Property II: Class 1 Monday 8/13/18 Power Point Presentation National Left-Handers Day

1. Property II: Class 1Monday 8/13/18Power Point PresentationNational Left-Handers Day

2. Music to Accompany Beckman: Elvis’ Golden Records (1958) featuring Heartbreak Hotel (1956) & Teddy Bear (1957) Property II (Professor Fajer) Help Yourself to… • Coffee and a Bagel • Handouts on Side Table: • (1) Student Survey (pleasefill out now); • (2) Sample Exam Qs • (3)/(4) Hard Copies of Course Overview Memo and First Day’s Readings (already available online) By 10 am tomorrow, I will e-mail you Syllabus, Assignment Sheet and Course Materials (through Class #3)

3. Property II (Professor Fajer)Logistical Overview • Purpose of the Course: Coverage & Skills Work • General Information • Course Page (TBA) & Materials • Office Hours (TBA) • Cancellations & Make-Ups • Cancelling Mon 9/10 & Wed 9/17 (Jewish Holidays) • Tentative Make-Ups: Fri 9/7 & Fri 9/21 • Shifting Monday before T-Giving to Date Before Fall Break?

4. Property II (Professor Fajer)Logistical Overview • Purpose of the Course: Coverage & Skills Work • General Information • Classroom Operation • Courtesy, Lateness, Break • DQs & Review Problemss • Prep & “Days Off”

5. Property II (Professor Fajer)Logistical Overview • Purpose of the Course: Coverage & Skills Work • General Information • Classroom Operation • Evaluation (I Have No Assumptions re Grade Spread) • Class Participation • Written Submissions (Old Exam Qs; Blind Grading) • Exam: 48-H0ur Take-Home w Page Limits & Format Reqmts • Grading Contract (More Detail Before Due Date) Questions?

6. Chapter 1: Private & Public Nuisance LawOverview of Coverage • Private Nuisance Cause of Action: Variations • Public Nuisance • Dfdt Liability for Actions of Third Parties • Always true if 3d party actions are intended part of enterprise (like noise from kids in Beckham). Hard Qs if enterprise is but-for cause of actions but actions hard to control and/or to foresee • E.g., actions of patrons going to & from enterprise (concert-goers) • E.g., actions of uninvited outsiders attracted by challenged land use (Xmas light voyeurs; Press/Celebrity hunters) • Situations Where We Might Chose to Allow No Claim as a Matter of Law (We’ll discuss with DQ1.04)

7. Private Nuisance Cause of Action: General Info • Tort Suit Brought by One or More Private Parties v. Nearby Landowner • Claim: D’s Activities on D’s Land Unlawfully Interfere with Plaintiffs’ Use & Enjoyment of Their Land (Often Noise, Odors, Smoke) • Generally Distinguished from Trespass b/c No Entry by Solid or Liquid (v. Gas/Smoke/Noise) onto Ps’ Land • Long quote of Ohio case in Beckman is imprecise on legal standard but describes relevant concerns well

8. Private Nuisance Cause of Action: General Info Early English Version of Cause of Action: A) Strict Liability with Two Significant Defenses (1) Defendant’s Activity was First in Time • We’ll Discuss with Spur & Public Nuisance (2) Plaintiff was “Oversensitive” (as in Beckham) • We’ll Discuss with DQ1.94 & Cases at End of Chapter B) Effect: Strong protection of pre-existing agriculgtural and residential uses (traditional forms of wealth in pre-industrial UK) from harm by newer industrial and commercial uses.

9. Private Nuisance Cause of Action: General Info Modern US Versions of Cause of Action: • Industrialization leads to increased value of industrial & commercial uses & perceived need to protect them more • Most US Nuisance Law now includes cost/benefit analysis to consider social/economic value of D’s activity. • Next Class: We’ll look at Carpenter cases from Idaho & two versions of nuisance from the Restatement of Torts • Idaho Ct App writes scholarly opinion choosing to adopt 2d Restmt • Idaho SCt reverses and adopts 1stRestmt • We look at both because many other states use 2d Restmt QUESTIONS?

10. Beckham v. Marshall (Fla. 1956): Overview • Plaintiffs own a guest house on US 1 in Daytona Beach • Defendants open and operate nursery school next door; school open 8am-5pm • Ps sue claiming kid noises (crying, yelling, singing) are a private nuisance • Lower court agrees and issues an injunction shutting down nursery school. • FL SCtreverses in state’s leading nuisance opinion

11. Beckham v. MarshallDQ1.01: Procedural Concerns Why do you think the lower court both • “[a] enjoined the defendants from operating their nursery entirely, and then • [b] further enjoined them from doing certain specific acts in relation thereto.”?

12. Beckham v. MarshallDQ1.01: Procedural Concerns Why do you think the lower court both “[i] enjoined the [Ds] from operating their nursery entirely, and then [ii] further enjoined them from doing certain specific acts in relation thereto.”? • Common for trial courts that worry about reversal to issue alternative outcomes: • Complete injunction • If that is reversed, partial injunction could still stand without new trial. • Attorneys can help trial judge by suggesting and drafting alternatives in appropriate cases

13. Beckham v. MarshallDQ1.01: Procedural Concerns Why, after the lower court “awarded [plaintiffs] damages and costs against defendants,” did the plaintiffs have “to cross-appeal on the denial of damages for loss of value in [their] property”? • Trial court had enjoined operation of nursery school, so • Damages awarded must have addressed period before injunction • No need for future damages after injunction • No new harm • Ps Property value presumably returns to old level • Cross-Appeal has only matters if Full Injunction vacated

14. Beckham v. MarshallDQ1.01: Procedural Concerns Three Important Distinctions In Our Course, We Mostly Care About Blue, Not Red • Past Damages v, Future Damages • Tort Concerns v. Land Use Concerns • Non-Intentional Nuisance v. Intentional Nuisance QUESTIONS on PROCEDURAL ISSUES?

15. Beckham v. Marshall quoting AntonikDQ1.02: Meaning of “Reasonableness”? • The law of private nuisance is a law of degree; it generally turns on the factual question whether the use to whichh the property is put is a reasonable use under the circumstances, • Was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property? having regard to all interests affected, his own and those of his neighbors, and having in view, also, public policy.' • Members of society must submit to annoyances consequent upon the reasonable use of property.

16. Beckham v. Marshall quoting AntonikDQ1.02: Meaning of “Reasonableness”? • My Summary: Is “the use to which the property is put … a reasonable use under the circumstances, … having regard to all interests affected. …?” • Could mean doing kind of CBA often used in Torts, sometimes called Learned Hand analysis. • What would that look like here in the lawsuit between the guest house & the nursery school?

17. Beckham v. Marshall quoting AntonikDQ1.02: Meaning of “Reasonableness”? • My Summary: Is “the use to which the property is put … a reasonable use under the circumstances, … having regard to all interests affected. …?” • If doing ordinary cost/benefit analysis, would excpect to see: • Specific delineation of harms to guest house (See DQ1.05) • Specif delineation of benefits of nursery school: • What might these include?

18. Beckham v. Marshall quoting AntonikDQ1.02: Meaning of “Reasonableness”? • My Summary: Is “the use to which the property is put … a reasonable use under the circumstances, … having regard to all interests affected. …?” • Fla SCt doesn’t do ordinary cost/benefit analysis. Focus instead seems to be whether the use is one that would draw objections from a reasonable (or ordinary) plaintiff (See DQ1.04)

19. DQ1.03: Relevance of Facts ( Skills Work)Starting Work on Particular Client Problem • Client often tells story unaware of some relevant facts/law • You may need to do legal research to identify possible claims • Given a possible legal claim, you then need to determine • What factual information you would need to do to advise client • How you might find this information (E.g., Serial Number) • Note: Necessarily interplay of fact & legal investigation in practice • Important skill : Planning your investigations (To Do Lists) • Long Q on your final exam (example in handout) • We will do lots of samples in class and some as written submissions

20. DQ1.03: Relevance of Facts ( Skills Work)Arguments Once Legal Claims & Some Evidence Set • Judicial Opinions Tend to Take Available Facts/Evidence as Given and Apply Relevant Legal Standards to Them • This Approach Requires You to Determine: • Where anyh given fact fits into legal analysis. • How/wheter factual ambiguity or missing facts affect legal analysis • Issue-Spotting Exam Qs Usually Do This • Will be 3/4 of the shorter Qs on your final exam (example in handout) • We will do lots of samples in class and some as written submissions

21. DQ1.03: Relevance of Facts ( Skills Work)Relevance of Dates of Legal Authoroties • You should always pay attention to dates because they • Shows context in which court is deciding case so you can better understand meaning of opinion (e.g., Blackout curtains) • Can be basis of “Times Change” form of argument (e.g., meaning of Interstate Commerce in US Constitution) • I choose music for each class tied to assigned material for that day, often focused on the date the date. • Beckman = 1956 • Few of you have strong working knowledge of Daytona 1956 • 2L/3L: Eisenhower Admin :: Me: Harding Admin :{

22. Music to Accompany Beckman (1956 = Elvis!!): Elvis’ Golden Records (1958) featuringHeartbreak Hotel (1956) Teddy Bear (1957)Miami (8/56) Daytona (8/56)

23. Beckham DQ1.03: Relevance of Facts(a) Both properties fronted onto U.S. 1; the date was 1956. Compare Florida 1956 --> 2016 • State Population: ~3,8 million  ~20.7 million • Significant Cuban influx doesn’t begin until 1959, so 1956 still = traditional Southern state demographics • # US Congressional Districts: 8  27 • Differences besides population that might affect role of US1 in case?

24. Beckham DQ1.03: Relevance of Facts(a) Both properties fronted onto U.S. 1; the date was 1956. Compare Florida 1956 --> 2016 • I-95 doesn’t exist in FL in 1956 • Initial sections in JAX (1959) & Miami (1961) • Daytona not connected to JAX until 1967 • Final stretch of highway connecting West Palm and Fort Pierce not complete until 1987 (!) • Relative price of air travel drops sharply Relevance to Case of Proximity to US 1? 1.03(b): Relevance of Proximity to RR?