Land Use Law Report
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Articles for the year 2018

 
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Total Result(s) Found: 66

 

Land Use Law Report, Volume 46, Number 12, December 2018

Religious Use

 

A Zoning Reg Can Be The Basis Of An RLUIPA Claim

Monday, December 03, 2018

Facts: Faith Fellowship Foursquare Church (Church), a local affiliate of International Church of the Foursquare Gospel (ICFG), wanted to build new church facilities in the City of San Leandro (City). The Church had outgrown its existing facilities, and its full congregation could no [...]

Undesirable Land Use: Chicago May Have Violated RLUIPA By Denying License To House Homeless

Monday, December 03, 2018

Facts: In 2005, the World Outreach Conference Center (World Outreach), a religious organization, bought an old YMCA in an impoverished area of Chicago. The YMCA had used its facility as both a gym and as temporary housing for otherwise homeless people. The building’s use for single-room occupancy (SRO) is no [...]

Indianapolis Pastor May Have RLUIPA Claim Against City’s Zoning Decisions

Monday, December 03, 2018

Toby Digrugilliers (Digrugilliers), pastor of the Baptist Church of the West Side, led a small congregation in a leased building located in a part of Indianapolis zoned “C-1.”The City of Indianapolis Zoning Code (Code) forbade religious uses in C-1 districts absent a zoning variance. The Code noted that C-1 districts were commercial districts [...]

Discriminatory Treatment May Create Substantial Burden Under RLUIPA

Monday, December 03, 2018

In 2001, the Albanian Associated Fund and Imam Arun Polozani (Plaintiffs) purchased a property to expand their mosque. The property, located in the Township of Wayne (Township), possessed certain geographic qualities so as to be considered “environmentally sensitive” by the Township. By October 2001 Plaintiffs had closed on the property [...]

In Biz Zone, City Cannot Prohibit Church But Allow Private Clubs

Monday, December 03, 2018

Facts: The Elijah Group, Inc. (Elijah), a church, sued the City of Leon Valley, Texas, alleging that the city had violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) by amending its zoning code. Until March 2007, the city’s zoning code allowed churches [...]

‘Leapfrog Development’ Defense Fails To Hurdle Imposition Of Substantial Burdens

Monday, December 03, 2018

The U.S. Court of Appeals for the Ninth Circuit remained silent on any discriminatory intentions of Sutter County, California after the County denied a Sikh society permits to build a small temple on two separate occasions. However, the court did clearly state that the County’s actions constituted a substantial [...]

 

Land Use Law Report, Volume 46, Number 11, November 2018

Takings

 

6-Month Abandonment Rule For Mobile Homes Creates A Taking

Tuesday, November 13, 2018

Facts: Under a zoning ordinance enacted by the Village of Lodi, Ohio, mobile home parks were not permitted on properties zoned R-2. Both Sunset Properties, L.L.C. (Sunset) and Meadowview Village, Inc. (Meadowview) owned properties zoned R-2 on which they operated mobile home parks. [...]

Annexation that Shuts Down Fireworks Business Is Not a Regulatory Taking

Tuesday, November 13, 2018

Facts: In 2003, Pearson’s Fireworks (Pearson’s) leased land outside the city limits of the City of Hattiesburg, Mississippi. Pearson’s sold fireworks on the land during the month before the Fourth of July and during the weeks before New Year’s Eve. In 2006, the property&rsquo [...]

‘Commandeering’ Is A Type Of Taking, Subject To 3-Year Time Limit

Tuesday, November 13, 2018

Facts: Following Hurricane Katrina, the State of Louisiana “commandeered” property belonging to Frank LaBruzzo by an executive order on February 10, 2006. The State used LaBruzzo’s property to repair a levee and floodwall and to build a canal. LaBruzzo has not been able to access or [...]

Condemned Property’s Value Is Determined Singly---Not As Combined With Other Properties

Tuesday, November 13, 2018

Stephens Production Company (Stephens) sought to condemn easements in order to complete an underground natural gas storage facility. The Oklahoma Underground Storage of Gas statute gives any public utility, like Stephens, the power to “condemn for its use for the underground storage of natural gas any subsurface substratum or [...]

Fear Of Future Flooding Can’t Support A Physical Takings Claim

Tuesday, November 13, 2018

Facts: The U.S. Army Corps of Engineers (Corps) built the Prado Dam on the Santa Ana River near Corona, California, in 1941. When the Corps built the dam, it acquired flowage easements over properties in the flood control basin, up to an elevation of 556 feet above sea level. Plaintiffs Stueve Bros. Farms, LLC and [...]

No Taking When Police Bulldozed A Store

Tuesday, November 13, 2018

Facts: Police serving the City of Spartanburg, South Carolina chased an armed man into a convenience store, where he took a hostage. Negotiations failed, as did attempts to induce surrender using tear gas and pepper spray. After twelve hours, the police used a bulldozer to enter the building to rescue the hostage. [...]

 

Land Use Law Report, Volume 46, Number 10, October 2018

Ordinances

 

Open Meeting Law Means Public At Least Gets To Listen In

Wednesday, October 03, 2018

Facts: John Noble and Cedar Ridge Homes, Inc. (Cedar Ridge) own 152 acres in Kootenai County, Idaho. In 2006, Cedar Ridge applied to build a subdivision that contained 20 five- to ten-acre lots and included a 70-acre no-build area, “the meadow,” which is a wetland subject to frequent flooding. In 2007, [...]

Private Citizens’ Suit To Enforce Landfill Ordinance Doesn’t Affect Vital State Function

Wednesday, October 03, 2018

Facts: In 1984, Solano County, California passed a voter-enacted ordinance restricting the import of out-of-county solid waste to 95,000 tons per year. In 1992, the County stopped enforcing the ordinance after legal counsel concluded that the ordinance was likely an unconstitutional violation of the dormant Commerce [...]

Noisy Airboats Can Be Nuisance Even When Rule-Abiding

Wednesday, October 03, 2018

Facts: Wayne L. Neidlinger, doing business asCaptain Fred’s Airboat Nature Tours (Captain Fred’s), operates commercial airboat tours on Lake Hamilton in Florida. These tours generate noise levels up to 100-110 decibels when the airboats come within 1,500 feet of the shoreline. People live along the shore [...]

Scenic View Ordinance Too Vague To Enforce

Wednesday, October 03, 2018

Facts: Brendan Cunney sued the Board of Trustees of the Village of Grand View, New York, along with the village’s Zoning Board of Appeals (ZBA) and its building inspector, Joseph W. Knizeski. Cunney alleged that a village zoning ordinance was void for vagueness [...]

Tattoo Artist Challenged City’s ‘Unbridled Discretion’ Under First Amendment

Wednesday, October 03, 2018

Facts: James Real owns a tattoo shop in Huntington Beach, California and has long wanted to open one in nearby Long Beach. But the City of Long Beach has a restrictive zoning ordinance when it comes to tattoo shops. They are forbidden in most parts of Long Beach, and where they are permitted, they [...]

County Properly Used ‘Surrogate Questions’ To Interpret Ordinance

Wednesday, October 03, 2018

Facts: Larry Kaplowitz and Karin Marcus wanted to convert part of a horse barn into a “sanctuary” containing a yoga/dance/music studio, guest room, recording study, and bathrooms. The owners planned to use the sanctuary themselves each day and to share it with small groups of friends on [...]

 

Land Use Law Report, Volume 46, Number 9, September 2018

Historic Preservation

 

Historic Preservation: Last Bicentennial Mural May Be Saved As A ‘Historic Property’

Thursday, August 30, 2018

Facts: In 1976, numerous works of public art were created to memorialize the United States’ bicentennial. One such work is the “Bicentennial Freedom Mural” painted on the spillway of the Prado Dam in Corona, California. The mural was designed and painted by high school students, and it is one of the last remaining [...]

Despite Overwhelming Evidence Of Grave Desecration, Defendant Gets New Trial

Thursday, August 30, 2018

Facts: In 1923, the Crystal Block Coal & Coke Company leased land in Logan County, West Virginia, to establish a mining town for company employees. The mining town, Crystal Block Hollow, included a cemetery for company employees and their families. Crystal Block Hollow is now defunct, and Equitable Production [...]

Landowner May Recover Greater Loss Than Market Will Bear For Lost Trees

Thursday, August 30, 2018

Facts: In 1991, plaintiff George E. Morabit bought 53 acres in North Kingstown, Rhode Island. The property abutted property owned by defendant Dennis Hoag. Most of Morabit’s property was undeveloped woodland, and a stone wall marked the boundary between his land and Hoag’s. In the early [...]

More Intensive Use Allowed Under ‘Flexibility Of Design’ Zoning Reg

Thursday, August 30, 2018

Facts: In 2013, the Zoning Commission for the District of Columbia (Commission) approved a planned unit development (PUD) on 22 acres of the Southwest Waterfront. The petitioners in this case challenged the decision to rezone just one parcel. The petitioners live in historic Tiber Island, a large townhome cooperative [...]

Neighborhood’s Generalized Grievances Weren’t Enough To Challenge Cruise Ship

Thursday, August 30, 2018

Facts: The Fantasy, an 855-foot-long cruise ship that rises more than 60 feet above the water line, uses the Union Pier Terminal in Charleston, South Carolina as its home port. The Union Pier Terminal is located in Charleston’s Old and Historic District, and four citizens’ groups sued the Fantasy’s owner, Carnival [...]

No Legal Right To Physical Entry Is Required To Show ‘Injury In Fact’

Thursday, August 30, 2018

Facts: In 2009, environmental and historical preservation groups succeeded in obtaining Blair Mountain Battlefield’s listing in the National Register of Historic Places. Blair Mountain, in Logan County, West Virginia, is the site of the largest armed labor conflict in American history. In 1921, approximately 5,000 West Virginia [...]

 

Land Use Law Report, Volume 46, Number 8, August 2018

Due Process

 

Approving Wind Turbines Does Not Make Federal Agency Liable For Bird Deaths

Thursday, August 02, 2018

Facts: The Bureau of Land Management (BLM) granted to Tule Wind, LLC a right-of-way to build and operate about 150 wind turbines on federal land in San Diego County, California. The BLM approved the grant after conducting an environmental impact statement, obtaining modifications to the original wind [...]

Building Bridge Through Park Was Reasonable Where Alternative Was More Harmful

Thursday, August 02, 2018

Facts: The City of Port St. Lucie in Florida has needed a third vehicle bridge since at least 1980. The two that cross the North Fork St. Lucie River have been beyond traffic capacity for decades. Merely widening the bridges wouldn't relieve the traffic, and so, after much study and consultation, the City decided to [...]

Buyer Wins $230,000 Because Sellers Didn't Disclose Property's Wetlands Violations

Thursday, August 02, 2018

Facts: Plaintiff Favero Farms, LC bought 20 acres of Utah farmland from H. Dan and Tami Baugh. The parties’ sales contract included a warranty against encumbrances and a warranty to deliver the property "in generally accepted agricultural condition." The Baughs did not [...]

Clean Water Review Of Highway Sections Was Not Improper “Segmentation”

Thursday, August 02, 2018

Facts: The Federal Highway Administration and the Indiana Department of Transportation (transportation agencies) determined that the existing routes covering the approximately 150 miles between Indianapolis and Evansville were insufficient. The direct route between them was narrow and overcrowded, plagued by traffic accidents. And [...]

Court Gives Go-Ahead To Demolish Historic Buildings Near Canadian Border

Thursday, August 02, 2018

Facts: The Campaign for Buffalo History, Architecture and Culture, Inc. (the Campaign) challenged a plan to demolish several historic properties in Buffalo, New York. The properties were owned by the Buffalo and Fort Erie Public Bridge Authority (Bridge Authority), a "product of a compact between [...]

Elementary School Can Build Four-Acre Solar Energy Field

Thursday, August 02, 2018

Facts: The Northampton Area School District owns 19 acres of land in Lehigh Township, Pennsylvania, and it wanted to install a solar energy field, consisting of 7,000 solar panels, on four acres of that land to help power an elementary school. The School District applied to the Lehigh Township Zoning Hearing [...]

 

Land Use Law Report, Volume 46, Number 7, July 2018

Eminent Domain

 

Amtrak Couldn't Challenge Condemnation 7 Years After It Knew Of Its Injury

Tuesday, July 03, 2018

Facts: In 2001, the New York State Department of Transportation (NYSDOT) began negotiating with the National Railroad Passenger Corporation (Amtrak) to purchase some of Amtrak’s property. NYSDOT planned to build an urban parkland called the Bronx River Greenway, and to do so required building [...]

City Owes $4.25 Million For Delayed Condemnations In Road Project

Tuesday, July 03, 2018

Facts: In 2002, the City of North Las Vegas began planning and building a super-arterial roadway to relieve regional traffic congestion from Interstate 15. Part of the plan was to widen North 5th Street by 150 feet. To accommodate this change, the City changed its Master Plan of Streets and Highways to provide that all new development applications be conditioned [...]

Pawn Shop Entitled To Variance Because Eminent Domain Uniquely Burdened Property

Tuesday, July 03, 2018

Facts: William Jachimek leased the building on an odd corner lot in the City of Phoenix, Arizona. The parcel has some unusual physical features caused by an eminent domain action: the property is much smaller than any of the nearby corner lots with the same zoning designation (C-3). Because the frontage [...]

Judges Must Consider Zoning Change Likelihood In Eminent Domain Cases

Tuesday, July 03, 2018

Facts: In 2002, developer 66 East Allendale, LLC (East Allendale) bought 2.13 acres in the Borough of Saddle River, New Jersey (the Borough). The property was split-zoned, with about one third of the property in the office zone (O-1) and two thirds in the residential zone (R-1). The O-1 zone permitted [...]

Reservoir Commission With Private Member Could Not Condemn Property

Tuesday, July 03, 2018

Facts: Eight municipal agencies and one corporation banded together and created the Clarke County Reservoir Commission (Commission), which condemned private property in order to create a new reservoir in Clarke County, Iowa. The landowners, including Linda Sue Abbott and the Edwin D. and Deloris [...]

 

Land Use Law Report, Volume 46, Number 6, June 2018

Constitutional Amendments

 

5th Amendment Gives Lessors Compensable Interest In Real Property

Friday, May 25, 2018

Facts: George R. Isely, as Trustee of the Mildred L. Isely, et al. (Isely) brought an inverse condemnation action against the City of Wichita (the City) regarding land he owned and leased to Starr Holdings, LLC (Starr). Starr had signed a “Public Street And Utility Easement,” which “purports to grant the City a permanent [...]

7 Mistakes A Land Use Expert Witness Must Avoid

Friday, May 25, 2018

Facts: Plaintiff Brace, owner of 600 acres in Erie County, Pennsylvania, filed an action in the United States Court of Federal Claims claiming a regulatory taking of his property in violation of the Fifth Amendment to the Constitution. A portion of his property was considered to be wetlands under the Clean [...]

11th Amendment Protects States From Federal Takings Claims

Friday, May 25, 2018

In 1998, Montana passed a ballot initiative banning open-pit mining using cyanide heap leaching, which is now codified at Mont. Code Ann. § 82-4-390. Because Seven Up claimed that open-pit mining using cyanide heap leaching was the only mining method feasible on the leased land, the Montana Department of Environmental Quality (the DEQ) stopped [...]

City Cannot Bar Charter School From Commercial Zone

Friday, May 25, 2018

Facts: Albany Preparatory Charter School owns a building in Albany that for 70 years before its conversion to commercial office space was a public school. Albany Prep wants to convert the property back to a school and build an addition. The property is located on a split-zoned lot, half in the C-1 neighborhood commercial zone and half [...]

City Ordinance Limiting Posting of Political Signage Violates Constitution

Friday, May 25, 2018

Facts: On August 17, 2006, the City of American Canyon (the City) adopted an ordinance regulating political signs. The ordinance purported, in relevant part, to (1) limit the installation or display of political signs to the 90 days preceding the election for which the sign was intended; (2) forbid the posting of political signs on [...]

Undesirable Land Use: Growing Weeds Is Not A First Amendment “Expressive Act”

Friday, May 25, 2018

Facts: Discount Inn, Inc. (Discount Inn), a company that owns some empty lots in the City of Chicago, violated two City ordinances: a weed ordinance and a fence ordinance. The weed ordinance requires property owners to keep all of the “weeds” on their properties to an average height of [...]

 

Land Use Law Report, Volume 46, Number 5, May 2018

Nuisance

 

Cell Tower’s ‘Invasive’ Lights Not A Nuisance, Caused No Physical Harm

Thursday, April 26, 2018

Facts BoDe Tower, L.L.C. (BoDe) properly constructed a telecommunications tower in Muskogee County, Oklahoma. BoDe acquired all of the necessary federal, state, and local permits. It also consulted with local Native American tribes, who did not object to the tower. After learning of the proposed tower, owners of a neighboring property [...]

In Vermont, Ugly Is Still Not A ‘Nuisance’

Thursday, April 26, 2018

Facts: Peck Electric Company and Solarcommunities, Inc. (defendants) leased land in Vermont for the purpose of building commercial solar arrays. Neighboring landowners sued the defendants for private nuisance, alleging that the solar arrays “negatively affected the surrounding area's rural aesthetic,” which [...]

Living Restriction For Sex Offenders Is ‘Zoning Law’ Under RLUIPA

Thursday, April 26, 2018

An Alabama statute making it a public nuisance for sex offenders to live in the same home or on the same property within 300 feet of each other could violate the Religious Land Use and Institutionalized Persons Act (RLUIPA). In this example, the state applied the statute to a single property that both housed sex offenders and operated as a Christian [...]

Pop-Up Beer Garden In Residential District Can Stay---Even Without Use Permit

Thursday, April 26, 2018

Facts: The owners of two bars and a liquor store partnered with the owner of a vacant lot in Philadelphia (collectively, the owners) to create a “pop-up beer garden.” The vacant lot is in an area of Philadelphia zoned for residential, multi-family use. The owners planned to run the beer garden during the summer with limited [...]

Wild Animals’ Stench May Be Unpleasant, But It’s Not A Public Nuisance

Thursday, April 26, 2018

Facts: La Jolla Cove in the City of San Diego has become home to a large and growing sea lion population. The sea lions produce excrement that builds up on the bluffs of the cove. This buildup causes “foul and noxious animal waste odors,” which nearby residents and business owners find quite unpleasant. [...]

Poor Wall Design Or Not, Architect Wasn’t Liable For A Public Nuisance

Thursday, April 26, 2018

Facts: Gregg Fisk fell off a retaining wall owned by the Town of Redding, Connecticut. Fisk was injured by the fall, and he sued the firm that designed the wall, BL Companies, Inc. (BL). Fisk alleged that the wall constituted a public nuisance because it did not have protective fencing [...]

 

Land Use Law Report, Volume 46, Number 4, April 2018

Negligence

 

In Washington, Property Owners Owe No Duty Of Care To Protect Neighbor’s Trees

Friday, March 30, 2018

Facts: Jennifer Mustoe had two large Douglas fir trees on her property in Rainier, Washington. The trees were only 2.5 feet from the adjacent property owned by Xiaoye Ma and Anthony Jordan. In 2013, Ma and Jordan dug a ditch along the property line. To create the ditch, they severed [...]

Sewer Gas Nuisance Case Pared Down By Notice Requirement

Friday, March 30, 2018

Facts: Raymond Kerr owns a house in the City of South Bend, Indiana, about two miles from an ethanol plant. Kerr’s house is attached to a main sewer line via a lateral sewer line. The City owns and maintains the main sewer line, and Kerr owns and maintains the lateral sewer line. In 2001, a member [...]

Nuisance, Trespass & Negligence Claims Require Expert Opinion Regarding Contamination

Friday, March 30, 2018

At the time of the spill, James Ryan lived about 2.8 miles northwest of the spill site and about half a mile from the Emory River, where much of the sludge ended up. Ryan alleged that the coal ash "physically invaded and contaminated" land near his property, which caused his property value to drop along with his use and enjoyment [...]

Clean Air Act Does Not Preempt State Nuisance, Negligence Claims

Friday, March 30, 2018

Facts: Brown-Forman Corporation and Heaven Hill Distilleries, Inc. (together, Brown-Forman) operate whiskey distilleries in Kentucky. As part of the production process, the distilleries emit ethanol vapor into the atmosphere, which brings the emissions within the purview of the federal Clean Air Act [...]

Federal Flood Statute Doesn’t Preempt Negligence Claims Against Flood Determiners

Friday, March 30, 2018

Facts: Matthew and Carolynn Fonder bought property in South Dakota, near the Missouri River. As required by the National Flood Insurance Act (NFIA), the Fonders’ lender, Wells Fargo Bank, N.A., selected a third-party flood determiner to determine whether the Fonders’ property [...]

 

Land Use Law Report, Volume 46, Number 3, March 2018

Federal Emergency Management Agency (FEMA) cases

 

FEMA Must Reimburse For Differing Conditions On Repair Project

Friday, February 23, 2018

Background: In 2005, Hurricane Katrina flooded the Templeman detention facility in New Orleans. In 2006, FEMA issued a project worksheet for repair work necessary to return portions of the facility to pre-disaster condition. Orleans Parish Sheriff’s Office (OPSO [...]

Federal Flood Insurance Law Preempts State Challenges To FEMA Methods

Friday, February 23, 2018

Facts: The Federal Emergency Management Agency (FEMA) hired Dewberry & Davis, LLC (Dewberry) to provide a hydraulic model of land along the Congaree River in South Carolina. FEMA used the model to reassess its flood elevation maps. Relying on Dewberry&rsquo [...]

FEMA’s ‘Phased Approach’ To Historic Preservation Review Is OK

Friday, February 23, 2018

Facts: Hurricanes Katrina and Rita severely damaged Holy Cross College, Inc. (Holy Cross) in New Orleans’ Lower Ninth Ward. Holy Cross applied for Federal Emergency Management Agency (FEMA) Public Assistance funds to build a new campus in the Gentilly neighborhood [...]

Comments On An EIS Must Timely State The Significance Of The Alleged Mistake

Friday, February 23, 2018

Facts: Karst Environmental Education and Protection, Inc. (Karst Environmental) challenged a decision by the Federal Highway Administration (Highway Administration) to build a connector road linking I-65 and U.S. 31 in Kentucky. The proposed route would cut [...]

FEMA Withheld Project Approval, So County Withheld Payment

Friday, February 23, 2018

Facts: Chambers County, Texas contracted with Pelco Construction Company (Pelco) to rebuild a firehouse. The project was to be funded by the Federal Emergency Management Agency (FEMA), but at some point after performance had already begun, Pelco was ordered [...]

 

Land Use Law Report, Volume 46, Number 2, February 2018

Constitutionality & Sexually Oriented Businesses

 

Court Stifles Free Speech Claim Since County Provides Plenty Of Opportunities For SOBs

Wednesday, January 31, 2018

Smut claimed the county violated its First Amendment right to free speech because the county did not provide reasonable alternative means for Smut to communicate, and it showed no substantial government interest in restricting AUBs. Smut also argued it was exempt from the zoning ordinance setback requirements, which the county tightened by amending [...]

City Can Regulate Sex Shops To Control Secondary Effects Without Violating Free Speech

Wednesday, January 31, 2018

The Ordinance applies to sexually-oriented businesses (SOBs), covering all manner of adult bookstores, arcades, novelty stores, theaters and dancing establishments. Provisions include operating hours of 10:00 am to 11:00 pm seven days a week, numerous sanitation requirements, and other obligations with respect to employees such as ensuring that no [...]

SOBs Contend Zoning Ordinances Put 1st Amendment Rights In Compromising Position

Wednesday, January 31, 2018

A federal court permitted adult businesses in Charlotte, NC to proceed on claims that the City’s Adult Zoning Ordinance (AZO) and Sexually Oriented Business Ordinance (SOBO) violate the First Amendment. The court denied the city’s motion for summary judgment regarding several facets of free speech claims that local adult businesses made. [...]

Prove Ordinance’s Constitutionality With Relevant Secondary-Effects Studies

Wednesday, January 31, 2018

Facts: In late 2003, Abilene Retail #30, Inc. opened The Lion’s Den at a rest stop in Dickinson County, KS. The first sexually oriented business in the county, The Lion’s Den is located off an exit ramp on Interstate 70 in an incorporated area and sells a variety of sexual devices and sexually explicit [...]

 

Land Use Law Report, Volume 46, Number 1, January 2018

Adverse Possession

 

Rural Maine Has High Bar For Adverse Possession

Wednesday, December 27, 2017

Facts: In the 1920s, the owner of a tract of land on the shore of Little Ossippee Lake in Waterboro, Maine conveyed a small lake-front lot (the disputed lot) to Clarence Fluent and a larger lot (the Weeks lot), which surrounded the disputed lot on three sides and had lake [...]

Constant Traffic Across Property Should Have Alerted Landowners Of Adverse Use

Wednesday, December 27, 2017

Facts: Dennis D. Murphy, as trustee of the Holmes Road Realty Trust (Trust), sued the Trust’s neighbors to establish a prescriptive easement across their properties. The Trust sought a 40-foot-wide right-of-way across land owned by John F. Chaves, Sr [...]

Railway Converted To Trail Cannot Be Adversely Possessed

Wednesday, December 27, 2017

Facts: Ajay Bhatt’s earliest memory of the fence in his yard is from 1977, when he was eight years old and the property belonged to his aunt. Other memories traced the fence back to 1960. Part of the fence enclosed a railroad right of way, which Montgomery [...]

Present ‘Clear, Convincing’ Facts To Prove Adverse Possession

Wednesday, December 27, 2017

Facts: In 1972, Thomas M. Helms and Barbara S. Helms bought a 102-foot-long piece of property that bordered property owned by James L. Manspile [...]

Repudiation By Co-Tenant Can Be Established As A Matter Of Law

Wednesday, December 27, 2017

Tract 1: Edward Francis Senior (Edward Sr.) moved onto Tract 1 after his mother died in 1952. He surrounded the property with a fence whose gate was always locked when he and his wife were not at home; none of his other family members had the key. Edward Sr. lived on Tract 1 until his death in 1993, and his wife continued to live [...]

 
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