Property outline I. Right to exlcude: trespass law


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-Strong system in US of protecting all types of property

a) Life, liberty, and property protected by Bill of Rights

-Bundle of real property rights include: Right to exclude, Right to use and enjoy, Right to alienate/transfer ownership/possession, and Right to maintain ownership of



Right to exclude

  1. Efficiency/social utility

  2. Have to distinguish between private home and businesses

-Can’t keep anyone you want out of your house (e.g., police, firefighters)

-Civil Rights Laws restrict right to exclude for business

-Necessity can trump trespass laws

Right to use and enjoy property

-Can’t harm neighbors

Right to alienate/transfer

-Concentrate aspects of ownership in 1 individual

Right to maintain ownership

a) Real property rights can last indefinitely

-Takings power of the state

-Right to exclude one of the most important sticks in bundle of property rights

a) Protected by trespass law (civil/criminal)

-Trespass = unprivileged intentional (volitional) intrusion on property possessed by another

-The more an owner has opened her property to the public, the more likely it is that courts will find public rights of access to the property

State v. Shack (NJ 1971) (p.104)

Facts: One D sought to provide medical services to a migrant farm worker on Tedesco’s farm and the other D sought to help the other with the legalities involved and notify other farm workers about federal assistance available to them. Both Ds worked for non-profit corporations that were funded by federal statutes. Tedesco wanted to limit access so the Ds couldn’t meet privately with farmers, Ds refused limited access, and Tedesco had them removed for trespassing.
-There was no trespass b/c under NJ state law, property ownership does not include the right to bar access to governmental services available to migrant workers

a) People’s well being must remain paramount concern of system of law

-No need for farmer to deny workers opportunity for aid available from federal, state, or local services, or from recognized charitable groups

-No trespassing here, worker’s right to enjoy customary associations and live w/ dignity are too fundamental to be denied on the basis of an interest in real property

-Supremacy Clause (US constitution and all federal laws shall be the supreme law of the land, any contrary state law notwithstanding) argument; why it is important that Ds worked for federally funded organizations

-Other federal argument would be the 1st amendment, need access to workers to speak to them

a) Have a private property owner imposing limitations on speech (not allowing migrants to speak with attorney without him present)

-Because the Shack court rests its decision on NJ law as opposed to any federal law or the Const., means that the state is the final arbiter of this decision, can’t be appealed to the SC

-In Marsh v. Alabama, company town asserting property rights to kick people off

a) SC finds that the private town open to the public generally keeps company from excluding

b) Just like Marsh, Ds have right to enter private property to disseminate literature

c) In Marsh, we’re dealing with religious info, while here we are talking about legal and medical access

d) Marsh wanted to express message generally, Ds were trying to reach individuals (particular need not general mouthing off)

Desnick v. American Broadcasting Companies, Inc. (7th Cir. 1995) (p.108)

Facts: ABC lied to Desnick, saying that it wanted to do an interview about cataracts, when it actually wanted to do an expose on Desnick, which it did having obtained access to his premises.
-Even though procured by fraud, there was no invasion of any specific interests that the tort of trespass seeks to protect here (comparisons of prostitute and fraud in price and meter reader lying to get into a home)

-Test patients entered offices that were open to anyone expressing a desire for eye services and videotaped physicians engaged in professional conduct, not personal communication

-Activities of the office were not interfered with

-No interference here with the ownership or possession of land

-Public policy justification (privilege of investigative journalism) better than Posner’s distorted reasoning according to Prof.

-Trespass can be privileged if (1) entry is done w/ consent of the owner, (2) entry is justified by the necessity to prevent more serious harm to persons or property, and (3) entry encouraged by public policy

-3 types of relief for trespass: (1) damages (nominal and compensatory), (2) injunctive, and (3) declaratory (also criminal remedies are available, See Shack)

-In Food Lion, Inc. v. Capital Cities/ABC, Inc., similar scenario to Desnick. ABC undercover reporters got jobs at Food Lion and reported gross violations. ABC convicted of trespass but only nominal damages of $2 awarded

-Right to exclude limited by: necessity, Shack privilege, Free speech (Marsh and Schmid, where allowed to distribute literature on private university campus b/c campus held open to the public), Consent (Implied, Express -- even if procured via fraud in some cases (Desnick) – where entry is “not an interference with the ownership or possession of land”), and entry privileged on public policy grounds

-Right to exclude also limited by public accommodations law: Grants public right of reasonable access to innkeepers and common carriers

a) Minority Rule: Extended in Uston to apply to all places “open to the public”

Uston v. Resorts International Hotel, Inc. (NJ 1982) (p.116)

Facts: Uston has been excluded by the D from blackjack tables in the casino b/c his strategy increases his chances of winning.
-Current majority rule in American grants proprietors of amusement places an absolute right to arbitrarily eject or exclude any person consistent w/ state and federal civil rights laws

-Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use

a) Would be different if Uston disrupted the regular and essential operations of the premises or threatened the security of the premises and its occupants

-Uston possesses the usual right of reasonable access unless Casino Commission rules otherwise

-Historically, certain entities are forced to give public access (innkeepers, etc)

a) Monopolies, necessities, reasonable reliance of the public that this place will be open

-Uston is the minority rule, where all places open to the public have to grant right of reasonable access

a) These places don’t really meet the common law criteria (monopolies, etc)

b) The more you open up to the public, the more constrained you are to exclude

-Traditional CL rule imposes a duty on innkeepers and common carriers to serve members of the public w/o discrimination unless they have a legitimate reason not to

-Most states retain traditional absolute right exclude w/o cause and just limit duty to serve the public to innkeepers and common carriers

-Under majority rule, advancing goals of personal autonomy and efficiency

a) Property owner wouldn’t discriminate too much because it would harm profits (market oriented approach)

-Focus here is discrimination against non-protected groups (e.g, Caucasian males)

-Majority rule easier to administer

-Justifications for inns and common carriers special obligations: (1) more likely to be monopolies so a denial of service was tantamount to thwarting travel, (2) individuals could be placed at risks from denial of these services b/c of their necessity, and (3) public relies on these businesses’ representation as open to the public

Statutory Law on Public Accommodations

-Federal Civil Rights Statutes (p.124)

Civil Rights Act of 1964

-deals with access to place of public accommodation on grounds of race, religion, and nat’l origin (sexual orientation or gender are not part of this)

-Must be within list of facilities named or implied, serve the public (not private establishment), and supported by Federal or State law

-Elements: D committed discrimination/segregation, on the grounds of race, religion, or nat’l origin, over access to place of public accommodation, which includes list of facilities named or implied; and serve the public, not a private establishment; and either affect commerce or supported by state action

Civil Rights Act of 1866

1981 deals with right to make and enforce contracts

1982 deals with property

-On their face these seem like they could apply to individual and not just state discrimination (after their passage they were thought to apply only to state discrimination because were passed under the 14th Amendment, which deals with state discrimination)

a) §1981-2 do apply to private acts of discrimination as well (more recent development)

-Under the Interstate Commerce Act, common carriers who are in engaged in IC are prohibited from all unreasonable forms of discrimination, not just discrimination based on race, religion, and national origin

-In Watson v. Fraternal Order of Eagles (6th Cir. 1990), private club held to have violated §1981 (which applies to private individuals) when it refused to serve drinks to a black guests. B/c it was private club, could not be reached by 1964 act.

a) Mixed on whether a private club can be held liable under §1981


Dale v. Boy Scouts of America (NJ 1999) (p.133)

Facts: BSA code has language “morally straight” and “clean,” BSA belives that constitutes a rejection of homosexuality. James Dale was a member of the BSA until it was discovered he was gay, subsequently kicked out.
-NJ state law prohibits discrimination in places of public accommodation under the basis of sexual orientation

-Issue of “place”, does that mean fixed place or just a term of convenience?

  1. NJ law rejects a narrow interpretation of place (can include organization, etc)

-BSA also engages in broad public solicitation and maintains close relations with federal and state governmental bodies and w/ other recognized public accommodations

-BSA said it should be exempted b/c it is distinctly private

a) But BSA lacks any type of membership selectivity and has a large membership

b) BSA oath and law do not count as genuine selectivity criteria, take at face value affirmation of oath and law by members

-By its own policies, BSA is an inclusive organization. Therefore, it is not exempt form NJ anti-discrimination laws

BSA v. Dale (SC 2000)

-NJ’s public accommodation law violated the 1st Amend.’s protections for freedom of association

-Homosexuality inconsistent w/ values BSA sought to instill in boys, and forced inclusion of an unwanted person infringes on a group’s freedom of expressive association if that person’s presence affects in a significant way the group’s ability to advocate public/private views

-In dissent, Stevens noted that never before had SC found a claimed right to associate in the selection of members to prevail in the face of a state’s antidiscrimination law and that BSA has no written out policy/stance on homosexuality

-Souter, in dissent, noted that no group can claim a right of expressive association w/o identifying a clear position to be advocated over time in an unequivocal way

-First, case centers on whether BSA is a place

-Second, is the BSA a place of public accommodation or is it a private club?

-Are internet websites places of public accommodations

-Court takes an expansive interpretation of place

a) Court says people discriminate not places, and you want to stop the discrimination so go after the people

-Public v. Private

a) BSA would argue that there’s genuine selectivity criteria and not just wide open to the public/ need to abide BSA oath and law

b) Court disagrees because BSA openly solicits anyone/everyone to be a member

-Under NJ analysis, could BSA exclude girls and atheists

a) BSA has an official position on sex (it’s called the BSA)

b) Courts have generally had BSA has right exclude atheists based on their creed

-Dissent by Stevens found there was compelling government interest to allow Dale to join

-If club had whites only sign, SC would find compelling gov’t interest in eradicating black discrimination

a) Homosexuality is more controversial than race though

-For a public accommodation statute to override first amendment associational rights, need compelling state interest, which SC didn’t find in Dale (discrimination based on sexual orientation)

Lloyd Corp., Ltd v. Tanner (SC 1972) (p.153)

Facts: Lloyd owns a shopping center in Portland, OR. The mall is open to the public. There is an auditorium that groups have used for presentations but they have to pay for it unless they are charities, and political use is forbidden except that Presidential candidates of both parties have spoken there. Tanner et al. peaceably handed out anti-draft/Vietnam war fliers when security said they had to leave the mall to do that. Tanner sued for declaratory and injunctive relief.

-In finding for Tanner, lower courts found the critical inquiry to be whether or not the mall was a public business district

-1st and 14th Amends. deal with limitations by state action, not on the action by the owner of private property used non-discriminatorily

-Property does not lose its private character merely b/c the public is generally invited to use it for designated purposes

-Distinguishable from Marsh b/c in that case a private enterprise assumed all of the attributes of a state-created municipality

Dissent (Marshall): Must remember trying to strike a balance between freedom of speech and freedom of private property owners to control their property, but when interests are weighed, balance must favor speech

-Lloyd’s mall has effectively become town square, if speech is to reach these people must reach them at the mall

a) Reason why mall invited presidential candidates to speak there

-The more an owner, for his advantage, opens up his property for use by the public, the more do his rights become circumscribed by the statutory and const. rights of those who use it

-Differences & similarities with Amalgamated Food Employees Union v. Logan Valley Plaza (SC 1986): both in shopping centers; picketing in Logan were directly related to shopping center’s operation (not general leafleting); picketers in Logan may not have any alternative avenues of expression to target intended audience, whereas Tanner can protest the Vietnam War anywhere

a) Without knowing the outcome, one would think that Tanner has a good chance of winning his case, and Tanner did win at both district and appellate levels

-SC distinguished between Marsh and Logan

a) In Marsh, the private entity assumed all municipal responsibility, was the de facto govt

i) If Marsh is not allowed in town does she have any alternative to be heard?

b) In Logan, the protest was directly related to private shopping center

-Look at 1st amendment language, the state cannot abridge free speech, so the entity better be just like a state, and a mall doesn’t cut it

-Dissent points to effectiveness of free speech, but where is “effective” in the Const.

-In Hudgens v. NLRB (SC 1976), Court overruled Logan Valley b/c could not square it w/ Lloyd. Court held that constitutional guarantee of free speech is guarantee only against abridgement by federal or state government and does not give the right to speak on private property

-In New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., (NJ 1994), petitioners were excluded from leafleting against the Gulf War in certain NJ malls. Based on State v. Schmid, NJ SC held that NJ const.’s free speech guarantee extended to some private property. SC held that such speech was allowed at shopping centers in NJ b/c expressional interests were strong and would not interfere w/ normal uses of the property (federal const. just a minimum, states can grant greater rights). Also, the NJ Court noted that malls had become public gathering places like town squares once were, and invited all people not just shoppers to enter in the hopes they would spend money. Noted that mall could impose restrictions on time, place, and manner of leafleting to minimize possible disruption.

-Shopping center could potentially argue their free speech is being limited (1st Amend) and argue that the decision constitutes a deprivation of private property without just compensation (5th Amend)

a) State Const. can expand rights but cannot deprive any of my federally granted Const. rights (i.e., 5th Amend right)
-In United food and Commercial Workers Union v. Crystal Mall Associates (CT 2004), CT SC found that union did not have right to enter privately owned shopping mall to distribute literature and speak to patrons about mall employees’ rights b/c state’s const. free speech guarantee only applied to public actors and facilities.

-In War with Iraq (p.164), father and son asked to leave NY mall or remove politically charged T-shirts. Federal and state civil rights and public accommodations statutes don’t apply here. Maybe it’s dad’s religion/creed that you should give peace a chance (could be a slippery slope)?

a) Matter for states to decide in balancing property interests versus free speech interests

-3 possible outcomes to Tanner: (1) Hold that 1st Amend. grants citizens a right of access to public shopping centers for free speech purposes; (2) Hold that const. grants no right of access to private property and any right of access granted by state law would represent a taking of property w/o just compensation violating 5th and 14th Amends.; and (3) free speech not required by 1st Amend. nor prohibited by 14th Amend., states are free to choose

-In regard to labor picketing, SC has held that under some circumstances, it may be unfair under the NLRA for an employer to deny a right of access to certain areas of his property for purposes of picketing

-1st Am rights can trump limitations on the right to exclude

-A few states have no public accommodations statutes at all (e.g., NC, GA)àcities within these states may enact their own public accommodation ordinances though

a) Ladies nights are illegal

-In CA, public accommodations need to be business oriented

Adverse Possession requires: Actual possession, Open and Notorious (i.e., visible), Continuous, Adverse/Hostile (i.e. w/o owner’s permission), and For the Statutory period

-Policy, theory considerations:

(1) Maximize efficient/social utility and encourage productive activity/investment

(2) Labor/desert theory

(3) Fairness/individual rights/distributive justice

Brown v. Gobble (WV 1996) (p.179)

Facts: At issue is 2ft. wide tract of land between the 2 properties. Gobble’s purchased property in 1985. 2ft. wide tract of land enclosed by a fence on D’s property, real estate agent said that it was part of D’s property and D’s visibly treated it as such. Brown’s purchased their property in 1989, knowing that 2ft. wide tract of land was actually theirs, but did not assert their right to that land until 1994 when Browns wanted to build a road over that land. TC ruled for Browns.

-Majority view is that there needs to be clear and convincing standard of proof to show AP (justified b/c of ramifications that can happen when property is seized/value society places on property)

-In WV, only 10 yr statutory period for AP

-Just b/c Gobbles mistakenly thought the land was theirs does not defeat their AP claim

-WV also recognizes tacking, whereby different APs can be tacked together so long as persons holding such possessions must be connected by privity of title or claim

a) Because the original property owners of Gobble’s land acquired 2ft. tract by AP back in the 1930s, Gobbles don’t have to show that they adversely possessed it for 10 yrs. Rather, just have to show that original owners intended to convey that piece of the property, as well, when they handed the deed over

-Clear that this land was adversely possessed by Gobbles’ predecessors, TC overruled, AP in favor of D

-Clear that Browns were watching the clock, waited till the last possible second to sue (might play into a little bit of bad faith for the Browns); the fence was up for 5 yrs!

-Part of adverse possession punishes the owner who just sits around and rewards busy beaver

-If you are Browns’ attorney might want to attack: Continuity. Statutory period is 10 years, the Gobbles don’t meet that (9.5 yrs). For tacking (adding together time periods of adverse possession from one owner to the next), have to show that previous owners adversely possessed the property and conveyed it to the next owners. Must show privity between Fletchers and Gobbles.

a) Needs to be a sale between Fletchers and Gobbles, can’t have Gobbles adversely possess Fletchers’ property as the conveyance

-If permission is given, then you can’t have adverse possession

a) But if Browns gave Gobbles permission to use adverse possession, they could probably still claim adverse possession from 10 yrs before the Browns gave permission

Nome 2000 v. Fagerstrom (AK 1990) (p.187)

Facts: Actual title of the land is held by Nome. 7/24/87, Nome files suit to eject Fagerstroms. Fagerstrom family had used the land going back to the 1940s. 1963, Fagerstroms brought small quantity of building materials to disputed land. 1970 or 1971, Fagerstroms stake off a 12 acre rectangular parcels for purposes of Native American allotment application. Overlap between Nome land and stakes constitute disputed parcel. Around 1970, Fagerstroms also buitla picnic area on north end of disputed lot (gravel pit, beachwood block chairs, firewood, and stove). Mid-1974-78, Fagerstroms place a camp trailer on north end of lot during warmer months. Also in ’74, Fagerstroms build an outhouse and fish rack on lot, which remained up to trial. Summer of ’77, Fagerstroms build a reindeer shelter. Fagerstroms also walked on trails that traverse the whole parcel. Fagerstroms even excluded others from the land. In ’78, Fagerstroms built a cabin. Nome 2000 used anthropologist’s testimony to show that Fagerstroms use of land was stewardship not ownership, as consistent with Indian customs.

-AK has 10yr statutory period for AP

-Nome believes that Fagerstrom did not possess land until cabin in ’78, b/c before that their possession was seasonal and lacked significant structures

-Conditions of continuity and exclusivity require only tht the land be used for the statutory period as an average owner would’ve used the land

-For notoriety, physical visibility is important as well as community repute

-Jury could find that Fagerstroms adversely possessed the land, only concerned w/ summer of ’77-’78, though b/c Nome concedes AP after cabin was built

a) Based on evidence of using the land (outhouse, fish rack, reindeer shelter, multiple visits, picnic areas, building materials, etc) AP established

i. Allowing randos to pick berries on land is just being polite, not a sign of stewardship rather than ownership

-That said, southerly portion of lot not adversely possessed b/c just picked up litter and walked there

Strongest policy arguments that could be advanced by Nome 2000

a) Fagerstroms are only seasonally there

b) Seems like you don’t have a right to not show up at your property, how fair is that

c) Antiquated understanding of what property is used for (the doctrine arose in the 1300s)

i) Property owner should have right to do nothing w/ property

ii) Is it too great a burden to put on the landowner to monitor his property?

d) AP doesn’t reduce uncertainty, it creates it

-Strongest policy arguments that could be advanced by the Fagerstroms

a) Toiling with the soil

b) They have been there for a while

c) Native Alaskans’ cultural belief, shared land BS

-Adverse/Hostile Element

a) Objective test (vast majority of states)

i) APrs state of mind is irrelevant.

ii) APr must show that possession was without permission.

iii) Lack of permission is presumed

b) Subjective tests

i) Look to APrs state of mind

ii) Only intentional trespassers can AP (Texas)

iii) Only innocent/mistaken trespassers can AP (Ga.)

General Policy Justifications for AP:

  1. Providing a degree of certainty of ownership to possessors of land

  2. Encouraging maximum utilization of land


-Limited rights to the use property of another

-Elements of PE: Actual Use that is Open and Notorious [Need not be exclusive], Continuous, Adverse/Hostile, For the Statutory Period, and depending on the state, [“Acquiescence” of Record Owner]

-Affirmative easement--> right to do something on someone else’s property

-Negative easement--> right to prevent someone from doing something on their property (blocking sunlight by building up)

-Affirmative easements can be acquired via prescription not so with negative easements

-Use does not need to be exclusive of the property owner, other than that, need the other conditions used in determining AP

Community Feed Store, Inc. v. Northeastern Culvert Corp. (Vt. 1989) (p.207)

Facts: P brought an action claiming a prescriptive easement over a portion of D’s land, TC found for D and granted it ejectment of P. P and D own neighboring businesses. At issue if a gravel rectangle of land north of P’s mill, D owns most of the rectangle. P’s suppliers and customers used the gravel lot for turning and backing for loading and unloading. D bought land in 1956 but was not until 1984 that it was established conclusively that D owned bulk of gravel lot. D then erected a barrier along the property line to keep P’s suppliers/customers from using the lot, prompted P’s suit.
-15yr statutory period for AP/PE in VT

-When PE claimed, extent of the user must be proved not w/ absolute precision but only as to general outlines consistent w/ the pattern of use throughout the prescriptive period

-P has established the general outlines of the easement w/ reasonable certainty

-There was no permission by D to use the property and evidence suggests it was used continuously by P since 1929 (via tacking) until the barrier was erected

a) There is a presumption that non-owner’s use of land is non-permissive (majority rule)

-Acquiescence: Landowner must have known about the use and allowed to continue without formally granting permission

a) Different than open and notorious because that does not require that the owner has actual knowledge whereas this does


-What happens when structure trespasses on a property? If the structure decreases the value of the neighboring property, the owner ordinarily wishes it removed. If the structure improves the value of the neighboring property, landowner may wish to keep the structure, which courts generally hold that owner has right to do so

-Many courts (especially in older cases), hold that property owner has absolute right to injunction ordering an encroaching structure removed, no matter the cost or relative value of the properties or extent of encroachment

-Majority of states reject this approach, though, and have adopted Relative Hardship Doctrine

a) According to this doctrine, if the encroachment is innocent (result of mistake), the harm minimal, the interference in true owner’s property small, and the costs of removal substantial, the courts often refuse to grant injunction ordering removal. Instead they will either order encroaching party to pay damages or order a forced sale from the landowner to the owner of the encroaching structure w/ damages equal to the value of the land taken an possibly a premium to compensate for the involuntary nature of the transfer in ownership. If however, the cost of removal is not substantial or the interference w/ neighbor’s ability to use its property is substantial, removal may be ordered

-Removal of encroaching structure is ordinarily ordered if the builder knowingly built on neighboring property

Somerville v. Jacobs (WV 1969) (p.218)

Facts: Somervilles mistakenly built a warehouse on a lot that was owned by the Jacobs. Construction on the building was completed on 1/67. 1/14/67 Somervilles conveyed their three lots to Engle and Pappas who leased the building to local Coke bottler. After building completed, Jacobs learned it was on their property, claimed ownership of it and its fixtures via annexation.
-Clear that in equity, a court can grant relief to one who, through a reasonable mistake of fact and in good faith, places permanent improvements upon land of another

-Ds would be unjustly enriched w/o compensation to Somervilles

-If Ds are unable or unwilling to pay for the building, should convey their lot (at price it was before building) to Somervilles

a) Either pay improver amount by which value of land had been improved or convey land to the improver for price of land w/o improvements

Dissent (Caplan): Why is the party that made the mistake favored?

-Having been w/o fault, Jacobs shouldn’t have to purchase building. Jacobs should have option of purchasing building, selling property, or requiring Somervilles to remove the building

a) Majority’s holding is condemnation of private property by private parties for private use

-Bad faith improver will not be granted rights to compensation and will usually be required to remove the encroaching structure if landowner so desires

-What about when the right to exclude is violated by the government?

a) The government enjoys the right to take property at valuation

-Traditional rule is injunctive relief (see Geragosian on p.216)

-If the law allowed for property to be taken at valuation, could create undesirable incentives

a) Just build on someone else’s property and then just pay for the damages

-Oral agreements that set the boundary between property may be upheld if (1) both parties are uncertain where the true boundary lay or a genuine dispute exits over the location of the boundary, (2) the parties can prove the existence of an agreement setting the boundary, and (3) te parties take (and/or) relinquish possession to the agreed line

-Even absent oral agreement, courts may still recognize standing acquiescence by both neighbors in a common boundary

-Estoppel can also establish boundary when one owner erroneously represents to the other that the boundary between them is located along a certain line and the second, in reliance on the representations, builds improvements which encroach on true boundary or takes other detrimental actions

-Dedication is a transfer of real property from a private owner to a government entity such as a city (valid dedication requires offer by the owner and acceptance by the public)

-Land created by accretion (build up of silt) belongs to the owner of the land whose borders are enlarged; gradual loses of land caused by erosion shrink land owner’s rights. Sudden changes caused by floods/earthquakes (avulsion) are generally held not to change property borders

-Discussion of AP of personal property on p.225 (conversion, discovery, and demand rules)

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