Privileges to Trespass Flashcards
What is a privilege? (Feldman)
When a defendant asserts a privilege in response to a claim of trespass, the defendant does not deny that the elements of a prima facie case have been made out, but instead asserts that a special justification applies that overcomes the prima facie case.
What is a taking? (Feldman)
This involves (a) the power to take and (b) the requirement of compensation.
What is the justification of a taking? (Feldman)
The justification for permitting takings is the general good: the net benefit to the public at large. In other words, the conduct does more good than harm (no primary criticism) so should be permitted.
What does the duty to compensate for a taking come from?
The duty to compensate (secondary criticism) stems not from the wrongfulness of the conduct but from the unfairness of benefitting the many at the expense of a few. Compare to nuisance principles.
What is the difference between public necessity and police power?
If it is a “taking” then compensation must be paid for harm done, but if it is an exercise of “police power” justified by the doctrine of “public necessity” compensation need not be paid.
What rule was taken from Vincent? (Lake Dock Case)
The idea of fairness here is similar to the idea at work in the takings clause: those who damage other people’s property for their own benefit should pay for the harm they inflict. Secondary criticism, not primary criticism.
Allowed to trespass but still need to pay for damage done during the trespass.
What is private necessity? (Feldman) (E&E)
One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, his land, or his chattels. (Ploof)
