The Bundle of Sticks

Question 1

What are the primary rights in the bundle of sticks?

Answer 1

Right to Exclude; Right to Use and Enjoy; Right to Dispose; Right to Bequeath; Right to Have / Destroy

Question 2

What are the secondary rights in the bundle of sticks?

Answer 2

Right to Lease; Right to Manage; Right to Use as Collateral; Right to Receive the Profits (fallen tree logger license)

Question 3

Right to exclude consists of

Answer 3

• “Keep Out” doctrine
• The right to keep people and things off your land. Anyone who impermissibly goes on or leaves a thing on a property owner’s land without their permission is a trespasser.
• Perhaps the most historically important rule of property common law
• anecdote of the storm windows. his neighbor left them on his land. he could’ve sued. but didn’t. he had the right. but consider the relationship.

Question 4

Jacque v. Steenberg Homes Inc.

Answer 4

finding a trespass over someone’s property to deliver a mobile home to be actionable

social context: analysis of the extent to which the farmers ought to have been more accommodating and less rigid about this right to exclude rule

Question 5

New Jersey v. Shack holding

Answer 5

Journalists are not privileged parties

Question 6

Right to use and enjoy consists of

Answer 6

You can use your property pretty much how you want with some restrictions.
- Can’t sell alcohol, etc… and conservation efforts may bar one’s right to use and enjoy
- Water is a huge exception to this, how water is used.

Question 7

Riparian Rights? What are they associated with?

Answer 7

those where water runs through and alongside the land. The right to use and enjoy

Question 8

Usufructuary Rights

Answer 8

You can use the the water on the riparian lands… but you cannot use it up

Question 9

Riparian proprietors

Answer 9

have rights to the water, but people who live downstream or also along the water have rights, too. And these can

Question 10

What is the bundle of sticks?

Answer 10

A metaphor for the rights associated with property ownership.

Question 11

What limits the rights of riparian proprietors? How?

Answer 11

Usufructuary rights act as limits on the rights of riparian proprietors by specifying that riparian proprietors can use water on their land but cannot use all the water.

Question 12

How will courts decide whether a riparian proprietors usufructuary rights have been violated?

Answer 12

This is a question that will be sent to the jury to determine whether what was taken was a “reasonable” amount.

Question 13

What is a private nuisance? eg?

Answer 13

Something is done to harm a specific party that infringes on their ability to use and enjoy their property. An example would be a neighbor that parties all night and the loud music and other noises keep you up.

Question 14

What is a public nuisance? eg?

Answer 14

Something is done to harm a larger portion of the community. Examples include be stock yards, smelting operations, brothels, gambling parlors, etc.

Question 15

What type of plaintiff will bring a private nuisance action? Public nuisance action?

Answer 15

A plaintiff in a private nuisance action is a private citizen with a particularized nuisance. Whereas in a public nuisance action the plaintiff is a city or municipality (or an agent of one of those larger groups) bringing a claim against a larger nuisance that effects communities and cities at large.

Question 16

What is the difference between a nuisance per se and a nuisance accidens? Give examples

Answer 16

Nuisance per se – An intentional nuisance. An example is burning brush in your backyard.

Nuisance accidens – An unintentional or accidental nuisance. An example would be a crowd gathering outside of a soup kitchen and panhandling.

Question 17

A defendant accused of creating a nuisance can raise a __________ defense.

Answer 17

reasonable use

Question 18

What is the reasonable use defense and what does the court look to when determining whether an act denies a property owner their right to use and enjoy their property? eg?

Answer 18

The reasonable use defense is based on an objective standard and what the average person believes to be a reasonable use of property under the surrounding circumstances.

eg, in Bove v. Donner-Hanna Coke Corp, the steel factory was in an industrial zone so it was reasonable to have a coke plant in that area and the plaintiff should have known that living in an area zoned for industry could cause some discomfort.

Question 19

What external influences may weigh on the court when deciding a nuisance case?

Answer 19

Politics and power! A court may not want to rule that a factory is a public nuisance if it provides jobs and economic benefits. Consider who may have the most power in the community.

Question 20

Jones v. Mayer holding? How can Congress prevent private parties from racial discrimination when disposing of their property?

Answer 20

finding that 42 U.S.C. § 1982 (Property Rights of Citizens) prohibited private parties from refusing to sell their property to a couple based on race. The Court rejected the argument that the Act only applied to governmental discrimination and reasoned that Congress drafted the Act with the intent to prevent private discrimination. The Court further held that Congress had the power to prohibit private housing discrimination via the enforcement clause of the 13th Amendment.

Question 21

Historically speaking, what is the most important stick in the bundle (according to Professor Papke)?

Answer 21

Historically – According to Lord Blackstone, the right to exclude was the most important right in the bundle. The right to exclude was the most important right to the English gentry because only a small percentage of the population owned property.

Question 22

What does Professor Papke think is the most important stick in present day? Why?

Answer 22

Present Day – The right to dispose because property has been folded into the market economy.

Question 23

Correlative rights?

Answer 23

fair share of oil and gas pools beneath the surface

Question 24

What are the limits on the Right to Exclude

Answer 24

Necessity; Temporary/Limited Purpose; and Privileged Parties

Question 25

Necessity

Answer 25

An exception to the Right to Exclude. Trespasser had no other choice but to trespass. eg, Docking your boat to stay safe from a storm (Ploof v. Putnam)

Question 26

Temporary / Limited Purpose

Answer 26

An exception to the Right to Exclude. Accidentally throwing frisbee over fence and going to retrieve it

Question 27

Privileged Parties

Answer 27

An exception to the Right to Exclude. The supposed trespasser is there for a public purpose. However, journalists are not privileged parties per State v. Shack. eg, A first responder (police officer, EMT, fire fighter).

Question 28

What are the limitations on the Right to Use and Enjoy?

Answer 28

Usufructuary Rights, Nuisance law, and other things like needing a license to sell alcohol.

Question 29

What are the limitations on the Right to Dispose?

Answer 29

Discrimination: a property owner attempting to dispose of their land may not discriminate against potential buyers.

eg, statutes prohibiting housing discrimination (FHA and Property Rights of Citizens (42 U.S.C. § 1983))

Question 30

Name a case where usufructuary rights were infringed.

Answer 30

Evans v. Merriweather finding that using up all the water from a small river that runs across your property infringed on the right to use and enjoy.