Lucas_Property1_Fall2012
I. The concept of property and its Parameters: Property is defined as rights among people that concern things; consisting of a package of legally recognizable rights. The main bundle of sticks are right to use, possess & power to convey
A. Early history/theory
a. Legal positivism- property rights exists only to the extent recognized by a legal system
b. Utilitarian/public policy- private property exists to maximize utility of citizens
1. Rewards for labor, guardian of individual liberty, & efficient resource allocator
B. Right to exclude- a property owner has a right to exclusive possession, but those rights have limitation when important rights of others become involve. Property rights of a person are not absolute; don’t exceed human life or those of society, maximizes efficient use property, minimizes violence
a. Jacque v. Steenburg- Individuals have the right to exclude; no actual harm but the loss is in right to exclude
b. State v. Shack- right to exclude is not absolute- property rights to not take precedent over human life
c. Kelo- to take private property through eminent domain, must be a public need and upgrade
d. Local Steelworkers 1330 v. United States Steel Corporation- corporations have the right to exclude, if they can’t exclude their rights have been taken
e. Moore v. Regents of University of California- property rights do not extend to medical waste; a patient’s discarded waste do not exceed those of entire society based on research, cannot exclude if abandoned
II. Possession, First in Time and Acquiring Property Interests- First in time is the root of all title
A. First in Time Discovery/Capture
a. Pierson v. Post- property rights of un-owned wild animals on unclaimed land- use the actual capture test; possession begins with actual capture; if owned property hunting on= real property rights trump personal property; When animals escape, they return to un-owned
1. Actual capture Test
i. Intent
ii. Pursue with intent to capture
iii. Take possession by depriving of liberty (net, mortally wound, kill)
· Physical possession is physical control & intent to exclude others
2. Probable Capture Test:
i. Intent
ii. Pursue with intent to capture
iii. Reasonable prospect of capture
3. Constructive possession: an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession
i. Ex. if a car is sitting in one's driveway & physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent.
4. Rights to oil & gas: A landowner can extract all the oil & gas from a well bottomed under the landowner’s land even though the oil & gas may be drained from neighboring land
5. Water Rights
i. Reasonable use doctrine: A property owner can use, take, or repel water as long as his use is not unreasonable & does not interfere with other’s rights
ii. Natural flow doctrine: May take as much as needed but must leave it in its’ natural state
b. Popov v. Hyashi- pre-possessory rights applied (modified actual capture test)
Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally recognizable pre-possessory interest in the property.
c. Edwards v. Sims: The right of first possession extends to ground below and airspace above but extends only reasonably; caves are movable property. You can’t claim right of first possession if there are valid title claims.
B. First-In- Time and Intangible Property: ideas must be transformed for protection
a. Joyce v. General Motors Corporation: Ideas are not protected until the idea has been transformed to a sufficiently useful form that may be patented, trademarked, or copyrighted.
1. Patents: protection of invention or processes (first to file) (design patents 14 yrs.)
2. Copyright: protection of written work life plus 70 yrs.
i. Limited because don’t want to inhibit society after death, want to protect but then want someone else to develop the idea after death
3. Trademark: protection of business brand and/or logo no expiration
i. Reasons for: consumer protection
b. DaimlerChrysler v. The Net, Inc.: There are property rights in other websites if appears their trademark has been infringed upon. (There has been no transformation); can’t cybersquat
c. Comedy III Productions Inc. v. Gart Saderup: If reproductions of things protected under the right to publicity are not sufficiently transformed, use requires consent of the publicity holder.
1. Test to determine transformation: Does the marketability and economic value of the challenged work
derive primarily from the fame of the celebrity depicted. If the answer is no, then there would
i. Generally no actionable right of publicity.
C. First in Time and Finding: Law that will protect the expectations of someone who takes “first possession” of something that a previous owner has.
a. Armory v. Delamirie: the finder of property does not have absolute ownership; but ownership from everyone except the rightful owner; except in abandoned property
b. Benjamin v. Lindner Aviation: Mislaid property is entrusted to the owner (not the finder) of the premises where it was found. It is assumed that if the true owner eventually recalls, he will return there to reclaim
1. Case facts: money hidden in an airplane, entrusted to the owner of the plane, not the place where airplane being repaired
c. Four categories of found property
1. Abandoned; Lost; Mislaid; Treasure Trove:
d. Rights of Finder against landowner
1. Private Land
i. Location of Object: Objects are considered to be in “constructive possession” of the landowner. Awarded to the landowner not the finder
ii. Rights to Treasure Trove: Award to the landowner, treated as mislaid
2. Public Places
i. Valuable object left in public place is considered mislaid; awarded to the owner of the premises
F
once voidable can now be made good
iii. West v. Roberts: An owner of personal property cannot recover from a bona fide purchase even if original sale was fraudulent if his conduct helped to create the misrepresentation
B. Entrustment of goods & Buyer in ordinary course of business UCC 2-403(2): entrustment of goods to a merchant that deals in goods of that kind gives the merchant power to transfer all of the entruster’s right free from any interest of the entrusted to a buyer in the ordinary course of business
a. Creates a bailment relationship
b. UCC 1-201 (b)(9) buyer in the ordinary course of business during normal business hours from a merchant who deals in goods of that kind
1. If owner helps create mistaken impression, bars recovery
C. Adverse possession: a legal change in ownership without compensation governed by statute. Title to real property can be acquired by another that conflicts with the rights of the true owner for a specified time when the owner has not used his rights to the property. If within a certain number of years after failure to exercise right, may result in permanent loss; the owner of land does not take legal action to eject a disseisor, the owner is thereafter barred/estopped from bringing an action to eject
a. Title is acquired by operation of law, the disseisor (one who acquires title) must file quiet title action against the former owner
1. Quiets any challenges or claims to the to title, removes cloud over title to be free of claim of TO
D. AP can be accomplished by POACHER: Possession must be Open and Notorious, Actual, Continuous, Hostile, & Exclusive = Relative for statute of limitations
a. Adverse possession is an ostensible ownership issue when someone comes along and acts like a true owner and the owner does not act like a true owner over a long period of time, the true owner is now estopped from ownership
i. Why AP?
· Have rights must use them
· Discourages sleeping owners; Don’t want passive owners; inhibits growth of society
· Earned theory: To reward and encourage those who use land productively; At some point AP engaged in same type of behavior a true owner would have
· Cure potential or actual defects in real estate by putting SOL
E. Elements of AP
a. Actual entry: must physically possess the land as a property owner would, in accordance with the type of property, location, and uses, must be extensive enough to rise to the level of possession
1. Mullis v. Winchester The use of the land should be the same that comports with the usual management of such property.
