Select Page

Property I
Elon University School of Law
Parrish, Robert A.


Professor Parrish – Fall 2011


A. Theories of Property

1. Possession

1. Whoever is first to control a thing owns it

2. Gives certainty, but could be potentially dangerous with everyone trying to possess

2. Labor

1. John Locke’s theory – each person was entitled to a property right in that which his or her labor produced

3. Utilitarian Theory

1. Property is good because it gives incentives to individuals to use it to benefit society (economically, socially)

4. Democratic Theory

1. Property is a means of promoting a democratic society by encouraging people to do what is in society’s interests (politically, socially)

5. Personhood

1. Property rights are accorded based on emotional attachment to an intangible item

è Pierson v. Post (FOX CAPTURE):

– Example of theories

o Possession:

§ RULE OF CAPTURE: Possession of animals means to deprive the animal of natural liberty (wounding, circumventing, or ensnaring) AND subject it to the pursuer’s certain control; no longer free and available…the first to deprive the animal of its natural liberty possesses (owns)

§ RULE: Mere pursuit does not constitute possession.

o Labor:

§ Benefit of possession should go to the person who invests in actual capture.

o Utilitarian theory:

§ Society considers what would most benefit it at the time; benefit to eradicating foxes at the time

o Democratic theory:

§ RULE: Protecting right to pursue and capture is important to sustaining democracy.

B. Capture v. Labor = Certainty v. Flexibility

1. Certainty

1. Pros: predictability, order and peace, is cost-efficient

2. Cons: rigid, unfair, unjust results

2. Flexibility

1. Pros: more fair results

2. Cons: inconsistent, costs more for society

3. E.g. (clearing parking space and then someone taking it)

C. Property Rights – The Bundle

1. Right to Transfer

1. Alienability – right to transfer or sell property to another

2. Valid title is required for right to transfer

3. Marketability

è Johnson v. M’Intosh (LAND OF NATIVE AMERICANS)

§ RULE: Conquest gives title; title to land is dependent entirely upon the law of the nation in which it lies.

§ Bundle of rights are not absolute! What government gives it can also take away!

è Moore v. Regents of the University of California (PROPERTY RIGHTS IN BODILY TISSUE)

· Moore brought suit after his excised cells had been used for research, trying to claim them/the research result…

· RULE: There is no property interest in excised bodily tissue.

· The court held that Moore had no property interest in his excised cells, for policy reasons that scientific research could be inhibited, and ethical/religious reasons could be violated, and they followed the statute regarding human tissue.

· Policy negatives: could become very exploitative of the poor, safety issues, increased cost of transplantation, unintended consequences, ethical considerations

· Policy positives: increase availability, more research samples, individual liberty

2. Right to Exclude

1. Trespass is a strict liability issue; no intent is required but only a voluntary action; exceptions are consent or necessity

è Jacque v. Steenberg Homes, Inc. (DROVE MOBILE HOME THROUGH PROPERTY)

§ RULE: Right to exclude is an absolute right!

i. Policy reasons:

· Low risk

· Certain – very inflexible, low cost

· Prevents overinvestment in deterrent measures

· Economic incentive – promotes productivity

· Discourages self-help and limits violence

· Presumes people know the law

· Labor, utility, possession, personhood

è State v. Shack (AIDING FARM WORKERS)

§ RULE: There are limits to right to exclude – limits even to absolute rights!

§ RULE: Property rights are recognized in that they serve humans, and can be limited by utilitarian policy. Property rights must not interfere with the interests of others in infringing upon their opportunity to live with dignity customary among citizens.

§ Absolute v. limited – certainty v. flexibility

3. Right to Use


§ RULE: No property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor.

è Prah v. Maretti – (SOLAR PANEL CASE)

§ RULE: Use that unreasonably interferes is a private nuisance.

§ RULE (competing): Property owner owns everything from air space to what is below.

§ RULE: An owner of land does not have an absolute or unlimited right to use land in a way which injures rights of others.

2. Limitation is nuisance!

4. Right to Destroy

è Eyerman v. Mercantile Trust Co. – (WANTED TO DESTROY HOME)

§ Policy rationales for not destroying the home:

i. Will lower property values of surrounding homes

ii. Crime

ULE: Possession of mislaid property goes to the property owner where the item is found. To place a pocketbook upon a table and to forget to take it away is not to lose it.

è Benjamin v. Lindner Aviation, Inc. ($18K IN AIRPLANE WING)

§ Court found this property as mislaid, but it could be clearly argued in different ways (dissent argued as abandoned, because it is unlikely someone would voluntarily part with over $18K)

§ Abandoned – relinquished all rights to property

i. Finder keeps it

è Haslem v. Lockwood – (ABANDONED MANURE IN STREETS)

§ RULE: The first person to possess abandoned property is its new owner.

§ RULE: A reasonable amount of time to collect manure is 24 hours.

§ Treasure Trove – something buried for some time

2. It often depends; court will often reward finder for his meritorious behavior etc.; analysis is highly contextual and complicated, and often results oriented.

3. Courts have to make presumptions about what is in people’s minds as intent (value, length of time, location of finding)

4. Some states have promulgated statutes to get rid of the need to take into account all contextual information (such as steps to notify police, deposit article with them, publish notice of the find, and then get title if owner does not claim within time period)

C. Gifts

1. Inter Vivos Gifts – present interest (conditional gifts fall into this category); Elements:

1. Donative Intent

è Gruen v. Gruen (GIFT PAINTING CASE)

§ Father gave son painting but retained it in his house; it was a valid inter vivos gift.

§ RULE: Donor must intend to make an irrevocable present transfer.

§ RULE: If intention is to make testamentary gift, it is invalid; test if intent was for gift before/after death

2. Delivery; three types (often flexibly applied to avoid mistakes, as in Gruen):

§ Manual – preferred method; handing over gifted property, required unless impracticable, idea of wrenching ownership from grantor