However in situations where there is distinct and real doubt, the court may order disclosure to the defense of who the informant was.  However, this is discouraged.

The most common example of an easement of necessity is where a parcel of land is “landlocked” and access to a public road can only be gained via a right of way over an adjoining property.

There are three separate elements the law has established:

1. prior common ownership of the dominant and servient estates
2. transfer of one of the estates by the common grantor, creating the lack of access, and
3. necessity of the easement for making use of the transferred estate

A right to a way of necessity can lie dormant and be activated by a remote
grantee

Holding: Reversed. The Court of Claims decision that the low-level and frequent flights
over P’s land were a government taking, but the cause is remanded to discover whether or
not the taking was complete or temporary.

Rationale:

- The doctrine of “ ” has no place in the modern world. The air is a public highway and Congress has implemented law that indicates that all airspace over the United States is public property. However, that principal does not apply to this case. The US conceded on an oral argument that if the flights over P’s property rendered it uninhabitable, there
would be a taking under the 5th Amendment.
- If by reason of the frequency and altitude of the fights, P could not use their land for any purpose, their loss would be complete and therefore subject to a market value taking by the government. The fact that the planes never touched the surface is irrelevant. This is not like an adjacent railroad that creates a legal nuisance. Here, P’s airspace is being
appropriated by an outside influence in such a way as to render the land useless to its proper owners
- The gov’t taking the land and reducing its value as opposed to making it completely
useless is not controlling. So long as there is a servitude placed on the owner. If a land owner is to have full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and fences could not be run.
- Also, according to Congressional regulations, the flights were not within the navigable airspace which Congress placed within public domain. Therefore, the path of glide hereis not within the minimum safe altitude of flight within the meaning of the statute.

• open and notorious;
• adverse and under a claim of right; and
• the adverse possession must be continuous for the statutory period.

Note:

• Usual requirement for exclusive possession is cultivation and a claim of title.
• Some requirements require substantial enclosure (Van Valkenburgh)
• Paying taxes may = adverse possession
• State of mind of the person asserting adverse possession is not relevant.
• Open and notorious must be a big encroachment or known to the person who has title.
• Open and Notorious meets the reasonable notice requirement
• Adverse must equal hostile, hostile must equal adverse to true title.

The chartering of the Bank was w/in the constitutional power of federal gov’t because it bore a reasonable relationship to constitutionally-enumerated powers of gov’t (power to collect tax, borrow money, regulate commerce)

Since Bank was Constitutionally chartered, the tax was unconstitutional.  Marbury saw possibility that this taxation by state could be carried to extremes and lots of things could be taxed.  M disposed of the argument of the states that the Bank was not Constitutionally chartered because the powers come directly from the states.  M says powers come from the PEOPLE.  M says that all powers need not be EXPLICIT.  They can be implied. “necessary and proper” (most significant part of the opinion) – M rejected opinion that necessary meant “absolutely necessary”.  Says all means which are appropriate are OK.  Therefore, all means are rationally related to a constitutionally specified object the means is constituational.  M says power to punish for violation of federal laws is implied; post offices; roads, implied.
Marshall also believes that the S. Ct. should strike down laws only when it is quite clear that no constitutionally-specified object was being pursued.  Anything closer should be left to Congress – not courts!
Marbury’s argument like taxation w/o representation.  You can’t tax people who don’t have a say in the affairs of the state.  M says taxes on federal government violate the supremacy clause.
McCulloch today-The court shows great deference to congress and will not inquire into legislators’ motives.  Therefore, as long as legislation is rationally related to one constitutionally-enumerated motive that Congress might have been pursuing . . . the fact that other ends not w/in the enumerated powers might have been achieved does not invalidate that power.

Case on point:  Vosburg v. Putney

Boy kicks, or lightly touches, another boy’s leg just below the knee while they are at school. The kicked boy’s leg eventually had to be amputated. The kick was found to be the cause of the harm.

Also, note that consent is a defense to Battery.

2.   Tests of mental capacity:

• Did party understand the nature and quality of the transaction or grasp its significance?  OR
• Was party able to act in a reasonable manner in relation to the transaction and the other party had reason to know the party was acting reasonably?