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Messiah Baptist Church v. County of Jefferson
10thCir, 1988
P, the church. D, the County,
P filed action for damages Under the Due Process of 14th And Free Exercise Clause of 1st.
The district upheld the constitutionality of the zoning regulation
This court affirmed.
The zoning does not infringe the Free Exercise Clause
Facts
In 1974 the Church purchased 80 acres in Jefferson County.
Which zoned A-2 (or Agricultural) District and it could not be used for schools, community buildings and churches.
Sep. 1974, the Church applied for a building permit for worship. And it was denied.
Jul. 1976, the County amend zooning to authorized special-use permit.
The church applied special use for 80 acres but withdrew this application.
1978, the Church again applied for special use for about 1/30 of its entire 80 acres but denied.
The county’s answer reduced to writing which included access problems, erosion hazards, fire protection was inadequate.
Due Process
Church’s first argument, A2 is unconstitutional on its face because it deprive the right to use of the property, in violation of the 14th Due Process.
In village of Euclid,
Before a zoning can be declared unconstitutional, the provisions must be clearly arbitrary and unreasonable, if the classification is “fairly debatable” the legislative must control.
The Church cited Englewood (Purportedly holding that exclusion of churches from residential areas constitutes arbitrary action.) but it’s distinguishable.
Instant case, church use is permitted in all 13 districts among the 16 districts of the residential use area. Moreover, other state cases hold that the exclusion of churches from residential zoning is constitutionally permissible.
So, exclusion of church from particular zoning whether agricultural or residential is not arbitrary per se.
The Church next argues A2 regulations are arbitrary because they exclude churches but not exclude large agriculturally related commercial uses.
However, the differentiation does not render it arbitrary.
The Church has not established that the regulation is unreasonable.
If the legislative classification is fairly Debatable, the legislative must control, Euclid
Finally, the church asserts that A2 zoning requires the strict scrutiny
, because it infringes the free exercise right of religion
, therefore, the County must have burden of proof of compelling state interest.
This fact standing alone does not amount to a denial of the exercise,
only the building permit of on that zoning was denied.
So, A2 zoning is valid under the Due Process Clause.
The Church contends that A2 is invalid on its face?
The first question
Whether the A2 zoning regulate religious beliefs.
Freedom to believe is absolute.
So, government may not use power to interfere with individual’s beliefs.
But A2 zoning do not in any way regulate the religious beliefs
Next,
Do the regulations impermissibly regulate religious conduct?
In general, the government may regulate religious conduct.
But conduct flowing from religious beliefs merits protection.
Lakewood,
Zoning ordinance which does not permit church in a particular zone do not infringe the Congregation’s religious beliefs.
First Amendment does not require the City to make all land or even the cheapest or most beautiful land available …
In this case, there’s no evidence that construction of the building is integrally related to the beliefs.
At most, the Church’s preference is to construct its house on its own land.
So, A2 zoning do not regulate any religious conduct of the church as well.
Next, whether the zoning place any burden on the free exercise of the religion?
If the law impedes observance of religions that law is invalid even though the burden is only indirect.
Even though it causes indirect burden, there’s no alternative way to accomplish its purpose.
Financial consequences to the church do not infringe the religious freedom.
Cf.
Sherbert v. Verner, 374 U.S. 398 (1963)
Sherbert might be distinguished. Because she lost her job, she was compelled to get a job to survive regardless of her belief. In that sense, the financial burden in Sherbert was actually a direct rather than an indirect burden.
Even though the “indirect” modifies same object in each case, the “burden”
, in Sherbert, the financial burden is critical to her life, but in this case, the burden seems not very critical to the church.
Moreover, the court here believes the state has no other way to regulate church.
Thus, regulation of the location of church is not an impediment of observance of religion.
When the burden imposed by the government rests on only in secular philosophy or personal preference, Government control. Grosz
The indirect burden does not render the regulations constitutionally infirm.
We do not hold that the act of building is per se secular conduct
No conflict between the zoning and the religious tenets or practices.
Lemon
Government action violates the Establishment Clause unless it:
1. Has a significant secular (i.e., non-religious) purpose,
2. Does not have the primary effect of advancing or inhibiting religion, and
3. Does not foster excessive entanglement between government and religion.
West v. Tilley
Supreme Court of New York, 1970
West, P, appellant
Tilley, D, respondent
Plaintiff appeals for review a judgment for respondent adverse possession
For many years D (Tilley) and members of her family have owned lands
1959 P acquired a tract of land. The conveyance to him, however, also included a parcel of land which adjoined the D’s land
1925 D’s father constructed a cement wall (to serve as a breakwater) along the westerly shoreline. This wall included the frontage of P.
1936 another concrete wall (forming another breakwater) was constructed by the D’s husband.
It is these two concrete walls and the northerly line of respondent's land that form the triangle to which D has been adjudged to be the owner by adverse possession.
5 elements adverse possession
hostile and under claim of right
it was actual
it was open and notorious
it was exclusive
it was continuous.
Furthermore, the statute limited in her claim to "the premises so actually occupied," and to land that "has been usually cultivated or improved" or "has been protected by a substantial enclosure."
Here, except for the requirement that the possession was hostile, the proof establishes all of these essential common-law and statutory requirements.
Not only was the triangular parcel, which included the westerly portion of the appellant's strip of land, enclosed (from 1936) with two cement walls, but continuously for more than 25 years respondent and members of her family openly and exclusively occupied.
The Appellant contends, however, that the respondent's occupation was not open and notorious because it was wild, overgrown, and little used
Even a casual inspection by the appellant West in 1959 of the boundary lines of the property he proposed to purchase.
The Appellant further, and vigorously, argues that the respondent's possession was not hostile and under a claim of right. This contention is based on Mrs. Tilley's testimony.
When asked if the construction of wall in 1936 was her intention to intrude on appellant's land, her reply was "we were only enclosing our own property."
She was mistaken in her views and claims.
(Actually, that was not her or her family’s property. Because she believed the land is her own property, the possession might not hostile)
This presents the issue as to whether the necessary element of hostile possession may exist although such possession is taken by the mistaken view of a claimant.
The majority or so-called Connecticut rule, that the necessary element of hostile possession may exist although possession was taken by mistake has been recognized
In this jurisdiction, at least where a building is erected partially on adjacent property by reason of mistake as to the location of the true boundary line. Belotti,ny
Van Valkenburgh,ny distinguished.
the proof was insufficient to establish that the property had been substantially enclosed or that the premises had been cultivated or improved. Moreover, there was no proof that claimant by mistake placed a building on adjoining lands. To the contrary he testified that he knew at the time of construction that the building was not on his land.
We conclude that (This court expanded the Belotti holding and adopt the majority rule)
Although the respondent, or her predecessors in interest, took possession of the appellant's land through mistake, it was not the less adverse
for the reason that "It is the visible and adverse possession, with an intention to possess land occupied under a belief that it is the possessor's own, that constitutes its adverse character."
Further
In Connolly, ny
"Cultivation and improvement consistent with the nature of the property and such as to indicate exclusive ownership of the property is all that is required. “
(Which holding consistent with the courts conclusion that occupation with mistake is an adverse character)
Producers Lumber & Supply Co. v. Olney Bldg. Co.
Court of Civil Appeals of Texas, 1960
D’s president, Orts mistakenly build a dwelling on P’s land and demolished it without P’s consent. P sued D
the trial court rendered judgment in favor of P in the sum of $600.
P has prosecuted this appeal, contending that the judgment should have been in the sum of $5,900.
Jury (question and) answer
"Question No. 1: Orts, acted in good faith in erecting the building
(At the time he began the construction of the dwelling Orts simply forgot about conveying this lot to the appellant some eighteen months before)
"Question No. 2: the reasonable cost of restoring the lot $600
"Question No. 3: Orts, maliciously in removing the building
"Question No. 4: exemplary damages, if any, $300
The dwelling on Lot 8 had a value of $5,000.
P-appellant argues that the jury's answer to Question No. 1 be disregarded, and for a judgment in its favor in the sum of $5,900
Fact
Orts owned several corporations and was the head and general manager of them all, including Olney Building Company.
Prior to November 1, 1956, Orts was the owner of Lot 8
(On that date) Orts, sold the land to Producers Lumber.
The lot was purchased by P-appellant with the intention that later its general manager, Montgomery, and his wife would build a home for themselves.
1958, Orts decided to construct nine dwellings, one on Lot 8
Orts called Burden, secretary-treasurer, and asked him whether Lot 8 had been sold.
Burden assured it had not been sold.
Shortly thereafter the construction of the nine houses was begun
Orts learned from the Title Company that Lot 8 had been sold to the appellant.
The dwelling on Lot 8 had been almost completed when the discovery was made.
Orts then notified Mr. Montgomery of the circumstances.
The house had been constructed without the knowledge or consent of the appellant and against its wishes.
Orts began negotiations with Montgomery, trying to reach an amicable settlement.
But no settlement had been reached
suddenly Orts broke off negotiations and sent his construction superintendent with a large crew of men and heavy equipment to Lot 8, and demolished the dwelling constructed thereon
Other evidence clearly supports the finding of the jury that Orts acted maliciously in removing the building.
"A person contemplating the improvement of land is under a duty to investigate the records before he commences work, * * *."
D-Appellee cannot prevail upon his plea of improvement in good faith, because of his malicious destruction.
Where he has built such improvements in good faith, he has a somewhat limited right to go into court, and upon proof of such good faith ask the court to grant him equitable relief.
Under such circumstances, a court of equity may grant relief in several ways.
If the building can be removed without great injury to the building or to the land, the court may permit the improver to remove the building
Where the building cannot well be removed, the court or jury can find the market value of the land before and after the making of the improvement and allow the improver to recover for the amount of this enhanced value, if any.
The landowner will first be permitted to pay the enhanced value and keep the land, but if he is unable or unwilling to do so, then the improver may be permitted to pay the value of the land before the improvements were placed, and become the owner of the land.
If the landowner is unable to pay and the improver is unable to pay for the land, then the court may order it to be sold and the money divided as their respective interests.
Or the court may give the improver judgment for the amount the lot has been enhanced in value, together with a lien against the lot to secure the payment of the judgment.
Under no circumstances is an improver authorized to go upon the land, without consent, and demolish the improvements, and if he does so he commits waste.
When Orts went upon Lot 8 without the knowledge or consent of the appellant and demolished the dwelling, he committed waste and must pay for the value of the dwelling, $5,000.
He resorted to self-help and took the law into his own hands. He cannot now come into court, with unclean hands, and seek the equitable remedy of reimbursement.
Orts seems to contend that appellant has unclean hands because it did not offer to pay him what he suggested.
Appellant was not required to pay until a finding in a court.
Appellant had good reason to believe that such an issue might be decided in its favor.
Further, if it lost on this issue, appellant would have to pay only such sum as a jury, might find.
None of these matters had been decided or stipulated at that time
The total amount of the judgment is the sum of $5,900,
The cost to appellee.
Dissent
I cannot agree with such reasoning.
First, it is common knowledge that if Olney had a right to remove the building, which the authorities hold that it did, then if it became necessary to tear down the building in order to do so, it had that right.
Second, Olney does not seek any reimbursement, but only interposes its right in defense of Producers' suit for damages for the removal of the property.
Third, the property "demolished," belonged to Olney and not to Producers.
Fourth, had the house remained on Producers' lot, it would have had to pay Olney the amount of the enhancement in value of its property.
Fifth, it appears from the record that immediately upon discovery of the mistake, Olney contacted Producers and sought to adjust the difficulty. It first offered to buy the lot, and Producers asked $3,600 or $3,700, although it cost $1,428.
There is no sound reason to exact of appellee additional punitive damages in the sum of $5,000 and make the donation to appellant, as chastisement for appellee's alleged uncleanliness of hands.
Giannini v. First Nat'l Bank
Appellate Court of Illinois, 1985,
Opinion
[Giannini], purchase a condominium to be constructed.
Although the building was constructed, it was never declared a condominium.
Giannini filed a complaint against
(Des Plaines Bank), the record title holder,
(Stape Builders), the developer and signer of purchase agreement as agent of the beneficiary of the trust in which title to the complex was held; and
(Unity), a mortgage holder on the property.
His complaint requested specific performance of the purchase agreement
Giannini stated that although construction had been completed, Defendants refused to perform their obligations under the purchase agreement.
Stape Builders was dissolved. Unity apparently obtained title to the complex.
Unity argued specific performance should not be ordered because it would be uneconomical to Unity.
Unity filed its motion to dismiss on the basis of specific performance was improper for several reasons.
(1) the unit did not exist since the building in which the unit was located had not been declared a condominium
(2) the condominium unit was not so unique to require specific performance
(3) specific performance would be unprofitable to Unity
(4) specific performance would be too burdensome and time-consuming for the court to enforce
(5) the purchase agreement was invalid and unenforceable because it was neither signed by the trustee of the trust nor the beneficiary of the trust; and
(6) the purchase agreement was invalid and unenforceable because it did not expressly provide that the beneficiary would exercise his power to direct the land trustee to convey the real estate to the purchaser
The trial court granted Unity's motion
About 11 months later, Giannini amended complaint.
Unity objects that the motion should be denied on the basis of res judicata
Giannini responded that the motion was a proper because the trial court had retained jurisdiction over the specific performance and amendment was not barred by res judicata.
the trial court denied Giannini's motion
the court concluded that the motion was untimely.
Giannini appealed
Unity first argued that the unit was nonexistent
Generally, "[w]here it is out of the power of the defendant to perform the agreement, such fact necessarily constitutes a sufficient reason why the court should refuse to decree specific performance,
because of the impossibility
This reasoning unpersuasive.
"non-existence" of the unit is nothing more than Unity's refusal to declare
Unity also contends that mutuality is lacking because Giannini could not be compelled to purchase a nonexistent condominium unit.
mutuality of remedy is generally required before a court can specifically enforce a contract.
But it turns its own failure to comply with the agreement
The second reason stated by Unity is that specific performance was not imperative because a condominium is not so unique
a condominium is real property.
where the parties have entered into a valid contract for the sale of real property, specific performance of the contract is a matter of right.
Unity argues that these rules should not obtain here because "exactly the same condominium units are available
this argument insufficient ground to avoid specific performance in general.
Even if similarity would be sufficient ground to deny specific performance
There is nothing in the record to indicate the degree of similarity.
Lastly, as explained more below, Giannini's legal remedies were inadequate, since Stape Builders was involuntarily dissolved.
Unity argues that specific performance would be uneconomical to it.
Generally, a court may refuse to grant specific performance where the remedy would cause hardship or an inequitable result.
Nevertheless "[t]here is no hardship here
Unity's claim that declaration of the building as a condominium would be uneconomical to it was insufficient to establish a peculiar hardship
Unity agreed to honor Giannini's contract when this was to its advantage to do so.
Accordingly, it cannot now seek to avoid the agreement because of financial hardship.
Unity argues that the foreclosure proceeding was a separate, collateral action which has no bearing upon Giannini's claims against
A party to a lawsuit cannot maintain a certain position in one proceeding and then become a party to another suit and maintain the contrary stance.
Such conduct is prohibited by the rule of judicial estoppel
"to promote the truth and to prevent parties from deliberately shifting positions to suit the exigencies of the moment."
Having benefitted from its representations that it would abide by Stape Builders' plans, Unity now seeks to maintain a contrary position
Accordingly, Unity's representations in its foreclosure action were not merely collateral matter.
Unity further emphasizes that the decision to grant specific performance rests within the sound discretion of the trial court,
trial court's decision to deny specific performance was an abuse of its discretion.
Giannini's loss might be even more substantial than Unity's, in that he may have no legal remedy.
The trial court in the foreclosure action specifically retained jurisdiction.
Thus, we cannot say that to compel conversion of the appropriate building would be such a complicated task for the court to undertake.
Unity first contends that the transcript of the hearings before the trial court reveals that the court did not consider the questions.
However, "Every issue raised by the motion to strike is before this court insofar as the same is argued."
Unity contends that Giannini's failure to refer specifically to the questions of the enforceability and validity of the contract in his statement of the issues presented for review violated Illinois Supreme Court Rule 341(e)(3)
Although we note that Giannini's format may not have demonstrated fastidious compliance with this rule, nevertheless we are able to consider them.
Unity claimed that an agent of a beneficiary of a trust (Stape Builders') cannot have the authority to bind the trustee ultimately to sell and convey the real estate.
Agency is a consensual, fiduciary relationship between two legal entities, created by law, by which the principal has the right to control the conduct of the agent, and the agent has the power to effect legal relations of the principal."
The existence of an agency relationship as well as the scope of the agent's authority may be implied from the facts and circumstances
The agreement provided that Stape Builders agreed that title would be caused to be conveyed to Giannini by a stamped Trustee's Deed.
Consequently, there was nothing to indicate that Stape Builders acted beyond its capacity.
Unity also argued that the contract was invalid and unenforceable because it did not expressly provide that the beneficiary of the trust would execute a power of direction to Des Plaines Bank to convey title to Giannini.
The beneficiary's exercise of this power of direction can be construed from the contract.
The trust agreement at issue here conferred upon the beneficiary
"a power of direction to deal with the title to said real estate * * *."
For the reasons stated, the trial court's dismissal of specific performance was erroneous.
< The trial court's denial of leave to amend >
Section 2 -- 616
In considering whether to grant a motion to amend, a trial court should consider such factors as whether the proposed amendment would cure the defective pleading...
The trial court's denial of the motion was an abuse of discretion.
Although the motion was filed almost a year after count I had been dismissed, "[a] trial court should not deny leave to amend solely on the basis of delay in filing, without a showing of prejudice to the opposing party other than mere inconvenience * * *. "
Unity was, in any event, still involved in the matter because the trial court's retained jurisdiction over the entire cause.
Jefferson County v. Mosley
Dillard is the prior owner.
It seems Mosley sold parts of his different real property separately to People and Selfs
Plaintiff, Appellant | Defendants, Appellee |
Jefferson County | Mosley (Moseleyc), Peoples, Selfs |
Substituted Petition for Declaratory Judgment. | Answer to Substituted Petition for Declaratory Judgment. |
Timeline
Oct. 18, 1945, RoW(Right of way), Dillard to the Jefferson County
80 feet in width.
Not recorded until Apr. 2, 1952
.
.
.
Sep…..1949, “Old Alton Weems Road” widened and improved.
20 to 30 feet.
The record does not show whether exact amount of the RoW used in this widening.
.
Dec. 20, 1951, Dillard to Mosley
Exception
The Road existed 25y at least before this
Plainly visible.
But, not recorded until Jan. 14, 1952
Jan. 14, 1952, Recording of Mosley deed
Apr. 2, 1952, Recording of Dillard’s RoW
May 26, 1952, Mosley to Peoples
Exception
Dillard’s RoW
Jul. 7, 1952, Recording of Peoples Deed
.
Jun. 26, 1953, Mosley to Selfs, Recorded.
Dillard’s RoW
This is my own understanding, I would appreciate if you added comment when you have different view or found wrong in below.
Rationale
we can say Peoples and the selfs was innocent when they have acquired same title as Mosley, but only if Mosley is innocent.
Moreover, Defendants are not innocent because in their “Answer to Substituted Petition for Declaratory Judgment,” they recognized its open and notorious maintenance.
Actual conflict of the party.
After Dillard conveyed the easement to the County, the road had improved encroaching the personal property of the adjacent owner, the Defendants at this case.
The encroaching occurred in 1949, and the suit was filed in 1969. 20 years had passed.
Jefferson County’s conduct, putting off the recording, made Mosley’s not being noticed exact width of the public road exception. Even if had he known the existence of the easement by the exception in the deed, actual easement was far wider than it seems might surprise to him.
This is my outline.
The trial held that Mosley did not have notice either actual or constructive of sufficient fact to put him upon inquiry.
Thus, People and Selfs acquired same title Mosley had acquired.
On appeal, the County argues, the Defendants (Mosley, Peoples, Selfs) had either actual or constructive notice of sufficient fact to put them upon inquiry.
Mosley was the direct grantor but not the latest recorder to the Peoples’ and Selfs.
What it means Peoples’ and Selfs’ were not constructively noticed from the deed of prior deed, other than the direct grantor, Mosley. So, the issue should be whether Mosley had been noticed actually or constructively)
The court ruling is that even though the County is the late recorder of the property or the easement, based on the fact of the case, Defendants Mosley, People, Self (MPS) noticed at the time the transaction was made.
P.S.
We can deduce the recoding statute of the Alabama. Alabama is one of the Notice statute or the Race-Notice statute because the main issue of this case is whether, at the time of the transaction between Mosley and Dillard, did Mosley notice the existence of the easement or not; the court only care about the “Notice”, not who is the first “Recorder.”
In this case, only MPS could be the bonafide subsequent purchaser, while the County has no chance to be the bonafide title because they are the original purchaser of the easement.
In addition, PS (People, Self) constructive notice tend to be disregarded by the Supreme Court of Alabama, which means the county’s easement recording and the existence of exception in the deed was not seriously weighed as a factor to be decided whether they had an actual, constructive implied notice.
Thus, no way to know whether Alabama is Notice or Race-Notice statute because no comparable party exist.
Di Donato v. Reliance Standard Life Ins. Co.
Supreme Court of Pennsylvania, 1968,
Appellants buyers argued that their agreement for the sale of real estate should have been rescinded due to appellee's unknowing misrepresentation of the zoning.
Facts
August 1965
Reliance (Insurance Company) entered into an Agreement of Sale with the Appellants (Anthony and Viola DiDonato).
Reliance executed a certification in compliance with the Act, stating that the premises were zoned industrial.
September 1965
The ordinance was changed. From Industrial to Residential.
Not until November 1965, however, did the public records change.
October 1965, the transaction was settled.
The certification erroneously indicated that the premises were still Industrial.
neither Reliance nor DiDonato were aware of the change.
1967, the appellants contracted to sell the premises, and then learned for the first time of the zoning change.
the appellants brought an equity action against Reliance to rescind the Agreement of Sale
The appellants DiDonato seek to find ground for a rescission upon the misrepresentation
There can be no doubt, there was a misrepresentation, but that fact is not determinative in resolving this controversy.
the appellants would have a right to rescind only if the risk of a zoning change remained with Reliance until settlement.
The crucial inquiry is which of the litigants bore the risk
in Pennsylvania.
when the Agreement of Sale is signed, the purchaser becomes the equitable or beneficial owner through the doctrine of equitable conversion. The vendor retains merely a security interest for the payment of the unpaid purchase money.
the purchaser of real estate bears the risk of loss for injury occurring to the property after execution of the Agreement of Sale.
the general rule as follows:
In the absence of some expression to the contrary, the risk by ordinance allocated to the purchaser."
The only way in which he can protect himself is to include a express clause