Burnet got a deed to the property in 1803. Burnet effectively bought the Brooklyn bridge: Williams owned it (as of 1798), and Symmes could not be selling it. Burnet knew of this, according to Williams.
Burnet is a judge, incidentally. The witness is his clerk.
Anyway, Williams takes a bucket of gravel here and there, and sometimes allows someone else to take some gravel. Unauthorized gravel removers get kicked out. The Supreme Court is probably hearing this case because at that time there was still a Federal common law (prior to Eerie Railroad. Nowadays the USSC wouldn't take this sort of case (i.e., use their discretionary hearing power to rule on law in a state they don't know well).
The adverse possessor can "tack" times of possession together (i.e., if the true ownership changes hands). An adverse possessor can sell the possession as well (i.e., my 20-year occupation of this land). If the owner is incapacitated, the period of adverse possession is staid.
So the court says that Burnet owns the property. Via adverse possession (21 years, when the tacking is included). He paid taxes since 1810 (about 6-7 years after he started using the land). He had visible and notorious acts of ownership (this is a redundancy: "visible and notorious" means, literally "adverse possession. As do continued, continuous, without interruption, unbroken. Also actual, obvious. And open, public, rigid, occupied. And exclusive and adverse. Any time you see those, it's pretty much a statement that adverse possession is at work. "Under a good-faith claim of title" is the same. So is "hostile." When you see four of these 16 words, it means the adverse possessor just won their case.). So that's not really a reason-- it's just the conclusion.
The facts are pretty nebulous here. The USSC says they don't overturn things on the facts unless there is something wrong with them. So Burnet really won at the jury level. Note that the jury is not finding only facts: they are deciding the meaning of "visible and notorious," in this context. So when we say that juries only decide the facts, there may be a lot more at work.
So was this "continuous?" He pretty much isn't continuously removing gravel, but we say that his possession was continuous. So WHY would we want him to win? Because he was using the land? If I don't use my pen all day, does someone else get to claim it? What does Jacques say about this: ownership is sacred? Ewing can argue that if he loses, people will be less likely to buy property, because their ownership can just evaporate.
Morse, on the other hand speaks for Burnet: you can lose your ownership if you don't take steps to protect your property by recording. Also, we want land used: that is its value, and we want to encourage it to be used (farmed, built on, etc.). This doesn't happen easily: the owner has to be monumentally careless (20 years!) and the adverse possessor has to be very diligent. But we'll support that.
Does this confuse legal certainty? Used to be that if the registrar didn't say you owned something, you didn't own it. If we're trying to decide whether to loan Ewing money, you'd go look up the paper title to see if someone owns it. But in real life, the records at the registrar of deeds can be ambiguous (validity of notary, name change, etc.). Adverse possession clears up this ambiguity: it's the most perfect title that there is-- there is nothing confusing about it.
Argument for Ewing: this is use? Taking sand every so often? Also, certainty: this undermines the registrar of deeds. It means that in addition to a title search, you need to actually go to the property and figure out if there's an adverse possessor there. Also, we don't like usurpers.
An adverse possession dilemma: what is the mental state required? Good faith? Hostile? Both get said. What about whether the true owner knows? Well, that's not enough to put creditors or purchasers on notice: how are they supposed to know this is going on?
Say you notice someone trespassing-- how can you defend? Make it consensual by writing them a letter. If you say "don't do this," then it becomes adverse. If you say "go ahead and take my gravel until such time as I object," you have a record of the trespassor being a licensee.
A restrictive covenant permits only a very specific set of standards (NM ones), not Federal ones.
A conflict between free contract (and precision) and the rational use of land.
McDonald went to the Hunters and proposed a mutually pleasant solution. The Hunters declined, and McDonald got mad, and decided to tighten up the road even further.
Partly this case is here to show us what an easment is: the right to use the property of another person. A recordable interest that runs with the land. The right to use the easement is the dominant estate; the person who owns the property is the servient. An express easement is just what you think: explicit. An implied easement is one such as the right to not have landlocked property (if I sell you my back lot, I am implied to have granted you an easement along with the sale of the property). An easement of necessity is granted by the court to make landlocked property accessible. [it doesn't do anybody any good to have a parcel of land that nobody can get to]. A prescriptive easement is one that's gained over a 20 year period of use... so if Burnet had just crossed the property for 20 years, he'd have an easement. In WI, just walking across property won't get you an easement-- it needs to be something a little more formal. Still, you can get an easement by adverse possession.
The court says the degree of inteference by the servient owner is important. The speed bumps alone, for example, might not be actionable. The nuisance fence, however, does. The test, says the court, is whether the interference is unreasonable. Strangely, though, they base their conclusions on cases where interference has been IN the easement, whereas McDonald has built right on the edge.
Nuisance law basically says you can't use your own property in a way that interferes with your neighbors' rights. So the remedy is to remove the speed bumps and move the fence 2' back.
So, Hunter should win, to the degree that we want land used: this interferes strongly with his ability to use his land. There's also an anti-self-help argument. We don't want people taking matters into their own hands (see Jacques, e.g.), and we want people to settle matters by the proper procedure. It's especially obnoxious in the present case, because the McDonalds are basically taking out their anger at the prior owners on the Hunters.
Hunter should also win because these measures block emergency access to the property, and that's not desirable. We also should use the Rule of Reason (see Cox): don't just read the letter of the easement, but take into account what the easement was for-- granting access- and interpret its terms with that in mind. And finally, ownership isn't all it's cracked up to be: Jacques is compromised by Morse, Bishop, and Stadium Apartments. The ownership interest competes with a variety of other interests.
How about the McDonalds? Well, Jacues, for one thing: they own the land. They have to accomodate the terms of the easement, but beyond that, it's their land, and they can do what they want with it. Why should a 10' easement change to a 14' easemement? Why should they lose land? We don't force people off their land, and we don't force people to share their land if they don't want to. That's what Jacques stands for. (in this sense, incidentally, Jacques and Hunter are incompatible, and we can say that Jacques overrules Hunter, even though the court is generally more Hunter-like).
Precision, as well. What is the law of easements? When I sell you a 10' easement, that should be what I sell. 10 shouldn't suddenly mean 14 (see Avakian for an example). We don't want to base awards just on whether or not the servient holder is nice-- we need certainty in the law, and we are sacrificing it here. Similarly (as in Bishop and Aragon), free contract is a big deal. So what does the contract say? 10 feet. Well, so much for that-- the court is interposing its view of what the easement should be in the face of what the contract says.
Minor points: it was not the McDonalds who started this. You need to be able to have a way of saying something to your neighbor when they do something obnoxious. They were attempting to stop bad behavior. Of course, the initial bad neighbors are gone, but still McDonald needs to be able to bargain to protect his land. Also, if speed bumps are so hard on police cruisers, why do we have so many of them on public streets? This is a private easement, after all. Finally, Hunter knew about most of these obstacles at the time of purchase. Presumably, Hunter, seeing all this, would offer less for the property. He knew the deal when he bought the property, and this is already reflected in the price that he paid: why should he get the benefit of that market loss (which falls where it should, on the seller's shoulders), and then also get a court-granted bonanza? If the agreement was foolish, it's not the McDonalds' fault.
Also, note the meets and bounds language: describing the property is complex.
And lastly, the court reaches a compromise result. That's sort of interesting. They don't want to hold matters to the letter of the law, but they will award some damages. The decision is basically: let's get along with one another. A Solomonic strategy.
Land law can be very persnickety-- right down to very minute details.
A typical subdivision negative easement, but it's from back in the days when residential racial segregation was routine. This is a caucasian subdivision, and the owners have agreed that they'll only sell to other caucasians. There are a lot of properties with these covenants in them, but they are unenforceable because of this case. They stay with the deeds, but they are symbolic only.
So here, an owner wants to sell to an African-American buyer. Can the neighbors enforce the contract against that sale? Restrictive covenants generally run with the land (technically they can be personal, but that is rare). They are both cumbersome and effective: hands-on private efficient zoning. Way cheaper and more effective than public zoning. So the basic idea (not the racial part) is good.
But here, of course, we do have the racial stuff. And the date on the case (1948) is part of what makes this significant: the USSC struck down public zoning racial discriminatory housing zoning patterns way back in 1917. But it was still tolerated (stuff like Plessy v. Ferguson, which was 1895, but still in force). This, however is way before Brown (1954). WW II changed attitudes somewhat: both because of integration in the service (Truman desegregated the Army in 1945-46), and also because wartime econonomy brought lots of African-Americans North. The court is basically sending the message that it doesn't like race discrimination, and it will look for ways to frustrate it. That is probably the key holding of the case: we don't like discrimination. Of course, that's never actually said.
What they are dealing with is a private contract, not a state (as 14a addresses), but they say they're asking the state to enforce the contract. So you can't have judicial enforcement of private contracts without it becoming a public matter. Interesting: if private contracts become public when they're enforced, then private behavior all becomes public when it's enforced, because that's how we're supposed to enforce things. As a result, the court has backed away from this ruling and never cites it. Now, of course, they don't need this slight of hand to address private discrimination. We have statutes that prohibit this racist nonsense. So we don't have to mention Shelley.
But the case is important because it's the first major sign that the court was going to be attacking segregation.
This is another kind of negative easement: artists' moral rights.
This notion (that an artist retains rights to a piece after the sale) is in conflict with some basic notion of property rights. But artist groups have gotten a statute passed in CA, giving moral rights. NY, also. And the Federal Government (which pertains in our case here). It says that artists who are independant contractors have a moral right that owners of their work can't destroy it without their say-so.
Basically, this boils down to the artist asking for some money in order to allow the destruction of the work.
So once again, we see a court confronted with a statute they don't necessarily like. They resort to tactics not unlike the Zambian cow-theft cases. The court pays lip service to the statute, but then finds a way to call the artists employees (i.e., not independant contractors).
Bertha Hass wants to leave her property to Herbert. There was a will leaving it to him, but someone persuaded her to start over. She hires a real estate broker, not a lawyer. We lawyers do not like it when others pretend to know the laws. Maybe that's why the court says "scrivener."
The scrivener screws up: wrong idea (a will would have been better than joint tenancy), and then the wrong form. A warranty deed warrants that the seller does have title to the property. "Quiet possession," incidentally, means "without legal interference." So if we warrant "quiet and peaceful possession," we assert that a search of the title will uncover no disputes.
The person that searches title-- usually an employee of the title insurer-- will summarize the history, and produce a summary, called an "abstract of title."
Anyway, the scrivener pulls out this ambiguous form, and it has language going every which way. The language conflicts between joint tenancy and tenancy in common (by trying to specify who inherits, but that is an essential part of joint tenancy).
A twist: Herbert argues that it is not a joint tenancy. Because if it were a joint tenancy, we'd have the problem of the four unities, and the whole thing would be void.
So it's actually a success for Herbert, when the joint tenancy is defeated, even though the plan superficially looks like it would have been in its favor.
This is one of those cases where the legislature and the courts were playing tug-o-war about "evincing intent" to be joint tenancy. You can't be a grantor and a grantee simultaneously. No policy basis here whatsoever: it's just a language game to make the statute not apply.
Anyway, what is the difference between tenancy in common and joint tenancy with a remainder in the survivor? The remainder in the survivor is indestructible by either party. So the court says this is a new kind of co-tenancy.
Generally petitions for rehearing are denied, because they're insulting to the court. And so, here, they just restate what they said in the opinion, and say that it was obvious.
Anyway, Herbert wins: the owner's intent triumphs over form. Yay!
But this is sort of a separation of powers issue: the court is creating new stuff. That should be the legislature's job. Additionally, this is kind of a resurrection of tenancy by the entirity (i.e., a non-married version of a co-tenancy where neither spouse can destroy the interest of the other), and that has been specifically abolished by the legislature because it is cumbersome. The cumbersomeness comes from the fact that if the two parties can't agree on how to use the property, it's a deadlock. So, this notion of an indestructible remainder is the exact opposite of what the legislature wanted.
This case is a great example of the sort of insane technicality that pervaded common law of property in the US a while back.
He, unilaterally, makes out a deed saying that it's severed, but this fails to sever the four unities. This is why we have strawman deeds: quick turnaround transfers to a third party and back.
The court here says they're not going to require this idle and meaningless step. The dissent says that only legislatures should be altering property law. This transaction may have been a nuisance, but it was a nuisance that lawyers knew about, and now we've got imprecision.
This is pretty much the exact flip of Fox v. Snow with respect to the alignments of the majority and the dissent.
Kinds of partitions:
Here, we've got partition in cash.
Also, this case is an introduction to marital property. The Jezos are married, and can't divorce (maybe for religious reasons, maybe because divorce law at the time was such a mess). But the husband doesn't want to co-own property with his estranged wife: it's not manageable.
OK, so either party can partition, but he claims he's the bigger co-owner of the property. At common law, property was owned by the person who earned it. So even though they had equal rights to it during the marriage, on partition, you could argue that it should not be divided equally.
This is one of the reasons that we have marital property, because people hated seeing one side of the union get the shaft.
Note that when you file a complaint, you're probably already worried about the security of your debt (unsecured debtors get $0.01 on the dollar if the debtor goes bankrupt). So you file a complaint, trying to attach non-exempt property (realty or personalty), and you record that interest, so that your debt is secured (this is called "lis pendens").
The lis pendens is not filed in this case, but it wouldn't matter in this case. Often just filing the lawsuit is enough anyway.
So the court grants a judgment against the husband: the hardware store wins.
Then, before the sherriff goes and gets the property so you can get paid, you need to docket the judgment. You do this right away: a docketed judgment is a lien agains all non-exempt real property owned by the person against whom the judgment was entered, in the county of the judgment (you can docket in other counties, or in Federal court).
The store dockets the judgment. Now they have a lien. Then, all of a sudden, nothing happens. Maybe they were careless, maybe the Depression was too much to deal with, we don't know. Then the debtor dies. Finally, after 4 years, the store would like to collect.
But lo! It was a joint tenancy, so all the interest goes to the survivor. The court notes that there was no severance (had there been, there would have been no joint tenancy-- the lien would have persisted against his share). The store says the act of docketing the judgment severed the joint tenancy. The court says that this isn't sufficient to create an interest that would sever the joint tenancy.
In order to sever, the store should have asked the court for a writ of execution. THAT would have severed. (sometimes called levying on the property)
On the one hand there's some precedent on Musa's side. On the next, we don't want to have to go to the heirs to whom the assets have been disbursed, and ask them to cough up.
But why do we want execution? Maybe Segelke was being decent: not wanting to push the Musas out of the house (by executing) while times were so hard. This case remains law, which means that lawyers must now advise their clients to execute (driving people over the edge of irrecoverable debt, perhaps) because they'll lose their interest if the property is joint tenancy and the person against whom they've got a lien dies.
The purpose of the judgment lien statute is to give creditors an interest so they don't have to push for execution. But by saying this doesn't work against joint tenancy, we've eviscerated that statute.
That's one of the strange things about dower rights-- they can confuse things. Thankfully, WI does not have them (this is unique).
Owelty: the amount that would be paid to a wife to get her to eliminate or cancel her dower rights.
WA is a community property state. 8 states have this (mostly in the south and west (LA, TX, NM, AZ, CA, NV, WA)). It means, approximately that property of a spouse in a marriage is property of a marriage. WI marital property is sort of a codification of this.
So, a couple moves from the midwest to WA, and lives there for a while. 2 kids are the wife's, and one kid is both of theirs. The husband works, they have income, and they bought two houses: big (where they lived) and little (that they rented out).
The wife dies intestate, so all property passes under the intestacy laws. In WA, if there are children, then all the property goes to the children, and the surviving spouse doesn't take. So each child would get 1/3 of her ownings. In WI, the surviving spouse would take 1/2, and the kids would each get 1/6.
Both the kids and the husband think (erroneously) that the property is the husband's. Then after a while he gets married, and he asks one of the kids for a quit claim deed. She goes to her lawyer, who says "don't worry: until they probate the estate, nothing can happen." The kids are no longer living there.
All of a sudden, matters come to a head. Meanwhile, he has probably kept all the income from the little house, as well. They sell the little house, and he's going to have to divy up the proceeds of that: the buyer of the house bought a house from the husband that the husband didn't own. If the buyer had a lawyer, this should have been noticed.
He can't claim to own the house under community property. But he tries to assert adverse possession: he lived there all those years. The court says that it would be adverse possession, except that he's possessing against co-tenants-- that's not saying much: you have to be overtly hostile (i.e., oust the others) in order to adversely possess against a co-tenant. If you have a legal right to be on the property, in other words, it's not adverse.
So he busts out with laches: they dangled him along for so many years, and now their also suing for use and occupancy. If they wanted to do this, they should have said so. The court says that laches doesn't apply because there was no harm done-- there's no reason to get excited about this. Also, laches is an equitable doctrine. There's also the "dirty hands" doctrine: if you want equitable relief, but you're also guilty, equity won't get you anything.
On the use and occupancy count, the court divides. He didn't push the kids out (i.e., the occupier had no notice that he was occupying another's property), so it doesn't make sense for the kids to prevail on this (the dissent). The majority says they're not inclined to follow the precedent here (?!), because the precedent is not equitable. What does that mean? Basically that on policy grounds, the father out to lose. They decline to articulate the policy basis.
OK, then, what is individual?
Here, the husband was the big driver for the business, and the wife did lots more at home.
But the business is marital property. The presumption of marital property is that it should be split 50-50 at divorce, but the judge has wide discretion, and can consider 12 variables. The supreme court says you have to consider all 12, not just some.
So they remand the court back to the trial court for consideration of other factors. Does that accomplish anything? We already know what the trial judge thinks. So maybe this is sort of an impotent motion by them.