Legal Question in Real Estate Law in California
Liability Rules and Property in California
Recently, I found a few law review articles that talk about the application of liability remedies to property issues. Note: Balancing the Equities: Is Missouri Adopting a Progressive Rule for the Relocation of Easements Douglas B Harris (Fall 1996) 61 Mo. L Rev 139 and Essay: Aloha Jurisprudence: Equity Rules in Property Alfred L Brophy (2006) 85 Or. L Rev 771 Still on the reading list are: Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, Guido Calabresi and A Douglas Melamed (1972) 85 Har. L. Rev 189 Pliability Rules, Abraham Bell and Gideon Parchamovsky (2002) 101 Mich. L. Rev 1. 38. The articles, mentioned above, document that the courts of some states have applied liability rules to adverse possession and prescriptive easement cases. Does anyone know about a California case that is decided, at trial, on appeal or under judicial review where a balancing of equities approach is considered? Yes, I have read the 2006 WI Supreme Court Opinion on this topic and Susan F. French on servitudes. I cannot, however, locate a California case. Please help if you can.
1 Answer from Attorneys
Re: Liability Rules and Property in California
Hi there 94965; I'm on the other end of Marin County in 94971.
Your question is intriguing, but I'm really unclear as to what you mean by "liability remedies." Do you mean anything more abstract or unusual than "money damages," the usual remedy for most forms of liability?
I am somewhat familiar with the concept of "balancing of the equities" as an occasional test of whether an easement arises or not (so-called "equitable easements" or easements by estoppel, for example).
Neither Dobbs on Remedies nor Bruce & Ely on Easements seems to help me, either.
Please state your issue in terms of a particular set of facts, even if hypothetical, and maybe I can find you a couple of California cases. I do know of and have read California cases on equitable easements and balancing of equities or balancing of hardships, but my sens is that your question either goes beyond this or is unrelated.
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