Thursday, January 26, 2006

Which reminds me...

Clearly, I've abandoned the old "Tort of the Week" idea. I'm lazy, and it takes too long, and I've actually found Torts kind of dull lately. Even though we are talking about Intentional Infliction of Emotional Distress. (Outrageous!)**

However, I'm unexpectedly fascinated by my Property class. Today was all about "Adverse Possession," which is a doctrine, valid in most states, that allows you to keep property if you openly occupy it for some number of years. Usually 7 or 10 years. Wild!

One of the cases (Nome 2000 v. Fagerstrom) was from Alaska, and involved a Native American couple who had adverse possession of some land that bordered their deeded land. (In this case, they weren't knowing squatters--they thought it was theirs. I think.) The land was in an area not suitable for year round habitation, so they mainly stayed there in the summer, did some fishing, berry gathering, kept reindeer, other seasonal subsistence activities. Eventually they built a small cabin. Basically, they used the land about as much as you can use land that's north of Nome. During the trial, the deeded owner (Nome 2000) had an expert witness testify that by such use, they weren't really "occupying" the land, because Native Americans have different conceptions of property, blah de blah. How this reconciles with the fact that these Native Americans with no conception of property are there in court defending their property rights, I don't know. The court rejected this argument, and the Fagerstroms got the land.

What strikes me about this case is how casually the weirdly racist argument is offered and dispensed with. This may be an anomaly in Property Law (since dispossessing Native Americans is the whole foundation of real property in the US), but we also had a case in Torts where there had been a bar fight between Native American and white patrons, and the opinion was written with all of these jokes about "braves on the warpath" and whatnot. And the casebook didn't say a peep. And the casebook didn't say a peep here either. But when we've read cases that have racist elements with respect to African Americans, the importance of the racial context will generally be mentioned. And we simply don't have cases where the judge makes offensive jokes about African Americans. Weird.

**OK, see, this is a dumb Restatement of Torts joke, because the part of the Restatement that talks about IIED talks about the conduct being such that a reasonable person in the community, if told of the defendant's acts, would exclaim "outrageous!" Which is funny for a couple of reasons. First, it's trying so hard to build toward something at least quasi-objective, and then so totally fails. And second, it's so archaic! "Outrageous!" Today, wouldn't it be more like, "Dude, that is *so* fucked up!"? (OK no, that would have been in the 80s. Never mind.)


At 2:30 AM, January 26, 2006, Blogger WordzGuy said...

Correct me if I'm wrong, but adverse possession is why you want to have your property surveyed and inform your neighbor, oh so regretfully, that his stupid fence* is 8 inches into your property and must therefore be moved. Or he can lease the 8 inches from you, or some other arrangement involving consideration. Because if you don't do that, after some period of time, someone discovers this, and you say "Hey!", and You vs. Neighbor is found in his favor, coz, dude, it's been years and you never said nuthin'.

* Or fucking laurel hedge.

At 9:13 AM, January 26, 2006, Blogger ohplease said...

Yep, that's the doctrine. Although under the general doctrine, you wouldn't have to lease it to them--you'd just have to give them permission to use it. (Preferably, I suppose, in some written form that you'd periodically send a reminder of.) Permissive use of the property doesn't count as adverse possession--there's no requirement for lease, consideration, etc. Unless our state law is different, which I wouldn't know, because they don't teach us that. (Although soon they'll teach me how to look it up.) I suppose a lease and payments would give you a clearer paper chain.

At 3:59 PM, January 27, 2006, Blogger velvet_rut said...

think i could sue the tulane board of adminstrators for intentional infliction of emotional distress?

ggaaargh. (wobble)


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