Professor Henry H. Perritt, Jr.
Property (Three Hours)
Time: 0830-1130, 7 May 2008
College of Law
Examination in property
1. This examination
consists of 4 pages. Please check to make certain you have the complete
2. Read these instructions carefully and
read each question carefully. Think each problem through before you write
and treat every appropriate issue in each question. Be direct and
3. Answers will be graded upon the reasons
given as well as the conclusions drawn. If more than one reason is
pertinent to an answer, state every reason.
4. While you have been permitted to bring
materials into the examination room, answering the questions appropriately will
put time pressure on you. You should not do extensive research during the
examination. Credit will be weighted according to the time allocations
shown. Manage your time accordingly.
5. You may decide, in answering one or
more questions, that a complete answer would require legal research. If
this is so, you should identify the specific issue that you would
research. If you have a mastery of the basic concepts, you will be able to
frame research issues very narrowly and precisely.
6. It also may be that more factual
information is required to answer a question. If this is the case, you
should say what factual information is required and why you need it. A mastery
of the underlying concepts will permit you to frame any factual inquiries very
narrowly and link them precisely to the legal issue involved.
7. Organization and clarity are very
important. A shorter answer that is well organized and evidences a clear
understanding of basic concepts and their interrelationships is better than a
long answer with disconnected fragments of information.
8. Do not write outside the margins of your
bluebook pages, but write clearly. If an answer is not legible, it will
not get credit.
9. Write your examination number on your
bluebook(s) and on each page of this examination. Do not use your name.
10. When you have finished the examination
place it inside your bluebook(s) and deposit them in the appropriate box in the
WHICH MAY BE TAKEN INTO THE
Any material including any outlines
whether commercially prepared or not, whether accessible by computer or
not. No communication by e-mail, cell phone, voice-over-IP, or any form of
instant- or text-messaging is permitted during the exam.
7 May 2008
Shelby Krebs owns a house on a one-acre lot in Elmwood, New
Jersey. He is approached by Berrysohn, a large
communications company, which wants to bury a fiber optic cable across his lot.
In exchange for $15,000, Krebs gives Berrysohn a deed reciting, “to Berrysohn,
its successors and assigns, an easement for an optical fiber cable to be buried
no less than one foot under my property beginning at the northern boundary 100
feet from the eastern side, directly south, to exit at the southern boundary.
Such easement is for the purpose of enabling Berrysohn to connect its
state-of-the art Internet backbone to enhance use by the general public.”
Berrysohn installs the cable using a WitchDitch, which bores under the surface
without requiring disturbance of the surface itself. Neither Krebs nor
Berrysohn records the easement. Berrysohn operates its network for five years
as part of the Internet, but subsequently separates its network from the
general Internet and restricts its use to proprietary technologies and
services, meaning that traffic from websites and other servers that have not
entered into a special contract with Berrysohn is blocked. Krebs is a
passionate advocate of “Net Neutrality” and does not want his property used for
digital services that do not allow traffic from any and all Internet services.
He come to you, licensed to practice law in New Jersey, and asks you to advise and
- (20 minutes) What legal action can he take to block
Berrysohn’s new, restricted use of the optical fiber under his property?
What legal theories would you assert? Evaluate the prospects of success.
- (20 minutes) Krebs does nothing about the cable,
instead selling the property in fee simple absolute to Cynthia Michels. He
tells her nothing about the underground cable. Michels is even more
passionate than Krebs about net neutrality. After she takes up residency
in the house, she sees a Berrysohn crew working in the neighborhood and
finds out about the cable. Shortly thereafter the municipal government of
Elmwood adopts a zoning ordinance including Michels’ property in a new
zone “I-1” which requires property owners to allow the operation of
underground digital network facilities. Michels worries that the new
zoning restriction will make it difficult for her to sell her property.
What action would you take to invalidate the zoning restriction? Evaluate
all plausible legal theories. What are your prospects for success and why?
Assume that an optical fiber cable connected only to a proprietary network
falls within the definition of “underground digital network facility.”
- (30 minutes) Suppose the ordinance never was adopted.
Michels rents a jack hammer from Home Depot, drills through her basement
floor directly over the optical fibre and cuts it with a pair of pruning
shears, also rented from Home Depot. Berrysohn sues her for trespass. She
now comes to you and asks you to represent her. What defenses would you
offer? Evaluate your prospects for success in getting a judgment in
- (20 minutes) Suppose
Berrysohn, after repairing the cable, uses it for 10 years, and then
transfers all its assets to Notbell, a former competitor. Notbell uses the
cable for its network for another 15 years. Michels’ granddaughter, who
now owns the property, remembers hearing Michels’ tell stories about the
uproar over her cutting the cable. She encounters the cable while tilling
her garden and deliberately cuts it, believing that the optical bits
moving through the cable stunt the growth of her flowers. Notbell and the
granddaughter sue each other for trespass. Who wins, on what legal theory
Four law students start a band to fill their spare time.
They have difficulty finding adequate rehearsal, performance and recording
space, so they persuade their parents to give them $250,000 to buy a piece of
property in Cook County, Illinois on which they build an appropriate
facility. The band members record the deed to them from the previous owner in
the Cook County Recorder of Deeds office.
At the closing for the conveyance of the property from the
previous owner to the band, one of the band members, Bosworth Terrier, has an
instant messaging “conversation” with his father. The father texts, “I am
worried that you will do drugs in the place, but I don’t want to embarrass you
and your friends by raising it aloud.” Bosworth texts back, “No we won’t. We
agree that, if there is ever any drug use on the premises, the property will
automatically pass to you and you can sell the whole thing.” Satisfied, his
father lets the closing go forward.
- (20 minutes) Another band member, Tempa Tite, the
drummer, becomes obsessed with her legal studies in advanced property and
stops coming to rehearsals. The other members of the band kick her out and
replace her with Rando M. Biet. Tite tries to return to the band several
times but the other members will not let her in the facility. She retains
you, licensed to practice law in Illinois
and asks you to file a lawsuit on her behalf. What legal theories would
you assert and why? Evaluate your prospects for recovery.
- (25 minutes) Tite gives a quitclaim deed to Biet.
Unfortunately, Biet can’t keep time to the music and finally the band
gives up. Bosworth Terrier, unbeknownst to the other three, leases the
facility to another band, “Half-inch Tacks,” for ten years. Half-inch
Tacks, after taking up occupancy, finds a lead sheet (a music score with
the lyrics, chord symbols, and melody notes on it) left behind by the
original band. They try playing various arrangements of the music
indicated by the lead sheet, and eventually record the resulting song. It
zooms to the top of the charts, earning Half-inch Tacks $1 million in
their first year. Excited by their success, Half-inch Tacks spends more
time smoking pot and sniffing coke in the facility than they do
rehearsing, performing and recording. Half-inch Tacks makes no more music
and the facility falls into disrepair.
father, needing to supplement his income for retirement, sells the property in
fee simple absolute to a non-profit museum, known as “Death Struggles of
Dinosaurs,” for $100,000 in exchange for a general warranty deed. The museum
recruits some thugs, who run off Half-inch Tacks, and the museum sets up
operations in the facility, exhibiting many of the form documents used by
record-label lawyers to sue children and octogenarians for file downloading.
Rando M. Biet takes
rhythm lessons and decides to organize a new band, including no members of the
original band. She shows up at the museum with her new band and starts giving
loud concerts inside. The museum comes to you, licensed to practice law in Illinois, and asks you
if it can recover from Bosworth Terrier’s father. What advice would you give
the museum? Be sure to explain all the legal theories available to the museum
and to Terrier’s father and evaluate the prospects for success on each.
- (20 minutes) Another of the original band members,
Aquis E. Teeve, discovers that the members of Half-inch Tacks haven’t
spent all the million dollars they earned on the song for dope yet. They
still have about half of it left. He comes to you, licensed to practice
law in Illinois,
and asks you to represent him in an effort to get a significant part of
this money. What legal theories would you assert and why? Does he have a
chance of succeeding? Why?
- (25 minutes) The fourth original band member, Arfand
Knau, worries about the possibility that Half-inch Tacks may sue him. He
asks you, licensed to practice law in Illinois, to advise him on what, if
any, liability he may have to Half-inch Tacks and what, if any claims he
might assert against them. What advice would you give him? Explain your