Schoone, Adrian P.

Marquette University Law School

Marquette Law ReviewVolume 42Issue 2 Fall 1958 Article 14Book Review: Cases on the Law of Property: ByRussell Denison Niles and Elmer M. MillionAdrian P. SchooneFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationAdrian P. Schoone, Book Review: Cases on the Law of Property: By Russell Denison Niles and Elmer M. Million, 42 Marq. L. Rev. 265(1958).Available at: http://scholarship.law.marquette.edu/mulr/vol42/iss2/14BOOK REVIEWRussell Denison Niles* and Elmer M. Million,** CASES ON THELAW OF PROPERTY: Bobbs-Merrill Company, Vol. 1, 1951, $8.50; Vols.2 and 3, 1957, $7.50 each.The volumes to be reviewed were quite obviously prepared by theirauthors with the purpose of providing a modern property casebookfor the law student foremost in mind. But their accomplishment hasbeen multi-fold as the writer shall. attempt to prove. The works shallnot be gauged against a standardized property authority; the intent ismerely to examine the contents of the volumes and perhaps to evalu-ate them. All three volumes are considered so as to give a completeindication of the arrangement utilized by the authors in presenting athorough explanation of both real and personal property law.Volume I of the set treats of the vital property concepts of pos-session and ownership. To provide a sturdy foundation for the be-ginning property student, the term "property" is defined per theRestatement:'"The word 'property' is used in this Restatement to denotethe legal relations between persons with respect to a thing...The broader meanings of the word 'property', which includeany relationships having an exchange value, are not used."The basic legal relations which the student must comprehend arefurther subdivided and analyzed as "rights", 'privileges", "powers",and "immunities" with definitions established for them. The funda-mental objective of the initial chapter is to explain that the legalmeaning of ownership is that of the vesting of a complex aggregateof legal rights, privileges, powers and immunities - all relating tothe land or personality in question. Included in the introductory ma-terial is the distinction between rights in rem. and in personam. Idol-ators of Justice Holmes will be satisfied in finding the famed opinionof Marrone v. Washington Jockey Chub 2 included as a leading example.The second chapter in Volume I is devoted to an explanation ofthe relation of Possession to Ownership. The major premise is that,as developed by the common law, "Seisin is Possession." The legalrights of the party in possession are then analyzed. This writer wasrather pleased to note the limited coverage afforded to the hoary sub-ject of Bailments. The authors explain at p. 120 of Volume I:"Less time than formerly is now available for the study ofbailments. Statutes have obliterated some of the importantcommon-law distinctions, and much of the subject-matter is*Dean and Professor of Law, New York University.**Professor of Law, New York University.I RESTATEMENT, PROPERTY, pp. 3-11 (1936).2227 U.S. 633 (1913).MARQUETTE LAW REVIEWnow found either in texts on Torts, or, in the case of the com-mon callings ,in courses in government regulation of business.Bailment relationships, however, continue to grow in number."The chapter concludes with a consideration of the law of AdversePossession. A valuable learning device is the inclusion of hypotheticalquestions giving practical applications of the various statutes of li-mitations.Chapter 3 of Volume I deals with the acquisition of title to per-sonal property. With such an important area of property law involved,it would seem that the authors could have given it greater emphasis,especially the section relating to voidable title3 and estoppel - apparentauthority questions. At p. 311 of Volume I, there is contained a suc-cinct but thorough outline of the methods of obtaining title. This is butone of many study aids that the property student will enjoy in the useof the three volumes. Organization seems to have been well-fixed inthe minds of the authors.In the chapter on Security Interests in Personal Property,4 amajor criticism seems warranted as there is much emphasis on SimpleLiens apd Pledges and not enough on Conditional Sales Contracts,Chattel Mortgages and the like. But, in fairness, it should be notedthat the avowed purpose of the authors is to present Property Law;the latter subjects might properly be considered as strictly belongingto the law of Sales.The concluding chapter in Volume I deals with the Enjoyment ofLand. The presentation might be considered sketchy, especially thatof Airspace. The material on Water Rights is improved but morecoverage could have been afforded the modern "reasonable-use"theories.5 There is a redeeming section which presents an up-to-datetreatment of Minerals, Oil and Gas.Volume II of the set herein reviewed contains materials on Free-hold and Non-freehold Estates. To maintain the firm foundation thatthey appear to have strived for and achieved quite well, the authorsinitiate their discussion with a consideration of the early feudal sys-tem.6 The nature of the freehold estate is then explained,7 followedby an analysis of the estate in fee simple.832 WILLISTON, SALES §348 (rev. ed. 1948) is merely cited for its rule, with nodiscussion of the problems the section has raised. See, e.g. Corman, CashSales, Worthless Checks, and the Bona Fide Purchaser for Value, 10 VAND.L. Rxv. 55 (1956); Vold, Worthless Checks, Cash Sales, "SubstantiallySimultaneous" and Conflicting Analysis, 1 Hastings L. J. 111 (1949).4 Chapter 4 of Volume I, pp. 315-351.5 See, e.g. Kenyon and McClure, Interferences With Surface Waters, 24MINN. L. REv. 891 (1940); Kenyon, What Can A Reparian Proprietor Do?21 MINN. L. REv. 512 (1937).6 Quoting, as they do consistently throughout the volumes, from WALSH, HIs-TORY OF ANGLo-AMERICAN LAW (2d ed. 1932), pp. 31-47.7 Quoting from BLACKSTONE'S COMMENTARIES, Book 2, p. 103.8 A Note on Statutory Changes as to Creation of Estates in Fee, p. 35, is a[Vol. 42RECENT DECISIONSProprty teachers may find the limited matter on the law of FutureEstates a fit subject for pedagogical controversy. For those who la-bored with the taxing definitions and distinctions, the abbreviateddiscussion may appear as a welcome respite. But there will be manyin the opposite comer, favoring a more thorough coverage of thisimportant aspect of property law. The writer is of the opinion thatat least a few token cases illustrating applications of the Rule AgainstPerpetuities or the Rule in Shelley's Case9 could have been includedin addition to the excerpts from Walsh, History of Anglo-AmericanLaw.Again the authors have done the law student a service by includinga dichotomic outline of Freehold and Non-freehold Possessory Estatesat Common Law. These short but informative study aids might well beemployed by more casebook authors to insure that the subject-matteris organized in the minds of the students. The authors of the instantvolumes have shown such concern for insuring the acquisition ofknowledge by students that it seems almost possible they recalled thatthey were once studying the law with the objective inter alia of ob-taining a degree.The second chapter of Volume II contains the consideration of theEstate for Life -Its Nature and Incidents, with coverage of suchproblems as alterations and improvements by the life tenant and hisright of contribution therefor. Included are notes on Wasting Assets,particularly such as Mines, Wells, and Quarries. (Each volume ap-pears to have been written with a view to recognition of the currentimportance of mining and mineral rights in property law.)Chapter 3 is strictly concerned wtih the Marital Life Estate. Ofcourse, dower - its essentials, and curtesy, along with the statutorychanges, are considered. Here criticism can be noted of a conditionthat pervades the entire set of volumes. The authors cite all too manycases arising out of New York. But considering that the casebooksare intended for use at New York University, this situation mighthave been anticipated.In chapter 4, most phases of Co-Ownership are dwelt upon. Theauthors initially pose a convenient set of problems to be solved duringthe discussion:1. Which forms of co-tenancy have been abolished by stat-ute or are deemed obsolete?2. To what extent have common law constructional pref-erences ("presumptions") for one kind of co-tenancy as againstanother, been abolished or reversed?very valuable index to the innovations made in property law by the variousstate legislatures.9 1 Coke 94. ..... The heirs are words of limitation of the estate and not wordsof purchase."19581MARQUETTE LAW REVIEI[l3. To what extent have the various jurisdictions modifiedcommon law rules governing the requisites for creation of, andthe incidents arising from, a given type of co-tenancy?4. A corporation could be a co-tenant in which types?5. Might there exist simultaneously in the same parcel ofland, several different types of co-tenancy? If so, how many?In the ensuing discussion, these problems are analyzed with theassistance of much secondary authority, including many of the LawReview citations. This approach is typical of the volumes in totumas the authors have not been content to include merely cases of greatlength, but rather have cited many cases and secondary sources oneach restricted problem and so have compiled a valuable index fornot only the student but the property practitioner. Often as many asa half-dozen A.L.R. and treatise citations along with the leading casesare cited in support of a proposition asserted in a concise note. Somelaw professors will be indeed pleased to note the authors' disregardof the ancient rigid case-by-case approach to the law.10Part 2 of Volume II deals with Estates Less than Freehold or, ofcourse, the law of Landlord and Tenant. Initially the cases show thenature of a leasehold interest at common law, with the modern lawand relevant statutory modifications developed later. Licenses andvarious contractual interests are then distinguished from leases. Aparticularly well-documented note on the status of the cropper is in-cluded at pp. 309-312 of Volume II.The tenancies of uncertain duration - tenancies at will and periodictenancies -are considered in light of the many statutory ramificationsintroduced in the various states. The practitioner should find the ex-haustive compilation of annotations of value. The material on thetenancies resulting from holding over, while well-organized, mighthave included more on the effect of the unlawful detainer statutes nowenacted in most states.The relation of Landlord and Tenant includes in its analysis theproblem considered in the famous constitutional case of Dorsey v.Stuyvesant Town Corp.,- followed by a consideration of the legalaspects of Rent. In the final chapter of Volume II there is a sectionon Emergency Control of Rents and Evictions with a Selective Biblio-graphic Note on Rent Control Legislation, at p. 546, that is quitethorough.In Volume 111, Conveyancing is first analyzed. In consistentfashion, the authors outline the evolution of the practice at common10 The authors have even gone so far as to devote a Special Note to CommunityProperty at p. 242, 243 of Volume 2, explaining that: "Although often treatedas a subdivision of the Law of Persons or Domestic Relations . . . or recog-nized as an independent legal field community property is essentially a kindof concurrent ownership of real and personal property by husband and -wife."11299 N.Y. 512, 87 N.E. 2d 541 (1949).[Vol. 42RECENT DECISIONSlaw both before and under the Statute of Uses. Thereafter, the stat-utory basis of the modern deed is explored, followed by an examina-tion of its general requisites.'2The very important section of the volume pertaining to deed de-scriptions cites many up-to-date cases and, as still another aid tolearning, there appears a list of rules of construction to govern con-flicts between different calls or elements of the same description.In the portion of the volume devoted to Delivery of Deeds, thereis a deserved emphasis on the conditional delivery problem. Many ofthe leading cases in point that have been decided are cited, if notcondensed in their holdings.Chapter 13 of Volume III treats of the effect that Recording hason the practice of Conveyancing. Again, the compact but well-sup-ported notes accompanying the foremost cases provide an excellentindex to the law. Thus, it can be reiterated that the volumes should beof interest to the property lawyer as well as the student.But this writer would have preferred a greater emphasis on thedistinctions between the types of recording statutes -notice, race,and race-notice.The following chapter is logically correct in discussing Title Stand-ards, Title Examination and Title Reliance. The various means bywhich a prospective purchaser may be certain that he acquires perfecttitle to the premises are considered. This section, in addition to quotingfrom the leading cases in point as well as the statutes of many juris-dictions, includes the most comprehensive bibliography in the volume.Part 4 of Volume III will perhaps be the most interesting portionof the instant works as it deals with Servitudes. The initial chaptercontains a preliminary discussion of Easements and Profits whichmight have been more definitive in organization.' 3 And the materialon Licenses is abbreviated, if not sketchy.In the matter of Creation of Easements, Wisconsin conveyancerswill not be surprised to learn that Duinneen v. Rich14 is included as astyled case. The problem of obtaining Easements by Prescription isthoroughly covered, and it appears that a critic would be hard pressedto find an aspect that is not examined in some detail. The same mightbe said of the Extent and Extinction of Easements. The authors attimes completely abandon the traditional casebook method in favor ofa treatise or hornbook approach. No complaint will be heard fromthis quarter.32 An Introductory Note at p. 593 contains the following bit of classical under-statement: "Some variation exists between the usual components of a deed,and its irreducible minimum essentials."13 There may also be a question as to whether the authors were prudent inciting the Restatement so freely. See CLARK, COVENANTS AND INTERESTS RuN-NING WAITH LAND, (2d ed. 1947).'422 Wis. 550 (1868).1958]MARQUETTE LAW REVIEWChapter 16 of Volume III handles the questions arising in Cove-nants Running With the Land. No attempt will be made to evaluatethe merits of the authors' approach to this area of Property Lawexcept to say that the fundamental division established by lifting anexcerpt from Walsh 15 is most refreshing. The problems of privityare then detailed along with a discussion of equitable servitudes andrestrictive covenants. The latter problem is given a constitutionalapproach to insure proper balance.In fitting conclusion to the up-to-the-minute property law repositorythat they have compiled, the authors have included in their finalchapter a discussion of Governmental Interference With, or ControlOf, Private Ownership. In the most important subdivision, regardingEminent Domain, there is stated at p. 1205:"An elementary analysis may be facilitated by examiningseriatim the italicized words in the following sentence:"Private property shall not be taken except for public useand upon payment of due compensation."The authorities cited in the succeeding analysis should be of prac-tical utility as an index to the law for any attorney beset with thecurrent flood of litigation which this area of the law has produced.The authors have concluded their efforts by compiling a selectivebibliography on Zoning and Planning which, with finality, stamps thevolumes as "more than casebooks" and rather a valuable addition tothe library of the property expert, to say nothing of the commonpractitioner. As indicated initially, the authors have modestly prefacedtheir work as casebooks for the law student. They seem to have suc-ceeded in this attempt for their departure from a strict adherence tothe case-by-case progression appears to the writer to be a bold stridein the way of clarity. But apart from creating something that shouldinvoke pedagogical approval, the authors have collected in threevolumes an index to property law (not to discount the authority theythemselves have established) that will prove of some great value tothe graduated student-the practicing lawyer.ADRIAN P. SCHOONE15 WALSH, HISTORY ANGLo-AMERPcAN LAW (2d ed. 1932), pp. 276-282.WISCONSIN BOOK BINDERY, INC.Library and Specialty Book Binding229 West Mineral Street Milwaukee 4, Wisconsin[Vol. 42

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Book Review: Cases on the Law of Property: By Russell Denison Niles and Elmer M. Million

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