O conveys Blackacre "to A, B, and C as joint tenants." Subsequently A conveys his interest to D. Then B dies intestate, leaving H as his heir. What is the state of the title?

D and C are tenants in common. D and C are tenants in common, D holding 1/3 and C holding 1/3.

B's interest still does to C (not H) because you can't devise an interest in a joint tenancy by will.

The court says that the joint tenancy can be severed unilaterally (the wife could sever the joint tenancy just by conveying it to herself - no straw man required to convey back to someone trying to work this)

Court felt that the requirement of a strawman as an intermediary was "archaic"

Fred dies, leaving three children, Bob, Neil, and Darcy, and a widow Winnie, who has been the three children’s stepmother since shortly after their mother died many years previously.  Before dying, Fred asked his children to be sure that his widow has the financial ability to continue to live in the house, individually owned by Winnie, in which the couple had lived for the previous several years.  The children want to carry out their father’s wish, but they do not want his (or their own) wealth to go to Winnie’s children by a previous marriage.  They also want to share the burden equally among themselves and to be able to leave their portions to their own families.  After investigation, they discover that Winnie’s house is worth $99,000 and has a $33,000 mortgage and decide that the best way to help Winnie is to pay off her mortgage.  Which of the following courses of action will come closest to meeting their needs?  Explain your answer.

a.          They each pay $11,000 for a 1/9 interest in the house and become joint tenants with each other and with Winnie.

b.          They each pay $11,000 for a 1/9 interest in the house and become joint tenants with each other in 1/3 of the house and tenants in common with Winnie in the whole.

c.          They each pay $11,000 for a 1/9 interest in the house and become tenants in common with each other and with Winnie.

d.          They give Winnie the money to pay off the mortgage.

Term of Years

Estate lasts for some fixed period of time, or a period calculable by formula (up to 99 yrs)

Periodic Tenancy

Fixed duration that continues for succeeding periods until landlord or tenant gives notice of termination (month-to-month, year-to-year)

Leasehold

Holder of a greater interest (landlord) transfers possession to tenant for a period

Tenancy at Will

No fixed period, endures so long as landlord and tenant desire

Tenancy at Sufferance

Tenant remains in possession after valid lease has ended (“holdover tenant”)

If holdover tenant continues to pay rent and Landlord accepts?  

He is tenant at will and not a trespasser; new tenant can sue landlord.

Caveat Emptor

Landlord does not warrant fitness; tenant has right to inspect premises

Constructive Eviction

Landlord’s acts or omissions make it extremely difficult for tenant to use the premises (can be total and affect the entirety of premises or partial and only affect part of premises)

American Rule (of Quiet Enjoyment)

Landlord is obligated to deliver legal but not actual possession.

(Derives from the agricultural nature of leases that was more hands-off for lessor)

Garner v. Gerrish

This isn’t a commercial lease, we should interpret the agreement in a way that allows the tenant relationship to be implemented and continue.

Garner v. Gerrish

Facts

Garner (landlord) had lease with Gerrish (tenant) that explicitly stated that Gerrish had option to terminate agreement at any time.  Garner, assuming he also had power to terminate, brought suit to evict Gerrish.

Garner v. Gerrish

Lower court Holding

Held that it was a month-to-month tenancy at will that landlord could terminate. The lease is indefinite and uncertain with regard to the length of time the tenant can occupy premises.   (Reversed)

Garner v. Gerrish

Holding

Lease that expressly gives right to terminate agreement only to tenant creates a determinable life estate for the tenant.  Expressly and unambiguously grants right to tenant to terminate and not to landlord.

Dependant Covenants

 Mutually obligatory.  Tenant’s obligation to pay rent was dependant on landlord’s obligation to give tenant legal right to possession (at common law, now more expansive obligations for landlord).

Hanan v. Dusch

Facts

Defendant landlord (Dusch) entered lease with plaintiff tenant (Hannan).  When lease term was to begin, def’s prior tenant wrongfully held over (stayed).  Pltf argued that implied covenant of quiet enjoyment obligated def to take legal action to oust holdover tenant.

Hanan v. Dusch

Absent an agreement to deliver actual possession, landlord only has duty to deliver legal possession.  Responsibility of ousting holdover tenant rests with new tenant.  (American Rule)

Hanan v. Dusch

Reste Realty Corp. v. Cooper

Facts

Cooper (def, tenant) has serious recurring flooding problems that the superintendent had promised to fix.  She entered second lease and problems continued.  She left premises, refused to pay remaining rent, and is now sued by landlord (pltf).

Reste Realty Corp. v. Cooper

Lower court

Trial Ct for Cooper on grounds of constructive eviction.  App Ct reversed on grounds that there was not proof of a wrongful act by the landlord and tenant waived rights by failing to remove from premises within reasonable time after any wrongful act.

Reste Realty Corp. v. Cooper

Holding

For pltf, there is a breach of quiet enjoyment which is always implied.  Ct rejects caveat emptor argument that she knew about the problems and accepted them with second lease because she relied on the promise that it would be fixed. This was constructive eviction because it interfered substantially with tenant’s use, and the reasonable time permitted is relative to the case at hand.  

Reste Realty Corp. v. Cooper

Upham’s Take

 Ct handles this case with constructive eviction, but they could have taken a shorter step and handled it in one of three other ways. First:  the explicit promise to repair makes the tenant’s obligation to pay rent dependant on landlord’s obligation to make the repair. Second: idea of latent defect that tenant could not have seen the flooding problem prior to renting.  Third: landlord’s obligation includes maintaining the common areas (the parking lot leveling caused the problems) and tenant has a right/easement to use the common areas.  But court takes a stronger route because society and courts are seeing a lot of change.

T is tenant at will of L.  L creates nuisance that interferes with T’s business on the leased premises.  T vacates, rents equivalent space at higher rent and sues for damages on theory of constructive eviction arising from breach of covenant of quiet enjoyment.  What result?

In tenancy at will, both L and T have ability to terminate lease.  T claims constructive eviction because L created the nuisance, but L will just say the lease is over (L evicted T but in tenancy at will, T can be evicted at any time). Thus there is no right to stay there under the lease, L wins.

Answer under contract law:  T could win if court thought the nuisance L created was unconscionable.

T has term of years lease and vacates premises prior to end of term, stops paying rent.  L sues for unpaid rent and T asserts defense of constructive eviction, claiming L failed to control excessive noise made by neighboring tenants. What result?

If it’s not a common area, L cannot enter so he does not have control, but he does have obligation to take action against noisy neighbor because of his obligation to other tenants.  Court would likely find for T.

T has term of years lease and vacates premises prior to end of term, stops paying rent.  L sues for unpaid rent and T asserts defense of constructive eviction because of criminal activity in the building.   What result?

If L is in compliance with the security requirements of the housing code, then criminal activity is beyond L’s control, find for L.

T has term of years lease and vacates premises prior to end of term, stops paying rent.  L sues for unpaid rent and T asserts defense of constructive eviction because of protestors in the lobby.  T complains but L does nothing. What result?

L can prevent activity in common areas, court finds for T.  

Brown v. Southall Realty

Know that this is initial expansion of law to include the obligation of landlord to comply with housing codes. “Illegal lease case” -- lease is void because it does not comport with housing regs.

Hilder v. St. Peter

Facts

Hilder (pltf tenant) leased apartment from St. Peter (def landlord) that was in terrible state of disrepair.  Despite complaints by Hilder and ample notice of code violations, St. Peter failed to correct problems.  Hilder did NOT vacate but stayed and paid all rent due, and now sues for reimbursement plus compensatory and punitive damages.

Hilder v. St. Peter

Tenant is not required to move out to avoid paying rent under the implied warranty of habitability and can seek damage for rent paid, discomfort and annoyance, punitive damages, or make repairs and deduct that cost from future rent.

Hilder v. St. Peter

Reversal of Hanna because the implied warranty of habitability is so robust.  This case stands for the tearing down of numerus clausus and the ability to contract and have freedom of choice.  Tenant knew what she was getting and she needed something very inexpensive because she did not have much money and so she knew (at least in part) that the building had problems.  There is no way to customize the contractual relationship when the parties are so bound by the government and regulations.  

L offers small run-down house for rent at $100/month.  T inspects, finds defects and accepts it at $50/month.  L agrees, T takes possession but doesn’t pay rent.  In eviction suit by L, can T assert breach of implied warranty of habitability (IWH) as defense?

Yes, L has obligation no matter what IWH is not waivable.  Public law takes precedence; you can’t bargain your way to a lower standard.

Upham’s theoretical take on IWH

Society has decided through the democratic process that there is a certain minimum standard for living conditions.  Rather than put money toward public housing, the government put requirements on the private landlords.  The standard lease involves tenants who do not have resources and knowledge to negotiate nor do they have skills to fix problems nor do they have real bargaining power to “threaten” to go elsewhere.  

T leases a fancy UES apartment and something is wrong with the pool. Can T sue under IWH?

No, the contract and agreement between L and T does not matter.  IWH does not touch the extra amenities and is only about the minimum standards.

Javins, Saunders and Gross v. First Nat’l Realty Corp.

Know that this is similar to Hilder.  Warranty of habitability is implied in residential leases; tenant’s obligation to pay rent is dependant on landlord’s compliance.

1. Threshold test

2. Look at the two uses as merely incompatible: neither is wrongful

Real covenant

Promise respecting the use of land that runs with the land at law.

Purpose of covenants

Methods to enforce the intent of the original parties of the promise.  Courts have set up strict requirements for covenants because they have binding effects for the future.

Privity of estate

Traditionally, between a landlord and tenant but now expanded and applies to the parties to a conveyance or assignment, the grantor and grantee.

Horizontal privity

Between the original covenanting parties. Relationship and conveyance reflect the promise. Usually between the grantor and grantee.

Vertical privity

Between one of the covenanting parties and a successor in interest.

Requirements for the burden to run

 (1) Intent to bind successors; (2) Notice to the party to be bound; (3) Horizontal privity; (4) Vertical privity; (5) Touch and concern the land (HP not required in all jurisdictions)

Requirements for benefit to run

 (1) Intent to bind successors; (2) Vertical privity; (3) Touch and concern the land

Equitable servitude

Similar to real covenant but enforceable for injunction and does not require privity.

Remedies for real covenant and equitable servitude?  

RC = damages; ES = injunction. (RC is like contracts and ES is like real property)

Uniform Building Plan

Requires universal scheme that benefits/burdens all the land; reciprocity; balanced and fair

Reciprocal negative easement

 Legal fiction, created by uniform building plans and developed communities

A and B are adjoining landowners. A covenants not to use land for anything but residential.

Who has the benefit; who has the burden?

 A has the burden; B the benefit.

A and B are adjoining landowners. A covenants not to use land for anything but residential. A conveys C and C attempts to build a store. B v. C. Which has to run?

Burden.

A and B are adjoining landowners. A covenants not to use land for anything but residential. A conveys to C, and B conveys to D, and C starts to build a store. D v. C, which has to run?

A and B exchange such covenants.

Who has burden/benefit?

Mutual

A and B are neighbors. They exchange promises to use residentially. A conveys to C. B begins to run a store. C sues B. Identify what must run and the privities required.

C has benefit, it must run.  Only vertical privity is  needed so C wins.

A and B are neighbors. They exchange promises to use residentially. A conveys to C. C begins to run a store. B sues C. Identify what must run and the privities required.

B has benefit, which does not need to run, and C has burden, which must run. That requires horizontal privity, there is no HP, so C wins.

A and B are neighbors. They exchange promises to use residentially. A conveys to C,and B conveys to D. D begins to run a store. C sues D. Identify what must run and the privities required.

Both the benefit and burden must run, requires horizontal and vertical privity. The absence of HP means that D will win.

CG to B/CG to C/CG to D, so that B, C, & D are now neighbors each having promised CG that she would not use the land commercially. B sues CG after first conveyance

C will win b/c the benefit must run and C is in vertical privity with CG, who was original promisee. The burden need not run b/c B is the original promisor.

C Ped CG something, but B was merely CG's neighbor at the time. CG never Ped B anything, so no enforcement.

D is in vertical privity with CG who received promisess from both B and C. Only the benefit need run, so D can enforce.

This is the Neponsit issue. E is not in vertical privity with CG.

Tulk v. Moxhay

Facts

 Tulk (pltf) sold land (Leicester Square garden) with both restrictive and affirmative covenants.  Def got land in deed that was silent about the covenant, but he had actual notice of its existence.

Tulk v. Moxhay

Enforces restrictive covenant.  Covenants directly affect value of land.

Sanborn v. McLean

Facts

Defs (McLeans) want to build gas station behind house, but pltfs seek injunction based on the residential use restriction.  Most of the lots in the neighborhood were sold with restrictive covenant expressly providing that they be used for residential purposes only.  But the defs deed did not have the express restriction.

Sanborn v. McLean

 Existence of a visible uniform plan of use is sufficient to give inquiry notice (constructive notice because they can look and see the restrictions, it’s that clear).  

Sanborn v. McLean

Upham’s Take

McLean should have won because the Common Grantor never made a promise but this uniform building plan was enough.  

Neponsit POA v. Emigrant Savings Bank

Facts

Neponsit Property Owners Association (POA) sought to enforce covenant requiring owners of lots to pay an annual fee for upkeep of the area.  Def argued that covenant did not “touch and concern” the land because it is a fee, not about land use.

Neponsit POA v. Emigrant Savings Bank

The covenant substantially alters the legal rights that flow from ownership of the land and which are connected with the land.  It is a question of degree, but in this case suffices.  

Neponsit POA v. Emigrant Savings Bank

There is no vertical privity and this is an affirmative duty, but the court looks beyond the doctrinal requirements to enforce the intent.  Ct infers that the money is to be used for the land, so it “concerns” the land.

Rhue v. Cheyenne Homes

Facts

Subdivision has restrictive covenant that requires all building to be approved by architectural control committee.  There were no specific standards, but Cheyenne Homes wanted to prevent Rhue from bringing in an architecturally nonconforming house.  

Rhue v. Cheyenne Homes

 The intention of the covenant is clear and the prior approval is reasonable even without specific guidelines.  Inquiry notice is sufficient.

Davis v. Huey

Facts

Davises’ plans accorded with set-back and side-line restrictions but was different than most of the other homes.  There was no general plan or scheme to place them on notice.  

Davis v. Huey

There is insufficient notice to make this enforceable.   Any scheme or plan was based on voluntary decisions of the neighbors, not a development plan.  It would burden the Davises without allowing them the benefit to participate in planning the area.  

Uses a strawman to avoid requirement of common plan.  HRD owns the land and conveys it to CPRA with restrictions, who conveys it to Ames, who conveys it back to HRD.  Land is now burdened.

HOA acts as a private government, they are the only party that can enforce the covenants.  Not a uniform building plan but a universal one.

What is the structure and purpose of the conveyances among HRD, CPRA, and Aileen Ames described in the beginning? Who is Ames and why should we care about her marital status?

It’s a strawman agreement.  Ames is someone independent of the developer.  They note that she is unmarried because at common law a spouse always had interest in real property.

Who decides what a property owner in Wilde Lake Village can and cannot do with her property? What standards will be used? We will consider the Rhue and Davis cases in conjunction with this question.

To what extent can the CPRA waive or amend the restrictions? Why would a homeowners association want to do so?

(1)  Original parties must intend the burden (or benefit or both) to run

(2)  Horizontal privity of estate between original parties (in order for burden to run)

(3)  Vertical privity of estate between original promisor and the successor to the burdened estate

(4)  Substance of promise must touch and concern the burdened land, and usually the benefited land as well (but the focus has shifted towards the effects of the covenant to determine touch and concern: see Neponsit).

1)    When is the restriction on land use so great that it constitutes a taking of the property?

2)    The conflict between centralized planning and individual rights

3)    Tension between adherence to a plan/centralized planning and the necessarily flexibility to adjust to unanticipated changes. (Plans will always be inadequate and will always have to change – so how do you manage the tension between legitimate and illegitimate changes?)

5 ways to deal with the need for flexibility in zoning

(1)  Pre-existing nonconforming uses

(2)  Variances or special permits specific to individuals’ lots (administrative decisions)

a.     For when there is no question of an unconstitutional taking bc its not a pre-existing use, but there is still some need for the landowner to get a variance from the zoning regulation.

b.     Most just granted illegally from people’s neighbors, and then you take a note of permission from your neighbors to the zoning board (illegal bc they are supposed to be granted when there is unnecessary hardship, not just when your neighbors are OK w what you want to do). FU thinks this is how the law SHOULD work

(3)  Amendments/Re-zoning (legislative decisions) (=when the comprehensive fails to anticipate a social development)

(4)  Special permits built into zoning ordinances (like anticipated variances)

(5)  Density zoning (Planned Unit Developer says they will violate zoning ordinances within a given lot but they will still maintain certain density restrictions, or limit variety of uses). Allows for variety.

-       The government is telling people what their tastes must be. If you are going to live in this political entity, you must have this taste or tolerate it. But you cannot have another. (Intrustive role of government).

Holding: Code sections were unconstitutionally vague on their face. They did not give effective or meaningful guidance to applicants. As applied to Anderson, they also failed to pass constitutional muster. Reasoning: The commissioners weren’t enforcing a building design code but their own arbitrary conceptions. Court rejects the city’s arguments that the code is not unconstitutionally vague bc aesthetic considerations are subjective in concept. Court finds that aesthetic considerations are NOT impossible to define in a code. Also, any procedures in the appeals process did not cure the constitutional defects in the code. Aesthetic standards are an appropriate component of land use governance but they must give clear guidance.

J. Douglas' opinion in Belle Terre (and the holding)

The goals of the zoning ordinance are OK (promoting family values, youth values, clean air). Also OK to try to avoid urban problems (boarding houses, fraternity houses, more cars). These are legitimate guidelines – the idea of creating a family friendly place where there is open space. Police power is not confined to health issues. 

In this case the city is coming in and replacing Coasean bargaining: with the five assumption hat on, everyone who wanted family values would live in Belle Terre and those who didn’t would live in the East Village and everyone would get what they want.

-       Zoning ordinances must consider general welfare of the state, and thus the “beggar thy neighbor” at the heart of zoning is illegal. Regional considerations, not just municipal considerations. Zoning power is a police power of the state and the local authority is acting only as a delegate of that power.

-       Zoning allows people to live in places without dealing with the externalities they don’t want to deal with. But is that a good way to run society? By pushing people out and putting the externalities on other municipalities?

-       That’s why we have state planning and even regional planning in addition to municipal zoning ordinances. From a practical perspective this makes sense but it erodes the sense of democratic involvement, which is what makes zoning attractive.

- We only consider regional needs bc that's what the soveriegn tells us to consider, so we don't need to do more

-       But this is NOT about justice, or else we’d be considering the people living in Bulgaria!

Where does police power come from?

The sovereign is the owner of the land.  The origin of property rights is from the government and their ability to take it back is inherent.  It is the Fifth Amendment that limits it by requiring that just compensation be paid.  

Economic Rationale for Eminent Domain

Prevents high transaction costs for public projects that would result from holdouts.  (The road is only good if it can go through the whole city; one person refusing and demanding high amount could make whole project futile, so they get paid.)

Brandeis describes police power

Acts to protect health, safety, or morals

Holmes describes police power

Further the public interest, improving the public condition

Just Compensation

What the state pays the owner of the taken property; what a willing buyer would pay a willing seller; fair market value.

Upham's take on Just Compensation

In theory fair market value (FMV) is intended to compensate the party to the point that they are indifferent between keeping or selling. BUT if the owner's would be made whole by FMV then they woudn't be the owners of the property because if they were actually indifferent they would have sold it. There is subjective value that cannot be compensated for – just look at the Dery's. But FMV is really the only just measure because it is measurable and it does align with public expectations.

Substantive due process limitation

Is what the government doing beyond their power?

Procedural due process limitation

the courts protect those with limited powers against the overreach (but there are sometimes distortions in the process)

If people anticipate that their property may be taken in ED, they may have an incentive to make changes to the property to increase the compensation. What can the government do?

Berman v. Parker

Stands for expansion of police power to redevelop blighted lands. Berman’s department store was arguably not blighted and use would not be by government. But Ct held that the area was blighted and direct gov occupation is not required.

Berman v. Parker

 It doesn’t matter what your individual property is, if the government can identify a harm it wants to address it can take your property to do that.

Poletown

Detroit faces economic decline and government exercises eminent domain to build a new General Motors plant. Michigan Supreme Court upheld ED on grounds that the economic development and revitalization of the city qualified as public use.  

Hawaii Housing Authority v. Midkiff

Facts

Government seeks to purchase the underlying estates of private landowners in Hawaii and then transfer the estate rights to the leaseholders. Goal is to address excessively high land prices by taking the land then selling it back to the lessees.

Hawaii Housing Authority v. Midkiff

Hawaii Housing Authority v. Midkiff

Kelo v. City of New London

Facts

New London wants to acquire houses occupied by plaintiffs, one of who has been there her whole life, for economic development that will largely be used by private entities including Pfizer.  

Kelo v. City of New London

Kelo v. City of New London

Upham’s Take

Have every land owner register the price they would accept if their property was taken by E.D., and then landowners pay property taxes on whatever you say the property is worth. Doesn't work for people who think their property will never be taken so they give a very low price - and then the government might take it for that very low price!

Public use is anything that benefits health, safety, human welfare of the municipality or its citizens. Very Broad.

The removal of urban blight is a proper, and,

of the power of eminent domain. But the areas eligible for renewal are not limited to "slums": economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose. But it's not up to the courts to define those terms: it's a task for the legislature

Permanent Physical Occupation Rule

A permanent physical occupation is a taking and will be compensated.

Noxious Use Rule

If the regulation prohibits a noxious use it is not a taking and will not be compensated.

Total Wipe-out Rule

 If the regulation removes all the value of the land it is a taking and will be compensated.

Conceptual Severance

Determining the extent of the taking depends on how broadly or narrowly you construe the right.  If you can “severe” the rights of the estate by considering things like air rights, surface rights and subsurface rights, then you can find those parts are wholly taken. Court determines how to divide the interests the property owner may have.  

Loretto v. Teleprompter Manhattan CATV Corp.

Facts

Loretto v. Teleprompter Manhattan CATV Corp.

Lower court

Trial court granted summary judgment to cable company because the law regarding installation provides a community benefit.  Appellate court said that the regulation does not have an excessive economic impact and does not interfere with any reasonable investment backed expectations.

Loretto v. Teleprompter Manhattan CATV Corp.

Holding 

A permanent physical occupation is categorically a taking and must be compensated.  This has deprived the landowner of the right to exclude others and prevents her actual use and possession of that space.  

Loretto v. Teleprompter Manhattan CATV Corp.

Upham’s Take

 Loretto hasn’t lost anything, nothing has been taken.  There was also no diminution in value.  This was really about rights to prevent permanent physical occupation.  She didn’t expect or get high damages (only $1), but she did make a statement and create this category.  

Hadacheck v. Sebastian

Facts

Pltf operates a brick yard with kiln on a lot that has a clay bed used as material.  City passed ordinance making the operation of brick kilns within the limits unlawful.  Pltf argues that this is a taking and he should be compensated.

Hadacheck v. Sebastian

The regulation is not a mere arbitrary invasion of private right and the evidence does support the contention that the business was detrimental to the interest of others and should be suppressed.

Hadacheck v. Sebastian

Holding

 If the regulation is prohibiting a noxious use it is not a taking.  Nuisance control regulations are never compensable takings.  The clay can be transported elsewhere so the business is not fixed to this spot, and this area is now mostly residential and shouldn’t be exposed to the odors, fumes, dust, and so forth produced by the brick yard.  

Hadacheck v. Sebastian

Upham’s Take

The neighbors get windfall -- buying property at a low price near the brickyard will be worth much more now because it will be used for residential purposes.  It may be more valuable for Hadacheck too, but if that were the case, he would have already sold it.

Lucas v. South Carolina Coastal Council

Facts

Lucas purchased beachfront lots and two years later, a Coastal Zone Management Act prevented him from building on the coastal land in critical areas.  He sues for compensation, claiming this is a taking.

Lucas v. South Carolina Coastal Council

Finds that the property is rendered valueless based on the lawyers’ stipulations

Lucas v. South Carolina Coastal Council

Holding

Where a government regulation renders an owner’s land valueless, it is a taking requiring compensation, unless the regulation relies on a background principle of nuisance law.  It is a taking unless it would have prohibited a use of land that would be a nuisance at common law (if it was noxious use then no compensation needed because you would be prohibited from this use anyway)

Lucas v. South Carolina Coastal Council

Lucas v. South Carolina Coastal Council

Upham’s Take

His land was not actually made worthless, this is an example of the lawyers messing up.  They stipulated that it was economically worthless without building on it.  It may not have been worth much without it but it would not be worthless.  Also, relying on the nuisance-at-common-law definition requires a balancing test, so this is hardly a bright line rule.  The total taking inquiry relies on a balancing test -- who is better to decide what the nuisance is, the courts or the legislature?  Why is Hadacheck’s brick kiln a nuisance but Lucas’s building on coastal land not?