ABSTRACT
The vast majority of first-year property students become aware of two basic categories of estates in fee simple: the fee simple absolute, and the fee simple with various encumbrances (determinable, subject to condition subsequent, subject to executory limitation, and so forth). Concurrently, however, those same students become aware of a large body of case law employing ‘rules of construction’ to dispense with these encumbrances, changing an otherwise-encumbered estate in fee simple into an estate in fee simple absolute. In this piece, I will seek to argue that courts, acting in law rather than equity, should employ the same logic the other way around, to impose an encumbrance upon an estate in fee simple absolute, creating a ‘constructive estate’. My argument in favor of recognizing a new equitable remedial tool proceeds in four parts. Part I will overview a Montana Supreme Court case about a mountain railroad, Link v State, which the rest of this paper will use to demonstrate how the ‘constructive estate’ would work in practice and demonstrate such a remedy’s potential practical appeal. Part II will critique the equitable contempt power against states, especially in states that do not have an equivalent to the federal Judgment Fund, showing that cases proceeding against such states in personam will inevitably require alternative modes of relief almost as a matter of course. Part III provides an overview of the constructive trust, explaining why that remedy would not work on the facts of Link to provide complete relief. Part IV uses the best information available to analyze what actually happened in the aftermath of Link, while Part V articulates the contours of the ‘constructive estate’ as a novel remedy on the legal side of the law-equity divide.
Humphreys, Devin, The Constructive Estate: Developing an Adequate Remedy at Law, Not Equity (May 23, 2023).
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