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Property I
Rutgers University, Newark School of Law
Ball, Carlos A.

PROPERTY – PROFESSOR BALL – FALL 2009
Dukeminier, Krier, Alexander, and Schill casebook (6th edition, 2006)

I. FIRST POSSESSION: ACQUISITION OF PROPERTY INTERESTS (OTHER THAN THROUGH PURCHASE)
A. Acquisition by Discovery/First in Time
·         Ownership (sell) v. Possession (occupy)
·         Elements of property ownership – Right to:
o   Use
o   Possess
o   Exclude
o   Sell (Alienate, transfer and convey)

Monetary àDamages
Thing à Want it back
Real property – land and everything on it
Trespass
Ejectment
Personal property (chattel) – everything that isn’t land

Trover (an action for the recovery of the value of personal property wrongfully converted by another to his or her own use.)
Replevin (an action to reposess personal property)
·          







How do we assign property when it has no owner?
·         Johnson v. M’Intosh –US Supreme Court, 1823: The Piankeshaw did not have the right to convey the land, as all land belonged to the U.S. and was issued out in grants.
·         Haslem v. Lockwood: Pltf raked the manure into piles and intended to come back the next day to pick it up. The Def., thinking the piles are abandoned, picks them up. What is the definition of abandonment? Timing (reasonable amount of time had passed and he needed to get a cart), intent, public policy….
B. Acquisition by Capture
·         “Ratione Soli” – people own land and the things on it, including the animals
·         You must be first in time to kill the animal, not first in time to see/pursue it.
·         Can’t interfere with person’s livelihood by being malicious, but competition is okay.
·         Constructive possession àDepriving animal of liberty, but when the animals are wild they are up for the taking (exceptions when they are domesticated or not naturally found in the area)
·         Theory of equitable division àboth have the right to possess.
·         Pierson v. Post – NY Supreme Court, 1805: Pursuit alone does not give someone rights in an animal. He must actually capture the thing. Pierson killed the fox, so he has the right to it.
·         Keeble v. Hickeringill – Queens bench, 1707: Since the Plaintiff created a livelihood out of the decoy pond, the Defendant is liable for hindering that livelihood with his malicious acts. While the fowl are on his property, they are his and the Defendant interfered with that ownership.
·           Popov v. Hayashi – CA Superior Court, 2002: Plaintiff caught and had the intent to keep the ball, but according to Gray’s Rule he did not have possession. The court deems that he has pre-possession rights to the ball, because there is no way to tell whether he would have gotten it. Since both men had some sort of possession over the ball the court ruled that they should split the ball (i.e. sell it and split the proceeds).
C. Acquisition by Creation (plus the Right to Exclude)
·         Patent: Products
·         Copyright: Expressions
·         Trademarks: Symbols
·         International News Service v. Associated Press – US Supreme Court, 1918: Once AP distributes news on bulletins or to early editions of newspapers it can be disseminated by the people that read it, but it is not fair for people to use that for commercial purposes. Therefore, there is quasi property in news. AP did all the work, so why should a direct competitor be able to take advantage of it? May be different outcome if it is a blogger vs. a newspaper, as they are in different forms.
·         Cheney Brothers v. Doris Silk Corp. – US Court of Appeals, 1929: Social good for competition trumps the unfairness of having one company copy another.
·         Smith v. Chanel, 1968: Copier serves the public by offering goods at a lower cost to the public. Competitors should not be able to “take a free ride” on the owners hard work to build a brand
·         Jacque v. Steenberg Homes, Inc. – Wisconsin, 1997: DF drove trailer across PLs property after being told that he couldn’t. PLs forcible right to exclude trumps all. Court defends property rights as “Property Rule” – I have the right to say no to you coming on my property (Veto power).
·         State v. Shack – NJ, 1971: The right to exclude is not absolute. When there are public policy reasons, as in this case where the migrant workers needed access to public services, the owner may not be able to exclude. Property rights are there to serve human values not limit them as Tedesco wanted.
sUMMARY FOR FIRST TWO WEEKS:
First Possession (Chapter one/Week One)
Subsequent Possession (Chapter Two/Week Two)
*** Unowned Property
A Acquires property rights via:
·         first in time
·         labor
·         capture
·         creation, etc.
B Acquires property rights via:
·         sale law (voluntary transfer)
·         finders law (involuntary)
·         adverse possession law (involuntary)
·         gift law (voluntary)

D. Acquisition by Find
·         Criteria for who is the owner of found property
o   Lost vs. Mislaid vs. Abandoned property
§ How do we determine which one?
§ Lost or mislaid property can become abandoned
§ I.e. watch falls out of someone’s pocket (lost) vs. watch is set down and then person walks away (mislaid)
§ If mislaid it is more likely that the person will come back to get it
§ Abandoned property gives the finder the best shot at getting to keep it
o   Public vs. private locus
§ Public just means that the public has access (i.e. a store, even though it has a private owner)
o   Finder as agent of locus owner vs. Finder not agent of locus owner
§ Agent is defined as someone who is paid
o   In vs. On the locus
§ If it is in the owner is likely to have more of a right to the property
o   Owner has possession of Locus vs. Owner doesn’t have possession of Locus
o   Trespasser (willful or not?) vs. Non-trespasser
o   Did finder come forward and try to find the rightful owner?
·         Hypo: owner àfinder àbuyer (GFP)
o   Can the owner go after the buyer after buyer has already paid the middle person? Is that fair?
§ In the case that the buyer was a GFP it is not fair.
·         But if it was a theft the owner can go after the buyer
·         Armory v. Delamirie – King’s Bench, 1722: Claim of trover against the goldsmith. The finder of the chattel has a right to the property over any one else except for the true owner, which prevents a continuous wrongdoing (one person stealing from the finder and on and on). If the boy had trespassed he would still have a right over the goldsmith. 
·         Hannah v. Peel – King’s Bench Division, 1945: The finder of lost property has superior title against the owner of the land on which it was found. A man possesses everything attached to or u

y owned. There was intent to convey more than what the deed included (aka tacking land)
o   Court allows tacking, due to privity. There was a string of good faith purchases for the assumed land which was possessed.
§ Privity = The relationship between the current owner and prior owner is one recognized by law.
·         Wouldn’t use this rule for squatters as it may encourage more trespass (against public policy). They can’t tack on to previous squatters. 
Adverse Possession of Chattels
·         A thief can acquire possession (may still be criminally liable)
·         When should the clock start ticking for the statute of limitations?
o   PL – When she learned the location of the chattel (in NY she has to ask for the chattel back and be denied)
o   DF – Right after the theft
o   Court – When the PL knew or should have known the location of the chattel
§ As long as the PL kept making reasonable attempts to recover the chattel the time would not start ticking
·         What are reasonable steps? The court has different expectations depending on the value of the chattel
·         If she had reported it in 1946, she would still have to additional work to find the paintings to satisfy the court
·         See UCC § 2-403 (page 148)
o   There has to be a voluntary transfer from the owner to the first possessor (bad person) to have a voidable title
§ Owner àBad Person àGFP = Voidable title
·         The Discovery Rule: Says that the accrual of time shall begin when the PL discovers the cause of action. This rule would make it so that the statute of limitations will not begin to run if there is proper due diligence done to find the missing item(s)
o   Apply the Discovery Rule instead of Adverse Possession
§ Changes the burden of proof on the owner
§ Most courts use AP more than DR
o   Conditions for the rule to apply include:
§ PL must do proper due dilligence
§ PL must use available and proper means to locate stolen item.
§ PL must try to put public on notice, so that a reasonably prudent purchaser of the stolen item could find out it was stolen.
·         O’Keeffe v. Snyder –Supreme Court of New Jersey, 1980: The statute of limitations begins to run upon the discovery of the dispossession, not when the person finds the actual owner.  It is the original owner’s job to take reasonably prudent action as any other owner would when she feels a painting has been stolen. Tacking is permitted to show privity of current and previous owners and their good faith to interpose a claim for conversion.
F. Acquisition by Gift
·         Types of gift:
o   Donatio Causa Mortis (gift with impending death in lieu of a will – courts are stricter here than with inter vivos gifts)