Exceptions to Right to Exclude Flashcards
1
Q
Exceptions to Right to Exclude
A
Five main ones:
- necessity
- public accommodations laws
- public policy
- anti-discrimination
- custom
2
Q
Necessity
A
- major common law exception to the right to exclude
- Ploof v. Putnam
- justifies entries onto land + interferences w/ personal property that would otherwise have been trespass
3
Q
Ploof v. Putnam - Facts
A
- Ploofs are sailing on Lake Champlain when sudden + violent storm arises -> to save lives + their ship, Ploofs moored ship to Putnam’s dock -> his servant unmoored it -> Ploofs’ boat gets destroyed + family tossed into lake
4
Q
Ploof v. Putnam - Decision
A
- court held that plaintiffs’ claim of necessity negated trespass liability + they could sue dock owner for trespass -> notion that they have some sort of right to the dock (possibly right to enter, at least right to to have forced used against them
5
Q
Necessity - Situations Encompassed in the Doctrine
A
Commonality: transaction either not possible or not worthwhile
- natural disasters
- fleeing from assailants
- wandering munching animals
- rescue of property
6
Q
Custom
A
- some norms operate outside the law (ex: Chicago snow parking), others treated as law
7
Q
Blackstone’s Set of Requirements for Enforceable Customary Rights
A
- antiquity
- continuity
- peaceable use (free from dispute)
- certainty
- reasonableness
- compulsoriness
- consistency
8
Q
US Interpretations of Blackstone’s Custom Criteria
A
- antiquity (interpreted as longstanding use in US)
- certainty (means judges can find something doesn’t bind outsiders if would require lot of expertise)
- reasonableness (judges have discretion to determine substantive merit of a custom
- compulsoriness (obligatory - treated as binding)
- consistency (not repugnant or inconsistent w/ the law)
9
Q
Customs and Access to Land
A
- in many areas, the law provides for a default license to hunt on unimproved, uncultivated, unenclosed land
- License can be overcome by posting
10
Q
Contemporary US Custom Issues
A
- off-road vehicle use on federal land
- access to beaches
11
Q
Smith v. James
A
- custom case in a Hopi court
basically, there’s a land dispute between family members and they’re arguing for applicability of different sets of customs - court ultimately says should grant a new trial + hearing b/c procedural error - before there can be a trial-like fact-finding on the particular case, should have a hearing w/ witnesses from the village to determine what the custom is
12
Q
Public Policy
A
- owner sovereignty sometimes required to give way to public policy
- most general exception to right to exclude
- means right to exclude always subject to a balancing test in which competing social interests must be weighed
13
Q
State v. Shack - Facts
A
- farmer invoked law of criminal trespass to exclude two aid workers who wanted to consult unsupervised w/ migrant farm workers temporarily living on the farmer’s land
14
Q
State v. Shack - Holding
A
- NJ Supreme Court, noting that property serves human values, held owner’s right to exclude did not go this far - owner could not use law of trespass to isolate the workers
- balanced right to exclude against interests of migrant workers in maintaining contacts w/ the outside world
15
Q
State v. Shack - Categorical vs. Ad Hoc
A
Decision can be read in two ways:
- categorical exception - carving out from the exclusion right a right of access for aid workers seeking to visit migrant workers required to live on a farmer’s land while working there
- case-by-case - court if asked will balance interest of the parties in order to decide whether exclusion or access is more important
