Property I Outline

Michael Carrier – Property – Spring 2012 – Rutgers Camden School of Law

I. Initial Acquisition

INS v AP- Hot News, misappropriation, not misrepresentation, news is not © able. Court invented quasi-property to provide AP with cause of action.

Intellectual Property- © and patent expanding in protection and scope

Cheney Bros- “in the absence of some recognized right at common law, or under statutes … a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.”

IP in nonexclusive and non-rivalrous

Dangers of IP (monopoly loss, deadweight loss, innovation bottlenecks, shrinks public domain)

Property law serves two purposes, incentivizing development and avoiding the Tragedy of the Commons

Bundle of rights: right to exclude, right to xfr, right to use

DOCTRINES OF PROPERTY LAW

Utilitarianism- incentivize development and avoid Tragedy of Commons

Locke Labor Theory- entitled to fruit of your work (proviso: must leave enough and as good for others)

Personhood- property as part of yourself

First Occupancy and Possession- take resource and utilize that which wasn’t before

Liberty and Civic Republicanism- owning land encouraged civic participation

Distributive Justice- by having property, can be divided up in interest of justice

Trespass to Chattels used sometimes in cases of cyber property (email case-actually taking part of the server)

Pierson v Post- possession by occupancy, mortal wounding is ok

Baseball case – baseball was fugitive resource, MLB then abandoned, then rule of capture

Ghen v Rich- whales-custom

Keeble v Hindergill- liable if hinders another’s trade or livelihood when no good can come of it

FUGITIVE RESOURCES:

Groundwater: English rule-take what you want / American Rule-must not waste

Surface water: prior appropriation (1st to capture and put to use)

Riparian Rule: Owner of land along water owns water

Oil and Gas: can take all you want so long as accessed from your own property

Owners of land have “constructive possession” of animals on that land

Relative title-better title than the others

Public policy favors domestication of animals

Re-injecting oil/gas not liable if harms neighbor

Externalities- costs not considered when making a decision

Hard to bargain away externalities due to high transaction costs

Coase theorem- in absence of transaction costs, regardless of what courts do, parties will bargain to a satisfactory result

Rule of capture leads to overinvestment in capturing technology

Bilateral monopoly – people locked into negotiating with each other such as adjacent landowners who both have access to a resource

II. Adverse Possession

Reasons for adverse possession

1. statute of limitations

5. diminishing marginal utility of income

2. expectations

6. psychology/prospect

3. quiet title

7. promoting development

4. personhood

8. penalty theory

REQUIREMENTS FOR ADVERSE POSSESSION

1. Actual entry onto land (exclusive possession)

2. Open and notorious (living on land, fences, cultivating crops, use like owner would)

3. Continuous

4. Adverse or under claim of right

Van Valkenberg v Lutz- Need enclosure of property in NY state, also Lutz not in good faith

STATES OF MIND FOR ADVERSE POSSESSION

1) Objective Standard- state of mind is irrelevant

2) Good Faith Standard-“I thought I owned the land”

3) Aggressive Trespass Standard-“I know I don’t own it”

COLOR OF TITLE-Claim based on wri