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SURVEY OF REAL PROPERTY LAW*
I. ADVERSE POSSESSION XVI. MINES AND MINERALS

II. AIRPORTS XVII. MORTGAGES AND LIENs
III. Am SPACE XVIII. OIL AND GAS
IV. BROKERS XIX. OPEN SPACE AND CONSERVATION
V. CONDOMINIUMS AND COOPERATIVES XX. PLANNING AND ZONING
VI. CONVEYANCING AND TITLES XXI. PUBLIC HOUSING AND URBAN
VII. COVENANTS RENEWAL
VIII. EAsEMENTs XXII. PUBLIC LANDS
IX. EMINENT DOMAIN XXIII. SURVEY OF TH LAw
X. ENVIRONMENTAL CONTROL AND XXIV. TAXATION
POLLUTION XXV. TORTS AND NUISANCE
XI. ESTATES IN LAND XXVI. USURY
XII. FDTuREs-U.C.C. XXVII. VENDOR AND PURCHASER
XIII. FUTURE INTERESTS XXVIII. WATER AND WATER COURSES
XIV. HoUsING CODE XXIX. MISCELLANEOUS
XV. LANDLORD AND TENANT XXX. BOOKS
This report is the product of the grouping of the traditional committees

on Literature, Decisions and Legislation as subcommittees under the new
Real Property Law, Literature and Research Committee. The immediate
result is the integration of the format of the former three separate reports
into one, with the aim of producing more of a survey type of presentation.
Under each of the major topical headings are grouped the materials on
significant 1971 legislation, decisions reported in the main in 1971 and
literature published during the past year. In some instances one or more
of these subgroupings are not represented. The italicized comments follow-
ing certain decisions indicate their particular significance.
I. ADVERSE POSSESSION
A. Legislation
Maine
Ch. 450: Amends 14 MRSA 812 and provides a method for a land-
owner to give notice of his intent to prevent the acquisition of a right of
way or easement by use upon lands in the unorganized territory of the state.
In these areas, the landowner must file a copy of his notice of intention to
prevent such acquisition in the registry of deeds in the county in which
the land lies.
Ohio
S.B. 208: Amends 5309.01 to provide that the state or any agency or
political subdivision thereof which has or appears to have an interest in
real property adverse to the party in possession and claiming title, may be
made a party defendant in an action to quiet title.
*Report of Committee on Real Property Law, Literature and Research.
Spring 1972] REAL PROPERTY LAW, SURVEY
B. Significant Decisions
La Freniere v. Sprague, 271 A. 2d 819 (R. I. 1971).
HELD: Where the owner of a lot occupied ten feet farther to the
south than the actual southerly line because of his mistaken belief that his
occupation extended to the true line, this constituted hostile and adverse
possession. The fact that the adjoining owner on the south, within the
required ten-year period, had the line surveyed and notified the plaintiff of
the true location of the boundary line did not toll the running of the statute.
A confirmation of the decision in Dodge v. Lavin, 84 A. 857 (R. I.),
although recognizing that many jurisdictions entertain the opposite view.
Montgomery v. Branon, 278 A. 2d 744 (Vt. 1971).
HELD: The same evidence which sustained defendants' acquisition of
title to an interest in lands surrounding a hunting and fishing camp by
adverse possession also sustained their right of access to a neighboring pond
over the area used as a right of way. Even though the defendants passed
from the camp to the pond only from time to time over the years, their
adversely acquired title to the camp carried with it, as an appurtenance, an
easement to the pond.
Moravek v. Oscody, 456 S.W. 2d 619 (Mo. 1970).
Plaintiffs and their predecessors in title for many years used the ad-
joining farm land belonging to the defendants for ingress and egress to and
from their farm. Defendants contended that such use was permissive in the
beginning and that the land in question was unproductive wasteland.
HELD: The essential elements of easement by prescription for the pre-
scribed period was clearly established by evidence indicating that plaintiffs
claimed title to the easement over marginal land, which from the facts
cannot be considered as an unproductive wasteland belonging to an absen-
tee owner.
Rieke v. 0lander, 485 P. 2d 1335 (Kan. 1971).
Action to quiet title to certain land immediately north of a river to
which defendant claimed title by adverse possession.
HELD: Absent compelling reasons to the contrary, title to accretion
land follows the title to the riparian land to which it is attached, regard-
less of whether the latter title was acquired by deed or adverse possession.
Therefore, one who has acquired title to land by adverse possession is en-
titled to any accretions thereto, regardless of the time of their formation.
Slatin's PropertiesInc. v. Hassler, 271 N.E. 2d 665 (Ill. 1971).
Suit to quiet title to vacant and unimproved city lots. Plaintiff and
defendants derived title from a common grantor, but plaintiff's deed was
recorded first. Neither plaintiff nor its predecessors in title had paid taxes
or other charges levied against land for more than 40 years. Defendants
had paid general taxes on the same and, in addition, had paid all special
assessments and all charges for weed removal levied by the municipality.
Defendants claimed (1) that they had acquired title to said property by
adverse possession, in that such payments indicated sufficient possession
under section 7 of the Illinois Limitations Act; or (2) the plaintiff's claim
REAL PROPERTY, PROBATE AND TRUST JOURNAL [Vol. 7:68
was barred by laches; or (3) that plaintiff was barred by application of the
"clean hands" doctrine. From a decree finding issues for defendants, plain-
tiff appealed.
HELD: Reversed. Payments of general taxes and special assessments
and of municipal charges for weed cutting did not constitute sufficient
evidence of possession after payment of taxes for seven successive years
under color of title, as required by section 7 of the Illinois Limitations Act
relating to vacant and unoccupied lands. In addition, laches and the "clean
hands" doctrine had no application.
Decision seeks to distinguish case from Pyle v. Ferrell, 12 Ill. 2d 541, 147
N.E. 2d 341, wherein doctrine of laches was applied to similar facts. The
decision states that ground for distinction was that in Pyle the record title
holder knew or should have known that the defendants had received (an
allegedly void) tax deed to the property and had thereafter continued to
pay taxes on the same for many years. The distinction apparently was made
that the issuance of such void tax deed was sufficient to "alert" the owner
that he might lose his property by nonpayment of taxes.
C. Current Literature
Willenzik, The Possessor's Right to Compensation, 31 LA. L. REv. 491
(1971). Reviews the Louisiana law applicable to compensation to a possessor
who has improved upon land only to be subsequently evicted by a rightful
owner. The author suggests that the discrepancy in remedies afforded good
and bad faith possessors be reconciled through some modification of the
statutory scheme.
II. AIRPORTS
A. Legislation
Hawaii
P. A. 160: Empowers Department of Transportation to enter leases of
buildings, structures, or facilities and the land thereunder in connection
with establishment of air transportation facilities.
Pennsylvania
P. A. 86: Amends the Municipalities Authorities Act of 1945 to per-
mit authorities owning airports to lease land which is not immediately
needed for aeronautical purposes.
B. Current Literature
Berger, Nobody Loves An Airport, 43 S. CAL. L. REv. 631 (1970).
Lengthy treatise on public airports, ranging from trespass and nuisance
aspects of such development through economic effects on nearby residential
property values and on commercial and industrial properties.
Airports in the Urban Setting-A Symposium, 3 URBAN LAW. 175-285
(1971). Lesser, The Aircraft Noise Problem: Federal Problem but Local
Liability, p. 175; Danforth, Mercury's Children in the Urban Trap: Com-
munity Planning and Federal Regulation of the Jet Noise Source, p. 206;
Sackman, Air Rights- A Developing Prospect, p. 238; Roeseler, Airport
Development Districts: The Kansas City Experience, p. 254; Davis, New

Developments in Airport Security, p. 263; Gottlieb, Land Use Controls for
Airport Planning,p. 266; Fry, From Capitol Hill: Airports, p. 277.
III. AiR SPAcE

A. Legislation
New York
Ch. 248: Amends Public Authorities Law 351(8) to include property
rights in air space and/or subsurface space within the definition of "real
property" under the law.
Ch. 1002: Amends New York City Administrative Code definition of
street to include "the surface, subsurface and air space over" any street.
Ch. 1016: Grants to Commissioner of General Services authority to
lease state-owned real property, including air space and subsurface space, for
terms not in excess of 99 years. Grants to Commissioner of Transportation
authority to sell or lease, for terms not in excess of 99 years, air space and
unused surface and subsurface space with respect to property under his juris-
diction. Provides for assessment and taxation of improvements thereof in
name of lessees.
Robinson, Military Requirements for International Air Space: Evolv-
ing Claims to Exclusive Use of a Res Communes Natural Resource, 11
NATURAL RESOURCES J. 162 (1971). Increasing variations in use of air space
for aeronautical purposes, communications, space activities and ballistics
testing are limiting quite rapidly the ability of this heretofore uncomplicated
natural resource. Navigable and otherwise usable airspace has become such
a high-demand environment for many technologically advanced countries
that frequent resort to international air space for unilateral objectives,
previously accommodated within domestic air space, is becoming increas-
ingly evident. An intricate and subtly shifting pattern of natural claims
to certain uses of international air space is evolving which indicates a de
facto patchwork of seemingly surreptitious appropriations of such air space.
The appropriations or claims often are conflicting in nature and are lead-
ing to problems of international law which will become progressively acute
as unobstructed air space decreases proportionately with an increase in its
use.
Aero-Space Law Symposium, 20 DE PAUL L. REV. 323-543 (1971). Bas-
siouni, Introduction to a Symposium on Issues on Aero-Space Law, p. 323;
Sundebar, Piracy: Airacy, p. 337; Kennelly, Problems Regarding Aviation
Litigation, p. 436; Benshoof, Air Law-The Memory Lingers On: Ad
Coelum in the 1970's-Some New Approaches, p. 525.
Aero-Space Law Symposium II, 20 DE PAUL L. REV. 581-749 (1971).
Cocca, Some Comments on a True Step Toward InternationalCooperation;
The Treaty of January 27, 1967, p. 581; Gorove, International Protection
of Astronauts and Space Objects, p. 597; Sloup, Peaceful Resolution of
Outer Space Conflicts Through the International Court of Justice: "The
Line of Least Resistance," p. 618.
IV. BROKERS
This branch of the law discloses no particular trends other than in the
field of legislation where both the Connecticut and Colorado legislatures
reflected the popular concern for consumer protection by enacting statutes
to (1) prevent a recovery of commission by other than licensed brokers; (2)
require brokers to hold all sales and securities deposits in a separate escrow
or trust account; (3) create a fund from license fees to reimburse clients for
broker's fraud or conversion of funds.
A. Legislation
Colorado
Ch. 277: Creates fund, derived from additional real estate brokers'
license fees, for the payment, within limits, of judgment obtained against
real estate brokers and salesmen on grounds of fraud, willful misrepresenta-
tion, deceit, or conversion of trust funds arising out of real estate trans-
actions.
Connecticut
P.A. 359: Requires brokers to hold all moneys received on behalf of
any client in a separate escrow or trust account, distinct from his own
account.
P.A. 379: Prohibits any person who is not duly licensed as a real
estate broker from recovering any commission.
Kansas
S.B. 77: Amends 58-3022 to provide that real estate brokers must
deposit all funds not their own, including earnest money deposits, in trust
accounts in insured savings association (as well as insured banks).
Covino v. Pfeffer, 160 Conn. 212 (1970).
Action to recover broker's commission. On April 11, 1968 plaintiff and
defendants entered into a written exclusive sales agreement which gave the
plaintiff the exclusive right to sell defendant's property for a period of
90 days. On August 8, 1968 the defendant sold the property to a third
party for $500 less than that listed in the plaintiff's contract.
HELD: During the life of an exclusive sales contract an agreement
between the owner and the ultimate purchaser to sell and buy, whether
or not specifically enforceable, gives rise to a cause of action on the part of
an exclusive broker who uses reasonable efforts to sell the property. The
owner is deemed to have sold the property which is the subject of an ex-
clusive sales contract even though negotiations with the prospective pur-
chaser have not been consummated into a binding and enforceable contract
for sale during the exclusive period. All that is required is that negotiations
for the sale take place before the expiration of the exclusive sales agreement.
An extension of Harris v. McPherson, 97 Conn. 164, 115 A. 723 (1922)
which was limited to the situation where the owner sells the property to a
purchaserprocured by his own efforts.
Ferrisv. Meeker Fertilizer Co., 482 P.2d 523 Ore. (1971).

After a written listing agreement expired, it was orally extended from
May to August 7. The broker continued working with a prospective cus-
tomer and was encouraged to do so by the seller. In November a written
agreement was entered into which resulted in a sale to this customer in
December. In a suit by the broker for a commission the defense was that the
statute of frauds prevented an oral extension of the written listing.
HELD: The general rule is that the time of performance specified in a
broker's contract may be waived by the parties and under the facts it could
be considered that the authorization to the broker which had expired on
August 7 had been impliedly extended by the action of the owner in approv-
ing and encouraging the broker to continue her efforts. Furthermore, the
statute of frauds does not apply and the waiver did not have to be in
writing.
Gement v. Dobey, 246 So. 2d 253 (La. Ct. App. 1971).
Gement, a broker, was acting for Smith in connection with certain
real estate transactions. He showed certain property to Smith and when
Smith indicated interest, Gement contacted Dobey, another broker. At
Gement's suggestion, Smith then dealt directly with Dobey, and ended up
buying the property and paying Dobey a full commission.
HELD: Gement's efforts clearly were a procuring cause of the sale
since he first found the ultimate buyer. Testimony by other brokers at the
trial established that this brokerage custom called for an equal division of
the commission between the broker representing the seller and the broker
producing the buyer, regardless of the amount of work done by each.
Hunt v. Smallidge, 321 N. Y. S. 2d 825 (Sup. Ct. 1971).
Husband and wife, owners of a golf course, gave broker an exclusive
listing, expiring January 31, 1969, to sell their property for $750,000. The
husband signed the agreement in the presence of the wife but she did not
sign. Subsequently, on January 14, 1969, husband and wife gave a third
party an option to purchase for $725,000.
HELD: The exclusive listing agreement bound the wife even though
she did not sign as she was present when her husband signed. While the
option itself was a contingent agreement under which the optionee could
accept or reject the purchase of the premises, the effect was to remove the
premises from the market just as if an actual sale was made. The option
bound the owners to the optionee and suspended their right to sell the
premises to anyone else during the life of the option. Therefore, for all
practical purposes, the option, when given, terminated the exclusive listing
agreement between the owners and the real estate broker before the agreed
expiration date. The broker was entitled to the full commission.
Sullivan v. Hopkins, 435 F. 2d 1128 (9th Cir. 1970).
X, a non-real estate broker, undertook to find a buyer upon seller's oral
agreement to pay him 5 per cent commission. He did find an out-of-state
buyer, introduced the parties, and thereafter was present during negotia-
tions although he did not actually take part in any of them. All parties
understood X was to receive the commission but all assumed he was a
broker. When the contract of sale was signed the buyer agreed to pay X's
commission in consideration of a reduction in the purchase price. Thereafter
the buyer refused to pay on the grounds that X was not a licensed broker.
HELD: Since X paid no more than a "finder's" role he is entitled to a
commission since finders need not be licensed although brokers must be.
The finders' distinction from the status of a broker lies in their bringing the
parties together with no involvement on their part in negotiating the price
or any of the other terms of the transaction.
Symond v. J. Rolfe Davis, Inc., 245 So. 2d 278 (Fla. 1971).
Broker was retained to obtain tenants by the developer of a proposed
shopping center under an agreement that the commissions were to be pay-
able when the leases were executed. The broker obtained proposed leases
from two tenants, but before the leases were signed the developer sold the
shopping center to S. A few weeks later S entered into leases with both of
these proposed tenants on substantially the same terms as those negotiated
by the broker. The broker claimed S should pay the commission because,
knowing of the efforts of the broker, he went ahead and made the leases
himself, thus being unjustly enriched at the expense of the broker.
HELD: S's knowledge of the broker's efforts was not enough to charge
him with the obligation of paying the commission. There had to be some
basis for an inference that S expected to pay for the broker's services or
deliberately took advantage of the broker's efforts. The evidence indicates
that S agreed to buy the shopping center on the condition that he be able
to obtain the two specific leases. The inference is that the purchase price
already reflected the services performed by the broker and thus S was not
unjustly enriched.
Benson, Finders and Finder'sFees, 47 DENVER L. J. 448 (1971). Finders
have long played an integral role in the world of commerce but only recent-
ly has a body of common law been developed to deal with their activities.
This is due in part to the peculiar nature of a finder's business and in part
to the reluctance of courts to depart from traditional legal concepts that
"almost" fit the legal problems raised in finders cases.
In this article the author describes the normal operations of a finder,
compares finders to brokers and agents, and analyzes the finder's operations
in hopes of determining appropriate legal principles. The case of Consoli-
dated Oil & Gas, Inc. v. Roberts, 162 Colo. 149, 425 P.2d 282 (1967) is used
to illustrate a typical factual situation in finders cases and to provide a
basis for the legal analysis presented in this article.
V. CONDOMINIUMS AND COOPERATIVES
The absence of decisions reflects the relative newness of these concepts

-particularly condominiums. Much of the legislation dealt with "house-
keeping" amendments of only local interest and, hence, is not contained in
this report. Even the articles are the "bread and butter" variety.
Spring 1972] REAL PROPERTY LAW, SURVEY 75
A. Legislation
Mississippi
S.B. 1697: Removes mandatory obligation of owner to give manage-
ment body first right of refusal to purchase or lease condominium unit
which owner intends to sell or lease.
H.B. 963: Makes units of condominium eligible for exemption as
a homestead.
Missouri
Ch. 394.120: Changes the definition of a quorum for cooperatives from
5 per cent of all members to 5 per cent of the first 2,000 members and 2 per
cent of the remaining members.
Ch. 394.180: Allows the board of directors of a cooperative to encum-
ber its property by mortgage or deed of trust. However, a cooperative may
not sell or lease or otherwise dispose of its property without the affirmative
vote of not less than two-thirds of all of the members at a duly held meeting
with notice of its purpose.
New York
Ch. 376: Amends Banking Law 103, 108, 235 and 380 to permit domes-
tic banks and trust companies to make loans at maximum rate of interest
of up to l/2 per cent over the 7 2 per cent rate presently allowed for
residential mortgage loans for the purpose of financing the purchase of
cooperative apartments, and to permit domestic savings banks and savings
and loan associations to make such loans if they are self-liquidating within
20 years (prior law permitted only five-year personal loans); and adds new
19a and 19b to Civil Rights Law prohibiting cooperatives from refusing to
consent to the sale of an apartment on the basis of the race, creed, national
origin or sex of the purchaser, thus casting in doubt case law under which
courts refrained from reviewing the absolute discretion of cooperatives in
such matters.
Ch. 737: Amends Social Services Law to authorize grants of up to $750
to welfare recipients for the purpose of purchasing a cooperative apartment.
Becker, A Marketing Primer for Condominiums and Cooperatives,
1 REAL ESTATE REV. 61 (No. 1 1971). Whether because builders and de-
velopers have followed sound market research and market planning ap-
proaches in merchandising the new housing, or because of initially strong
demand, there have been relatively few failures in the marketing of con-
dominiums or cooperatives. Most failures have been attributed to one of
two types of mistakes-architectural or locational. Studies made reveal that
no project failed because of defects in the plan or operational failures after
erection. It appears that builders of the few failures have been guilty of
violating a primary rule which requires that every project must have an
adequate project survey before construction is undertaken. Until a federal
market analysis is completed, questions of how the plan will be financed
and operated are of little interest. In short, the failures, when analyzed,
REAL PROPERTY, PROBATE AND TRUST JOURNAL [Vol. 7/:68
show that you cannot squeeze down square footage, open space and parking
and still furnish a home-like environment that buyers want. The author
then goes on to discuss the following factors: (1) general characteristics of
the market; (2) demographic characteristics; (3) designing the structure to
gain market acceptance; (4) special appeals to the condominium purchaser;
(5) six steps in marketing the project.
Goldstein, Negotiating for a Cooperative Apartment, 1 REAL. ESTATE
REv. 75 (No. 1-1971). Even though residential cooperative is not new and not-
withstanding that several billion dollars have been invested in cooperative
apartments since World War II, it is the author's belief that comparatively
few people seem to have a clear understanding of what a cooperative is or
what it is that a cooperative apartment owner really owns or what a sale-
purchase of a cooperative apartment involves. Certainly, very few people
appreciate the risk faced by a purchaser of a cooperative apartment. The
purpose of the article is to provide background information on cooperatives
and to examine, in some detail, the way in which transfers of cooperative
apartments should be handled.
Heemer, Mobile Home in the Sky, 1 REAL ESTATE REv. 76 (No. 2-1971).
The author believes that mobile homes can move up and down, as well as
on the ground. The article contains pictures and plans for a 25-story con-
crete tower to be used as a high-rise mobile home park.
Robbins, Condominiums for Fun and Profit, 1 REAL ESTATE REv. 5
(No. 3-1971). The premise of this article is that a period is beginning that
will be known as the recreation-condominium era wherein condominiums
will be sold primarily as investments for tax-sheltered income. This trend
will in turn foster whole new recreation towns and the rebuilding of many
old existing recreation towns. The article, in discussing how these financial
investments become a reality, how they are sold and how they are created
divides the presentation into (1) the standard condominium; (2) the invest-
ment condominium and (3) the resort and second-home kind of condo-
minium.
Zivan, Need for Reform in Taxation of Agricultural Cooperatives, 5
GA. L. REv. 529 (1971). A discussion of the Tax Reform Act of 1969 as
related to the tax policies of agricultural cooperatives.
Condominiums (A Symposium). 1970 U. ILL. L. F. 147-272. Kane and
Helms, The Illinois Condominium Property Act, p. 157; Vishny, Financ-
ing the Condominium, p. 181; Even, The Administration of Insurance for
Condominiums, p. 204; Anderson, Some Tax Aspects of the Condominium,
p. 220; Browder, Restraints on the Alienation of Condominium Units (The
Right of First Refusal), p. 231.
VI. CONVEYANCING AND TrILES

A general theme which runs throughout most of the legislation in this
area is one of making the land records more conclusive and reliable, liberal-
izing the ancient requirements and principles from common law days, as
well as making it easier to create survivorship estates. Three states liberal-
ized their acknowledgment laws, two states adopted statutory short-form
deeds and five states extended the power to convey and acquire title to
persons between ages 18 and 21, general and limited partnerships, foreign
corporate trustees, minors and persons of unsound mind owning undivided
interests without guardianships. One continuing trend, disliked by convey-
ancers, is the requirement that deeds contain addresses of the parties or
indications of the considerations paid-a movement generated and kept alive
by assessors and tax collectors.
While the literature on this subject runs the gamut of most of the vex-
ing problems the particular problems discussed most are those of the opera-
tion and impact of the recording system itself with the closely related prob-
lem of title standards.
A. Legislation
California
Ch. 690: Amends Financial Code by adding 18660.5 to exclude escrow
fees, properly assessed, from the maximum charges permitted to be made in
connection with a loan.
Connecticut
P. A. 133: Broadens the Uniform Gift to Minors Act by permitting
gifts of interests in real property to come within the provisions of that Act.
P. A. 158: Amends the real estate conveyance tax statute by requir-
ing a conveyance tax to be paid only when monetary consideration is re-
ceived by the seller.
P. A. 240: Amends 45-161 by providing that a will need be attested by
only two witnesses rather than three.
Florida
Ch. 71-9: Provides that property owned by a limited partnership can be
conveyed and encumbered in the partnership name by instrument executed
by one of the general partners.
Ch. 71-53: Makes out-of-state acknowledgments acceptable if the foreign
notary affixes either a seal or attaches a certificate of authority executed by
a clerk of a court where the notary's commission is recorded.
Ch. 71-55: Allows foreign corporate trustees to receive devises of real
property and to sell, transfer and convey the property.
Ch. 71-71: Provides that property owned by a general partnership can
be conveyed and encumbered in the partnership name by instrument exe-
cuted by one of the partners.
Maine
Ch. 57: Amends 33 MRSA 456 and provides that the address, including
street and number, municipality and state, of the grantee must appear on
all deeds and other instruments of conveyance. 457 provides that the error
or omission in this requirement shall in no way affect the validity, effective-
ness or recordability of such deed or other instrument.
Ch. 68: Amends 33 MRSA 669 and provides that if a petition in bank-
ruptcy is filed or a decree of adjudication or order approving a trustee's
bond is made, the trustee or any creditor may record a certified copy of the
petition in the registry of deeds for any county wherein the bankrupt owns
or has any interest in any land.
Massachusetts
Ch. 183: Amends statutory forms for certain instruments pertaining to
transactions in land such as warranty, quit claim and mortgage deeds to
eliminate all reference to dower, curtesy and homestead. Forms now con-
form to extant law.
Minnesota
Ch. 63: Requires that only delinquent taxes be paid before an instru-
ment of conveyance may be recorded. Term means taxes due in the year or
years prior to the year in which the conveyance is recorded.
Ch. 795: No deed will be recorded unless same contains name and
address of person to whom tax statements are to be mailed.
Ch. 838: No deed may be recorded unless accompanied by a certificate
of value executed by grantor. Value shall be the amount of full actual
consideration paid for property. The form of such certificate shall be pre-
scribed by the department of taxation.
Mississippi
H. B. 735: Amends 449 to provide that minors or persons of unsound
mind owning undivided interest in real property of a fair and reasonable
market price less than the sum of $1,000 may convey same without guardian-
ship provided adult co-tenants are making sale for same price. (Previously
guardianship was required where fair and reasonable market price ex-
ceeded $300).
Missouri
S. B. 81: Amends 486.040 by requiring every notary to print, stamp or
type his name immediately below his acknowledgment signature in any
certificate which is to be recorded in the office of a recorder of deeds.
H. B. 140: Provides for disposition of state-owned and newly formed
islands in the Missouri and Mississippi Rivers.
New Mexico
Ch. 88: Stays sales of real estate under judgment or decree of fore-
closure until 30 days after entry thereof during which period the owner,
his heirs, assigns or other junior lien holder may satisfy judgment or decree
and avoid sale by depositing the required sum with interest and costs with
the clerk of the court.
Ch. 220: Defines joint tenancy in real property as one owned by two
or more persons with each owning the whole and equal undivided share
via a title created by a single devise or conveyance, when expressly declared
thereon to be a joint tenancy, or a conveyance from a sole owner to himself
and others, or tenants in common to themselves or to themselves and others,
or from husband and wife when held as community property or otherwise
to themselves or to themselves and others when so declared therein as being
a joint tenancy.
Ch. 313: Limits actions to recover real estate to a period of 15 years

for ten enumerated causes relating to technical defects in the authoriza-
tion or execution of the instrument of conveyance. Also affects limitations
of actions on such transfer where 14 years have passed at time of enactment
to a period of one year after enactment.
North Dakota
Cli. 145: Declares that minors are persons under 18 years of age and all
persons 18 and over are adults. Prior thereto males were not adults until
age 21, and could not convey real estate.
Ch. 453: Recognizes foreign acknowledgments, adopts Uniform Recog-
nition of Acknowledgment Act and adopts short forms of acknowledgments
of conveyances for use in North Dakota.
Ohio
S. B. 205: Amends 317.08 and enacts 5301.252 to provide for recording
affidavits relating to title to real estate such as: death, capacity, family his-
tory, names, identity of parties, marriage, boundaries, etc. and makes pro-
vision for recording options to purchase real estate.
H. B. 878: Amends 319.54 and enacts 5302.17 to provide that a deed to
a husband and wife creates an estate by the entireties when in substance the
following words are used: "for their joint lives, remainder to the survivor
of them."
South Carolina
S. B. 196; H.B. 1029: Require an express provision to create a right of
survivorship in joint tenancy.
Texas
S. B. 225: Declares power of attorney not terminated by disability.
Authorizes a person appointing an attorney-in-fact or an agent by power of
attorney to insert the words "This power of attorney shall not terminate on
disability of the principal" or similar words showing intent of principal
that power shall not terminate on his disability. Provides that in event
guardian is subsequently appointed, power shall terminate and attorney-in-
fact shall deliver to guardian assets of estate of ward.
Provides that persons purchasing real or personal property from heir
of a decedent more than four years from date of death for value in good
faith and without knowledge of existing will shall have good title thereto.
H.B. 728: Provides that within six months after death of a decedent a
legatee or heir may file a disclaimer or renunciation. Testator can make
provision regarding who will receive property should legatee file disclaimer.
Provides that under certain circumstances person who has filed disclaimer
may revoke it.
H. B. 77: Notary public who is (a) a stockholder of a corporation,
(b) who owns less than one-tenth of one per cent of the stock of a corpora-
tion, (c) in which there are more than 1,000 shareholders or who is an
employee of a corporation, is authorized to notarize instruments in which
the corporation is interested. The acknowledgments taken before the effec-
tive date of the act are validated.
West Virginia
H.B. 657: Amends 36-5-1 through 5. Provides method by which a
power of appointment may be released or disclaimed. Such a release or
disclaimer may be affected by written instrument acknowledged and re-
corded in the office where the instrument creating the power is recorded.
Cast v. National Bank of Commerce, 186 Neb. 385 (1971).
Action to construe will, to determine validity of estate created by
devise of the fee to a designated devisee, subject to a condition that such
devisee shall, within a period of one year, by appropriate legal action, add a
certain name to his legal name; and should said devisee fail to comply with
such condition, then the title to the real estate to revert to the residuary
legatee specified in another paragraph of the will.
HELD: A condition attached to a fee simple estate, otherwise valid,
must be reasonable and not materially affect its marketability. If it materi-
ally affects marketability adversely, it is an indirect restraint upon aliena-
tion. A direct or indirect restraint on alienation, after a creation of a fee
estate, is void and against public policy.
The court admits that the authorities are not in accord on this issue
and that the court is, by this opinion, overruling previous Nebraska deci-
sions. The court felt impelled to make this choice by reason of Nebraska's
adoption of the Uniform Property Act in 1941 which, the court said, was
intended to abolish the ancient common law technical rules. The court
was of the opinion that public policy would be best served by preventing
restraints on alienation, either direct or indirect.
Coons v. Baird, 265 N. E. 2d 727 (Ind. Ct. App. 1971).
Ettel leased to Company Tract B, with option to purchase. Lease was
amended to grant Company option to purchase adjoining Tract C. Ettel
then sold Tract C, together with other land, to Baird which deed was sub-
ject to the option of Company to purchase Tract C. Company then assigned
its lease, as amended, including option to purchase to Coons. Ettel con-
sented to assignment. Later Ettel by warranty deed conveyed Tract B to
Coons and on same day quit-claimed Tract C to Coons. Coons maintained
that the option was exercised and the quit-claim deed represented a comple-
tion of the transaction, although the records disclosed no evidence that the
procedure set forth in the lease for the exercise of the option was followed.
HELD: Title quieted in Baird. Quit-claim deed did not represent ex-
ercise of option.
Case of first impression.
DeStefano v. Kaufman, 320 N. Y. S. 2d 825 (Sup. Ct. 1971).
Action to set aside a tax deed in which plaintiff raised two objections:
(1) the sale by which the county three years after the tax sale was in violation
of the county Tax Act; (2) the sale was invalid because the description in
the notice of sale and notice of redemption was insufficient.
HELD: Where notice of redemption of property sold at county tax
sale was defective, in that it did not adequately describe affected parcel,
county was prohibited from claiming title to property. Fact that property
had been sold for taxes on at least one other occasion did not preclude
plaintiff from raising objection that notice of redemption was defective,
where there was no way of establishing that plaintiff saw notice or relied
on it on previous occasion.
Dodson v. Phagan, 227 Ga. 480 (1971).
HELD: Where deed cites consideration as love and affection, parol
evidence is not admissible to show actual consideration to be grantee's
promise to pay expenses and subsequent failure of said consideration.
Hiddleston v. Nebraska Jewish Education Soc., 186 Neb. 786 (1971).
Action to enforce a right of reverter upon the termination of a fee
simple determinable. The defendants demurred, arguing that the possibil-
ity of reverter had been extinguished by statute which purports to bar all
possibilities of reverter and rights of reentry after 30 years from the date of
the creation of the condition or possibility of reverter. The issue involved
was the question of the constitutionality of the statute.
HELD: The statute was constitutional. Accordingly, the possibility of
reverter could not be enforced.
The court pointed out that similar statutes had been held unconstitu-
tional in Florida and in New York, but that, on the other hand, the Su-
preme Court of Illinois had sustained such a statute. The Nebraska court
was of the opinion that the statute was reasonable and was intended to
increase the utility of land and marketability of titles.
Kentucky Trust Co. v. Kessel, 464 S.W. 2d 275 (Ky. 1971).
Suit for judgment declaring rights to realty where will devised realty
owned by testator and his wife as tenants by the entirety to one son in trust
for life of wife and in fee simple to that son after her death. Wife did not
renounce the will and accepted other benefits under the will.
HELD: The wife ratified and legitimatized the testamentary disposi-
tion of the property and was thereby estopped from denying or contesting
the testamentary disposition. Under the doctrine of testamentary election,
one given a benefit under a will must choose between accepting the benefit
and asserting an independent claim to property which the will purports
to dispose of to others.
La Pierrev. Kalergis, 251 So. 2d 885 (Fla. Ct. App. 1971).
A father and mother conveyed property to the mother and their daugh-
ter. The deed contained a recital that "pursuant to Sec. 689.15 Florida
Statutes (F. S. A.), provision is hereby and in this instrument expressly made
for the right of survivorship between the grantees."
HELD: A joint tenancy with right of survivorship was created by the
direct conveyance. The statute abolished the common law doctrine of right
of survivorship among joint tenants with its requirements that there must
be in the grantees the unities of interest, time, title and possession. How-
ever, the unities were in fact present.
PeninsularPoint, Inc. v. South Georgia Dairy Co-op, 251 So. 2d 690

(Fla. Ct. App. 1971).
A subdivision plat dedicated to the perpetual use of the public the
streets thereon and reserved unto the dedicator, its successors and assigns
the reversion in the streets whenever abandoned by the public. A street on
the plat was later vacated by the county.
HELD: Where a street dedicated by one owner is discontinued through
legal process, the abutting lot owners take the fee to the center of the street
in the absence of a clear intention to the contrary in the dedication. Title
to the vacated street was vested in the dedicator since the reversion clause in
the dedication showed a clear intention not to vest title in remote grantees-
purchasers from the dedicator of abutting lots to the street.
Case may conflict with Servando Building Co. v. Zimmerman, 91 So. 2d
289 (Fla. 1956), although an attempt was made to distinguish it.
Sellman v. Schaaf, 26 Ohio. App. 2d 35, 269 N.E. 2d 60 (1971).

A plat was recorded reciting that "all lots have been staked; monu-
ments and new galvanized iron pipes are being placed on the ground at the
points indicated on the plats." In fact not all monuments had been placed,
but, nevertheless, lots were sold by reference to the plat and improvements
were made by the plaintiff purchasers, including erection of a fence along
a supposed lot line according to a new survey. A subsequent survey was
made by defendant. As a result of this survey, defendant relocated plain-
tiff's fence within the bounds of land occupied by plaintiff, cutting plain-
tiff off from some of his improvements. Each party made adverse claims
of title against the other.
HELD: A plat is a symbolic representation of an actual survey. Where
the actual location of a corner as established by a surveyor differs from the
location as shown on the plat, the former controls. The primary function
of the second surveyor is to find where boundaries were established by the
first surveyor. If monuments no longer exist, the second surveyor must
locate the actual place where they originally stood. If this cannot be done,
the probable location must be established by reference to the courses and
distances shown on the plat. If the original monument can be located, its
location controls, even if its location is erroneously shown on the plat. Here
stakes had in fact been placed by the original surveyor, had subsequently
been lost and their original location had been recreated on the ground by
plaintiff's new survey.
Smith v. Estate of Catterall,271 A. 2d 300 (R. I. 1970).
An estate was closed out by the use of an Affidavit of Completed Ad-
ministration, and not by filing a final account. The decedent had been
involved in an earlier automobile accident, and had been covered by a
liability insurance policy. After the affidavit was filed, leave to file a claim
out of time was granted.
HELD: The decedent's interest in the policy was an undistributed asset
and the Affidavit of Completed Administration was used in the absence of
any express statutory authority.
Although no conveyance of title was involved, this case serves to put
the title attorneys in Rhode Island on notice of the danger of relying on

such affidavits to close estates in a state where the practice of doing so is
widespread.
Block, Alaskan Native Claims, 4 NATURAL RESOURCES LAW. 223 (1971).
While the acquisition of Alaska on an areal basis of 2c per acre in 1867
was unquestionably a farsighted act of statesmanship at that time, in recent
times we have discovered that it was not accomplished entirely free of title
problems. The native Alaskan Indians, Eskimos and Aleuts are claiming the
transfer was subject to certain ancestral rights for which they are entitled
to be compensated. The legal basis for these claims is aboriginal use and
occupancy, or what is frequently called "Indian Title." While the natives
have been pressing their claims for many years with little success, they
received an assist from the United States Department of the Interior in late
1966 when the Secretary of that Department imposed the so-called "Land
Freeze." The article is an extensive examination into all legal precedents
concerning the issue of title. The author concludes that it seems fairly cer-
tain that no beneficial ownership exists by reason of unrecognized aborig-
inal title. His opinion is that in the final analysis, however, legislation
obviously is the most desirable solution for all concerned. From a political
as well as legal standpoint, it would preserve the time-honored posture of
noninterference by the judiciary with the traditional and exclusive role of
congress in dealing with aboriginal Indian title. Too, it would settle once
and for all the Alaskan native claims.
Chatterton and Knitter, A Unified Automated Land Title System for
Wisconsin, 44 WIs. B. BULL. 8 (No. 6-1971). A suggestion is made for the
application of a computerized title system in Wisconsin.
Hudak, Registration-of-Land-Titles Act: The Ohio Torrens Law, 20
CLEV. ST. L. REv. 617 (1971). Discusses differences between registering
of title under Torrens Law and evidence of title being recorded prior there-
to. Points out advantages of law to third parties.
Jenkins, Ownership of Church Property and the Doctrine of Implied
Trusts, 22 MERCER L. REv. 515 (1971). A detailed analysis of Presby-
terian Church in the United States v. Mary Elizabeth Bluehull Memorial
PresbyterianChurch wherein the Supreme Court of the United States denied
a petition for certiorari. This denial brought to an end a controversy over
church property which had begun almost four years earlier and which had
twice been to the Georgia Supreme Court and twice to the United States
Supreme Court.
Kozolchyk, The Mexican Land Registry: A CriticalEvaluation, 12 ARiz.
L. REv. 308 (1970). Probably the finest and most thorough analysis of the
Mexican land registry system published in English, but also valuable for
its comparative law study of other civil law systems and the derivations of
specific legal concepts of land registry; supplemented by translations of
eight Mexican Supreme Court opinions.
Lewis, Offshore Boundary and Title Issues, IV NATURAL RESOURCES
LAw 737 (1971). A review of the judicial and administrative events that have
occurred with each of the coastal states beginning with California as regards
the tidelands controversy.
Mark, Some Title Problems Arising in Connection with Trusts, 42
OKLA. B.A. J. q-19 (1971).
Miller, Romancing a Deed, 44 Wis. B. BULL 46 (No. 6-1971). A nos-
talgic discussion of the English origins of title transfer, and suggestions for
glamorizing the deed to a client.
Olds, Conveyances by Married Women in Texas, 8 HOUSTON L. REv.
677 (1971). Differing requirements for conveyances made in 1962, 1964 and
1968 under statutes as amended.
Ominsky, Adventures in the World of the Realty Transfer Tax-The
Pennsylvania Experience, 44 TEMP. L. Q. 73 (1970). This article explores
some of the more interesting aspects of the applicability of the Pennsylvania
Transfer Tax with some reference to significant local differences. It also
considers how a real estate transaction may be planned to minimize the
impact of the tax. Some of the major areas which are included are: (1)
partnership transfers, both by deed and by other methods; (2) corporate
liquidations; (3) straw party and related party exemptions; (4) foreclosures,
sheriff's sales and the effect of some applicable exemptions; and (5) general
problems in calculation of the tax base, including the effect of fixtures, im-
provements, mortgages, life estates, leases and other property rights.
Paulus, Ademption by Extinction: Smiting Lord Thurlow's Ghost, 2
TEx. TECH. L. REV. 195 (1971). A discussion of the means of avoiding the
doctrine of ademption by extinction.
Payne, Title Guaranty Funds: Symptoms, Cure or Nostrum? 46 IND.
L.J. 208 (1971). Analysis of transfer of title practice from lawyers to title
insurance companies and doubt that lawyers' title guaranty funds alone will
slow the trend. Suggests better public title records.
Pindar, Title Examinationsand Closings, 22 MERCER L. REv. 505 (1971).
A general discussion of title examinations in Georgia.
Rieselbach, Drafting Conveyances Under Chapter 706, 32 GAVEL 7 (No.
3-1971). A comprehensive change and reform of the Wisconsin statutes relat-
ing to conveyances, recordings, titles, mortgages, land contracts and land-
lord-tenant relationship became effective July 1, 1971. The author analyzes
significant changes relating to conveyancing and new procedures and forms
for use.
Shipley, Bankruptcy and Real Estate, 17 PitAc. LAw. 53 (No. 1-1971).
The article traces what happens to a title to real property when it passes
through a bankrupt's estate. The article is aimed not only at helping the
title examiner who comes across such a situation, but also at providing a
workable procedure whereby a title may be processed through bankruptcy
and emerge clear of any cloud.
Swierenga, The "Odious Tax Title": A Study in 19th Century Legal
History, 15 AM. J. LEGAL HIsT. 124 (1971). The issue of the validation of
tax titles is another clear instance of conflict between legislatures and the
courts in the 19th century, a conflict that has been largely ignored. The
author believes that in some respects the effort to strengthen tax titles
parallels the struggle for occupancy rights as well as debt stay laws, usury
statutes and occupancy rights. The issue of property rights was the nub in
both disputes and the same organs were involved-state legislature and
courts and the United States Supreme Court. This article examines the
legal and judicial history of tax titles in the 19th century, primarily in one
state, Iowa, where the issue became hotly contested. The article's purpose
is to illustrate in the light of social and economic forces the conflict of in-
terest between legislature and courts on a vital question of land titles and
taxation and how this disagreement was resolved over time.
Wharton, Application of Federal and State Security Regulations to
Real Estate Transactions, 12 S.T.L.J. 237 (1971). A discussion of the effect
of the Federal Securities Act and a typical State Securities Act on typical
real estate transactions.
Whitman, TransferringNorth Carolina Real Estate, Part I, 49 N.C.L.
REv. 413 (1971). A discussion of a recent survey, record title search,
discoverable non-record defects, personal property and fixtures, the title
certificate malpractice insurance as title protection, title insurance.
Whitman, TransferringNorth CarolinaReal Estate, Part II, 49 N.C.L.
REv. 593 (1971). A discussion of ethical problems, criteria for reform, title
insurance revision, reforming closing procedure and standardizing pro-
cedures.
Yates, The Federal Truth in Lending Act-A Dilemma for Title At-
torneys, 27 Mo. B. J. 208 (1971). As the article points out, the lawyer is
faced with a dilemma when called upon to examine title to real estate on
which the client holds a deed of trust falling under the provisions of the
Act allowing rescission. Normally, the lawyer has no means by which to
ascertain whether or not the letter of the Act has been complied with,
short of independent examination of the facts, since the disclosures are not
included in the abstract of title.
Report and Recommendations of Real Property Committee of Okla-
homa Bar Ass'n, for Amendments to Title Standards,and a Proposed Statute
Permitting Filing of Certified Copies Where Land Is Located in More
Than One County and the OriginalDocument Has Been Recorded in One
Such County. 41 OKLA. B. A. J. 2675 (1970). See also 41 OKLA. B. A. J. 2449
(1970) for earlier report of same committee.
Misconceptions of Parol Partitions In Texas In Light of Statute of
Frauds Requirements, 23 BAYLOR L. REv. 75 (1971). An examination of
cases concerning parol partitions involving land. Particular emphasis is on
community property situations where the husband and wife are contemplat-
ing a permanent separation or divorce.
Vfl. COVENANTS
To be noted in this field are the decisions indicating the increasing
conflict between mobile homes and restrictive covenants prohibiting "struc-
tures of a temporary character."
A. Legislation
Georgia
P.A. 715: Amends 29-301 to provide that the limitation on the time
for which restrictive covenants or scenic easements running with the land
shall run in municipalities and areas of counties which have zoning laws
shall not apply to covenants and scenic easements running in favor of the
United States, the State of Georgia, political subdivisions thereof or cor-
porations, trusts or other organizations holding the land for the use of the
public.
Hawaii
P.A. 124: Amends 515-3 and 515-7 to provide that discrimination
based on sex in connection with real estate transactions (including block-
busting) shall be a discriminatory practice; and amends 515-6 to provide
that restrictive covenants and conditions limiting conveyances to or use or
occupancy by persons of particular sex are void.
Minnesota
Ch. 922: Limits the provision prohibiting implied covenants in real
estate conveyances in 507.16 to covenants of title, thus making it pos-
sible for covenants relating to the physical condition of the premises to be
implied in appropriate cases.
Texas
S. B. 236: Heretofore counties of more than one million population,
cities, towns and villages could enforce land use restrictions contained in
subdivision dedications. The population requirement has been eliminated
so that now any municipality without zoning has the authority to enforce
such private restriction.
Albino v. Pacific First Federal Savings & Loan Ass'n, 479 P. 2d 760
(Ore. 1971).
All deeds in a particular subdivision contained a clause prohibiting
all buildings except "a private dwelling house." Suit was brought by the
owner of two undeveloped lots in this subdivision seeking a declaratory
judgment that these restrictions do not prohibit the construction of eight-
unit garden apartment building. The plaintiff's claim was that the words
"one dwelling house" do not prohibit a house from being occupied by two
families living separate and apart from each other, and, therefore, it would
be just as legal to have eight families living separate and apart from each
other. The plaintiff also claimed that his two lots were on the edge of the
development, which had been started in 1940, and fronted on a highway.
A professional ballpark had been erected across the road, apartments and
offices had been built in the immediate area, and as a result an enormous
increase in traffic had occurred. As a result of this the municipality had
rezoned the area from single family residential to garden apartments. Rely-
ing on this the plaintiff argued that the deed restrictions were no longer
of any substantial benefit to the remaining parcels in the development and
unless they were removed he would be unable to use his lots for any bene-
ficial purpose and so would, in effect, lose them by confiscation.
HELD: The construction of garden apartments would decrease the
value of the residential home owners in the subdivision as well as the re-
maining lots which had not yet been built upon. Restrictive covenants will
not be overthrown unless the "radical change" in the character of the neigh-
borhood is such as to clearly neutralize the benefits of the restrictions.
Barnett v. County of Washoe, 86 Nev. 730, 476 P. 2d 8 (1970).

Declaratory judgment was sought decreeing a reversionary right in
property deeded to the county for a golf course. The deed provided in the
habendum clause that in the event the property is used for other purposes,
title would revert to the grantor.
HELD: Clause is not a condition subsequent, but a covenant, which was
satisfied by the county operating and maintaining the golf course on the
premises for over 34 years.
Joins the line of cases which favors a covenant, rather than a condition,
especially when the grantee is a public entity.
Burgess v. Putnam, 464 S.W. 2d 698 (Tex. Civ. App. 1971).
When a subdivision was opened the developer told his purchasers of the
plan to develop the subdivision for one-family homes. The purchasers
payed increased prices and received deeds which imposed restrictions, in-
cluding the prohibition against the erection of mobile or trailer homes.
There were no restrictions filed in the county clerk's office affecting the en-
tire development nor did any of the deeds obligate the developer to proceed
with the development. Later on the developer decided to permit buyers of
unsold lots to use the site for trailer homes. Some of the original home-
owners brought suit to restrain the developer from selling lots without im-
posing the restrictive covenant. Each contract of sale contained a provision
setting forth that all representations, covenants and agreements between the
parties are expressed in the writing and that no other shall be recognized
unless reduced in writing and attached to the agreement.
HELD: Oral testimony was admissible to establish the claims of the
homeowner. The legal effect of the representation made by the developer
is the same as if there were direct fraud. The same public policy that in
general sanctions the avoidance of a promise obtained by deceit strikes
down all attempts to circumvent that policy by means of contractual de-
vices. The representations made by the developer to the original buyers
brought into existence an equitable right on their part to compel the de-
veloper similarly to restrict the use of any remaining lots of the developer.
A similar decision was reached in Foro v. Doetsch, 320 N. Y. 2d 778
(Sup. Ct. 1971).
Dillardv. Earnhart,457 S. W. 2d 666 (Mo. 1970).

Plaintiff brought action to set aside a deed of trust, or, in the alterna-
tive, for damages for breach of warranty against encumbrances.
HELD: Where grantee had intention to release deed of trust, but was
unable to produce note secured by deed of trust as require by statute, the
existence of outstanding deed of trust constituted technical breach of cove-
nant against encumbrances, but the purchaser may recover only nominal
damages.
Hussey v. Ray, 462 S. W. 2d 45 (Tex. 1970).

A restrictive covenant covering a subdivision prohibited any "trailer"
or "structure of a temporary character."
HELD: The placing of a new mobile home on a subdivision lot, with
the wheels removed, the home placed on permanent concrete block founda-
tion and utility connections installed turned the mobile home into a perma-
nent residence and not in violation of the restrictive covenant. Even though
the mobile home could be moved so also could any wooden frame house.
McBride v. Behrman, 28 Ohio Misc. 47, 272 N. E. 2d 181 (Nisi Prius
1971).
Deed restrictions imposed as part of a general plan of development
provided that (1) no temporary structure will be permitted upon said
premises for occupancy nor shall any unsightly structures be erected thereon
at any time, (2) the foregoing restrictions, covenants, reservations and
limitations constitute a part of the consideration for the premises herein
and in additional to the foregoing, restrictions against anything offensive
to a high class residence district will be imposed and all the foregoing shall
run with the land and shall inure to the benefit of any and all lot owners
in said colony. Plantiff sought injunctive relief against defendants who
moved a house trailer on their lot in alleged violation of the restrictions.
HELD: The words "temporary structure" in deed restrictions include a
house trailer or mobile home, especially when used in relation to "unsightly
structures" and "high class residence district," used in restriction #1 and to
"high class residence district" used in restriction #2.
McCrae v. Giteles, 253 So. 2d 260 (Fla. Ct. App. 1971).
County cited certain premises for about 80 violations of the housing
code and served notice of the violations on the owners of the property.
Shortly thereafter they conveyed the property by warranty deed. The pur-
chasers brought an action against the sellers for breach of the covenant
against encumbrances in the warranty deed contending that a housing code
violation was an encumbrance within the meaning of that covenant.
HELD: Neither the housing code violation of which the sellers had
notice nor the condition of the premises constituting the violation was
an encumbrance within the meaning of the covenant against encumbrances
in the warranty deed.
StegaU v. Housing Authority 178 S.E. 2d 824 (N. C. 1971).
The owner of an unimproved 18 acre tract of land sold it to a pur-
chaser named Williams by a deed which contained a covenant by him, that
only single-family dwellings would be erected on any lots that might be
subsequently carved out of the tract. A year later Williams subdivided ten
acres of the tract, called it "Walnut Hills" and sold it to a third party.
Ten years later he proposed to sell the remaining eight acres adjacent to
Walnut Hills to a developer who intended to erect multi-family dwellings
for a local public housing authority. The owners of lots in the Walnut Hills
development brought suit to enjoin the project, claiming it would violate
the covenant in the deed from the common owner to Williams and that
they had a right to enforce the covenant.
HELD: Injunction denied. The attempt by the owner to restrict the

use of the 18 acres sold to Williams was an attempt to create an equitable
servitude in gross, which attempt was void because servitudes cannot be
created in gross. Since the owner could not enforce the restrictive covenant
against Williams, a fortiori, the plaintiffs, who were not parties to the
covenant, clearly could not do so.
VIII. EASEMENTS
A. Legislation
Colorado
Ch. 246: Enacts Underground Conversion of Utilities Act, which au-
thorizes creation of local improvement districts with power to make special
assessments on real estate benefitted by conversion of overhead electric or
communication facilities to underground locations.
Connecticut
P.A. 73: Amends 71-131(b) to carry out the recommendations of the
Governor's Committee on Environmental Policy by encouraging private
owners to convey environmentally desirable easements in consideration of
receiving appropriate tax relief. This Act provides that if a landowner con-
veys less than a fee interest to the municipality he is entitled to a revalua-
tion so as to reflect the effect of such encumbrance upon the value of his
land. Act is retroactive to include grants of easements made prior to October
1, 1971.
Indiana
P.L. 195: Authorizes establishment of conservation easements by
imposing restrictions, effective for a term of years in perpetuity, which will
preserve the open state of lands of cultural, scenic, recreational or historic
significance. Permits the acquisition, holding and conveyance of such ease-
ments by all state and local units and agencies of government in the same
manner as such units could acquire, hold and convey fee simple interests.
Nevada
Ch. 139: Provides that any owner, lessee or occupant of real property
who permits its use by other persons for recreational purposes does not,
thereby, grant any easement to the person so using the property.
Douglas v. Medical Investors, Inc., 182 S. E. 2d 720 (S. C. 1971).
The grantor reserved unto himself, his heirs and assigns an easement
or right of way, specifically stating that "the easement herein reserved shall
run with the grantor's adjacent property and shall be appurtenant thereto."
A declaratory judgment action was brought to determine whether or not
the particular defendants acquired the right to use this easement.
HELD: The language used, considered alone, did not create an ease-
ment in gross. Under the holding in Steele v. Williams, 204 S.C. 124,
such language could not create an easement appurtenant to land, if the

easement, in fact, was not appurtenant. Since there exists doubt as to the
presence of all of the elements necessary to constitute an appurtenant ease-
ment, resort can be had to parol evidence. On the basis of such evidence
the reservation created an easement in gross of commercial character and
the language of the instrument shows an intention to attach the attribute
of assignability to the easement. Therefore, the defendant had the right to
use the easement in question.
Town of Pittsfield v. Cianchette, 279 A. 2d 527 (Me. 1971).
The defendant owned a dam constructed about 75 years ago and which
created an artificial pond. More than 50 years ago the plaintiff extended
three trunk line sewers into the artificial pond. The sewer lines provide a
sewerage disposal system for from 500 to 600 people. The sewage was
collected from the residences, carried through the trunk lines and dumped
into the artificial pond created by the dam and then carried downstream.
There was nothing in the record to show ownership by the plaintiff of any
land abutting or under the pond. The sewer lines were constructed openly
and notoriously for the entire 50 years. The defendant raised the gates of the
dam, lowering the level of the pond and exposing the sewer lines. Action
was brought seeking injunctive relief directing the defendant to maintain
the level of the pond by keeping the gates closed. The defendant had never
used the dam for any commercial or business purpose. There was nothing
to indicate that the defendant's dam had at any time been damaged or
interfered with by the presence and operation of the sewerage system.
HELD: Plaintiff can gain no prescriptive rights against defendant,
because defendant's rights were never invaded by the operation of the
sewer lines by plaintiff. The enjoyment of its rights by plaintiff has not
been inconsistent with or contrary to the rights of defendant. Injunctive
relief denied.
Johnson v. Faulk, 470 S. W. 2d 144 (Tex. 1971).
Access to plaintiff's land was by means of existing roadway over de-
fendants' land which had been in existence over 50 years. Plaintiff sought
judgment establishing an easement together with a perpetual injunction
enjoining defendants from obstructing said roadway or interfering with
its use by plaintiff. Trial court ruled for plaintiff on both counts and de-
fendants appealed.
HELD: To establish an easement by prescription, the essential and
necessary elements are that the use and enjoyment of said road was exclu-
sive, uninterrupted and continuous under a claim of right adverse to and
inconsistent with the rights of the owner (defendants) of the fee. The mere
.use of a road on another's land, either by license or permission of the
owner, is not within itself adverse and hostile, and affords no basis for
prescription. Since there is no evidence that the plaintiff ever claimed a
right to use the roadway to the exclusion of the defendants, or that the
public generally ever used the roadway or asserted any right or claim to the
exclusion of the defendants, neither the plaintiff nor the public had ac-
quired private or public easement in the roadway by prescription.
Jolliff v. Hardin Cable Television Co., 26 Ohio St. 2d 103, 269 N. E.

2d 588 (1971).
Landowner granted nonexclusive easements in gross to power company,
its successors, assigns, lessees and tenants for the purpose of constructing,
operating and maintaining poles and wires for transmitting electric or other
power. The power company subsequently assigned to a cable television
company the right to use such easement to carry its television cable. Land-
owners claim that such nonexclusive easement reserved as a matter of law
(1) the privilege and rights of the landowners themselves to make the use
authorized by the easement and (2) the sole power to create like privileges in
others notwithstanding words such as successors, assigns, lessees and tenants.
HELD: An easement granted to a power company "its successors, as-
signs, lessees and tenants to construct, erect, operate and maintain a line
of poles and wires for the purpose of transmitting electric or other power
including telegraph or telephone wires..." is by its terms apportionable
and the grantee of such easement may sublet an interest in the easement to
a television cable company. The transmission of high frequency electrical im-
pulses constitutes a use similar to that granted in the easement and does not
create an additional burden on the land of the original grantor.
The Ohio Supreme Court in a unanimous decision reverses Jolliff v.
Hardin Cable Television Co., 22 Ohio App. 2d 49, 258 N. E. 2d 244, re-
ported in Spring 1970 issue of the Journal.
Lewkowicz v. Blumish, 442 Pa. 369 (1971).
Dispute between neighbors as to their respective rights to use a drive-
way between their homes and straddling the boundary lines between their
two adjacent properties. The defendant claimed a prescriptive right over
the portion of the driveway on his neighbor's land. Since the defendant
had acquired the property only three months before the suit was brought,
in order to establish adverse user during the balance of the 21-year pre-
scriptive period, he was required to demonstrate the adverse user by
its predecessors in title. The only testimony offered by the defendant per-
tained to the period 12 years prior to time when the defendant acquired
the property.
HELD: The defendant failed to prove an easement by virtue of a use
by its predecessors in title which was open, notorious and uninterrupted
for a period of 21 years.
Oliver v. Ernul, 277 N. C. 591, 178 S. E. 2d 393 (1971).
Action to enjoin owners of land from obstructing right-of-way which
plaintiffs alleged they owned over such land.
HELD: Though the document purporting to grant purchasers of land-
locked parcels of land a "rightaway" across vendors' land and which did not
identify with reasonable certainty the easement created was insufficient to
create an easement; nevertheless, a conveyance of the land-locked parcels
impliedly granted to purchasers a way of necessity across vendors' land.
Patterson v. Duke Power Co., 183 S. E. 2d 122 (S. C. 1971).
Plaintiff's predecessor in title had granted defendant a right-of-way of
undefined width. Plaintiffs brought action for trespass and damages for
value of timber removed.
HELD: Granting of an easement of undefined width entitled defendant
to right-of-way reasonably wide enabling it to operate and maintain electric
lines. Such included the right to cut away and clear all trees that might, in
any way, endanger operation of lines and was not limited to right to trim
or cut branches overhanging lines, but permitted removal of "danger trees"
within or without normal right-of-way.
Soltis v. Miller, 444 Pa. 357 (1971).
A dispute arose between adjoining land owners over the existence and
restricted nature of a right-of-way from one party's land-locked property
across the other party's property to a public way. The right-of-way had been
used primarily for agricultural purposes, but there was testimony that in the
future the land might be used for its timber or minerals since it was un-
zoned rural land.
HELD: A right-of-way by necessity should be sufficiently broad so
as to provide for any reasonable and lawful use of the land required by
the land-locked parcel. Enlarged uses in easements resulting from changes
in the use of the dominant tenement should be recognized as within the
scope of the original easemnt.
Ward v. McGlory, 265 N. E. 2d 78 (Mass. 1970).
Grantors sold McGlory land, inaccesible except over their remaining
land, "together with a right-of-way over other land of the grantors on the
existing roadway east of the barn." Grantee put two electric poles along
the right-of-way and has used them to support electric wires to his land.
Grantors complained.
HELD: The easement given in the deed did not include the right to
transmit electric current over the land.
Olds, Destruction of Easements by Estoppel, 9 HOUSTON L. Rxv. 1
(1971). Estoppel should be used as the basis for deciding whether to protect
purchaser of servient estate (easement by implication or prescription).
IX. EMINENT DomAiN

Most of the statutory enactments in this area indicate a growing
awareness that the judicially developed concept of damages in eminent do-
main, while, perhaps, adequate when condemnation involved mostly the
taking of open space land for highways, bears little relationship to the
damages sustained today when urban land is taken. The states of Missouri,
Nebraska and Texas enacted statutes awarding relocation assistance pay-
ments to persons displaced by such projects. Enactment of this type of
statute is presumably influenced by the Federal Uniform Relocation Assist-
ance and Real Property Acquisition Policy Act of 1970. The states of
Colorado, Connecticut and Oklahoma enacted similar statutes awarding
a property owner his reasonable cost, disbursements and expenses, including
a reasonable attorney's fee, and engineering fees when judgment for con-
demnation is denied or when the proceedings are withdrawn or when in-
verse condemnation occurs. In addition, the states of Minnesota and Mis-
sissippi repealed their existing eminent domain statutes and reenacted new
and comprehensive codes.
The two Delaware cases would seem to indicate that no liberalization
of the concept of eminent domain damages can be expected to come from
the judiciary. Much of the literature discloses an awareness of this problem
as well as the basic related problem of "when does a taking occur?"
A. Legislation
Colorado
Ch. 168: Provides for relocation assistance for persons displaced by
acquisition of real property by state agencies and subdivisions in connection
with federally assisted projects.
Connecticut
P. A. 208: Amends 49-24 by providing that the condemning authority,
before condemning any portion of property, must, if the remaining portion
does not conform to the area requirements of zoning, obtain a variance for
such remaining property. If the variance is not secured then the condemning
authority must pay the value of the entire parcel.
P. A. 518: Provides for an award to the property owner for his reason-
able cost, disbursements and expenses, including reasonable attorneys'
appraisal and engineering fees actually incurred because of condemnation
proceedings if (1) the final judgment is that the state agency cannot acquire
the property by condemnation or (2) the condemnation proceeding is
abandoned by the state. Also provides that whenever a judgment is rendered
in favor of a landowner in an inverse condemnation proceeding the court
shall determine and award such plaintiff, as part of such judgment, a
sufficient sum to reimburse him for his reasonable cost, disbursements and
expenses, including reasonable attorney's, appraisal and engineering fees,
actually incurred because of such proceedings.
Hawaii
P. A. 32: In connection with acquisition by state of real property for
any project in which federal or federal-aid funds are used, provides for
payment to owner of expenses incidental to conveyance of property to state,
mortgage prepayment penalties and pro rata share of taxes where con-
demnation proceedings are successful; provides court may award owner
reasonable costs, disbursements and expenses (including reasonable at-
torney's, appraisal and engineering fees) in cases where condemnation action
is unsuccessful or inverse condemnation action is successful; and estab-
lishes policies with which the state must comply in connection with such
acquisitions.
Illinois
P.A. 77-1467: Adds ch. 47, 14.1 which provides for distribution of
eminent domain award where there is a contract for deed outstanding based
upon an amount equal to (a) the down payment, (b) monthly payments
made on the contract, less interest and the fair rental value of the property
for the period purchaser has enjoyed the use of the property under the
contract and (c) expenditures by the purchaser for improvements which
increased the fair market value of the property.
Iowa
H. B. 25: Provides that whenever a fee simple title to land is taken for
public use by condemnation or by purchase in lieu of condemnation, there
must be a legal description of the part taken and of the remainder which is
compatible with the abstract description.
H. B. 347: Provides that except for drainage and levy improvements
and public school improvements, a landowner may not be dispossessed under
condemnation proceedings of his residence, dwelling house, outhouse,
orchard or garden until the damages have been determined and paid or, in
the event of highway condemnation, within 180 days after the compensation
commission has filed its award and appraisement damages are paid.
H. B. 518: Provides for condemnation by the county for flood and
erosion control projects.
Massachusetts
Ch. 79: Adopts requirement that no taking of real estate shall occur
until at least one appraisal of the property has been made and filed with the
taking authority. Requirement can be waived by a prior written request of
all parties entitled to damages, whereupon an award of nominal damages
shall be made, subject to revision to reflect actual damages after an appraisal
has been concluded.
Vests in the board of officers which has made a taking, the power to
determine the parties to collect damages in the case of a legally deficient
title, provided that said damages are less than $500.
Minnesota
Ch. 595: Completely recodifies eminent domain law requiring all
bodies, whether public or private, with the power of eminent domain, to
exercise that power in accordance with ch. 117, as amended.
Mississippi
S. B. 1714: Repeals existing eminent domain law and enacts new and
comprehensive law.
Missouri
H. B. 94: Requires relocation assistance to any displaced person under
condemnation proceedings as a condition of receiving federal funds. The
same relocation assistance must be afforded if the real property is taken
by eminent domain through the expenditure of state or local funds.
Nebraska
L. B. 190: Enacts relocation assistance act to provide payments to those
persons displaced by publicly financed projects.
Ch. 355: Gives property owners right to reimbursement for costs, in-
cluding attorneys' fees, where (a) judgment for condemnation is denied,
(b) when the proceedings are dismissed and (c) where inverse condemnation
is necessary. Applies to condemnation proceedings where federal, state or
local funds are used.
Texas
S. B. 521: Provides that when in the acquisition of real property for a
program or project undertaken by any political subdivision of this state
it shall become necessary that an individual family, business, farm or ranch
operation or nonprofit organization be displaced, moving expenses, reloca-
tion payments, rents, supplements and other expenses in connection with
the transfer are to be deemed expenses of such property acquisition.
Barnini v. Sun Oil Co., 161 Conn. 59 (1971).
The plaintiff's land was taken for highway purposes by eminent do-
main. At the time there was a service station on it which was under a lease
from the plaintiff to the defendant with an option to renew. The commis-
sioner assessed damages for the taking at $85,000. A dispute arose between
the plaintiff and the defendant as to the amount due the defendant under
its lease. Trial court determined the value of the lease to be $2,040.
HELD: Affirmed. The rule for evaluating the leasehold interest in
land is properly arrived at, in the case of a complete taking, by subtracting
the rent provided for under the lease from the fair market value of the
lease. In a determination of what this amount should be, all elements
legitimately affecting the value of the lease should be considered.
City of Cheyenne v. Frangos, 48 P. 2d 804 (Wyo. 1971).
HELD: Evidence of prices for comparable properties on condemnation
is inadmissible in a condemnation case.
Housing Authority v. Myers, 115 N. J. Super. 467, 280 A. 2d 216 (1971).
Condemnation involved taking of a building which housed condemnees'
dress factory and retail outlet store.
HELD: A condemnee may include in proof of value of premises any
enhancement attributable to personal property used by owner in his
business operations on the premises. Where personalty which is integral
part of going business enhances freehold, condemnee's removal of personalty
after condemnation at his expense does not deprive him of his right to be
compensated for deprivation of such equipment. In event condemnor is
willing to pay value of property as enhanced by industrial equipment in
place, election as to whether such may be removed should be that of con-
demnor, not of condemnee.
Merced Irrigation District v. Woolstenhulme, 4 Cal. 3d 478, 93 Cal.
Rptr. 833, 483 P. 2d 1 (1971).
Action by irrigation district to condemn parcels of land. Supreme
Court of California considered the recurring issue in eminent domain as
to whether increases in land values attributable to the proposed project

comprise a proper element of the just compensation to be paid to a land-
owner if his land is ultimately taken for a project.
HELD: The majority rule in other jurisdictions is that "project en-
ihanced" value does constitute a proper element of value for which the
landowner is entitled to be compensated. California, by this case, now joins
these states.
Morgan v. City of Overland Park, 483 P. 2d 1079 (Kan. 1971).
Condemnor appealed from a judgment rendered on a jury verdict in a
condemnation proceeding.
HELD: Lower court's instruction, permitting the jury to consider the
best use of the property which was in violation of an existing ordinance if
the jury believed there was reasonable likelihood that the ordinance would
be amended to permit such use, was proper. The responsibility of defining
the extent of compensable rights is in the courts.
9188 Acres of Land v. State, 274 A. 2d 139 (Del. 1971).
State of Delaware offered $136,000 for tract of land. The commission
awarded $265,000. Owner applied for allowance of $32,125 for attorney's
fees, consultant and witness fees, and for proration of taxes. Trial court
denied an allowance for attorney's fees, awarded $1,500 for expert witness
fees, and ruled against the proration of taxes. Owner appealed the denial
of attorney's fees and proration of taxes. State appealed the award of expert
witness fees.
HELD: (1) Federal and state constitutional prohibition of the taking
of public property without just compensation does not require the payment
of owner's attorney's fees, an allowance for consultant and expert witness
fees, and for proration of taxes; (2) Allowance of expert witness fees in the
amount awarded by the trial court upheld as being within the discretion
of the trial court under Delaware statutes permitting the allowance of ex-
pert witness fees.
Question of whether owner is entitled to legal fees and proration of
taxes as part of just compensation in an eminent domain proceeding is one
of first impression in Delaware.
Restaurants, Inc. v. City of Wilmington, 274 A. 2d 137 (Del. 1971).
Owner of restaurant and real estate upon which it was located was
denied compensation for loss of the restaurant business and loss of liquor
license in eminent domain proceeding.
HELD: (1) Loss of business conducted on the premises is not com-
pensable as part of the real estate interest to which the owner is entitled
to just compensation under the Delaware Constitution. Evidence of the
nature of the business is admissible to establish fair market value only; (2)
License giving right to sell alcoholic beverages is not the sort of property
protected by the Constitution but only a limited permit issued by the state
in its exercise of the police power so as to enable licensee to engage in an
enterprise which otherwise would be unlawful.
Point No.2 is a matter of first impression.
Sanford v. Louisville & Nashville R. R., 469 S. W. 2d 363 (Tenn. 1971).

Plaintiff brought suit in which she alleged that she was sole remainder-
man with respect to certain lands, that defendant had instituted condem-
nation proceedings in 1899 with respect to the portion of the land, and that
her rights to compensation were not protected in that proceeding.
HELD: Where defendant had in prior proceeding complied with con-
demnation statute by making all owners of any interest in property parties
defendant and by filing with the court the muniment of title, the will,
showing who the owners were, and the interests of unborn remaindermen,
plaintiff, an alleged unborn remainderman, by terms of the condemnation
act was before the court and also was before the court by operation of
virtual representation. She was not denied just compensation guaranteed
by the Tennessee and United States Constitutions.
Spradley v. South Carolina State Highway Dept., 182 S. E. 2d 735 (S. C.
1971).
Property owner sought to recover compensation for taking and damag-
ing of real property caused by dumping and spilling of surface water there-
on as result of highway improvement.
HELD: Deprivation of the ordinary beneficial use and enjoyment of
one's property is equivalent to "taking," within constitutional requirement
of just compensation, though the property is not actually appropriated.
State v. Valley Development Co., 268 N. E. 2d 73 (Ind. 1971).
In condemnation proceedings, landowner was required by court to
tell on cross examination the purchase price he paid for condemned prop-
erty, which property had been acquired seven years and two months prior
to the condemnation taking. Landowner appealed judgment.
HELD: Such evidence is not inadmissible solely upon grounds of the
passage of that period of time.
Indiana establishes guide for determining what represents remoteness
in presenting evidence of market value.
State ex rel. State Highway Comm. v. Emery, 481 P.2d 686 (Mont. 1971).
After jury verdict in favor of landowner, the district court awarded
condemnor a new trial and landowners appealed.
HELD: (I) Where jury awarded landowners exactly the total amount of
damages for which they asked and divided the total amount into an amount
for value of land taken and an amount for depreciation to remainder and
the award for value of land taken was far in excess of the value testified to
by experts for condemnor and condemnees, condemnor was entitled to a
new trial; remittitur of overage was not possible; (2) In eminent domain
proceeding verdict form dividing total amount of damage award into
separate amounts for value of land taken and for depreciation to remainder
was proper.
State Department of Highways v. Urban Estates, Inc., 465 S. W. 2d 357
(Tenn. 1971).
The circuit court entered judgment for condemnee, awarding interest
from Feb. 5, 1963 to Sept. 8, 1966, and the state appealed.
REAL PROPERTY, PROBATE AND TRUST jOURNAL rYol. 7:68
HELD: Reversed. Condemnee knowingly, intentionally and volun-

tarily relinquished its right to be compensated for any taking of its prop-
erty as of the date on which the Metropolitan Planning Commission re-
quired the subdivision plan to reserve condemnee's property as right-of-way
for interstate highways when it stipulated as the date of taking and that
value for purposes of condemnation was to be ascertained without consider-
ing any enhancement or depreciation which occurred before the taking
because of anticipation of the public improvement for which the taking
is made.
State ex rel. State Highway Comm. v. Samborski, 463 S.W. 2d 896
(Mo. 1971).
In condemnation proceedings the trial court adjudged the landowners-
lessors were entitled to the entire award and lessee appealed.
HELD: The general rule that the lessee under eminent domain pro-
ceedings is entitled to the reasonable market value of the improvements for
the unexpired term of his lease has no application where the improvements
are economically obsolete at the time of the taking.
State of New Jersey ex rel. Comm. of Transportation v. Birch, 115
N. J. Super. 457, 280 A. 2d 210 (1971).
HELD: Where partial taking left portion of condemnee's property
land-locked, which condition could best be ameliorated by construction of
a road over route of paper street, and township was insisting on compliance
with street standards set forth in land subdivision ordinance, instruction
that ordinance was not applicable to the case and that condemnee did not
have to comply with ordinance in building access road was prejudicially
erroneous. While generally an offer of dedication is irrevocable, actual dedi-
cation to public use is consummated when dedication is accepted by an
appropriate ordinance or resolution of municipality; acceptance may also
be effectuated by other official conduct which manifests an intention to
treat land in question as dedicated to public use.
State Road Commission v. Rohan, 487 P.2d 857 (Utah 1971).
Appeal by State Road Commission from judgment on jury award for
taking of about one-fifth from rear of residential lot to accommodate new
freeway.
HELD: Testimony of condemnee's expert who considered increase in
traffic and noises as result of new freeway adjacent to property in making his
appraisal of decrease in value as severance damages as result of taking of
about 2,000 square feet from rear of condemnee's 10,000 square foot resi-
dential lot was properly allowed notwithstanding it would have been im-
proper to segregate and evaluate, as a separate item of damage, any such
intangible factor as noise.
United States v. 40.60 Acres of Land, 324 F. Supp. 573 (N. D. Cal. 1971).
Prior to condemnation, the utility company was granted easement rights
and installed pipes, mains and appurtenances for the sole purpose of pro-
viding water service to the area. The company contends that although the
United States government did not specifically condemn their easement
rights, the condemnation of the surrounding land operated to render the

pipes and other appurtenances totally useless, and, therefore, was a taking
within the meaning of the Fifth Amendment. The utility company seeks
only the fair market value of the pipes, mains and appurtenances, recog-
nizing that the loss of business profits is a "consequential" loss and, there-
fore, not compensable.
HELD: Recovery denied. The government need not compensate the
owner of easement rights when it does not condemn the easement rights or
act directly on such easements even though its condemnation of the fee
operates to nullify the intended use of the easement.
United States v. 967,905 Acres of Land, 447 F.2d 764 (8th Cir. 1971).
HELD: On taking of land located on Bay of Lake and one which
owners operated sports fishing and hunting resort, owners' cabin barges
could not properly be characterized as real estate, and fact that it was not
economically feasible to remove the boats from the lake did not result in any
attachment of them to real estate; further, where the taking was total,
provisions of Rivers and Harbors and Flood Control Act of 1970 was
applicable and the land and fixed improvements thereon were to be valued
as riparian lands and their access to lake was to be taken into consideration
in fixing their value as of date of commencement of condemnation pro-
ceedings.
Walton-Lyndeboro Cooperative School Districtv. Gregg, 274 A. 2d 787
(N. H. 1971).
Petition for condemnation by school district.
HELD: Evidence that access to school by means of plot taken from
third party was unsatisfactory because of steepness of grade and other fac-
tors was sufficient to justify finding of reasonable necessity as to taking of
condemnees' land so as to allow access to new school facilities. Fact that
access road or driveway which school district intended to construct on land
taken from condemnees would be used by members of public did not make
such road or driveway a public highway which school district was not em-
powered to lay out.
Waynesburg & Southern R. R. Co. v. Lemley, 178 S. E. 2d 833 (W.Va.
1971).
Plaintiff sought condemnation of private easements serving as access
to a private cemetery after construction of plaintiff's railroad had been
completed pursuant to a conveyance of a right-of-way to the plaintiff by
the owners of the subservient lands wherein the conveyance to plaintiff was
made subject to the easements sought to be condemned in the instant case.
HELD: (1) Fact that the petitioner was already in possession of the
property at the time the condemnation proceedings were instituted does
not defeat its right to condemn, and this is the rule whether the possession
was unlawful or by consent of the owner; (2) An entity, which by statute
has the authority to acquire property by condemnation, cannot alienate or
terminate such authority, even though it may attempt to do so by covenant
or contract.
Barry, Market Value Enhancement by Public Project, 47 L.A.B. BULL.
49 (1971). The author discusses three recent California Supreme Court de-
cisions which examine the question of whether, and to what extent, increases
in value attributable to a proposed public improvement are a proper ele-
ment of "just compensation," and what evidence relating thereto is ad-
missible.
Harrison, Use and Enjoyment of Land-Compensation for Noise Dam-
age, IV NATURAL RESOURCES LAW. 429 (1971). Author believes noise has
become a significant factor in determining the market value of real property.
While noise alone is seldom, if ever, sufficient in intensity to preclude the
possession of real property, it does interfere with the use and enjoyment of
real property. Such interference is reflected in the price which can be ob-
tained by exposure of the property in the market, and diminution in market
value is invariably the test adopted for the measure of damages to real
property as a consequence of noise.
The scope of this article is limited to noise emanating from the use of
facilities owned by branches of government or quasi-public entities having
the power of eminent domain. The article examines cases where money
damages for injury to real property caused by noise have been recovered
under the eminent domain theories of condemnation and inverse con-
demnation and also under the tort theories of nuisance, trespass and neg-
ligence.
The author concludes that as the law now stands, noise is generally
recognized as a proper element of damage. But because noise is dissipated
over such a broad area, it becomes vulnerable to many defenses, leading
to a considerable amount of confusion and lack of uniformity in the high-
way cases. But the cause of much of this confusion, the failure to distinguish
between taking and damaging, has also contributed to the broadened
concepts found in recent aviation cases where damage provisions have been
rendered surplusage.
Kelly, ChallengingHighways: Widening the Access to Judicial Review,
20 CATHOLIC U. L. REv. 143 (1970). Examines the reviewability of highway
route location procedures and various means of obtaining judicial relief.
Level, Evaluation of Special Purpose Properties in Condemnation Pro-
ceedings, 3 URBAN LAW. 428 (1971). In dealing with special purpose prop-
erties, because of the lack of market and sales of such properties and the
unusual characteristics that give them value, courts have departed from
the laws of valuation applied in the usual condemnation case. Some con-
clusions which might be drawn when dealing with such properties are: (1)
market value, although applied if possible, may or may not be the legal
measure of compensation; (2) more liberality with respect to the evidence
admissible to prove value will be applied; (3) in one form or another, value
of the property for its special purposes, or to the owner, will be recognized;
(4) more liberal use of the cost and income approaches to value will be
allowed; (often the cost approach may be the only way of valuing special
purpose improvements; (5) substitution or the "substitute property doctrine"
may be applied to public properties, which doctrine determines compensa-
tion based upon the cost of necessary restoration of the utility lost; (6) there
is no way of valuing special properties; each case will require special con-
sideration; the rules respecting proof must afford some leeway if the
owner is to receive constitutional indemnification; (7) appraisers, when
undertaking appraisals of such properties, should expect to exercise some
ingenuity and to expend more effort in considering the factors which con-
tribute value to such properties beyond that enjoyed by more conventional
properties.
Lombardo, Eminent Domain, Date of Valuation in Ohio, 20 CLEv. ST.
L. R. 647 (1971). Points out how compensation can be affected by date of
valuation being after activity or delay of appropriating authority, and sets
out standards for arriving at fair market value.
Mencher, Condemnation Enters the Twentieth Century-An Alert to
the D. C. Bar, 38 D. C. B. J. 48 (1971). A discussion of a bill "To provide
for uniform and equitable treatment of persons displaced from their homes,
businesses or farms by federal or federally assisted programs" known as the
"Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970" which became Public Law 91-646.
Olds, Examining Witnesses in the Condemnation of Industrial Prop-
erty, 17 PRAc. LAW. 71 (No. 6-1971). An illustration of the method for ex-
amining and cross-examining witness in a case involving condemnation of
industrial property.
Olson, The Role of "Fairness" in Establishinga Constitutional Theory
of Taking, 3 URBAN LAW. 440 (1971). There are numerous attempts to
define "taking" which revolve around the idea that government is required
by the constitution to give "just compensation" for a "taking for public
use"-the essence being that the loss should be borne by the community as a
whole. The article considers existing theories, analyzes a recent court de-
cision and synthesizes some identifiable considerations as to "what consti-
tutes a taking."
Schetroma, Eminent Domain: Just Compensation When the Con-
demnor Enters Before Instituting Proceedings, 75 DIcK. L. REv. 303 (1971).
An examination of the problem of compensating a landowner for property
which has been invaded by a condemning authority before the institution
of proceedings. The applicability of traditional eminent domain principles
and the varied rationales propounded by the courts in case law are dis-
cussed. An alternative approach is suggested as well as a proposal for legis-
lative action. It should be pointed out that the related controversy which
has arisen in the normal condemnation proceedings as to whether property
should be valued at the time the proceedings are instituted or at the time the
award is made is considered where relevant to the specific topic.
Snitzer, The Uniform Relocation Assistance & Property Acquisition
PoliciesAct of 1970-A New Era, 43 PENN. B. A. Q. 114 (1971). A discussion
of the new federal statute.
Snitzer, Valuation and Condemnation Problems Involving Trade Fix-
tures, 16 VILL. L. REV. 3 (1971). A discussion of what is a trade fixture, when
is it condemned, how do you value it and how do you apportion between
lessor and lessee.
Stoebuck, Condemnation of Rights the Condemnee Holds in Lands of

Another, 56 IOWA L. REv. 293 (1971). An examination into various issues
which arise when it is claimed that an entity having the power of eminent
domain has extinguished an easement, a private restriction, rights of light,
air and view, or removes lateral support and that as a result there is a
"taking" or "damage" of property within the principles of eminent domain.
This being so, the owner of such property interests should be entitled to
"just compensation" for such "taking."
Tate, Legal Criteria of Damages and Benefits-The Measurement of
Taking-Caused Damages to Unknown Property, 31 LA. L. REv. 431 (1971).
The article reviews the Louisiana law applicable to damages caused by
partial takings of land and the legal criteria for measuring such damages.
The author suggests that, while recovery for incidental damages resulting
from partial takings has not been viewed with favor by courts because of
problems in proving causation and severity, the concept of just compensa-
tion may be expanded to include considerations previously disregarded.
Van Alstyne, Taking or Damaging by Police Power: The Search for
Inverse Condemnation Criteria,44 S. CAL. L. REv. 1 (1970). Governmental
police power affecting personal and real property beyond mere diminution
in value, as a measure of loss. The sections in this article on land use
controls (including zoning, developmental regulations, etc.) are concluded
with comments on possible directions for legislative action.
X. ENVIRONMENTAL CONTROL AND POLLUTION
The statutes of the particular 13 states referred to in this report
indicate the alacrity with which state legislatures have responded to the
apparent public clamor for legislative control over the environment. Many
of these statutes create state departments of "Environmental Conservation"
or "Environmental Protection." Alabama's comprehensive air and water
pollution statute meets the stringent federal standards. None of these
statutes seem quite as revolutionary as Connecticut's statute which permits
actions for declaratory judgments and equitable relief to be brought by any
person, partnership, corporation, association or other legal entity without
limitation. This is all in addition to the usual classes such as the attorney
general or a political subdivision of the state. If legislation will help, there
it is. The lack of litigation upon the subject is to be expected since the
generated controversies are still at the administrative level or in litigation.
The volume of the literature on the subject is staggering. Few periodi-
cals, if any, failed to have an article on the subject. Many had several. Many
more devoted the greater part of an entire issue to the subject. Symposiums
were common. One wonders what more can be said in writing about the
subject that has not already been said-and more than once. The cases
reveal the recurrent problem of plaintiffs to come within the "standing to
sue" rule.
A. Legislation
Alabama
P.A. 769: Enacts comprehensive air pollution statute meeting federal
standards.
P. A. 1260: Enacts comprehensive water pollution statute meeting fed-

eral standards.
A laska
Ch. 120: Creates a Department of Environmental Conservation to
formulate and enforce standards for water and air quality and for protection
from radiation and pesticides.
Colorado
Ch. 163: Enacts Recreation Land Preservation Act of 1971, regulates
sewage and refuse disposal and fire management practices in public recrea-
tion areas and public and private campgrounds, and makes unlawful various
acts which degrade the natural environment of such areas.
Connecticut
P. A. 96: Enacts The Environmental Act of 1971 which permits not
only the attorney general or any political subdivision of the state or instru-
mentality or agency thereof to maintain actions for declaratory judgments
and equitable relief under the statute but extends the right to any person,
partnership, corporation, association, organization or other legal entity
without limitation of any kind. This statute also amends the usual rules of
evidence by providing that when a plaintiff has made out a prima facie
case showing that the defendant has violated the statute then the defendant
may rebut this by either (1) evidence to the contrary or (2) by way of an
affirmative defense that, considering all circumstances, there is no feasible
and prudent alternative to defendant's conduct.
P. A. 173: Permits the enforcement of all conservation and preservation
restrictions created by deed, will or other instrument, and held by a govern-
mental body or a charitable corporation or trust whose purposes include
conservation of land or water areas or the preservation of historically sig-
nificant structures or sites even though (1) there is lack of the essential
common law privity of estate or privity of contract between the parties; (2)
even though the benefit may be in gross; or (3) on account of the benefit
being assignable or being assigned to any other governmental body or to
any charitable corporation or trust with like purposes.
Iowa
H. B. 73: Adopts act to preserve and protect public interest in soil
and water resources by flood and erosion controls. State is divided into six
conservation districts with commission as governing body in each district,
with stated powers, rights and duties. Soil erosion declared nuisance, and
commissioners may bring action to enjoin or abate such nuisance by re-
quiring landowner to comply with regulations or submit to fine and jail
sentence. After 30-day notice, commission may enter private land to deter-
mine practicability of improvement with certain restrictions.
Kansas
Ch. 202: Prohibits discharge of any substance containing mercury into
waters of state and provides penalty for violation.
Maine
Ch. 256: Amends 38 MRSA 361 to provide that the Environmental
Improvement Commission has the regulation-making power to carry out the
provision of any law which it is charged with the duty of administering.
Ch. 372: Provides that no mercury may be discharged into waters of
this state.
Ch. 489: Provides for a Department of Environmental Protection given
the responsibility to protect and improve the quality of the natural environ-
ment and the resources which constitute it.
Ch. 491: Creates Department of Natural Resources to preserve, protect
and enhance the vast and varied natural resources of the state.
Missouri
Ch. 203.140: Extends the authority to enforce air pollution regulations
to all first and second class counties.
Ch. 306.26: Requires that sewage from marine toilet be contained on
board the boat; prohibits boat marine toilets from discharging any sewage
into waters of the state; excepts boats in interstate commerce.
Ch. 564.010: Makes it a misdemeanor to deposit any dead animal or
other filth into any well, spring, brook, branch, creek, pond, lake, river or
stream in this state. Also makes it unlawful to deposit such things near a
public road or highway or upon premises not owned by depositor.
Nebraska
L. B. 939: Enacts Environmental Protection Act.
Nevada
Ch. 409: Prohibits the pollution of waters.
Ch. 567: Enacts the Nevada Air Pollution Control Act.
Ch. 590: Enacts Nevada Water Pollution Control Law of 1971, which
creates the Bureau of Environmental Health of the Health Division of the
Department of Health, Welfare and Rehabilitation. Comprehensive act
deals specifically with sewage disposal to prevent contamination and pollu-
tion of waters.
New Jersey
Ch. 173: Authorizes Department of Environmental Protection to deal
with the damage caused by the unlawful discharge of petroleum products,
debris and other hazardous substances into the waters.
Ch. 177: Provides for control of and prevention of dumping waste
materials into waters adjacent to State of New Jersey in Atlantic Ocean.
Known as Clean Ocean Act, it provides that Commissioner of Environ-
mental Protection may adopt regulations to enforce it.
Rhode Island
Ch. 137: Authorizes governor, upon recommendation of Director of
Health, to proclaim existence of an air pollution episode, and gives gov-
ernor necessary power to prohibit, restrict or condition certain activity which
contributes to air pollution.
West Virginia
H. B. 916: Amends 16-20-1, 2, 5, Ila, lib, and lIc, redefining policy
and purpose of article to conform to those of the Clean Air Act of 1970.
Broadens powers of Air Pollution Control Commission.
Guthrie v. Alabama By-Products Co. 437 F. 2d 1087 (9th Cir. 1971),
afTJg 328 F. Supp. 1140 (S.D. Ga.).
Riparian landowners brought action under the Refuse Act of 1899
against industrial discharges for damages caused by water pollution. Plain-
tiffs relied on the principle that a civil remedy for violation of a penal
statute may be implied in favor of persons in the class for whose special
benefit the statute was enacted.
HELD: Action dismissed. Federal district court does not have federal
question jurisdiction under Refuse Act of 1899 since the Act was not in-
tended to create federal cause of action by riparian landowners for impair-
ment of value and loss of enjoyment of their land unrelated to impairment
of navigation.
State v. Arizona Mines Supply Co., 39 L. W. 2641 (Ariz. 1971).
The defendant was charged with two counts of "air pollution" in vio-
lation of the Air Pollution Regulations. Defendant argued that some degree
of knowledge or intent is prerequisite to conviction. The state contended
that it need not prove intent or knowledge since the offense is more in the
nature of "malum prohibitum."
HELD: Nowhere does this regulation (or the Air Pollution Act, for
that matter) provide, either expressly or impliedly, that before the state
pay convict someone of "air pollution" it must first prove that the air
contaminant was discharged knowingly or intentionally.
Bassuk, The Necessity of Architecture: A Built-Environment Fit for
People, I REAL ESTATE REV. 23 (No. 1-1971). The slow but inexorable accre-
tion of man-made environment has reached a point of harmful qualitative
change. The threat to man's survival is not nature but man's wanton dis-
regard and subjugation of it. While nature, as such, can achieve a balance
through its ecological mechanisms, man must attain equilibrium by con-
scious effort and control. Thus, with the proliferation of artificial environ-
ment comes the need for greater social responsibility in its design. This
calls for ethical and moral imperatives to be heeded in the design and build-
ing of environment. In short, we must humanize our environment. However,
the criteria for the well-being of the human animal are much more difficult
to establish than for the nonhuman and inanimate existence. What makes
man "so human an animal" is the ability to devise and use symbols, and
to consciously express emotional and intellectual thought.
As members of the community of specialists involved in the planning
and building of ax-hitectural environment, architects must apply those
criteria which will raise the quality of the built-environment to a level com-
mensurate to the actual needs of human beings, and also to contribute

to a better way of life. To meet this challange the architect needs encourage-
ment and support by the business community and the participation of the
community-at-large.
Baum, Bay Area Conservation and Development Commission, 5 LIN-
OOLN L. REv. 98 (1970). Apparently the San Francisco Bay Conservation and
Development Commission is a phenomenon of great interest to public
groups on all sides of the environmental struggle and to many groups in-
terested in the environment. The author believes that if the BCDC is not
unique, at least it does stand virtually alone in the way in which it combines
a number of lessons for environmentalists. The author further believes that
there is now a need to review what has happened and what lessons can
be learned from the history and current situation of the BCDC.
Bauwer, Water Quality Aspects of Intermittent Infiltration Systems
Using Secondary Sewage Effluent. 13 CURRENT MUNICIPAL PROBLEMS 121
(1971). While a number of experimental or operational systems and labora-
tory studies on reclaiming waste water by percolation through soil already
exist, this article is a report mainly on the Flushing Meadow Project which
is an experimental project west of Phoenix, Arizona, to study reclamation
of sewage water by ground water recharge with shallow infiltration bases.
Beckman, The Right to a Decent Environ-Under the Ninth Amend-
ment, 46 L. A. B. BULL. 415 (1971). The author traces the history of the
Ninth Amendment which he suggests was intended by its adopters to serve
as a means of preserving to the people their fundamental rights, including
an unpolluted environment.
Blake, Suing the Polluter: Approaches to Achieve Standing, 9 ALASKA
L. J. 47 (1971). This article is concerned with the right of a plaintiff who
alleges only indirect injury to maintain an anti-pollution suit. The author
points out that it may sometimes be necessary to take a rather circuitous
route, such as a writ of mandamus, though at other times, the action can
be maintained directly against the polluter as in a shareholder's derivative
suit. The author points out that some of these routes will be fairly orthodox
and others will be less so. All, however, have one feature in common-they
present at least a fair chance for a plaintiff to maintain an action against
a polluter where that plaintiff is unable to demonstrate some direct injury.
Bond, The Environmental Law Explosion-A Survey of Anti-Pollution
Laws Affecting the Oil Industry, 26 Bus. LAw. 1039 (1971). This survey of
anti-pollution laws is not a definitive statement of environmental law but
rather an indication of the breadth of existing and emerging regulation
viewed from the perspective of the four functional categories of operation
of the oil industry: production, transportation, refining (i.e., manufactur-
ing) and marketing. The author's conclusion is that the changes taking place
in environmental law are running parallel, but even faster, to those taking
place in the field of products liability for industry. Caveat emptor now
means: let industry beware. Everyone is against sin and pollution.
Briggs, Navigational Servitude as a Method of Ecological Protection,
75 DICK. L. REv. 256 (1971). A discussion of the power of the navigational
servitude as an effective weapon for conservation.
Spring 1972) REAL PROPERTY LAW, SURVEY
Carnahan, The CanadianArctic Waters Pollution Prevention Act: An

Analysis, 31 LA. L. REV. 632 (1971). The author comments on the Arctic
Waters Pollution Act which was enacted in response to the prospect of
petroleum companies using the Northwest Passage for the transportation
of oil. The article focuses on problems incident to unilateral assertion of
jurisdiction over mainland shores and the need for the development of
judicially manageable criteria.
Commoner, A Current Problem in the Environmental Crisis, Mercury
Pollution, and Its Legal Implications, IV NATURAL RESOURCES LAW. 139
(1971). It is the purpose of this article to' illustrate the general problem of
environmental crisis by means of a current example-the growing national
concern with environmental pollution due to mercury.
Conrad and Juergensmeyer, The American Legal System and Environ-
mental Pollution, 23 U. FLA. L. REv. 439 (1971). A discussion of four sug-
gested changes in the law which are necessary if pollution is to be effectively
controlled.
Cornwell, From Whence Cometh Our Help? Conservationists' Search
for a Judicial Forum for Environmental Relief, 23 U. FLA. L. REv. 451
(1971). An opinion that conservationists need a judicial forum to hear argu-
ments relating to environmentally damaging activities as opposed to deci-
sions that are made by private and quasi-public administrative bodies.
Davis, Theories of Water Pollution Litigation, 1971 Wis. L. REv. 738
(1971). The author believes that the American law concerning pollution
of water courses is by no means clear or unconfused. The cases constitute
a morass of conflicting doctrines, and represent efforts to deal with individ-
ual situations rather than to provide clarity in defining legal rights. This
article attempts to shed light on the scope of the confusion and suggests
a way of approaching the problem of water pollution.
Donovan, The Federal Government and Environmental Control: Ad-
ministrative Reform on Executive Level, 12 B. C. IND. & CoM. L. REv. 541
(1971). During the year 1970, the national fight against pollution enlisted
new and potentially powerful weapons. These ranged from the enactment
of the most important administrative statute ever passed by Congress,
through subsequent congressional legislation and executive reorganization
of the federal bureaucracy, to initiate successful steps in modifying and
adopting the federal anti-trust laws to comport with environmental pro-
tection. The author believes that these administrative reforms are of partic-
ular significance. This article surveys the various acts and steps that were
taken at the administration level. Particular emphasis is given to the dis-
cussion of the National Environmental Policy Act of 1969 since the author
believes that this statute may justifiably be said to be the fountainhead for
federal activity in the area of the environment.
Eames, The Refuse Act of 1899; Its Scope and Role in Control of Water
Pollution, 1 ECOLoGY L. Q. 173 (1971). Recently the Department of Interior
filed civil complaints against mercury polluters under an obscure section of
the Rivers and Harbors Act of 1899. Little is known of the history of the
Refuse Act or of its applicability to the modern problem of water pollu-
tion. This article attempts to define the scope of the act through examina-
tion of its legislative, judicial and administrative history, and furthermore

explores possible modes of action and remedies available under it. The
author feels that the use of the Refuse Act as a complement to existing
federal water quality legislation, essentially embodied in the Water Quality
Act of 1965, will contribute to attainment of the goal of comprehensive and
effective control of water pollution.
Farley, The Department of Environmental Resources: An Analysis,
42 PENN. B. A. Q. 433 (1971). An analysis of the organization, powers and
functions of the Department of Environmental Resources, a new branch
of the Pennsylvania government.
Garton, Ecology and the Police Power, 16 S. D. L. REv. 261 (1971). A
discussion of the extent of regulatory powers.
Goldstein and Ford, The Management of Air Quality: Legal Structures
and Official Behavior, 21 BUFFALO L. REv. 1 (1971). The study upon which
this article is based consists of an integrated model of the federal, state and
county laws which, by their terms, are intended to regulate the management
of air quality in a selected area in western New York, and of a report, based
upon structured and unstructured interviews and review of agency records,
of the official behavior of the state and county personnel charged under
these laws with responsibility for management of air quality within the
area. The article describes two regulatory models, the first, legal, the
second, political, and compares requirements and expectations of the
first with the workings of the second. In this it touches on two significant
current concerns: the widespread concern that the national environment
is not being managed as rationally as it could be, and the more specialized
concern that students of administrative law have for too long occupied
themselves with questions at the top of their subject's iceberg-questions,
for example, of delegation and scope of judicial review-and neglected the
questions at its bulk-how administrative bodies behave.
Graham, Pollution and the Law in Illinois, 52 CHI. B. REc. 205 (1971).
A discussion of the Illinois Environmental Protection Act of 1970 and its
relation to federal law.
Haxby, Industries Programmed to Improve Its Oil Spill Cleanup Capa-
bility, 13 CURRENT MUNICIPAL PROBLEMS 14 (1971). This article describes the
Oil Pollution Control Bill signed into law on April 13, 1971.
Henning, The Ecology of the Political-Administrative Process for
Wilderness Classification, 11 NATURAL RESOURCES J. 69 (1971). An analysis
of the method and background of classifying wilderness and potential wilder-
ness areas as legal and permanent wilderness under the Wilderness Act of
1964.
Herrington, Oil Pollution:Its Nature and Africa's Legislative Response,
4 AFRICAN LAW STUDIES 47 (1971). While recent marine disasters have
aroused popular concern about oil pollution, the problem of oil pollution
has been around, in less dramatic forms, for some time and many nations,
both western and nonwestern, have taken some action to alleviate it. The
purpose of this article is to see the problem of oil pollution as one group of
nonwestern nations sees it, to determine, if possible, why the response of
Africa's legislature is what it is.
Hershman, California Legislation on Air Contaminant Emissions from

Stationary Sources, 1 ECOLOGY L. Q. 203 (1971). Stationary source air con-
taminant emissions, primarily industrial, have been and continue to be
major contributors to air pollution. Congress and the California legislature
have created various regulatory agencies to control these emissions. This
article discusses the legislation creating these agencies and the authority
currently delegated to them. It encompasses all legislation through the 90th
Congress and the 1970 California legislative session. The author points out
the weaknesses in the administrative structure and suggests specific ways
in which it could be improved.
Heyman and Twiss, Environmental Management of the Public Lands,
1 ECOLOGY L. Q. 94 (1971). This article deals with the task of law-trained
persons to reshape the legal and administrative systems of governmental
agencies so that environmental implications are properly taken into account
in agency decisions. The article also discusses the management of federally
owned lands where government, as proprietor, has significantly more power,
both legal and political, than it does as a regulator of activities on privately
owned land.
Hildreth, Federal Control of Water Pollution: The Refuse Act Permit
Program, 27 Bus. LAW. 567 (1972). A discussion of the permit program of
the Nixon Administration under section 13 of the Rivers and Harbors Act
of 1899, commonly known as the Refuse Act.
Hustace, The Air Quality Act-A Partnership for Pollution Control,
27 Mo. B. J. 8 (1971). The purpose of this article is to acquaint the general
practitioner with the Federal Air Quality Act of 1967 and the role that
this Act plays in the control of air pollution in Missouri.
Irwin and Burhenne, A Model Waste Oil Disposal Program in the
Federal Republic of Germany, I ECOLOGY L. Q. 471 (1971). A discussion
of the Waste Oil Law of 1968 of the Federal Republic of Germany to assure
safe disposal of waste lubricating oils. The provisions of this law and the
experience during its first two years in operation are discussed. The article
then offers suggestions for improving the German program and recommends
adopting it in other industrialized nations.
Jaffe, The Administrative Agency and Environmental Control, 20 BUF-
FALO L. REV. 231 (1971). The author believes that the clue to the role of the
agencies and bureaus is an analysis of the jobs to be done. Such an analysis
will reveal that some of the jobs can best be performed by the courts and
some by the agencies with the backing and guidance of the courts-and
some by the legislature itself. The distribution of jobs will be determined
primarily by a correspondence of form to the task, but other considerations
will be important as well-prestige, for example, where "clout" is needed.
The author also believes that there may well be situations where even
though an agency may be in form the best instrument, it may in fact be too
responsive to reactionary forces.
Jaffe, "Two Days to Save the World," 24 OKLA. L. REV. 17 (1971). A
review of both substantive and procedural considerations in the area of
environmental control.
Keener, Federal Water PollutionLegislation and Regulations With Par-
ticular Reference to the Oil Industry, IV NATURAL RESOURCES LAw. 484

(1971). The author believes that the field of legislative and administrative
regulation with reference to water pollution is a complicated structure at
this moment in time and is becoming more complex from the legal stand-
point each day with the further proliferation of regulations. In addition to
the complexity at the federal level, there are laws and regulations of the vari-
ous states, inter-state compacts, regional authorities, counties and cities. This
article is an attempt to examine the federal enactments, and particularly
those which can have a bearing on the oil industry. The author's conclusion
is that there are several potential conflicts with respect to the application of
existing federal laws regarding water pollution, particularly insofar as oil
is concerned.
Kline, Planning for a Water Pollution Abatement Program, 42 PENN.
B.A.Q. 461 (1971). A definition of the water pollution problem with recom-
mendations to meet this problem in the future.
Kolmin, Banks, Environmental Problems, and Taxes, 89 BANKING L. J.
29 (1972). The author believes that banks must be prepared to participate,
perhaps quite extensively, in the financing aspects of business ventures based
on the aims of public concern. He believes this is true with pollution control
projects and the related investment in technical equipment. He believes
that banks will be called upon with increasing urgency in the near future
to make loans for the construction and installation of such facilities and it,
therefore, seems appropriate to review the latest income tax provisions rela-
tive to the amortization of pollution control facilities. These are found in
the 1969 revision of the Code which offers special benefits and tax incentives
to the installers of these treatment facilities in the form of rapid writeoffs in
the attempt to reverse, or at least retard, the present trend of pollution of
waters and air. The article is a brief interpretation of the main provisions
of section 169 of the Code dealing with the amortization of pollution
control facilities.
Koltnow, Changing Highway Priorities:ConstructionEconomy and En-
vironmental Improvement, 20 CATHOLIC U. L. REv. 119 (1970). The author
argues that in urban highway development, technical improvement in fuel
content, noise control, land use, route location and traffic flow depend on
proper allocation and execution of administrative responsibility.
Kramon, Inverse Condemnation and Air Pollution, 11 NATURAL RE-
SOURCES J. 148 (1971). The problems presented by the enormous increase in
air pollution since the start of the industrial revolution are only beginning
to plague mankind. Many of the traditional remedies afforded by Anglo-
American law are adept to deal with this condition. The purpose of this
article is to examine the possible application of one recognized form of
action-the suit in inverse condemnation-to the problem of air pollution.
The author admits that the law of inverse condemnation needs much de-
velopment if it is to deal effectively with the problem of air pollution. The
author believes that the judicial process is ill-equipped to deal with so great
an evil without the help of other branches of government. Changes of the
necessary magnitude require a high degree of planning in order to insure
lasting solutions. What is suggested in this article is that the courts have
been slow to recognize an analogy between air pollution and the more tra-
ditional invasions of property. In this respect he believes that they have
failed to provide other sectors with needed impetus for change.
Krier, The Pollution Problem and Legal Institutions: A Conceptual
Overview, 18 U. C. L. A. REv. 429 (1971). Author stresses necessity for
solution of environmental problems (including pollution) by some type of
governmental intervention. Judicial processes available to accomplish
needed environmental objectives are discussed at length, with concluding
remarks on pollution control legislation and its administration.
Like, Multi-Media Confrontation-The Environmentalist'sStrategy for
a "No-Win" Agency Proceeding, I ECOLOGY L. Q. 495 (1971). The author
believes that for groups to prevail and secure a successful remedy at the
agency level in environmental battles does not necessarily demand a total
victory over the project that threatens the environment. The article in-
dicates what the author considers a means of achieving a victory for en-
vironmental values even if the agency determination proves unfavorable.
The author believes that a "no-win" strategy can maximize the environ-
mental benefits arising from lengthy administrative hearings even when
the chances of administrative victory are almost nonexistent.
Lippek, Power and the Environment: A Statutory Approach to Electric
Facility Siting, 47 WASH. L. REv. 35 (1971). An equitable solution of the
power-environment problem requires the consideration of a great number of
variables. The author concludes that the answer lies in a reduction of the
demand for power, the restructuring of electric rates, state regulation of
facility siting and comprehensive planning. The current regulatory struc-
ture is critically analyzed and a siting statute is proposed as an aid to states
considering such legislation in anticipation of probable federal require-
ments.
Little, New Attitudes About Legal Protection for the Remains of
Florida'sNatural Environment, 23 U. FLA. L. REv. 459 (1971). A review of
Florida cases involving environment and a suggestion that the law should
be changed to no longer protect human behavior that exploits environment
for economic advantage.
Mannino, Transportation and the Environment: The Institutional
Response of the Administrative Agencies, 42 PENN. B.A. Q. 446 (1971). A
discussion of the range of environmental effects of transportation policies.
Mathis, Urban Noise: An Insidious But EscalatingPollutant, 46 L.A.B.
BULL. 438 (1971). This article presents a fully researched discussion of
judicial and administrative methods that have been utilized in thus far
unsuccessful attempts at control of urban noise and further suggests some
means of making these efforts more successful.
McCraken, Articles XI and XIII-Environment and GeneralProvisions,
52 Cmi. B. REc. 116 (1970). Contains a brief discussion of the healthful
environment provisions of the 1970 Illinois Constitution.
Phillips, Environmentalists' Suits-Are They Standing or Falling? IV
NATURAL RESOURCEs LAW. 469 (1971). The author poses a basic overriding
question: Whether judicial review is to be accorded to individuals and
groups whose chief interest is in environmental preservation, when they
challenge governmental management of natural resources. Involved in this

question is the jurisdictional requirement that complainants must first es-
tablish a "standing to sue." The article endeavors to help understand this
complicated issue by (1) a brief history of the standing problem; (2) a
recapitulation of the present day confusion; and (3) an outline of the pos-
sible solutions for the future.
Richards, Walton v. St. Clair: The Standing Question, IV NATURAL
RESOURC S LAW. 47 (1971). As interest increases in protecting the environ-
ment, litigation increases also. The author believes that there is hardly an
environmental lawsuit that does not have a so-called standing to sue ques-
tion. The requirement of "standing" in federal court is derived from Article
III, Sec. 2, Clause 1 of the United States Constitution which requires that
there be controversies to which the United States is a party. The legal issue
has centered around a private litigant's ability to convince a court that he
has suffered damage as a result of the infliction of a legal wrong or the
denial of a legal right resulting from alleged wrongful or illegal governmen-
tal action. The test of standing for a private litigant in public action
emanates from federal legislation providing for judicial review of adminis-
trative and official action only by affected persons. Because the interpreta-
tion of who is an aggrieved party under the applicable federal statute is
determinative of the issue of standing, the body of case law dealing with
these terms becomes most important. The article analyzes the several federal
cases involved in this overall problem.
Rogers, Industrial Water Pollution and the Refuse Act: A Second
Chance for Water Quality, 119 U. PA. L. REv. 761 (1971). The article dis-
cusses the surprise decision of the Administration to use the Rivers and
Harbors Act of 1899 as a basis for legal actions against ten industrial plants
which were polluting waterways with mercury. Presumably everybody, in-
cluding the author, assumed the actions would be brought under the Water
Quality Improvement Act of 1970. The author believes that the salons of
the 19th Century appeared to have surpassed their modern successors in
fashioning useful tools for combating water pollution. The article focuses
upon the use of the recently revived Rivers and Harbors Act, more com-
monly known as the Refuse Act. as a deterrent to industrial water pollution
and as a spur to securing the necessary process and treatment changes.
Rodgers, Siting Power Plants in Washington State, 47 WASH. L. Rxv.
9 (1971). Washington is one of the first states to enact comprehensive siting
legislation. After examining the conflict between power production and en-
vironmental protection, the author presents a detailed analysis of the Wash-
ington State Thermal Power Plant Siting Act. Included is a discussion of the
compromises which electric utility leaders and environmentalists made in
achieving the finished product. Despite some shortcomings in the Act, the
author concludes that it is an appropriate step toward the preservation of
our dwindling resources and the responsible stewardship of our expanding
economy.
Schroeder, Pollution in Perspective: A Survey of the Federal Effort
and the Case Approach, IV NATURAL RESOURCES LAW. 381 (1971). The
author believes that an increasingly important question in the days ahead
as regards pollution control will be whether civilian suits will become

an aid or an obstruction to the effort to achieve firm, centralized, federal
control. At stake ultimately is whether the administrators, or the courts, will
direct the nation's pollution control effort. The scope of the acticle's
analysis includes (1) a review of the historical development of the major
federal air, water and solid waste pollution control legislation; (2) a review
of the congressional authorizations and appropriations in order to get some
feeling for the dimensions, to qualify the federal effort, and to find out
where Congress put the money, and what they were trying to accomplish;
(3) an identification of some of the principal battlegrounds in the case law;
(4) a discussion of where we stand today; and (5) a summary of some of the
pervasive issues still outstanding.
Shutler, Pollution of the Sea by Oil, 7 HOUSTON L. REV. 415 (1970).
Liability, jurisdiction and remedies, existing and proposed legal regula-
tion, national and international.
Smith, Main Problems in the Environmental Decade, 13 CURRENT
MUNICIPAL PROBLEMS 191 (1971). The recitation of some of the questions
which were asked when the House Conservation and Natural Resources
Subcommittee held hearings in February 1970 to elicit from conservation
and other organizations their views on what action program must be devel-
oped to attain a healthy environment in the decade of the 1970's.
Smith, A World Conference on the Environment, 13 CURRENT MUNICI-
PAL PROBLEMS 837 (1971). A discussion of the recent report of the Secretary
General of the United Nations on the projected Environmental Conference
authorized by the General Assembly for 1972.
Sussna, Environmental Control and Land Use, 42 PENN. B. A. Q. 456
(1971). An analysis of water, air and soil problems by our use of land.
Sussna, Comprehensive Environmental Control, 35 KY. S. B. J. 62
(No. 4-1971). A proposal for a systematic approach towards improvement of
environmental regulation with the goal of comprehensive control. Sug-
gestions include a broad monitoring system, legislative action, federal
support, environmental education, expansion of legal and judicial services.
Van Doren, Air Pollution-Expanding Citizen Remedies, 32 OHIO
S. L. J. 16 (1971). Concerns need of control, administrative or judicial ap-
proach, nuisance, trust and anti-trust methods.
Vaughn, State Air Pollution Control Boards! The Interest Group
Model and the Lawyer's Role, 24 OKLA. L. REV. 25 (1971). A discussion of
the effectiveness of legal institutions, i.e., state air pollution control boards
in light of countervailing interests and the lawyer's role in the problem.
Waite, Ransoming the Maine Environment, 23 MAINE L. REv. 103
(1971). An analysis of recent Maine cases which have placed the financial
burden of preserving a clean environment on the taxpayer rather than
the landowner.
Wilber, Polluted Water-A Challenge to Forensic Biology, 16 J. FOR
Sci. 251 (1971). The author believes that there is now developing in our
society, quite rapidly, the view that the law must address itself to problems
of overall concern to society at large. More and more, the idea of the com-
mon good is being used in litigation, especially concerning matters of the
environment. This discussion is addressed primarily to problems associated

with pollution of the aquatic environment. Pollution of natural waters
harms animals and plants useful to man and thus may generate harm to
persons and communities aesthetically, economically and emotionally. Since
the legal implications are apparent the author believes that it is obvious
that forensic scientists must become actively involved in the science of
human environmental quality.
Wilkes, Constitutional Dilemmas Posed by State Policies Against Ma-
rine Pollution-TheMaine Example, 23 MAINE L. REv. 119 (1971). A discus-
sion of the case against the constitutionality of anti-pollution laws with
recommendations as to solutions to these constitutional problems including
the unlawful taking dilemma, the burden of proof dilemma and also the
interstate commerce dilemma.
Woodroof, Pollution Control: Why Not Cost Allocation? 21 DRAKE L.
REv. 133 (1971). The purpose of this article is to analyze the various federal
and state laws dealing with the control of pollution and determine their
effectiveness, and to point out trends which reveal strengths or weaknesses
in environmental control. The article is divided into water pollution prob-
lems and water pollution statutes, the air pollution problem and air pollu-
tion statutes, and the noise pollution problem. The article concludes with
a discussion of the economics of pollution.
Woods and Reed, The Supreme Court and Interstate Environmental
Quality: Some Notes on the Wyandotte Case, 12 ARIz. L. REv. 691 (1970).
An exploration of the meandering paths of jurisdiction over environmental
problems of interstate impact, lighting the beacon for federal forum.
Yellin, Visual Pollution and Aesthetic Regulation, 46 L. A. B. BULL.
425 (1971). This article points out the growing judicial awareness of the
visual pollution problem, describes the dilemmas presented by the need to
establish adequate standards for administrative regulation, and suggests a
solution which the author feels would be consistent with the proper work-
ings of a democratic society.
Student staff note, Impact of Local Government Units on Water Qual-
ity Control, Contemporary Studies Project, 56 IOWA L. REv. 804 (1971).
The premise of this article is that all sources of water pollution are local
in nature, whether the cause is a municipal sewage treatment plant, indus-
try, a cattle feedlot or an eroding tract of land and, therefore, are within
the jurisdiction of some local governmental unit. As a result the adminis-
tration of these standards at the local level is of prime importance. If the
local governmental units fail in their administrative efforts, effective water
pollution control may not be possible. The article is concerned with the
effectiveness with which the local governmental units in Iowa control water
pollution. The local units are divided into two categories and discussed
under the general heading of municipal and rural agencies.
Papers Submitted at the American Bar Association Annual Meeting,
London, England, IV NATURAL REsouRcEs LAW. 803 (1971). Rawlinson, In-
ternational Problems concerning Pollution in the Environment, p. 804;
Stone, ContinentalShelf Natural Gas, Including a Comparison of Significant
Features of the Systems of the United States and the United Kingdom, p.
809; Jennings, JurisdictionalAdventures at Sea-Who Has Jurisdiction Over

the Natural Resources of the Seabed? p. 829; Southam, A Survey of the Law
Relating to the Exploitation, Transmission and Distribution of Natural
Gas from the Continental Shelf of the United Kingdom, p. 841.
Remarks and Papers Submitted at the American Bar Association An-
nual Meeting, Section of Natural Resources Law Program, N. Y. City, IV
NATURAL RESOURCES LAW. 749 (1971). Randolph, Energy and the Environ-
ment: National Fuels and Energy Policy is Needed for U. S., p. 749; Dole,
Causes, Costs and Choices, p. 759; Luce, Power Generationand the Environ-
ment, p. 767; Atkinson, New Institutional Arrangements to Balance Energy
and Environmental Needs, p. 774; King, Petroleum Energy and the En-
vironment, p. 780; Bagge, Coal and the Environment, p. 790.
Symposium: The Environment and the Law, 5 SUFFOLK L. REv. 737
(1971).
Symposium: Environmental Policy: Theory, Concepts and Processes,
11 NATURAL RESOURCES J. 1-518 (1971). Brown, International Law and
Marine Pollution: Radioactive Waste and "Other Hazardous Substances,"
p. 221; Gilbert and Robie, Control of Estuarine Pollution, p. 256; Goldie,
Amenities Rights-Parallelsto Pollution Taxes, p. 274; Green, Radioactive
Waste and the Environment, p. 281; Hardy, International Control of
Marine Pollution, p. 296; McGurren, The Externalties of a Torrey Canyon
Situation; An Impetus for Change in Legislation, p. 349; Updegraff, The
Economics of Sewage Disposal in a Coastal Urban Area-A Case Study of
the Monterey Peninsula, California,p. 373.
Symposium: 22 HASTINGS L. J. 467-685 (1971). Murphy, Has Nature
Any Right to Life?, p. 467; Rathje, Saving Byron's Sea: Federal and State
Regulation of Oil Pollution from Ocean Petroleum Products, p. 485;
Maloney and Ausness, A Modern Proposal for State Regulation of Con-
sumptive Uses of Water, p. 523; McIntire, Necessity in Condemnation
Cases-Who Speaks for the People?, p. 561; Kouba, Regulating Electric
Transmission Lines in California-Insulationfrom Aesthetic Shock, p. 587;
van den Bosch, Insecticides and the Law, p. 615; Montgomery, Population
Explosion and United States Law, p. 629; Stevens, Air Pollution and the
Federal System: Responses to Felt Necessities, p. 661.
Environmental Law-A Seminar, 13 N.H. B. J. 1 (1971). The article
consists of edited and summarized comments by attorneys who attended
a panel discussion on a wide variety of legal problems involving the environ-
ment. Areas covered in detail include zoning and private remedies as means
of controlling particular uses and the development of law relating specific-
ally to shorelines, saltmarshes and westlands.
Land Fill is Model for State, 13 CURRENT MUNICIPAL PROBLEMS 183
(1971). A discussion of Bartlesville's sanitary land fill which is being used
as a model for other cities across Oklahoma by the State Health Depart-
ment.
XI. ESTATES Ix LAND

The increasing interest of those involved in the joint investment in
and ownership of real estate properties in the partnership and limited
partnership field is reflected in the volume of articles in the literature sec-

tion on this subject. By statutory enactment Alabama joined the ever
growing number of states which have adopted versions of the Uniform Part-
nership and Limited Partnership Acts so as to permit organizations to
acquire and convey title to real property.
A. Legislation
Alabama
P. A. 1512: Enacts Alabama Limited Partnership Act, a modified ver-
sion of the Uniform Limited Partnership Act.
P. A. 1513: Enacts Alabama Partnership Act; provides rules for deter-
mining what is partnership property, and allows conveyance of such prop-
erty in the partnership name by any partner under certain circumstances.
Connecticut
P.A. 330: Amends 46-22(a) so that now the wife is subject to being
deprived of any real estate she may have acquired from her husband in
consideration of their marriage or of love and affection whenever her hus-
band is granted a divorce.
Florida
Ch. 71-25: Provides that a widow's right of dower will be barred unless
within three years from her husband's death she files an instrument setting
out her intention to claim dower.
Illinois
P. A. 77-1676: Provides that there is no estate of dower or curtesy.
New Hampshire
Ch. 179: Establishes statutory rights in lieu of dower and curtesy.
Adams v. Foster,466 S. W. 2d 706 (Mo., 1971).
Plaintiff petitioned to quiet title in him after the death of his alleged
wife, who was the title owner of the real estate. Plaintiff claimed title as a
survivor in tenancy by entireties. Plaintiff failed to prove that he was law-
fully married to decedent and did not establish any contract creating joint
tenancy with right of survivorship.
HELD: Since plaintiff and decedent were never lawfully married, plain-
tiff was not entitled to right of survivorship as incident of tenancy by en-
tireties, in view of the fact that tenancy by entireties can only exist between
husband and wife.
Bastians v. Bastians, 36 App. Div. 2d 1020, 321 N. Y. S. 2d 480 (1971).
In a suit brought by a wife against a husband for divorce, the husband
counterclaimed requesting the court to decree that if the divorce should be
granted it would also grant a judgment decreeing the partition and sale of
the home owned by husband and wife as tenants by entirety.
HELD: Even though a tenancy by the entirety cannot be made the

subject of an action for partition, the defendant's counterclaim is drafted
contingent upon the dissolution of the marriage, in which case ownership
of this property will be held by these parties as tenants in common. At
that time partition will lie.
LaPierrev. Kalergis, 251 So. 2d 885 (Fla., 1971).
Deed from mother and father to mother and daughter contained a
provision that "pursuant to Sec. 689.15 Florida Statutes, provision is hereby
made in this instrument expressly made for the right of survivorship be-
tween the parties." The particular statute referred to above abolished the
common law doctrine of the right of survivorship in joint tenants and pro-
vided that a conveyance to two or more shall create a tenancy in common,
unless the instrument creating the estate shall expressly provide for the
right of survivorship.
HELD: The above provision is sufficient to create a joint tenancy with
the right of survivorship between the mother and daughter and the entire
estate vested in the daughter as survivor of the joint tenancy to the exclu-
sion of the mother's second husband.
Moore v. Vines, 461 S. W. 2d 642 (Tex., 1971).
Vines and wife executed joint will leaving to Vines a life estate in
Trust "A," her separate property, subject to an oil and gas lease. Mrs.
Vines predeceased Vines. The first lease expired and production was ob-
tained under a second lease. Vines and remaindermen seek determination
of who is entitled to receive royalty.
HELD: For remaindermen. The lease in effect upon Mrs. Vines' death,
under which no production was obtained, does not "open the mine" under
the Open Mine Doctrine, and, once the lease expires, life tenant is excluded
from receiving royalties.
Initial Texas decision drawing the outside limit of the Open Mine
Doctrine.
Pietro v. Leonetti, 26 Ohio App. 2d 221, 270 N. E. 2d 660 (1971).
In January 1969, decedent and his wife acquired title to subject realty
as joint tenants with the right of survivorship. The purchase price of $27,-
900 was paid by $10,000 cash and $17,900 first mortgage. In March of
1969, the husband died. No payments on the mortgage had been made and
his will made no provision for his wife who elected to take under the
statute of descent and distribution. In July of 1969, she sold the realty and
presented a claim against the husband's estate for reimbursement for one-
half of the balance due on the mortgage.
HELD: Wife is entitled to reimbursement from the estate for the de-
ceased husband's share of the joint obligation to repay the mortgage debt.
Case of first impression in Ohio which adopts the majority view.
Aronsohn, The Real Estate Limited Partnershipand Other Joint Ven-
tures, 1 REAL ESTATE REv. 43 (No. 1-1971). The legal relationship of the
REAL PROPERTY, PROBATE AND TRUST JOURNAL [Vol 7:68
parties involved in the ownership and financing of a commercial building,

apartment house, shopping center, industrial park and the like are extreme-
ly complex and replete with traps for the unwary. The purpose of the
article is to highlight for the sophisticated reader some of the principal
problems and principal advantages to be confronted with respect to the
joint investment in and ownership of a real estate project by groups of
individuals or combination of firms. Particular emphasis is placed on the tax
implications of each organizational form. Among the various forms dis-
cussed are (1) unincorporated joint ventures; (2) corporations; (3) business
trusts; (4) tenancies in common; and (5) partnerships.
Augustine and Hrusoff, The Public Real Estate Limited Partnership,
27 Bus. LAw. 615 (1972). A modern version of an old real estate vehicle
has been evolving during the past two or three years. This vehicle, the pub-
licly held limited partnership, attempts to incorporate certain features of
equity real estate investment trusts into the limited partnership framework.
The objective is a limited partnership designed to purchase a diversified
portfolio of real estate. The authors believe that limited partnerships of
this nature have certain advantages over real estate investment trusts with
similar aims. The partners receive the benefit of depreciation-occasioned
losses; the partnership need not distribute any given portion of its income
(thereby providing a source of reinvestment capital); it may invest a sub-
stantial portion of the partnership assets in unimproved property and need
not hold any portion of its property for any specified period in excess of
six months in order for the partners to receive capital gains treatment. It
is the authors' belief that the most appealing feature is that promoters
still maintain flexibility in the method by which they realize their profit
as contrasted with REIT promoters who are denied these privileges.
Fratcher, The Missouri Entail Statute Should Be Revised, 47 Mo. B. J.
69 (1971). While the author believes that the result reached in Moore v.
Moore, 329 S. W. 2d 742 (Mo. 1959) appears to be a logical one, neverthe-
less, he is of the opinion that the history of entail raises doubts as to its
soundness. Further, the decision makes questionable, as a matter of social
policy, the desirability of the rule which that case established.
Mintz, Real Estate Ventures Via Partnershipsin Commendum, 29 LA.
B. J. 29 (1971). Author compares the use of partnership in commendum to
the use of the corporate structure as a mechanism of joint investment.
Quilliam, Gratuitous Transfers of Community Property to Third Per-
sons, 2 TEx. TEcH. L. REv. 23 (1970). In view of the statutory changes
affecting gratuitous transfers of community property, and in light of im-
portant case law developments in the area during the last decade, the
author believes that a new look at the power of each spouse to dispose
gratuitously of the common property to third persons is in order.
Sonfield, The Texas Limited Partnershipas a Vehicle for Real Estate
Investment, 3 ST. MARY'S L. J. 13 (1971). The author agrees that there is a
place in real estate investments for the small investor through group par-
ticipation such as joint ventures, syndications and limited partnerships.
The article is an analysis of the syndication and the selection of the appro-
priate legal form.
Yiannopoulos, Standing Crops: Movables or Immovables? 17 LOYOLA L.

REv. 323 (1970-71). A discussion of the circumstances in which crops and
fruits of trees are regarded as immovable property and those in which they
are regarded as movable property.
Article 667-Sic Utere in Louisiana, 17 LOYOLA L. Ryv. 403 (1970-71).
Liability upon neighboring estate owners who inflict damage upon neigh-
borhood estates under the sic utere doctrine of Article 667 of the Louisiana
Civil Code.
XII. FrxTutus-U.C.C.
A. Legislation
North Dakota
Ch. 428: Amends subsection 5 or 41-09-34 by establishing rules of
priority between commercial code security interests and a "real estate
interest."
Braucher, Coogan, Davenport, Gilmore and Kripke, A Look at the
Work of the Article 9 Review Committee-A Panel Discussion, 26 Bus. LAW.
307 (1970).
Funk, The Proposed Revision of Article 9 of the Uniform Commercial
Code, 26 Bus. LAW. 1465 (1971). This article endeavors to set forth a brief
and simple explanation of the changes which have been proposed by the
review committee up to the present time and their effect upon the parties
to the secured transactions. Suggested changes in the law of fixtures are
discussed in some depth as well as changes in construction mortgages, pur-
chase money requirements and filing provisions.
Kennedy, Secured Transactions, 26 Bus. LAW. 1211 (1971). A review
of some of the reported cases of the past year involving secured transactions
under Article 9 of the Uniform Commercial Code.
Kenoe, Land Trust Financing and the Uniform Commercial Code, 52
CHI. B. Ric. 419 (1971). Financing statement, security agreement and other
requirements.
Skopil, Lease or Sale under UCC Sec. 1-201(37), 37 WILLAMETrE L. J.
96 (1971). This article deals with the application of section 1-201(37) of
the UCC and its Oregon statutory counterpart to chattel leases. The
change which the authors of the Code made in pre-code law in recognizing
that some leases are intended as security agreements is examined by dis-
cussing the code and the court established criteria applicable to questionable
chattel leases.
XIII. FuTupm INTERESTS

A. Significant Decisions
Ball v. Hall, 274 A. 2d 516 (Vt., 1971).
In 1879 the grantor conveyed a parcel of land to the town on condition
that if the town should ever use it for any other purpose than a high school,
it should revert to her heirs. The town built upon it and operated a high
school until 1966, then leased it to the school district for use as an elemen-
tary school. The Court of Chancery decreed a reversion of the land.
HELD: The buildings and other improvements did not revert with
the land.
Fratcher, The Islanic Wakf, 36 Mo. L. REv. 153 (1971). A study of a
legal device which resembles a perpetual trust of land including a capsule
history of the development of the English law restricting restraints on alien-
ation and perpetuities in land.
Logan, Oklahoma Perpetuities and Such, 7 TULSA L. J. 5 (1971). The
common law rule against perpetuities in Oklahoma; duration of trusts;
fetters on alienation. (See 42 OKLA. B. A. J. 1095 (1971) for author's errata
sheet for the above article.)
Powell, The Rule Against Perpetuities and Spendthrift Trusts in New
York: Comments and Suggestions, 71 COLUM. L. REV. 688 (1971). Two
aspects of the problem of how far it is socially desirable to permit one who
has accumulated wealth to use or to dispose of his property exactly as he
chooses are discussed in this article. The first one discussed is how far is
there social justification for the setting of a limit on the projection on a
disposer's desires into the future, as is done by a rule against perpetuities
in the form now had by New York? Second, how sound, socially, is the
spendthrift trust concept embodied in the present statutes and decisions
of New York?
XIV. HOUSING CODES
A. Legislation
Connecticut
P. A. 193: Amends 1-19 by providing that the so-called "right to know"
law shall extend to all investigation records with regard to tenement, lodg-
ing or boarding houses when these records have been made by a municipal
building department or a housing code inspection department, local or
district health department, and giving every resident of the state the right to
inspect and make copies of all such investigation records.
P. A. 413: Amends 19-347(r) by exempting from the certificate of oc-
cupancy statutes apartment houses and buildings owned by a housing au-
thority and constructed or altered pursuant to contracts with the federal
government or the State of Connecticut which provide for annual contribu-
tions or other financial assistance.
Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of
Housing Codes, Housing Subsidies and Income DistributionPolicy, 80 YALE
L. J. 1093 (1971). Looks at the possibility that strict housing code enforce-
ment can bring about decent housing and at the same time redistribute
income from the landlord class to the generally poorer tenant class. Also
compares the code enforcement method of achieving such goals to other
methods such as the negative income tax scheme.
Graft, Compulsory Home Repairs Laws, 20 CLEVE. ST. L. REv. 260

(1971). Discusses sources of authority for municipality to establish and en-
force minimum standards of health and safety in housing.
Greenstein, Federally Assisted Code Enforcement: Problems and Ap-
proaches, 3 URBAN LAW. 629 (1971). FACE stands not only for words "Fed-
erally Assisted Code Enforcement" but it also represents an attempt to re-
spond to the most critical problem of housing code enforcement: the
economic difficulty of rehabilitating deteriorating housing. The article is an
attempt to raise some of the more important issues that arise in the planning
and administration of a FACE project, particularly the latter, and to analyze
them from the viewpoint of an attorney on the project's staff. Within the
past ten years many of the legal precedents built up over a period of several
hunderd years and running in favor of the landlord have been reversed.
The author believes that it has never been proven that a shift in the law
toward a posture more favorable to tenants would necessarily improve the
living conditions of low-income tenants or have a favorable, if any, impact
on the housing market generally. Such changes in the law of landlord and
tenant appear to have coincided with severe deterioration in housing mar-
kets, particularly in low-income housing markets. This article endeavors
to evaluate the cost of specific law reform efforts and the effect of some of
those law reforms on existing low-income housing markets.
Mandelker, The Local Community's Stake in Code Enforcement, 3
URBAN LAW. 601 (1971). The author believes that the dilemma of strategy
and that of technique in housing code strategies at the local level is inter-
fering with and impeding the implementation of a housing program.
Nelson, Building, Health and Housing Code Inspection in Missouri-
A Need for Legislation, 27 Mo. B. J. 572 (1971). The principal purpose of
this article is to explain the current state of the law, statutory and constitu-
tional, as to the right of entry for inspection and hopefully to demonstrate
the need for legislation in Missouri to increase in a limited way the inspec-
tion powers of those enforcing the various housing codes.
Roberts, The Demise of Property Law, 57 CORNELL L. REV. 1 (1971).
A discussion of the erosion of property law by the onslaught of social forces,
i.e., slumlords, planning, zoning, building code ordinances, all of which
reduce the control of the landowner over his realty.
Sussna, Building Codes and Housing, 45 CONN. B. J. 401 (1971). This
article discusses some ways of improving building codes and their adminis-
tration which the author believes would result in important innovations
and cost decreases in the home building industry.
Housing Code Enforcement, ABA National Institute, 3 URBAN LAW. 525
(1971). Gribot, Housing Code Enforcement in 1970-An Overview, p. 525;
Grigsby, Economic Aspects of Housing Code Enforcement, p. 533; Gilhool,
Social Aspects of Housing Code Enforcement, p. 546; Lieberman, The Ad-
ministrative Process-Housing Code Enforcement, p. 551; Moses, The En-
forcement Process-Housing Codes, p. 559; Curry, The Federal Role in
Housing Code Enforcement, p. 567; Alpern, The Judicial Process in Hous-
ing Code Enforcement, p. 574; Grad, New Sanctions and Remedies in
Housing Code Enforcement, p. 557.
XV. LANDLORD AND TENANT

Legislatures continue to move into the landlord and tenant field to
alleviate or at least soften the effects of some of the ancient common law
principles. The states of California, Illinois, Minnesota and New Jersey
enacted statutes dealing with security deposits. Statutes in Connecticut,
Maine and Minnesota prohibited retaliatory evictions. Maine and Minne-
sota passed statutes providing for implied covenants of habitability, while
a Massachusetts statute limited the operation of and made tax escalation
clauses void unless certain conditions are met.
A New Jersey decision, in holding an apartment building swimming
pool for tenants could be considered a "public pool" within the meaning
of a New Jersey statute, reflects the changing responsibility of a landlord
in modem society. This type of judicial reasoning continues the develop-
ment by the judiciary of a body of case law which makes the landlord
responsible for the security of tenants even from criminal acts by third
parties. A District of Columbia case held that the constitution protected a
tenant in a summary eviction case in his right to a trial by jury.
The decisions involving shopping center lease covenants which pro-
hibit the landlord from leasing any other space to a competing business
appear to be the forerunner of increasing litigation over such clauses in
view of the tremendous increase in shopping center construction. These
cases reflect the fact that the interpretation of any such clause is basically
a question of fact. Therefore, draftsmen should be aware of the need for
exactness of language whenever possible.
The literature reflects what might aptly be termed the legislative and
judicial "agitation" in this field. Eviction, retaliatory rent increases, tenant
unions, model landlord and tenant code, implied covenants, proposed uni-
form landlord and tenant relationship acts are all discussed in lengthy
articles.
A. Legislation
California
Ch. 649: Amends Civil Code 789.5 by providing that a mobile home
tenancy may be terminated for the following reasons: (1) failure of tenant
to comply with state and local laws, ordinances and regulations; (2) con-
duct of tenant constituting annoyance to other tenants or interfering with
mobilehome park management; (3) failure of tenant to comply with rules
established by management at inception of tenancy or upon six months'
written notice; (4) nonpayment of rent or other charges; (5) condemnation
of park. Management may not prohibit meetings of residents if held at
reasonable hours in park community or recreation hall, and must specify in
notice required by section the reason for termination.
Colorado
Ch. 143: Requires landlord to return security deposit to tenant within
limited time after end of lease, and provides that if any part of deposit is
retained, written statement of exact reasons must be provided. Sanctions
include treble damages and attorney's fees in event of willful retention of

deposit in violation of statute. Prohibits contractual waiver of provisions
beneficial to tenant.
Connecticut
P. A. 12: Amends the summary process statute by providing that when-
ever a member or a shareholder of a cooperative housing corporation oc-
cupies a dwelling unit pursuant to an agreement of occupancy, even
though not designated as a lease, the corporation shall have the legal
remedy of summary process against such occupant.
P. A. 478: Modifies 7-148(b) by bringing under the control of the Fair
Rent Commission mobile homes and mobile home parks except those
rented on a seasonal basis.
P. A. 814: Authorizes welfare commissioner to establish, maintain
and operate buildings to be used as temporary dwellings for the temporary
housing of welfare recipients who have been dispossessed by eviction pro-
ceedings.
P. A. 858: Prohibits retaliatory rent increases and eviction proceedings
whenever the tenant has in good faith attempted to remedy by any lawful
means any condition which constitutes a violation of the tenement and
lodging houses or the municipality's housing or health ordinances.
Illinois
P. A. 77-705: Provides that a lessor of residential real property, con-
taining 25 or more units, who receives a security deposit shall pay interest
to the lessee from date of the deposit at the rate of 4 per cent on any
such deposit held by the lessor for more than six months. The lessor must
pay the lessee, within 30 days after the end of each 12 month rental period,
any such interest either by cash or by credit applied to rent. The act does
not apply to any deposit made with respect to public housing nor to a
lessor in a municipality having fewer than 500,000 inhabitants.
Maine
Ch. 270: Provides that, in any written or oral lease for the rental of a
dwelling intended for human habitation, the landlord shall be deemed to
warrant that such dwelling is fit for human habitation. If not fit for human
habitation, a tenant may rescind the rental contract and recover a just
portion of the rent, provided he gives the landlord seven days' written
notice prior to the rescission.
Ch. 322: Amends 14 MRSA 6001 to provide that when a tenant within
the past six months has complained about some condition affecting his
dwelling unit, any forcible entry and detainer action will be presumed to
have been commenced as a retaliatory measure.
Massachusetts
Ch. 93A: Amends Consumer Protection Act to include leases. Private
persons are given standing to sue in equity in superior court for violations.
Ch. 186: Provides that tax escalation clauses in leases shall be void
unless meeting certain conditions. Requires that the clause expressly state
that the lessee not be forced to pay a greater amount than his proportionate
share of such increase in tax, that his exact percentage of such increase be
stated, and that he is entitled to a proportionate share of any tax abatement,
less reasonable attorney's fees.
Minnesota
Ch. 219: Creates the following covenants in all leases of residential
property: that the premises and common areas are fit for the use intended
by the parties; to keep the premises in reasonable repair; and to maintain
the premises in compliance with all health and building codes.
Ch. 240: Provides that it is a defense to an eviction action that the
termination of a tenancy was intended as a penalty for an attempt to en-
force any right under the lease or reporting the violation of a health, safety,
housing or building code. If the notice to quit was served within 90 days of
any act of the tenant noted above, the burden of proving the notice to quit
was not served for retaliatory purpose is on the plaintiff. In any proceeding
for the restitution of premises upon the ground of nonpayment of rent, it
is a defense if the tenant establishes that the rent was increased or services
decreased as a penalty for a lawful act of the tenant, provided the tenant
tenders to the court or the owner the original amount of the rent payable.
Ch. 784: Requires prompt return of any security deposit taken in the
rental of residential property or the giving, within 31 days, of a written
statement showing the reason for withholding the security deposit or any
portion thereof. In any action in which a damage deposit has been wrong-
fully withheld and no written statement is provided, the court may award
attorney's fees.
Missouri
Ch1. 441.520: Provides for the enforcement of minimum housing code.
New Jersey
Ch. 223: Amends the act respecting deposits to be made as security
under leases to require that the deposit shall be made in a banking institu-
tion or a savings and loan association in an account bearing interest at the
current rate of interest, and provides that the interest shall belong to the
tenant less a sum equivalent to one per cent per annum to be paid to the
landlord for administrative expenses. Applies to all rental premises or units
used for dwelling purposes except owner-occupied premises with not more
than two rental units.
Ch. 224: Authorizes a proceeding to be instituted for a judgment di-
recting that rents be paid into court and to be used for the purpose of
remedying conditions in substantial violations of standards of fitness for
human habitation and sets forth the procedure for such relief.
Ch. 227: Amends act relating to unlawful entry and detainer of real
estate to provide that in respect to real property occupied solely as a
residence by the party in possession, no entry may be made in any manner
without the consent of the party in possession.
Ch. 228: Abolishes the distraint for rent owed on a lease for the occupa-
tion of any real property solely as the residence of the tenant.
Spring 1972) REAL PROPERTY LAW, SURVEY
New York
Ch. 371: (i) Extends rent controls to June, 1973; (ii) increases the rate
of return allowed to landlords, (iii) eliminates rent controls from vacated
accommodations (formerly applicable only to one and two family dwell-
ings) provided that the tenant is not harassed into vacating by interference
with his comfort, repose, quiet or peace, and (iv) permits tenant to bring
civil action for treble damages and attorney's fees if he is forced to vacate
because of such harassment.
Ch. 374: Permits the local governing body to order the decontrol of
all rents to be effective two years after such order or prior thereto upon
execution or tender by landlord to tenant of a lease giving tenant same
terms as he has under his controlled tenancy.
South Carolina
P. A. 531: Taxes leasehold estate for 99 years or more to lessee with
property valued annually at full value of land.
Anderson v. Blondo Plaza, Inc., 186 N.W. 2d 114 (Neb. 1971).
Shopping center owner rented a store for use as a retail bakery, donut
shop and snack bar. The lease contained a covenant whereby the owner
agreed not to rent any store within a stated distance for a similar opera-
tion. The store immediately adjoining was then vacant, although it had
been previously occupied as a restaurant. After the tenant of the bakery
moved in he requested and was given permission to sell sandwiches, ham-
burgers, French fries, fish, chicken dinners, shrimp, scallops and ice cream.
Up to that time the adjoining store had not yet been re-rented. Subsequently
this store was rented for the purpose of conducting a Mexican-type rest-
aurant.
HELD: The subsequent lease was a violation of the landlord's restric-
tive covenant.
Bonan v. Sarni Original Dry Cleaners, Inc., 268 N. E. 2d 366 (Mass.
1971).
HELD: Clause in shopping center lease requiring tenant to maintain
"sufficient, modern and efficient equipment," and one that prohibited ob-
jectionable noise which may disturb other tenants or passer-by must be
reconciled and since modern and efficient equipment cannot be noiseless,
the landlord is not entitled to an injunction. Court was influenced because
some of noise resulted from poor construction of building.
Carousel Snack Bars v. Crown Construction Co. 439 F. 2d 280 (3rd
Cir. 1971).
Shopping center landlord rented space to a lessee to be used as a
stand-up type snack bar selling popcorn, candy, soft ice cream, hot dogs.
The lease contained a restrictive covenant prohibiting the landlord from
leasing any other space to a competing business. Subsequently, the landlord
leased a portion of the center to a conventional restaurant and cafeteria.
The first lessee sued for an injunction.
REAL PROPERTY, PROBATE AND TRUST JOURNAL [V/ol. 7:8
HELD: Injunction denied even though it was determined that 30

per cent of the business of the second tenant overlapped that of the first
tenant. Since the overlapping of business did not constitute more than
50 per cent, no injunction would be issued. There is a difference between
soft ice cream and hard ice cream and since the second tenant only sold
hard ice cream this conclusion prevented a finding of the required 50 per
cent overlapping of business.
Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary

District,266 N. E. 2d 405 (Ill. 1970).
A lease for a term of 99 years was entered into in 1952 between de-
fendent-lessor (a municipal corporation) and International Harvester Com-
pany, as lessee. The lease contained a provision that lessee could sublet the
premises if it obtained the lessor's consent "which consent shall not be un-
reasonably withheld by the lessor." In 1961 the lessee assigned its interest
in the lease to Chanslor-Western Oil Company with the consent of the
municipality. In 1963 the municipality adopted the rule that it would not
consent to the transfer of the lease "until the land was reappraised and a
new and realistic schedule of rent payments is established." From a judg-
ment in favor of plaintiff-sublessee, the municipality appealed.
HELD: Affirmed. The standard to be applied is the action of a reason-
able man in landlord's position. Provision against subletting is to be most
strongly construed against the lessor municipality. Defendant lessor's with-
holding of consent to assignment on condition of reappraisal and establish-
ment of a new rent schedule was arbitrary.
Case of first impression as to reasonableness of withholding of land-
lord's consent under the facts stated.
Coach House of Ward Parkway v. Ward Parkway Shops, 471 S. W. 2d

464 (Mo. 1971).
Lessee brought action for damages consisting of loss of profits resulting
from breach of lease covenant whereby lessor agreed not to lease or permit
use of premises within specified area of shopping center to others "as a
store handling female sportswear as a principal part of its business" as did
lessee. Trial court sustained lessor's motion for directed verdict at conclusion
of lessee's evidence, and lessee appealed.
HELD: Lessee whose witnesses testified that merchandise offered for
sale in shop located within area proscribed by lease and approximately 130
feet from lessee's premises was almost the same as that offered by lessee
presented evidence sufficient to make prima facie case.
Case reflects modern trend to enforce covenants in leases in order to
protect the operation of stores in a comprehensive shopping center to
achieve profits without undue competition of a directly competing enter-
prise.
Coffin v. Fowler, 483 P. 2d 693 (Alaska 1971).
Action by landlord against tenants for damages allegedly arising from
breach of lease-purchase agreement by the tenants. Lessees abandoned
premises due to deteriorated business conditions. The superior court en-
tered judgment for plaintiffs and defendants appealed. One claim of error
was that landlord failed to mitigate damages by not promptly seeking other
paying tenants after lessees abandoned the premises.
HELD: Affirmed.
The Superior Court, while recognizing there is a split of authority,
did not find this a propitious case for settling the issue by imposing the duty
to mitigate yet it intimated that absent reasonableactions on the part of the
nonbreachingparty it might do so.
Edwards v. Investment Company, 27 Ohio Misc. 57, 272 N. E. 2d 652
(1971).
While tenant, who was one month deliquent in rent, was absent land-
lord entered and changed door locks. Tenant was refused access to remove
personal property. Several months later, tenant was permitted to remove
goods from a garage where goods had been stored. Tenant discovered most
of his goods were missing or damaged and brought suit. Landlord claimed
that where tenant is deliquent in rent landlord may without notice or de-
mand terminate the lease and remove, store or dispose of tenant's goods
at the risk and expense of the tenant. Landlord further claimed the goods
had been abandoned by the tenant.
HELD: Tenant had not voluntarily or intentionally abandoned his
goods. A provision in a lease that, if tenant fails to pay rent when due or is
in default of any other provision, landlord may without notice or demand
terminate the lease, remove, store or dispose of tenant's property at the
risk and expense of tenant is void and unenforceable as against public
policy and landlord must resort to remedies of law for dispossessing a tenant.
This case was decided by a lower court and the Supreme Court of Ohio
has not had an opportunity to rule on this matter since 1862. Since that time
there has been a shift from a rural to an urban society with a significant
portion of that urban society residing in apartments.
Gray v. Whitmore, 94 Cal. Rptr. 904 (1971).
Tenant brought action against landlord for conversion and refusal to
surrender property owned by the tenant which remained on the property
after the landlord obtained restitution of the property.
HELD: California statutory provisions providing for redemption of
evicted tenant's personal property within 30 days after landlord has been
restored to possession by payment of judgment for rents and damages
in unlawful detainer action and providing for application of proceeds from
sale of tenant's property to satisfy judgment, if property is not redeemed
within 30 days, violates rights to substantive due process, procedural due
process and equal protection of laws.
Hamel v. Altman, 36 App. Div. 2d 521, 317 N.Y.S. 2d 722 (1971).
The defendant had occupied the store in which business was conducted
for 15 years. He had an option to renew for five additional years pro-
vided that notice of exercise of that option "be given" to the plaintiff land-
lord "in writing on or before March 31, 1969." The defendant mailed a
letter signifying intent to renew on March 28, 1971. The letter was never
delivered and on May 5 the plaintiff requested permission to post signs
indicating the premises were "For Rent." A second letter to the plaintiff on
May 6 was rejected as untimely although the lease still had two months to
run.
HELD: Even if reliance on mails could be characterized as fault, it
was "excusable fault" and tenant who had timely mailed letter making
known his desire to renew five-year lease for store building in which it had
conducted its retail business for more than 15 years would not be deprived
of valuable assets by failure of post office to deliver letter where landlord
did not suffer any damage or prejudice because of delay.
Hartwig v. 65 Realty Co., 324 N. Y. S. 2d 567 (Sup. Ct. 1971).

A lease of premises in a building under construction contained a clause
providing that the lessor was subject to no liability for failure to give
possession. The building was not completed and a certificate of occupancy
was not issued until more than eight months after the beginning of the
lessee's term. The lessee as a result elected to rescind the lease, rather than
take possession at that late date, and sued the lessor for a sum representing
a month's rent and the security deposit which the lessee had paid when the
lease was executed. The landlord defended on the basis that the lease con-
tained an exculpatory clause which excused him from liability for failure
to give possession due to the noncompletion of the building.
HELD: The lessee had the right to rescind the lease. A reasonable
rather than arbitrary interpretation must be given the exculpatory clause.
Therefore, implicit in the clause was a promise to deliver possession, if not
at the beginning of the term, then within a reasonable time thereafter. Since
more than eight months had elapsed from the occupancy date fixed by the
lease and one-fifth of the demised term had expired when possession was
offered him, the lessee was justified in rescinding and pursuing his appro-
priate remedies.
Howard Stores Corp. v. Robinson Rayon Co., 36 App. Div. 2d 911, 320
N. Y. S. 2d 861, aff'g 315 N. Y. S. 2d 720 (Sup. Ct.), aJ'g 307 N. Y. S. 2d 491
(Civ. Ct. 1970).
An assignee of a lease, with a termination date of May, 1970, defaulted
in the rent payment of May 1, 1969. Thereupon, the landlord proceeded
to dispossess the assignee for nonpayment of rent and the landlord was re-
stored to possession on July 8, 1969. By the terms of the lease the ouster
of the assignee did not terminate the lease. The original tenant, when he
paid the July 1, 1969 rent, requested possession of the premises from the
landlord. The landlord not only refused the tenant's request but insisted
that he would have to pay the rent for the remainder of the term. The
tenant claimed that the landlord's refusal to put him into possession when
he was willing to perform the lease constituted a breach of the covenant of
quiet enjoyment, resulting in an eviction releasing him of his obligation
to pay any rent. Action was brought by the landlord to recover rent.
HELD: While an assignment of the lease by a tenant divests him of the
leasehold estate, including any right to possession, it does not serve to re-
lieve him of his contractual obligation predicated on his covenant to pay
rent for the duration of the term or until the lease is sooner terminated.
Therefore, when the landlord ousted the tenant's assignee without terminat-
ing the lease, the landlord may refuse the tenant possession and, at the
same time, recover rent from him.
Leary v. Lawrence Sales Corp. 442 Pa. 389 (1971).
The defendant owned and operated a farmers' market. Several por-
tions of the interior of the market premises were leased to various entities
for conducting retail business enterprises, one of which was Shopping Cart
Inc., which operated a grocery store. The lease between the defendant and
Shopping Cart provided that the landlord retain possession and control of
the common passageways and aisles. The plaintiff fell in the aisle after
slipping on a partially eaten hot dog. The aisle provided access not only to
the grocery store but to other businesses operated throughout the market.
HELD: Where the owner of real estate leases various parts thereof to
tenants but retains possession and control of the common passageways and
aisles, the owner has the obligation of keeping the common aisles for the
business invitees of the tenants unless there is a contrary provision in the lease.
Levine v. Shell Oil Co., 269 N. E. 2d 799 (N. Y. 1971).
Shell leased a service station to a tenant. One of the tenant's employees
was injured when a defective gas heater on the premises exploded as a
result of Shell's negligence. The employee recovered a judgment against Shell
for personal injuries. Shell then brought this action for indemnification by
the tenant because of a clause in the lease whereby the tenant agreed to
indemnify Shell against "any and all claims" for personal injury or prop-
erty damage caused by a defect in the leased premises.
HELD: Even though the indemnification clause did not expressly refer
to liability resulting from the lessor's negligence, the lessor was entitled to
indemnification, overruling earlier decisions which construed such a clause
as excluding indemnification for negligence.
Lloyd Corp. v. O'Connor, 479 P. 2d 744 (Ore. 1971).
The defendant was one of 17 individuals who had guaranteed a
lease for a Japanese-type restaurant. The guarantors were the promoters
of the enterprise and each received stock in the corporation as consideration
for his guaranty. The guaranty was the type where the obligation of the
guarantors was prorated among them all and the particular defendant
guaranteed an amount equal to 5.88 per cent of rents and charges. After
the tenant was evicted by the landlord for nonpayment of rent an action
was brought for damages for loss of rent, etc. All of the 17 guarantors
except this one defendant paid under the terms of the guaranty. He con-
tended that he should be released because subsequent to the execution of
the lease and during the term of the tenant's occupancy, the lease was
amended by deleting a provision to the effect that the store was to be used
as a Japanese-type restaurant and that no American food was to be offered
for sale. At the request of the corporate tenant, the landlord removed this
prohibition from the lease so that thereafter the tenant could serve any
kind of food.
HELD: A surety is discharged only if there is a modification of the
basic agreement which materially increases the risk of a guarantor. Even
though this defendant did not consent to the change and even though it
was of a major nature, nevertheless, it would not discharge him since it
was not found that the alterations had materially increased his risk as a
guarantor.
McCutcheon.v. United Homes Corp., 486 P. 2d 1093 (Wash. 1971).

HELD: Public policy would prevent the lessor of a residential unit
within a family dwelling complex from exculpating itself from liability
from personal injury sustained by a tenant and resulting from the lessor's
own negligence in maintenance of approaches, common passageways, stair-
ways and other areas under the lessor's dominion and control but available
for the tenant's use.
Millison v. Ades of Lexington, 277 A. 2d 579 (Md. 1971).

Tenant leased premises in a shopping center for the purpose of conduct-
ing a retail business. The landlord failed to maintain the roof in good re-
pair although the lease required him to do so. As a result, the roof leaked
and the tenant's stock-in-trade suffered water damage on a number of oc-
casions.
HELD: On the issue as to the proper measure of damages for loss of
stock-in-trade, the retail selling price is not the proper measure of damages
but the cost of replacing the goods on the shelf. This would include, but
would not necessarily be limited to, the recovery of the following items:
(1) wholesale cost of the goods at the time of injury; (2) cost of transporting
replacement goods from the wholesaler to the tenant's premises; (3) cost of
the labor needed to place the new goods on the shelf and (4) cost of the
labor needed to tabulate the tenant's losses and remove the damaged goods.
From the above there should be subtracted (1) depreciation in the value of
any of the damaged goods which had been on the shelf a long time and
(2) net salvage value of the damaged goods.
Nebaco, Inc. v. Riverview Realty Co., 482 P. 2d 305 (Nev. 1971).

A national bank, through a subsidiary, executed a long-term lease of
land which it intended to develop. The lease contained a provision that
permitted the bank to rescind if it were unable to procure financing for con-
struction of improvements. Though nothing was said as to the cost or type
of improvements which were to be made the bank decided to construct a
$4-5 million office building. However, it was unable to secure the approval
of the regional administrator of national banks, as was required for an in-
vestment of that particular size. The bank then notified the landlord that
it was rescinding the lease because it could not obtain financing for a multi-
million dollar improvement due to the regional administrator's nonap-
proval. The landlord sued for a determination that the lease remained in
effect.
HELD: The inability to obtain financing is not the same as inability
to get permission from a regulatory agency. As a result, the clause which
gave the bank the right to rescind if unable to secure financing did not
permit rescission for the inability to secure administrative approval. There-
fore, even though the lack of administrative approval prevented the bank
from developing the land in the way it wanted, nevertheless, the bank
could not terminate the lease. Absent an express provision in the lease
to the contrary, one who leases premises, intending a use for which govern-
mental approval is necessary, assumes the duty of obtaining such approval
and the risk of its refusal.
New Rochelle Mall v. Docktor Pet Centers Realty, 317 N. Y. S. 2d 404
(Sup. Ct. 1970).
When the landlord brought this suit to collect rent and common
area charges, the tenant, who had vacated the premises, justified his action
because of the landlord's failure to provide protection against rioting. The
tenant alleged that the landlord had at one time provided security person-
nel but then discontinued doing so.
HELD: This factor was insufficient to create an obligation if one did
not already exist. The rioting did not substantially bar the use of the leased
premises by this tenant.
Playmate Club Inc. v. Country Clubs Inc. 462 S. W. 2d 289 (Tenn.
1970).
A lease clause granted the tenant an option to renew for an additional
term, with the understanding that "the amount of rental during such re-
newal period will be set by agreement of the parties."
HELD: Although the numerical majority of states hold such a renewal
clause to be void for uncertainty, the amount of the rental is not crucial but
is "ancillary to the primary contract." Renewal options are for the benefit of
the tenant, and the landlord is normally the one who drafts lease agree-
ments. Therefore, the tenant should not be penalized by an ambiguity.
Raponotti v. Burnt-Mil Arms, Inc., 273 A.2d 372 (N.J. 1971).
Owner of an apartment building provided a swimming pool for the
tenants without additional charge. No lifeguard or safety equipment was
provided and a sign stated "private" and "swim at your own risk." One
of the tenants had a pool party with outside guests with the owner's permis-
sion. One of the guests drowned.
HELD: The pool was operated "indirectly" for profit and was "a public
pool" within the meaning of the New Jersey statute even though the general
public was excluded. Consequently, the jury should have been charged that
they could infer negligence from a violation of the statute.
A similar statute in California has been interpreted in the same man-
ner. See Lucas v. Hesperia Golf and Country Club, 63 Cal. Rptr. 189 (1967).
Richland-Lexington Airport Districtv. VIP Aviation of Columbia, Inc.,
183 S.E. 2d 448 (S.C. 1971).
Action to recover rent alleged due by reason of lease and concession
agreement. Lease contained a provision that lessor would not grant more
favorable terms to any other fixed based operator in setting fuel flowage
fees.
HELD: Lessor's suit is not barred on theory that lessor had violated
the aforesaid provision where defendant lessee was made general fixed
based operator and other lessees were made limting fixed based operators.
Riley v. Nelson, 183 S. E. 2d 328 (S. C. 1971).

Landlord commenced eviction proceedings for nonpayment of rent.
Defendants claimed violation of the Minimum Housing Code.
HELD: Where housing code was adopted and alleged violations oc-
curred after inception of tenancies, violations did not absolve tenants of
obligation to pay rent.
Apparently a case of first impression raising the question that tenants
were relieved of the obligation of paying rent as long as violations of the
housing code existed.
Schweiger v. Superior Court, 476 P. 2d 97 (Cal. 1970).
As soon as a month-to-month tenant sent a notice to repair, the land-
lord responded by increasing the rent.
HELD: While the California Civil Code contains a section which
permits unrestricted rent increases, the so-called "repair-and-deduct statute,"
requiring the lessor of a residential building to keep it in repair, controlled
the situation and if the landlord were permitted to increase the rent under
these facts this type of statute would be frustrated.
Since this decision, the California legislature has amended the statute
to prohibit retaliatory action by the tenant, when the tenant exercises his
statutory rights.
Strauch v. Charles Apartments, 273 N. E. 2d 19 (Ill. 1971).
Action by tenant against landlord for injuries sustained because of
negligence in carelessly shoveling snow in common parking area of apart-
ment building and for failure to warn tenants of unsafe accumulation of
snow. Apartment lease contained a clause relieving landlord from liability
for negligence resulting in injuries to tenant upon the leased premises.
One of the issues raised by pleadings was whether the disparity of bargain-
ing power between tenant and landlord made such exculpatory clause void
as against public policy.
HELD: The question of whether there was such a disparity in bargain-
ing power as to render the exculpatory clause void was a question of fact
which should have been determined by a jury.
Court cites several Illinois cases in support of proposition that such
disparity of bargaining power may void an exculpatory clause.
Swisscraft Novelty Co. v. Alad Realty Corp., 113 N.J. Super. 416, 274
A. 2d 59 (1971).
Action by tenant to recover from landlord for losses sustained from
water damage to merchandise.
HELD: The landlord's alleged violation of municipal building or-
dinance, which required buildings to be roofed in such manner as to prop-
erly shed water, did not render landlord's exculpatory and indemnificatory
rights under lease ineffective where lease did not have as its direct object or
purpose a violation of building code or laws or regulations. Tenant was
entitled to amend complaint and pre-trial order to assert new cause of action
for gross negligence and for willful and wanton misconduct with respect to
damages sustained after landlord had been given notice of earlier loss due
to water damage.
3088 Steinway Street Inc. v. Bohack, 319 N. Y. S. 2d 680 (Civ. Ct. 1971).
A lease contained a clause requiring the particular premises to be
used only as a "super market with the right to sell all products now or
hereafter sold in chain supermarkets." The lessee chain supermarket closed
its store and assigned its lease to a clothing store. The landlord sued to
evict the subtenant.
HELD: The only issue was the definition of "supermarket." The five
principal characteristics of a modern supermarket are its large size, the sale
of many nonfood items, the self-service system for shoppers, the cash and
carry sales, and the sale of a wide variety of foods. Even though the clothing
store might have satisfied four of these characteristics, it clearly did not
satisfy the fifth, i.e., the sale of a wide variety of foods. If the fifth character-
istic were ignored it would eliminate any distinction between a supermarket
and a department store. (While the court issued a judgment of eviction it
stayed the same for six months, to be vacated if in that time the premises
were reconveyed to a supermarket.)
Townsend v. Singleton, 183 S. E. 2d 843 (S. C. 1971).
Parties had entered into a lease agreement for a specified period. Upon
its expiration, lessee continued in possession on a month to month basis by
oral agreement. The written lease agreement had contained a clause rela-
tive to waste material and the removal thereof by lessee. Landlord sued for
breach of contract and lease agreement seeking recovery of rent in arrears
and damages to leased premises.
HELD: Since lessee was a tenant at will and not a holdover tenant, he
was not bound by the terms of the prior lease and was liable only for
reasonable rent for the premises. Tenant was not liable for costs for removal
of waste materials when there was no evidence fixing cost of removal and
no evidence that landlord incurred any debts for that purpose.
Uricolo v. Evans, 40 U.S.L.W. (D. C. Super. Ct. 1971).
Issue raised was whether a trial by jury is guaranteed a tenant in
summary proceedings by Article Seventh of the United States Constitution
which provides that "In suits at common law, where the value in controversy
shall exceed $20, the right of trial by jury shall be preserved."
HELD: A summary proceeding to recover possession of land is but a
species of the common law action of ejectment. Ejectment was an action-at-
law triable by jury. The statute providing for summary proceedings does
not create a new kind of action but merely adds to or modifies the common-
law action and, therefore, the right of jury trial remains.
Williams v. Joyce, 39 L. W. 2415 (Ore. 1971).
Negro who was refused house lease because of his race sued under
administrative proceedings for damages for mental suffering. On the au-
thority of Hinish v. Meier & Frank Co., 166 Ore. 482, 113 P. 2d 438 (1941)
damages for mental suffering have long been authorized in the absence of
physical injury in judicial proceedings in the courts of Oregon. However,
the question raised in this case was whether an award for mental anguish
arising from humiliating discrimination represents "compensatory" damages
which can properly be awarded by the Commissioner of Labor.
HELD: Within the purposes of eliminating the effects of unlawful

housing practices, the award of damages for a victim's humiliation is reason-
ably calculated to meet that purpose.
Court adopts the dissenting opinion of State Division of Human Rights
v. Luppino, 313 N.Y.S. 2d 28 (1970) and the rationale of the New Jersey
Supreme Court in Jackson v. Concord Co., 54 N.J. 113, 253 A.2d 793 (1969).
Berman, Safeguards for the Lessee of Commercial Real Estate, 52 CHI.
B. Rxc. 345 (1971). Suggestions for provisions in lessee of commercial prop-
erty which lessees need.
Boden, The New Wisconsin Eviction Procedure, 32 GAVEL 11 (No. 3-
1971). Dean Boden (Marquette Law School) reviews changes in eviction
cases, replacing old unlawful detainer procedure, which became effective
July 1, 1971.
Boden, 1971 Revision of Eviction Practice in Wisconsin, 54 MARQUETrE
L. REV. 298 (1971). The author of this article was the Research Reporter to
the Landlord-Tenant Study Committee of the State Bar of Wisconsin which
was involved in the revision of practice and procedure in the eviction of
tenants from real property. The revision was passed by the Wisconsin Legis-
lature as Chapter 284 of the Laws of 1969, to be effective July 1, 1971.
The new eviction procedure constitutes a rather substantial departure from
the old unlawful detainer procedure.
The author believes that the new procedure protects the rights of ten-
ants and at the same time protects the interests of the landlords in that
opportunities to delay eviction are substantially reduced. For the first time
in Wisconsin the statute defines the rights and duties of tenants with regard
to property removed from the premises.
Creedon and Zinman, Landlord's Bankruptcy: Laissez Les Lessees, 26
Bus. LAW. 1391 (1971). The language of section 70b of the Bankruptcy Act
permits a bankrupt landlord's trustee to reject a lease or any covenant there-
in as long as the rejection does not deprive the lessee of his estate. This
article first examines the historical reasons for the bankruptcy power to
reject executory contracts and then shows that the rights should exist only
where the executory contract is "burdensome" to the bankrupt estate, and
that a lease is "burdensome" in the case of a bankrupt landlord only if it
entails a positive loss for the estate.
Fenmore, Unlawful Detainer and the Recalcitrant Yachtsman,46 L.A.B.
BULL. 233 (1971). This article discusses the use of unlawful detainer actions
in the eviction of tenants of boat slips against the possible objections:
(a) that such actions should be properly brought before a court of admiralty
jurisdiction and (b) that the tenant of a boat slip is not a tenant of real
property.
Greene, A Proposal for the Establishing of a District of Columbia
Landlord-Tenant Agency, 38 D. C. B. J. 25 (1971). A series of decisions
have required trial courts to make searching inquiries into the physical
condition of particular premises as well as the allocation of responsibility
for any deterioration or deficiency. As a result, much of this litigation has
acquired economic, social and even psychological aspects, to the point where
it is now often both lengthy and complicated. In spite of strenuous efforts

of the judges to insure fairness within the present framework, some land-
lords wind up economic losers, regardless of what the formal judgment of
the court may ultimately turn out to be, not because of lack of substantive
merit, but because of the built-in inadequacies of present procedures. Like-
wise, many tenants are unable to take advantage of defenses, again not be-
cause they lacked a good defense or because the court and its judges are not
doing all they can to provide justice, but because of problems inherent in
the system itself. The author believes that the answer is the creation of an
administrative agency which would pass on evictions for nonpayment of
rent but without the necessity for cumbersome, technical court procedures,
including jury trials.
Johnson, Collective Tenant Action: Should the Rent Strike Be Institu-
tionalized? 46 L.A.B. BULL. 138 (1971). This article reviews the history of
collective tenant action, gives reasons for the recent increased tempo in
tenant activity and analyzes the goals of tenant organizations and the alter-
native ways to achieve these goals.
Kane, Implied Warranty of Habitabilityin Leases, 20 CLEVE. ST. L. REV.
169 (1969). A discussion on how current legislative housing standards and
building codes negate the common law rule that no warranty, implied or
otherwise, exists as to habitability of leased premises.
Kempner, A Look at Single Tenant Net Leased Properties, 1 REAL
ESTATE REV. 50 (No. 1-1971). The most common examples of this type of
investments are (1) money company buys land, constructs a building to its
specifications and then sells the entire facility to an investor, simultaneously
taking a lease back, in order to occupy the facility for a number of years-
this is a way for the company to finance the real estate venture; (2) when a
builder buys land, constructs a building to the specifications of a tenant
and after leasing the building to the tenant retains ownership or sells to
an investor-in this way the eventual tenant does not have to involve itself
in the purchase of land and the construction of a building. This type of an
investment is subject to an absolutely net, net lease wherein the landlord
has no exposure whatsoever. The article discusses the advantages to a
tenant and an investor as well as the practice which affects the yields on
this type of an investment and the status of the current yields-the latter
having caused a definite decline of new single tenant net, net leased invest-
ments. Also discusses the adverse effects of the 1969 Tax Reform Act and
the franchise debacle.
Levi; New Landlord-Tenant Legal Relations-The Model Landlord-
Tenant Code, 3 URBAN LAW. 592 (1971). A concise discussion of the pro-
posed Uniform Landlord and Tenant Relationship Act.
Maciorowski, Landlord and Tenant-Implied Warranty of Habitabil-
ity- Demise of the TraditionalDoctrine of Caveat Emptor, 20 DE PAUL L.
REv. 955 (1971). There is presently a strong trend within the courts to dis-
card caveat emptor as a mere legal fiction in situations involving the buying
or leasing of real property, and instead to imply a warranty of habitability
to protect the buyer or lessee. In the light of the post-war housing boom,
when shoddy construction is proliferating, the author examines the current
viability of this common law doctrine, and considers its alternative, the
implied warranty of habitability.
Meyers, Negotiating the Lease of an Office-Warehouse Building-A
Checklist, 17 PAc. LAW. 79 (No. 3-1971). The checklist of important points
to be considered in negotiating the long-term lease of an office or warehouse
building.
Moskovitz, The Model Landlord-Tenant Code-An Unacceptable Com-
promise, 3 URBAN LAW. 597 (1971). The author's opposition to this code
which was prepared by the American Bar Foundation can best be illus-
trated by quoting his concluding paragraph. "Those of us who are working
for real progress in bringing landlord and tenant laws into the twentieth
century will not be satisfied with a compromise solution which throws
tenants a few bones and we will actively oppose the compromise if it
threatens to prevent us to get the meat."
Moskovitz, Retaliatory Eviction: A New Doctrine in California, 46
CALIF. S.B.J. 23 (No. 1-1971). Landlord's attempt to exercise a lawful ter-
mination right motivated by a desire to dispossess the tenant for some act
(of tenant) that was not a breach of the lease or rental agreement. This
article examines the leading case, Edwards v. Habib, 397 F. 2d 687 (D. C.
Ct. App. 1968) and other judicial/legislative precedents.
O'Connor, Law, Lawyers and Tenant Unions in Chicago, 59 ILL. B. J.
732 (1971). An evaluation of the laws encountered by tenant unions and
suggestions for attorneys representing such unions.
Ominsky and LaMar, The Pennsylvania Rent Withholding Act, 43
PENN. B.A.Q. 109 (1971). An analysis of the application and interpretation of
the Pennsylvania Rent Withholding Act after five years' experience.
Reynolds, Oklahoma Real Property Law-Areas the Lawmakers Might
Re-Visit, 41 OKLA. B.A.J. 2397 (1970). Criticizes Oklahoma statutes and deci-
sions on shifting river boundaries, champerty and landlord and tenant.
Roisman, Tenants and the Law: 1970, 20 AM. U. L. REv. 58 (1970).
A discussion of the rights of indigent tenants living in substandard housing.
The article uses recent cases from the District of Columbia to show some of
the increasing rights of tenants and possible solutions to the problems raised
in the recognition of these rights.
Rosenthal, Duty to Light Exterior of Premises, 20 CLEVE. ST. L. REV.
420 (1971). A discussion on the changing position of the courts in imposing
obligations on the landowner to light potentially dangerous areas.
Sanders, The HabitableDwelling, 1 REAL ESTATE REv. 98 (No. 2-1971).
A summary of recent court decisions which take up the question of the
rights of the tenant when the premises become untenantable.
Tockman, Precautionsin the Protection of the Lessor's Property Inter-
est, 27 Mo. B. J. 168 (1971). The purpose of this article is to point out some
of the problems and the positions which the Missouri courts have taken
concerning lease provisions designed to protect the lessor's rights in the
event of an assignment of the lease.
Underberg, Ground Leasing Makes Dollars and Sense for Developers,
1 REAL ESTATE REv. 38 (No. 2-1971). The article points out the advantages
of ground leasing to the real estate developer and contains a comprehensive
examination of the key provisions of the lease instrument. The author be-
lieves that the ground lease, properly negotiated and carefully drafted, can
be an extremely effective instrument for use by the land owner and real
estate developer. It is possibly the most diversified instrument available to
the developer. It can be used as a demising tool as well as a financing tool,
and, in fact, can be used for both purposes simultaneously.
Housing Code Enforcement, ABA National Institute, 3 URBAN LAW. 525-
642, Gribetz, Housing Code Enforcement in 1970-an Overview, p. 525;
Grigsby, Economic Aspects of Housing, p. 533; Novick, The Physical and
Mental Health Aspects of Housing Code Enforcement, p. 538; Gilhool,
Social Aspects of Housing Code Enforcement, p. 546; Lieberman, The Ad-
ministrative Prospect-HousingCode Enforcement, p. 551; Moses, The En-
forcement Process-Housing Codes, p. 559; Curry, The Federal Role in
Housing Code Enforcement, p. 567; Alpern, The Judicial Process in Hous-
ing Code Enforcement, p. 574; Grad, New Sanctions and Remedies in
Housing Code Enforcement, p. 577; Levi, New Landlord-Tenant Legal
Relations-The Model Landlord-Tenant Code, p. 592; Moskovitz, The
Model Landlord-Tenant Code; An Unacceptable Compromise, p. 597;
Mandelker, The Local Community's Stake in Code Enforcement, p. 601.
XVI. MINES AND MINERALS

A. Legislation
Missouri
S. B. 1: Provides for reclamation of certain mining lands.
Nevada
Ch. 680: Enacts first major change in mining law in 100 years, major
change being the requirement that two copies of map of the claim or claims
showing actual location tied to official comers of the public land survey
if the area has been surveyed. Where the land has not been surveyed or
where such official corners cannot be found such description shall be tied
by courses and distances to a claim location marker. Also reverses law
dealing with the location of placer claims, requiring the filing of maps
showing the actual location of the claim.
North Dakota
Ch. 351: Empowers the state's Industrial Commission (the regulatory
agency over all oil and gas agencies) to resolve conflicting interests among
producers of natural resources.
South Dakota
Ch. 45-6a: Sets forth the various requirements for obtaining a permit for
open pit mining, together with general guidelines for the conduct thereof
and subsequent reclamation.
Texas
S. B. 837: Determines that existing laws relating to the development and
production of uranium and thorium under lands sold with minerals reserved
to the state are not up to date and did not encourage exploration and pro-
duction of those minerals, that the Public School Fund was not benefiting
satisfactorily under prior laws and that the owner of the land was not
adequately protected. This Act was passed to remedy these deficiencies.
H. B. 1755: Provides means for extending the term of certain oil and
gas leases covering state lands which have been limited to a term of 25
years and which are now producing.
H. B. 1862: Provides that where a lessee is prevented from developing
minerals leased from the state as the result of action by the United States
or Texas, the lessee shall be refunded bonus, delay rentals and other fees
paid under the lease and is authorized to bring suit against the state within
two years after the expiration of the lease.
West Virginia
S. B. 193: Amends 20-6 to provide for more stringent standards for
regulations pertaining to surface mining and reclamation.
Acker v. Guinn, 464 S.W. 2d 348 (Tex. 1971).
Petitioner claimed ownership of one-half of low-grade iron ore under
mineral deed conveying "an undivided one-half interest in and to all of the
oil, gas and other minerals..." under the tract. Ore is obtained through
strip mining.
HELD: The ore is not conveyed by this form of deed. The ejusdem
generis rule is not applicable.
Determines status of ownership of strip-mined iron are in view of the
usual mineral deed form used to convey ownership of oil and gas in place.
Builders Supplies Co. v. Gainey, 178 S. E. 2d 794 (N. C. 1971).
Action by assignee of right reserved by vendor to remove gravel and
sand on a 35-acre parcel within a 331-acre tract to obtain an adjudication
that it was owner of an easement for purpose of taking and removal of sand
and gravel and to restrain purchasers from interfering or attempting them-
selves to remove any sand and gravel therefrom and for damages.
HELD: Evidence, including disclosures that vendor made selection of
the 35-acres and staked it off without objection from purchasers, that pur-
chasers removed sand and gravel from 331-acre tract up to the line so
staked off, and that purchasers subsequently assisted assignee in locating
stakes for a survey to be made of 35-acre tract, was sufficient to withstand a
motion for a directed verdict.
Clough v. Jackson, 479 P. 2d 266 (Mont. 1971).
Suit was brought for rescission of mineral deed on ground of fraud,
misrepresentation and undue influence.
HELD: Lack of materiality in agent's statement, during negotiations
for purchase of mineral interest, as to the distance of plaintiff's land from
producing wells which were in different oil fields, and absence of plain-
tiff's reliance on the inaccurate statement of agent, precluded plaintiff's
right to rescind conveyance of one-quarter mineral interest because of al-
leged fraud on part of grantee's agent. Neither experience nor inferior

knowledge would excuse plaintiff from reading mineral deed and observing
that it clearly conveyed a mineral interest rather than a royalty interest or
from failing to secure outside advice.
Kirk v. Smith, 253 So. 2d 492 (Fla. Ct. App. 1971).
Pursuant to the sale of a tax certificate, title to the property in 1832
vested in the state. In 1946, the state conveyed the property by a deed which
reserved certain mineral rights. The grantee in that deed defaulted in
payment of taxes and the land was purchased by the county. In 1952, the
county conveyed the property without any reservation of mineral rights.
The state brought an action to enforce an alleged right to subsurface inter-
est in the property.
HELD: The county tax deed operated to extinguish and cancel pre-
viously reserved mineral rights of the state in the property. The county tax
deed vested in the grantee a new and independent title, notwithstanding the
claim that once subsurface rights were vested in the state the same could not
be divested by county tax deed.
Sigety v. State Board of Health, 482 P. 2d 574 (Mont. 1971).
Appeal by State Board of Health from a declaratory judgment holding
"Dredge Mining Regulation and Land Preservation Act" unconstitutional.
HELD: Statute prohibiting persons from carrying on mechanical oper-
ations that result in recovery of minerals in or near stream or riverbed with
use of dredge boat or sluice-washing plant, but expressly excluding mechan-
ical operation primarily intended for open pit mining, strip coal mining,
irrigation, extraction of gravel for construction, and/or road building pur-
poses, or agricultural purposes, violated the equal protection clause of the
U. S. Constitution.
Colvert, Performance of Assessment Work on Unpatented Mining
Claims-a Reappraisal, IV NATURAL RESOURCES LAW. 251 (1971). The au-
thor refers to the so-called Tosco case decided December 8, 1970 with
the opinion written by Mr. Justice Douglas. The opinoin holds, inter
alia, that the Secretary of the Interior now has had "subject matter juris-
diction over contests involving the performing of assessment work" on un-
patented mining claims. The Court, in effect, has confirmed the power and
authority of the Secretary of the Interior to declare such claims null and
void for failure of the mining claimants to satisfy annual assessment work
requirements thereon. The author believes that the decision has great force
upon owners of unpatented mining claims and that the Court's pronounce-
ments concerning the Secretary's jurisdiction will have considerable impact
upon the status of their claims. He believes that compelling reasons now
exist for reappraisal of pertinent statutory requirements and a critical
analysis of the opinion to determine, insofar as possible, precisely what it
means.
Drew, ContinentalShelf Law: Outdistanced by Science and Technology,
31 LA. L. REV. 108 (1970). Author comments upon the fast emerging and as
yet underdeveloped law relating to the use of natural resources on the

Continental Shelves. He indicates that the law has lagged behind technical
capabilities and that there is a need to develop laws which will define and
protect the rights and interests of coastal states.
Friedman, The Economics of the Common-Pool: Property Rights in
Exhaustible Resources, 18 U.C.L.A. L. Rrv. 855 (1971). A discussion and
economic analysis of the "common pool problem" in natural resource de-
velopment.
Hardy, Mineral Rights, Faculty Symposium, The Work of the Louisiana
Appellate Courts for the 1969-1970 Term, 31 LA. L. REv. 263 (1971). The
comment reviews recent law applicable to a landowner's rights in minerals,
mineral servitudes, mineral leases, drilling contracts and conservations.
Hardy, Some Thoughts on JudicialMethods in LouisianaMineral Law,
17 LOYOLA L. REV. 13 (1970-71). A discussion of how the courts have acted
in a quasi-legislative role in the formation of Louisiana mineral law, but
have often failed to discuss the important social or policy considerations
which have motivated their opinions.
Howard, A Measurement of the External Diseconomies Associated
with Bituminous Coal Surface Mining, Eastern Kentucky, 1962-1967, 11
NATURAL RESOURCES J. 76 (1971). The purpose of this article is to suggest
an approach in measuring both the assumed external diseconomies arising
from surface mining and the internal expenses incurred by firms to reduce
such social costs. Internal expenses are associated with reclaiming the sur-
face mine land. The term "external diseconomies" or social costs, as used
in the article, refer to all of those damages and harmful effects sustained
by others as a result of productive processes, and for which the private firms
are not held accountable. The various types of external diseconomies arising
from each of the several sources within the mining site are calculated sep-
arately; charges to be incurred in future years are discounted as of the year
in which surface mining takes place. When further reclamation is per-
formed, the average internal expenses and the average external costs are
computed and compared.
McCollam, Louisiana Mineral Law: .4 Current Survey, IV NATURAL
RESOURCES LAW. 291 (1971). An attempt to capsule the leading principles
of Louisiana mineral law and unrelated rules, and to point out some of the
pitfalls that await the uninitiated. The question of land titles on ownership
of mining properties can be very complicated in Louisiana and, at the risk
of being accused of favoritism toward Louisiana attorneys, the author
recommends that any company or individual contemplating the acquisition
of such properties obtain the opinion of a lawyer trained in Louisiana law
with respect to the proposed transaction.
Perez, The Mexican Mining Concession-Its Features, Regulation and
Practice, 12 ARiz. L. REv. 356 (1970). The extent of the interests acquired
through a Mexican mining concession, procedure for obtaining them and
the limitations upon foreign investment in the mining industry.
Reitze, Old King Coal and the Merry Rapists of Appalachia, 22 CASE
W. REv. L. REv. 650 (1971). Strip mining, state and federal regulation, Ohio
reclamation law, reclamation.
Schneider, Strip Mining in Kentucky, 59 Ky. L. J. 652 (1971). A dis-

cussion of problems caused by increased strip mining resulting from greater
demand for coal and its impact on environment.
Sherlock, The Price of Coal: The Coal Mine Health and Safety Act of
1969, 20 CATHOLIC U. L. REV. 478 (1971). A discussion of the provisions
and operation of the Federal Coal Mine Health and Safety Act of 1969.
Mined-Land Reclamation in the Western States-A Brief Look, Drafted
by the Hard Minerals Committee of the Natural Resources Sec. of the ABA
(1971). One aspect of pollution legislation now under consideration is sur-
face mined-land reclamation laws. Although much of the existing legislation
deals only with coal mining the pollution problem extends to the surface
mining of sand, gravel, stone, phosphates, iron, copper and other minerals.
Twenty-eight states have already enacted such laws and numerous others
are proposing legislation. In general legislation in this area provides for the
restoration and conservation of land which has been subjected to surface
mining. The articles places the problem of surface-mined land reclamation
in the western states in perspective and suggests some general guidelines
for western lawmakers.
Construction of Deeds Granting the Right to Stripmine, 40 U. CINc.
L. REv. 304 (1971) An examination of the cases concerning deeds granting
mineral rights and whether or not the intent was also to allow the strip
method of mining.
The Open-Mine Doctrine, Principles of Intention, 8 HOUSTON L. REV.
753 (1971). Application to statutory life estates, intestate succession and
homestead.
XVII. MORTGAGES AND LIENs

One of the most outstanding trends in the mortgage field is the chal-
lenging of the established mortgage lending practice of including in land
security instruments an acceleration or "due-on-sale" clause which gives
the lender the right to declare the principal balance due and payable
if the borrower sells or sometimes even encumbers the property without the
consent of the lender. In 1970 the Court of Appeals of Ohio in Peoples Sav-
ings Association v. Standard Industries, Inc., 257 N.E. 2d 35 (1970), rejected
an attack on such a clause in a foreclosure action, which action was pre-
dicated on the violation of such a clause by the mortgagor when he sold
the mortgage property without the consent of the mortgagee. The court
held that the clause was "not illegal, inequitable and contrary to the public
policy of the State of Ohio" and, therefore, the clause permitted the mort-
gagee to treat the transfer as a default. The basis of the court's ruling was
that a significant element in the mortgage contract is the mortgagor him-
self, his financial responsibility and his personal attitudes. The right of the
mortgagee to protect its security by maintaining control over the identity
and financial responsibility of the purchaser is a legitimate business objec-
tive. The case is discussed in 88 BANKING L. J. 552 (1971). It was followed by
the California case of LaSala v. American Savings and Loan Association, 12
Cal. App. 3rd 1012, 91 Cal. Rptr. 238 (1970), commented upon in 37 LEGAL
BULL. 221 (1971). The acceleration clause in this case, in addition to a "due-
on-sale" provision, also included a restriction against encumbering the

property. The mortgagor gave a second mortgage on the property and the
lender claimed this was a default and that the loan could be accelerated.
In a class action seeking a declaratory judgment and injunction the court
of appeals held, among other things, that (1)the challenged clause was not
an illegal restraint upon alienation and that (2) the action could not be
maintained as a class action. Another issue decided against the plaintiff was
that the clause was unlawful because it was in "fine print." Presumably, and
prompted by this decision, the California legislature in the summer of 1971
passed Ch. 429 which added a new section to the Civil Code to provide that
no acceleration clause in a mortgage deed conveying property containing
four or fewer residential units shall be valid unless the clause is printed in
its entirety both in the body of the deed as well as the note.
Somewhat connected with this same general approach is the statute
enacted by North Carolina which limits the amount a lender may charge
for assuming a mortgage note in excess of $50,000 to either one per cent of
the principal due or $25, whichever is less.
The states of California and Indiana both enacted statutes which permit
the debtor to choose the persons from whom insurance is to be obtained
subject to the lender's reasonable approval.
The effects of continued agitation by advocates of "consumerism" can
be seen in the adoption by the states of Alabama, Colorado, Indiana, New
Hampshire and Wyoming of consumer credit statutes or fair credit report-
ing statutes. Alabama, Colorado, Indiana and Wyoming adopted either the
Uniform Commercial Credit Code or slightly modified versions thereof while
New Hampshire adopted a Fair Credit Reporting Act substantially identical
to the Federal Fair Credit Reporting Act. As part of the same movement,
Massachusetts amended its consumer protection act to include transactions
in real estate. Several state legislatures broadened the scope of and liberal-
ized their mechanic's lien statutes. Maine and Missouri broadened the scope
by including parties heretofore not included while Nevada extended the
time for recording the notice of the lien. The action of the Texas legis-
lature in amending its mechanic's lien law is a graphic illustration of the
rapidity with which a legislature can move when it is of a mind to. On Feb-
ruary 2, 1971 the Texas Supreme Court in a case involving the issue of
priority between a construction lender and a mechanic lienor held that the
inception of the lien was the date of the contract even though this may
antedate the ownership of the property. However, on May 12, 1971 this
judgment was set aside and judgment entered for the lender (IrvingLumber
Company v. Alltex Mortgage Co., Inc.) with three of the justices filing
strong dissenting opinions. Thereafter, on May 13, 1971, the legislature
enacted a statute which made mention of this case and proceeded to define
what constitutes the time of the inception of a mechanic's lien which, in
effect, overruled this decision.
As an aftermath of the Conejo Valley case, Connors v. Great Western
Savings and Loan Ass'n, 447 P.2d 609 (1968)-a four-three decision which
held that the construction lender would be held liable for negligent con-
struction of individual homes by the mortgagor in the event he became an
active participant with the right to "exercise extensive control of the pro-
ject and thus owed the public an independent duty-very shortly after that
decision the California legislature passed a statute which provides that a
construction lender shall not be liable for the negligence of the borrower
in constructing homes unless the loss is "a result of the act of the lender
outside the scope of the activities of the lender or unless it has been a party
to misrepresentation." This year the states of New Mexico and Virginia en-
acted substantially similar statutes.
A. Legislation
Alabama
S. B. 122: Enacts modified version of Uniform Consumer's Code com-
monly known as "Mini-code." Provides for maximum finance charges for
loans and credit sales; regulates extensions of credit, including consumer
loans, consumer credit sales and consumer leases; sets rates.
Arizona
Adopts a deed of trust act substantially similar to that which is in
effect in California, as well as several other states. Provision made for the
use of a deed of trust in lieu of a real property mortgage to secure the per-
formance of a contract. Act defines terms and sets forth procedures for
foreclosure and deficiency judgments.
California
Ch. 409: Amends 771 of the Insurance Code to provide that whenever
insurance is required in connection with the sale of real property or loans
upon the security of such property, the lender shall have the right to ap-
prove or disapprove for "reasonable cause," as such term is defined by
regulatory authority, rather than to approve or disapprove absolutely, the
insurer selected to underwrite insurance. Provision is made for the promul-
gation of regulations defining "reasonable cause."
Ch. 429: Adds Civil Code 2924.5 which requires that any clause per-
mitting acceleration of the due date for mortgages or deeds of trust covering
four or fewer residential units must be printed in both the body of the deed
of trust or mortgage and in the promissory note or other document secur-
ing the obligation in order to be valid.
Ch. 544: Amends 7153.1 of the Financial Code by deleting the restric-
tions that loans on condominiums may be made only when binding con-
tracts have been entered into for the sale of the majority of the units in the
projects, and adds the provision that no loan on condominiums, community
apartments projects or cluster-type residential project property shall be
made under the authority of this section in excess of an amount equal to
one per cent of assets unless binding contracts have been entered into for
sale of not less than a majority of the units in the project or the loan is
approved by the commissioner.
Colorado
H. B. 1076: Enacts Colorado UCCC, differing from the Uniform Act
in that (1) division of consumer loans into "regulated loans" and "super-
REAL PROPERTY, PROBATE AND TRUST JOURNAL [VoL 7:68
vised loans" is eliminated; (2) all consumer loans with rates of interest
over 12 per cent per annum are classified as "supervised loans"; (3) a lender
may contract for and receive reasonable fees or premiums for title examina-
tions, title insurance or similar purposes, including surveys, when the debt
is secured by an interest in land.
Connecticut
P. A. 79: Provides that unless a contrary intent is clearly indicated in
the will or codicil, a beneficiary of a devise of real estate which is subject
to a security interest existing at the date of testator's death shall not be
entitled to exoneration of the secured debt from the estate. The statute
further provides that a general directive in the will or codicil to pay the
debts of the testator shall not be deemed to be a clear indication of a
contrary intent within the meaning of this statute.
P. A. 181: Provides that unreleased mechanic's and judgment liens
which have expired by virtue of the statute of limitations need not be re-
leased of record and the lack of a release shall not be deemed to render the
title unmarketable.
P. A. 212: Amends 36-178(e) to inciease savings association fines for
default to an amount not in excess of four cents each month for each dollar
in arrears. Formerly the authorized fine was at the rate of two cents each
month per dollar in arrears.
P. A. 214: Amends 36-172(f) as follows: "A first mortgage on real estate
shall be a mortgage, trust deed or other instrument which will constitute a
first lien on real estate in fee simple or on a leasehold under a lease having
a remaining term, at the time such mortgage is acquired by the savings and
loan association, which does not expire before at least that number of years
beyond the maturity date of the obligation or obligations secured by such
first mortgage as is equal to the number of years remaining until the matu-
ity date of such obligation or obligations. The term of the leasehold estate
shall not include any period for which the lease may grant an option of
renewal."
P. A. 578: Adopts the Model Master Mortgage Recording Act.
P. A. 809: Amends 49-3, dealing with future advances to be made under
a construction mortgage at the discretion of the lender, by providing that
the statute covers site improvements such as road layout or utility installa-
tions even though no buildings are being constructed. Also permits the
parties to the mortgage to amend the same by a modification agreement
which changes the date of completion and the date for the payment of
principal and interest without endangering the priority of the mortgage.
Florida
Ch. 92: Amends 665.214(5) to authorize savings associations to sell loans
with or without recourse as contrasted with the former restriction of sale
only without recourse.
Indiana
S. B. 5: Enacts Indiana UCCC, differing from the Uniform Act in the
following respects: extends coverage of the act to "loans primarily secured
by an interest in land" with respect to additional charges; makes provision

that the debtor may choose the person "subject to the lender's reasonable
approval" through whom insurance is to be obtained; makes provision for
payment by the debtor of reasonable attorneys' fees after default.
Kansas
Ch. 190: Provides for mortgages on real estate to secure future advances
with lien priority of all advances made from time of recording mortgage
until its release of record. The lien of such mortgage shall not exceed at any
one time the maximum amount stated in the mortgage.
Maine
Ch. 113: Amends 14 MRSA 6203-A to provide that, if real estate is sold
pursuant to a power of sale contained in a mortgage, the mortgagee may bid
on and purchase any such real estate.
Ch. 421: Amends 10 MRSA 3251 to extend the materialmen's lien to
(1) individuals furnishing repair parts or machines or who perform services
as an owner-renter, owner-lessor or owner-supplier of equipment used in
the construction of a house, building or appurtenances; (2) include labor
or materials used in clearing, grading, draining, excavating or landscaping
ground which will be used in connection with the other situations in which
a lien is granted.
Massachusetts
Ch. 60: Reduces the right of redemption from a tax taking from a
iperiod of two years to six months.
Ch. 93A: Includes transactions in real estate within the scope of the
Consumer Protection Act. Private persons are given standing to sue in
equity in superior court for violations of the Act.
Ch. 436: Adds subsection 12 to 26 of Ch. 170 of General Laws to au-
thorize cooperative banks to make mobile home loans subject to stated
conditions, including the requirements that the principal amount of the
loan not exceed 80 per cent of value or $10,000, whichever is less, that the
loan be repaid in substantially equal installments within a period of 12
years, and that the aggregate amount of such loans not exceed 5 per cent
of deposits of any cooperative bank.
Michigan
P.A. 94: Amends 438.31(c) to extend to December 1, 1973 (formerly
December 1, 1971) the exemption from usury limitations of land contracts
and loans secured by a first lien against real property. The exemption ap-
plies only to "loans made by lenders approved as a mortgagee under the
National Housing Act or regulated by the state, or by federal agency, who
are authorized by state or federal law to make such loans, mortgage loans
or land contracts between natural persons."
P. A. 104: Amends 600.3240 to provide that in the case of any mortgage
on residential property not exceeding four units and not more than three
acres in size, if the property is abandoned the redemption period shall be
three months, and that in the case of any mortgage on residential property
not exceeding four units and not more than three acres in size, if the
amount claimed to be due at the date of notice of foreclosure is more than
two-thirds of original indebtedness secured by the mortgage and the prop-
erty has been abandoned then the redemption period shall be one month.
Minnesota
Ch. 136: Empowers savings association to purchase at any sheriff's
judicial sale, or any other sale, any real estate upon which it has a mort-
gage, judgment or other lien, or in which it has an interest, and acquire
title to any real estate upon which it holds any lien, in full or part satis-
faction, and sell, lease or mortgage the same. In transactions involving the
purchase by a vendee of improved real estate for home purposes, or for the
construction of a home, a savings and loan association may, when author-
ized by its bylaws, acquire the title thereof, and it may give to the vendee
a contract to convey the same upon a sale thereof.
Ch.265: Requires notices of liens upon real property for federal taxes
to be filed with the registrar of deeds of the county in which real property
is located. Notices of liens on personal property, whether tangible or intang-
ible, for federal taxes are to be filed as follows: If a person, corporation or
partnership whose principal office is within the state, with the secretary
of state; in all other cases, in office of registrar of deeds of county where
taxpayer resides.
Missouri
S. B. 217: Grants architects, engineers, surveyors and mechanics or other
persons for water well digging or building, razing or demolition a lien upon
the building or other improvements and upon the land belonging to the
owner or proprietor on which the building or improvements are situated,
to the extent of one acre, to be governed by the procedure applicable to
mechanics' liens.
Nebraska
L. B. 374: Amends 8-330 to provide for a charge not exceeding one per
cent or that allowed a federal savings association for a premature payment.
Any payment charge received or taken as an advance or forebearance which
is included in the calculation of interest, must be spread over the stated
term of the loan for the purpose of determining the rate of interest. Further
provides that "interest may be paid on escrow accounts held for the payment
of taxes, insurance and similar payments, if agreed to in writing by the
borrower and association."
Nevada
Ch. 224: Requires that the amount of any assumption fee must be
clearly set forth in the deed of trust.
Ch. 255: Amends the mechanics' lien law allowing 40 days for the
recording of the notice of lien after the recording of the notice of comple-
tion.
New Hampshire
Ch. 242: Provides that "any association which makes a loan whose
proceeds the borrower uses, or may use, to finance the design, manufacture,
construction, repair, modification or improvement of real property for sale
or lease to others, is not liable to third persons for (1) any loss or damage
resulting from any defect in the property; (2) or any loss or damage resulting
from the borrower's failure to use due care in any work for or on the prop-
erty, unless the loss or damage results from an act of the association outside
the scope of its business as an association or unless the association has
knowingly been a party to any misrepresentation concerning the property."
Ch. 483: Amends 479:4 relating to priority of future advances made
under a mortgage, to add the provision that "interest rate charged on such
readvance need not be the same as that set forth in the original note."
Ch. 513: Amends 393:18 to provide that limitations imposed by the
section on the amount of real estate loans and investments of cooperative
banks and savings associations shall not apply to loans secured or guaranteed
by a private mortgage guaranty insurance company licensed to do business
in New Hampshire and approved by the Bank Commissioner. The section
makes similar provisions for FHA, VA and New Hampshire insured or
guaranteed loans.
Ch. 517: Adds to 393.24 to permit assets of cooperative banks, building
and loan associations and savings and loan associations to be invested in fee
simple interests in real estate acquired by foreclosure by the acceptance of
a deed in lieu of foreclosure or by purchase. The book value of the invest-
ments and real estate acquired under this section may not exceed 5 per cent
of deposits.
New York
Ch. 1041: Amends Banking Law 393(2) to add to the provision that any
mortgage loan made by a savings association may be prepaid, that the loan
contract may expressly provide for a period during which prepayment may
not be made without incurring prepayment penalties. When such provision
is contained in the loan contract, the contract must also expressly provide
for prepayment penalties or no prepayment penalties may be collected when
the loan is prepaid. However, where a loan is secured by a mortgage on a
residence containing fewer than four housing units, which residence is or
will be occupied in whole or in part by the member, prepayment penalties
may not exceed: (a) interest for a period of three months on the principal
so prepaid; or (b) interest and premium for the whole year on the principal
so prepaid, if prepayment is made at any time within one year.
North Carolina
Ch. 487: Amends 54-22 to provide that upon prepayment of a loan
by a borrower he shall be charged interest at the rate agreed upon in the
note to date of settlement (formerly six per cent per annum) on all fines
and dues unpaid.
Ch. 1168: Adds to 24-10 new subdivision (d) which authorizes any
lender, including a savings association, to charge any person, firm or cor-
poration that assumes a loan, a fee not in excess of one per cent of the
principal amount due or $25, whichever is less, where the principal amount
assumed is not more than $50,000 and is secured by real property.
North Dakota
Ch. 328: Amends 32-19.1-01 to provide that parties to a real estate mort-
gage upon property involving an area not to exceed ten (formerly three)
acres may make provision in such mortgage that upon default in its con-
ditions it may be foreclosed as is provided by the short-term mortgage
redemption act.
Texas
S. B. 432: Repeals Articles 1.26 and 1.26-1 of Insurance Code and sub-
stitutes Article 21.50 entitled "Mortgage Guaranty Insurance." Mortgage
guaranty insurance is defined as insurance against financial loss by reason
of nonpayment of the obligation which is secured by a lien or lease on real
estate. Only certain types of real estate loans are covered and only certain
companies which qualify to do business in a manner prescribed by the
article can write the insurance.
S. B. 733: Adds section to Article 5459 defining what constitutes the
time of the inception of certain liens, particularly mechanics' and material-
men's liens. The inception can be any of the following: (a) commencement
of construction; (b) delivery of materials on the realty; (c) recording of the
agreement in the mechanics' lien records; or (d) recording of an affidavit of
oral agreement in the mechanics' lien records.
H. B. 263: Adopts Uniform Federal Tax Lien Registration Act.
H. B. 967: Requires that the county clerks and justices of the peace
include in abstracts of judgment (1) the names of the parties; (2) birthdate
and driver's license number of the defendant; (3) number of the suit; (4) de-
fendant's address; (5) date of the judgment; (6) amount of the judgment;
and (7) interest rate.
West Virginia
H. B. 533: Amends 31-6-23 to provide that whenever any borrower on a
direct reduction basis or borrower on a loan secured by shares shall fail to
pay "dues, interest, premiums or fines" as provided by his mortgage for a
period of 30 days (formerly three months) or be in default in perform-
ance of any obligation imposed thereby, the whole indebtedness shall be-
come due and payable at the association's option.
Wyoming
Ch. 191: Enacts Wyoming UCCC, eliminating from Uniform Act the
division of consumer loans into "regulated loan" and "supervised loan"
categories, and provides that all loans with rates of interest over ten per
cent per annum are to be classified as "supervised loans."
Aims, Inc. v. Cedar Inn, Inc., 280 A. 2d 698 (Del. 1971).
Sale price of premises at mortgage foreclosure sale was $120,000. Un-
successful bidder who had bid $118,000 asked court below to set aside the
sale on the grounds that misleading announcements had been made to
prospective bidders prior to the commencement of auction.
HELD: Unsuccessful bidder was not a party in interest in the property

sold or proceeds thereof. Court below therefore lacked jurisdiction to set
aside the sale.
Allen v. Webb, 485 P. 2d 677 (Nev. 1971).
In an action to quiet title to land, subject to an unrecorded deed of
trust, the holder of the trust deed cross-claimed for damages against the
escrow agent and a title insurance company for failure to record the trust
deed before the property was sold to a bona fide purchaser. The escrow
instructions prepared by the agent did not specifically require that the title
company record the trust deed, said transaction being ancillary to the prin-
cipal sale. The lower court dismissed the cross-claim.
HELD: Reversed. A fiduciary relationship existed between the cross-
claimant and the title company and escrow agent, and their experience and
knowledge in handling real estate closings charged them with the knowl-
edge and responsibility of a lawyer.
Bradford v. Thompson, 470 S.W. 2d 633 (Tex. 1971).
Style-Rite conveyed a home to Bradford for $8,000, payable $1,200 in
cash, the assumption of a first lien in the amount of $5,246, and the assump-
tion of a second lien to Thompson in the amount of $1,553. The second lien
note was payable in monthly installments of $10 each, including interest,
payable on or before the 15th of each month for 136 months, at which time
the payments increased to $60 per month until paid in full. Bradford paid
off the first lien note prior to its maturity date, and thereafter increased the
second lien note payments from $10 to $70 per month. He made the $70 per
month payments until February 1967, at which time he stopped all pay-
ments because he alleged he was refused the right to prepay the second lien
note in its entirety. Thompson, the second lien holder, foreclosed on his
deed of trust and, when Bradford refused to move, brought an ineffectual
forcible detainer action, and then filed this trespass to try title action. The
second lien note stated that payments were due "on or before" the 15th day
of each month. When Bradford discontinued making payments on this note
he had paid Thompson $700 though only $280 was required by the terms of
the note. At the date of foreclosure, a total of $390 was required to have
been paid under the terms of the note. Thompson argued that the excess
payments constituted payment on the principal and did not relieve Brad-
ford from making regular monthly payments to cover the interest.
HELD: Rules governing application by a creditor of payments made
by a debtor are inappropriate to this case. Those rules are designed for situa-
tions where there are two or more debts being held by a creditor but there
has been only one payment. The question here is not one of application of
payments, but rather whether an excess payment in one month will be
applied to satisfy a required payment in a subsequent month when an obli-
gation calls for payments "on or before" a certain day of each month. The
foreclosure sale was set aside and title held to be in Bradford.
Clark v. Equitable Life Assur. Soc. of U. S., 281 A.2d 488 (Del. 1971).
This was a mortgage foreclosure action commenced as a result of the
failure of the mortgagor to pay real estate taxes on the property when such
taxes became due as required by the mortgage agreement. Mortgagor con-

tends that he offered to pay the taxes before the commencement of suit but
did not pay them because he was told that such payment would not stop the
foreclosure. Court below refused to charge the jury that such offer was the
equivalent of a tender of payment.
HELD: Payment of taxes before commencement of the action prevents
the operation of the acceleration clause. Payment after commencement of
the suit does not bar the foreclosure. An offer to pay the taxes before com-
mencement of the suit is equivalent to actual payment on the date of the
offer.
Colt Lanes of Dover, Inc. v. Brunswick Corp., 281 A. 2d 596 (Del. 1971).
Brunswick Corporation, as lessee, brought suit for injunction to pre-
vent interference with possession against defendant Colt Lanes who claimed
the right to possession under a prior lease and owner intervened as a party.
In 1961 the defendant executed a lease for the premises but it was never
signed by the owner. In 1962 the property was sold to Colt Realty who, after
its charter was forfeited in 1963, conveyed the property to Harrison Realty.
In November 1964 the owner brought suit for foreclosure of a second mort-
gage which it had taken in 1962 upon its sale of the premises to Colt Realty
and purchased the property at the foreclosure sale. Thereafter Banks, who
was a principal in both Colt Realty and Harrison Realty, entered into an
agreement with the owner obligating him to make certain payments on a
first mortgage and giving him the right to possession. Banks defaulted and
owner demanded possession by letter on December 10, 1964, upon which
date it entered into lease with plaintiff Brunswick who took possession the
same day. Brunswick shortly thereafter filed this suit to enjoin any inter-
ference with its possession rights. Defendant Colt Lanes claimed possession
under prior lease. Brunswick filed a motion for summary judgment assert-
ing two grounds: (1) the invalidity of unexecuted lease of 1961; and (2)
that the lease, if any, was subordinate to any mortgage. Defendant con-
tended that (1) the landowners were estopped to deny the existence of the
lease; (2) the subordination clause was controlled by a covenant of quiet
enjoyment; and (3) if the 1961 lease was not effective, there nevertheless
was a demise under 25 Del. Code 5101 subject to the notice provisions
of 25 Del. Code 5106 and 5107. Owner thereafter filed a second motion
for summary judgment contending that under Delaware law defendant's
assets upon the forfeiture of the charter devolved upon its directors which
gave the landlord under the 1961 lease the right to terminate if any of
the tenants' interest devolved upon another person than defendant and that,
therefore, termination under the lease was proper, estopped or no. Judgment
on the motion was reserved by the Chancellor. The Chancellor held that
(1) the 1961 lease was never executed by the owner; (2) there existed an
oral demise; (3) defendant was entitled to notice; (4) defendant had re-
ceived notice by the filing of this action on December 18, 1964 and was
entitled to damages for period from December 10, 1964 (the date upon
which plaintiff took possession) through January 17, 1967 (the latter being
30 days after the date of its suit being filed). Defendant cross-appealed
claiming that it had never received notice to quit and that it is entitled to
damages for the six years intervening. Plaintiff Brunswick and landowners
cross-appealed and contended that (1) any oral lease could not give de-
fendants greater rights than it possessed under written lease and that
defendant's rights were terminated by mortgage foreclosure and the charter
forfeiture; and (2) defendant's rights of possession were terminated by the
November 1964 agreement with Banks.
HELD: (1) Damages upon breach of the covenant of quiet enjoyment
are the natural and direct consequences of the breach. A tenant-at-will is
restricted to damages between the actual value of the unexpired term and
the rent reserved; (2) defendant, who had possession under a written demise
without an express term, was a tenant on a month-to-month basis being
"in the nature of a tenancy-at-will." Therefore, he was entitled to damages
from the time of eviction to the end of the next term of one month; (3)
the statutory notice to quit may be waived and defendants waived notice
to quit by delaying too long to set up an oral demise inconsistent with a
prior written lease, by failing to assert right to notice under a monthly
lease, and by agreeing to remain out of possession while rights were liti-
gated. Defendant's appeal was denied for the above reasons. Cross-appeals
of plaintiff and intervening owner were granted for the following reasons:
(1) unexecuted lease of 1961 was not binding on defendant; (2) (a) to con-
stitute abandonment of a lease there must be an intent to abandon plus
conduct by which the intent is carried into effect. Failure of a tenant with
knowledge to object to a second lease by a landlord may, without other cir-
cumstances, constitute an abandonment of the lease, (b) rights of possession
of Colt Lanes were abandoned by its spokesman's (Banks) failure to object
to the November 1964 agreement with Banks which granted him separate
possessory rights; (c) it is not necessary for abandonment that the original
tenant be a party to the second lease or agreement or that the original
tenant be expressly released.
Estes v. Republic Nat'l Bank, 462 S.W. 2d 273 (Tex. 1970).
E, who borrowed $30,000 from a bank, giving as security a deed of trust
of 396 acres, then sold the land to G, subject to the $30,000 note. When G
tendered payment of the unpaid principal amount, pursuant to prepayment
terms of the note, the bank refused to release the deed of trust because it
claimed E owed the bank an additional $570,000 and, according to the
terms of the trust deed, the instrument was security for this debt as well.
The deed of trust contained a "dragnet" clause making it security for all
other debts of E to the bank.
HELD: Since G admitted he never read the terms of the deed of trust,
he could not show that this provision had been inserted in the deed of trust
by mutual mistake. A claimed agreement between E and the bank limit-
ing the deed of trust as security only for the $30,000 debt was, therefore,
meaningless.
First Granite City Nat'l Bank v. Champion, 268 N. E. 2d 35 (III. Ct.
App. 1971).
A builder, who applied to a commercial bank for a construction loan
REAL PROPERTY, PROBATE AND TRUST JOURNAL [VoL 7:68
to erect a group of one-family houses, was unable to obtain a "takeout"

or permanent mortgage commitment from a lending institution and instead
supplied the commercial lender with an individual third party's guaranty
'to make personal loans upon the completion of the houses. When the
builder went bankrupt, the commercial bank called upon the guarantor to
"takeout" but he could not financially do so. In a foreclosure the bank
named the individual guarantor as a defendant and sought a deficiency
judgment against him.
HELD: The facts disclose a situation where the parties construed the
third party's obligation as more than just an obligation to make a loan.
The third party actually guaranteed to the construction lender that per-
manent loans would be made. If the third party's agreement were construed
as a mere commitment to make a permanent loan, then only nominal dam-
ages would have been recovered for breach of that agreement.
First National Bank v. Taylor, 488 P. 2d 1026 (Alaska 1971).
This appeal arises from an action on a note executed and delivered to
the plaintiff bank by the defendant. The superior court dismissed the
complaint and the bank appealed. The issue concerned whether a statement
in satisfaction and discharge of mortgage that note had been paid was con-
clusive evidence of payment.
HELD: Reversed. The statement in the satisfaction and discharge of
the mortgage that the note had been paid was not conclusive evidence of
payment. The bank should have been allowed to attempt to show mistake
in the execution of the document.
IFC Collateral Corp. v. Commercial Units Inc., 186 N. W. 2d 214 (Wis.
1971).
The sole stockholder of a corporation represented to a lender that
certain unimproved land was owned by the corporation, whereas in fact the
corporation had deeded it to him only a few days before. The loan was
thereupon made to the corporation and was secured by a mortgage. Four
months later three creditors of the individual secured judgments against him
and filed liens against the property. When the mortgagee discovered this,
it secured a quit claim deed from the individual of the land in question
and then commenced a foreclosure action. The judgment creditors claimed
priority over the mortgage.
HELD: When the mortgage was given by the corporation, although it
did not then own the land, nevertheless, the mortgage created an equitable
security interest in the property, in favor of the mortgagee. Such an equitable
mortgage can be turned into a legal mortgage by correcting the error which
existed at the time it was executed. When this is done the correction will be
held to relate back to the date of the original transaction by application of
the doctrine of relation back so that the mortgagee will be deemed to have
had a legal mortgage from the time of the creation of the equitable mort-
gage. Even though the judgment creditors had no notice of the prior
equitable interest when they secured their judgment liens, this is not suffi-
dent to give them priority over that of the prior equitable mortgage. The
failure of notice does not inure to the benfit of a judgment creditor because
he does not part with any value in reliance on the misleading state of the
debtor's title.
Irving Lumber Co. v. Alltex Mortgage Co., 468 S. W. 2d 341 (Tex.

1971).
Merit Homes purchased several residential lots with money borrowed
from Alltex (as part of a larger sum borrowed). Merit gave Alltex a note
and a deed of trust on the subject lots to secure the note payment. Merit
defaulted, and Alltex foreclosed its deed of trust, purchasing the lots at
foreclosure sale. Irving claimed it had furnished labor and materials for the
construction of homes for Merit and that its resulting mechanic's lien was
not affected by the foreclosure sale. Irving contended that it had an oral
contract with Merit to furnish labor and material prior to the date when
Merit acquired title, though no delivery of materials was made or construc-
tion begun until after he acquired title.
HELD: The mechanic's lien could not antedate the ownership of Merit
in the property and the priority of a security interest is not determined on
the date of the "inception" of an agreement between the contractor and a
prospective owner. The title to the lots passed to Merit burdened by the
deed of trust and security interest of Alltex in the same manner as if a
prior owner had conveyed a partial interest before Merit acquired its
ownership in the lots. At least to the extent of the purchase money ad-
vanced, a superior title was held by Alltex. That superior title was secured
by the deed of trust, and foreclosure and sale thereunder was effective to
cut off any inferior lien on the land.
Decision caused legislature to amend the mechanic's lien law within
matter of days to overturn this result.
Jones Construction Inc. v. Upjohn, 161 Conn. 191 (1971).
After the plaintiff-subcontractor commenced an action to foreclose a
mechanic's lien, the statute dealing with limitations on such liens was
amended to bar the entry of judgment beyond two years after the com-
mencement of an action. This amended statute would, if retrospectively
applied to this case, have barred this particular action.
HELD: Even though this statute is in the nature of a statute of limita-
tions and is essentially procedural, it will not be applied retroactively if
considerations of good sense and justice dictate that it not be so applied. In
the instant case good sense and judgment can hardly be said to dictate penal-
izing a plaintiff for failure to obtain a final judgment within a certain time
limit due to at least some factors beyond the plaintiff's control. Hence, the
conclusion is inescapable that the statute should not be construed as retro-
active to pending actions such as the one here in issue.
Landis v. Miles Homes, Inc., 273 N. E. 2d 153 (Ill. 1971).
One Diehl and wife occupied premises owned by Diehl's parents. They
took title to the same by warranty deed on March 16, 1965. Prior to acquir-
ing title, Diehl and wife had executed a first mortgage to the premises to
Miles Homes to secure a home improvement loan. The mortgage was dated
and recorded May 15, 1964. In 1967 the property was sold for delinquent and
unpaid taxes for the year 1966. A tax title issued in 1969. Mortgagee Miles
Homes received no notice of tax deed proceedings. The mortgagee and the
Diehls brought an action to set aside the tax deed and to be permitted to
redeem. They appealed from an order of the lower court denying such
relief.
HELD: Affirmed. Recording of mortgage given prior to time of acqui-
sition of record title by mortgagor is not in chain of title and is not con-
structive notice to third persons. Hence, mortgagee Miles Homes, Inc. was a
stranger to the record chain of title and was not a "mortgagee of record"
entitled to notice of proceedings for issuance of tax deed.
Landoff v. Garfinkel, 467 S. W. 2d 298 (Mo. 1971).

Defendant executed a first note and first deed of trust to plaintiff's
straw party and also executed second note and second deed of trust to the
same party. Plaintiff sold first note and first deed of trust and orally guar-
anteed buyers that first note would be paid. When defendant defaulted on
second note, second deed of trust was foreclosed and plaintiff's straw party
took title holding it for plaintiff's wife. Then plaintiff repurchased first note
with deed of trust to fulfill his oral guaranty, and foreclosed the first deed
of trust vesting title in straw party. Defendant pleaded merger on the
ground that the legal ownership of land and the encumbrances thereon
vested in the same person.
HELD: There was no merger. The expressed intention governs the
merger in equity and such intention will be presumed if the best interest
of the plaintiff requires that the encumbrance be kept alive for his benefit.
McFadden v. Walker, 488 P.2d 1353 (Cal. 1971).

A vendee under an installment sales contract defaulted in the monthly
payments in 1963. Nothing happened until 1966 when the seller started an
action to quiet title. The vendee then offered to pay the entire principal
balance, together with interest, but the vendor refused to accept the offer.
The vendee thereupon petitioned the court for a decree of specific perform-
ance.
HELD: A land contract must be treated like a mortgage and the court
will not enforce a forfeiture where it would result in the unjust enrichment
of the vendor. Therefore, the vendee had the right to redeem.
Pietro v. Leonetti, 26 Ohio App. 2d 221, 270 N. E. 2d 660 (1971).

Husband and wife executed a joint and several promissory note se-
cured by a mortgage upon property owned as joint tenants by husband and
wife. Wife on her husband's death became the sole owner as the surviving
co-tenant, sold the property, paid off the promissory note and sought con-
tribution from her husband's estate for one-half of the balance due upon
the note. Wife's position was that when two persons share a common
burden as joint debtors and one is compelled to pay more than his share he
is entitled to contribution from his co-obligor and the right of contribution
flows from the debt which is evidenced by the note and not from the
mortgage lien which is security for the debt. Executor of the husband's
estate stated that the execution of the joint and several note should not be
controlling since the surviving spouse is now the sole owner of the property
which was the security for the debt.
HELD: Wife is entitled to contribution from the estate.
Ramsey v. Peoples Trust & Savings Bank, 264 N.E.2d 111 (Ind. 1970).
A no lien contract under Indiana law does not affect labor, material or
machinery supplied prior to the time that the contract is filed with the
recorder. Subcontractor moved his machinery to the site of the construction.
Prior to the use of the machinery, owner and principal contractor properly
executed, recorded and posted in compliance with Indiana law a no lien
contract. Thereafter, subcontractor performed work. Subcontractor filed to
foreclose mechanics' lien.
HELD: Since subcontractor did not use the machinery prior to the
compliance with the provisions of the no lien contract statute, subcon-
tractor was not entitled to mechanic's lien.
Robert Allen Associates v. Carver Federal Savings & Loan Ass'n, 319
N. Y. S. 2d 1009 (Sup. Ct. 1971).
A mortgage was recorded after improvements were commenced on real
property. Thereafter a mechanic's lien was filed for these improvements and
an action of foreclosure was brought to foreclose the lien, naming the mort-
gagee as a subsequent party defendant.
HELD: The mortagee has priority over the mechanic's lien by rea-
son of the inclusion in the mortgage of covenant (required in New York
by section 13 of the Lien Law) whereby the owner agrees that all advances
under the mortgage are to be applied first toward payment of the cost of
improvements.
Sapenter v. Dreyco Inc., 326 F. Supp. 871 (E. D. La. 1971).
To avoid foreclosure of an apartment building the owner gave a mort-
gage on his home to secure payment of the arrears of the apartment mort-
gage. In a suit to foreclose the mortgage on his home he claimed that the
mortgagee had not made the disclosures required by truth-in-lending.
HELD: The mortgage on the mortgagor's home comes within the ex-
press exemption of the statute "credit transactions involving... credit for
business or commercial purposes .... The mortgage in question was a
transaction to finance the business of owning and renting real estate for
a profit. It, therefore, fell squarely within the exemption. Whether or not
a particular credit transaction is a consumer credit transaction depends
upon the reason for which the debtor obtains credit, not the nature of the
collateral he puts up. Consumer credit is credit which the debtor will use
for personal, family, household or agricultural purposes. Thus, a mortgage
on one's home to secure a home improvement loan is a consumer credit
transaction subject to truth-in-lending. But a mortgage on one's home to
finance one's business is not.
In re San Francisco Industrial Pk., Inc., 307 F. Supp. 271 (N. D. Cal.
1970).
HELD: Though developer sold land to insurance company for less than
REAL PROPERTY, PROBATE AND TRUST JOURNAL (Vol. 7:68
its fair market value and took an option to repurchase at less than the fair
market value at the end of the twenty-five year lease term, the sale-leaseback
transaction was valid and the life insurance company had superior title as
against the developer's trustee in bankruptcy.
Smokey Common, Inc. v. Pany Investment Co., 282 A. 2d 611 (Del.

1971).
Townpoint Apartments, Inc. was the owner of a building called B. B.
Smokey bought said building at a foreclosure sale on September 16, 1970,
subject to first, second and third mortgages on the premises. Thereafter,
on September 9, 1970, Pany instituted mortgage foreclosure proceedings on
its second mortgage. The mortgagor, the defendant, consented to Pany's
entry into possession and on September 1, 1970 assigned the leases to it.
Pany's second mortgage contained an assignment of rents clause and it filed
an interim accounting of the rents and profits. A foreclosure sale was held
and a writ of possession issued to Pany who purchased the entire complex.
Then on October 20, 1970, Smokey sent letters to the tenants demanding
the rents accruing after November 1, 1970 and thereafter sought to enjoin
Smokey from interfering with its collection of rents. The vice-chancellor held
that the rent assignment clause in Pany's mortgage, the filing of this action
and the securing of a restraining order all amounted to an official impound-
ing of the rents and that Smokey had no right to receive them. Smokey con-
tended that Pany's failure to apply for the appointment of a receiver to
impound rents barred its right to receive the rents.
HELD: Pany had the right after September 9, 1970, which was the
date of the commencement of its foreclosure action, to insist upon the im-
poundment of the rents so as to discharge the mortgage obligation. Since it
had this right, it made little difference whether Pany proceeded by injunc-
tion or by petition for receiver to prevent interference with rent collection.
Standard Savings & Loan Ass'n v. Evans, 178 S. E. 2d 145 (S. C. 1970).
First mortgagee brought action against mortgagor, the United States
as second mortgagee and other creditors to foreclose mortgage. Plaintiff
sought judgment for the amount due under the note and first mortgage
along with attorney's fees. The United States claimed a mortgage lien
against the property pursuant to its second mortgage and asserted it was a
prior claim superior to that for attorney's fee provided for in the first mort-
gage of the plaintiff.
HELD: First mortgagee's attorney's fee incurred in foreclosure action
had priority over second mortgage lien of the United States acquired
through a Small Business Administration Loan.
Prior to 1966, the federal common law rule was that the attorney's fee
of a first mortgage holder did not take priority over a governmental lien
unless the fee had become choate. However, the court found that Public
Law 89-719 changed the common law in this respect. The statute referred
to actually changed the priorities involving tax liens. However, the court
reasoned that the collection of taxes is basic to the operation and very ex-
istence of the Federal Government. It could see no justifiable reason for it
to adopt a rule more stringent than that deemed necessary by the Congress
in the importantfield of taxation.
State Fidelity Fed. Say. & Loan Ass'n v. Wehrly, 25 Ohio Misc. 221, 263
N. E. 2d 801 (1970).
Upon completion of a foreclosure and payment of prior liens, the sum
of $1,115 remained. This case involved a contest for said sum between a
land contracts vendee and federal tax liens. The vendee purchased on land
contract for $13,000 on June 1, 1967, on which date he paid $2,000 down
and immediately entered into possession. Thereafter, between August and
December of 1967, federal liens amounting to more than $4,000 were filed
against the vendor. The land contract was not recorded until January 31,
1968. Ohio statute provides that unrecorded land contracts ". . . are fraudu-
lent, so far as relates to a subsequent bona fide purchaser having at the
time of purchase, no knowledge of the existence of such... land con-
tract ......
HELD: Vendee has priority over the federal tax lien even though the
land contract was not recorded. His possession gave notice to third parties
of his rights. The statute is intended to protect subsequent purchasers and
not prior creditors.
Stowell Electric Co. v. Blue Valley Foundry Co., 467 S. W. 2d 955
(Mo. 1971).
Plaintiff filed a petition in circuit court of Jackson County at Independ-
ence, Missouri, to enforce mechanic's lien upon land located in Kaw Town-
ship of Jackson County contrary to the provision of the statute requiring
such suits to be field in circuit court of Jackson County in Kansas City.
Petition was dismissed and the lienor appealed, questioning constitutionality
of the statute.
HELD: The statute in question was not unconstitutional since it
affected equally all persons coming within its range and did not deny lienor
equal rights by creating unreasonable discrimination in lienor's selection
of a forum.
United States v. Thompson, 39 L. W. 2512 (Ark. 1971).
The owner of an apartment which was insured by F. H. A. defaulted
in payments on the mortgage. The government honored its insurance obli-
gation and then brought a federal district court suit to foreclose the mort-
gage. The foreclosure decree was entered and the appartment was sold to
the government, the only bidder. The former apartment owners filed this
motion to vacate the confirmation of the sale and set aside the sale on the
ground that it was in violation of an Arkansas statute which required that
any judicial sale be upon a credit of not less than three nor more than six
months and not for cash.
HELD: Motion denied. The Arkansas statute requiring foreclosure
sales to be for credit and not for cash need not be applied to federal fore-
closures.
White v. Turbidy, 227 Ga. 825 (1971).
Real estate installment note provided that in case of default in pay-
ment of any installment, holder could elect to declare indebtedness in de-

fault and entire balance due.
HELD: Notwithstanding fact note provided for acceleration "without
notice to maker," acceleration was permissible only upon notice to obligor.
Wood v. Wilson, 14 Ariz. App. 332, 483 P.2d 564 (1971).
Mortgagor demanded accounting for rents and profits prior to expira-
tion of period of redemption from foreclosure sale. Mortgagee, who pur-
chased at foreclosure sale, did not reply within one month after demand.
Mortgagor brought action to compel accounting and extend period of re-
demption until 15 days after final determination of this action. Superior
court rendered judgment against mortgagor and this court of appeals
affirmed. On this motion for rehearing, the court of appeals reversed itself,
having incorrectly relied on Gem Valley Ranches, Inc. v. Small, 92 Idaho
232, 440 P. 2d 352 (1968). In reversal, the court relied on Wilson v. Crim-
mins, 172 Ore. 616, 143 P. 2d 665 (1943), as determinative of the issue of
whether tender of payment by the debtor to the holder of the property is
a prerequisite to a demand for an accounting for rents and profits as allowed
under section 12-1288. The Oregon statutes are silent on the requirement of
tender as are the Arizona statutes.
HELD: Reversed and remanded. Tender of purchase price is not a pre-
requisite to a debtor trying to redeem demanding an accounting for rents
and profits as allowed under section 12-1288.
Amdursky, The Star of New York Mortgage Agency, 43 N. Y. S. B. J. 6
(1971). A discussion of the role of a public benefit corporation in stimulating
building and an explanation of its workings.
Barrett, Truth-in-Lending Advertising, 26 Bus. LAW. 829 (1971). Scope
of the advertising requirements imposed by Regulation Z as they apply to
installment sellers and also lenders.
Bartke, FannieMae and the Secondary Mortgage Market, 66 Nw. U. L.
REV. 1 (1971). A comprehensive coverage of the historical background of
National Housing Acts and a thorough review of federally sponsored and
insured housing mortgage programs. Includes legislation background, gov-
ernment philosophies, statistics, developments, adequacies and shortcomings
in the financing of national housing programs.
Bernard, Satisfying Mortgage Lender's Credit Lease Requirements, 52
Cim. B. REc. 197 (1971). Discusses new practice of requiring mortgagor
to assign lessor's interest under lease as additional security for mortgage
loans.
Brennan, Mortgage Loans Packaged as Securities, 1 REAL ESTATE REV.
65 (No. 1-1971). This article attempts to analyze briefly the subject of
the mortgage backed securities and to discuss the future role that they will
play in mortgage financing of the 1970's. The article begins with a discus-
sion of the economic circumstances which necessitated development of mort-
gage-backed securities. Next follow a description of the various types of
security programs developed by the Government National Mortgage Asso-
ciation (GNMA) and a discussion of the recent marketing of these securities.
Finally, the potential role of mortgage-backed securities (both GNMA guar-

anteed and privately issued securities) in the area of home financing is sum-
marized.
Brimmer, The FederalReserve and the Subeconomy of Real Estate, I
REAL ESTATE REV. 15 (No. 3-1971). The author, who is a governor of the
Federal Reserve System, believes that in order to help sustain the flow of
mortgage credit it is necessary to "dampen" the tendency of commercial
banks to channel a major share of their resources to business firms. The
article points out why the author believes that giving the Federal Reserve
the authority and option to impose variable reserve requirements on partic-
ular types of bank loans or investments, while extending the coverage to
nonmember banks, would greatly enhance the contribution of monetary
policy to cushion fluctuations in credit flow for housing needs.
Cochrane, Wrap-Around MortgageFinancing,37 LEGAL BULL. 185 (1971).
A wrap-around mortgage is a special situation technique which permits a
second lender to "refinance" a mortgagor for a sum greater than the exist-
ing balance on the first mortgage without payment of or disturbing the
existence of this first mortgage. Thus, from a priority standpoint wrap-
around mortgages are always a junior lien. The article is an in-depth ex-
amination of the different circumstances which will motivate the buyer to
resort to this unusual lending device as well as the technical aspects of a
wrap-around loan.
New approaches which might avoid the impediment to the use of these
mortgages by statutes requiring lending institutions to invest only in first
mortgages are discussed as well as the difference between so-called piggy-
back and wrap-around loans. Also discussed are the questions of usury which
must be considered.
Deming, The Federal Government and the Mortgage Lender, 1 REAL
ESTATE REV. 47 (No. 2-1971). The article discusses two aspects of the Fed-
eral Government's involvement in housing finance code. First, the impact
on the structure of the mortgage market and its principal financial institu-
tions. Second, the growing cost of our efforts to provide decent housing for
low-and moderate-income families and some of the social problems arising
out of these housing programs.
Driggs, A Lender's Guide to Apartment House Loans, 1 REAL ESTATE
REV. 26 (No. 2-1971). An overview and some rules of thumb for loans and
investments in small and medium rise apartment buildings. The author's
conclusion is that the fundamental rule to keep in mind when making
apartment loans is that mortgages can only be repaid from the cash flow of
the apartment. Thousands of apartments have been built where the invest-
ment was so high that it becomes impossible to earn an adequate rate of
return on the invested capital. A cash equity investment by the borrower
does not help the lender if that has not been prudently spent. Like most
other business, apartment development and management requires a degree
of expertise. A lender should be very careful in dealing with an inexperi-
enced and relatively uninformed investor who simply wants the apartment
as a tax shelter or a hedge against inflation.
Duffy, The Characterof Mortgages of Real Estate in Texas, 12 S.T.L.J.
REAL PROPERTY, PROBATE AND TRUST JOURNAL [V/ol. 7:68
129 (1970). A discussion of the characteristics of a mortgage of real estate in

Texas, and the necessary elements of its creation.
Epstein, State Securities Regulation of Real Estate Investment Trusts,
23 U. FLA. L. REV. 514 (1971). A discussion of real estate investment trusts
and the absence of clear guidelines in the regulation of such trusts by the
various states.
Feldman, FTC Enforcement of the Truth-in-Lending Act One Year
Later, 26 Bus. LAW. 835 (1971). A review of the Federal Trade Commission
enforcement activities and future plans broken down into three broad cate-
gories: (1) creditor education, (2) consumer education and (3) individual
enforcement activity. One of the conclusions of the author is that the three-
day right of rescission alone has been worth all the legislation and adminis-
trative effort expended over the past years. The author concludes that it
would greatly help compliance if section 130d of the Truth-in-Lending Act
were amended to extend civil liability to any subsequent assignee of the
original creditor. He firmly believes that the holder in due course doctrine
still operates to insulate assignees from the legal obligations of original
sellers.
Garwood, Truth-in-Lending After Two Years, 89 BANKING L. J. 3
(1972). With two years of history in the operation of truth-in-lending and
in the light of current anxiety over class action exposure, the author be-
lieves the time is ripe to examine the development of Regulation Z as well
as its impact on consumer awareness of interest rates and finance charges.
Goldberg, What to Do About Mortgages in the Sale of Real Property,
17 PRAC. LAW. 13 (No. 7-1971). The article is an in-depth analysis of how
to handle mortgage transactions in the sale of real property. Suggests
methods for conveyances under an existing mortgage, the creation of a
purchase money mortgage, in sales conditioned on the party's ability to
secure a mortgage from an outside source. In addition, the article contains
sample clauses and forms.
Greenwood, Syndication of Undeveloped Real Estate, 9 HOUSTON L.
REV. 53 (1971). Participating interests in such real estate should always be
treated as securities.
Harth and Weeks, Statutory Lending Powers of State Savings Associa-
tion, 36 LEGAL BULL. 179 (1970). A 268-page summary and compilation of
the statutory provisions of the several states which specifically lists the types
of loans as well as the limitations thereon permitted to state-chartered sav-
ings associations. The article contains a general discussion of statutory
trends and patterns relating to the various lending powers, a summary chart
and a section of pertinent excerpts from the state statutes.
Hrusoff, The Growing Pains of Public Real Estate Syndicates, I REAL
ESTATE REV. 22 (No. 3-1971). Because state securities commissioners have
tended to treat all publicly held limited partnerships the same, public
syndicates of diversified real estate encounter difficulties in "blue-skying"
in three major areas: (1) the investment policy, (2) the promoter's compen-
sation and (3) investor suitability standards. The article is a discussion of
each of these three.
Johnson, Default Administration of Corporate Trust Indenturer, 15
ST. Louis U. L. J. 203, 374 (1970-1971). A three-installment article covering

the general nature of the trustee's responsibility, events of default, default
remedial provisions, alternatives to default remedial provisions and judicial
arrangements and reorganization.
Macey, Award of Attorney's Fees as a Stimulant to Private Litigation
Under the Truth-in-Lending Act, 27 Bus. LAW. 593 (1972). The Truth-in-
Lending Act contains an allowance for the award of a reasonable attorney's
fee to the attorney for a successful litigant. It is the author's belief that
Congress intended this provision to serve as an incentive to lawyers to
bring civil actions against violators of the Truth-in-Lending Act on behalf
of aggrieved consumers. He believes that Congress intended to encourage
attorneys to undertake truth-in-lending cases and intended to create a
"core of private attorneys general." The author expresses surprise that,
"considering the involvement of everyone with the act," there has been
so little litigation. He refuses to believe that the reason for such a scarcity
of litigation is the compliance by all creditors. He believes that this result is
a combination of apathy on the part of the consumer, accompanied by lack
of familiarity with the act and its attorney's fees provision by the bar. The
author's hope is that this article will develop greater interest among the bar
in this type of action.
Murray, Fannie Mae and the New Forms, 50 TiLE NEWS 12 (No. 5-
1971). When FNMA was authorized by the Emergency Home Finance Act
of 1970 to deal in conventional mortgages, one of the proposed benefits
expected to be realized was the drafting and introduction of standard loan
document forms, with a view toward achieving the greatest practicable
measure of uniformity obtainable across the nation. This article discusses
how this undertaking was carried out.
Murray, Fannie Mae Goes Shopping for Conventional Mortgages, 1
REAL ESTATE REV. 54 (No. 3-1971). The FNMA's general counsel discusses
uniform mortgage documents, state usury laws and consumer protection in
the context of the new secondary market for conventional loans.
Pfeiler, Sale and Leaseback Financing, 37 LEGAL BULL. 121 (1971). In
its simplest form, a typical sale and leaseback or purchase and leaseback,
as it might be designated from the standpoint of the mortgage lender, in-
volves the sale of income-producing property by the owner to an investor
who immediately leases the property back to the seller. Such a transaction
has certain financial and tax consequences which often are the primary
reasons that the parties enter into it. This article touches on some of the
more common of these consequences which have motivated sale-leaseback
transactions between those parties which have been most active in the field.
It discusses the potential of the sale-leaseback device with respect to savings
association operations, considering both the corporate power of such institu-
tions to engage therein and any special financial and tax consequences that
uniquely may result to such institutions. In addition, the possible use of
sale and leaseback financing by and in conjunction with service corporations
is considered.
Rivera, An Introduction to Secured Real Estate Transactions in Mex-
ico, 12 ARIz. L. REv. 290 (1970). A detailed examination of Mexican law
governing mortgages, chattel liens and trusts as they relate to foreigners

acquiring estates or interests in or financing real and personal property in
Mexico.
Roegge, Talbot and Zinman, Real Estate Equity Investments and the
Institutional Lender: Nothing Ventured, Nothing Gained, 39 FORDHAM L.
REV. 579 (1971). An analysis of joint ventures between developers and in-
stitutional lenders, including the making of the agreement and the manage-
ment of the property.
Rosenthal, The Role of the Courts of Equity in Preventing Accelera-
tion Predicated Upon a Mortgagor's Inadvertent Default, 22 SYRACUSE L.
REV. 897 (1971). A discussion of the mortgagee's right to accelerate a mort-
gage upon the mortgagor's default in paying principal or interest due to the
mortgagor's own inadvertence. Reviews the history of said rule over the past
40 years and how the courts have avoided its application where special cir-
cumstances exist.
Sanders and McDonald, Non-JudicialForeclosuresand the Federal Tax
Lien Act of 1966, 24 Sw. L. J. 815 (1970). A discussion of nonjudicial fore-
closures of liens on real estate where the United States is a junior tax lien
holder. Emphasized is foreclosure on deeds of trust in Texas.
Schelkin, Construction Lending at Large Commercial Banks, 1 REAL
ESTATE REV. 54 (No. 1-1971). This article examines the profitability, risk
and importance of construction lending by banks with assets of over $500
million. It also provides a general description of construction lending and
considers the impact of the recent tight money policy.
Sonnenblick, The Future of the Mortgage Trust Industry, 1 REAL
ESTATE REV. I (No. 1-1971). A trust which has expert management will
receive the investor recognition necessary to raise new capital, will have
the ability to generate an adequate volume of loans regardless of money
market and competitive conditions, and will have the flexibility to adjust
to the exigencies of a hyperdynamic industry. From the absence of either
black or poor children from thousands of suburban or other schools, and
of black or poor families from thousands of suburban neighborhoods
throughout the nation served by those schools it is tempting to conclude
that some type of illegitimate conspiracy has been responsible for the con-
dition. The author disagrees with many urban planners who hold that the
desire to engage in residential discrimination so as to exclude others from
one's own neighborhood is immoral, illegitimate or otherwise bad. He be-
lieves that this desire is fundamental to human nature and is rooted in
many entirely legitimate purposes. Yet, at the same time, the desire of de-
prived households to gain access to benefits from which they are now geo-
graphically excluded is equally fundamental and legitimate. The article
attempts to show the basis for both legitimacies and to describe ways in
which they can be reconciled, not only concerning education, but also con-
cerning other key human needs and desires tied up with choosing a place
to live.
Spelman, Mortgage Banking in the Seventies, 1 REAL ESTATE REV. 30
(No. 1-1971). The conclusion of the author is that the mortgage banking
industry has the potential of setting new records of activity for two reasons.
One, the basic demand for new investment in real estate and for financing
that investment will steadily increase because of the increase in the number
and size of families. Two, the catch-up necessary to relieve the housing
shortage accumulated from the current housing recession.
Spolan, The Case for Variable Rate Mortgages, I REAL ESTATE REV.
15 (No. 1-1971). The VRM is examined in some detail and found to be a
useful tool for the thrift institutions in their fight against "monetary lag."
The author concludes that a variable rate mortgage is by no means the
panacea for all ills affecting the thrift business in times of tight money
and, in fact, many other corrective measures are employed to loosen cash
under such conditions. But such a debt instrument should be employed as
one more means of rectification whenever money becomes expensive. It
served many countries well. It should work well here too.
Withers, Surety v. Lender: Priority of Claims to ContractFunds, 10 WASH-
BURN L. J. 356 (1971). The competing claims of a defaulting contractor's
surety and a lender as assignee of the right to the contractor to funds with-
held on a construction contract has been and continues to be a prolific
source of litigation. The issue is essentially one of priority of claims. The
author points out that historically the battle has centered about the question
of whether a surety's subrogation rights are superior to rights of a lender
acquired by assignment. The courts have traditionally held a surety's rights
under the doctrine of subrogation are superior to the rights of the lender
acquired by a valid legal assignment.
Recently the lender has used the Uniform Commercial Code to assert a
priority claim. The contention of the lender is that the filing of a financing
statement on the assignment of contract rights creates a priority over the
surety. It is the author's contention that nothing could be further from the
truth. The article is devoted to the author's claim that the respective rights
of the surety and lender have been declared in case law and govern the
application of the Uniform Commercial Code.
Symposium on Commercial Law and Consumer Protection, 34 ALBANY
L. REv. 231 (1970). Bowman, Truth in Lending: A Look at Some Real Estate
Ramifications; Ward, A Bottleneck in Section 9-103; Schwartz, The Floating
Lien Under Sections 9-108 and 9-204; A Case Analysis; French, Unconscion-
ability.
Turner, Subordination Agreements, 37 LEGAL BULL. 449 (1971). A con-
sideration of the questions which should be asked and the facts which should
be investigated by a real estate mortgagee, construction or otherwise, who
intends to disburse the mortgage funds in reliance upon the validity and
enforceability of a subordination agreement.
XVIII. OIL AND GAS

A. Legislation
Kansas
Ch. 187: Provides requirements for plugging abandoned wells to pre-
vent pollution of any fresh water supply and penalty for violation thereof.
Mississippi
H. B. 821: Provides for underground storage of natural gas subject to

approval of State Oil and Gas Board and grants right of eminent domain
after obtaining approval of Board.
Collie and Linden, The Effect of the Tax Reform Act of 1969 on Oil,
Gas and Mineral Properties,4 IND. LEGAL F. 187 (1970). An examination of
the changes made in the tax advantages for the natural resources industries.
Dam, Implementation of Import Quotas: The Case of Oil, 14 J. L. &
ECON. 1 (1971). This article discusses the most developed import quota
scheme of the United States, namely, the mandatory oil import control pro-
gram and its voluntary predecessor. The focus of the discussion is on what
happens after the policy decision is taken to introduce import quotas.
Dodge, The Gerhard Doctrine of Abandonment-Outlook for Califor-
nia's Oil and Gas Industry, IV LAND AND WATER LAW REv. 511 (1971). In
light of the holding of the California Supreme Court in Gerhardv. Stevens,
442 P.2d 162 (1968) that an incorporeal interest in oil and gas of fee simple
duration can be abandoned, the effect of this decision on the oil and gas
industry in California and possible steps to protect the industry's holdings
are examined. Conceding that the policy of clearing titles and promoting
development is advanced by the court's utilization of the rationale of the
common law doctrine of abandonment, the author suggests that the un-
certainty generated from this decision should be eliminated by legislative
measures to clear land titles of uncertain mineral rights.
Dugan, Jurisdiction of the Federal Power Commission Over Importa-
tion of Liquefied Natural Gas, IV NATURAL RESOURCES LAW. 276 (1971).
The article examines the question which has arisen in both rulemaking and
adjudicatory proceedings whether the Federal Power Commission has juris-
diction (and if so, to what extent) over the importation into the United
States from a foreign country of liquefied natural gas by tank ship. The con-
clusion reached by the author after a lengthy analysis of the question is
that the transportation of LNG from a foreign port to a United States port
and its sale to a U. S. buyer does not constitute a transportation or sale
"subject to the jurisdiction of the Commission" and that the jurisdiction of
the Commission over an import commences with the U. S.-based buyer of
the foreign natural gas.
Johnson, Petroleum in Perspective, 11 NATURAL RESOURCES J. 119
(1971). The author raises the questions whether or not we can supply our
future needs for petroleum and whether we have dipped too deeply into
our supplies of this nonrenewable resource. While he believes that we will
be able to supply all our needs in the foreseeable future, the author states
the real question as being the price required to make it profitable to pro-
duce this supply. The article explores the inter-relationships between eco-
nomics, technology and policy to place petroleum in perspective.
Jones, The Oil Operatorand Surface Damages, IV NATURAL RESOURCES
LAW. 339 (1971). One of the more annoying, perplexing and unpleasant
problems to the oil and gas operator is that of surface, crop and livestock
damages sustained by surface owners or their tenants as a result, directly or

indirectly, of the exploration and production operations of oil and gas
lessees. Because of the magnitude and extent of the problem the author
endeavors to assist the oil operator to ease his surface damage exposure (a)
by generally and briefly reviewing the basic and established legal principles
of oil and gas surface damages and giving more detailed attention to some
areas not extensively considered by previous writers, (b) by examining some
recent and potentially far-reaching court rulings on this subject and (c) by
discussing some nonlegal aspects of the problem, drawing conclusions and
making some suggestions. The article is devoted solely to the law of surface
damage as it exists in the "major" petroleum producing states of the south-
west, namely, Texas, Oklahoma, Kansas and Louisiana.
Pischel, Oil and Gas Tax Planning:Post-Reform Act Impact of CA5's
Brooks Decision, 34 J. TAXATION 54 (1971). Although the full beneficial
impact of the recent Brooks case has been undercut by new section 636b
of the 1969 Reform Act, that case promises to retain its pro-taxpayer
vitality in oil and gas areas other than ABC transactions. The author anal-
yzes the case and discusses its continuing importance.
Sullivan, Oil and Gas Investment Programs: A Brief Survey, 26 Bus.
LAW. 1027 (1971). The purpose of this article is to outline the legal and
economic structures used by the oil and gas investment program industry,
their tax and regulatory implications, as well as to point out some problems
and potential areas of abuse.
Thomas, Real Estate Investor's Guide to Oil and Gas Drilling Pro-
grams, I REAL ESTATE REV. 84 (No. 1-1971). Because there are tax advan-
tages in oil investing, a drilling program seems to offer the best of both
worlds-an opportunity for substantial investment gains while reducing
income taxes. However, since drilling programs are complicated-taxation,
geology, oil drilling, financial analysis and portfolio management are some
of the skills involved-the prospective investor should take time to learn
at least the advantages and the pitfalls before making a decision. The author
investigates the problem from the following standpoints: (1) what is a
drilling program; (2) evaluating drilling programs; (3) the legal entity; (4)
program design; (5) amount invested; (6) tax write-off; (7) conflicts of in-
terest; (8) management; (9) what investors can expect from drilling pro-
grams and who should invest in drilling programs; (10) risks; (11) liquidity;
(12) the mechanics of drilling program investing.
Villareal, PracticalAspects of an Oil Pollution Case, 17 PRAC. LAW. 37
(No. 6-1971). The article is written for the shipowner's lawyer in an oil
pollution case and it outlines the immediate action that should be taken-
contacts with the Coast Guard, containment of the oil, investigation of the
cause of the spill, public relations and, finally, management of the clean-up
operations. A survey of the applicable statute and case law is also included.
XIX. OPEN SPACE AND CONSERVATION
A. Legislation
Connecticut
P. A. 46: Amends 22-7 (j) to permit Commissioner of Agriculture and
Natural Resources to enter upon any public or private property at reason-

able times in order to effectively carry out the provisions of the "tidal wet-
lands" statute.
P. A. 73: Amends 71-131(b) which provides that a landowner who con-
veys less than a fee interest to a municipality for open space purposes is
entitled to a revaluation so as to reflect the effect of such encumbrances upon
the value of his land. This act is designed to carry out the recommendations
of the Governor's Committee on Environmental Policy by encouraging
private owners to convey environmentally desirable easements in considera-
tion of receiving appropriate tax relief.
P. A. 138: Amends 22-70) to give Commissioner of Agriculture and
Natural Resources the authority to temporarily designate land as "wetlands"
for a period of 60 days pending the completion of a statutory map.
Maine
Ch. 548: Authorizes landowner to have open space land designated as
such either by the Planning Board of a municipality or by the Maine Land
Use Regulation Commission. Once the designation of such open space land
has been made, the municipal assessor or the state tax assessor in unor-
ganized territory may determine value of land based on its current use,
rather than its highest and best use. There are recapture provisions so that
a change in the utilization of the land will bring readjustment of past taxes
paid.
Missouri
H. B. 519: Provides for the reclamation of land once mined.
H. B. 570: Provides for preservation of open spaces in counties having
population in excess of 200,000 and in counties adjoining, and cities not
within but adjoining such counties, by transfer and acquisition of interests
in land and water rights by governmental agencies or organizations formed
for that purpose, and providing for the valuation of such land for tax
purposes.
Pennsylvania
P. A. 242 and 243: Amend the Bituminous Coal Open Pit Mining Con-
servation Act and the Anthracite Strip Mining Conservation Act by regulat-
ing planting upon the surfaces of coal banks and backfills after the opera-
tions have been completed.
Virginia
Code 10-21.3:1: Authorizes Commonwealth to enter into cooperative
agreements with landowners, private organizations and individuals, and to
acquire by agreement, gift or purchase land, rights-of-way and easements
for the purpose of establishing, protecting and maintaining a walking trail
right-of-way across the Commonwealth. This trail, known as the Appalachian
Trail, shall be developed and administered primarily as a footpath in ac-
cordance with the provisions of the National Trails Systems Act with the
natural scenic beauty of the trail preserved insofar as is practicable.
Code 10-90.20 through 10-90.29: Provides in the interest of preservation
of the state's forests and the conservation of related environmental benefits

for land now in excess of 500 acres under sole ownership and for land not
receiving federal financial assistance that the state forester may make
available for use of state-owned equipment, material and personnel for the
purpose of preparing the land for reforestation and, as incentive for such
reforestation, the state forester may grant to the landowner from funds
appropriated for the purpose: (1) up to 50 per cent of the total cost of
reforestation, but not exceeding $20 per acre; or (2) up to 75 per cent of
total cost or $30 per acre of cost, whichever is less, with condition that a
30-year lien for such sum shall attach to the reforested land and trees planted
thereon.
Halperin, Conservation, Policy and the Role of Counsel, 23 MAINE L.
REv. 119 (1971). A discussion of the tactics and strategy used in State v.
Johnson, 265 A.2d 711 (Me. 1970), the case which found Maine's Wetlands
Act to be unconstitutional.
XX. PLANNING AND ZONING

The existence of a strong feeling that the so-called exclusionary zoning
laws should be eliminated is apparent from the 17 leading articles or
comments devoted to this subject, especially when these are combined with
the five articles on regional zoning since the latter appears to be motivated
by the belief that it is the local control of zoning which prevents minority
groups from moving into the suburbs.
The state legislatures appear to show little inclination, if any, to change
the concept of zoning to comply with these writers' objections. Only Colo-
rado and Maine enacted statutes which at all touched upon the problem and
these were limited to removing from local governmental regulation all
factory-built housing approved by the state division of housing.
Decisions in Connecticut, Georgia, New Jersey and New York show
the willingness of the courts to overrule attempts of the local government
bodies to blatantly use zoning as a means to exclude undesirable peoples
or uses. The California decision, Palo Alto Tenants Union v. Morgan,
listed in this report, warrants specific reference in that it approved of a
local zoning ordinance which limited to four the maximum number of un-
related individuals living in a single family house in residential sections.
The basis for the decision is (1) communal living has adverse effects on the
character of any residential neighborhood because of the increase in noise,
traffic and parking generated thereby; (2) the traditional family biological
and legal ties are lacking and in their place are only emotional ties without
the corresponding legal responsibilities of support and cohabitation.
A. Legislation
California
Ch. 150: Requires that the general plan shall also include an identifica-
tion and appraisal of seismic hazards.
Ch. 306: Prohibits local government bodies from conditioning the is-
suance of building or use permits or zone variances on the dedication of
land for any purpose not reasonably related to the use of the property to
which the variance or permit is requested. Prohibits the requirement of post-
ing a bond to guarantee installation of public improvements not reasonably
related to the use of the property for which the variance or permit is
requested.
Ch. 1085: Requires protection of persons residing in vicinity of airports
from intrusions by unreasonable levels of aircraft noise and to achieve by
zoning compatible land uses in the vicinity of all new and existing airports.
Colorado
Ch. 167: Amends Housing Act of 1970 to remove from local govern-
ment regulation all factory-built housing which is approved by the Division
of Housing.
Ch. 261: Substantially amends the Land Use Act to shift emphasis from
development of state-wide land use map to development of guidelines for
local government land use planning.
Connecticut
P. A. 215: Amends 8-26(a) by providing that all approved subdivisions
of property are protected for a period of five years against future changes
in the subdivision regulations which existed at the time of the approval of
the particular subdivision plan.
P. A. 388: Amends 8-13(a) by reducing from five to three years the
period that a building must be located on a lot in violation of the zoning
setback lines before it will be deemed a nonconforming use.
Maine
Ch. 456: Creates the industrial housing law, the main purpose of which
is to give State Housing Authority right to oversee activities of people creat-
ing industrialized housing (fabricated residential structures).
Ch. 457: Provides that the jurisdiction of the Land Use Regulation
Commission shall extend to all of the unorganized territory of the state.
Ch. 532: Places a minimum frontage requirement on any lot abutting
a public road, lake, pond, river, stream or seashore, which minimum front-
age shall be 100 feet.
Ch. 535: Provides mandatory zoning and subdivision control in shore-
land areas, which are defined as those land areas any part of which are
within 250 feet of the normal high water mark of any navigable pond, lake,
river or salt water body. Municipalities are given until June 30, 1973, to
adopt zoning and subdivision control ordinances over these areas. If they
do not, the Environmental Improvement Commission and the Land Use
Regulation Commission may adopt these ordinances themselves.
Ch. 541: Gives the Wetlands Control Board authority to make orders
regulating, restricting or prohibiting dredging, filling, removing or deposit-
ing material in the coastal wetlands or otherwise polluting them.
Missouri
H. B. 145: Authorizes cities of more than 25,000 population to zone
areas up to two miles beyond the city limits with approval of the county
court. But, if the county creates a county planning commission that adopts
an official master plan for the county, the city's authority is terminated.
Oklahoma
Ch. 238: Provides for vacation by the City Council and, upon a showing
of nonuser by the public for 90 days after the passage of the ordinance
vacating the street or alley, any interested party may sue in district court
to quiet title thereto.
Ch. 239: Provides for the same relief without the benefit of a vacation
by City Council where parties have closed a street or alley, upon a showing
of nonuser by the public for 90 days.
Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109
(1970).
Subsequent to purchase of 275 undeveloped acres in 1958, the planning
regulations were amended to authorize the planning commission to require
a plan of subdivision to show an area for park or playgrounds at a rate
of not more than four per cent of the total approved area. When the pur-
chasers submitted a subdivision plan without complying with the above
regulations, the application was denied.
HELD:The test to determine whether a requirement that a developer
set aside land for park and playgrounds as a prerequisite to approval of a
subdivision plan is valid is whether the burden cast upon the subdivider
is specifically and uniquely attributable to his own activity. Where the
requirement is uniquely attributable to the subdivider's activity it has been
held to be a permissible exercise of the police power. It is clear that the
requirement cast upon the plaintiff by the regulation and statute is uniquely
and solely attributable to its activity in undertaking to establish a subdivi-
sion. Engaging in the activity is left to its own choice. When it undertakes
to subdivide, the population of the area is necessarily increased and the need
for open space for its people becomes a public one. In these days of bur-
geoning population, critical housing problems and the incentive which they
create for the activity of land developers, the need for parks, recreational
areas and open space for the welfare of the people looms large.
Case of first impression. Court distinguishes contrary holding in Hangen
v. Gleason, 226 Ore. 49, 359 P.2d 108, Coronado Development Co. v.
McPherson, 189 Kan. 174, 368 P.2d 51 and Gordon v. Village of Wayne, 370
Mich. 329, 121 N.W.2d 823.
Berlani v. Zoning Board of Appeal, 160 Conn. 166 (1970).
The Zoning Board of Appeals granted a variance to permit owner to
erect a building to house a bailing machine in order to permit him to re-
main competitive as regards the cost of doing business.
HELD: Financial considerations are relevant only in those exceptional
situations where a board could reasonably find that the application of the
regulations to the property greatly decreases or practically destroys its value

for any of the uses to which it could reasonably be put and where the regu-
lation, as applied, bears so little relationship to the purposes of zoning that,
as to the particular premises, the regulation has confiscatory or arbitrary
effect. Since the board made no finding that the effect of the regulation on
the applicant's property is confiscatory or arbitrary, there is nothing in the
record to support the granting of the variance.
Bridge Park Co. v. Borough of Highland Park, 273 A.2d 397 (N. J.
1971).
The borough sought to prohibit condominium ownership of garden-
type apartments by a restriction in its zoning laws which defined garden
apartments as buildings "under single ownership." The owner of a garden
apartment wishing to convert to condominium ownership brought the ac-
tion to question the authority of the zoning ordinance.
HELD: Municipalities can regulate the use of land and buildings
through zoning. Although the borough attempted to characterize condo-
minium ownership as a "use" within the meaning of zoning, this is clearly
outside the zoning enabling statute. The ownership, whether single or mul-
tiple, would not change regardless of how the property was used. The build-
ings would continue to remain the same and would continue to be occupied
as living accommodations. Therefore, the zoning ordinance was invalid.
Confederacion de la Raza Unida v. City of Morgan Hill, 324 F. Supp.
895 (N. D. Cal. 1971).
Action by a group of persons of Mexican descent attacking the validity
of city zoning ordinance which regulated housing density in a certain hilly
and mountainous area in order to facilitate the orderly and creative develop-
ment of such area and to preserve and enhance the natural amenities. The
challenge was based on ground that the ordinance precluded development of
low cost housing or prevented low income families from living in district
covered by the ordinance.
HELD: Motion to dismiss granted. The zoning ordinance, by its express
purpose or by its administration or otherwise, does not discriminate on
racial or income grounds and in no way precluded development of low-cost
housing in conformity with policies of the National Housing Act of 1937.
The fact that legitimate zoning policies make certain land expensive and
thereby not within the reach of certain individuals is not unlawful and not
misaligned with the dicta of Southern Alameda Spanish Speaking Organi-
zation v. City of Union Hill, 424 F.2d 291.
Connor v. Shellburne, Inc., 281 A.2d 608 (Del. 1971).
The New Castle County Council replaced the Levy Court of New Castle
County, Delaware as the governing body of the county. The State Supreme
Court had previously held that hearings upon zoning matters before the
Levy Court were in the nature of adversary proceedings and that the right
should be afforded to interested persons to call and cross-examine witnesses.
The Court of Chancery found that County Council hearing was likewise
an adversary proceeding in which the parties had a right to examine wit-
nesses under oath.
HELD: Former ruling as to Levy Court was held not applicable to

County Council. The Levy Court had multiple legislative, quasi-judicial,
and executive powers and functions. It customarily sat as a tribunal at
zoning hearings conducted in a quasi-judicial manner. The present County
Council, on the other hand, is an ordinary legislative body. For that reason
its proceedings should be treated as a legislative process such as in the
General Assembly of the State of Delaware which would not permit the call-
ing and cross-examination of witnesses.
Crow v. Brown, 332 F.Supp. 382 (N. D. Ga. 1971).
HELD: Where a county had legitimately zoned tracts for construction
of apartments, denial of building permits, upon discovering that the apart-
ments would be occupied by low-income tenants, constituted a denial of
equal protection.
Damaskos v. Board of Appeal of Boston, 267 N. E.2d 897 (Mass. 1971).
A realty trust secured a variance from the Board to construct an apart-
ment house in Boston. Abuttors field a bill for review of the decision in
superior court. The state zoning act required bond only in zoning appeals
from the Board of Boston. Bond was set at $50,000 and was not filed, and
bill was dismissed.
HELD: Requiring a bond even in Boston was discretionary with court
and should not be used to prevent meritorious appeals but only frivolous
or vexatious ones.
East Diamond Head Ass'n v. Zoning Board of Appeals 479 P.2d 796
(Hawaii 1971).
Review of the grant of variance was sought. The lower court held that
owners of adjoining land were not entitled to judicial review and they
appealed.
HELD: An owner whose property adjoins land subject to a zoning
variance is a person aggrieved within the statute and was entitled to judicial
review of the grant of variance by the Zoning Board of Appeals where each
had comported with all procedural dictates at the public hearing even
though none had intervened in the hearing.
Gagne v. Inhabitants of City of Lewiston, 281 A.2d 579 (Me. 1971).
Owners of land on which a crushed stone operation was conducted
maintained a garage located largely within an industrial zone, but a small
part of which was within residential A zone, as was also the yard used prin-
cipally by the owner for moving and storing large trucks and other heavy
construction equipment. This present use of the property in a residential
zone was a lawful nonconforming use. Owners proposed to demolish
present garage and erect a new and larger one on the same lot. The zoning
ordinance provides "A building or nonconforming use may be enlarged or
altered or additional buildings may be erected... provided the Board of
Appeals shall rule that such additional (sic) or alteration is not substantially
more detrimental or injurious to the neighborhood." The board voted to
issue a permit for the construction of the new building but did not make
any finding. Shortly thereafter plaintiffs appealed. The board voted to
grant the petition and stated in writing that the change or extended use
would not be substantially more detrimental or injurious to the neighbor-
hood. The state enabling act gives a local Board of Appeals power to
grant an exception to an ordinance "only when the terms of the exception
have been specifically set forth by the municipality."
HELD: The reference to "additional buildings," along with "enlarged
or altered," does not indicate an intention to permit replacement of an
existing building with a new one. The policy of the law with respect to
nonconforming use is to effect the gradual elimination of nonconforming
uses as speedily as justice will permit. Accordingly, provisions in a zoning
ordinance allowing the continuation of such uses should be strictly con-
strued and provisions limiting nonconforming uses should be liberally
construed.
With respect to the effect of the second ruling of the Board of Appeals
on the action commenced by plaintiffs, the general rule is that the filing of
an appeal removes the cause from the administrative tribunal to the court.
Thus the appeal terminates the authority of the tribunal to modify its
decisions unless the court remands the matter to the tribunal for its further
action, thereby reviving its authority.
Gates Mills Investment v. Parks, 25 Ohio St. 2d 16, 262 N. E.2d 859
(1971).
Planning commission of a village refused to approve a plat submitted
by a land developer for the reason that the plat did not comply with a
village zoning ordinance providing for rules and regulations for subdivid-
ing land within the village. A state statute provides that the legislative
authority of a village is precluded from adopting a plan or rules and regula-
tions governing plats and subdivisions of land where such village has a duly
elected or appointed planning commission.
HELD: Under such statute a planning commission acts unreasonably
and unlawfully in refusing to approve a plat for the reason that said plat
does not conform to provisions of a village ordinance. Under such a statute
the legislative authority of a village can adopt a plan for streets and public
parks only if there is no planning commission.
Golden v. Board of Selectmen, 265 N. E.2d 573 (Mass. 1970).
Golden applied to the Board and also to the Director of Marine Fish-
eries under the Coastal Wetlands Act for a special permit to dredge through
his coastal tidal marshland. While Director gave his authorization, the
Board refused the permit.
HELD: The Act set out minimum standards for the whole state but the
municipality had not lost its power under the zoning enabling legislation
to set more stringent standards which could not be overruled by the Director
of Marine Fisheries.
Holt-Lock, Inc. v. Zoning and Planning Commission, 161 Conn. 182
(1971).
The plaintiff's application for a permit to remove sand and gravel
from its flood plain land was denied. The plaintiff claimed the trial court
erred (I) in not concluding that a letter from the secretary of the local board
of education and reports from a firm of consultants, sent to the commission,

after the public hearing, violated the plaintiff's right to be fully apprised of
the facts on which the commission acted; (2) that the denial of its applica-
tion amounted to a confiscation of its property without due process of law.
HELD: Since the record indicated that the letter from the board of
education was neither accepted nor considered by the commission and that
the reports contained no new evidence and were solely to aid the commission
in determining what conditions it might impose if the application were
granted, the plaintiff's claim was without merit. The claim that the denial
of the application constituted an unconstitutional taking of the plaintiff's
property was prematurely raised because, under the zoning regulations, the
board of appeals had authority, where flood plain land was concerned, to
grant a special exception permitting the construction of a building thereon
and to permit filling or paving of land. Consequently, until this remedy
had been exhausted, it could not be said that the plaintiff was denied the
reasonable use of his property.
J&M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229 (1971).
Plaintiff applied for a building permit to construct a scrap-processing
plant in a heavy industrial zone. The plant was to receive frames of auto-
mobiles which had been stripped, burned and compressed into virtual sheets
of steel so that their identity as motor vehicles had dissappeared and, by its
manufacturing process, to convert them into fist-size pellets of steel for use
in steel mills. Plaintiff's application was denied on the ground that the
zoning regulations prohibited, in that zone, the use of premises for a junk
yard, motor vehicle junk business or motor vehicle junk yard.
HELD: The proposed manufacturing process does not come within
terms of that part of definition of "motor vehicle junk yard" and, since
the plaintiff will be neither buying nor selling the raw crushed metal on
its premises, its manufacturing plant does not fall within the common under-
standing of "junk yard." Nor do the historic reasons for licensing junk
yards and the operation of a junk business apply to the proposed factory
use. The purpose of the statutes relative to motor vehicle junk yards is not
served by applying their provisions to a business like that of the plaintiff.
Kavanewksy v. Zoning Board of Appeals, 160 Conn. 397 (1971).

Zoning and planning commission denied plaintiff's application to
build on three lots shown on a subdivision map on the grounds that since
the map was submitted to it the minimum lot size was increased from one
acre to two acres and the frontage from 100 to 200 feet. The commission
stated upon its record that the reason for the upgrading of the lot area
requirement was because of the demand "of the people to keep the town
a rural community with open spaces and keep undesirable business out."
At that time the town had a population of 680 and its area consisted of 27.9
square miles.
HELD: While a zoning authority is endowed with a wide and liberal
discretion, the reasons given by the commission for upgrading the lot area
requirements failed to comply with any of the statutory directions for the
adoption of zoning regulations and cannot be sustained.
Kyritsis v. Fenny, 320 N.Y.S. 2d 702 (Sup. Ct. 1971).

This was an Article 78 proceeding wherein petitioners sought a judg-
ment reversing a decision of the zoning board of appeals denying petition-
ers' application for a building permit to construct a modular home.
HELD: A modular home, which consisted of a minimum of two large
sections, each of which was transported to building site separately, with
installation of heating system and application of siding coming after erec-
tion of home, and which was indistinguishable in appearance from con-
ventially built homes, did not fall within zoning ordinance defining a
"mobile home," which use is allowable only in a licensed park, as any "vehi-
cle" or a similar portable structure designed or constructed to be towed,
driven or otherwise transported to its resting site.
Cast of first impression as to whether a modular home falls within the
definition of "mobile home" as set forth in zoning ordinances.
Loh v. Town Plan and Zoning Commission, 161 Conn. 32 (1971).
Commission changed the zonal classification of a parcel of property to
a less restrictive residential district, thereby permitting its use for certain
multiple-family dwellings under detailed and stringent conditions. Pre-
viously the commission had denied an application for the change of zone
for a tract which included the parcel for which the change in this case was
made.
HELD: The commission's prior denial of the application did not pre-
clude it from granting the present application, since a zoning commission
acts in a legislative capacity when it amends its regulations or alters zone
boundaries, and, therefore, it is not bound by the rule prohibiting adminis-
trative boards from reversing earlier decisions where no change of circum-
stances is shown. There is no merit in the claim that, because a member of
the commission, although absent from its public hearing, was permitted to
vote in its executive session, the change of zone was illegal. The statutes
do not require the presence at a public hearing of a zoning commission
member as a condition precedent for that member to vote on a change in
regulation of zone boundaries. At the same time it was equally clear that the
legislature could not have intended a member who had not been present
at the public hearing could lawfully vote on a change without first acquaint-
ing himself sufficiently with the issues raised and the evidence and arguments
presented at the public hearing. The rule to be applied is that a member
of a zoning commission, although not present at the public hearing, may
lawfully vote on a proposed change in regulations or zone boundaries if that
member acquaints himself sufficiently with the issues raised and the evi-
dence and the arguments presented at the public hearing in order to exercise
an informed judgment. No evidence was introduced here to show that the
absent member did not come within this rule.
Case of first impression on the last point.
Lurie v. Planning and Zoning Commission, 160 Conn. 295 (1971).
The defendant commission rezoned a 62-acre tract from a residential
to a design development district and granted a special permit to the de-
fendant F. Co., a private school, to use the rezoned area for its corporate
purposes. The plaintiff claimed that the commission, in granting the special
permit, acted invalidly by conditioning it on the effectuation of certain off-
site highway and traffic changes and improvements by other town agencies
not under its control. The trial court distinguished this case from other Con-
necticut cases which held that where a grant of an exception or special per-
mit is made conditional upon favorable action of another agency over which
the zoning authority has no control, its issuance will be held invalid because
this particular case differs in the material respect that the commission itself
determined precisely what on-site and off-site changes should be effectuated
so that the health, safety and general welfare of the municipality were pro-
tected. The commission then made the issuance of the permit conditional
upon the effectuation of those changes.
HELD: The commission had no jurisdiction over the other public
agencies involved and could not order or require any of them to do any-
thing so as to comply with these specified conditions. But unless these other
public agencies did take the necessary action to comply with the off-site
conditions, then, under the provisions of the conditional permit, the appli-
cant could not make the contemplated use of the property. Where an ex-
ception or special permit is granted and the grant is otherwise valid except
that it is made reasonably conditional on favorable action by another agency
or agencies over which the zoning authority has no control, its issuance will
not be held invalid solely because of the existence of any such condition.
Two of the live justices dissented because the decision is a departure
from Connecticut'ssettled rule most recently stated in Stiles v. Town Coun-
cil, 159 Conn. 212, 268 A.2d 395 (1970) to the effect that a change of zone
or the granting of a special use which is dependent for its proper function-
ing on action by other agencies over which zoning commission has no
control cannot be sustained unless the necessary action appears a probability.
Molino v. Mayor and Council of Grassorough,281 A.2d 401 (N.J. 1971).

Ordinance required that in any given apartment complex at least 70
per cent of units have no more than one bedroom, no more than 25 per cent
have two and no more than 5 per cent have three.
HELD: Provision which was admittedly designed to keep children out
of the community because more children require more schools and thus
higher taxes is unconstitutional.
Palo Alto Tenants Union v. Morgan, 321 F.Supp. 908 (N.D. Cal. 1970).
Zoning laws limiting to four the maximum number of unrelated per-
sons who may live together in a single family house in residential areas was
challenged because it was a denial of equal protection to impose a limitation
on number of unrelated persons living together without a similar restriction
on traditional families.
HELD: Voluntary families or communes have only emotional ties
without the legal responsibilities of support and cohabitation. The legisla-
ture had the right to recognize the role of the traditional family. Communal
groups tend to have an adverse impact on the character of the neighbor-
hood in that noise, traffic and parking problems increase.
PeninsularPoint Inc. v. So. Ga. Dairy Co-Op Inc., 251 So.2d 690 (Fla.
Ct. App. 1971).
Original subdivider of waterfront property brought action against a
subsequent grantee to enjoin obstruction of a plotted street which had been
abandoned. After the county had formerly abandoned the public right to
the streets the subsequent grantee proceeded to construct a fence blocking
off the entire area in front of the street lying between his two lots. The
subdivision plot was executed and recorded before any lots were sold and
bore on its face a dedication of the street in question as follows: "... and
does hereby dedicate the perpetual use of the public as public highways, the
streets herein, reserving unto itself, its heirs, successors, assigns or legal
representatives, the reversion or reversions of the same whenever abandoned
by the public or discontinued by law."
HELD: The rule of Smith v. Horn, 70 Fla. 484, which provides that
title of the grantees abutting on dedicated streets in a subdivision extends
to the center of such highways is not applicable where the owner indicates
a contrary intent. Here the language of the reversion contained on the face
of the recorded plot is sufficiently clear to meet the "clear intent" necessary
to avoid the application of the rule.
Slevin v. Long Island Jewish Medical Center, 319 N.Y.S.2d 937 (Sup. Ct.
1971).
Neighbors sought to enjoin a church and hospital from maintaining a
drug center on the third floor of the parish house.
HELD: The drug center which was designed to reach nonaddicted
youngsters in early stages of experimentation with marijuana and so-called
"soft drugs," to the exclusion of addicts, users of "hard" drugs and pro-
longed drug users, and which was not a residential facility, with medications
or drugs for detoxification, withdrawal or maintenance, but a facility for
helping early troubled drug users to find their way while still functioning
acceptably at home and in society, was a "religious use" of church property
and a valid extension of a religious institution for zoning purposes. Whether
the drug center presented such a danger to public health and safety as
would require its discontinuance was question of fact precluding summary
judgment in favor of either party. Further, while religious uses cannot be
entirely excluded, religious uses are nonetheless subject to reasonable regu-
lation weighed in relation to total safety, health and morals of community.
State v. Murray, 471 S.W.2d 460 (Mo. 1971).
Mandamus to compel issuance of a permit to locate and occupy a house
trailer as a residence. Property owners contended the zoning ordinance
which denied such use was a denial of the due process and equal protection
provisions of the United States and Missouri Constitutions.
HELD: Mobile homes are residential uses which possess special char-
acteristics warranting their separate regulation. They may be confined
to mobile home parks, or may be excluded from residential districts on the
ground that they tend to stunt the growth of the land, or on the ground that
they involve potential hazards to public health. Absent exceptional cir-
cumstances, the exclusion of this use is not unreasonable.
[To be concluded in Summer issue]
Respectfully submitted,
THOMAS F. GALLIVAN, JR., Chairman,Suffield, Conn.
The chairman acknowledges the substantial contribution made by PETER A. LrTwiN,

Hartford; JUDITH A. MAYNES, Stevenson; ARTHUR B. LAUDER, JR., Newington; ROBERT G. SAME,
West Hartford; CHESTER W. FAIRLIE, West Hartford; HILLERY J. GALLAGHER, Manchester, and
RICHARD J. LucAs, Seymour, Connecticut, all third-year students at the University of Connec-
ticut School of Law, who assisted in researching and assembling material for this report in
areas not assigned to or not reported by committee members.
Subcommittee on Legislation: Subcommittee on Significant Decisions:

E. L. COLEBECK, Vice Chairman, ROBERT W. STOREY, Vice Chairman,
Florence, Ala. Atlanta, Ga.
RICHARD M. ADAMS, San Francisco, Cal. WINSTON L. ADKINS, Dallas, Tex.
DANIEL T. BERGIN, Phoenix, Ariz. WILLIAM F. ABEL, Columbia, S. C.
ROGER H. BERNHARDT, San Francisco, Cal. G. ROBERT ARNOLD, Orlando, Fla.
SYLVESTER JAMES BOUMIL, Lowell, Mass. MARSHALL D. BiEsTERsnw, Denver, Colo.
FELIX E. CINCOTrA, Waltham, Mass. ROBERT B. BUTLER, Hollywood, Fla.
PHILIP S. COOPER, Anderson, Ind. RALPH CHAPMAN, Brattleboro, Vt.
RICHARD H. CowLEs, Burlington, Vt. HARRY G. COSTELLO, St. Paul, Minn.
RICHARD J. CpAvENs, Chicago, Ill. CHARLES W. DEANER, Las Vegas, Nev.
THOMAS E. CREIGHTON, Denver, Colo. JOHN M. DIXON, JR., Hopkinsville, Ky.
HOWARD DAVID, Oklahoma City, Okla. ARTHUR G. ECCLESTONE, JR., Norwood, Mass.
EDITH M. DEBUSK, Dallas, Tex. HERMAN GINSBURG, Lincoln, Neb.
JAMES WuIFRE DOHERTY, Laconia, N. H. BARNETT M. GOODSTEIN, Dallas, Tex.
ROBERT E. DRISCOLL, JR., Lead, S. D. LEO J. JOLIET, Cleveland, Ohio
JONATHAN C. EATON, JR., Minot, N. D. MARGERY C. LEONARD, Boston, Mass.
FRANCIS H. FAIRLEY, Charlotte, N. C. JESSE E. MARSHALL, Sioux City, Iowa
LLOYD S. JACOBSON, Milwaukee, Wis. FRANCIS F. MULLEN, Providence, R. I.
J. HUGH LooKADOO, JR., Arkadelphia, Ark. DAVID PLIMPTON, Portland, Me.
H. MAX MARQUARDT, Kalamazoo, Mich. SAMUEL W. PRINGLE, JR., Pittsburgh, Pa.
JOsEPH 0. MCDANIEL, Elko, Nev. RICHARD H. RADLEY, Peoria, Ill.
CHARLES G. MCMULLAN, JR., Richmond, Va. EDWARD N. SALiM, Cleveland, Ohio
ALLAN F. NASH, Denison, Iowa W. JACK SCHROEDER, Evansville, Ind.
ROBERT S. NICKOLOFF, Hibbing, Minn. WALTER SOLAN, St. Louis, Mo.
JAMES WILLIAM PADDOCK, Lawrence, Kan. EDWARD J. STEINER, Kittanning, Pa.
DONALD B. PArERsON, Brookhaven, Miss. BYRON A. STEWART, Independence, Mo.
DoRIs BROWN PAUL, Atlanta, Ga. J. RICHARD STUDENNY, Alexandria, Va.
PAUL A. SANSBURY, Darlington, S. C. RICHARD H. TALBOTT, Fairmont, W. Va.
ROBERT SIEGEL, Lewistown, Pa. EMERSON J. WILSON, Reno, Nev.
ROBLEY J. SIMPSON, Cleveland, Ohio JULIAN D. WINSLOW, Wilmington, Del.
RALPH C. SMITH, Washington, D. C. PHYLLIS L. ZIMMERMAN, Tulsa, Okla.
RONALD SMITH, Providence, R. I. Subcommittee on Current Literature:
JAMES C. SPANGLER, Chicago, Ill.
JOSEPH J. SPERBER, New York, N. Y. C. M. PIERSON, Vice Chairman,
WALTER SOLAN, St. Louis, Mo. Lincoln, Neb.
HARRY J. STEVENS, JR, Short Hills, N. J. RICHARD B. AMANDEs, Lubbock, Tex.
RICtARD H. TALBOTr, JR., Fairmont, W. Va. THEODORE J. AMELSON, Norfolk, Va.
ROBERT H. THREADGILL, Orlando, Fla. JAYME C. BILLEY, JR., Sherman Oaks, Cal.
JEsSE M. VINEYARD, Memphis, Tenn. PETER S. CHAMBERLAIN, Dallas, Tex.
RONALD RAYMOND VOLKMER, Omaha, Neb. GEORGE WEBER COEN, Lancaster, Ohio
PETER B. WEBSTER, Portland, Me. RUDOLPH A. D'AMICO, Dayton, Ohio
DONALD L. WOOD, Mayville, Ky. WILLIAM F. FRATCHER, Columbia, Mo.
HARRY ZUKERNICK, Miami Beach, Fla. ROBERT S. FREY, Louisville, Ky.
IRVING D. GAINES, Milwaukee, Wis. LACY L. LUCAS, JR., Greensboro, N. C.

JOHN DORSEY GARRISON, JR., Hartford, Conn. HAROLD E. MCINTOSH, San Francisco, Cal.
PORTIA YVONNE HAMLAR, Detroit, Mich. ELMER M. MILLION, Norman, Okla.
JOHN D. HEALY, JR., St. Paul, Minn. WILLIAM P. OWEN, Fort Lauderdale, Fla.
EARLE H. HOUGHTALING, JR., Walden, N. Y. DONALD L. PADcITr, Evanston, Ill.
Mm) Z. HUFFMAN, Los Angeles, Cal. ROBERT L. QUINN, Steubenville, Ohio.
CONRAD L. KELLENBERG, Notre Dame, Ind. HAROLD L. ROCK, Omaha, Neb.
ROBERT C. KELSO, Phoenix, Ariz. WILLIAM B. ROSENBERG, Somerville, N. J.
ALAN J. I.DrECKER, Washington, D. C. CARvEL. R. SHAFFER, Salt Lake City, Utah
HIRAM H. LEsAR, St. Louis, Mo. JULIUS C. SMrrn, III, Greensboro, N. C.
DANIEL J. LOUGHLIN, Babylon, N. Y. L. J. SWERTFEGER, JR., Decatur, Ga.

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SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

I. ADVERSE POSSESSION XVI. MINES AND MINERALS

This report is the product of the grouping of the traditional committees

Development Districts: The Kansas City Experience, p. 254; Davis, New

III. AiR SPAcE

Ferrisv. Meeker Fertilizer Co., 482 P.2d 523 Ore. (1971).

V. CONDOMINIUMS AND COOPERATIVES

The absence of decisions reflects the relative newness of these concepts

VI. CONVEYANCING AND TrILES

Ch. 313: Limits actions to recover real estate to a period of 15 years

PeninsularPoint, Inc. v. South Georgia Dairy Co-op, 251 So. 2d 690

Sellman v. Schaaf, 26 Ohio. App. 2d 35, 269 N.E. 2d 60 (1971).

the title attorneys in Rhode Island on notice of the danger of relying on

Barnett v. County of Washoe, 86 Nev. 730, 476 P. 2d 8 (1970).

Dillardv. Earnhart,457 S. W. 2d 666 (Mo. 1970).

Hussey v. Ray, 462 S. W. 2d 45 (Tex. 1970).

HELD: Injunction denied. The attempt by the owner to restrict the

such language could not create an easement appurtenant to land, if the

Jolliff v. Hardin Cable Television Co., 26 Ohio St. 2d 103, 269 N. E.

IX. EMINENT DomAiN

to whether increases in land values attributable to the proposed project

Sanford v. Louisville & Nashville R. R., 469 S. W. 2d 363 (Tenn. 1971).

HELD: Reversed. Condemnee knowingly, intentionally and volun-

rights, the condemnation of the surrounding land operated to render the

Stoebuck, Condemnation of Rights the Condemnee Holds in Lands of

P. A. 1260: Enacts comprehensive water pollution statute meeting fed-

mensurate to the actual needs of human beings, and also to contribute

Carnahan, The CanadianArctic Waters Pollution Prevention Act: An

tion of its legislative, judicial and administrative history, and furthermore

Hershman, California Legislation on Air Contaminant Emissions from

ticular Reference to the Oil Industry, IV NATURAL RESOURCES LAw. 484

challenge governmental management of natural resources. Involved in this

as regards pollution control will be whether civilian suits will become

environment. This discussion is addressed primarily to problems associated

809; Jennings, JurisdictionalAdventures at Sea-Who Has Jurisdiction Over

XI. ESTATES Ix LAND

partnership field is reflected in the volume of articles in the literature sec-

HELD: Even though a tenancy by the entirety cannot be made the

parties involved in the ownership and financing of a commercial building,

Yiannopoulos, Standing Crops: Movables or Immovables? 17 LOYOLA L.

XIII. FuTupm INTERESTS

Graft, Compulsory Home Repairs Laws, 20 CLEVE. ST. L. REv. 260

XV. LANDLORD AND TENANT

include treble damages and attorney's fees in event of willful retention of

HELD: Injunction denied even though it was determined that 30

Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary

Coach House of Ward Parkway v. Ward Parkway Shops, 471 S. W. 2d

Hartwig v. 65 Realty Co., 324 N. Y. S. 2d 567 (Sup. Ct. 1971).

McCutcheon.v. United Homes Corp., 486 P. 2d 1093 (Wash. 1971).

Millison v. Ades of Lexington, 277 A. 2d 579 (Md. 1971).

Nebaco, Inc. v. Riverview Realty Co., 482 P. 2d 305 (Nev. 1971).

Riley v. Nelson, 183 S. E. 2d 328 (S. C. 1971).

HELD: Within the purposes of eliminating the effects of unlawful