• Jacque v. Steenberg Homes
  • What court issued the opinion in Steenberg?
  • What are the facts of the case?
  • Is this case a criminal proceeding or a civil proceeding?
  • Were there other legal consequences for Steenberg Homes besides the $1 nominal damages award and $100,000 punitive damages award?
  • What is the procedural history of the case?
    • What claim did the Jacques present to the trial court?
    • What did the jury hold?
    • What ruling did the trial court make after the jury returned its verdict?
    • What did the appeals court hold on appeal?
    • What did the Supreme Court hold on appeal?
  • Why did the Jacques deny permission to Steenberg Homes to drive across their property? Was it reasonable?
  • Suppose (a) the only way (as opposed to the cheapest and most convenient way) to deliver the mobile home in the winter had been to drive across the Jacques’ property and (b) the Steenberg personnel had asked respectfully if they could cross the Jacques’ property. Would it have been reasonable for the Jacques to say no?
  • What if the driver for Steenberg Homes had simply driven across the Jacques’ property without asking permission?
  • What if the driver for Steenberg Homes had generally avoided the Jacques’ property, but had accidentally tread over the edge by a few feet?
  • Make sure you understand the general rule about the award of punitive damages where compensatory damages are nominal, and why Wisconsin has that rule. What purpose does it serve? Do you agree with the rule?
  • How did the lower courts apply the general rule to this case? What did the Supreme Court do with the rule -- in general, and in this case?
  • Is there a way the court could have concluded that punitive damages ought to be available in trespass cases where the compensatory damages are nominal, yet still have upheld the appellate court ruling? Another way to put the question is this: Even if you agree with the ruling of the Wisconsin Supreme Court as a matter of policy, what about the way it was reached might be unfair to Steenberg Homes in this case? If you were counsel for Steenberg Homes in the case below, and knew that there really wasn’t any damage to the Jacques’ property, how much time would you have invested in preparing for the case?
  • Consider the following hypothetical taking place in Wisconsin sometime after the ruling in Steenberg: Alberto -- intending to harm Janelle’s reputation -- falsely states that Janelle was fired from her previous job for embezzling over a million dollars. Janelle sues for defamation. The jury awards Janelle $1 in compensatory damages and $50,000 in punitive damages. Is Steenberg precedent for upholding the award of punitive damages? Is trespass worse than libel?
  • Do you agree with the holding in Steenberg? Why or why not?
  • In light of the qualification in Jacque v. Steenberg about not using property so as to invade the rights of others, does that decision really adopt an absolute right to exclude?
• Commonwealth v. Magadani
  • What court issued the opinion in Magadani?
  • What are the facts of the case?
    • Are the facts as laid out by the Court facts specifically found by the jury?
  • Is this case a criminal proceeding or a civil proceeding?
  • What is the procedural history of the case?
    • What statute was Magadani said to have violated? Imagine you were the prosecutor. Make a list of the facts you would want to prove.
    • Did Magadini deny that he had committed conduct covered by the criminal trespass statute? What defense did he assert? What are the elements of the defense? Did the trial court permit him to present that defense to the jury? Why or why not?
    • What did the jury hold?
    • Note that somewhat unusually, the trial court’s ruling was reviewed directly by Massachusetts’ highest court, the Supreme Judicial Court.
    • What did the Supreme Judicial Court hold on appeal?
  • What, according to the Court, are the elements of a necessity defense? Does the Court here rule on all of them?
  • Does the Court’s holding mark the end of the charges against Magadani?
• Should there be a necessity defense to trespass? Why or why not?

With respect to Section I.A.1.b, consider:

• What does the CROW Act of 2000 provide? How is it similar to rights in other European countries? How is it different from what Scottish law provides?
• What bill did the British parliament enact in 2022? (See Supp. 13, 19.) What other bill was proposed (“tabled” -- note that in the UK, “tabling” a bill means proposing it, not (as in the US), withdrawing it from consideration) in 2022? (See Supp. 19.) How did the fundamental aims of the 2022 bills (one enacted; one proposed) differ from each other? Were either or both consistent with the CROW Act?
• What criticisms do Right to Roam advocates have of the CROW Act in relation to:
  • The nature of the activities that are permitted by the public on private property?
  • The process of getting a roaming path in the registry
  • The location of where most most of the paths protected under the CROW Act are located in England?
• What was the issue in relation to Dartmoor National Park? What Act does that dispute involve?
  • How was the issue posed in the lower courts? See the account in the Jarvis article (See Supp. 14-16.) Is that the same as how the UK Supreme Court framed the issue in Darwall? (See Supp. 22-24.) How did the Court reach its determination?
• Should landowners have an absolute right to exclude others? Why or why not? What does the CROW Act suggest? Is the CROW Act consistent with the European Convention on Human Rights (Art. 8, and Art. 1 of Prot. No. 1)? (See Supp. 25-26.)

With respect to Section I.A.2, consider:

• The casebook summary is not bad, but I have included some excerpts from the holding to give more historical context (as to how the checkerboard arose and as to the courts’ dealings with it over the years) and a better sense of how the defendants made their way from one public parcel to another.
• In what court was the complaint in Iron Bar brought? How is it different from the courts in Shack and Jacque v. Steenberg?
• There were trials in Shack and Jacque. Was there a trial in Iron Bar?
• Make sure you understand what the alleged trespasses were in Iron Bar. Note that there was more than one, and they were not all identical.
• What was the legal basis Iron Bar Holdings asserted in accusing the defendants of trespass? Why did the court discuss air travel? Why was the history of railroad construction in Wyoming relevant?
• Is Iron Bar consistent with Shack? With Jacque v. Steenberg?
• Suppose the defendants had been found liable for trespass, and the plaintiff were awarded a dollar in nominal damages. Do you the law should allow the plaintiff to seek punitive damages in such a case?
• Stepping back from the details, compare what the Right to Roam advocates seek in England with what the hunters in Iron Bar sought to achieve in terms of access. How do the U.S. and England compare in terms of rights of access? Which is better, in your view? Why?

With respect to Section I.B.1:

• What are the facts of State v. Shack?
• What is the procedural history of the case? What was the charge? Note that it was criminal. Who prosecuted it? What was the result in the lower courts?
• The statute under which the defendants were prosecuted is quoted at Supp. 27. Does this statute define “trespass”?
• What was the holding of the New Jersey Supreme Court? Point to specific language in the opinion. You will find more than one place where it states its holding -- are they both entirely consistent?
• In thinking about the scope of a court’s holding, it can be useful to consider how it would apply to different scenarios:
  • Would a representative of a private charity giving free medical assistance have access to a migrant farm in New Jersey?
  • Would someone selling TVs have access to a migrant farm in New Jersey? A nun handing out union literature?
  • Would reporters have access to a migrant farm in New Jersey?
• What restrictions may a landowner place on those who do have access under the Court’s holding?
• Could Tedesco require that all employees waive any rights they might have under State v. Shack as a condition of working there?
• Do you agree with the holding in State v. Shack? Why or why not? Suppose, contrary to fact, that Steenberg had been decided by the New Jersey Supreme Court some years earlier than the facts of State v. Shack. To come out as we know it did in Shack, would the New Jersey Supreme Court have had to overrule Steenberg?
• Which institution -- the courts or the legislature -- is best suited to decide the issues posed in Shack? Compare the two institutions in terms of:
  • Institutional competence: how well they make the rules. For example, would a legislature make clearer rules than the courts do?
  • Legitimacy: why shouldn’t the issue in Shack be decided by an elected body instead of a court?
  • Is there a sense in which the right to exclude is absolute in New Jersey even after State v. Shack?

With respect to Section I.B.2 (the Florida Migrant Farmworkers Statute):

• What would be the result if the facts set out in State v. Shack took place today in Florida? Would Shack and Tejeras have access to the farm? Under what conditions? What about:
  • a person selling TVs or radios?
  • a sales representative for a vitamins and health supplements?
  • the representative of a private charity giving free medical assistance?
  • a nun handing out union literature?
  • a reporter?
  • a relative of one of the migrant farmworkers, staying with him while he looked for work in the area.
• In the instances above, would those seeking access have a right to go to (a) the fields where the workers work, or (b) a small common room with a TV in a larger building containing the individual rooms where the farmworkers sleep?
• What is the difference between residential migrant housing and migrant labor camps? Does the difference matter to any of the hypotheticals above?
• Imagine a building on a migrant farm in Florida like those described in the New York Times article at Supp. 31-32. Smith lives in one of the rooms, and Perez in the second room down on the same side. Smith invites Shack to come by in the evening to give him some legal advice. Though Smith and Shack are talking in a normal voice, Perez complains that their talking is disturbing his peace and quiet in his room. (As the Times article indicates, “[p]rivacy is nil.”) Perez insists that Shack leave immediately. Does he have a right to make Shack leave? Why or why not?
• You are the lawyer for the owner of migrant farm in Florida. He asks you if he could ban any visitor (invited or otherwise) from carrying a firearm on the premises, and require all visitors to go through a metal detector. What do you say?
• If the Florida statute would grant access to Shack and Tejeras (under facts like those set out in State v. Shack), but Tedesco were to deny it, could they file a complaint with the Department of Health? If they did, would the Department be obligated to investigate it? Are there any other forums in which they could seek relief?
• Suppose that after a resident of a migrant labor camp complained to a reporter that the owner was not permitting health care providers and legal services attorneys to visit him at the labor camp, the owner fired him and told him to leave. Would the farm-worker have any recourse? Would it matter if the farmworker had been drinking in his room in violation of a rule (one that was routinely violated without consequence?)
• Is the issue of access to migrant farms better handled by case law or by statute, in your view? Is it possible to generalize?

With respect to Section I.C (Relativity of Title), we will discuss the hypotheticals for the questions at Supp. 45, and the facts of Tapscott. Make sure you carefully brief Tapscott. The way the opinion is written makes it very difficult to understand exactly what happened, but you should be able to figure out much more than you might think from a first read. So try your best to figure out the events as well as understanding the court’s holding, because doing the former is crucial to the latter. Only after that should you consult this aid, Briefing Tapscott and Hypotheticals. Don’t read this aid first; you will deprive yourself of a valuable opportunity to improve your case reading skills.

The Exams and Grading page now has a link to information on Practice Question 1, which will be due on Tuesday, September 2, by 4:30 p.m. Check that page for information on the Practice Question and on getting your Mid-Term AGN, which you will need. New!

We completed our discussion of the material in Section I.C and then briefly moved on to Section II.A.1 (Eminent Domain).

We discussed the material in Section II.A.1. Consider:

• Why should there be any compensation requirement in the case of the exercise of eminent domain? Is it necessary in terms of fairness or social utility to have such a requirement?
• Just compensation:
  • When the power of eminent domain is exercised, the Fifth Amendment requires the payment of “just compensation.“ What is the measure of “just compensation” in general? What would that be in the case of Susette Kelo’s house? Would it include the value of her sentimental attachment to it? Should it, as a matter of constitutional law?
  • Consider the first of the two questions on CB 637. What do you think the law should be on these matters? No need to check the sources cited there -- try to work out on your own what you think would be the best approach.
    • Suppose, also, that the opposite happens: a portion of a business’s land is being taken (say, to widen a highway), and the effect of the project will be to significantly increase the value of the remaining land (because there will be more traffic and more customers). Should the increase in the value of the remaining land be treated as part of the just compensation and so reduce the cash payment for the strip that is taken?
• Given that there is a just compensation requirement, why should there be a power of eminent domain at all? Why can’t the government just buy property it wants? What practical problems might the government face in buying land to construct a highway? Consider the construction of I-95 through Overtown (Supp. 48-49). What about buying land for a large military base in an area where there are many small farms -- would that pose the same problems for the government as in trying to buy land for a highway?
• Midkiff:
  • What problem regarding land ownership was the Hawaii legislature attempting to address through the Land Reform Act? How did it seek to address that problem?
  • What requirement in the Fifth Amendment (made applicable to states through the 14th Amendment) did appellees (land owners) say was violated by the Land Reform Act?
  • What standard did the Court articulate for determining whether a taking is for a “public use”?
  • What does Midkiff say about the constitutionality of using eminent domain to take private property from one owner and convey it to another, or (as in this case) to use that power to force a landowner to sell the property to another person?
  • Note that the Court’s opinion, which was unanimous, was written by Justice O’Connor.
• Kelo:
  • Give some thought to the differing ways you would present the facts as an advocate for Kelo or as an advocate for New London.
  • What does Kelo say is the constitutional standard for the exercise of eminent domain? What does “public use” mean, according to Kelo?
  • Do you think the Court has correctly interpreted this constitutional phrase in Midkiff and Kelo?
  • Should it be relevant to interpretation of the Fifth Amendment that in the nineteenth century, the federal government and a number of state governments granted railroads the power of eminent domain in building their railroad networks? Why or why not?
  • Is it an appropriate function for state and local governments to seek to promote economic development?
  • What alternative tests did the lawyers for Kelo propose? Would they have been consistent with Berman and Midkiff?
  • Does the majority in Kelo hold that the development at issue there is a good idea and will accomplish its intended purposes? Does it defer to the state and local government’s determination? Who is in the better position to determine whether the project will work? If there is uncertainty, who should make that decision -- the U.S. Supreme Court or New London? Note that this question implicates two distinct issues.
    • Courts versus legislatures: How much should this be left to elected officials (whether legislative or executive)?
    • Federalism: How much should this be left to the federal government (which includes the President, Congress, and the U.S. Supreme Court) versus state or local government (which includes governors, mayors, state and local legislatures, and state courts)?
    Which of the opinions in Kelo is the most deferential to local authority?
  • What test did Justice O’Connor propose in her dissent? Would it have been consistent with Berman and Midkiff?
  • In dissent (not reproduced in the casebook), Justice Thomas argued that the Court’s holding in Berman not only was wrong in its interpretation of the takings clause, but also emboldened cities into undertaking “[p]ublic works projects in the 1950’s and 1960’s [that] destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore,” and elsewhere. He also referred to this portion of Berman in support of his description of the impact:
    
    “Surveys revealed that, in Area B [the first area in D.C. slated for redevelopment], 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health, it was necessary to redevelop Area B in the interests of public health. The population of Area B amounted to 5,012 persons, of whom 97.5% were Negroes.”
    Justice Thomas argued that public use should be interpreted to allow eminent domain “only if the government owns, or the public has a legal right to use, the property.” If the Court had adopted Justice Thomas’s approach, would that address the concern he raises about the effect on minority communities?
    • One way to think about this question is to ask:
      • Would Benjamin Brown have been allowed to keep his house in Overtown if Justice Thomas’s view had prevailed in Kelo? (Supp. 48-49)
      • Would Manhattan Beach have been able to seize the beach resort owned by a Black couple in 1924 (CB 636) if the standard Justice Thomas urged in Kelo had been constitutional doctrine then?
    • Consider what other ways historical injustices in the use of eminent domain might be remedied, including with respect to Manhattan Beach’s seizure of the resort, and the Reconnecting Communities program (Supp. 50-52)
  • How would you feel about the ultimate demise of the proposed development if you were a resident or taxpayer in New London? Does that matter to your assessment of the holding in Kelo, or is it irrelevant?
  • If you were a member of a state legislature, would you vote for a statute limiting the use of eminent domain to cases in which at least one of the following holds:
    • the property is blighted
    • the property will be owned by the government
    • the public will have a legal right to use the property
    Should these requirements apply to all use of eminent domain? Or only where the property is to be transferred from one private party to another? A number of state statutes along this line were in fact approved after Kelo. How effective do you think these statutes are likely to be in limiting the use of eminent domain?

With respect to Section II.A.2.a.i, consider:

• Why have a doctrine of adverse possession? What purposes does it serve? Suppose you were a member of a state legislature and a bill was introduced to abolish the doctrine of adverse possession. Would you support that bill? Why or why not?
• Suppose the following events take place:
  • 1981: X sells Blackacre to O. Unbeknownst to O, X does not actually have title to Blackacre. Y does. X just forged Y’s signature on the deed. As we will see later, a deed with a forged signature is void.
  • 1982: O sells Blackacre, a farm, to A. A farms Blackacre for more than 40 years, expanding the house and barns. During that time, A marries and the couple raises a family on Blackacre, supported by the earnings from the farm and the community farmers market they run.
  • 2025: Y brings suit to eject A. Who should win? Why?
• Do you think the possession in Marengo Cave Co. was open and notorious? Why or why not?
• As we will see later, a prescriptive easement is a limited right to cross someone else’s property, gained by something like adverse possession. If your neighbor regularly flies a drone over your backyard for many years, should the neighbor gain a prescriptive easement to do so? Why or why not, in your view?