Property II
Final Exam - Practice
Spring 1987

On July 16, 1954 Farmer Frank sold a 10 acre parcel of land to Dave of Dave's Drive-In Movie, Inc. The land was located in rural, unincorporated land in Riverside county, California and was adjacent to other land still owned by Frank. Concerned about potential problems, Dave asked Frank to promise that he, Frank, or his heirs would not put up any bright lights which might interfere with viewing of Dave's drive-in movie screen next door. Frank made that promise to Dave in a letter dated December 20th of that year, although he (Frank) thought the whole thing rather silly since the farm was zoned for agricultural use. Further, bright lights and farming seemed incompacible to Frank.

In 1960 Dave sold the drive-in and the land to Doris, who promptly renamed the theatre, Doris' Drive-In Movie, Inc. Over the years, more people moved to the area and Doris' business prospered as the land turned from rural to suburban. By 1980, the surrounding area was a bustling, mini-metropolis, with shopping malls, tanning salons and other accoutrements of civilization. In that year, the county rezoned Farmer Frank's land as commercial and Frank made a handsome profit selling his parcel next to Doris to Wally in 1981.

At the closing of escrow on Frank's farm in 1981, Frank gave Wally a cardboard shoebox which he (Frank) said contained important papers regarding the land. Wally glanced cursorily at the contents of the shoebox and asked for the deed. The deed from Frank to Wally was a warranty deed in fee simple absolute "subject to the restrictions contained in a letter dated 12-20-54 from Frank to Dave". When asked about the letter referred to in the deed, Frank told Wally it was one of the papers in the shoebox given earlier. With that, Wally grunted and accepted the deed.

Wally wasted no time in selling off all the farm machinery. Within two years the former farm was replaced by a long glass building open at both ends and another cavernous, domed structure. In 1985 Wally constructed a huge 40,000 watt neon sign timed to blink on and off once every thirty seconds. In 1986 Wally had his grand opening of his new business: Wally's 24 Hour Car-Wash and Disco Experience. He illuminated his sign at that time and it has been blinking incessantly ever since.

Doris was not pleased. Over the past three years her movie business had fallen off. People were simply not going to drive-ins, but were centing videotapes instead. After Wally's grand opening, her business deteriorated further -- especially since the flashing lights from Wally's 24 Hour Car Wash and Disco Experience made it next to impossible to see her drive-in movie screen.

It is 1987 and Doris has come to you for an impartial and complete assessment: of her rights in this matter. She would like to shut Wally down for good, but even getting him to remove his sign would be acceptable. She refuses to sell or stop her business and does not have the money to buy Wally out. You know that California law absolutely prohibits any nuisance action in this situation. What is your impartial and expert legal opinion?