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Messages - J D

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1
Current Law Students / Re: adverse possession exam question
« on: December 28, 2006, 02:13:07 PM »
It's probably about adverse possession, since talking about mistake and restitution would, I would think, go beyond the normal scope of property class.  That's more the bailiwick of the law of contracts and/or restitution, I believe.

Okay, I agree with your statement that he would not necessarily need to rely on adverse possession since the mistaken title has both Lots listed. I think your questions made me realize where I kept trippng up on this problem. I believe (and hope) that my exam question asked if X had a claim over Lot 2 under adverse possession. This is where I stated that he probably would not because of my arguments listed prior to this posting. I really hope that the question addressed adverse possession or else I missed the issue that you raised. Thanks for the help.


It's been a while since property class for me, but I think I'd want to know more facts which could make the approach to the problem simpler.  First, just to be clear, the question is whether the grantee is adversely possessing the lot he was in fact conveyed by mistake, correct?  Well, if so, that seems weird, considering that he's the record owner of Lot 2, right?  Usually, the record owner has no need to claim adverse possession, since he can rely on the fact that the deed has his name on it to establish ownership (unless there's been a fire at the registry of deeds or something).  I guess he'd want to rely on adverse possession, also, since his title to Lot 2 is basically voidable, subject to rescisssion (and probably a claim in restitution) when the grantor learns of his mistake. 
 
Also, making some typical factual assumptions (i.e., that nobody knows of the mistake until essentially the time of the lawsuit, as seems to be the case in a lot of mistake cases; still I'd want to know more), it seems unlikely the adverse possession claim would succeed, since it's unlikely the grantee has made actual, owner-like use of Lot 2.  This is what I'd want to know more about: has he acted like an owner with respect to Lot 2?  Did he put a fence up around it?  Did he put any fixtures on it, like a toolshed, a birdbath, a swing set?  Did he cut the grass on it?  Did he give permission for anyone else to do such things?  I don't see why he would unless he knew of the mistake and chose not to tell the grantor, and even were that the case, in the real world, wouldn't it be more likely that the grantor (unless he's absent or something), would see grantee cutting the grass, and say "what are you doing? This is my land."  Then he'd probably learn of the mistake and seek restitution/rescission.  All of this would likely take place well within the adverse possession statute of limitations (which can be as long as 20 years in many states).

I'd like to know more, because the problem as given doesn't quite make sense to me.   ???  But I think your instincts, i.e., examining whether there was actual possession/use, are right on. 
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2
Current Law Students / Re: adverse possession exam question
« on: December 28, 2006, 09:37:49 AM »
Lot 2 was conveyed, but it was accidently conveyed. The conveyance was supposed to be only for Lot 1. I guess we can simplify the issue to whether a grantee can have a claim of right over a lot of property if it was accidently conveyed BUT never actually occupied by the grantee.

I could be wrong as my brain has just started re-solidifying again after finals. But I thought that lot 2 was conveyed, and assuming there is nothing wrong with the Deed, there would be no color of title but good title to lot 2. Now, adverse possession would be running as against the true owner of lot 1.

But also, it would also depend on if there was an actual true owner (besides the grantor) of lot 2. Because, if there was a true owner of lot 2 then he would have to take possession of lot 2 and stay there for required time. I see it as this, another owner of lot 2 = color of title, not another owner = good and clear title.

It's been a while since property class for me, but I think I'd want to know more facts which could make the approach to the problem simpler.  First, just to be clear, the question is whether the grantee is adversely possessing the lot he was in fact conveyed by mistake, correct?  Well, if so, that seems weird, considering that he's the record owner of Lot 2, right?  Usually, the record owner has no need to claim adverse possession, since he can rely on the fact that the deed has his name on it to establish ownership (unless there's been a fire at the registry of deeds or something).  I guess he'd want to rely on adverse possession, also, since his title to Lot 2 is basically voidable, subject to rescisssion (and probably a claim in restitution) when the grantor learns of his mistake. 
 
Also, making some typical factual assumptions (i.e., that nobody knows of the mistake until essentially the time of the lawsuit, as seems to be the case in a lot of mistake cases; still I'd want to know more), it seems unlikely the adverse possession claim would succeed, since it's unlikely the grantee has made actual, owner-like use of Lot 2.  This is what I'd want to know more about: has he acted like an owner with respect to Lot 2?  Did he put a fence up around it?  Did he put any fixtures on it, like a toolshed, a birdbath, a swing set?  Did he cut the grass on it?  Did he give permission for anyone else to do such things?  I don't see why he would unless he knew of the mistake and chose not to tell the grantor, and even were that the case, in the real world, wouldn't it be more likely that the grantor (unless he's absent or something), would see grantee cutting the grass, and say "what are you doing? This is my land."  Then he'd probably learn of the mistake and seek restitution/rescission.  All of this would likely take place well within the adverse possession statute of limitations (which can be as long as 20 years in many states).

I'd like to know more, because the problem as given doesn't quite make sense to me.   ???  But I think your instincts, i.e., examining whether there was actual possession/use, are right on. 

3
Job Search / Re: When should 1L start looking for a summer job?
« on: December 27, 2006, 09:32:22 PM »
NALP only includes the large firms.  There are lots of small firms that you can apply to whenever!

Perhaps, but many smaller firms may work on much later hiring schedules than the larger firms, since they aren't able to predict their needs as far in advance.  So if you apply now, it probably won't help (and there is a chance, however, small, that they might misplace your materials or just forget about you in the meantime).

5
Current Law Students / Re: Torts Question
« on: December 18, 2006, 10:16:06 PM »
What I don't get is, if the question is about products liability, what does negligence have anything at all to do with it??  Since products liability does not require a showing of negligence at all because it is strict.

There are different forms of products liability torts.  Manufacturing defects (meaning a unit that doesn't conform to the manufacturer's specifications, and thus causes harm; the thing is dangerous because of how that particular unit was manufactured--something went wrong in the assembly line--but isn't dangerous as designed) are strict liability.  But there are also design defects (i.e., the product, as designed, is dangerous; it causes harm to someone even when it is manufactured to conform perfectly with the manufacturer's specifications--the harm is attributable to the way in which the product was designed, not to anything that happened on the factory floor) and defective warning/labeling issues, which are basically judged according to a negligence standard.

6
Current Law Students / Re: Civ Pro Question
« on: December 17, 2006, 03:18:49 PM »
The issue is one of offensive, non-mutual collateral estoppel, or in english, arguing that the prior finding against the same defendant (e.g., that he was negligent) precludes him from asserting something different in this new case.  Basically the logic is like this: you're the defendant, and you cause this accident, hurting a bunch of people.  One of the people who got hurt sues you for negligence and wins.  You already had the chance, and plenty of incentive, to contest the first allegation that you were negligent, so why should we as a society have to suffer through another trial (or fifty more trials for that matter) where you get more chances to deny your negligence, when there's already  one court out there who found that you were negligent?

As for whether the secondcomer has a good argument for collateral estoppel, it depends.  For defendant to be precluded, it has to be the same issue in both cases, and in the prior case, that issue must have been actually litigated (rather than waived or conceded) and necessary to the judgment.  Without knowing more about the facts (like whether the plaintiff in the old case raised alternative theories that could have provided the basis for recovery, etc.), it's hard to tell whether there's a good argument here.

7
Current Law Students / Re: Privity and Covenants
« on: December 16, 2006, 12:54:23 PM »
I understand that the differences between covenants, easements, and equitable servitudes.  However, I am still a little confused as to how privity, both horizontal and vertical, play into covenants. 

1.  Suppose A subdivides his land and provides B with a covenant.  Then B sells to C.
-A and B have horizontal privity; B and C have vertical privity.
-There would be neither horizontal nor vertical privity between A and C, right?  Then how would the burden/benefit run?

2.  Same as above, except now suppose A then sells to D. 
-A and B have horizontal privity; B and C have vertical privity; A and D have vertical privity?
-There would be neither horizontal nor vertical privity between D and C, right?  Then how would the burden/benefit run?



You seem to be confused about what it means for the benefit or burden to run.  Basically, what we're talking about here is the ability of a successor in interest to one of the two parcels affected (either the benefited parcel, or the burdened parcel) to sue (running of the benefit) or be sued (running of the burden) on the covenant.  The burden or the benefit always "runs" from one of the original parties to the contract to that party's successor in interest. 

So if B is the original promisor and the original owner of the burdened parcel, B's burden under his contract with A, i.e., his ability to be sued on the covenant by the owner of the benefited parcel, runs to his successor, C, depending on whether all the elements are met.  Conversely, if A is the original owner of the benefited parcel, then (again if all the elements are in place) it is A's benefit, i.e., his ability to sue the owner of the burdened parcel on the covenant, that may run to D, his successor.  If you're diagraming the situation, there will be lines of privity or contractual relationships between A and B, B and C, and A and D.  But there's no expectation that you'd have to draw a line (i.e., have a contractual relationship) between C and D, or A and C, for them to be able to sue each other.  Indeed, that's the whole point of the law of servitudes: how can you make a contract formed between two landowners bind successors who weren't parties to its making?  If there were some contractual relationship between A and C, or C and D, we wouldn't need real covenants or equitable servitudes at all: they'd just sue on the contracts that they've made between themselves.

I see the situation as a special kind of assignment, in a way (although I don't think you should talk about it like this on the exam): if you follow all the formal rules, it allows the successors to "step into the shoes" of the original parties to the covenant and sue or be sued on the covenant just like the original parties would.  We are dealing with, at bottom, a contract between two landowners, and the issue is how the law can allow the contract to be binding on people who were not parties to its making.

8
Current Law Students / Re: Joinder Question- Help!
« on: December 14, 2006, 10:32:09 PM »
Actually, our prof always made the point that you need to check for diversity and federal question jurisdiction before jumping to supplemental jurisdiction, so in that way it matters. But for defendants joining parties, a lack of diversity would not defeat supplemental jurisdiction. However, in your scenario, P could not assert a claim against D2 because that would defeat the purpose of the statute, which is to avoid collusion between P and D1.

What exactly do you mean by this?  If I'm understanding you correctly (and I very well might not be), you're saying that whether parties are later joined to the lawsuit doesn't defeat supplemental jurisdiction over claims against the parties who are joined if they happen to be non-diverse.  This doesn't seem to follow from 28 USC 1367(b); in fact, quite the opposite.   ???

I think the source of my confusion is with your statement that "a lack of diversity would not defeat supplemental jurisdiction."  What do you mean by this?  Supplemental jurisdiction over which claims brought against whom?  ???

9
Current Law Students / Re: Violation of fourth amendmant right?
« on: December 13, 2006, 06:27:10 PM »
Because there's no reason to believe he drank them in the car?

Police can't search a car on less than probable cause unless it's a "stop and search for weapons" search if I remember crim pro (a year and a half ago) correctly. 

Yeah, I just realized how long it's been.  I'm probably a bad person to ask. ;)

But there's still enough to persuade a person of reasonable caution that the driver has been driving while intoxicated.  Sounds like probable cause to believe that a crime has been committed to me.  Not sure what this means, though, since I'm not in crim pro.

10
Current Law Students / Re: Torts sample 3
« on: December 13, 2006, 01:40:39 PM »
why do so many people view but not even respond?

Maybe because they either a) have enough torts problems to work through in the real world during exam week, and/or b) have already taken their torts finals and never want to think about zany negligence hypos ever again.  Just a thought.   ;)

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