Property I Outline

I) Property Rights
A) Property consists of a set of rights relative to other people
1) Possess
2) Transfer
3) Use
4) Exclude
a) People who own property have a right to exclude others from using it.
i) Jacque v. Steenberg Homes, Inc. – Steenberg wanted to go over Jacque’s land to deliver a mobile home. Jacque refused even though he was offered money from Steenberg and it would have cost less money overall to allow Steenberg to go over his land. However, the court allowed punitive damages against Steenberg despite the jury only awarding nominal actual damages.
b) The right to exclude is not absolute as one cannot use one’s property to injure the rights of others
i) State v. Shack – Migrant workers on Shack’s farm needed medical and legal aid. A lawyer and a doctor wanted to go onto his land to see the workers, but the landowner would not let them. The only alternative was that Shack would have to be present when the lawyer met with the worker. The court said that Shack could not exclude those people for that purpose.
B) However, all of those rights are subject to limitations based on the various areas of property law sections below (e.g. easements, eminent domain)

II) Acquisition of Property
A) Acquisition of property by first possession
1) Acquisition by Discovery (Conquest)
a) Discovery and conquest gives title to the government of whose subjects or on whose authority the discovery was made.
i) Johnson v. M’Intosh – Johnson claimed valid title to land based on a conveyance from a Native American tribe. However, the court said that the tribe did not have the power to convey title even though they did have the power to physically possess the land. Only the government had the power to sell it. England owned the land when they discovered it, and replaced the Native American property system. The European countries divided up the continent when they came here. This necessarily will impair the rights of the native inhabitants. They can possess the land, but cannot sell it. The United States got those rights when it became independent from England.
(A)In some ways, this undercuts the entire idea of owning land as ownership is just a product of a system of laws. Somebody can come along and “discover” it out from under you and replace that system.

2) Acquisition by Capture
a) The first person to “possess” an animal owns it.
i) Three ways to “possess” an animal:
(A)Actual corporal or bodily possession
(B) Mortally wounding the animal
(C) Trapping the animal in such a manner as to deprive them of their liberty, and render escape impossible.
(1) Pierson v. Post – Post was hunting a fox on un-owned waste land, but while in pursuit, Pierson killed it and took it. The court said that Pierson was the first person to possess the fox and that simply chasing it was not good enough control to count as possession.
ii) Controlling an animal as much as possible given the situation establishes possession.
(A)Ghen v. Rich – Ghen shot and killed a whale. It sank, but a few days later it was found by Ellis. It was customary for people who found whales to notify the whaler to come get it and would usually get a fee. However, Ellis sold the whale to Rich. The court said that although Ghen lost control of the whale after it sank, killing it was the most control possible and awarded him possession.
iii) A landowner has constructive possession of wild animals on his property
(A)Keeble v. Hickeringill – Keeble was hunting ducks on his land. Hickeringill while on his own land, fired guns to scare off the ducks. Because the ducks were on his land, Keeble had constructive possession of them and Hickeringill could not interfere with that.
3) Acquisition by Creation
a) Three types of Intellectual Creation:
i) Inventions – things you create
(A)Protected by patents (lasts 20 years)
ii) Publications – books, songs, etc
(A)Protected by copyright
iii) Name – words or symbols
(A)Protected by trademark
b) The goal of protecting intellectual creation is to give incentives to create protect those creations, however you cannot overprotect such that you are actually stifling new creations.
i) Must use a balancing test to weigh protecting creation and giving incentives to create vs. public interests (stifling creativity)
(A)International News v. Associated Press – INS was taking news from the AP early edition newspapers and used it for their own newspapers. The copyright act does not cover the news. Also, because news is public information, one cannot own it in relation to the public. However, the court calls the news quasi-property and indicates that the AP deserves reasonable protection and can own it relative to INS.
(B) Smith v. Chanel – Chanel has a trademark in the name “Chanel No. 5,” but no patent protection for the formula. Smith copied the formula and advertised a perfume saying it is the same as Chanel No. 5. The court said this does not infringe on the trademark because Smith is not using the name as his own, but only talking about the product saying that his perfume is the same. The court also says that the public benefits in that it will bring down prices.
(C) White v. Samsung Electronics – An advertisement shows a robot (with hair, dress, and jewelry like Vanna White) turning letters promoting Wheel of Fortune.
(1) Majority said that White has a valid claim for infringing her trademark because the robot reminded people of White.
(2) However, the dissent said that this is overprotection as it stifles creativity. It doesn’t actually use her name, voice, signature, or likeness.
ii) Creator of technology used to infringe upon copyright is not liable if the technology also has a non-infringing use, and is not marketed to users to encourage infringement.
(A)MGM v. Grockster – Grockster allows users to download music (like Napster) from other users. However, the songs are copyrighted. Grockster argues that there are also non-infringing uses and that they should not be responsible for the users’ behavior. However, the court says that because Grockster knows people are using the program that way and marketing it for that use, Grockster is liable. Also, it would be impractical to hold every user liable for it.
(B) Sony Corp v. Universal City Studios – Actual usage of VCR was not to infringe on copyrighted movies, but to “time-shift” so that users could watch shows/movies later. Therefore, no liability for VCR manufacturer.

B) Acquisition by Subsequent Possession
1) Acquisition by Find
a) Found property can fall in one of four categories
i) Lost – involuntarily parting with the property
(A)If somebody finds a lost item, they are the owner of the property relative to the entire world except the original owner. (3 reasons)
(a) Possession has value.
(b) Keeping the property closer to the owner in the chain of ownership increases the likelihood that the owner could get it back.
(c) Allowing the finder to keep the money if the owner is not determined encourages good behavior (i.e. turning the property in to authorities).
(i) Armory v. Delamirie – A chimney sweeper’s boy found a ring with a jewel on it. He took it to a goldsmith to get it appraised, but when he did not accept the price, the goldsmith’s apprentice gave him the ring back without the jewel. The court says that Armory owns the stone over anybody else in the world except the original owner.
(ii) Bridges v. Hawkesworth – A customer, who found money on the floor of a shop, was allowed to keep it because the money was found in a public place.
(B) If somebody finds a lost item in a private home, the homeowner has constructive possession of the item unless the homeowner never had possession of the house.
(1) Hanna v. Peel – Peel owned a house, but never took possession of it. The house was requisitioned for the army. While Hanna was staying there, he found a brooch, and handed it in to the police to find the real owner. After the owner could not be found, the court concluded that Hanna owned it because Peel, having never taken possession of the house, never acquired constructive possession of the brooch.
(C) Objects embedded in the soil