Water/Air/Subsurface Rights
Why does the Riparian system only allow reasonable uses of water, while the other approaches are limited to first person or by government permits?
What is:
Because this system is most prevalent in the east. Water is deemed plentiful in the east, rather than the west, which is where you will see the other approaches.
What are the bundle of sticks?
What you can do with your rights to property (not what you can do with your property). You have a right to transfer, use, destroy, and exclude.
Why do we have Adverse Possession?
What is:
To prevent frivolous claims, correct defective titles, encourage development (lets someone who wants it, use it), and protecting personhood (protection of land).
What do we have IP rights? And why wouldn't we want to overprotect or underprotect IP rights? Give both sides.
What is...
To promote creativity and innovation. People will create more when they know their right to it is protected. (or similar)
We wouldn't want to under protect because if people who created things knew it would not be protected, it wouldn't not be a benefit to them. Everyone would try to make something similar, so why make anything at all? (or something similar)
We wouldn't want to overprotect it because people would scared to create or invent at the risk of infringing on someone else's rights. Also, if everything was strictly protected, people would raise the price because they know no one couldn't get it anywhere else. This would create monopolies on certain things. (or similar)
Marilyn wills her summer house to her son Brian "for life and on Brian's death to Carla (his daughter)." Brian then conveys his interest to Danielle. What does Carla own?
(a) A remainder interest.
(b) A life tenancy.
(c) An estate pur autre vie.
(d) Nothing. Brian has defeated her interest by passing it to Danielle.
What is...
A. remainder interest
The reasonable use approach for subsurface water is only applicable when:
What is:
The water wither passes through your land or is on the boundary of it.
What is the right to Destroy?
What is:
Generally, you have a right to destroy your own property, but works different when you're dead --> you must have a reason to destroy!
Elements of AP?
What is...
- open and notorious
- adverse or hostile
- continuous
- for statutory period (usually 20 years)
- actual
- exclusive
What do each of the most common IP protect?
What is...
Copyright protects original works or authorship, creative works, grants the right to exclude, and prevents others from reproducing, distributing copies, creating derivative works, etc.
Trademark protects words, symbols, and names used in commerce.
Patents protect new inventions, grants the right to exclude, prevents others from making, using, or selling the invention.
A sister wanted to convey her land to her brother in fee simple, with ownership of the land to automatically revert to her if the brother was ever arrested for any crime.
Which of the following conveyances BEST creates the interests that the sister intends?
(a) “To [the brother] in fee simple, but if he is ever arrested, the grantor reserves the right to re-enter and re-take the property.”
(b) “To [the brother] in fee simple, so long as he is not arrested for any crime.”
(c) “To [the brother] in fee simple until he is arrested for any crime, whereupon the grantor shall have the right to re-enter and re-take the property.”
(d) “To [the brother] in fee simple, but if he is ever arrested, the grantor reserves the right to exercise a reversion.”
What is...
B. “To [the brother] in fee simple, so long as he is not arrested for any crime.”
Which approaches are only important in the west?
What is:
Prior Appropriation System, Government Permit Systems, Correlative Right
How do you enforce your right to use? How does it work?
What is:
Through private nuisance. If the structure was built for the sole purpose of annoying neighbors, it could be a nuisance (split fence statutes). The nuisance must be intentional, non-trespassory, unreasonable, substantial interference, with P's right to use and enjoy their land. This doctrine protects the landowner's interest build on their property and their access to sunlight as well.
What is tacking and what is usually seen in tacking?
Tacking is when successive occupants may add periods of occupation together to satisfy the statutory time element of AP. It is usually seen where there is a privity (mutual interest and deed exchanged). So successive trespassers are not subject to tacking.
Elements of each IP
What is...
Copyright: i) originality (independently created, not copied), ii) must be a work of authorship, ii) fixation (must be written, recorded, or otherwise embodied in physical form and permanent enough)
Patent: i) Utility (must provide some "useful" benefit to humans), ii) Novelty (must be new), iii) non-obviousness (obvious changes or improvements to already issued patents), iv. Enablement (described in enough detail that anyone with expertise in the field could make it)
Trademark: i) Distinctiveness (must be distinguishable from other marks), ii) Non-functionality (must only be one mark, can't be vital to the purpose of the article), iii) First use in trade (must be first to use use within geographic area and must actually USE the mark, not just adopt it)
O → to A for life, then to B and her heirs, but if B fails to survive A, then to C and her heirs.
State the future interests:
A. B has a contingent remainder in fee simple, and C has a shifting executory interest in fee simple.
B. B has a contingent remainder in fee simple, C has an alternative contingent remainder in fee simple, and O has a reversion.
C. B has a vested remainder in fee simple subject to divestment, and C has a shifting executory interest in fee simple.
D. B has a vested remainder in fee simple subject to an executory limitation, and C has a shifting executory interest in fee simple.
What is...
C. B has a vested remainder in fee simple subject to divestment, and C has a shifting executory interest in fee simple.
What do the air rights and sub-surface rights?
What is:
They both require the action to be reasonably forseeable.
What is the violation of exclusion and a possible exception?
Intentional trespass (unless necessity)
Issues with AP?
What is...
Disability- tolling the SOL. When someone is disabled, they cannot protect their land from adverse possessors. So, to prevent them being taken advantage of, the clock for AP does not start until the act of disability (prison, incmopetncy, military leave) is finished. This only applies if the disability was in place before the AP took place.
Identity of the Parties- APs can only sue for a quiet title from the person who is currently possession. So if they had a life estate, then you'd only AP the life estate. You can only give what you have.
Cannot AP against gov't or co-tenants (bc it would not be hostile unless block the co-tenant against their property).
How to infringe on EACH of the IP and possible defenses?
What is...
Copyright: i) P had a valid copyright ii) D actually copied the work iii) D's copied work is substantially similar to P's. - Fair Use Doctrine (prevents claim for small infringements for teaching, news reporting, etc.)
Patent: Literal Infringement (includes every element of at least one claim for the patented product) and Doctrine of Equivalents (substantial equivalent to the patented device or method). If the accused product is missing just ONE, not infringement)
Trademark: i) P holds a valid trademark with priority over D's ii) D used the mark in connection with goods or services in a manner likely to: cause confusion, to deceive customers.
O → to A for life, then to A’s children who survive A and their heirs, but if A dies without being survived by children, then to C’s children and their heirs.
Assume A has a child X, C has a child Z, and both A and C are still alive. State the future interests:
A. X has a vested remainder in fee simple absolute.
B. X has a vested remainder, subject to open, in fee simple.
C. X has a contingent remainder, subject to open, in fee simple absolute, Y has an alternative contingent remainder, subject to open, in fee simple absolute, and O has a reversion in fee simple.
D. A’s children who survive A have a contingent remainder in fee simple, C’s children have an alternative contingent remainder in fee simple, and O has a reversion in fee simple.
D. A’s children who survive A have a contingent remainder in fee simple, C’s children have an alternative contingent remainder in fee simple, and O has a reversion in fee simple.
All the systems for water rights right now, GO!
What is:
Ground water rights: Reasonable Use (groundwater can used for reasonable use on overlying land), Rule of Capture (1st person to control it, gets it- only in Texas), Government Permit System (gov't issues permit to use water source (out west)), and Correlative Rights (what you have is what you get- proportionate to how much land you have- out west)
Surface Water rights: Riparian system (reasonable amount surface that crosses bounds on your property or on boundary- in the east), Prior Appropriation (whoever uses it first, gets it and it does not have to be reasonable, subsequent users cannot infringe on your share- in the west), and Gov't Permit System (same as ground water, in the west)
Why do you think the right to transfer is generally okay?
Courts do not want to stifle business transactions, or the economy at large. (something alike)
What are the three doctrines of intent for the adverse and hostile element?
What is...
1) objective (majority): only the possessor's actions are used to determine hostility
2) subjective good faith: possessor's claim is only hostile id they have good faith, but mistake, belief that they actually own the land that is subject of the claim
3) Subjective intent to claim- possessor's claim is only hostile is possessor subjectively intends to claim the land as her own, without regard to who owns it. (No hostility if there's no intent to claim the land that is not theirs)
What are the principles connected to Trademark?
What is...
- Relative Strength:Strongest- arbitrary or fanciful marks, indicate nothing about the good or service they associate with (less likely to get confused)
Moderate: Suggestive marks, requires observer to use some imagination to discern what mark is associated
Weakest: descriptive marks, association is obvious (generally protected unless their use in trade has created a secondary meaning within society that associates them with a certain product)
- Trade Dress: a protectable trademark that is the total image of thee product- must be distinctive by reason of shape, color, texture, or other visible or otherwise palpable feature of the product or its packaging and creates an association with a brand or product
- Dilution: D's use diminished the mark's capacity to identify and distinguish P's product (causing loss of value)- three exceptions: comparative advantage, non-commercial, and news reporting/commentary
A testator created a will devising a piece of his property to his brother for life, and then to his sister, as long as all of his sister’s children graduated from college. At the time the testator created the will, his sister had two children, both of whom were in college. The testator died five years later, by which point both of his sister’s children had graduated from college.
Does the devise in the testator’s will violate the rule against perpetuities?
A. No, because at the time of the testator’s death, both of his sister’s children had already graduated from college.
B. No, because the sister’s children can serve as the measuring lives in being, and the limiting condition that they graduate from college must occur or not occur within their lifetimes.
C. Yes, because at the time the will was created, it was possible that one of the sister’s children would not graduate college within 21 years.
D. Yes, because at the time of the testator’s death, it was possible that one of the sister’s children would not graduate college within 21 years.
D. Yes, because at the time of the testator’s death, it was possible that one of the sister’s children would not graduate college within 21 years.