Pierson v. Post (1805)

Facts: Hunting dispute. Plaintiff is in the midst of a long, drawn out fox hunt. Just as he’s about to kill the fox, Defendant swoops in and kills the fox first. Plaintiff, who is clearly the original entitled millennial, claimed to have property rights over the fox by virtue of having been hunting said fox for an extended period of time (sounds like he’s just a bad hunter),

Issue: When does the hunted animal become the property of the hunter

Rule: The hunted animal becomes the property of the hunter when the hunted animal is “occupied” by the hunter. i.e. when the hunter has mortally wounded, trapped, etc. the animal in such a way so as to deprive it of its natural liberty.

Holding: J. Tompkins – Because the hunter had not effectively deprived the fox of its natural liberty, the third party did not injure the hunter when he caught the fox at the last minute.


  • J. Livingston: We want to encourage people to hunt. Allowing a third party to swing in at the last moment after the hunter has undertaken all the trouble would discourage people from hunting.
  • Livingston proposes the following rule: The animal is the property of the hunter even without touch or physical control if the animal was within reach of the hunter or the hunter had a reasonable prospect of taking the animal.

Consider the following rebuttal to Livingston’s dissent: We don’t just want to encourage hunting, we want to encourage good hunters to hunt. Good hunters kill their prey efficiently, which Defendant accomplished and Plaintiff did not. The dissent’s rule would encourage every Tom, Dick (Cheney), and Harry to go hunting, which we don’t want…for obvious reasons.

Ghen v. Rich (1881)

Facts: Whaling case. Cape Cod whalers use personalized bomb-lances to kill whales which then sink but eventually rise and are found floating or washed ashore. Community practice: whoever eventually found the whale notified the whalers and the finder received a “salvage.” Here, Rich found the whale 17 miles from where it was killed and auctioned it off without notifying the whalers. 

Issue: Since Ghen had killed the whale, was it his property?

Rule: If the fisherman does everything reasonably within his power to make the animal his own, that is sufficient to establish title. (This is different from J. Lowell’s holding in Swift v. Gifford which stated that title wasn’t established unless the fisherman killed and took control of the fish).

Holding: Because of the well-established “whale-finding” custom and it’s tendency to be effective, J. Nelson held that the whaler who killed the whale owned the whale. [Note the strong language describing the custom, though: “Custom embraced an entire business, and had been concurred in for a long time by everyone engaged in the trade”Discussion:  Can argue that the “marks of appropriation” attached to the whale by those who kill it constitutes “continued pursuit.” Could maybe argue that this applies on land when killing a large animal like a bear. Mark it and then go get truck to carry the bear away.

Jacque v. Steenberg Homes, Inc. (1997)

Facts: Jacque refused to allow Steenberg to cut a path through his property to deliver a mobile home. Steenberg ignored Jacque’s repeated refusal to grant Steenberg the permission and cut a path through Jacque’s property anyway. Steenberg blocked a road so that nobody would witness his trespass and found humor in blatantly ignoring Jacque. The jury awarded nominal damages of $1 and punitive damages of $100,000. The trial court and court of appeals voided the punitive damages on the ground that punitive damages cannot be awarded when the plaintiff’s compensatory damages are nominal.

Issues: (1) whether an award of nominal damages for intentional trespass to land may support a punitive damage award and, if so; (2) whether the law should apply to Steenberg or should only be applied prospectively and, if we apply the law to Steenberg; (3) whether the $100,000 in punitive damages awarded by the jury is excessive.

Rule: (1) Punitive damages for intentional trespass to land may be awarded even if the plaintiff only recovers nominal damages. (2) The jury has the discretion to determine the amount of punitive damages to award and their determination will not be deemed “excessive” unless the punitive award shocks the conscience or takes the court’s breath away. (3) Courts may choose to apply a rule prospectively if the circumstances suggest that retroactive application of a rule would be inequitable.

Holding: (1) Punitive damages are appropriate even though the jury only awarded Jacques nominal damages. (2) The jury’s punitive damages award was not excessive. (3) The rule should apply retroactively to Steenberg.

State v. Shack (NJ 1971)

Facts: SCOPE aid worker and CRLS lawyer were denied permission to meet with migrant farm workers in need of medical treatment and legal services in the privacy of the migrant workers’ living quarters. Property owner would only allow them on property if the meetings were in his office and in his presence. SCOPE and CRLS are both funded by congress for the purpose of providing medical aid and legal services to migrant workers or similarly situated individuals.

Issue: Do the property owner’s rights allow the property owner to deny migrant workers services from individuals funded by the government for the very purpose of providing such services?

Rule: Property rights do not trump individuals’ destiny. The law prohibits people from contracting away things that are essential to their health, welfare, and dignity. An employer/land-owner may not deny a worker his privacy or interfere with the worker’s opportunity to live with dignity and to enjoy associations customary among our citizens.

Holding: The conduct of the aid workers was beyond the reach of the trespass statute. There was no trespass in this case because the trespass statute is not so broad as to allow landowners to bar access to governmental services available to migrant workers.

White v. Brown (1977)

Facts: JL created a will in which she bequeathed her home to EW (“to have my home to live in and not to be sold”) and her personal property to SWP. She also reiterated her wish that her house not be sold. EW and SWP filed the action claiming that JL’s will provides them with fee simple title to the home. JL’s next of kin, however, claim that JL only conveyed a life estate to EW and SWP.

Issue: Did JL’s will clearly indicate JL’s intent to convey only a life estate in her home to EW?

Rule: There is a strong presumption that the testator intended to leave a fee simple, rather than a life estate. Courts yield to this presumption unless there is language in the will that creates a “remainder”—this is the case even where the will contains terms that seem inconsistent with the presumption of full conveyance. Rather than presuming the intent to create or convey a life estate, courts now assume that the grantor intended to pass his entire estate (generally, a fee simple). Unless an intent to convey less than a fee simple is communicated by express terms, the court will convey all the real estate belonging to the testator.

Holding: J. Brock – JL’s apparent testamentary restraint on the alienation of the home devised to EW does not evidence such a clear intent to pass only a life estate as is sufficient to overcome the law’s strong presumption that a fee simple interest was conveyed.

Dissent: J. Harbison – JL’s statement that her house was not to be sold clearly indicates JL’s intent that EW was not to have an unlimited estate in the property (only a life estate). Also, JL knew how to make an “outright gift” because she left all of her personal property to ESP without a restraint or limitation. But since JL included a limitation on the conveyance of the house, it indicates that she only intended to convey a life estate.

Protecting Future Interests – The Concept of Waste:

Affirmative/voluntary waste – occurs as the result of affirmative acts by the present estate holder that devalue or impede use of the property, such as removing valuable minerals from the property.

Permissive waste – occurs when the present estate holder negligently fails to maintain the property, for example, failing to keep the premises in good repair, leading to more rapid deterioration than would ordinarily occur.

Ameliorative waste – occurs when the present possessory estate holder makes changes to the property, even if they increase its value, because it alters the property from what the future interest holder expected to receive.

Courts tend to assess this type of waste on a sliding scale that looks to (a) the significance of the changes; and (b) the likely length of time before the present possessory estate ends.

Delfino v. Vealencis (1980)

Facts: Delfinos want to use land to build housing development. Vealencis operates waste business on land. Delfinos sue for Partition by Sale. Superior Court ordered the sale of property owned by the plaintiffs and the defendant as tenants in common.

Issue: Was Partition by Sale proper?

Rule: Partition in kind is favored over partition by sale. A partition by sale should only be ordered when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; and (2) the interests of the owners would better be promoted by a partition by sale.

Holding: Partition by Sale was not proper. The trial court failed to give due consideration to the fact that one of the tenants in common has been in actual and exclusive possession of a portion of the property for a substantial period of time; that the tenant has made her home on the property; and that she derives her livelihood from the operation of a business on this portion of the property, as her family before her has for many years.

Reasoning: A partition by sale would force the defendant to surrender her home and, perhaps, would jeopardize her livelihood

Spiller v. Mackereth (Ala. 1976)

Facts: Ouster action where Spiller put locks on the warehouse and Mackereth couldn’t use the warehouse. Mackereth sent a letter demanding that Spiller vacate the warehouse, but Spiller never responded. Mackereth brought the action claiming that Spiller owed her rent.

Issue: Does a co-owner owe another co-owner “rent” for the value of his use of their jointly owned property?

Rule: In absence of an agreement to pay rent or an ouster of a co-owner, a co-owner in possession is not liable to his co-owners for the value of his use and occupation of the property. MAJORITY RULE: The occupying co-owner is not liable for rent notwithstanding a demand to vacate or pay rent. MINORITY RULE: Establishes liability for rents on a continued occupancy after a demand to vacate or pay rent.

Holding: Since there was no agreement to pay rent, there must be evidence that establishes an ouster before Spiller is required to pay rent to Mackereth.

Cretchale & Polles, Inc. v. Smith (Miss. 1974)

Facts: Five year lease ends and the tenant needs to stay in the building for some months until the next building he’s moving into is ready. Landlord refuses, but then cashes a check for one month’s rent. He later tries to say that the tenant is a holdover, liable for one more year of rent.

Issue: Did the lower court error in holding that the tenant was not liable as a holdover tenant for an additional term of one year?

Rule: When a tenant continues in possession after the termination of his lease, the landlord has an election either to evict him, treat him as a trespasser it is said, or to hold him as a tenant.

Holding: Once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-to-month basis, but fails to pursue his remedy of ejecting the tenant or holding him to a new full term, and accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-to-month basis.

Reasoning: Here, after having elected not to accept the appellees as tenants, the appellant could not at a later date, after failing to pursue his remedy to evict the tenants or hold him to a new full term, change the election so as to hold the appellees as tenants for a new term.

Hannah v. Dusch (1930)

Facts: P entered into a lease and, on the day the lease began, was not able to move into the building because the prior tenant would not leave.

Issue: Who was responsible for making the prior tenant leave, the P or the D? What duties does the landlord have when there is a holdover?

Rule: The court adopts the American rule, holding that the landlord has no obligation to make the prior tenant leave—the new tenant must do this. Under the English rule, the landlord impliedly agrees that the leased premises will be available for the tenant to enter on the date the lease begins. TODAY, most jurisdictions follow the English rule.

Reste Realty Corp. v. Cooper (NJ 1969)

Facts: Tenants rented commercial space in the basement of a building. Every time it rained, the basement flooded. When the tenants renegotiated their lease, the landlord promised to remedy the defect. He did, but the problem recurred after that landlord died and the new landlord didn’t do anything about it. The tenants vacated the premises and the landlord sued.

Issue: Was the landlord guilty of a breach of a covenant such that the tenant was justified in vacating the premises?

Rule #1: Landlord’s act or omission renders the premises substantially unsuitable for the purpose it is leased, or seriously interferes with the beneficial enjoyment of the premises = breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant. (Permanent = recurrence)

Rule #2: The tenant’s right to claim a constructive eviction is lost if he does not vacate the premises within a reasonable time after the right comes into existence. But courts should be sympathetic to tenants’ plight: If they wait too long, they’ll forfeit right to vacate; but if they vacate too early, it might be unjustified. So, courts should exercise caution.

Holding: The landlord breached the covenant of quiet enjoyment, constituting a constructive eviction. The tenant did not stay on the property too long so as to forfeit the right to vacate.

Hilder v. St. Peter (Vt. 1954)

Facts: Apartment had multiple defects that made living conditions seemingly unbearable. Tenant told landlord about all of them; he promised to fix them, but he never did. Tenant remained in the apartment and then sued for the entirety of the rent she paid.

Rule: Breach = Failure to maintain the property in safe and healthy condition throughout the entire term of the lease. Tenant has three alternative remedies in response to a breach; (1) Rescind the lease and vacate the premises with no further liability for rent; (2) Repair the defect and deduct the cost from rent; or (3) Withhold rent until the landlord repaired the defect.

Holding: Landlord breached implied warranty of habitability (breach of contract). Court awarded damages for annoyance as well as compensatory damages, and said that had the plaintiff requested punitives (thus, not waived them), the facts would support punitive damages award too.

Italian Fisherman v. Middlemas (1988)

Issue: Did Italian Fisherman assign or sublease the restaurant space to Arnand’s?

Rule: The common law rule governing the determination of whether a lease transfer is an assignment or a sublease is easily stated: If the instrument purports to transfer the lessee’s estate for the entire remainder of the term, then it is an assignment, regardless of its form or of the parties’ intention; however, if the instrument purports to transfer the lessee’s estate for less than the entire term—even for a day less—it is a sublease, regardless of its form or the parties’ intention.

Holding: Italian Fisherman did not retain the right of reentry since it assigned its entire interest in the property to Arnands and an assignor of a leasehold does not have a right of reentry upon the assignee’s default.

Christensen v. Tidewater Fibre (2005)

Issue: Whether the lease agreement be- tween SunShares and defendant constituted an assignment or a sublease.

Rule: Conveyance is an assignment if the tenant conveys his “entire interest in the premises, without retaining any reversionary interest in the term itself.” A sublease, on the other hand, is a conveyance in which the ten- ant retains a reversion in some portion of the original lease term, however short.

Holding: Tidewater only agreed with SunShares to pay two months of the rent SunShares owed under its agreement with Christensen. This was not SunShares’ entire interest in the leasehold since it still had multiple years left on its contract. By depositing Tidewater’s checks, Christensen waived his right to receive prior written notice of the sublease and, thus, validated the agreement to sublet between SunShares and Tidewater.

Kendall v. Ernest Pastana, Inc. (1985)

Question: Whether, in the absence of a provision that such consent will not be unreasonably withheld, a lessor may unreasonably and arbitrarily withhold his or her consent to an assignment.

Rule: Where the lease contract includes a provision that the tenant can only assign the property if he gets the landlord’s approval, landlords can only withhold consent where he has a commercially reasonable objection to the assignment. (Minority Rule – Only applies to commercial leases)

Holding: The tenant’s complaint stated claim and should not have been dismissed.

Note: This is the minority rule and, based on this case, it only applies to prospective commercial real estate contracts (i.e. after 1985). So, contracts entered into before 1985 in CA still adhere to the majority rule (i.e. no reasonableness requirement read into the contract).

Policy: (1) Commercial relationships and commercial contracts usually involve some sort of expectation of reasonableness; and (2) the “personal nature” of lease is not really applicable anymore in the commercial setting.

Dumper’s Case (“The Rule In Dumper’s Case”)

Rule: The landlord’s agreement to one sublease or assignment constitutes his agreement to subsequent subleases and assignments.

Corliss v. Wenner (2001)

Facts: Contractors find cold coins buried underneath the driveway of the man who hired them to perform work.

Issue: How should the coins be characterized—Abandoned, lost, mislaid, or treasure trove?

Rule: When property is found in the ground or in a hiding place and the facts belie a conclusion that the property was lost, then the finder does not acquire title to that property; rather, there is a presumption that the owner of the land on which the property was hidden possesses title.

Holding: We hold that the owner of the land has constructive possession of all personal property secreted in, on or under his or her land.

Hannah v. Peel (King’s Bench 1945) (Treasure Trove)

Rule: It is fairly clear from the authorities that a man possesses everything attached to or under his land. But a man does not necessarily possess a thing lying unattached on the surface of his land even though the thing is not possessed by someone else.

Arguments in this case:

Peel unsuccessfully tries to argue that the rule later adopted in Corliss v. Wenner should apply (i.e. where we don’t know who the true owner is, the owner of the land on which the chattel is found has the superior property right to the item).

Hannah argues that for the Armory Rule: the finder has rights to the property against the entire world except the true owner.

“Attached to” and “under the land” vs. “on the land”

Rule: The possession of land carries with it in general possession of everything which is attached to or under that land (so, in the absence of a better title elsewhere, the owner has the right to possession).

Holding: Because Peel never actually occupied the house, he never actually constructively possessed the things in the house, and therefore never had de facto control

Holmes Rule: Never intended to exclude others

Sir Frederick Pollock: Never had de facto control

Reasoning: Court looked at the context in which the house was being used. Though the house was privately owned, it was open to the public for use. But the Court declared that the general rule is that first finder has good title against all but to the true owner, even if it is found on the property of someone else.


  • If the owner of the property is in possession of the thing itself, not just the overall property. Thus, the owner is the prior possessor.
  • Agents find things for the principles if acting within scope of agency.
  • Finder obtains no title if finder was only in possession through trespass or other act of wrong.

Realistically: Court works really hard to NOT find this to be “mislaid” property. In other words, the court likes Hannah, the finder, because he found the item and then reported it to his commanding officer, and Peel is just trying to freeload off the Hannah’s good gestures.

Benjamin v. Linder Aviation (Iowa 1995) (en banc)

Facts: Bundle of money stashed in the wing of a private plane. New owner of the plane has the plane serviced and the employee of the servicer finds the money.

Issue: Who owns the money? Whether the money found by Benjamin was treasure trove or was mislaid, abandoned or lost property is a fact question.

Rule: Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. It differs from lost property in that the owner voluntarily and intentionally places mislaid property in the location where it is eventually found by another. In contrast, property is not considered lost unless the owner parts with it involuntarily. The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.

Possession: Only possess what you would reasonably expect to find inside the chattel.

Holding: Court rules that money found in the wing of a plane is actually mislaid property and that the locus is the plane. The money is was carefully tied up and then concealed in a location that was accessible only by removing screws and a panel. Thus, this appears more like mislaid property than lost property. Thus, the owner of the plane is the owner of the locus and has rightful possession to the money.

Reasoning: Property is not considered lost unless considering the place where and the conditions under which the property is found, there is an inference that the property was left there unintentionally.

Government: Argues that it previously possessed the money and that the Chappels only have the right to possess against the world except for the true owner and any prior possessors—thus, since the government says it was a prior possessor, it has a superior right to the cash.

Court says no: Government didn’t actually possess the cash because you cannot possess something that you would not reasonably expect to find inside the chattel.


  • Courts look at what best facilitates end goal (in theory, returning the money to the true owner)
  • Courts look at what rule / category of property facilitates the best incentives
  • Categories of property are not as important (i.e. as here, courts often work backwards, deciding the category based on the goals and incentives).

Popov v. Hayashi (2002)

Possession: Possession requires both physical control over the item and intent to control it or exclude others from it. Possession is a blurred question of law and fact. Possession is a process.

  • Elements:
    • Physical Control
    • Intent to Control

Gray’s Rule: A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases.

Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.

Popov: Argues that he controlled the ball at the moment he interfered with the ball’s momentum and maintained active pursuit of the ball (i.e. Pearson v. Post argument).

Hayashi: “Custom of Baseball” argument—says that the custom is that the ball goes to the fan wo ends up with the ball (Whaling Case argument).

Popov’s Claims:

Conversion: The wrongful exercise of dominion over the personal property of another.

Trespass to Chattel: Where personal property has been damaged or where the defendant has interfered with the plaintiff’s use of the property. (Not relevant here).

Holding: Both Popov and Hayashi had property interests in the ball of equal dignity as to the other.

Pre-Possessory Interest: (new rule) This only makes sense in cases where the item at issue has objective worth that can be divided; where the monetary interest can make everyone whole.

Manillo v. Gorski (NJ 1969)

Facts: Defendants added on to their home and the addition entered into the plaintiffs’ property by 15 inches.

Question #1: Can there be adverse possession where the trespasser innocently believes that he actually has title to the land? Or must the trespass be hostile (i.e. the trespasser knows he is wrongfully trespassing)?

Rule #1: It does not matter if the trespass is innocent or hostile—at least in NJ, they don’t inquire into the intent. (“Objective Facts” approach.)

Question #2: What constitutes “open and notorious” possession?

Rule #2: Clear and unequivocal, to such an extent that it is immediately visible. (Policy: It would be unfair to deprive the owner of title to his land where he did not have the opportunity to even learn of the trespass. Only want to reward trespassers where the owner was neglectful).

Minor Boundary Line: No presumption of knowledge where there is a minor encroachment of a true boundary—in such cases, owner loses title only if he had actual knowledge.

Keeble v. Hickeringill (1707)

Facts: Hickeringill shoots a gun near Keeble’s duck decoy pond in order to scare away the ducks Keeble intended to hunt (hunting ducks was Keeble’s livelihood). Action for depriving Keeble of a profit when Hickeringill purposefully frightened ducks away from the Keeble’s decoy pond by firing a gun.

Issue: Whether the Plaintiff had a property right in the ducks that were on his property such that he may maintain action against Hickeringill for scaring ducks away?

Rule: Landowners are considered prior possessors (first possessors) of wild animals on their land.

Holding: The Plaintiff is entitled to damages because the Defendant intentionally frightened the ducks off of the Plaintiff’s property. Even though the Plaintiff did not have title to the ducks, he was using his land in accordance with the law. Since the Defendant interfered with the Plaintiff’s lawful use of his land the Plaintiff was entitled to damages.

Reasoning: Although the Plaintiff never had actual physical possession of the ducks, the Plaintiff still had property rights in the ducks because they were on his property. The Defendant maliciously interfered with the Plaintiff’s livelihood.

International News Service v. Associated Press (1918)

Facts: This case involves a question of unfair competition between two news collecting companies when one company reproduced the others news as their own.

Question: Whether the Defendant can be lawfully restrained under theories of interference with Complainant’s property rights in the news and unfair competition, from appropriating news taken from bulletins issued by Complainant or any of its members, or from newspapers published by them, for the purpose of selling it to Defendants’ clients. Can one news service lawfully prohibit a competing news service from taking its stories and selling them?

  1. Whether there is any property interest in the news
  2. If so, whether the property interest in the news survives even after the news is published
  3. Whether taking competing news services’ stories and selling them constitutes unfair competition in trade

Rule: Whereas reading a newspaper and spreading the news is legitimate, transmitting news matter stolen from a competing news service constitutes unfair trade. There is a quasi property interest in news collected by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute the news collected by another news collection agency.

  • No property interest of uncopyrighted news matter against the public after publication
  • But there is a quasi-property interest between competing news sources
  • News is not abandoned to the public for all purposes when it is published for the first time

Holding: This is unfair competition by the Defendants, as two competing parties are endeavoring to make money and Defendants are misappropriating Complainant’s quasi property interest in the news it collected and misrepresenting it as their own.

Reasoning: In determining whether a news collecting agency has property rights in the news the consideration needs to be whether an agency has a property right in news it collected versus other collecting agencies, rather than against the public.

The business of making this news known to world, when the parties to the case are competitors in the field creates a quasi property interest in the news between them.

It is unfair competition when one party interferes with the normal operation of another’s legitimate business precisely at the point where profit is to be reaped, in order to divert a material portion of the profit from those who have earned to those who have not.

Cheney Bros. v. Doris Silk Corporation (2nd Cir. 1929)

Facts: Cheney produced dress patterns, of which only about 20% would be successful. Doris Silk was stealing that 20% and reproducing the dress pattern for cheaper. Dress designs, like hot news, have a limited shelf life.

Issue: Is there a property interest in dress patterns?

Holding: No. Court does not grant an injunction against Doris Silk.


  • Court first rules that INS is not applicable to this case. Concludes that the new is substantially different than dress patterns.
  • “A Man’s property is limited to the chattels which embody his invention.”
  • Can only have property rights in a chattel. So absent common law or statutory protection, can only protect an actual chattel.
  • Thinks it is the legislature job to amend the copyright laws in order to protect businesses like the Cheney Brothers.

Smith v. Chanel (9th Cir. 1968)

Facts: Ta’Ron advertises that it sells perfume which “duplicates 100% perfect” more expensive name-brand perfumes. It specifically compares its perfume to Chanel No. 5.

Issue: Whether one who has copied an unpatented product sold under a trademark may use the trademark in his advertising to identify the product he has copied.


  • A manufacturer of duplicated goods may use the name of the duplicated product in advertising (so long as it does not contain misrepresentations or create a reasonable likelihood that purchasers will be confused as to the source, identity, or sponsorship of the advertiser’s product).
  • Use of another’s trademark to identify the trademark owner’s product in comparative advertising is not prohibited by either statutory or common law, absent misrepresentation regarding the products or confusion as to their source or sponsorship.

Holding: Ta’Ron may use Chanel No. 5’s trademark to identify the product it seeks to copy.

Moore v. Regents of the University of California

Addressed the tension created by legal rules where a third party can possess property rights in human body materials, but the person from whose body they have been removed cannot.

Here, the court held that patient whose spleen and blood were used to develop a commercial cell line had no property rights in the materials.

Justice Broussard – concurred and dissented: Pointed out that the medical center certainly had a property right in the plaintiff’s bodily material since the medical center would be able to maintain an action for conversion if a drug company stole the cells from the medical center. So, if that’s the case, the medical center has property rights in the bodily material, but the person from whose body the material was taken does not.

Rule: Individual has not property rights in his own body materials. Once body materials are removed, individual has not rights or control over them.

Walker v. Ireton (Kansas 1977)

Facts: Oral agreement between Ireton and Walker in which Ireton was to sell his farm to Walker. Despite Walkers attempts to get Ireton to sign a written contract, Ireton would not, but still maintained that his word was good until the deal blew up. Walker performed the following acts of reliance: delivery of the $50 check as an installment on the purchase price, payment of a $36 deed abstract expense and a $75 attorney fee for an abstract examination, the placing of a side-delivery hay rake on a pasture in September 1973, and the fact that Walker sold a farm near Hedville—which he had recently purchased—in reliance on Ireton’s promise to sell his farm.

Issue: Are these acts of reliance sufficient to award Walker specific performance despite the absence of a signed contract for the sale of land?

Rule: Oral contract for the sale of land is not enforceable under the statute of frauds unless there are compelling equitable considerations counseling that specific performance be awarded.

Holding: The acts of reliance are insufficient to justify specific performance of the oral contract.

Hickey v. Green (1982)

Facts: Green orally agreed to sell her home to Hickey for $15,000. But Green refused to do so when she got a better offer. Hickey had already sold his home, having intended to build one on Green’s lot. Hickey therefore sued Green for specific performance.


Rule: A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement


  • First, the extent to which the evidentiary function of the statutory formalities is fulfilled by the conduct of the parties
  • Second, the reliance of the promisee, providing a compelling substantive basis for relief in addition to the expectations created by the promise.”

Holding: Court enforced specific performance.

Humphries v. Ables (Ind. App. 2003)

Facts: H agreed to purchase real estate from Ables. The buyers, however, failed to complete the transaction because they argue that the presence of the old underground gas tanks and possible soil contamination means that they could not receive marketable title. (Argue that they cannot transfer the land without conducting a clean phase I inspection and that they would be exposed to litigation for contamination.

Issue: Does the possibility of land contamination preclude marketable title?

Rule: Risk of contamination does not affect marketability of title; and potential for litigation does not affect marketability of title unless the litigation would arise out of problems dealing with unclear title.

Holding: We hold that marketable title may be transferred even if there is contamination upon the property which is to be conveyed.

Stambovsky v. Ackley (NY App. Div. 1991)

Facts: Buyer learned that the house he recently contracted to buy (but had not taken title of) was possessed by ghosts. The seller and his family were aware of the ghosts when they sold buyer the house—they had reported them in magazines to boost popularity of house as a B&B. Buyer sued to rescind the contract and the lower court dismissed, holding that buyer had no remedy at law.

Issue: Is the buyer entitled to rescission of the contract—an exception to the general caveat emptor rule—where the condition was “created” (read: publicized/advertised to public, but not to buyer) by the seller and is unlikely to be discovered by buyer’s reasonable inspection?


  1. Where a condition
  2. Created by the seller
  3. Materially impairs the value of the contract and
  4. Is within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care,
  5. Then nondisclosure constitutes a basis for rescission as a matter of equity.

Holding: Buyer is entitled to rescission of the contract because the seller “created” the ghost issue and the buyer was unlikely to discover it. Failure to allow for this equitable exception to caveat emptor would have the disgusting effect of encouraging sellers to take advantage of even prudent, diligent buyers.

Murphy v. Financial Development Corp. (N.H. 1985)

Facts: Lender forecloses on borrower’s house. Postpones sale at the borrower’s request but then only posts foreclosure sale advertisements on the house. Other than the postponed sale advertisements posted on the home, the only other advertisement was the original advertisement placed at the post office. Thus, nobody other than the lender shows up for the postponed foreclosure sale, so the lender buys the house at precisely the amount of money the borrowers owed.


  • First: Whether the master erred in denying the motion to dismiss [on the ground that the borrowers failed to seek an injunction to block the foreclosure sale.
  • Second: Whether the master erred in concluding that the lenders had failed to comply with the often-repeated rule that a mortgagee executing a power of sale is bound both by the statutory procedural requirements and by a duty to protect the interests of the mortgagor through the exercise of good faith and due diligence.
    • I.e. whether the lenders satisfied their duty to the mortgagors by acting with good faith and due diligence.

Rule: Lender’s duty of good faith and due diligence in selling the foreclosed property is basically the duty owed by a fiduciary. A lender must exert every reasonable effort to obtain a fair and reasonable price under the circumstances (fact question).

  • Bad Faith:
    • Intentional disregard of duty; or
    • A purpose to injure.
  • Due Diligence: whether a reasonable man in the [lenders’] place would have adjourned the sale.

Holding: Lenders failed to take reasonable steps or use the ordinary methods that are used to make buyers aware when an owner is voluntarily selling his land.

Skendzel v. Marshall (Ind. 1973)

Facts: Breach of installment land sale contract. The contract included a liquidated damages provision stating that if the buyer ever failed to make payment, seller reclaimed the property and kept the payments already made as liquidated damages. Buyer breached after having paid $21,000.

Issue: Whether a $21,000 forfeiture is a “reasonable” measure of damages

Rule: Damages are unreasonable if they are disproportionate to the loss actually suffered. Whether damages are liquidated or rise to the level of punitive is a question of fact.

Holding: $21,000 forfeiture, under the facts of this case, is clearly excessive. Court enforced the land transfer but required that instead of a forfeiture, the matter be dealt with pursuant to the foreclosure statute in order to preserve equity.

Brown v. Lober (1976)

Facts: Plaintiffs purchased land and then entered into $6,000 K with coal company for subsurface coal. But plaintiffs later learned that they did not have title to the subsurface coal because someone else did. Plaintiffs brought seisin suit, but the court dismissed on the grounds that the SOL barred the suit. Plaintiff’s post-trial motion for breach of the covenant of quiet enjoyment was also denied.

Issue 1: When, if at all, is the plaintiffs’ cause of action for breach of the covenant of quiet enjoyment deemed to have accrued?

Rule: When plaintiffs are constructively evicted.

Issue 2: Have plaintiffs alleged facts sufficient to constitute a constructive eviction?

Rule: Must be constructive eviction to constitute breach of the covenant of quiet enjoyment—paramount title alone is insufficient. Paramount title holder must interfere with plaintiffs’ right of possession (e.g., by beginning to mine the coal) for there to be constructive eviction and, therefore, breach of the covenant of quiet enjoyment.

Holding: No action for seisin because SOL ran from time of transfer (seisen wouldn’t even apply in most jurisdictions because there is no seisin where seller doesn’t have 100% interest in property

No action for breach of the covenant of quiet enjoyment. The mere fact that plaintiffs’ original contract with Consolidated had to be modified due to their discovery that paramount title to two-thirds of the subsurface minerals belonged to another is not sufficient to constitute the constructive eviction necessary to a breach of the covenant of quiet enjoyment.

Here, no one (i.e superior title owners) has actually said “I have better rights”; plaintiffs were trying to sell coal rights to someone else, and discovered they did not have full title. Not “ousted.”

Rockefeller v. Gray (1922)

Facts: Complicated web of property transfers that were alleged to be invalid in the first place because of the $500 lien on the land at the time of the first transfer.

Rockefeller (forecloses) à Connelly (obtains GWD in foreclosure sale) à Dixon (obtains SWD) à H&G

H&G sues Connolly (why? Because Dixon’s SWD only protects against the defects that arose during Dixon’s ownership, not the defects that arose before. Here, Rockefeller’s foreclosure sale is void, so, to recover anything, H&G must sue party with GWD. But to sue Connolly, covenant of seizin must run with the land, because H&G is not in privity with Connolly).

Issues and Rules:

Issue #1: Whether or not the covenant of seizin runs with the land in this state, so that an action thereon may be maintained by a remote grantee.

Rule #1:

Minority (here): Right of action for breach of the covenant of seizin accrued to the grantee at said time and this cause of action passed by the subsequent deed of grantee to subsequent grantees.

Majority: Covenant of seizin is a covenant for the title, and if, at the time of the conveyance, the grantor did not own the land, the covenant is broken immediately, and it is not necessary, in order to recover, to allege or prove an ouster or eviction.

(Majority of courts recognize that seizen does not run with the land.)

Issue #2: What is the proper amount of damages?

Rule #2: If the covenant of seizin is broken, as thereby the title wholly fails, the law restores to the purchaser the consideration paid, which is the agreed value of the land, and interest.

In no event could the remote grantee recover from the remote grantor a greater amount than the consideration recited in the original deed between the remote grantor and his immediate grantee. Holding: H&G recovers $4,000.

Rosengrant v. Rosengrant (1981)

Facts: Harold and Mildred “give” Jay the deed to the farm—has deed given to Jay and then back to the banker to store until Uncle’s death. But then the deed is kept at the bank with the banker. When Harold and Mildred die, plaintiff (other member of family) files a petition to cancel and set aside the deed. Trial court grants the petition on the ground that the deed was null and void for failure of legal delivery.

Issue: Did the trial court error in holding that the deed was null and void for failure of legal delivery?

Rule: The grantor’s intent at the time the deed is delivered is of primary and controlling importance. Delivery of a deed will not be valid where it is clear that the deed is retrievable by the grantor.

Board of Education of Minn. v. Hughes


Did the deed from Hoerger to Hughes ever become operative?

If so, is he a subsequent purchaser whose deed was first duly recorded, within the language of the recording act?


in case of the execution and delivery of a sealed instrument, complete in all respects save that the blank for the name of the grantee is not filled, the grantee may insert his name in the blank space, provided he has authority from the grantor to do so, and, further, that this authority may be in parol, and may be implied from circumstances.

The statute cannot be construed so as to give priority to a deed recorded before, which shows no conveyance from a record owner.

Harper v. Paradise (1974)

Facts: In 1922, Susan Harper conveyed to Maude Harper by deed a farm for life. The remainder interest was to go to Maude’s named children, the Plaintiffs (Plaintiffs). This deed was lost for over thirty years, until 1957 when it was found and recorded. However in 1928, because the Plaintiffs could not find the deed, they executed another instrument which was recorded in 1928 stating that although they could not find the first 1922 deed, this deed conveyed the land to Maude. In 1933 Maude used the land in question to secure a loan from Thornton. When the loan went into default, Thornton foreclosed in 1936. There is an unbroken chain of title to the property from Thornton, which ends with the Defendants, the Paradise’s (Defendants) as owners. Plaintiffs sued to quiet title. The trial court found for the Defendants and the Plaintiffs appealed.

Issue: Whether the Defendants were on constructive notice as to the rights of the Plaintiffs.

Rule: A deed in the chain of title, discovered by the investigator, is constructive notice of all other deeds, which were referred to in the deed discovered.

Holding: Reversed. Defendants were on constructive notice that another missing deed existed and had a duty to inquire of the interests in the missing deed.

Reasoning: The court found for the Plaintiffs because the Defendants had constructive notice of another party that may have had an interest in the land. Since the deed from which their interest originated mentioned there had been a lost deed, they were now under a duty to inquire as to the interests in the lost deed. Because they did not, the court found for the Plaintiffs.

McCarty v. Natural Carbonic Gas Co.

Facts: New owner buys factory next to plaintiff’s house and starts burning soft coal that produces black soot in the air surrounding the plaintiff’s home and sometimes obscures it from view. Significantly reduced the rental value of the home. Lower court enjoined the factory owner from burning the soot-producing soft coal.

Issue: Whether the defendant makes a reasonable use of his own property? Is the use reasonable?

Rule: Unreasonable use causing substantial injury.

  • Courts proceed with great caution and will not interfere with the use of property by the owner thereof unless:
  • Such use is unreasonable; and
  • The injury is material and actual, not fanciful or sentimental

Holding: The factory created a nuisance.


  • Plaintiff homeowner moved into the home / purchased the home before the new factory owner started burning the dirty coal.
  • The factory owner can burn alternative coal that would not produce dirty smoke.

Factors to Consider:

  • Location,
  • Nature of the use,
  • Character of the neighborhood,
  • Extent and frequency of the injury,
  • The effect on the enjoyment of life, health and property and the like. Note: Unintentional conduct must be reckless or negligent to constitute a nuisance

Village of Euclid, Ohio v. Ambler Reality Co.

Facts: Town passes complicated zoning ordinances and Ambler Realty, owner of a large plat of land on which it intended to industrial development, sues on the grounds that the zoning violates its right to liberty and property by constraining its autonomous use of the land. Specifically, ordinance reduces potential value of land from $150 per square foot to $50 per square foot. Ambler sought injunction. Lower court held the zoning ordinance unconstitutional.

Issue: Is the zoning ordinance valid as a necessary regulation under the police power, asserted for the public welfare.

Determine the validity of the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded.

Rule: If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Does this ordinance “pass the bounds of reason and assume the character of a merely arbitrary fiat?”

  • Fact-Intensive Question
  • Zoning ordinances cannot be clearly arbitrary

Holding: Yes, reasonable zoning ordinances are valid

Rational Relation: The exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community.

Nectow v. City of Cambridge (1928)

Facts: Strip of land rezoned, thereby reducing the value of the land.

Issue: Is the city council’s zoning decisions unconstitutional under the 14th Amendment?

Rule: Zoning restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.

Holding: Zoning ordinance as applied to this strip of land is unconstitutional since the ordinance is serious and highly injurious, but also lacks any necessary basis for being implemented.

Reasoning: While it is generally not for the court to second guess the legislature’s prudence, where the legislature implements an injury causing ordinance that is not rationally related to the public health, safety, morals, or general welfare, then the court is obliged to intervene.

PA. Northwestern Distribution v. Moon Township (Pa. 1990)

Facts: Amortization zoning ordinance passed in response to new adult bookstore. Gave adult bookstore 90 days to conform to ordinance (i.e. relocate).

Issue: Whether a zoning ordinance which requires the amortization and discontinuance of a lawful preexisting nonconforming use is confiscatory and violative of the Constitution as a taking of property without just compensation.

Whether the zoning hearing board committed:

  • An error of law or 
  • A manifest abuse of discretion.


MINORITY RULE (ADOPTED): Determine if the ordinance is “regulation” or a “taking.” If government desires to interfere with the owner’s use, where the use is lawful and is not a nuisance nor is it abandoned, it must compensate the owner for the resulting loss.

  • But: ZONING ordinance is presumed valid – burden on challenger to establish invalidity
  • BUT: Amortization ordinance is not presumed valid:
  • “Amortization and discontinuance of a lawful pre-existing nonconforming use is per se unconstitutional.”
  • Concurring Judge disagrees with this.

MAJORITY RULE (NOT ADOPTED – Sullivan): Balancing of interests – the benefits to the community must outweigh the losses to the affected landowner.

  • Considerations:
    • Length of the period for amortization
    • Present characteristics of the land
    • Foreseeable future prospects for development of the land
    • Length of time in relation to degree of investment
    • Offensiveness of the use
  • Other relevant facts and circumstances
    • Amortization period must give property owner sufficient time to recover investment costs and relocate to an area where the land use is permissible.

Holding: Held that the amortization ordinance was unconstitutional on its face.

Commons v. Westwood Zoning Board (N.J. 1980)

Facts: Builder seeks variance to build home that doesn’t strictly conform to the zoning ordinance—many of the homes in the same zoning area also do not conform to similar extents as this proposed home. Zoning board denied the variance and appellate court affirmed on the grounds that the zoning board’s decision was not arbitrary.

Issue: Whether the denied variance created an undue hardship on the land-owner.

Rule: Two step approach

  • Does the variance create undue hardship?
  • If it would create undue hardship, would granting the variance cause:
    • Substantial detriment to the public good? Or
    • Impair the intent and purpose of the zone plan and zoning ordinance?

Holding: Held that the zoning board erred in finding that its failure to grant the variance did not create undue hardship.

Willard v. First Church of Christ Scientist (Cal. 1972)

Facts: M owns lots 19 and 20. She lets the church across the street use lot 20 for parking. P then buys lot 19 and agrees to sell lot 19 and 20—even though P didn’t own lot 20 to W. P then buys lot 20 from M, but the title includes an easement for the church to continue using lot 20 for as long as the church is using lot 20. P includes this in the deed for the sale of lot 19 and 20 to W. W then pursues quiet title to try to say the church doesn’t have the easement. Trial court rules for W, church appeals.

Issue: Whether a grantor may, in deeding real property to one person, effectively reserve an interest in the property to another.

Rule: Primary objective in construing a conveyance is to try to give effect to the intent of the grantor.

Holding: M intended that the church maintain its easement on lot 20. Thus, M may effectively reserve the church’s interest in lot 20 in transferring that property. [Overrules common law rule that “one may not reserve an interest in property to a stranger to the title].

Van Sandt v. Royster (1938)

Facts: The Plaintiff, Van Sandt (Plaintiff), discovered that his basement was flooded with sewage and brought an action to enjoin the Defendant, Royster (Defendant), from using and maintaining the underground sewer. The pipe crossed a single property encompassing both lots and the adjacent lot in 1904 that was owned by Bailey.


  1. Is there an apparent easement even though the sewer drain pipe is not readily visible?
  2. Can a common owner make use of part of his land for the benefit of another part, thereby creating a quasi-easement, which creates an easement by implied reservation upon severance of the servient estate from the dominant one?
  3. Whether Royster and Gray had an easement for lateral drain pipe extending through Van Sandt’s land?

Rule: An easement is implied to protect the probable expectations of the grantor and grantee that a prior existing use will continue after the transfer. Thus, where the grantee is aware of a reasonably necessary use of the grantee’s property for the comfortable enjoyment of the grantor’s property an easement by implication is created.

  1. If land cannot be used without disproportionate effort and expense without an easement (where there has been a pre-existing use of that easement), then an easement may be implied for grantor or grantee on the basis of necessity alone.
  2. When the owner of land benefiting another part of the land subsequently transfers the “other” benefitting part of the land, the quasi easement vests with the new land owner.
  3. Appearance and visibility are not synonymous, and that the fact that the pipe, sewer, or drain may be hidden underground does not negative its character as an apparent condition; at least, where the appliances connected with and leading to it are obvious.

Holding: Held that there was an easement by implication.

Graff v. Scanlan (1996)


Issue: (1) Does G have an easement implied by necessity over lot 8? (2) If so, does that easement preclude G’s argument for easement by necessity over S and N’s properties?

Rule: An easement by necessity may be implied when, after severance from adjoining property a piece of land is without access to a public highway.


  1. Titles to the alleged dominant and servient properties must have been held by one person.
  2. This unity of title must have been severed by a conveyance of one of the tracts.
  3. The easement must be necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the:
    1. Severance of title; and
    2. Exercise of the easement.

Holding: G had an implied easement over lot 8. Because G sold lot 8 without preserving the easement, G’s current land-locked situation is “self-created.” Thus, G cannot now claim an easement by necessity.

Henry v. Dalton (1953)

Facts: Henry  asked his neighbor, Dalton, if he could part of his land to build a driveway to the new two car garage he was planning to build on the back side of Henry’s house. Dalton agreed and Henry then paid for the driveway and had his two-car garage built. Dalton then revoked the oral license.

Issue: Whether, when Henry, relying on the respondent’s permission expended money and labor, the license became executed and on the theory of estoppel could not be revoked.

Rule: An oral license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license.

Holding: Court adopts rule that oral license is revocable whenever the owner wants to revoke it and therefore held that Henry no longer had a license to use Dalton’s property as a driveway. Notes and Questions:

Preseault v. United States (Fed. Cir. 1996)

Facts: P gave railroad/government a right to use part of their land for tracks. The tracks had not been used in a long time. The government then converted the tracks into hiking and biking trails. The P’s sued claiming that the government did owed them just compensation for this because the termination of railroad use also terminated the railroad/government’s right to use.

Issue (1): Who owned the strips of land involved, specifically did the Railroad by the 1899 transfers acquire only easements, or did it obtain fee simple estates

Rule: When a railroad for its purposes acquires an estate in land for laying track and operating railroad equipment thereon, the estate acquired is no more than that needed for the purpose, and that typically means an easement, not a fee simple estate.

Holding: the estate conveyed only an easement to the strips of land and the fee simple title to all three parcels of land remained with their original owners.

Issue (2): If the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and

Rule: An easement for a particular use ends when the underlying purpose no longer exists.

Explanation: Expansion of the use of the easement within the original purpose of the easement is permitted; but a change in use not foreseeable at the time the easement is created terminates the easement.

Holding: The terms of the easements were limited to use for railroad purposes—not future use such as a hiking and biking trail—so the easement terminates.

Issue (3): Even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated prior to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements?

Rule: Upon an act of abandonment—non-use and the intent to abandon—the then owner of the fee estate, the “burdened” estate, is relieved of the burden of the easement. Abandonment is a question of fact.

Holding: The railroad’s removal of the tracks in 1975 constituted abandonment.

Issue (4): Is the government’s use of the land for a hiking and biking path a “taking”?

Rule: When state-defined property rights are destroyed by the Federal Government’s preemptive power in circumstances such as those here before us, the owner of those rights is due just compensation.

Holding: Taking. When the City, pursuant to federal authorization, took possession of Parcels A, B, and C and opened them to public use, that was a physical taking of the right of exclusive possession that belonged to the Preseaults as an incident of their ownership of the land.

Peterson v. Friedman (1958)

Facts: Plaintiff sues neighbor for violating negative easement which prohibited the neighbor from erecting anything that would interfere with the plaintiff’s right to receive light, air, and unobstructed view over a specific portion of the plaintiff’s property. Neighbor constructs TV antennae. Plaintiff sues.

Issue: Did the negative easement agreement include prohibition of TV antennae—a technology that did not exist at the time the easement was created.

Rule: Courts honor the intention of the parties at the time the easement was created.

Holding: Since the purpose of the easement was to prevent obstruction of the light, air, and view, without regard to the nature of the thing causing the obstruction, the plaintiff was entitled to relief.

Sanborn v. McLean (1925)

Facts: Mr. and Mrs. McLean started to erect a gasoline filling station at the rear end of their lot, and they and their contractor and were enjoined by decree from doing so and bring the issues before us by appeal.

Issue: Does the “Residential Purposes Only” land restriction apply to defendant’s lot?

Rule: If the owner of two or more related/neighboring lots sells one with restrictions which are intended to benefit to the land retained, the restriction runs with the land sold. Therefore, even if the retained land is later sold, the restriction is still binding on that land so long as the buyers had notice of the restriction.

Unless the land’s use, upon which the restriction was based, changes substantially

Holding: The “residential purposes only” restriction applies to defendants’ lot and they are enjoined from building a gas station. The character of the area should have led defendants to inquire about possible restrictions, and had they inquired, the records would have provided them with actual knowledge of the restriction.