Actual Property Law in Cedar Point Nursery v. Hassid

Fee Simple, easements in gross, runs with the land, bundle of sticks


For nearly a decade, I have been teaching property law. My least favorite topic to teach is Takings law. The doctrine is a mess. Most of property law is pretty clear and easy-to-teach. But the Supreme Court has made a hash of the Takings Clause. As a property professor, I dread whenever the Supreme Court grants cert on a new takings case. Regardless of how the Court rules, the new doctrine will inevitably complicate the doctrine. And I will have to clean up the mess for my students. Cedar Point Nursery v. Hassid will be no exception.

I agree with co-blogger Ilya Somin. The property owners will probably win, though the specific rationale is unclear. Probably some sort of balancing test. And, in turn, property casebooks will have to make sense of this case. And, casebooks will probably add this decision to the early chapters on the right to exclude–alongside State v. Shack and Jacques v. Steenberg Homes. Of course, 1Ls will have no basis to understand the Fifth Amendment at that point in the semester. A mess.

There were a few exchanges during argument that actually involved  property doctrine. There were extensive discussions about whether the asserted property interest was an easement under state law, or something else.

Justice Kagan posed these questions to Josh Thompson, the lawyer for PLF:

JUSTICE KAGAN: Mr. Thompson, if I could go back first to your answers to Justice Thomas. Let –let –let's say that I don't think that this would count as an easement under California law for a variety of reasons that Justice Thomas gave and Justice Alito gave. Let's just assume that to be true. You do keep on talking about a discrete interest in property. So I guess my question is, what discrete interest are you talking about if not an easement as defined by California law?

MR. THOMPSON: Justice Kagan, we're talking about the denial of the right to exclude third parties from our property for 120 days a year –

JUSTICE KAGAN: Yeah, I mean, I know what the thing says, but I don't think, like, the denial of a right to exclude counts as a discrete interest in property. I mean, the right to exclude is one of the sticks in the bundle that a property owner has, but usually, when people talk about discrete interests in property, it's like a legal form. It's an easement. It's a fee simple. It's something like that. 

There are generally two type of easements: easement in gross and easement appurtenant.

Josh Thompson mentioned the former:

It's certainly true that the Access Regulation grants the union the right to come on and use our property for a discrete purpose, and that, as Judge Ikuta noted, has the hallmarks of an easement in gross under California law that --

And California SG Mike Mongan mentioned the latter:

MR. MONGAN: Well, Your Honor, I think that this is not a classical easement. As you noted, it is not appurtenant to any particular parcel of land. It is a regulatory scheme that applies to a particular type of business conducted on the land, and the access is not to a particular pathway or parcel, it's to the employees, where they are.

I hope the Court puts together a coherent decision.

NEXT: Americans Talk About an "Article V Convention" -- Britons About the "George V Convention"

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  1. There is a 65-year-old labor law decision that seems to be on point. Justice Kavanaugh seemed to think it offered a simple way out, and Justice Sotomayor seemed to agree.

    1. If that would get Justice Sotomayor on board with a decision (as this issue if you get her you probably have Kagan and Breyer) I could see Chief Justice Roberts going along so that logic carries 5 votes by having a minimalist decision that kicks the can of this issue down the road where it can be decided in a later case that provided a cleaner vehicle.

  2. Did the briefs or oral arguments mention _US v. Jones_, which held that installing a GPS tracker on a car was a trespass?

    1. The petitioners did indeed cite Jones on page 18 of their reply brief, although I don’t think it’s a particularly instructive case on the questions at issue here.

  3. Is Thomas asking questions regularly now? Is he getting bolder now that his far-right views don’t seem so far-right anymore?

    1. I think that it is now that he is one of the elder/senior jurists and respect for one’s elders that his generation of young Black men were taught. Remember that he had to recuse himself from the VMI decision because he went to (I think) The Citadel.

      As the people who would have asked the questions he does are now dead, the baton has thus been passed to him to do so.

      And if Kagan is agreeing with him, he ain’t exactly a far-right extremist because she tends to, umm, lean left…

      1. You are, as usual, wrong: Justice Thomas went to college at Holy Cross, and he recused himself from the VMI case because his son was enrolled there at the time.

        The reason for his change in questioning style has been correctly explained below.

    2. He has been asking questions since the court went to the new format where each justice gets a turn. A covid related benefit that I can live with.
      Thomas has always been critical about how oral arguments were conducted. Rather than add to the chaos, he chose to stay out of the fray.

    3. It isn’t age or his views becoming more mainstream. The new format after Covid is the reason. By giving Justices turns, they can actually listen to the answer and ask necessary follow ups rather than risking interruption by another Justice. Moreover, with no audience the Justices aren’t trying to be stand-up comics trying to get the most laughter from the gallery. When “in person” oral arguments resume, I hope the Supreme Court keeps this new format.

      1. Eh. I can certainly see some pluses from the new system, but the loss of the free flowing nature of the former format seems significant to me. The amount of time dedicated to each justice’s questioning is just too short, with the rigid cutoffs forcing each response to be only half-formed without the benefit of much followup.

  4. “hallmarks of an easement in gross under California law”

    I would think it has the hallmarks of a license, rather than an easement.

    It does not run with the land and is not binding on successors or assigns of the property owner unless they maintain a business subject to the statute.

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