Willcox v. Stroup – 467 F.3d 409 (4th Cir. 2006)

Case Name: Willcox v. Stroup
Plaintiff: Thomas Law Willcox
Defendant: Stroup (Director of the SC Department of Archives/History and the State of South Carolina
Citation: 467 F.3d 409 (4th Cir. 2006)

Issue: Whether the plaintiff had good title of the Civil War documents when they had been in his family’s possession for over one hundred and forty years and there was no evidence that showed any other had title to the property.

Key Facts: The plaintiff found 444 documents from the administrations of two governors of South Carolina during the Civil War in a shopping bag in his late stepmother’s home. The documents have an appraised value of $2.4 million. The plaintiff allowed the documents to be microfilmed for the state archives. When the plaintiff attempted to sell the papers, the defendant obtained a temporary restraining order preventing the sale. The plaintiff sought a declaratory judgment that he owned the papers.

Reasoning: If there is no evidence to the contrary, proof of possession, is sufficient proof of title.

Rule of Law: Proof of possession is sufficient proof of title if there is no evidence to the contrary.

Bayliss v. Bayliss – 550 So. 2d 986 (Ala. 1989)

Case Name: Bayliss v. Bayliss
Citation: 550 So. 2d 986 (Ala. 1989)

Issue: Does a non-custodial parent have a legal obligation to pay for college expenses for their post-minority child?

  • Post-minority: over the age of 18 but still unable to support themselves.

Key Facts: Patrick Bayliss was the son of Cherry R. Bayliss and John Martin Bayliss III. The couple divorced when Patrick was 12 years old. When he was 18, his mother filed a petition to modify the final judgment of divorce to order her ex-husband to pay for Patrick’s college.

Holding:  Yes the court has a right to assure that the children of divorced parents, who are minors at the time of divorce, are given the same right to a college education before and after they reach the age of 19 years that they probably would have if their parents had not divorced.

Reasoning: In a proceeding for dissolution of marriage or a modification of a divorce judgment, a trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefore, before the child attains the age of majority.
The trial court should consider factors including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education. The trial court also may consider, the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.

International News Service v. Associated Press – 248 U.S. 215 (1918)

Case Name: International News Service v. Associated Press
Plaintiff: Associated Press
Defendant: International News Service
Citation: 248 U.S. 215 (1918)

Issue: Whether the plaintiff has a property right in the information it gathered for news.

Key Facts: INS was obtaining news that was gathered by the AP through public bulletin boards and early edition newspapers and then reproducing the news in their members’ newspapers without giving credit to the AP. Plaintiff contended that defendant’s practice constitutes unfair competition.
The AP contended that the news they gathered is property, because it costs money and labor to produce and because it has value for exchange. Also this news remains property and is entitled to protection as long as it has commercial value as news. The AP desired that the INS not be able to make any gainful use of their news while it retained its value as news.

Holding: Plaintiff does have a property right but it is limited and extends only against competitors in the news business.

Reasoning: Title to property is not absolute but relative. Because the news has “exchange value” based on its novelty and freshness, it should be protected as a property right with rules against misappropriation by a competitor.

Dissent: The dissenting opinion (Brandeis) did not believe news constituted property that could be protected. Also, that the defendant’s practices did not constitute unfair competition in the legal sense because the legal sense only addresses fraud or  force or doing of acts otherwise prohibited by law. The gathering of news by purchasing papers in the open market or from public bulletins did not involve breach of contract, fraud, or force. Also, the INS was under no contractual obligation to disclose the source of news and no law because the material was uncopyrighted.

Uston v Resorts International Hotel, Inc. – 445 A.2d 370 (1982)

Case Name: Uston v Resorts International Hotel, Inc.
Citation: 445 A.2d 370 (1982)
Plaintiff: Uston
Defendant: Resorts International Hotel, Inc.

Key Facts: Defendant was excluded Uston from the blackjack tables in its casino because Uston uses a card counting strategy which allegedly increases his chances of winning money. His strategy does not violate the Casino Control Commission.

Issue: Does the right of reasonable access apply to all businesses that are open to the public?

Holding: Uston possesses the right of reasonable access to the blackjack’s tables; unless there is a valid rule by the Commission that would state otherwise.

Reasoning: Uston does not threaten the security of the casino nor has he disrupted its functions and there is no common or statutory law that could exclude him because of his strategy to play blackjack.
“The more private property is dedicated to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.” State v. Schmid. Schmid involved the constitutional right to distribute literature on a private university campus. The court decided that when property owners open up their property to the general public, for their own private property interests, they have no right to exclude people unreasonably.
The traditional common law right of reasonable access had only applied to innkeepers and common carriers (planes, trains, buses). Uston extended that law to all businesses open to the public.

Judgment: Uston was allowed use of the blackjack tables.

Glavin v Eckman – 881 N.E. 2d 820

Case Name: Glavin v Eckman
Citation:  881 N.E. 2d 820 (Mass. App. Ct. 2008)
Plaintiff: James A. Glavin
Defendant: Bruce and Shelly Eckman; Jon R. Fragosa

Issue: Whether the judge erred in permitting the jury to award a restoration cost measure of damages, rather than damages measured by the value of the timber wrongfully cut, or by the diminutive market value.

Key Facts: The defendants (Eckmans) hired an independent contractor (Fragosa) to cut down ten oak trees that were on the property the plaintiff (Glavin) , without his permission, in order to enhance their view. Glavin had previously been asked by Eckman to have this done but refused to and stated that he planned to use the ten oak trees as shade for a pond which he planned to restore.

Procedural History: The jury awarded Glavin $30,000 to restore his land. They found that both Eckman and Fragosa were at fault.

Holding: According to Mass. Gen Law statute, Glavin was able to opt for the value of the timber cut or the diminutive value of his property as the measure of damages. However, if this does not meet the value of the damages, he may opt for restorative damages.

Reasoning: Glavin was not planning on selling the land so diminutive market value should not be the main measure of damages. The trees had significant value to Glavin. Direct restoration may be physically impossible or disproportionally expensive that it be unreasonable to do so.

Judgment: The appellate court affirmed the trial court’s award to Glavin of $30,000.

State v. Shack – 277 A.2d 369 (N.J. 1971)

Case Name: State v. Shack
Citation: 277 A.2d 369 (N.J. 1971)
Appellant: Tejeras and Shack
Appellee: State

Issue: Do real property rights, specifically the trespass statute or right to exclude, supersede the fundamental rights of an individual?

Key Facts: Defendants entered the private property of Tedesco to aid migrant farm workers who were employed and housed on his property. Both defendants work for nonprofit organizations that provide health (Tejeras) and legal (Shack) services to migrant workers. The defendants were confronted by Tedesco who inquired of their purpose. Tedesco offered to locate the specific migrant workers that the defendants were seeking but required that any consultation must take place in his office and in his presence. The defendants declined his terms and Tedesco summoned a State Trooper to have the defendants removed from his property.

Procedural History: Defendants were convicted in the Municipal Court of Deerfield Township for trespassing (criminal).

Holding: The appellate court found that the defendants did not violate any property rights of the farmer-employer and that there conduct went beyond the reach of the trespass statute.

Reasoning: Being mindful of the employer’s interest in his and his employees’ security, the employer may require a visitor to identify himself and state his general purpose. However, the employer cannot deny the worker his right to privacy or interfere with his opportunity to live with dignity and other customary benefits among citizens. These basic rights are too fundamental to be denied by property rights and too fragile to be left to the unequal bargaining strength of the parties.

Judgment: The county court’s finding was reversed and the appellate court remanded to the county court so that the defendants could be acquitted.

Deed Recording Acts

Before recording acts were instituted, the common law rule for recording deeds was “first in time, first in right.” This means that if a subsequent purchaser did not have notice of a prior conveyance and records his interest, he will prevail over any prior unrecorded interest.

However, most states have recording acts which create rules for situations such as these. It is important to recognize that recording acts do not require that a deed be recorded for a conveyance to be legally valid. The deed is valid against the grantor upon delivery with or without recording.

There are three type recording acts:

  1. Race statutes – The person who records first prevails
  2. Notice statutes – A subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser did not have notice of the earlier conveyance. Further, the notice statute protects any purchaser without notice against unrecorded interests even if the purchaser does not record first.
  3. Race-Notice statutes – A subsequent purchaser prevails over prior unrecorded interests only if she:
  • Had no notice of the prior conveyance at the time she acquired her interest and
  • Records before the prior instrument is recorded

Race-notice is the majority rule which is in effect in 25 states and the District of Columbia.

Takings Ad Hoc Test

A regulatory taking is different from eminent domain because title to the property is not taken. Instead, the government regulation impacts the land so much that it eliminates all economically beneficial use or restricts use of the land to the extent that the landowner should receive compensation under the Fifth Amendment. If a landowner can show that all economically beneficial use has been eliminated*, then he is entitled to just compensation. This will be hard for a landowner to prove so a court is more likely to balance the government interest against the burden on the landowner to determine if the landowner is entitled to just compensation.

Penn Central Transportation Co. v. New York City (1978) is a seminal case in which the Court created an ad hoc test to determine whether a zoning law constituted a regulatory taking under the Fifth Amendment. The court will look at the particular circumstances of each case, make factual inquiries, and focus of these three major factors:

  1. The character of the government action
  2. The protection of reasonable, investment-backed expectations; and
  3. The economic impact of the regulation on the particular owner

If, after balancing these interests, a regulation is deemed an unconstitutional taking of property, the landowner is entitled to just compensation.


*This is deemed a categorical per se taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Government mandated permanent physical invasions are also deemed a per se taking.

Disparate Impact Claims

When a city or town creates a policy or regulation, it has to ensure that the policy does not have a discriminatory result. If a “facially neutral” policy does have a discriminatory result a plaintiff can make a disparate impact claim. A prima facie case for disparate impact is made without a showing of discriminatory intent, instead a plaintiff can show discriminatory treatment or effect.

The plaintiff must show that the policy “actually or predictably results in racial discrimination.”

If a disparate impact is established, the burden is shifted to the defendant to show that it had sufficient justifications for the practice. The two most common justifications for a disparate impact are:

  1. Site specific – Here the court will ask if they made these justifications at the time the decision was made; the court will not allow after-the-fact justifications because the question is was your decision a violation of the FHA; are these justifications legitimate
  2. Plan specific – These justifications generally do not survive because most can be responded to with a less discriminatory alternative (i.e. redesign)

If the defendant establishes a sufficient justification for the disparate impact, the burden then shifts back to the plaintiff to show that these justifications do not negate the violation of Fair Housing Act (FHA).

Note, that if you can show discriminatory intent, you do not have to complete a disparate impact analysis.

Takings in Property Law

The central principle of the Takings Clause (from the Fifth Amendment) is to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

To establish a “taking” a plaintiff must show three separate elements:

1. A taking by the state;

2. For public use (interpreted as a legitimate public purpose);

3. Without just compensation

In defending an alleged “taking,” the state must show its justification in some aspect of their police power, asserted for the general welfare.

If a taking is found, a court will order the state to provide just compensation to the owner. The Supreme Court has determined that “fair market value” constitutes just compensation. Fair market value is defined as “the amount a willing buyer would pay in cash to a willing seller.”