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Property I
Rutgers University, Newark School of Law
Deutsch, Stuart L.

PROPERTY OUTLINE
FALL 2004
DEAN DEUTSCH

I) RIGHT TO EXCLUDE/ PUBLIC’S RIGHT OF ACCESS
A) Property owner’s right to exclude is not absolute
B) more property owner opens property to the public- more likely that courts will find public rights of access
C) trespass- an intentional intrusion on the land of other
1) occurs the moment the trespasser enters the property
2) intent requirement is met if there is a voluntary act
3) EXCEPTIONS:
(i) Consent of the owner
(ii) Justified by necessity (ex: to save someone’s life)
(iii) Public policy
D) State v. Shack: guests providing gov’t services to migrant workers are not trespassers even if uninvited and unwanted by farmers
1) PROPERTY RIGHTS ARE SUBORDINATE TO HUMAN RIGHTS
2) Federal constitution is not maximum but minimum amount of rights- NJ supreme court decides to use state law (which entitles more full set of rights than Constitution)
3) You have title to property but not dominion over individuals who are on your property
4) Farmer could set reasonable rules- can’t allow all solicitors or peddlers (limit to medical or legal or necessities)

FREE SPEECH RIGHTS OF ACCESS
E) Lloyd v. Tanner (shopping mall case)
1) Invitation to the general public can be defined by allowing certain activities
2) Holding: a privately held shopping center is not so dedicated to public use as to allow private parties the right to exercise their 1st amend rights on its premises.
3) Marsh is distinguished; company town must provide all services of a municipality
4) property doesn’t lose private character because it is opened to the public
5) balance between first amendment rights and rights of private property owner
(a) trespassor cannot exercise 1st amendment rights on privately owned property used for private purposes
F) NJ Coalition (NJ Shopping mall cases)
1) HOLDING: general balancing of first amendment and property rights
2) SCHMID TEST:
(a) What is the normal use of the property?
(b) To what extent is the owners invitation to the public
(c) What is the purpose of the expressional activity in relation to the use of the property? (compatibility)
3) Court says that regional shopping malls are modern downtown business district
4) Community shopping centers are NOT accessible (not all inclusive like regional shopping malls)
G) Green party (handbilling in NJ shopping mall with onerous requirements)
1) Reaffirmed Coalition; owner can use “reasonable business judgment” standard to develop rules of pamphleteers
2) Ex: $1 million dollar liability insurance, indemnification of owners against all claims and limits on handbilling from 1/1 to 10/31 were too onerous of restrictions

II) LABOR, INVESTMENT, POSSESSION
A) INS v. AP (news)
1) AP CLAIMS: AP owns a property right for the stories that they write
2) Lots of $ and labor is expended by AP
3) News is not real property
4) “quasi property”- news is quasi-property between news organizations; ownership only exists between competitors [an individual/AP has no property right] 5) newspapers are a stock in trade and there is accost of enterprise and INS used AP’s material for income generating purposes
6) HOLDING: INS cannot copy publicly posted bulletins produced by competitor for its own publication in a later time zone
7) Court allows for limited property rights- only against its competitor
8) If you are quoting- must attribute
9) News is not abandoned when it is published in a newspaper
10) News has an exchange value
B) Moore v. Regents (Human genes/tissues)
1) Can you have a property right over your own cells? Or does Dr. have right after they put in their labor and work into developing cell line from uninformed patient’s cells?
2) How do you become an owner? You invest your labor & capital- is there a right to a claim of labor because body produced cells?
3) Court says no. Moore has no claim to the cell line because it is legally distinct from the cells taken from Moore’s body

CAPTURE

Wild Animals- you must actually kill or wound a wild animal to get possession (hunting it all day is not enough) (Pierson v. Post)
o Trespassor cannot get title for good on other’s private property
o
Oil & Gas-
· Absolute ownership- you own the surface and all the minerals beneath
· law of capture- One who extracts and possesses minerals from a common pool becomes owner with no violation of neighbor’s rights if the capture has a legal right to the land where the possession occurred
· Capture must remove minerals in a responsible (non-negligen) manner, duty of care
· If minerals are wasted from negligent extractions

WATER
· GROUNDWATER rights (approaches to solving disputes):
1. Absolute ownership: No imposition on water use (even if use harms neighbor)
2. Reasonable use test: Takes into account neighbor’s needs when extracting water
3. Correlative rights test: Owner gets specific amount of water based on the size of the land above
4. Prior application test: First extractor takes all that he needs
· STREAMS –
· Riparian rights- property owners that border streams and lakes
· Reasonable use test (majority)
o decisionmaker considers and balances factors such as relative social value of each owner’s use, extent of harm to D, and the cost of preventing the harm relative to the benefit
o may mean comparing relative utility of the competing uses and choosing most valuable one to society or apportioning the use so that all riparian owners have the right to some portion of the water
· Prior Application test (minority)
o 1st user or developer prevails over a later user
o allows prior owners to prevail against later users whose riparian activity harms their interests in access to water
· Combination of both (Prior application + statutes against waste)

AMERICAN INDIAN CULTURAL OBJECTS
· Burial goods are not abandoned
· Relinquish possession ¹ relinquish ownership
· Property can be acquired by occupancy (finding) if it has been abandoned
· Trespasser cannot acquire goods on property he is violating
· Claim of unjust enrichment by improving someone’s land
1. An enrichment
2. An impoverishment
3. Connection between enrichment and impoverishment
4. Absence of justification
5. No other remedy available to Π

· Lost- accidental, not to be found ever again, no clue; doesn’t know where it is; If some finds a “lost” item, who is the owner? The finder can have claim if original owner can’t be found. Finder has better claim than any other person except the true owner.
· Abandoned- left intentionally by owner, relinquish rights (ex: garbage)- the finder now becomes true owner; true owner has given up title
· Mislaid- intentionally put it somewhere but can’t remember; Finder has better claim than any other person except true owner
· Treasure Trove- expensive items, “pirate chest” that was left for some reason; item has intrinsic value and must be there for a very long time;
· Finder- has rights over all third parties (not owners)
· Finder-invitee- finds chattel on someone else’s property (courts vary widely on this rule)
o If found in a home, homeowner has rights (in hopes that owner will return looking for it)
o If found in a place open to the public, courts are split between finder and landowner
o Lost property may be awarded t

as a true owner
9) Acquiescence- not clear concept; some states say it’s open & notorious; other states- owner doesn’t stop use (but doesn’t give permission)
I) Improving Trespasser- someone mistakenly invests a lot of money in building a structure that encroaches on a neighbor’s property
1) If it decreases value of property- owner wants it removed
(a) Builder may want it to stay and pay compensation to the landowner; OR
(b) Forced purchase of land on which the building encroaches
(c) Absolute owner doctrine- Older cases said that owner could force structure removed no matter the costs
(d) Relative hardship doctrine- weighs the hardship of removal vs. the harm to the owner; if the harm is minimal and the cost of removal is high- court will order damages or order a forced sale; but if removal cost is minimal and the cost to the use of property is substantial- than court will order removal
(e) Bad faith- if encroacher exercised bad faith- then removal will be ordered without regard to relative hardship
2) If structure improves the value
(a) Does the builder have to compensated for the amount spent in the construction to avoid unjust enrichment to the landowner or would ths unjustly force the landowner to pay for something she never wanted or bargained for
(b) Unjust enrichment or forced sale
J) Adverse Possession of Personal Property
1) Statute of limitations begins when true owner discovers or should have discovered
2) Some states have abolished AP of personal property
3) “demand rule”- statute begins when you make a demand for return (NY)
4) “finder” rule- something you find on street or in a street fair, after a certain time, you become owner (not adverse possession)

NUISANCE: RULES GOVERNING RELATIONS AMONG NEIGHBORS
I) GENERAL TYPES OF NUISANCE:
A) Excavation undermining lateral support
B) Flooding
C) pollution
D) Noise
E) Odors
F) Criminal activity
G) Use of air & light
II) Nuisance: a substantial and unreasonable interference with the use or the enjoyment of the land
III) Nontrespassory interference- use of one’s own property harms the interests of one’s neighbors
IV) TREPASS v. NUISANCE
A) Trepass is a physical intentional, physical invasion of the plaintiff’s interest in exclusive possession of property
B) Nuisance is a substantial and unreasonable interference with the use and enjoyment of the property
C) nuisance per se (always a nuisance no matter what- ex: storing dynamite)
D) nuisance in fact (circumstances make it a nuisance- ex: computer that causes interference in Paige Cty)
E) private nuisance- affects a small # of people; exists through common law;
F) public nuisance- affects a large group of people; often governed by statute; suits are brought by a public official; private individual can bring a suit if the individual’s harm is different or more severe from the group
V) FOUR BASIC WAYS TO RESOLVE LAND DISPUTES