Federal Statutes Gave No Property Rights To County

Posted on June 27, 2011 by Michael Rigney

SAMUEL C. JOHNSON 1988 TRUST v. BAYFIELD COUNTY (June 17, 2011)

In the middle of the 19th century, the federal government wanted to encourage railroading. It created a checkerboard-like pattern of identical square sections on federal land. It assigned the squares alternating odd and even numbers. It gave the odd-numbered sections to the railroads in fee simple. It sold the even-numbered sections. The railroads would be able to sell part of the land they owned but did not need in order to finance their operations and the acquisition of rights in the land they did not own. The Samuel C. Johnson 1988 Trust is the current owner of property in northern Wisconsin that was part of this checkerboard. It owns property in an even-numbered section that its predecessor purchased from the federal government in fee simple in the late-19th century. It also owns property in an odd-numbered section that it purchased from a railroad. Bayfield County thinks it has rights in the now-abandoned railroad right-of-way on the Trust's properties and wants to build a snowmobile trail. The Trust brought suit to quiet title. Judge Crabb (W.D. Wis.) granted summary judgment to the County. The Trust appeals.

In their opinion, Judges Posner, Wood, and Tinder reversed. The Court first addressed its jurisdiction, since the suit seems to arise under state law and there is not complete diversity. Both the plaintiff and defendant rely on federal law for their claimed property rights. Whether viewed from the plaintiff’s perspective or, since it is a type of declaratory judgment case, from the presumed suit by the defendant, the case arises under federal law. On the merits, the Court addressed each section separately. With respect to the even-numbered section, the railroad obtained its right-of-way by condemnation. The Court rejected the County's assertion that it was obtained by statute. Once the railroad abandoned the right-of-way, the Trust became the holder of the full rights to the property. With respect to the odd-numbered section, there was no right-of-way because the railroad owned the property in fee simple. When it conveyed the property to the Trust, it conveyed all rights in the property. This County has no right to build a trail.

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Real Property Vendor Is Not Liable For Personal Injury Damages Caused By A Defect Known To The Purchaser

Posted on June 17, 2010 by Michael Rigney

TINDLE v. PULTE HOME CORP. (June 9, 2010)

Terry and Diane Tindle moved into their new home in West Dundee, Illinois in late 2003. Their home was part of a subdivision developed by Pulte Home Corp. Soon after moving in, the Tindles noticed holes developing in both their front and rear yards. They complained about the holes in the front yard. Although Pulte considered them normal, they did repair the holes. For months, the Tindles used their rear yard without incident. In the summer of 2004, however, Terry Tindle stepped into a concealed hole in the rear yard. He suffered serious injuries to his leg. Tindle brought suit against Pulte. Judge Manning (N.D. Ill.) granted summary judgment to Pulte. Tindle appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court noted that Illinois law generally excuses a vendor of real property from liability for personal injury after transfer of possession. Section 353 of the Restatement (Second) of Torts, also the law in Illinois, creates a five-pronged exception to the general rule. A vendor can be liable if a) it knew of a hazardous condition that created an unreasonable risk, b) it concealed or failed to disclose the condition, c) it had reason to believe the purchaser would not discover the condition, d) physical harm resulted from the condition before the purchaser knew of the condition and risk, and e) the purchaser did not have an opportunity to protect against the risk. The Court concurred with the district court that Tindle could not meet his § 353 obligations both because of the state of his knowledge and that of Pulte. First, Tindle was well aware of the dangerous condition created by the holes in his yard. That knowledge defeats any recovery under § 353. Second, Tindle presented no evidence that Pulte was aware of the dangerous condition at the time of the sale. That lack of knowledge independently defeats recovery under § 353.

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