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

Real Property, Fall Semester 2014

Professor Deutsch


A. Right to Exclude, Right to Include

1. Importance: Property is yours and you do not need permission to use it/justify your right to use it or not let others use it

2. Jacque v. Steenberg Homes 1997, Supreme Court of Wisconsin: ∆ intentionally trespasses, π didn’t need to justify, courts intervene with nominal and punitive damages (concern with self-help)àfundamental right to exclude as basic concept of ownership

3. State v. Shack 1971, Supreme Court of New Jersey: ∆ farmer did not have right to exclude federal government workers to see farm workers b/c human rights>property rightsàconstitutional rights are a floor, but legislature spends most of the time creating much more elaborate protective systems

4. New Jersey Coalition Against the War v. J.M.B. Realty Corp. 1994 Supreme Court of New Jersey: π satisfies Schmidt test (normal use, invitation, relevant use) and can leaflet in malls, matter left up to state to deal with regional shopping centers

B. Acquisition by Capture

1. Pierson v. Post 1805 Supreme Court of New York: π hunts fox but ∆ kills it, court decides ∆ has ownership (courts use legal scholars to base decision since no property right in animals); Livingston (dissent) – scholars are outdated, goal of law is to promote society and π hunting foxes (noxious beasts) is carrying out desire.

2. Ghen v. Rich 1881 United States District Court, District of Massachusetts: libel to recover value (maritime law); π has right to whale b/c he killed it first and usage/custom is respected in Cape Cod.

3. Keeble v. Hickeringill 1707 Queen’s Bench: ∆ disturbs ducks in π duck pond, π has constructive possession of the ducks b/c they land in his pond. (first case to take place on privately owned property; has impact on what it is you’re claiming)

4. CHASE OR BEAR reading: Girl finds dog and makes it service dog, man sees dog after a year and wants to claim it; different because it is domesticatedàfirst in time, ownership doesn’t change

5. Oil, Gas, Water rights

a. Oil and Gas

i. Rule: If you own surface, own everything underneath that surface

ii. Rule of capture: developed to encourage cooperation when resources was split under multiple properties

1. Each property owns all of the resources that they can capture as long as they are drilling on their own property, even if it migrated from one property to the other

2. Principle of lateral and subjacent support: your land has an obligation to provide support to your neighbor’s land

b. Water (eastern v. western states differ since resources differ)

i. Surface Water v. Ground Water

1. Riparian Rights

a. If you own the shore, you own the water or at least have a right to make use of that water

2. In eastern states, water is referred to as a common enemy

a. You can divert water that is running on your neighbor’s property, even if it causes a flood o your neighbor’s property (this is just the starting point of the rules)

3. Prior Appropriation

a. The starting point in all western states

b. The first person to get to that water to use if has the right to it, even if it stops other people from using it

4. Reasonable Use

a. Most common in the east, especially with ground water

b. You can take as much water as you want if you own the surface above the water, as long as you’re not wasting it!

5. Correlative Rights

a. You own a % of the water based on the % of the surface that you own

6. Permit System

a. Gives you the right to a certain amount of water

C. Acquisition by Creation

1. International News Service v. Associated Press 1918 Supreme Court of US: AP claims INS taking news from bulletins promotes unfair competitionànews holds quasi-property

2. Cheney Bros. v. Doris Silk Corp 1929 US Court of Appeals 2nd Circuit: π cannot claim design ∆ copied, π own actual material but not the idea of the design, court says imitation is good for the market place

3. Smith v. Chanel Inc. 1968 9th Circuit Court of Appeals: Smith actually names Chanel in commercial, courts say it’s okay because recreating product serves public interest by offering comparable goods at lower prices

4. White v. Samsung Electronics America 1992 US Court of Appeals 9th Circuit: π has right to her name, voice, likeness, signature (majority voted in favor and made it tort to remind people of her). Kozinski (dissent) intellectual property is full of careful balance between what is set aside for owner and what is left for public, we are overprotecting

D. Property in One’s Persons

1) Moore v. Regents of the University of California 1990 Supreme Court of California: ∆ take cells and create patented cell line of π without consent, court finds π doesn’t have conversion – no right to excised cells b/c statutes and cell line is different, but ∆ has duty to provide information; Mosk (dissent) if π would have known he could have auctioned it off (do what ∆ did)

E. Astrue v. Capato 2012 US Supreme Court: π has kids in vitro 18 mos. After husband dies, cannot claim SSA benefits b/c the SSA has authority to lay down statute that states what a child is; Court says you need to look at whole of statute, it is up to property laws of stateàstate property law has major impacts on major parts of federal law


A. Acquisition by Find

1. Terms

a. Lost: Gone and you cannot find it

b. Mislaid: You leave it somewhere and you forget about it

c. Abandoned: You no longer want it and leave it somewhere.

d. Treasure Trove: Gold, silver, currency, or the like intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location. Although some older courts award title to the finder, the modern view is to award it to the landowner

e. Bailment: Item given consciously to someone to hold, but that person does not have ownership or possessory rights, just custody

2. Armory v. Delamirie 1722 Kings Bench: π Chimney sweep boy finds ring,

. Howard v. Kunto 1970 Court of Appeals Washington: π adding new owners to land, found out they were on Moyer’s land, gave title to one lot in exchange for claim to another lot; ∆ only there during Septemberà tacking of possession by subsequent occupants is permitted if the land is occupied under a mistake of fact provided the occupants are in privity

6. J&M Land Company v. First Union National Bank 2001 Supreme Court of New Jersey: ∆ owns large tracts of marshland next to π’s predecessor leased three sites to third party to erect billboards on ∆ land unknowingly. Land is reassessed and ∆ finds out that it has been paying property tax for π’s billboards

a. Court looks at entire parcel of land and decides that the 30/60 statutory period rule works for adverse possession and taking title, where 20 year statute only applies to old remedies

C. Adverse Possession of Chattels

1. O’Keeffe v. Snyder 1980 Supreme Court of New Jersey: π claims paintings were stolen by ∆ and she is asking for them back. ∆ claims that he has had them beyond the statute of limitations for replevin and claims them through adverse possession

a. Discovery rule works best for chattel, burden of proof shifts to π. Discovery rule runs once she knows who has her property (but they leave it up to the trial court to decide)

D. Acquisition by Gift

1. Three elements to have fully executed gift

a. Intent (to make gift today)

b. Delivery

i. Actual

ii. Constructive

a. Must give you control over the gift

b. Only when actual delivery is impossible

iii. Symbolic

c. Acceptance (often presumed

2. Two Types of gifts

a. Causa Mortis: Before death; need Actual or constructive delivery

i. Newman v. Bost 1898 Supreme Court of North Carolina: Intestate is on death bead and gives to π the furniture and house and a key to the dresser which inside contains a $3,000 life insurance policy. àgifts causa mortis must have actual delivery, constructive delivery acceptable when things are difficult to deliver; insurance policy isn’t hers because he could have manually delivered it to her.

b. Inter Vivos: During life; could be symbolic delivery

i. Gruen v. Gruen 1986 Court of Appeals: π’s father gave him title of painting while he was alive but π never had actual possession of it and ∆ refuses to give it backàintent to give gift was clear, and symbolic delivery (letter) is sufficient to claim possession.