Property I (Spring 2014)
Welcome to Property I. We will be using the Dukeminier, Krier, Alexander, Schill, PROPERTY (7th ed.) casebook. In this class, we will cover acquiring property, future interests, estates, and leaseholds. Class will meet on Tuesdays and Thursdays from 12:20 pm. – 1:50 p.m.
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Courtesy of the Dukeminier & Krier web site, here is a map of the property at issue in Delfino v. Vealencis.
Here was the map for the proposed subdivision:
And here is the Vealencis family.
The lecture notes are here, and the live chat is here. Thankfully, Texas has abolished the Rule in Shelley’s case, the Doctrine of Worthier Title, and the Rule Forbidding a Remainder in the Grantor’s Heirs. This is the Texas Rule Against Perpetuities.
RULE AGAINST PERPETUITIES. The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the extent and as provided by Section 5.043.
And, if you hate the Rule against Perpetuities, blame this guy. Orlando Bridgeman, whose crazy conveyances raised the possibility of perpetuity, which led to the creation of the Rule Against Perpetuities. Don’t blame me. Blame Orlando. Note: The Rule Against Perpetuities will not be tested on the final examination. In other words, this is a wrap for RAP.
Today we will continue covering future interests.
This is Henry VIII, who abolished the Statute of Uses.
He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).
Henry would go on to be married a total of 6 times, in his pursuit of a male heir. Not all of his wives faired so well
Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.
This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).
Example 1. 0 conveys Blackacre “toA for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession
Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory.
O conveys Blackacre “to Hartford School Board so long as used for school purposes.”
This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.
This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.
This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”
This is the grant at issue in Mahrenholz:
“this land to be used for school purposes only; otherwise to revert to Grantors herein.”
El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”
The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.
This is the school at issue in the article about the Maeser School.
Here is a picture of the Odd Fellows building:
This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.
This diagram illustrates the life estate.
Here is Jessica Lide’s will:
April 19, 1972
I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate.
I wish Evelyn White to have my home to live in and not to be sold.
I also leave my personal property to Sandra White Perry. My house is not to be sold.
Jessie Lide (Underscoring by testatrix)
Here is a picture of Jessica Lide’s home. Jessica Lide is on the right, Sandra White is in the middle.
Here is the current life expectancy table. If you were born in 1984, your life expectancy is 74.56
Here is the will from the Weedon case:
Second; I give and bequeath to my beloved wife, Anna Plaxico Weedon all of my property both real, personal and mixed during her natural life and upon her death to her children, ifshe has any, and in the event she dies without issue then at the death ofmy wife Anna Plaxico Weedon I give, bequeath and devise all of my property to my grandchildren, each grandchild sharing equally with the other.
Third; In this will I have not provided for my daughters, Mrs. Florence Baker and Mrs. Delette WeedonJones, the reason is, I have given them their share ofmy property and they have not looked after and tared for me,in the latter part ofmy life.
This is Justice Oliver Wendell Holmes, Jr., who famously wrote “It is revolting to have no better reason for a rule than that it was laid down in time of Henry IV (1594-1610).It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from imitation of the past.”
This is Justice Benjamin Cardozo, who served on the New York Court of Appeals (the highest Court in New York) from 1927-1932. In 1932, Cardozo replaced Holmes on the United States Supreme Court, and would serve until 1938. Cardozo was replaced by another famous Justice, Justice Felix Frankfurter.
The feudal system began after the Norman Conquest of 1066.
(Note, in London, they do not refer to William as the Conqueror–he did not conquer London, after all!).
This diagram helps to explain the feudal structure.
This drawing represents a cleric, a knight, and a serf.
Serfs were all the way at the bottom of the pyramid.
Here are several diagrams of the feudal manor.
Here is Magna Carta–the great Charter. Forced upon King John by the Barrons at Runnymede in 1215, this document served as the basis for many of the oldest forms of constitutional freedom–including the due proces clause (then known as the law of the land clause). And there’s lots of other useless stuff. In particular, section 12 limits instances where lords can collect aid (or scutage) from tenants.
(12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly.
Here is a restored copy of it.
This diagram represents fee simple. Like Buzz Lightyear, this estate endures to infinity, and beyond.
This drawing illustrates the livery of seisin.
William Penn performed the livery of seisin on October 27, 1682 upon his arrival in what is now New Castle, Delaware, but became part of Penn’s Woodlands (also known as Pennsylvania). There is a historical marker commemorating the event.
Near here October 27, 1682, William Penn first stepped on American soil. He proceeded to the fort and performed Livery of Seisin. “He took the key, thereof,…we did deliver unto him 1 turf with a twig upon it, a porringer with river water and soyle, in part of all.”
This video illustrates the Livery of Seisin.
If you don’t know why I am posting pictures of Britney Spears and Kim Kardashian, you didn’t read the notes closely enough Apparently Kim gave it back.
The is Joseph F. Van Pelt, the intestate in Newman v. Bost.
Here is the Van Pelt house.
Here is his grave. His obituary is here.
This is the Klimt painting at issue in Gruen v. Gruen.
When you think of a Chimney Sweep, this image may come to mind.
But this image is probably a lot closer to young Master Armory.
This diagram shows the different ways a sweep can get stuck in a flue.
Frequently the boys would get stuck (the image on the right).
Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).
Here are a number of stories about finding abandoned stuff:
- New York Times article on a jobless man’s find of early Anglo-Saxon treasure in Staffordshire, England, September 2009
- Article on on-going dispute over ownership of Titanic artifacts, Mar. 2009
- NPR story St. Louis’s byzantine process for dealing with lost property, Mar. 2009
- Divers discover thousands of pearls while searching Santa Maria, June 2007
- Odyssey Marine Exploration fights with Spanish government over $500 million in coins recovered from sunken ship, May 2007
- New Yorker article on Odyssey Marine Exploration, April 2008
- Sub Sea Research battles Spain & France over $3 billion of treasure, January 2003
- New York Times article on people who live by finding things in the garbage
This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)
Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.
Here is an article from 1970 discussing the case of State v. Shack.
Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.
This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.
And this is Richard Epstein.
Today we will discuss how you can own property in yourself.
First, we’ll do the case of Vanna White v. Samsung Electronic America.
The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.
Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).
To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.
Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.
Oil & Gas
And, “I drink your milkshake.”
Here are some pics illustrating slant drilling. One of which may be from a cartoon.
You can learn more about the Manziel family and oil here.
International News Service v. Associated Press
The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.
The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.
The author of the dissent, Justice Brandeis, was a big deal.
Cheney Brothers v. Doris Silk Corp
This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.
Here is an awesome video of Hand signing.
Today will be a slightly different class. We will cover Pierson v. Post, and the Case of the Spelunceuan Explorers. The focus of our class will be law and judges. Though the less will begin around the rule of capture, I hope the discussion eludes that narrow focus, and that we have a foxy talk.
Pierson v. Post
A few historical notes notes.
First, about the judges. Daniel Tompkins wrote the majority. He went on to serve as Governor of New York and Vice President for James Monroe. And where did Tompkins die? In a neighborhood of Staten Island, now known as Tompkinsville.
The author of the dissent was Brokholst Livingston, who later received a recess appointment to the Supreme Court from President Jefferson. He would be confirmed in 1807, and serve until his death in 1823. Livingston served a a secretary to future Chief Justice of the United States John Jay in Spain from 1779-1782.
Here is a map showing Post’s home in 1800 (courtesy of Professor Angela Fernandez of the University of Toronto).
Here are some drawings of fox hunts:
Here is a video about the controversy of the fox hunt in the UK:
The Case of the Speluncean Explorers
After you read “The case of the Speluncean Explorers,” please vote which Justice you agree with most.
This is a picture of Lon Fuller, the author of the Case of the Speluncean Explorers.
By the way, for you musical fans, the case of Commonwealth v. Valjean is based, of course, on Victor Hugo’s Les Miserables (Les Miz as you may know it). Jean Valjean steals a loaf of bread to feed himself and his starving sister and neice. He is arrested, and spends 19 years as a “slave to the law.” The movie version of this musical was atrocious. The singing made me cringe. If you can ever see it on Broadway, you should. It is a fantastic parable of law, morality, and ethics.
Valjean and Javert sing about the crime in “Look Down” (starts at 2:29)
JAVERT: Now bring me prisoner 24601, Your time is up, And your parole’s begun, You know what that means.
VALJEAN: Yes, it means I’m free.
JAVERT: No! It means you get, Your yellow ticket-of-leave, You are a thief
VALJEAN: I stole a loaf of bread.
JAVERT: You robbed a house.
VALJEAN: I broke a window pane. My sister’s child was close to death, And we were starving.
JAVERT: You will starve again, Unless you learn the meaning of the law.
VALJEAN: I know the meaning of those 19 years, A slave . . . of the law
Today in class we will be talking about Ghen v. Rich and Keeble v. Hickeringill, through the lens of economic efficiency and fairness.
Ghen v. Rich.
Here is the harvesting of a finback whale.
Fin whales are on average about 90 feet long, and can weigh over 70 tons. By point of comparison, an African elephant weighs roughly 8 tons.
This is a bomb lance harpoon.
And a patent diagram of an 1878 bomb lance:
Another patent diagram from 1879.
More pics of bomb lances. It was basically a harpoon with a rocket attached to it.
This is a bomb lance gun.
Here is a drawing from 1897 showing the firing of a bomb lance (Frank T. Bullen, The Cruise of the Cachalot (1897)
This is what a captured whale looks like:
Keeble v. Hickeringill
Here is Edmund Hickeringill (courtesy of the British Musuem)–doesn’t he just look like a jerk!?
This is Lord Chief Justice John Holt who was the Lord Chief Justice of England, the author of the opinion in Keeble v. Hickeringill.
Here is a plan for the duck decoy.
The ducks get caught in these nets over the pipes.
Here is a dutch video showing the ducks getting cut (fast forward to about 1:05)
I suspect many of you have tried this kind of duck hunting.
To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.
Or this related case from Dallas:
The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.
Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.
And the owners have suggested building screens to block the sun!
Gizmodo has a great writeup of the case:
They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.
It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?
This is like something Mr. Burns would design.
The “umbrellas” open up during different times of the day so as not to obstruct the views.
And they follow the sun’s path through the year.
Images courtesy of dukeminier-property.com, Wikipedia, and Professor Frank Buckley.
Hello everyone and welcome to Property I.
Today we will cover property rights created through discovery or conquest with the case of Johnson v. M’Intosh.
During class, I will type in real time the lecture notes on this document.
In addition, I encourage each of you to post comments to our live-chat. You can use your real name or a madeup name if you prefer.
This is Chief Justice John Marshall (very nice sideburns):
This is Hugo Grotius (has a Shakespeare thing going for him–he was Dutch):
This is Samuel Pufendorf (nice wig):
Here is a map of the land at issue in Johnson.
This is Harold Demsetz:
This is Ronald Coase. He died in 2013 at the age of 100!