Trespass

Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the...

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Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than... Read more about Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

"Massachusetts rule" reaffirmed: no liability if an overhanging tree damages neighboring property

A Massachusetts court has reaffirmed the "Massachusetts rule" that "an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies." Shiel v. Rowell, 2017 WL 3616892 (Mass. App. Div. 2017), citing Ponte v. DaSilva, 446 N.E.2d 77 (Mass. 1983). The court noted the contrary "Hawaii rule" that does make a tree owner financially responsible if her own trees overhangs neighboring property and damages it.

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this "possession" will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use -- rather than full occupation or "possession" -- is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the...

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Seventh Circuit holds that transgender discrimination is a form of sex discrimination

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy's bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v....

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Adverse possessor has trespass claim against original owner

In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession.

The court also reaffirmed the rule that one can commit a trespass by mistake if entry...

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Legal aid access to farm to aid migrant farmworkers held not to be a trespass

In a case reminiscent of the well-known case of State v. Shack, , 277 A.2d 369 (N.J. 1971), a federal judge applying Maryland state law has held that lawyers have a right to enter farmland to provide services to migrant farmworkers and that such an entry is not a trespass even if it is against the wishes of the land owner. Rivero v. Montgomery Cnty... Read more about Legal aid access to farm to aid migrant farmworkers held not to be a trespass

An owner can obtain property by acquiescence even if the neighboring land is unoccupied

The Utah Supreme Court has held that an owner can obtain property "by acquiescence" if the owner occupies a strip of the neighbor's land in a visible manner without objection.  Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although "acquiescence" suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it...

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Informal border change by acquiescence

The Utah Supreme Court has affirmed and applied the doctrine of "boundary by acquiescence" under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by...

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