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CHAPTER 1: THE RIGHT TO EXCLUDE

Landownership: “bundle of sticks” = subsidiary rights
• Right to use as you want in the present
• Right to use it as you want in the future
• Right to leave it in a will/sell it/lease it
• Right to extract minerals, take crops
• Right to exclude other people

Trespass

JACQUE v. STEENBERG HOMES, INC. (WISC. 1997)
Facts: Π deny ∆ access to land to move mobile home. ∆ does not adhere and does it anyway.
Procedural History: No compensatory damages because nothing was damaged. Jury awarded $100,000 in punitive damages for the ∆’s wanton actions.
Holding: Where a person/company intentionally trespasses against property owner’s request & there’s no physical damage, punitive damages are appropriate.
Rationale: Intentional trespass causes “actual harm” to the property owner even if the harm is non-monetizable (liability, nuisance, privacy).
This was wanton, malicious trespass.
The right to exclude if one of the “most essential” rights of a landowner
Why is putting up a wall or fence not the ideal solution?
o Could interfere in case of emergency; devalues property if there’s a view
o Puts burden on landowner (morality – shouldn’t HAVE to; economic – unfair cost)
• Are you going to be able to run a business/factory if you can’t keep people who aren’t paying from wandering through? (Dept. of Commerce concern)
• Cost benefit = cost to trucks v. physical harm to property + non-monetizable harms → now it’s no longer more efficient

Private Property Not Open to Public

STATE v. SHACK (N.J. 1976)
Facts: Shack (∆1) was a staff attorney for a non-profit organization funded by the Office of Economic Opportunity pursuant to an act of Congress. Tejeras (∆2) was a field worker for another non-profit organization funded by the same act. The organizations sought to provide medical and legal assistance to migrant farm laborers. Tejeras sought to enter Tedesco’s property in order to administer medical and legal assistance to a laborer who needed to have stitches removed. Shack sought to enter the property to provide legal assistance to another laborer and accompanied Tejeras. Tedesco demanded that Shack and Tejeras’s visits must be conducted in the office and refused unsupervised access to the laborers in their living quarters.
Issue: Does the ownership of real property include the right to bar access to governmental
services by migrant laborers working on the property?
Rationale: Power disadvantage between workers & farmer; they have little bargaining power
• More unskilled laborers than there are jobs; threats of farmer-favored contracts to replace workers with demands
• Less education, language barrier
• It’s generally cheaper to have parties do it themselves than state regulation
• Autonomy idea so people know for themselves to determine personal interests
o Benefit of individual rights for masses > benefit to society of individualized property ownership
Supremacy clause argument: interference with enactment of federal law (people trying to get onto the land)
1st Amend argument: usually limit on governmental power, not private powers (MARSH)
• Like a company town, but there’s other ways to contact them and the farm doesn’t mimic a town
Right to counsel argument: migrant workers have a right to access lawyers
• Court doesn’t want to rely on Constitution; Fundamental Right ≠ fundamental right

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