Prof. Greg Lastowka
Property
Spring 2011
Rutgers Univ. School of Law-Camden
Fundamental Law of Property
-There is a thing which is owned by a certain person and as a result society cannot touch it. This privilege is enforced by law.
Intro To Philosophies
When come to an ambiguous issue, these arguments become compelling.
-Tug between fairness and justice.
Locke:
a. Land belongs to the commons but once a person commingles his labor with it, it becomes his possession (Labor Theory) Ex. Gathering Acorns, Chasing a Rabbit
i. We need private property because there is a need for the use of resources.
b. Limit: Can’t intermix labor with everything and claim as own because there still needs to be enough left for the community.
Blackstone
a. At first didn’t need private property because at a primal stage. Then moved to Usufructuary property: If quit occupation of it, that property of his could be seized by another. (No permanent property). Now property is at a permanent stage. If a person adds his labor to it then it becomes his.
b. Adds to Locke: Territoriality of Property.
c. Property is sole and despotic dominion- You can do whatever you want with it.
d. Only true foundation is that all things come from the creator in the commons
a. Don’t want to disturb current property arrangements
Bentham
a. There is no natural property; property is the creature of the law. (Matter of mind)
a. Legal reformer: disagrees with Locke and Blackstone
b. Property is derived from the expectation of getting the benefit of the property.
i. Legislator has to let the expectation rule
b. Without law all property seizes.
c. If know property is yours then you can actually enjoy it and not worry about it.
Stossel
a. Privatization is good. Sharing is bad.
Acquisition of Property: First of Property
Acquisition by Discovery
i. Most Important is being first! Also important being able to convince people and articulate the point that the land is yours.
ii. Big Difference between possession and occupancy
1. Johnson v. M’Intosh: Native American case. Difference between possession and occupancy. Indians have a legal right to occupy the land. Not challenged. They had the right to sell but only to one purchaser. (Not an absolute title).
iii. Locke: Reasoned that the right of discovery was embedded in humans and another must honor the property of another if that person mixed his labor in with something.
iv. Finding/sighting land previously uncharted.
1. Territory can be discovered when res nullius or terra nullius (it belongs to no one)
2. In the old day those who weren’t European were determined to be terra nullius and thus their lands could be discoverable.
v. Law of Assesion for Chattel Property
1. Where chattel is owned by person A, and person B appropriates the chattel and improves the value of chattel and person B is an innocent improver the ownership of the chattel is rewarded to the improver in the case where the value added exceeds the value of raw materials.
i. But person B must compensate person A for the value of the property taken
Acquisition by Capture
i. Rule: Mortal wounding, continuing pursuit, and cornering the animal to a point of no escape results in possession of the animal because you have intermixed your labor with it. Mere pursuit is not enough. (Pierson v. Post)
1. Went against custom of the regional industry
2. Based on point of honor.
3. Ferae naturae: Wild animals that belong to nature. Property of such wild animals is based on occupancy only
ii. Exception: May not want to follow custom if the custom is somehow detrimental to society
1. Ghen v. Rich
a. The rule can’t apply to an industry (fin whale) which would be crippled by the fact that any chance finder could reap the rewards of someone else’s work.
b. Upheld custom, Social Norm/custom (of the industry) will be acceptable. Aren’t going to disturb that and will control
c. Want to give incentives to a beneficial industry of hunting whales
iii. Avoiding unfair Competition
1. Where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases. (Keeble v. Hickeringill)
a. Disturbing the ducks in a decoy pond is illegal.
Intellectual Property
i. Copyright
1. Based on authorial works. Made as an incentive to create new work/ beneficial creations.
2. Protected by Fed. Law
3. Get it by creating a work, made upon creation
4. Duration: 70 years
5. Limit: Fair use, cant have ideas
ii. Trademark
1. Brands/symbols including trademarks. Made for consumer protection
2. Fed. Law
3. Get it through use of commerce
4. Duration: perpetual if continuously used
5. Limit: Prove consumer confusion.
iii. Patent
1. Inventions. Made as incentive to create
2. Fed. Law
3. Granted, need to make a patent application
4. Limit: Apprx. 20 years
5. Limit: Subject to invalidation (court can say that this invention is unnecessary or like others)
Property in One’s Person
i. Moore v. Regents of the University of CA
1. Conversion: To establish conversion the P must show that there was actual interference with the ownership or right of possession. When a P has neither a title nor possession then he cant maintain an action for conversion
2. Case in which human tissue was used for medical research without patients knowledge
3. Judge determined that to change the standard practice would be to cripple the highly beneficial industry. Need commons rights to tissue.
a. There was alternate ways of compensating victims (breach of disclosure)
b. There was no legislative intent to make human tissue applicable to conversion.
i. Better to have the legislatures decide on what to do with this issue.
c. P had no title to the cells and they have been genetically altered by someone else.
4. Dissent: It is unethical to do this (compare to slavery)
a. Unjust enrichment
b. Lack of disclosure is illusory- have to prove a reasonable person wouldn’t have followed through
Subsequent Possession, Acquisition of Property by Find, Adverse Possession, and Gift
-Suggests that title is not absolute but is subject to change and is subtle
IMPORTANT: Finder will win in narrow situation (finder has to be nontresspasser, nonemployee, finding an object not attached to land, not mislaid- can still distinguish from Hannah that my client unlike Peel had the will to possess)
Acquisition by Find (chattels)
i. Finders Title
1. One owns a title against all except the rightful owner. (Armory v. Delamirie)
a. Chimney sweep found a jewel and gave it to a shopkeeper for appraisal but the shopkeeper refused to return it.
2. Limitation: A prior finder can have more of a title.
ii. Trover: common law action for money damages resulting from the D’s conversion to his own use of a chattel owned or possessed by P.
iii. Replevin: Take the item back.
iv. Bailment: bailor give chattle to a bailee. (ex. Parking garage, checking in your coat)
a. Voluntary Bailee: someone who undertakes possession of your property you need to take reasonable care of the property. (ex. Parking garages putting up disclaimer signs using Contract Law but not necessary a contract and must follow law of property)
b. Involuntary Bailee: less of a standard of care.
ii. What if the “thing” is found on someone else’s property
1. Hannah v. Peel
a. Soldier found a brooch in the home being rented out to the army. The owner of the home never lived at the house.
b. No notice, notes not in custody of D, not protection of house or responsibility that was triggered, public section of the shop.
c. Rule of Embedment: embedded in the real property (the possession of land carries with it in general, by our law, possession
i. Requirement in each of the transfers of privity- privity is established with legal transfer of property
ii. Privity isn’t about the specific deed, its about the relationship between owners.
iii. Forcible ejectment isn’t enough to establish privity.
8. Adverse Poss. Vs. Government
a. Usually not available
Acquisition by Gift
i. To make the gift, Donor must:
1. Transfer possession to Donee (how?)
a. Delivery- requires objective acts
i. “The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances surrounding the parties would reasonably permit” Gruen
b. If manual delivery unavailable
i. Constructive: handing over something that will open up access to the subject matter of gift (ex. Key)
1. Means of using and enjoying the thing given
ii. Symbolic: Handing over something symbolic for the item (Note)
1. Restrictions are relaxed, some states say that can always use writing for symbolic delivery
2. Need to show manifest intention to make the gift
a. Intention could be shown by oral evidence
b. Intent not only to give thing but to transfer title
c. Intention doesn’t have to be expressed but can be shown through facts attending the delivery (Newman)
3. Acceptance (required but rarely an issue)
4. Limitation: Person must appear to know what he was doing and intended to give gift (mortis) (Newman)
ii. Gift Causa Mortis
1. Gift given on the death bed, sub. for a will
a. Limited and Restricted to avoid fraud (Newman)
b. If the donor lives then the gift is revoked unless the owner doesn’t want to revoke it (up until the death of the donor its called a bailment or conditional gift)
c. Newman v. Bost- Woman wasn’t given all the things that the decedent pointed to but got the stuff in her room because it was determined to be delivered
d. If the delivery was made prior to gift there might be a requirement of redelivery
2. Now there is a trend to enforce the intention of the person on the death bed (so long as there is clear and convincing evidence)
iii. Gruen v. Gruen- dad gives son his painting but wants to keep the painting until death (life estate), thus remainder to son.
1. Once makes the remainder valid then the father cannot give the future interest to anyone else
2. Test: “Whether the maker intended the gift to have no effect until after the maker’s death or whether he intended to transfer some present interest”
iv. Transfer by Will
1. Preferred method
2. When die can transfer the property by will
3. Unlike a gift which is now, will occurs after death and need to be executed with witnesses
