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Full-Text Articles in Law
Land Use Federalism's False Choice, Michael C. Pollack
Land Use Federalism's False Choice, Michael C. Pollack
Articles
Debates about land use federalism — like those about federalism more broadly — often focus on whether policies and priorities ought to be set at the national or local level. But such categorical judgments about national intervention are inadequate because they obscure the diversity of mechanisms by which nationalization can and does occur. This Article draws attention to the importance of this underappreciated legislative design choice and develops a framework within which to evaluate it. This Article observes that nationalization can take the form of rules that either displace local decisionmaking or channel it, and that those rules can be …
The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
Articles
For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
Articles
Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …
Joint Tenancies And Tenancies By The Entirety In Michigan—Federal Gift Tax Considerations, Douglas A. Kahn
Joint Tenancies And Tenancies By The Entirety In Michigan—Federal Gift Tax Considerations, Douglas A. Kahn
Articles
The establishment of joint tenancy' ownership of property, or the termination of such a tenancy, may have federal gift tax consequences to the co-owners of the property. Consequently, the gift tax is a factor to be weighed before embarking on either of these ventures. The gift tax consequences are determined by the nature of the property rights enjoyed by the joint tenants under the controlling state property law, and accordingly it is desirable, where Michigan property law is applicable, to consider the Michigan law and the significance of that law to the operation of the gift tax. However, before discussing …
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Articles
The year 1967 begins the second half-century of zoning in the United States. The first comprehensive zoning ordinance was adopted by New York City in 1916. In the fifty years that have elapsed, zoning has become, notwithstanding a growing disenchantment with it on the part of planners, the most widely employed technique of land use control in the United States. At the present time only Houston, of all the major cities in the United States, lacks a zoning ordinance. And, though I have not obtained precise figures, we are all familiar with the increasingly large per centage of small municipalities, …
Landowner's Duty To Strangers On His Premises - As Developed In The Iowa Decisions, Herbert F. Goodrich
Landowner's Duty To Strangers On His Premises - As Developed In The Iowa Decisions, Herbert F. Goodrich
Articles
It is one thing to know a general rule of common law. It is another to know the application of the general rule, its variations and-exceptions, in a particular state. Both are important. Without the first, the lawyer becomes the mere tradesman. Worse than that for him, he is often helpless, for with all the gray mule and spotted cow cases to which a benevolent digester directs him he does not sense the legally significant facts so that he can recognize an authority when he sees it. Without the second, even the lawyer with a grasp of fundamentals is at …
Operation And Effect Of Recording, Ralph W. Aigler
Operation And Effect Of Recording, Ralph W. Aigler
Articles
While the operation of the recording acts is not uncommonly said to result in a preference of the earlier recorded instrument on the ground that under the circumstances the later grantee takes "with notice," the true view in the normal case would seem to be that the earlier grantee is preferred because priority in time gives priority in right-and by recording, he has done all that is required to preserve that favored position. Recording does not ordinarily give preference, it merely safeguards priority. Reference is here made to the normal case because it is, of course, true that there are …
Joint Tenancy In Personal Property In Michigan, Ralph W. Aigler
Joint Tenancy In Personal Property In Michigan, Ralph W. Aigler
Articles
In Lober v. Dorgan, 215 Mich. 62, decided July 19, 1921, the court again wrestled with the problem which has troubled the Michigan courts for many years, as to whether the law of the state recognizes any such thing as joint ownership in personal property with the common law incident of survivorship. The facts presented a controversy between the estates of husband and wife, the latter having survived the former. A real estate mortgage had been given to "George W. Bush and Sarah Bush, his wife, of Gobleville, Michigan, as joint tenants, with sole right to the survivor." After the …
Alienation Of Contingent Remainders, Ralph W. Aigler
Alienation Of Contingent Remainders, Ralph W. Aigler
Articles
The recent case of Bisby v. Walker, 169 N. W. 467, decided by the Supreme Court of Iowa November 23, 1918, is an interesting instance of an all too common lack of appreciation and understanding of the very fundamentals of property law. Under the will of her grandfather B became entitled to a contingent remainder (at least the court treated it as such) in certain lands; the contingency upon which her taking depended was her being one of the surviving children of her mother at the time of the death of the life tenant, the testator's widow. During the continuance …
Is A Contract Necessary To Create An Effective Escrow?, Ralph W. Aigler
Is A Contract Necessary To Create An Effective Escrow?, Ralph W. Aigler
Articles
WHERE land has been sold and both parties are desirous of protecting themselves pending full payment of the purchase price, there are two common ways of accomplishing their purpose without any change in legal ownership. There may be (1) a contract of sale properly evidenced so as to be enforceable, and (2) a deed executed by the vendor and placed "in escrow." Sometimes one method is preferred, sometimes the other. If the former is adopted, it is, of course, vitally important that the contract comply with the formal requirements of the law; in the latter there has been some difference …
Joy Riding, Simple And Compound, Edgar N. Durfee
Joy Riding, Simple And Compound, Edgar N. Durfee
Articles
The wrongful use of another's automobile, even though accompanied by a trespassory taking, cannot, if followed by a return to the owner or an abandonment, be easily brought within the definition of larceny at common law or under the ordinary larceny statutes, because of the requirement of intent to deprive the owner permanently of his property. Smith v. State, 146 S. W. 547; State v. Boggs (Iowa, 1917), 164 N. W. 759; McClain, Criminal Law, § 566. Of course, such intent, at the time of taking, might be found in spite of return or abandonment, though it is doubtful whether …
Effect Of Change Of Law Upon Obligation To Pay Rent, Ralph W. Aigler
Effect Of Change Of Law Upon Obligation To Pay Rent, Ralph W. Aigler
Articles
In McCullough Realty Co. v. Laemmle Film Service, (Nov. 16, 1917), 165 N. W. 33, the supreme court of Iowa had occasion to pass upon a question which has become increasingly frequent with the spread of prohibition laws, namely, the effect upon the obligation of a tenant to pay rent, of a subsequent law that makes it unlawful for him to use the premises for the purpose for which he leased them. The case before the Iowa court was not one arising out of a lease of premises for saloon purposes, but the question involved was precisely the same, and …
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
Articles
The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.
Estates In Fee Tail, Ralph W. Aigler
Estates In Fee Tail, Ralph W. Aigler
Articles
Quite generally estates in fee tail under the Statute de Donis were recognized by the states as a part of the common law. Statutory provisions in the way of modification and abolishment of such estates, however, are very common. The nature and scope of the statutory provisions have varied.
Legislating The Incumbent Out Of Office, W. Gordon Stoner
Legislating The Incumbent Out Of Office, W. Gordon Stoner
Articles
Under the English common law the officer's right or interest in the office which he held was regarded as a property right, an incorporeal hereditament.1 Largely because of the inherent difference between the nature and incidents of the public office at common law and those of the public office in this country, this conception never gained general acceptance here.2 In a few cases,3 and particularly in the decisions of the courts of North Carolina,4 offices have been asserted to be the property of the rightful incumbent. In these decisions the officer's right has been regarded as less absolute, perhaps, than …
The Registration Of Land Titles, John R. Rood
The Registration Of Land Titles, John R. Rood
Articles
It is proposed in this paper to consider some of the advantages and disadvantages of the older system of no registration, the later system of registering the instruments of conveyance, and the latest system of making the title depend entirely on a recorded adjudication that it is thus and so, which absolutely displaces all former titles, adjudicated or otherwise. It is also proposed to consider some of the reasons why the older systems persist.
The Lien Theory Of The Mortgage--Two Crucial Problems, Edgar N. Durfee
The Lien Theory Of The Mortgage--Two Crucial Problems, Edgar N. Durfee
Articles
In a recent article in this review1 the writer discussed in a general way the nature of a mortgage of real property in the states which adopt the lien or equitable theory of the mortgage. The conclusion therein arrived at was that, while the mortgage does not convey the legal title to the land until foreclosure, it does convey to the mortgagee, at the time of its execution, a present interest in the land, the general ownership of which remains in the mortgagor-an interest which is limited and special, more analogous to an easement than to general ownership; which is …
The Public Policy Of Contracts To Will Future Acquired Property, Joseph H. Drake
The Public Policy Of Contracts To Will Future Acquired Property, Joseph H. Drake
Articles
The general subject of wills upon consideration seems to have given courts and jurists a good deal of trouble, not only in England and America, but also in the continental countries. The Code Napoleon appears in terms actually to prohibit the making of reciprocal or mutual wills in the same instrument.
Valuing Property And Franchises Of Public Service Corporations For Fixing Rates, Horace Lafayette Wilgus
Valuing Property And Franchises Of Public Service Corporations For Fixing Rates, Horace Lafayette Wilgus
Articles
The Supreme Court of the United States has recently decided two important cases relating to the proper valuation of the property of public service corporations for the purpose of fixing rates to be charged for their services. These are Knoxille v. Knoxville Water Company, 211 U. S.--. 29 S. C. 148, and Willcox Y. Consolidated Gas Co.. -- U. S. --. 29 S. C. 192,a both decided January 4, 1909.
The Extent Of The Land To Which A Mechanics' Lien Attaches, Edson R. Sunderland
The Extent Of The Land To Which A Mechanics' Lien Attaches, Edson R. Sunderland
Articles
The statutes of the various states which define the scope and extent of mechanics' liens differ somewhat in respect to the quantity of land subject to such lien. Some arbitrarily limit it to a specified number of city lots or acres, but many statutes provide that the lien shall attach to the lot or land upon which the building or other improvement is situated, or to so much contiguous land as is necessary for the convenient use of the building. In most cases no difficulty arises in applying these provisions, but the terms are evidently loose and general, and it …
Statute Of Uses And The Modern Deed, John R. Rood
Statute Of Uses And The Modern Deed, John R. Rood
Articles
To what extent does the modem conveyance of estates in land in the United States by deed derive its validity from the English Statute of Uses, 27 Hen. 8, c. IO? No doubt the student, and especially the teacher, is inclined to magnify the importance of mere matters of history, because it is so much easier to understand or explain many of the terms and doctrines of real property law by approaching them historically, and, indeed, many of them cannot otherwise be understood at all. And yet we all have this constant, serious, and often difficult task, of separating matter …
The "Torrens Acts": Some Comparisons, James H. Brewster
The "Torrens Acts": Some Comparisons, James H. Brewster
Articles
The widespread discussion during the last ten years of the general scheme of registration of title to land, popularly known as the "Torrens System," has served to satisfy most disinterested lawyers and laymen of the general merits of the system. Consideration of the matter has been confined to no one section of the country, but has extended from Maine to California, and from Oregon to Texas. The result has been that laws embodying the general principles of the system have been enacted in six states, and proposed laws are before the legislatures of several others. The fact, however, that some …
The American Mutuum, Jerome C. Knowlton
The American Mutuum, Jerome C. Knowlton
Articles
The delivery of goods that may be accurately designated by number, weight or measure, such as corn or wine, on an undertaking that goods of like kind and quality shall be returned, creates what is known in the civil law as the contract of mutuum, a kind of bailment contract. Text writers on the common law regard such a transaction as a sale and not a bailment. "Where there is no obligation to return the specific article, and the receiver is at liberty to return another thing of equal value, he becomes debtor to make the return, and the title …
Title To Lands Under Fresh Water Lakes And Ponds, Thomas M. Cooley
Title To Lands Under Fresh Water Lakes And Ponds, Thomas M. Cooley
Articles
In the Northwestern States there are innumerable lakes and ponds, which are largely resorted to for pleasure, and for the opportunities they furnish for the taking of game and fish. The scenery about them is, in most cases, picturesque and inviting, and they become favorite locations for residence. On some the navigation is valuable for business purposes; others are navigated for pleasure only. In surveying the public domain for the purposes of sale, the government caused all that were too large to be embraced within a single subdivision of a section, to be meandered at the water line, and the …
Remedies Of Illegal Taxation, Thomas M. Cooley
Remedies Of Illegal Taxation, Thomas M. Cooley
Articles
Taxation is to a nation what the circulation of the blood is to he individual; absolutely essential to life. In ordinary times it is the chief burden which government imposes upon the people, and is likely, therefore, to be the greatest source of discontent. This renders it of the utmost importance that taxation should as nearly as possible be just, and also that it should appear to those who pay it to be just. Absolute justice, however, is unattainable.
The Recording Laws Of The United States, Thomas M. Cooley
The Recording Laws Of The United States, Thomas M. Cooley
Articles
Of the securities,provided by law for the protection of property, perhaps none is more important than the registration of land titles. We put aside, very early, the old English notion that the best evidence of title was the possession of the title deeds, and adopted a system which, in theory, proposed to place in a public office, accessible to everyone, a record of the titles to real estate, by which every man might safely buy or safely accept encumbrances. Speaking generally now of the system, the theory seems to be nearly perfect. Every instrument affecting the title to lands must …