Reviews and comments, direct and indirect, upon this new casebook, developed in furtherance of Professor McDougal\u27s views on the proper functions of law schools, have appeared in print in several places. From some comments a seriously distorted picture of the book and its possible use is almost unavoidable-a circumstance that has persuaded me that the experience of one professor in its use can be helpful

Cross, Harry M.

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Washington Law Review Volume 24 Number 1 2-1-1949 Property, Wealth, Land Allocation, Planning and Development, by Myres Smith McDougal and David Haber (1948) Harry M. Cross University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Property Law and Real Estate Commons Recommended Citation Harry M. Cross, Book Review, Property, Wealth, Land Allocation, Planning and Development, by Myres Smith McDougal and David Haber (1948), 24 Wash. L. Rev. & St. B.J. 74 (1949). Available at: https://digitalcommons.law.uw.edu/wlr/vol24/iss1/7 This Book Review is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. BOOK REVIEWSPROPERTY, WEALTH, LAND ALLOCATION, PLANNING AND DEVELOPMENT, by MyresSmith McDougal and David Haber. Charlottesville. The Michie Casebook Cor-poration, 1948. Pp. viii + 1213.Reviews and comments, direct and indirect, upon this new casebook, developed infurtherance of Professor McDougal's views on the proper functions of law schools,have appeared in print in several places.' From some comments a seriously distortedpicture of the book and its possible use is almost unavoidable-a circumstance thathas persuaded me that the experience of one professor in its use can be helpful.First of all, judgment of the book's merit can fairly be based only on what it pur-ports to offer concerning property law, or more broadly, law in relation to land. Thefirst paragraph of the preface is revealing-Intended as an introduction to the study of property law, this book is designed tocomplement any course on Personal Property and to serve as the first course in anysequence of courses, whatever the books or materials used, which includes Vendor andPurchaser or Conveyancing, Landlord and Tenant, and Future Interests. It can alsobe used to offer students who do not have opportunity to take all such advanced coursesthe major outlines of authoritative doctrines and practices. On problems of land plan-ning, including both what has traditionally been known as Rights in the Land ofAnother and the public controls available to our various communities, the book pur-ports to be more or less comprehensive.In the University of Washington Law School the book is being used as the principaltool in a six-hour, first-year course (that is, three hours each week for two quarters).Except for four class hours spent on the cases in the 112-page introductory first chapter,the first half of the course has been devoted to basic property concepts and rules,developed in about 300 pages in chapters 2, 3, and 4.The following are among the points and ideas presented in chapter 2 Under whatcircumstances can a claimant of an interest in land support his claim? What formalitiesare necessary to a conveyance? What protection is afforded a claimant by recording?What is delivery and escrow delivery? What amounts to acquisition by adverse posses-sion? What is encompassed by the concept estate? What are the possibilities of restric-tions on estates? What protection is given possession? What is the extent of possession(the air flight and hidden cave problems) ? What are the rules concerning lateralsupport?Chapter 3 is a seventy-nine-page introduction to problems of future interests, i.e.,remainders, executory limitations, possibilities of reverter, rights of entry, the Ruleagainst Perpetuities, and the complementary present estates. Unfortunately, by reasonof curricular and other complications this will be a major portion of some students'study in future interests since they will not take the separate course. Some first-yearproperty books totally omit any of this technical field to the lasting disadvantage of thestudent who thereafter misses the separate course. The editors put in Helvering v.Hallock 309 U. S. 106 (1940), apparently to show that for federal tax purposes thesetechnicalities may not be so important after all I In Washington it is desirable to sup-plement this chapter with some emphasis on the Rule in Shelley's case which eitherdoes or should haunt all Washington lawyers.21 1 JOURNAL OF LEGAL EDUCATION 36, 326 (1948), 34 VA. L. REv. 629 (1948), 2WASH. STATE BAR NEWS 38, 42, 46 (1948).2 Cf. Cross, The Rule tin Shelley's Case i Washington, 15 WASH. L. REv. 99 (1940).BOOK REVIEWSChapter 4 comprises seventy-five pages of principal points on landlord-tenant law.These questions arise: What lands of tenancies are there? Is a landlord-tenant rela-tionship created? Why does it matter 73 Is there an assignment or sublease; an eviction,either actual or constructive; covenant, independent or dependent? Is a lease a convey-ance, or contract, or a mixture of both? What are the rules of waste? What is theeffect on leaseholds of taking by eminent domain?Chapter 5 includes twenty-six pages des'igned to present the' principal features ofconcurrent ownership, t.e., tenancy by the entirety, joint tenancy, tenancy in common,and a breath of community property.Chapters 6 and 7 cover forty-nine pages, mostly textual, on zoning and planning.Chapter 8 has 276 pages in which there is the best concentration of comparablematerial, in my knowledge, on covenants running with the land, easements, restrictionson use, and such technical means for private control of land use. Conversation withpracticing lawyers and real estate brokers as well as perusal of appellate court opinionsconfirm my belief that these are matters of great importance in modern land law.Chapter 10 contains 167 pages on water law, raising serious questions whether theestablished rules solve the practical problems with reference to use of water. Anyonewho has tackled the water law cases and statutes in Washington must have had similardoubts.All of the above material is essentially orthodox, basic property law, with editors'notes directing the reader's thought to the adequacy of the rules to meet the social oreconomic problems involved. The principal onmssion is the feudal and historical devel-opment material. There is no serious dispute concerning the advisability of some under-standing of this omitted material. The editors contemplate that the student will acquiresuch knowledge by collateral reading. I have found it advantageous to sanction thatacqtusition by means of a special examnation, devoted in part to coverage of 9ssignedoutside reading.Thus far no particular mention has been made of the material in chapter 1. Dis-cussion of cases, for the most part, consumed the four days allotted to this 112-pagechapter. Mostly textual, the chapter suggests underlying questions such as the follow-ing" What is "property?" What is the origin of the concept? Does a comparable con-cept exist outside Anglo-American law How far does local (i.e., state) law control?How far does federal law control? An article on Soviet Property Law is somewhat ofa shock: in many respects an individual's property rights are similar to those we inthe U.S. know; Americans who might deal with Russians will be assisted by know-ledge of some of the many variances and the similarities. A synopsis of federal-statelaw reveals that property rights are controlled at the federal level far more, I believe,than is normally realized, and the Atomic Energy Act has created "in the midst ofour privately controlled economy a socialist island with undefined and possibly ex-panding frontiers."Chapter 9 has been postponed in my use of the material until completion of Chapter10. This contains 276 pages on planning and developing metropolitan communities.This is unquestionably one of Professor McDougal's pets. It is also a serious problemfacing directly or indirectly many lawyers, both legislators and nonlegislators alike.Washington's legislature in 1947 allowed to die an urban redevelopment bill. Anotherbill has been prepared for submission in the 1949 legislature upon which the Chamber3 Cf. Najewitz v. City of Seattle, 21 Wn. (2d) 656, 152 P.(2d) 722 (1944), in whichcounsel argued plaintiff was discharged improperly under civil service rules and thecourt said it was immaterial since he was a tenant at will.76 WASHINGTON LAW REVIEWof Commerce, Municipal League, Real Estate Board, and others have had lawyers andlaymen working or in which they have been extremely interested. In the November,1948 elections the Washington voters enacted constitutional amendments permittingcounty home rule and authorizing for Seattle (alone, at present) the creation of aconsolidated county-city. Master planning and other land use control devices are alsoconsidered in this chapter.Chapters 11 and 12 are largely textual-fifty-four pages on national and possibleworld planning.The book as a whole then offers between 600 and 786 pages (depending on one'sown classifications) of orthodox property law materials which do give a good base forknowledge of property law in the narrow sense. As the editors contemplate, complem-entary later courses will expand and supplement the basic information available inthis book. The editors, within the area covered, then go farther and present many ofthe land use legal problems developing under modern conditions.At the time of my adoption of the book I was aware of certain criticisms of it-particularly that it cannot be successfully used in a first-year law class because stu-dents are expected to get too much usable information by reading; and further, thatone cannot form judgments as to desirable policy before having rather complete infor-mation of the circumstances which call for policy decisions, that is, basic concepts andideas must be understood before they can be evaluated.Inherent in these criticisms is the suggestion that the book is a difficult one withwhich to work. For myself, trained both as student and professor in the more orthodoxapproach, there have been some difficulties not traceable solely to changing case-books. Students may be a little more confused than is usually the case in first-yearproperty, but I don't think so. They may be working harder-I hope so! But if, as Ifeel is the case, the net result of the harder work will be greater accomplishment itwill be amply justified. One of the difficulties lies in acquiring a working familiaritywith Professor McDougal's terminology, but this rather startling language or phrase-ology is frequently a stimulus to thought, which I have always believed to be desirablein students, at least, and perhaps even lawyers IProperty law is particularly susceptible to rigidity of approach and thinking. Thesematerials will go a long way toward preserving for the student a flexibility of approachto land problems which can mean the difference between success and failure in counsel-ing or advocacy in this field. I venture the observation that it is the rare property lawprofessor who believes his field is fixed and settled with hard, cut-and-dried rules,but that it is the rare student who feels it is otherwise. This book may help somestudents see the lightl Thinking in terms of values while learning basic concepts cangive a broader perspective, and an understanding of the real significance of propertyrules can be sought at the same time technical rules are studied.Viewpoints revealed in the material presented by the editors are probably far morewidely held than many persons would like to think. Students can therefore properlypay attention to these viewpoints. This does not necessitate sponsorship or agreement.but awareness is important even if for no other reason than to marshal argumentsagainst such viewpoints.The more I work with the book, the better I like it.HARRY NMr. CROSS 44 Associate Professor of Law, University of Washington.

\u3ci\u3eProperty, Wealth, Land Allocation, Planning and Development\u3c/i\u3e, by Myres Smith McDougal and David Haber (1948)

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\u3ci\u3eProperty, Wealth, Land Allocation, Planning and Development\u3c/i\u3e, by Myres Smith McDougal and David Haber (1948)

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