*Sovereign Restrictions on the Use of Land (Ch. 2): Restrictions on Right to Exclude

Question 1

Key Property Rights

Answer 1

• Right to exclude
• Right to use/enjoy
• Right of alienation (transfer the property)

Question 2

• Kaiser Aetna v. United States – S. Ct. (1979) “Kuapa Pond”

Answer 2

o F: Pond privately held by Bishop estate, leases to P who develops the marina and connects to Pacific Ocean – wants to exclude general public from sailing their boats into the marina
o H: Public cannot be excluded, but gov’t must pay just compensation
 By opening the bay to the ocean, it becomes “navigable waters” and thus the public cannot be excluded
• Commerce Clause power over navigable waterways [navigable waterways servitude]
 Navigable waterways are not blanket exemption from Takings Clause
 Test: is the water suitable for commerce (doesn’t matter if it is tidal/nontidal)

Question 3

• Oregon ex rel. Thornton v. Hay – OR (1969) “Oceanfront Property”

Answer 3

o I: Can state prevent defendant landowners from enclosing oceanfront dry sand area with a fence?
o H: Yes (for P)
 Rejects use of public prescriptive easement, instead uses Custom: Public has been walking on the dry sand area continuously; Elements:
• Long and general (“ancient”)
• Uninterrupted
• Peaceable and free from dispute
• Reasonable use
• Certainty (visible bounds of public access)
• Obligatory
• Not repugnant with other law or custom
 Right to exclude trumped by public right to use dry sand area (sovereign owns wet sand area)

Question 4

• Pruneyard Shopping Center v. Robins – S. Ct. (1980)

Answer 4

o F: P’s were distributing petitions regarding UN resolution at D’s shopping center; D asked P to leave; P leaves and files suit, saying that this invades First Amendment rights
o H: For P
 D argues for 14th amendment property right (right to exclude) – Ct. rejects
 No adverse impact on D’s business here – “nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property”
 Does not amount to a Taking
• Not every injury to a property (here, losing the right to exclude) amounts to a taking
 CA constitution applied add’l rights
o 1st and 14th amendment generally only apply against the actions of government entities; but see Marsh v. Alabama (company town free speech)

Question 5

• Geller v. Brownstone Condominium Association – IL (1980) “Airspace”

Answer 5

o F: Exterior wall of D’s building sits on property line w/ P; no damage occurred, but P complains that scaffolding on D’s building will encroach and interfere w/ use of light and air
o H: For D; no actual intrusion thus the elements of trespass are not satisfied
 Causby – property owner owns the airspace above the ground as he could use/occupy it in connection with use of the land (reasonable use; e.g. you don’t own 150ft above your two story house where a plane is flying)
• Congress, by statute, declared navigable airspace above the country to be in public domain
• Prescriptive easement = taking (must be compensated); more infra Ch. 8
• Subsurface right is unrestricted – own everything below the surface down to the center of the earth