Spirit Airlines, Weightlifting and Mail

My co-worker and good friend Sarah has recently completed a trip to the United States.  Unfortunately, thanks to the sterling work of Spirit Airlines, she returned with only the clothes she was wearing and without her weightlifting gear.  She is, not unreasonably, just a little miffed.


Long time readers may recall that I posted a note on Nicol v Air Maroc, a decision from the High Court of Sierra Leone in which an airline’s liability for the costs of lost luggage was explored.  No doubt, if all else fails, suitable litigation under the Warsaw Convention will set things to rights.  But this got me thinking: “I’m an old-fashioned sort of solicitor.  Is there an old-school way of dealing with this?”

There is, and it comes to us out of a foggy night on 5 April 1900, just off of Table Bay in South Africa.  The SS Winkfield, a troopship, collided with SS Mexican, a ship carrying passengers, freight and mail.  No lives were lost, but a quantity of mail went down with the Mexican.

SS Mexican
SS Mexican (Image from here)

Inevitably, litigation began for the value of the lost mail, lead by the Postmaster-General as bailee of the items.  Damages were agreed at £32,514, 17s 10d (current value £3,925,832.83 / AU$7,439,488.97 / US$5,052,959.06).  At first instance the claim was rejected on the grounds that, as bailee, the Postmaster had no liability for loss of the mail and therefore no standing to sue.  The Postmaster appealed.

Cockerham, Charles, active c.1900-1935; SS 'Winkfield' Bound for South Africa with Troops, July 1890
SS Winkfield (Image from here)

The English Court of Appeal (Collins MR, Stirling and Mathew LJJ) stated decisively that the Postmaster, being possessor of the mails, had a perfect right to sue for their loss.

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession is title.  The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped.

The Court also made an observation which would be on point for my friend Sarah if Spirit Airlines find they cannot come up with her belongings in a timely way.

[T]he obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned.

Loss of baggage by an airline being determined by case law from before the age of flight?  Sounds like fun to me!

The Winkfield [1902] P 42

Who owned the elephant?

Bart Simpson famously asked “where’s my elephant?”

He wasn’t the first.

In 1914 or 1915 Mr Maung Dwe of Burma captured an elephant and trained it to work. About six months later he sold it to Mr Maung Sin, for whom it worked until 6 June 1917 when it became lost in the jungle. The creature appears to have joined with a herd of wild elephants. In June 1918 it was recaptured by Mr Maung Shwe. He found it was able to be put to work very soon thereafter. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Elephant at work - Rangoon, Burma
Elephants at work, Rangoon (c.1907) [Image from here]
Higinbotham J took his bearings from Halsbury’s Laws of England, vol.1 ¶¶798799. According to Halsbury a person can have only “qualified” property in a wild animal.  If a wild animal escapes to its former liberty, the ownership is lost.  He continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained ani­mal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal.  In such case, the former owner would have lost all property to it.  But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

In this case the recaptured elephant had been returned to work in a very short time and appeared trained.  It followed that it was not a wild animal when recaptured and so Sin remained the owner.

Shwe v Sin, AIR 1921 Lower Burma 1

Did anyone subpoena Bob the Builder?

Watching Bob the Builder is not an adequate substitute for having a construction industry White Card.

On the weekend of 13-14 September 2014, 16 year old Alex Hayes entered a construction site in Kentucky with some friends.  They consumed whiskey and marijuana.  A little after 1am they began to leave.  Alex climbed onto a piece of equipment, started it and began to drive it up a floodwall.  The machine tipped over and caused severe injuries to his right leg.  Hayes’ parents sought compensation on his behalf from the the property developer and its construction contractor.

This is not a training resource (Image from here)

It was common ground that Alex was trespassing at the time of the accident.

Kentucky statute law provides that [KY Rev Stat § 381.232 (2013)] –

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

The rigour of this provision is moderated by Kentucky’s doctrine of “attractive nuisance”.  This doctrine says that a landowner is liable for harm to children trespassing on land, if that harm is caused by an artificial condition on the land and if –

  1. The place is one where the possessor knows children are likely to trespass;
  2. The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
  3. The children, because of their youth, do not appreciate the danger;
  4. The value of the condition for the possessor and the cost of eliminating the risk are slight relative to the risk to the children; and
  5. The possessor fails to exercise reasonable care to eliminate the danger or protect the children.

The defendants sought summary dismissal of the claims which was granted: Hayes v DCI Properties – D KY LLC (Campbell Circuit Court, Judge Stine, 22 July 2016, unreported).  The plaintiffs appeal was dismissed: Hayes v DCI Properties – D KY LLC (Kentucky Court of Appeals, Combs, Lambert and Nickell JJ, 16 June 2017, unreported). The plaintiffs appealed to the Supreme Court of Kentucky.

The Supreme Court dismissed the appeal.  It was noted that Alex was licensed to drive a car, that he was an average high school student, and that earlier in the evening he had taken steps to prevent one of his friends injuring himself on a machine.

Although we no longer adhere to a strict age cutoff, e.g., children under fourteen years of age, a child must be unable to appreciate the risk involved in intermeddling with the condition. The evidence in this case clearly demonstrates that Alex not only was capable of appreciating but also in fact did appreciate the risk of operating a piece of heavy machinery.

As a result, Alex was not entitled to rely on the attractive nuisance doctrine.

Hayes and Hayes v DCI Properties LLC, __ S.W.3d __ (KY, 13 December 2018)

But the tree had to fall

Nobody asked the tree what it thought about the matter.

Catalpa tree (Image from here)

In about 1930 a catalpa tree began to grow in the Washington Park neighbourhood of Denver. Eighty years of subdivisions and land transfers later, the tree was on the boundary of blocks owned by the Loves and the Kloskys (sadly, the case does not disclose that the blocks were called Blackacre and Whiteacre, which would have been rather cool). Specifically, 74% of the trunk was on Klosky’s land and 26% on Love’s land. The tree dropped leaves, braches and seed pods on both properties. Klosky decided to cut the tree down. Love objected and obtained a restraining order pending an injunction preventing Klosky felling the tree.  The Loves’ application was dismissed by the Denver District Court, although in words many garden lovers would understand  Judge Hoffman said –

[T]he law often requires me [to] do things I don’t want to do. If I [were] the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof.

The Loves appealed to the Colorado Court of Appeals, which dismissed their application: Love v Klosky, 2016 COA 131. They appealed to the Supreme Court of Colorado.

The Supreme Court considered its earlier decision in Rhodig v Keck, 421 P.2d 729 (Colo., 1966). Rhodig was found to have embraced the very old English case of Masters v Pollie, 2 Rolle 141; 81 ER 712 (Kings Bench, 1620). That case had found that in a case like the present, where the tree encroached on anothers property, the tree belonged to the owner of the land where the tree was planted. Rhodig had added a gloss that where such a tree had been jointly planted, jointly cared for, or treated as a boundary between properties, it could become joint property between the neighbours. This was not the case here. There being no case for overturning Rhodig, Klosky was entitled to remove the tree.

Love v Klosky, 2018 CO 20


Brandt v United States (2014) H&FLR 2014-40

Marvin M. Brandt Revocable Trust v United States (2014) H&FLR 2014-40

Supreme Court of the United States

10 March 2014

Coram: Roberts CJ, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor and Kagan JJ

Appearing for the Appellant: Steven J. Lechner (of Mountain States Legal Foundation)
Appearing for the Respondent: Donald B. Verrilli Jr (Solicitor General) and Anthony Alan Yang (of the Office of the Solicitor General)

Numerous parties appeared as amici curiae.

Catchwords: United States – property law – fee simple – railway – easement – rail trail – abandonment

Facts: In 1976 a grant of land in fee simple was made by the respondent to Marvin and Lulu Brandt. The land was granted subject to the rights which had been granted to the operator of the Laramie, Hahn’s Peak & Pacific Railway (railway). The rights in question consisted of a right of way granted to the railway in 1908 under the General Railroad Right-of-Way Act 1875 (43 U.S. Code §934) (Act). In 2004 the railway operator formally abandoned the right of way and removed the railway tracks.

In 2006 the respondent sought a judicial declaration of the abandonment and an order quieting title to the Right of Way in the defendant. It was inteded to convert the right of way to a recreational rail-trail. The trust which by then owned the land granted to the Brandts disputed the respondent’s claim on the grounds that the right of way was a mere easement which was extinguished by abandonment, leaving it with full title to the land. The respondent’s position was that it had retained a reversionary interest in the right of way which would restore it to the respondent if the railway’s interest were abandoned.

The government’s claim was upheld at first instance: United States v Brandt, 2008 WL 7185272 (D. Wyo., 8 April 2008) (the decision is incorporated into the Petition for Certiorari at pp.62 et seq). An appeal was dismissed: United States v Brandt, 496 Fed. Appx 822 (10th Cir, 2012). The defendant appealed.

Held: Per Roberts CJ, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito and Kagan JJ, allowing the appeal, that –

1. A grant to a railway operator under the Act grants only an easement and not a fee interest.

Great Northern Railway Co v United States, 315 US 262 (1942), followed.
Stalker v Oregon Short Line Railway Co, 225 US 142 (1912) and Great Northern Railway Co v Steinke, 261 US 119 (1923), doubted.

2. If the beneficiary of an easement abandons it, the easement disappears. The landowner then resumes a full and unencumbered interest in the land. Hence, when the railway operator abandoned the right of way, the easement terminated and Brandt’s landed ceased to be burdened by it.

Smith v Townsend, 148 US 490 (1893), followed.

Per Sotomayor J, dissenting, that the key issue in this case is defeasibility of title, which was not raised by Great Northern Railway v US. Railroad rights of way are a sui generis form of property rights, made on an implied condition of reverter.

Great Northern Railway Co v United States, 315 US 262 (1942), distinguished.
Rio Grande Western Railway Co v Stringham, 239 US 44 (1915), followed.


The court’s judgment is available here.