July 2016

North Carolina finds taking of properties restricted from development because listed for highway takings

In Kirby v. N.C. Dep’t of Transp., 2016 WL 3221090 (N.C. 2016), the North Carolina Supreme Court held that the state took property without just compensation under the state constitution when it published maps showing where roads would be placed in the future and what properties would have to be taken to enable those roads to exist. The underlying statute imposes restrictions on properties identified on the officials maps as...

Adverse possession denied when permission was mistakenly sought from non-owner

The Wisconsin Supreme Court held in Wilcox v. Estate of Hines, 849 N.W.2d 280 (Wis. 2014), that owners who thought a strip of land was not theirs but sought permission from someone who was not the true owner cannot establish adversity even though they occupied the property without permission of the actual owner.

Servient estate owner may narrow an easement if this does not impede access to the dominant estate

The Supreme Judicial Court of the Commonwealth of Massachusetts has held that "an easement… may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened." Martin v. Simmons Properties, LLC, 2 N.E.3d 886 (Mass. 2014).

Massachusetts courts hostile to easement by necessity doctrine

In Kitras v. Town of Aquinnah, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land...

Publicity rights limited by free speech guarantees

In the well-known case of Martin Luther King, Jr. Center for Social Change v. American Heritage Products, 296 S.E.2d 697 (Ga. 1982), plaintiffs Coretta Scott King, administrator of Dr. King’s estate and Martin Luther King, Jr. Center for Social Change, and Motown Records, an assignee of the rights to several of Dr. King’s recorded speeches, sued defendants to stop them from manufacturing and selling plastic busts of Dr. Martin Luther King, Jr. The Georgia Supreme Court recognized a “celebrity’s right to the exclusive use of his or her name and likeness” and rejected...

Court refuses to allow emotional damages for negligent killing of a pet

If someone negligently kills someone else’s pet, courts generally limit damages to the market value of the animal and do not allow damages to be assessed for loss of companionship even though this amount does not adequately account for the emotional loss. In Strickland v. Medlen, 397 S.2d 3d 184 (Tex. 2013), a dog escaped the family's backyard and was picked up by the...

Homeless persons may raise defense of necessity to criminal trespass charges when entering property in winter to escape bitter cold

In Commonwealth v. Magadini, Commonwealth v. Magadini, 2015 WL 11070269 (Mass. 2016), the Supreme Judicial Court of Massachusetts ruled that a homeless man who repeatedly entered private property in winter time to escape the cold was entitled to try to convince the jury that necessity justified the entries. David Magadini was homeless and was arrested and...

Federal Circuit holds that first amendment protects right to use disparaging trademarks

In In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), the Federal Circuit held the government could not withhold trademark registration because the name was disparaging. In re Tam involved a band called The Slants and the Patent and Trademark Office had determined that the name represented a racial slur that was disparaging to people of Asian descent and thus could not be registered as a...

High-rise apartment building held to be a private nuisance

In 1922, the U.S. Supreme Court upheld the power of municipalities to enact zoning laws that limit land to residential use and even to single-family homes. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The Euclid decision suggested that apartment buildings might constitute nuisances and destroy the “residential character” of a neighborhood. Id. at 394–395. Is that a legitimate way to characterize apartment buildings and/or the people who live in them? In the 2014 case of...

Joseph William Singer

Bussey Professor of Law, Harvard Law School