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Agricultural Law

by: Norbert Terry

Agricultural Law ARE 306

Norbert Terry
GPA 3.85

Theodore Feitshans

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Theodore Feitshans
Class Notes
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This 20 page Class Notes was uploaded by Norbert Terry on Thursday October 15, 2015. The Class Notes belongs to ARE 306 at North Carolina State University taught by Theodore Feitshans in Fall. Since its upload, it has received 17 views. For similar materials see /class/223764/are-306-north-carolina-state-university in Agricultural & Resource Econ at North Carolina State University.

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Date Created: 10/15/15
Unit 3 Con ict Resolution 0 Adversary system 0 Inquisitorial system 0 Alternative dispute resolution The Parties to Litigation 0 Plaintiff petitioner 0 Defendant respondent o Intervenor o Amicus curiae not a party to the lawsuit Types of Courts 0 Administrative 0 Trial 0 Power to decide issues of fact and law 0 Appellate 0 Confined to trial record 0 Limited to questions of law Initiation of the Case Administrative Petition Administrative fine compliance order Final regulation or de ermination Criminal Indictment by grand jury Federal 8 some states Information Some states never federal 0 Civil Service of process Jurisdiction oAs to the parties Personal Over property 0 In rem 39Quasi in rem Jurisdiction Inherent in the court oGeneral 0Limited 0 By dollar amount 0 By subject matter 0 By geography Venue 0 Convenience Parties Witnesses Preliminary matters 0 Standing 0 Mootness o Ripeness 0 Discovery 0 Written interrogatories 0 Depositions 0 Documents amp physical evidence Pretrial motions 0 Motion to dismiss 0 Motion for summary judgment Jury selectionRole of the Fact Finder 0 Petit jury 0 Facts found by jury Judge if jury waived oBench trial StandardBurden of Proof 0 Most civil trials Preponderance of the evidence gt 50 of the evidence must favorthe plaintiff forjury or judge to find for plaintiff Criminal trials Beyond a reasonable doubt gt 99 to convict Some civil matters require a higher standard of proof Clear 8 convincing evidence Trial 0 Opening arguments o Plaintiff s case in chief Direct Cross Redirect Trial continued 0 Defendant Direct Cross Redirect 0 Closing arguments Posttrial motions 0 Motion for a judgment notwithstanding the verdict jnov Federal Motion for a judgment as a matter of law 0 Motion for a new trial Judgments and orders 0 Docketing judgment oExecuting upon the judgment 0 Enforcement of orders Civil contempt Criminal contempt Appeals oAs of right 0 Discretionary Distinction between law and equity 0 Originally separate courts 0 Law Relief usually confined to money damages 0 Equity Relief usually injunctive o Equitable issues tried to judge Equitable injunctive relief 0 Temporary restraining order tro 0 Ex parte 0 Short duration 0 Preliminary injunction 0 Preserve relative position of parties during litigation Equitable injunctive relief 0 Permanent injunction Multiparty Litigation 0 Class action 0 Many plaintiffs with nearly identical claims 0 Interpleader 0 Brought by a holder of funds not claimed by the holder Determine ownership Avoid paying twice The Federal Court System 0 Jurisdiction 0 Federal question 0 Exclusive OConcurrent 0 Pendant 0 Diversity 75000 or more OComplete diversity US Supreme Court 0 Original 0 Ambassadors other public ministers amp consuls 0 States 0 Appellate 0 All other matters 0 Usually by writ of certiori Other Article III Courts 0 Circuit Courts of Appeal 0 4th NC DM SC VA WV 0 Eleven DC and Federal Circuit 0 11 geographic 0 DC geographic subject matter 0 Federal circuit subject matter Other Article III Courts 0 District Courts 0 Three district courts in NC 0 Original jurisdiction trial courts Article I Courts 0 Judges serve for fixed terms 0 Standard of review lower 0 De nova etc 0 Examples 0 Bankruptcy courts 0 US Court of Federal Claims NC Courts 0 Appellate Division 0 Supreme Court 0 Court of Appeals 0 Superior Court Division 0 Courts of generaljurisdiction NC Courts 0 District Court Division 0 Civil actions lt 10000 0 Juvenile matters 0 Divorce child support etc 0 Small claims 39 4000 or less de novo review available Unit 13 Regulatory Takings Condemnations Regulation and Impermissible Takings of Private Property I Fifth Amendment to the Constitution The Takings Clause of the 5Lh amendment to the U S Constitution states nor shall private property be taken for public use without just compensation This acts as a limit on the vast powers granted under the Commerce Clause but the courts generally give broad latitude to a government unit s interpretation of public use The 5 Amendment applies only to the federal government but is extended to the states by the 14111 Amendment II Commerce Clause of the Constitution Art I Sec 83 The Commerce Clause gives an express power to the federal government when it says that the Congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes The right to take private property for public use is not speci cally authorized here rather it is an inherent power implied by the broad interpretation of interstate commerce There is a tension between the govemment s right to take property for public use and the private landowner s property rights III Contrast with Canada and Other Countries The United States is one of the few countries that provide explicit constitutional protection to private property In most other countries property owners will generally be compensated when their property is taken but that rise does not rise to the level of a constitutional right People from most other countries nd our discussion of the takings issue strange IV Eminent Domain Ch 40A Eminent domain is the power of the sovereign government to take or damage private property for a public use upon payment of just compensation The legislature is the only branch of the sovereign state government that can authorize the taking of private property and it has done so with Ch 40A of the North Carolina General Statutes which applies to all private condemnors and local public condemnors and in Sec 136 which applies to the Department of Transportation DOT and other state agencies The two constitutional limitations on the exercise of the power of eminent domain are l the taking of private property must be for a public use or bene t and 2 just compensation must be paid to the owner of the property taken or damaged V Who May Take As mentioned the right of eminent domain is granted by the legislature to a public agency or a quasipublic private corporation Under Ch 40A a public condemnor would be a municipal or county government such as a local board of education a sanitary district board a hospital authority a housing authority a water and sewer authority a community college or a regional transportation authority Private condemnors would include electric power companies telephone companies railroads and motor carriers Ch 40A does not apply to condemnations authorized by the DOT and other state agencies under Ch 136 VI Procedure Condemnation is the procedure used to take property without an owner s consent Under Ch 40A the power to acquire property by condemnation is not dependent on any prior effort to acquire that property by gift or purchase The condemnor must give 30 days written notice to the property owner as well as to the person in possession of the land sent by certi ed mail return receipt requested After the notice requirement is satis ed the condemnor institutes an action by ling a complaint in the superior court of the county where the land is located The complaint contains a declaration of taking At the same time the condemnor must deposit with the court a sum which in the condemnor s estimation will constitute just compensation After the complaint is led the defendant has 120 days within which to le an answer and if he does not meet this deadline he is presumed to agree that the amount of the deposit is just compensation After all other issues are resolved such as the condemnor s authority to take title to land interest and area taken and damages the Clerk of Superior Court if requested by either party may appoint a panel of three disinterested and competent residents of the county to serve as commissioners to determine the issue of just compensation The commissioners appraise the property In order to reach a conclusion they may hold hearings swear witnesses and take evidence Either the condemnor or the owner may object except to the conclusions of the commissioners within 30 days and demand a jury trial to decide the issue of just compensation If the commissioners final report is appealed there will be a trial de novo in superior court Ch 40A42a provides a quicktake procedure for vesting title when property is condemned for certain purposes This is available to a city or county or other public condemnor that takes property for roads storm sewers drainage and sewer systems electric power systems and solid waste facilities among others In applicable cases the title to the property and the right to immediate possession vest in the condemnor when the complaint is led and the deposit is made If the property is taken by a public condemnor for other purposes title vests after completion of the process as described above and disbursement of the deposit VII The Concept of Inverse Condemnation A property owner may bring an action called an inverse condemnation for compensation if a public condemnor takes his property without ling a complaint that contains a declaration of taking This remedy is only available to a property owner and must be instituted within 24 months of the date of taking or the date the project is completed Reasonable attorneys fees may be awarded to the property owner if he prevails in the suit The remedy of inverse condemnation is available for both physical invasions as well as noninvasive takings In addition to the actual physical taking of property for a public use governments can exercise their police power by regulations promoting health safety morals and general welfare of the community Examples of the exercise of police power are zoning and land use regulations that can directly affect private property ownership without physically taking the property Instead there may be a loss of economic benefit to the land owner VIII Physical Invasion Cases Exactions Dolan v City of Tigaral involved a physical invasion of private property The U S Supreme Court in a 54 decision held that the local government could take property by having an open space requirement and restrictions on the use of a floodplain because those bore a reasonable relationship to the city s interest in reducing congestion and avoiding ood damage However also requiring the landowner to dedicate part of her property to public use in exchange for a building permit is an impermissible taking of the landowner s right to exclude others which is an essential element of the bundle of rights that define property In Nollan v California Coastal Commission the U S Supreme Court held that the state could not impose an exaction in the form of a public access across a portion of the landowner s beachfront property as a precondition for approval of a developer s plans Rather the state must use its power of eminent domain for this public purpose and pay for it In Loretto v Teleprompter Manhattan CA TV Corp the U S Supreme Court held that when the character of a government action is a permanent physical occupation of property there is a compensable taking even though the action achieves an important public benefit or has only a minimal economic impact IX Regulatory Taking In Lucas v South Carolina Coastal Council the South Carolina legislature passed a statute to regulate 39 39 f d 39 I that r 39 quot quot 39 the Plaintiff from constructing a house on his beachfront property The U W Supreme Court found that where a government deprives a landowner of all economic value of his property he must be compensated even though the government has engaged in a valid exercise of its police power The Court held that regulatory action can go too far for purposes of the 5 Amendment Takings Clause In a takings case where a regulation denies all beneficial use of the property and that use is not one which is normally prohibited then the owner must be compensated However since governments have an interest in regulating use to promote the good of all property owners zoning regulations do not ordinarily result in a compensable taking even though they restrict the right of an owner to use his property as he sees fit X Exaction NC In order for an exaction to be legitimate under North Carolina law it must meet a need created by the developer and provide a commensurate bene t to the development excluding schools and general road improvements XI Takings in N C There is no takings clause in the North Carolina Constitution Rather the N C Supreme Court has ruled that the language of the law of the land clause in Art I l9 guarantees that just compensation will be paid for land taken for a public purpose Examples of takings under N C law are l a nuisance created by a municipality s emission of sewage into a stream 2 erection of a structure in violation of a restrictive covenant 3 a concussion caused by blasting to build a sewer and 4 an interference with access to a public roadway XII Compensation The fair market value FMV if the property taken is the amount of just compensation However in the case where only part of the property is taken the compensation is the higher of l the FMV of the property before the taking less the FMV of the property after the taking or 2 the FMV of the property taken When there is a partial taking Ch 40A provides for offsetting both special benefits ones that accrue only to the landowner whose property is condemned and not to surrounding landowners and general benefits those common to the land being condemned and all neighboring landowners to the remainder of the larger tract affected by the taking An exception to this rule is that the award cannot be less than the FMV of the property taken Offsetting benefits must be proved by the condemnor Unit 9 Liability for Livestock and Other Animals ARE 306 Dog Law I Strict Liability In North Carolina law there are certain circumstances under which a dog owner is held strictly liable for damage caused by his dog For example an owner will be responsible for civil damages for the destruction of livestock or fowl off of the dog owner s premises plus the costs of the suit A dog owner would also be liable for damages to a person his property or another animal caused by a dangerous dog as defined in the statute on or off of the owner s property Also a dog owner is strictly liable and guilty of a Class 3 misdemeanor for damages caused by a dog over six months of age who is running at large at night unless he is accompanied by his owner a member of the owner s family or someone who has the owner s permission to care for the dog 11 Dogs Which May Be Killed In general no one is authorized to kill or injure a dog even if it is a trespasser However North Carolina law provides some exceptions to the general rule and allows the killing of any dog believed to be mad rabid or any dog which has killed humans sheep cattle hogs goats or poultry after evidence has been presented in court and the owner has been noti ed Also an agent or employee of the Wildlife Resources Commission may kill any dog running at large in a wildlife refuge sanctuary or management area Finally the law allows the killing of any dog whose destruction is authorized by county or city ordinance One need not wait for a dog to kill one s livestock or poultry in order to kill the dog An owner of livestock or poultry may always defend the livestock or poultry if they are under attack 111 Criminal Liability It is a crime for any owner who allows a bitch to run at large when it is in heat Any owner who fails to kill a dog which has killed domestic livestock or a human and who allows the dog to roam at liberty commits a Class 3 misdemeanor Also the failure by anyone to kill a dog believed to be mad is a Class 3 misdemeanor as is leaving a dangerous dog unattended on the owner s real property unless it is kept indoors or in an enclosed and locked pen Another crime is transferring possession or ownership of a dangerous dog to another without providing written notice 1 to the authorities that determined the dog to be dangerous and 2 to the one taking possession or ownership of the dog It is a Class 1 misdemeanor for the owner of a dangerous dog that attacks a person with resulting personal injuries exceeding 100 of medical costs IV Dangerous Dog A dangerous dog is legally de ned as any dog 1 which has killed or in icted severe injury on a person 2 any dog kept primarily for dog ghting or trained for dog ghting or 3 any dog determined to be dangerous by a county or municipal animal control of cer or Board Livestock Under North Carolina law it is a Class 3 misdemeanor to permit livestock to run at large In order to be guilty under this statute the owner must consent or be willing for the animal to be at large or he must be negligent in allowing such The owner is not presumed to permit his animal to run at large just because the animal does so Anyone may impound livestock found running at large If he does so he is entitled to be reimbursed by the owner for reasonable costs incurred in impounding the animal including the cost of a reasonable search for the owner The impounder can retain the animal until the costs are recovered but he must give food and water to the animal during such time Where the owner of impounded livestock is known the impounder must immediately make a demand upon the owner Where the owner is unknown the impounder must give notice to the register of deeds who shall publish a notice of impoundment upon the courthouse door for 30 days Publication of notice in a newspaper of general distribution is also required Livestock not claimed may be sold at public auction It is a Class 3 misdemeanor to allow domestic fowls to run at large on the lands of another which are under cultivation for grain or feedstuff or while used for gardens or ornamental purposes after having received notice of such After three days notice if the owner has not reclaimed them the fowls may be killed by the sheriff An owner is liable for injuries or damages caused by his livestock when they are trespassing on the lands of another only if the animals are at large with his knowledge and consent or if their escape is due to his negligence He has a legal duty to exercise ordinary care and the foresight of a prudent person in restraining his animals onto his property Even though there is no presumption of knowledge or negligence when an animal gets loose from his owner these may be inferred if the animal is repeatedly found at large Concerning livestock on the owner s property the owner is presumed to know the general propensities of certain animals even if his particular animal has not performed dangerous or vicious acts He must exercise due care to prevent injury from reasonably anticipated conduct For example the owner has a duty to restrain his animal if that breed of animal has general propensity towards Viciousness when he knows of Visitors to his property Fence in and fence out states North Carolina is a fence in state which means that it is the duty of the owner of livestock or poultry to keep the same confined within adequate fences Some western states have free range which means that animals are allowed to roam and it is the duty of one who does not want the animals on their land to fence those animals out Unit 10 The Nature of Real Property 1 Distinguished From Personal Property Real property and personal property are distinguished from one another because different rules may apply to each such as laws of inheritance tax laws and contract laws Real property is immoveable property such as land buildings attached to land and other things incidental to land Personal property is generally moveable and is every kind of property that is not real property Personal property is classified as tangible such as furniture livestock or tractors and intangible such as stocks bonds notes payable patents copyrights and court judgments which are representations of property A xture is something that was once personal property and has become attached to real property in such a way as to lose its status as personal property and be considered part of the real property The intent of the owner at the time of xation is the primary consideration in determining whether something is permanently attached to real property The intent of the owner is however determined objectively by the actions that the owner took One of the important consequences of this classification is that it determines what will be part of the sale or lease of real property Some items are easy to classify as xtures such as permanent buildings or fences but others may be harder to classify such as grain bins shop equipment or corral headgates and therefore should be specified in the sales contract or lease agreement Some other consequences of this classification are that property taxes may be levied on real property but not on personal property or that a will may specify real property to one heir and personal property to another The Uniform Commercial Code UCC deals with the law of sales and commercial transactions involving personal property and Article 2 of the UCC deals specifically with the sale of goods that are tangible and moveable It may apply to goods associated with real property For example if a structure or mineral is to be severed by the seller it is covered by Article 2 but if it is to be severed by the buyer its sale is considered part of the real property and not governed by Article 2 A fixture ling under 2A309 ensures that the security interest of a lender in personal property that is to become attached to the land will have priority over the security interest attached to the real property For example ABC Co sells an air conditioning unit to B who plans to bolt it to his building ABC finances the purchase of the unit and requires B to execute a financing statement Bank holds a security interest deed of trust in B s real property including the building Once the unit is attached to the building it becomes a fixture a part of the real property subject to Banks security interest If ABC does nothing else its security interest in the air conditioning unit comes after Bank s ABC cannot even repossess it without permission from Bank A fixture ling made with the office of the register of deeds solves this problem Another area where confusion may arise as to whether property is af xed to the land is growing crops The rule is that crops which grow spontaneously on the land such as trees bushes or grass are called fructus naturales and are part of the land until severed On the other hand crops which result from annual planting and cultivation such as cotton tobacco or soybeans are called fructus industriales and are considered to be personal property The classi cation of crops can determine their ownership The doctrine of emblements denotes the right of a tenant to remove annual crops at the termination of a tenancy North Carolina law allows the tenant to hold out for a year in lieu of emblements so long as the tenant continues to pay rent The statute is written in mandatory terms such that it appears to replace the doctrine of emblements however there are no cases on point that resolve that issue Crops that are not annual such as perennial forages tree crops and Christmas trees are generally to be treated as part of the real estate absent an agreement to the contrary although there are no cases on point 11 Elements of Ownership Ownership of property can be viewed as a bundle of sticks The rights of the owner depend on whether he has all of the sticks in the bundle or only part of them such as a lease or a life estate Ownership rights include the right of disposition Property or an interest in property can be sold given away during lifetime or at death passed to a joint owner who has a right of survivorship or leased to another A property owner also has the right of exclusion protected by the right to bring an action for the tort of trespass possession and the right of enjoyment protected by the right to bring an action for nuisance enjoyment includes use including destruction There may be regulatory limits on the right to destroy one s own property 111 Freehold Estates Estates are interests in land that are now possessory or will become possessory at some future time This is a way of expressing ownership rights measured in terms of duration A freehold estate has a potentially infinite duration or an unpredictable length as compared to a leasehold estate where the lessee has the possessory right and use of the property for a limited time only Freehold estates can be divided into fee estates and life estates A life estate is a freehold estate whose duration is measured by the life of another The measuring life may either be that of the holder of the life estate or a third person They are usually created either by deed or by will The life tenant has possessory right and use of the property but he does not have legal title That is vested in the reversioner or the remainderman At the death of the measuring life the property belongs to a reversioner if no disposition of the fee the title was made at the time the life estate was created A reversioner would be the grantor or his heirs who have held the fee during the life estate Alternatively at the death of the measuring life the property belongs to a remainderman if the person who created the life estate designated who would take possession at the end of the life estate A life tenant one who holds the life estate interest has a duty to protect and preserve the property called the duty to avoid waste to make and pay for repairs necessary for reasonable maintenance of the structure to pay interest on mortgages to pay all ordinary taxes and to insure his interest in the property The expenditures are generally limited to the amount of income generated by the property or the fair rental value of the property A life tenant has a right to estovers which means that he may cut timber for personal use as fuel for fencing the property and to make repairs to structures on the property In general commercial timber operations are not permitted unless the property was used for commercial timber operations prior to the creation of the life estate The most common fee estate is the fee simple which encompasses all of the ownership rights It can be transferred by sale gift or inheritance to any person without any restrictions A fee simple determinable is a fee simple estate that continues until automatically terminated by the occurrence of some specified event after which the land reverts to the grantor or his heirs The interest retained by the grantor in this type of ownership is called the possibility of reverter A similar estate is called a fee simple subject to a condition subsequent Here the fee simple estate may be terminated but not automatically by the grantor or his heirs upon the happening of a named event This future interest of the grantor is called a right of entry for condition broken or a power of termination IV Future Interests A future interest is an estate in land that is presently owned but will not become possessory until sometime in the future The future interest may be sold gifted or transferred by inheritance Examples of future interests that may be held by the grantor are l reversion the estate that remains with the grantor who transfers an estate of less duration than he owns 2 possibility of reverter the interest retained by the grantor of a fee simple determinable or 3 right of entry the interest held by the grantor who conveys a fee simple subject to a condition subsequent and expressly retains a right of entry in himself Examples of future interests that may be held by the grantee are l remainder the interest conveyed to a third party that can be presently possessed by that party only upon the natural termination of the prior possessory interest or 2 executory the interest held by the grantee that does not have the characteristics of a remainder interest V CoOwnership Tenancy in common is joint ownership of property where each owner holds an undivided separate and distinct share in the property and has a right of possession with all of the coowners The interest represents an identical right of enjoyment unity of possession The owners do not have right of survivorship The interests of tenants in common may or may not be equal Each owner has a right to sell or bequeath his share without the consent of the other coowners The creditors of a coowner may execute against that owner s interest in the property A fiduciary relationship exists between co owners meaning that one owner cannot benefit from the property to the detriment of the other owners If one coowner pays the property taxes or mortgage interest he has the right to compel pro rata contributions by the coowners There is also a right of contribution for repairs unless they are made by the coowner in possession A coowner has no right to contribution for improvements In North Carolina in order to force a possessory coowner to protect and preserve the property the other coowners can le an action for waste This action is not available under the common law Each tenant has the right to possess all portions of the entire estate If there has been an ouster wrongful dispossession or exclusion from the property by the owner in possession a non possessory owner can bring an action for ej ectment to regain possession A tenancy in common can be terminated by partition where the court divides the land held by the joint owners into distinct portions that are then held separately if possible or else sells the property and divides the proceeds among the owners Joint tenancy is the joint ownership of property where each owner owns an undivided equal interest in the entire property Four unities are required to create a joint tenancy l timeiall interests are created at the same time 2 titleithe interests all come from the same source e g deed or will 3 interestieach owner has an identical type and duration of interest and 4 possessioniall interests have identical rights of enjoyment Under common law joint tenants also had a right of survivorship but the statutes of most states including North Carolina now require that the language of the conveying document e g written contract or deed speci cally expresses the intention to create a joint tenancy with right of survivorship in order for the right of survivorship to exist Otherwise the law presumes that the joint ownership is a tenancy in common Tenancy by the entirety is a joint ownership held by a husband and wife considered to be one unit Five unities are necessary to create a tenancy by the entirety the four mentioned above for joint tenancy plus the unity of person husband and wife In North Carolina this is the type of ownership that is presumed when a conveyance is made to spouses and in order to create any other type of ownership the conveying document must contain specific language doing so Tenancy by the entireties is applicable to interests in real property and in mobile homes Neither spouse has the right to convey his or her interest without the agreement of the other and creditors of an individual spouse may not execute upon tenancy by the entirety property VI Trusts A trust is a fiduciary relationship among a trustor the one who transfers the property into the trust the trustee the one who manages the property for the benefit of the beneficiary and the beneficiary the one who receives the benefit of the property transferred into the trust A trust is a variation on joint ownership because the legal interest in the property is held by the trustee and the beneficial equitable interest is held by the beneficiary Because the terms of the trust are totally up to the trustor a trust is a much more exible device for transferring property than some other methods such as a life estate


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