Trespass through AP

Question 1

Elements of Trespass

Answer 1

i) Intentional (voluntary)
ii) Entry to (any person or object)
iii) Land of another (air and ground)
iv) Unprivileged

Question 2

Privilege element in Trespass

Answer 2

i) Done with consent of owners (works more like spectrum)

Uston rule: public gets reasonable access to businesses that hold themselves open (minority)

ii) Justified by necessity (rare; urgent threat)
iii) Public Policy (Shack)

Question 3

Scope of CRA 1964 and CRA 1866

Answer 3

CRA 1964: Equal access to enumerated places of public accomodation. No discrimination based on race, color, religion, national origin

Maj: exhaustive list / Min: illustrative list

CRA 1866: Right to convey property and enter into & enforce contracts. No discrimination based on race

Courts interpret narrowly (making it difficult to buy something is ok)

Question 4

Public access to private clubs

Answer 4

Depends on

i) Selectivity (sufficiently narrow; not based on factors like race)
ii) Limited size (Costco is not a “private club”)

Question 5

Treatment of Public Trust Doctrine by Land

Answer 5

Navigable water: Public (interstate commerce)

Wet Sand: Depends by state (no/yes private ownership, with no access/beach/fishing&navigation

Dry Sand: Can be owned except Hawaii, access depends by state, reasonableness or customs

Question 6

Factors for allowing public access to private dry sand

Answer 6

i) Custom (Oregon)
ii) Reasonable access to wet sand (Matthews)

Question 7

Elements of Nuisance

Answer 7

i) Unreasonable (cost avoider, suitable activity, hypersensitive use, seniority)
ii) Substantial
iii) Harm to the use and enjoyment of land (not physical harm i.e. exploding TV)

Question 8

3 treatments of Diffused Water

Answer 8

i) Common enemy rule (pro-D)
ii) Reasonable use (unreasonable and substantial harm; utility, foreseeability and motive also considered)
iii) Natural flow (SL; pro-P)

Question 9

Access Light and AIr

Answer 9

You can always block; no trespass/nuisance

Maj: Right to build over L&A (some states allow easement)

Min: Doctrine of ancient lights

Question 10

Lateral Support

Answer 10

Support from the sides:

Damage to neighbor’s land is SL

Damage to structure is negligence standard

Failure to maintain retaining wall is SL

Question 11

Plaintiff strategy for Lateral Support damage

Answer 11

1) Prove that land in its natural state could’ve supported my house
2) Prove negligence (harm was foreseeable, but was reckless in using this method, not giving notice, etc)
3) Look for applicable statute
4) Argue that CL should be changed (policy)

Question 12

Subjacent Support

Answer 12

Providing support for depth below

Water that belongs under land belows to everyone

Maj: SL, negligence (pump reasonably)

Min: absolute freedome to pump water without liability

Question 13

Adverse Posession

Answer 13

A-ECHO

Actual: treat and use it like an owner (improvement is best)

Exclusive: didn’t invite real owner; any portion you let public use is not subject to AP

Continuous: use over SoL; tacking permissible as long as there’s privity

Hostile: Objective (maj); is there permission or not (mental state irrelevant)? / Subjective (min); good/bad faith jurisdiction

Open and Notorious: puts real owner on actual/constructive/inquiry notice. Registering deeds or fencing is best

Question 14

Color of Title

Answer 14

Faulty deeds will give you AP to the whole plot

Question 15

Owner’s remedies against AP

Answer 15

1) Give them permission (defeats hostile requirement); turns to easement
2) Bring a trespass suit before SoL

Don’t: i) put out no trespass sign (proves hostile requirement)

ii) ask them to leave (become trespassers if they refuse)