Trespass, nuisance, and adverse possession

Trespass - Right to exclude

o   Trespass doctrine

• if intentionally enters the land of another – not necessarily on bad faith or with subjective intent to trespass – then liability attaches.

• D acts intentionally to enter land if D voluntarily enters the land; mistaken entry on to private property is still trespass.

• Privileges such as consent may apply, but may be revoked or constrained.

Exception to trespass

o   State v Shack: Owner property rights and title cannot include dominion over the destiny of persons permitted to come on to the property.

• The owner’s property rights and title do not:

  • supersede the fundamental rights of those the owner employs on the property

  • include dominion over persons on their property

• Therefore trespass/right to exclude cannot be used to deny necessary access to afford those persons their rights.

• an owner’s right in property is not absolute.

• Nuisance laws are another example - cannot do whatever you please on your property without limitation bc of the effects your property may have on others.

Damages for trespass

• Where trespass is intentional, punitive damages can be supported by nominal damages.

• This occurs mostly bc the damage is not inflicted merely to the land or deprivation, but to the affront to the rights of the property owner, and in many cases after injunctive relief has passed.

• This doctrine is not unlimited and should be considerate of the facts of the case - think also of market solutions (how much to cross your land? If you won’t sell me the right, why should I pay you the full punitive damages?)

Private Nuisance (Right to Use)

• 1.) intentional

  • mindset not considered – can be innocuous

  • conduct for which the actor knows the result will occur or is substantially certain to occur.

• 2.) nontrespassory, (not physical entry to land)

• 3.) unreasonable

  • Majority: the gravity of the harm outweighs the utility of the actor’s conduct.

  • Minority: substantial harm.

• 4.) substantial interference: real and appreciable invasion of P’s interests - not just annoyance or minor inconvenience.

• 5.) interfere with use and enjoyment (ex: damage or injury) to occupants or P’s property

• Prah v Maretti: the evolution of what constituted substantial interference and unreasonable harm changed over time - the sunshine on the impacted property had become something that could constitute substantial interference and thus a private nuisance.

Spite Fences

• P need only prove that malice is the motive for building the obstruction (D fails on rebut) – no need to prove annoyance.

• malice: demonstrated through:

  • actions of animosity in the record AND

  • if other reasons for taking the action in question (i.e., some legit purpose or necessity) are not credible.

• Tranfield v Arcuni: the spite fence was evidenced as malice by the conduct of the D AND bc the fence was ridiculously tall for the property/nominal purposes.

Unreasonable use tests for private nuisance

• Approach 1: substantial harm to P’s enjoyment of property.

• Approach 2: balancing the harm vs utility - unreasonable if harm>utility

  • Gravity of harm: extent of harm

    • extent and character of harm

    • context/suitability of harm to the neighborhood

    • burden on impacted party in dealing with the harm.

  • Utility of harm:

    • social value attached by the law to the primary purpose

    • suitability to the hood

    • impracticability of preventing the harm/invasion.

• Anticipatory nuisance: allowed in some states to head off problems at the pass and encourage settlement. (high bar for Ps though)

Remedies for nuisance

• injunctions in private nuisance: where the harm from nuisance is perpetual, injunction should be given as remedy.

• Recovery from nuisance: where a nuisance is unabatable such that harm is permanent, there should be only one recovery. Injunction or damages?

• Permanent damages: permanent damages should be used when the loss recoverable to Ps is small relative to the cost of removing the nuisance.

• Boomer v Atlantic Cement:

  • Case for permanent injunction on the plant: plant owners had ample opportunity to settle before, damages will not include future personal injury/compensatory damages, NO consideration for environmental harms.

  • Case for permanent damages: lowest social cost option, least harm on regional economy, future is unknowable. Why go to permanent remedy?

• Thomsen v Greve: get an injunction on the wood stove while Boomer did not on the asphalt plant bc the scope of Boomer made that harder to award whereas simply enjoining one party from carelessly burning wood was easy.

Public Policy vs Personhood Interests (Right to Destroy)

• Public policy is appropriate as a guiding principle IF:

  • the application of public policy on the facts is plainly right to be supported by the general will AND

  • Where there are no guiding statutes or common law to supersede the public policy/general will. (Eyermann)

• The collective will can be demonstrated by the collective interests putatively affected by the will or personhood intention of a right holder.

• Eyerman: the balancing of the loss of property value and “neighborhood character” could be enough to counterbalance the testator’s desire that the house be destroyed and different housing be put up instead.

• Eyerman testator offers no reason or benefits to support the destruction - so nothing to balance against other than the testator’s desire itself.

Adverse Possession

• Open and notorious: Possession must be visible and obvious so that an owner who made a reasonable inspection would become aware of the adverse claim.

• Continuous: continuous as a reasonable owner’s possession would be.

  • Look out for facts where this is not reasonable in other contexts - example on similar facts to Gurwit where gathering firewood twice a year NOT enough for reasonable, continuous use.

• Exclusive: Possession cannot be shared with the owner or the public in general.

  • May result in split of the land and award of the parts that were exclusive (Utah sheep grazing example, where different claimants used different parts reasonably)

  • Look out for others using the claimed property.

• Actual: physically use as a reasonable owner would given its character, location and nature - or more intensively.

  • Look out for facts where you only get what you actually possessed. (Lutz rule)

• Nonpermissive/hostile:

  • majority neutral: ignores the claimant’s state of mind; occupies the land without the permission of the owner and meets the other adverse possession requirements.

  • Minority 1 good faith: adverse claimant must believe in good faith that he owns the land

  • Minority 2 - bad faith: (v few): claimant must know that he does not own the land and intend to take title from the owner.

  • Claim of right can mean any of these three, as it can be evidenced by the other AP actions, be bad faith knowledge, etc.

• For the statutory period: commonly 10-20 years.

  • Color of title usually shortens the period.

• Disability:

  • mentally ill, imprisoned, minor (generally the categories)

  • Majority rule:

    • Disasbility needs to exist before the occupancy of the AP begins

    • A statutory period fixes how the owner has after the disability is cured to eject/oust the AP

    • No tacking of disability, death ends disability

    • Disability does NOT shorten the time req for AP to vest.

Rationales for adverse possession

• Prevent frivolous claims - Viewed as a statute of limitations for recovering possession of land, it bars lawsuits based on stale, unreliable evidence.

• Correct title defects - absent owner makes risk of vacant title more pronounced - give doctrine to figure out logical, proper title.

• Encourage development - reallocates title from the idle owner to the industrious squatter, thus promoting productive land use.

• Protect personhood - path for ownership for most industrious user

Gurwit, VanValkenburg, Fulkerson, Tioga, Kunto examples of AP

• Gurwit v Kanatzer example:

  • ·         the Gurwits demonstrate hostile bc they posted signs and continually demonstrated intent to possess, occupy, control, and use the land.

    ·         Met the continuous and statutory length requirements by using the land as a reasonable owner would for the mandated period of time – cutting trees, caring for the boundary, etc.

    ·         Open and notorious because passerby could see the activity and the D’s even would call in trespassers.

    Actual because they exercises discrete, reasonable possessive acts appropriate to the land – an exurban wooded lot here.

• Van Valkenburgh v Lutz:

  • Ds lose on appeal bc they had an easement on the property -- gaining the easement showed that they recognized that the property right of the other and defeated nonpermissive/hostile element. They had the access only through the grudging consent of the other, or through recognition that they had rights to a specific access of the parcel.

  • Also, majority mentions that D’s improvements were mostly temporary. D has some evidence but on balance not enough to prevail on AP.

  • Dissent: the recognition of the VanV’s rights by the easement action happened after the SoL had run and AP had vested title in him - so even if he took that easement action, not a transfer of interest bc NOT complying with rules for transfer. So it had no bearing on the claim other than being evidence that the trial ct duly considered.

• Fulkerson v Van Buren: Ambiguity about the claim of right requirement -

  • Majority:

    • finds that there was evidence that until 1990-1991 D did not realize he held the land adversely and then acknowledged the possession of the P.

    • focuses on requirement that the intention to hold adversely must be clear and distinct AND that absent clear demo of facts otherwise, the presumption is that someone is occupying in recognition of the title of the owner.

    • The D lacked the requisite adverse intent to hold the land.

  • dissent cites rule that even mistake can support adverse intent as long as facts show the rights of the owner were not met, and that here the church’s use of the land for several years (met SoL before owner showed up) COULD meet the requirement.

• Tioga Coal v Supermakerts General Corp

  • Courts should avoid objective analysis of state of mind (objective mindset) – guesswork, impossible to discern; promotes use of land; protects personhood bc person who puts in the work should be rewarded for the use of land regardless of mindset/actual owner.

  • Who cares WHO you were trying to disturb, you were by definition disturbing and defeating the title claim of SOME owner.

  • BC the possessor met all requirements of adverse possession and they deprived SOME person of title (objective mindset) adverse possession is established.

Tacking

• Allows for time of one adverse possessor to count towards a succesors time of possession as long as they are in privity and each meet the requirements of adverse possession.

• Requires that succesive occupants be in privity:

  • transferred formally to a successor, such as by a will or deed

• Howard v Kunto:

  • Trial ct had ruled that tacking would not apply where none of the land claimed in privity for AP was contained in the deed being transferred to the claimant.

  • Rule:claims of right (nonpermissive but in good faith) are no less valid for supporting tacking than claims of right over good faith extra land not in the deed. Mistaken deeds, in good faith, can support tacking.

  • Privity: a definition of the reasonable connection between successive occupants to riase claims of right above wrongdoers or trespassers (the WA good faith claim of right rule is intended to discourage trespassers).