Wrongful Annexation: The illegal attaching or merging of one thing or another. -Mistaken Annexation: The mistaken attachment of personal property to real property owned by someone else.
southwest weather research
-can p stop cloud seeders from seeding over their land? -in tx, p sued to enjoin from flying over their ranches, seeding clouds, causing hail -ct says could be enjoined from modifying weather over p's farm. landowner entitled to nature's result.
Exclusive Easement
-conveys all rights of the easement, recipient can convey access to others -Private right-of-way, sewer and utility lines
taxation of real and personal property
-important tax reasons for distinguishing between real and personal property: Personal property is generally not taxed; if it is taxed, the tax is based on a different rate structure than that used for real property. -Distinction between real and personal property is also important in determining depreciation deductions. do get taxed on real property
Transferable development rights (air rights):
-market-based system designed to preserve and control land use. Property owners are given financial incentives to grant their rights to develop to others. -for ex, if one 15 story building in 20 story limit, can sell 5 stories of undeveloped air rights.
new capture doctrine
-now not such a big deal. many states make oil and gas be divided among mineral owners to discourage wasteful drilling. -oil reservoir developed as single productive unit. owners get share of profit from reserves based on prorated interest in land.
res judicata
-once a suit has been decided, the parties may not bring suit again regarding the same matter -like double jeopardy, once case is over your case is over -important bc people want to beat someone else's case, then bring their case and beat them again
solid waste agency of northern cook county v. US Army Corp of Engineers, p.77
-p sought permit to build regional landfill in abandoned sand and gravel strip mine. strip move had seasonal and perm ponds, none connected to navigable waters. US COE had auth to grant permits for dredging and filling operations of navigable waters refused to grant the permits. -said even though water not in interstate commerce, it had juris under migratory bid rule. p sued saying that COE lacked juris b/c these were non-navigable intrastate waters not subject to Fed control. -US SCT says to allow COE to claim Fed juris over ponds and mudflats would result in significant impingement of the states tradition and primary power over land and water use.
Wing Ming Properties (U.S.A.) v. Mott Operating Ltd. (1990)
-plan to build a building larger than zoning requirements. Wing Ming brought action saying illegal transfer bc it increased floor space. -Was there a trespass violation on the air development rights acquired by the plaintiff to build higher than the maximum requirements in the Zoning Resolution? -No. There has been no trespass on the air development rights.
private property v. public property
-private:Belongs to an individual who has the exclusive right of disposition. - public: Those things owned by the public through a federal, state, or local government body...public trust doctrine (held in trust for nation) -all ruled by law
secured transaction v. unsecured transaction
-secured transaction- put house up as collateral. don't pay, then they'll come take your house. -unsecured transaction- pay for pizza with credit card bc if don't pay for credit card, then they have to sue you and come for something for you
should private parties own freshwater? p.73
-t. boone pickens in 2006 started to buy thousands of acres of land over the ogallala aquifer in TX capturing 65 billion gallons of water. he planned to sell the water as a commodity. -plan thwarted when others refused to lend to pickens b/c they feared livelihoods threatened
Fixtures - Adaptation
-test for determining whether personal property has become united with real property by its adaptation to the use and purpose of the real property -real test- is prop functionally tied to property and necessary for use --furnace in house, computer in banking system -
cloud seeding
-the process in which a chemical mixture is sprayed over a propane flame; mixture floats up to the clouds, attracts moisture , causing precipitation. -The ancient ad coelum doctrine is being reexamined to resolve the modern issue of cloud seeding. -Does the owner of the surface have a property right in the clouds?
trespass v. nuisance
-trespass can be invade airspace of another without permission, what about branch hanging over property line? --yes can buy air easement or be ordered to remove -what about air travel? Ct must balance right to fly v. owner interests
sandy isle corp (SI) v. T.S. Ragsdale (TSR)
-williams furn co (WFC) owned extensive acreage on sandy island deeded 185 acres to TSR bu reserved an easement over a road leading from a public road to the great pee dee river...the road to be used for transporting logs, etc from the river bank to the old river rd/ What was use? personal or commercial -wfc sold 8k acres to SI along with easement. TSR blocked easement on grounds he claimed it was an easement in gross. (personal not running with land) -ct rules esmnt either gross or appurtenant. ct here said was in gross, but where it is commercial in character, it is alienable
3 basic conflicts when using collateral with disputes arising in fixture financing
1.Attachment of the Security Interest -The case of Mortgagor (owner)v. Mortgagee (bank) in SC mortgagor (you) owns house. if you sign note and don't bank can't just take it without a lawsuit. sign mortgage, then bank can take it directly. 2.Security Interest -The case of Owner v. Secured Party. 3.Purchase Money Security Interest (PMSI) -The case of Secured Party v. Other Creditors.
Fixture Disputes:4 types
1.Whether certain pieces of property are fixtures. 2.Whether property that may be a fixture is sold separately. 3.Whether a fixture serves as collateral to secure a loan. 4.Whether a fixture is wrongfully or mistakenly affixed to another's real estate.
Law
A body of rules of action or conduct prescribed by controlling authority and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions in a law.
injunction
A court order prohibiting someone from doing something, or commanding someone to undo a wrong or injury.
fixture
A legal hybrid; a piece of personal property that has become affixed to real property in such a way that it becomes a part of the real property.
conservation easement
A negative easement that limits potential development or other property uses in order to preserve open space, natural resources, wildlife, and similar land uses in exchange for tax savings on value of "use" conveyed away.
license
A privilege to enter the premises for a certain purpose, which does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property.
Restatement of the Law of Property
A series of volumes published by the American Law Institute (ALI) on various areas of the law, such as property, torts, and contracts. The Restatements state the law, note emerging trends, and, at times, suggest changes in the law. Courts and legislatures may follow the Restatements in making or interpreting law. gives ideas on how law is changing.
purchase of development rights
A type of conservation easement conveyed to a local governmental entity in which landowners agree to restrict the use of their land in exchange for a reduction in taxes.
Specific Performance
A type of injunction ordering the defendant to perform a specific act.
settlements (negotiation)
An agreement to terminate all or part of a lawsuit as a result of the parties' voluntary resolution of the dispute.
Implied Easement
An easement arising impliedly by reference to a plat or map, from prior use, or from necessity of use.
Appurtenant Easement
An easement that is annexed to the ownership of one parcel and allows the owner the use of the neighbor's land. -runs with the land -Attaches only to an interest in land -Private right-of-way, water flowage on adjacent land
Easement
An interest in land that gives the owner the right to use real estate owned by another for a specific purpose.
Termination of an Easement
Cessation of Purpose Expiration of Period Merger Abandonment Destruction of the Servient Estate Estoppel Prescription Cessation of Necessity Condemnation-gove takes it Release- signing contract
Affirmative easement
Easement that gives the dominant tenement owner the right to use the servient tenement.
tenant's fixtures
Fixtures installed on the property by a person renting real estate
Development of the Dominant Estate
In determining the extent of an easement appurtenant, courts assume "that the parties to the conveyance contemplated a normal development" of the dominant estate. ex: horse and buggy>auto, esp. if have been doing developing farm easement for oil well--no
equity
Justice administered according to fairness, created to temper the strict rules of English common law.
collateral
Property that is pledged as security for the satisfaction of a debt.
rights to the sky traditional approach
The ancient dictum of Lord Coke, which gave the owner of the surface the rights ad coelum-to the heavens was uttered long before the development of air travel. --A person owns the space above her real estate to the extent that no one may acquire a right to such airspace that will limit the owner's enjoyment of it. This doctrine has been rejected by most courts.
fixture filing
The filing of a financing statement in the real estate public record to perfect the security interest in a fixture.
Dominant estate (dominant tenement)
The land that benefits from the easement on another property. The possessor of the dominant estate is entitled to the benefits of uses authorized by the easement.
tacking (exclusive use of a prescriptive easement)
The process of gaining a prescriptive easement by adding the user's period of possession to that of a prior adverse user in order to establish a continuous period of use for the statutory period.
Repair of Easement; Use by Servient Owner
Two final issues conclude the review of the law governing the extent of an easement. -Who has the duty to repair the easement? --dominant -May the servient owner use the easement? --yes
ground water
Water beneath the earth's surface fed by rainfall or surface streams. Water that is not a part of a defined underground stream.
airports
airports often buy navigation easements. give airport right to fly over their airspace. govs often take property for airport and convert to commercial purpose. business does not mind flight. -kelo v. new london from law 3220
Negative Easement
allows the holder to prevent the servient owner from performing an act on the servient land
profit a pendre
an interest in the land of another that confers rights of use and removal of the profits of the soil. ex: right to hunt deer on someone else's land
Trade Fixtures
articles place in or attached to rented buildings by tenants to carry on the trade or business for which tenants occupy the premises
agricultural fixtures
articles placed in or attached to farm buildings and land for purposes of farming
domestic fixtures
articles that tenants attach to a dwelling to render their occupation of the premises more comfortable or convenient
Griggs v. Alleghany
causby didn't address flight that was in the navigable airspace, could it interfere with land use? Griggs v. Alleghany said yes. related case in vegas was landowner on strip height restrictions due to closeness of airport. ct said takings bc lost millions bc couldn't build up
us v causby what are land owner's rights to air below navigable airways
flights over private land not taking unless so low and frequent ass to be direct/ immediate interference with land use.
fixtures-restrictions on removal
if landlord's contract says that "all improvements and additions stay, court reads that this only includes structures, not trade fixtures. so, landlord must make specific
what if seeding results in flooding?
lunsford v. us, who knows. case was filed, but sov immunity prevented case
real property interest
means any fee owned land, mining concession or leasehold, easement, right of way, license, concession or other real property right
Easement in Gross
the personal right to use land for a specific, limited purpose unrelated to any adjacent parcel
