Property Cases – Teachout Fall 2012

Pierson v. Post

       Post was hunting a fox, Pierson, a farmer, knew of this.  Pierson shot and killed the fox and was said to own it on appeal.


Pursuit w/o mortal wounding is not sufficient for ownership of a wild animal on the commons.

Ghen v. Rich

Whaling Case

      Custom can be used to determine ownership/property rights when there is no precedent.

Keeble v. Hickeringhill

     Decoy pond for capturing ducks.

       One’s enjoyment of his own property should not be interfered with.


       INS gained access to AP’s news through bribery, news bulletin board and early editions of newspapers.

       RE: Business of reporting news, the time, effort, and money put into collecting the news for stories creates a quasi property.

Property rights can be used to protect business.

Moore v. Regents

       Regents uses Moore’s excised hairy leukemia cells to patent an extremely valuable cell line.  Moore sues saying he had a property right in his cells.  Court rules for Regents.

     You don’t have a property right in excised cells once they are removed. 

Dissent: Binary approach to property rights vs. Bundle of Sticks.

o   Bundle of sticks –> Property right is not one singular right, there are limitations and restrictions.

Jacques v. Steenberg Homes, Inc.

       Steenberg delivers mobile homes and crosses over Jacques’ land despite Jacques not granting them permission to do so.

   A landowner has the right to exclude.


State v. Shack

       Non-profit organization goes onto land to give aid to migrant workers.  The farmer who owned the land the workers were staying on to leave, and Shack refused.  Court rules for Shack.


     A landowner’s rights do not allow him to deny the rights of others. ;If a LL allows for others to live on his property, he cannot restrict their property rights.

Armory v. Delamirie

       Chimney sweep finds a jewel and brings it to D’s shop where D takes possession of it.  Court rules for Armory.

       Finder of property has superior property right of it to everybody but the true owner.

Hannah v. Peel

       Hannah, a soldier, finds a brooch when he is stationed in Peel’s house, which has been commandeered by the army.  Hannah gave it to the police, who gave it to Peel who sold it.

       As between a finder and landowner, the finder has ownership over unattached lost property that is not in the knowledge of the existence of the item or prior possession providing the finder is on the land legally.

McAvoy v. Medina

       McAvoy finds a pocketbook in Medina’s barbershop and gives it to Medina to hold for the true owner who never comes for it.  McAvoy demands the pocketbook back, and Medina refuses.

       As between a finder and a shop-owner, finder does not have title over a misplaced item that is superior to the title of the shop-owner.

VanValkenburgh v. Lutz

       Fight b/w neighbors over the land.  Guy builds a garage and a second home on land his neighbor buys later on.  w/ Garage, b/c Lutz claimed it was his land, not covered under AP.  w/ truck farm, b/c Lutz didn’t claim title, not covered under AP.

       Used to establish AP requires either improvement of the land or use of all the land being claimed as shown by “substantial enclosure” or “usual cultivation”

       Good Faith Doctrine of AP à You believe the land is yours

       Dissent: Objective view of AP.  If you act like the owner, that is all that matters.

Mannillo v. Gorski

       Gorski encroached on the border of Manillo’s property by building stairs slightly on Manillo’s property.  Manillo argues Gorski’s trespass not hostile and that mistake is not enough.

       A minor encroachment on the border to land does not give constructive notice and therefore is only “open and notorious” once the owner has actual notice of the encroachment.  Abandons ME doctrine in favor of CT doctrine à Burden is on true owner.

Howard v. Kunto

       Kunto buys summer home.  Howard later finds out that he holds deed for Kunto’s land and sues.  Kunto claims adverse possession due to time of predecessor and that use as summer home counts as “continuous”

       Successive adverse possessors may tack the time of possession of a previous adverse possessor onto their own so long as they are in privity.

       AP is possible even when a home is only used in the summertime, provided use is consistent w/ ordinary conduct of owners of property of like nature and condition.

O’Keeffe v. Snyder

       P sues D for return of three paintings claiming that the paintings had been stolen from her husband.  D argues that he bought the paintings and that he would own them under adv. possession of chattels.

       No good title can be obtained for stolen painting.  Open and notorious possession of a chattel is not sufficient for constructive notice to the true owner.

       Diligent pursuit of goods tolls the statute of limitations until discovery of current possessor.

       Lack of diligent pursuit allows the statute of limitations to run; subsequent transfers are not separate acts of conversion that restart the S.O.L.

Newman v. Bost

       Bost is on his death bed and gifts several things to Newman.  Newman claims that Bost left to her all the furniture and property in his hase as a gift causa mortis.  She claims that Bost gave her an insurance policy by giving her the key to the bureau it is in. 

       Bost is entitled to only what she got keys for but not the insurance policy b/c it could have been handed to her.

       For donatio causa mortis there must be: 1) intention to make the gift; 2) delivery of the thing given.

       Doesn’t allow for symbolic gifts.  There can be no gift of either kind w/o both intention and actual delivery.

Gruen v. Gruen

       Father sends to his son a letter saying for his birthday he is getting a Klimt painting but that the father would like to hold onto it until his death.  Pln (Son) never took possession of the painting and when his father dies, he asks for the painting but his step-mother (Def) refuses.

       For valid inter vivos gift there has to be delivery, and it is sufficient to tailor delivery to suit the circumstances of the gift.  Clear father intended to give the painting to his son and reserve a life estate for himself.  Symbolic delivery provided for in the letter is sufficient.  Evidence against acceptance must be clear to countermand the assumption of acceptance.

White v. Brown

House given to Pln through a vague will.

       Law construes against restraints on alientation.  Words of purpose are not recognized.

       If individual demonstrates elsewhere they know what they are doing, the person knew what they were doing.  Testatrix gave a fee simple absolute else where so she knew how to give away absolute title.

Mahrenholtz v. County Board

       Huttons give land to school “to be used for school purpose only; otherwise to revert to Grantors herein.”  Creates vague fee simple determinable.  Huttons’ son tries to pass possibility of reverter to P.

       Ex. of old rule where you could not alienate the possibility of reverter or right of re-entry.  This rule is now done away with.

Mountain Brow Lodge v. Toscano

       Testator leaves land to Pln for “use and benefit only of the Pln.”  If it’s not used or Pln attempts to sell or transfer any or all of the land, land reverts back to D.  Toscano argues that it was fee simple SCS, and MBL argues that it is a restriction on alienability.

  You can edit out that parts that make the grant inalienable.  Not a restriction on the use of the land but a restriction of who uses it.

Woodrick v. Wood

       DEF and PLN have interest in piece of land.  DEF wants to get rid of a barn that would increase the value of the land, but PLN has sentimental value attached to the barn and wants to keep it.  PLN sues to keep barn.

       If change improves upon the land, the holder of a remainder interest cannot prohibit a life tenant from destroying structures on land.

Property is fungible and can be valued in cash.

Baker v. Weedon

       Man dies leaving a life estate to his third wife (Def) to pass on to either her children, and in the event she doesn’t have any, then to his grandchildren (Pln), who end up with a future remainder interest in the property.  She wants to sell the land b/c of her fixed income, they want to hold onto it b/c it is likely to appreciate with highway being built nearby.

       Remaindermen of a life estate have some interest in the property.  A judicial sale of property in a life estate may be ordered if it is in the best interest of both parties, under equity.

B’way Nat’l Bank v. Adams

       Adams (D) owed B’way (P) money.  Adams’ brother created a lifetime trust for Adams, with the provision that such funds may not be alienated to satisfy a debt.  Adams would receive semi-annual payments from the trust only.  B’way filed bill in equity to reach the trust funds to satisfy the debt.

       A founder of a trust may lawfully restrict the grantee’s power of anticipatory alienation of the trust benefits and bar creditors from reaching the trust funds.

       Brother, as owner of the property in question, has the right to dispose of the property in any manner he sees fit.

Symphony Space v. Pergola

       Symphony (P) leased a theatre from Broadwest.  B’west sells bldg to P and leased back the income producing property for one year.  P would get a tax exemption.  Agreement also contained an option clause allowing B’west to purchase the property during specified periods.  D (part of B’west), notified P of its intent to exercise the option, and P brought suit seeking a declaratory judgment that the option violated NY’s RAP. 

       Commercial option agreements are not exempted from the RAP.

Riddle v. Harmon

       Ms. Riddle had piece of land as joint tenants.  Ms. Riddle didn’t want it to go to her husband so she granted herself an undivided one-half interest in the property.  Trial court refused to recognize her attempt to sever and gave title to husband.  Ruling overturned on appeal.

       A joint tenant can terminate a joint tenancy by conveying interest from herself as joint tenant to herself as tenant in common.  No longer a need for a “straw-man”

Harms v. Sprague

       Wm. (P) and John (P’s brother) own property in joint tenancy.  John executed a mortgage favoring Simmons who later assigned his interest to D.  After John died, P contended that mortgage had died with John and brought action to quiet title.  Trial court held that D’s mortgage survived John’s death and entered judgment in favor of D.  Appellate Court reversed, and D appealed.

       A mortgage on a joint tenant’s interest does not survive mortgagor. 

Delfino v. Vealencis

       Co-tenant lives on the land and operates a garbage hauling business.  Co-tenant wanted to develop land. 

       Partition by sale is justified if it promotes the interests of both owners and a partition by kind is impractical.

Spiller v. Mackereth

       P and D own a bldg as tenants in common, after a lessee vacates, the D used it as storage and put locks on it.  P demanded D vacate ½ bldg or pay ½ of rental value.  D never kept P from the premises and did not provide a key to the lock b/c D never asked for one.

       Co-tenants do not owe rent to each other, but may be forced to pay rent if there is an ouster.

Swartzbaugh v. Sampson

       Husband rents out property he shares with his wife as joint tenant to a guy who runs a boxing ring.  Wife doesn’t like it and tries to get the lease nullified.  She loses.

       A joint tenant may lease property giving the lessee the right to possession of property that the lessor had.

Hannan v. Deutsch

       P leased real estate from D.  When P goes to take possession of the property, other tenants were still there.  D refused to take action to evict tenants, saying it is P’s duty.  Court holds for D.

       Adopts American Rule –> LL gives possessory right to the lessee and it is on the lessee to guarantee it is open to him.  One who is w/o fault should not be held responsible for the wrongdoing of others.

       Denies English Rule –> Absent of stipulations, LL will ensure the property is open to the lessee.  


Ernst v. Conditt

       After P leased property to Rogers, who assigned his lease to Conditt, P sought damages from D for past due rent and removal of improvements.  Court rules for P.

       An assignment arises when a lessee transfers his entire interest under a lease.

Kendall v. Ernest Pestana

       D arbitrarily w/held permission from P, its tenant, to sublet its leasehold.  Lower court rules for D but P wins on appeal.

       Like the Restatement (Second) of Property, it adopts the minority rule and holds that consent can be w/held only for a reasonable objection.

       Majority rule –> consent can be w/held for any reason.

Berg v. Wiley

       Wiley (D), lessor of commercial property to Berg (P) for purpose of operating a restaurant, locked P out of the premises when P delayed making certain remodeling changes to meet health code requirements.

       A LL may not remove a breaching or defaulting tenant’s possessions or bar such tenant’s access to the leasehold w/o resorting to judicial remedies.

Sommer v. Kridel

       D, the lessee, vacated the apartment, which he leased from P, before the end of the lease term.  D asked P for leniency and to terminate the lease.  P did not attempt to re-let the apt. until months later despite having an offer a few months after D’s request.

       A LL has a duty to mitigate damages when he seeks to recover rents due from a defaulting tenant.

Reste v. Cooper

       D leased commercial office space from P’s predecessor.  The property kept leaking so the D stopped paying rent and vacated.  P sues D for back rent.  Court rules for D.

       When a LL causes a substantial interference w/ the enjoyment and use of the leased premises, the tenant may claim constructive eviction.

Hilder v. St. Peter

       P leased a residential premise that had serious deficiencies from D.

       An implied warranty of habitability exists in residential leases.

Hickey v. Green

       D entered into an oral contract to sell a house to P.  She refused to sell to P, though she knew he had already sold his house, b/c she got a better offer.  Green argued that the K was unenforceable based on the Statute of Frauds.

       An oral K for the transfer of interest in land may be specifically enforced despite the Statute of Frauds if the party seeking performance changed his position in reasonable reliance on the K and injustice can be avoided only through specific performance.

Lohmeyer v. Bower

       P claiming unmerchantable title, sued for rescission of real estate sales K, which D cross-complained for specific performance.  Court rules for P.

       A party cannot convey good merchantable title if violations of covenants or zoning ordinances exist on the subject property at the time it is to be sold.

Stambovsky v. Ackley

       P contends that he should be entitled to rescind the K of sale and recover his down payment b/c D, the owner of the house did not disclose that the house was haunted.

       Where a condition that has been created by the seller materially impairs the value of the K and is w/in the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care, nondisclosure constitutes a basis for rescission as a matter of equity.

       Latent defects.

Johnson v. Davis

       D failed to disclose to the P certain roof defects prior to conveyance of the D’s house.

       When the seller of a home knows of facts affecting the value of a home that are not observable, the seller is under a duty to disclose.

Lempke v. Dagenais

       P sought to recover from D the cost of rebuilding a garage D had built for the prior owner which P claimed had been built in a substandard manner.

       A subsequent purchaser of property may recover from one performing defective contractor services for the prior owner if the work contained latent defects not apparent at the time of purchase.

Brown v. Lober

       P acquired property under a general warranty deed despite the fact that two-thirds interest in mineral rights had previously been reserved.

       The mere existence of superior title does not constitute a breach of the covenant of quiet enjoyment.

Frimberger v. Anzellotti

       D contends that she did not breach the warranty against encumbrances and did not innocently misrepresent the condition of property purchased by P and subsequently found to be in violation of wetlands statutes.  Court rules for D.


Latent violations of state or municipal land use regulations 1) that do not appear on the land records 2) that are unknown to the seller of the property 3) as to which the agency charged w/ enforcement has taken no official action to compel compliance at the time the deed was executed, and 4) that have not ripened into an interest that can be recorded on the land records do not constitute an encumbrance for the purpose of the deed warranty.

Morgan v. High Penn Oil

       P seek to enjoin D from emitting gas and odors from its refinery and to recover damages for past impairment of the use and enjoyment of their property due to refinery emissions.

       Lawful conduct which is non-negligent may constitute a nuisance if it is intentional and unreasonable under the circumstances.

Estancias v. Schultz

       P sought to enjoin D from operating air conditioning equipment on the property adjoining P’s residence.

       Even though a jury finds facts constituting a nuisance, equities must be balanced in order to determine if an injunction should be granted.

Boomer v. Atlantic

       Trial court refused to issue injunction, which would close down plant but awarded permanent damages instead.

       Although the rule in NY is that a nuisance will be enjoined even when there is a marked disparity shown in economic consequence b/w the effect of the injunction and the effect of the nuisance, an injunction should not be applied if the result is to close down a plant.  Permanent damages may be awarded as an alternative.

Spur v. Webb

       P seeks to enjoin D from running a cattle feedlot near its retirement community after P’s community spread towards D.  Court rules for P, but P has to indemnify D’s move.

       Spreading towards the nuisance does not prohibit granting injunctive relief against the nuisance.

Willard v. 1st Church of Christ

       Original owner sold to P’s predecessor but reserved an easement for D.  P bought the land from P w/o easement.  P sought to quiet title against D.  Court rules for D.

       Gets rid of old C/L rule. A grantor in deeding property to one party can reserve and vest an interest in the same property to a third party.

Holbrook v. Taylor

       D allowed P to use a road across D’s property b/c it was the only access.  D refused P’s use of it later on.  P sues saying they have license by estoppel.  Court rules for P.

       A right to the use of a roadway over the land of another may be established by estoppel.

VanZandt v. Royster

       P found his cellar flooded w/ sewage and discovered for the first time the existence of a sewer drain across his property.  D (Two different parties) refuse to stop using the drain.

       Whether there is an implied easement on certain property will be inferred from the intentions of the parties, and such inference will be drawn from the circumstances under which the conveyance was made.  Parties to a conveyance will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation.

Othen v. Rosier

       P alleges that he had acquired an easement across the land of D after D erected a levee on the land.  Court ruled for D.

       In order to create an easement by necessity, the necessity must have existed @ the time that the estate was created.

Raleigh Ave. v. Atlantis

       D owns land on the NJ shore including a 480 ft wide stretch of upland sands.  D limited public access to the beach by charging a $700 membership fee.  P a neighborhood beach ass’n sought both vertical and horizontal access to the beach under the public trust doctrine.

       Under public trust doctrine, sands upland from the high water mark must be available for use by the general public, subject to a reasonable fee for costs incurred for management services.

Miller v. Lutheran Conf.

       Two brothers built a lake and acquired an easement to the swimming rights as tenants in common.

       The heirs of one cannot independently license this right, b/c the easement is not divisible and must be exercised by the brothers as one stock.

Brown v. Voss

       The court of appeals held that an easement granted for the benefit of one dominant estate could be used for two dominant estates where no increased burden to the estate is shown.

       If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement, unless the servient estate does not overburden it.

Sanborn v. McLean

       P and D trace the titles to their adjoining lots to the proprietor of the subdivision.  Most of the lots had explicit restriction that it could only be used for residences.  P objects to D’s bldg a gas station.  Court rules for P.

       When a common owner creates estates w/ general plan and puts restriction on a portion of the lots, the restriction will apply to all of them.

Neponsit v. EISB

       P developed tract of land for strictly residential community and all the lots have to pay for maintenance fees of the community.  D had bought land from predecessors w/ the covenant. 

       Changes what concerns touching and concerning; because property owners are reaping the benefits of the convenant so any distinction b/w benefit and T & C is one of form.

Nahrstedt v. Lakeside Condos

       A resident of a common interest in CA keeps three cats in condo in violation of developments governing covenants, conditions and restrictions (CC&R).  Homeowners ass’n therefore assessed continuing penalties against her for the violations.

       A recorded use restriction imposed by a common interest development in CA must be enforced uniformly against all residents of the development unless the restriction is unreasonable.

40 W. 67th v. Pullman

       D engaged in a series of acts objectionable to the residential co-op corporation (P) of which D was a member tenant.  The co-op voted to evict him from his apt.

       Under the business judgment rule, courts will defer to the residential cooperative’s vote and findings as competent evidence that the tenant is objectionable and subject to eviction.

Village of Euclid v. Ambler

       Euclid zoned property of Ambler Realty in a manner which materially reduced its potential value.

       A zoning ordinance, as a valid exercise of the police power, will only be declared unconstitutional where its provisions are clearly arbitrary and unreasonable have no substantial relation to the public health, safety, morals, or general welfare.

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