Property Law - Dukeminier CH 1C PP

Property
Chapter 1(C)
Constituting Ownership - The Bundle of Rights
The Public Trust Doctrine
Roadmap
• Ownership as a Bundle of Rights (and limits on those rights)
– Right to Exclude
• Jacque v. Steenberg Homes
• State v. Shack
– Right to Destroy
• Eyerman v. Mercantile Trust
– Right to Abandon
• Pocono Springs Civic Assn. v. MacKenzie
– Other sticks in bundle:
• Right to include, Right to use, Right to transfer
– Numerous other public policy limits on property owners’ rights –
examining one specific doctrine in these materials:
• The Public Trust Doctrine:
– Matthews v. BHIA
The Right to Exclude
Private Property Broad right to exclude (subject
to some limited exceptions)
Shared Property (occupied by Limited/less broad right to

owner and non-owners) exclude
Public Property (public Very limited right to exclude (if

property or private property at all)
open to public in general)
The Right to Destroy
• Reasons to limit owner’s right to destroy?
Wastes resources
Negative externalities on 3rd parties
Deprives society of something culturally valuable
• Reasons to permit owner right to destroy?
Practical – need to eliminate old, outdated, dangerous
Expressive – creative destruction
Correction for past mistakes
Privacy and autonomy
Right to Abandon
“IF YOU ARE LOOKING TO PURCHASE A LOT IN POCONO SPRINGS, WHETHER IT IS

FROM EBAY, A PRIVATE OWNER, OR THE COUNTY ITSELF,WE ADVISE THAT YOU DO
SOME RESEARCH PRIOR TO PURCHASING. THERE ARE SOME LOTS IN POCONO
SPRINGS THAT DO NOT PASS PERCOLATION TESTS, AND CANNOT BE BUILT UPON.
THERE ARE OTHER LOTS THAT ARE NOT OF SUFFICIENT SIZE TO ALLOW FOR A
BUILDING. NOT EVERY LOT IS BUILDABLE. NO LOT IS EXEMPT FROM DUES,REGARDLESS
OF SUITABILITY FOR BUILDING. “
The Right to Abandon
• Does an owner have a right to abandon property?
• What policy reasons might there be to limit the
right to abandon property?
• Should the scope of an owner’s right to abandon
be different for real property (i.e., land and
improvements on it) compared to personal
property (i.e., chattel)? Why?
Right to Abandon
• Reasons to limit owner’s right to abandon?
– Allowing owner to walk away from negative
economic costs they may have caused (tort
liability, hazardous waste, etc.) is against public
policy
– If land has positive economic value, abandonment
may lead to potentially violent, or inefficient,
scramble for new ownership
– During time abandoned land is unowned, its value
may deteriorate
Right to Abandon
• Reasons to permit owner right to abandon?
– Low transaction costs for owner to get rid of
property
– Will usually result in transfer from a lower-value
user to a higher-value user
– May promote distributive justice better than gifts
and sales
The Right to Abandon
• How would the right be exercised? I.e., How do you prove that particular
property is abandoned?
– For real property? See Pocono Springs – in most jurisdictions,
abandonment of real property is not possible
– For personal property? See below
• CL test for abandonment of personal property requires 2 elements:
1. An act by the owner that clearly shows that they have given up rights
to the property; and
Query – inaction/nonuse of property enough to establish this?
2. An intention that demonstrates that the owner has knowingly
relinquished control over it.
Query – how can you show intention if you don’t know where the
owner is?
• Statutes may modify or add to what must be proven by party claiming
ownership of purportedly abandoned property
– See, e.g., Texas Property Code Ch. 72
Other sticks in the property owner’s bundle of
rights (and limits on those rights)
• Right to exclude and include [discussed above]
• Right to destroy [discussed above]
• Right to abandon [discussed above]
• Right to use
– Should property owners be able to use their property in any manner
they want? Why or why not?
– What are some of the ways the law limits an owner’s right to use their
property?
• Right to transfer
– Should property be easy to transfer or difficult to transfer? Why?
– How might an owner exercise the right to transfer?
– Are there policy reasons that would justify limiting the right to transfer
certain types of property?
The Public Trust Doctrine
• Originated in rights held by the king in trust for
all the people in the navigable waters of the
kingdom, as well as the “wet sand” area –
beach area between high tide and low tide.
• Original justification – waters of the land
incapable of being privately owned - all citizens
should have right to use.
• Applies not only to ocean, but also to
navigable rivers and lakes (including in some
jurisdictions man-made bodies of water)
Issues arising under public trust
• Lots of issues (it is a major topic in
environmental/natural resources law), but we are
only focusing on two property related issues:
1. What uses are covered by the public trust doctrine?
– Originally only applied to navigation/commerce (fishing),
but majority of states interpret it as covering whatever
the reasonable expected uses of society for this land are,
which today would include recreational uses in most
jurisdictions
2. How to provide access to the area covered by the
public trust (the water and tidal/“wet sand” area)?
Public Trust Doctrine
Source: https://www.monmouth.edu/uci/documents/2018/10/beach-access-report.pdf/
Various approaches to how to provide access to
wet sand public trust area
• Expansive view of Public Trust Doctrine (NJ – Bay
Head/Raleigh Ave.)
– Public trust includes dry sand and wet sand area
• Customary Rights (TX, OR, HI)
– Customary rights exist in the public to use the dry sand area to
access wet sand area
• TX Beach Access: “In Texas, public access to Gulf Coast beaches is not
just the law, it is a constitutional right.”
• http://www.glo.texas.gov/coast/coastal-management/open-
beaches/index.html
• Public prescriptive easements (NC)
– Public has acquired a prescriptive easement (through longtime
use) across dry sand area to access wet sand area
Matthews v. BHIA
Street
Private Home (leased dry sand frontage

to BHIA)
Wet
Wet Sand Area
Dry
Dry Sand
Area (Public
Street
Ocean
Ocean
Sand area
(Public Trust)
area
BHIA (6 parcels)
Trust)
Private Home
Public Trust Doctrine
Source: https://www.state.nj.us/dep/cmp/access/public_access_handbook.pdf
Matthews v. BHIA
• Issues: Does the public have a right under the public trust doctrine to access the
tidal areas through upland dry sand areas owned/leased by a quasi-gov’t agency?
• Holding: Yes
– Previous cases held the public trust doctrine applied to dry sand areas owned by
municipalities and the public could engage in recreation activities on the dry sand, not just
passage across it.
– The court now extends this understanding of the public trust doctrine to dry sand areas
owned by quasi-gov’t agencies.
• Reasoning:
– Without such access, the public’s right in the tidal areas would be meaningless.
– The meaning and scope of the public trust doctrine is not fixed or static, but can evolved to
meet changing conditions of the public it was created to benefit.
• What about public access across privately-owned dry sand areas?
– Depends on circumstances; public must have reasonable access to tidal area; balancing test
to determine how much access private owner must provide:
• Location of dry sand in relation to foreshore
• Extent and availability of publicly-owned upland areas
• Nature and extent of public demand
• Usage of the upland dry sand area by owner
– See Note 1: Raleigh Ave Beach Assn v. Atlantis Beach Club

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Property

Shared Property (occupied by Limited/less broad right to

Public Property (public Very limited right to exclude (if

“IF YOU ARE LOOKING TO PURCHASE A LOT IN POCONO SPRINGS, WHETHER IT IS

Private Home (leased dry sand frontage

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