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Property I
Rutgers University, Newark School of Law
Bergelson, Vera

1. What is property? Property is a bundle of rights, none of which can be considered absolute
a. Right to own
b. Right to exclude
c. Right to transfer
d. Right to use
e. Right to destroy
2. Acquisition by capture : occupancy (actual corporeal possession) determines ownership. Simple pursuit is not enough
a. Pierson v Post: Hunter chases fox, another hunter kills and captures the fox. Hunter claims right of ownership of fox: Rule: Pursuit does not entitle one to property rights. One must be in control of that which is pursued before an entitlement to property comes.
3. Theories of property:
a. Natural Rights: Theory of labor, work acquires rights to an object so long as one can take advantage of it before it spoils and that there is more left for others.
b. Utilitarian theory: What is the most efficient use of resources for the community. How best to avoid the tragedy of commons( overuse because of availability)
c. Distributive Justice: The least advantaged person in society should have as much a right to property as the most advantaged person.
d. Personhood theory: We all need property to develop as individuals. There is property that is bound up with a person (Personal property) and property that is held purely instrumentally (Fungible property). Object loss is more traumatic than wealth loss
4. Acquisition by Creation: One who brings an entity into being is vested a proprietary right to commercial exploitation, separate from ownership.
a. International News Service v. AP: INS retold and resold AP’s stories and sometimes put out AP’s news before the AP. Rule: News is quasiproperty in that rights to it are relinquished when released to the public but not amongst competitors. Where information gathered at an expense in a commercial venture can be used competitively the right to information goes to the entity that originally collected the material. Information is not generally considered property.
b. Cheney Brothers v. Doris Silk Corp.: Cheney brothers copied the patterns of Doris silk. The patterns were unpatented. Rule: One’s property is limited to the chattels which embody his invention. Others may imitate. Where something is unpatented or unpatentable it may be copied.
c. Smith v. Chanel: Rule: Something can be copied and a claim can be made that the copy is better but the copy may not be presented as the original.
5. Property in One’s Person: One’s property interests includes name, likeness and other aspects of their identity. The right to exclude others from name and likeness is established. This is known as a right of publicity. Exception: Whenever there is a public interest an exception to the publicity right is made.
a. Moore v. Regents of U. of Cal.: Moore had cells removed without his consent in the course of treatment for leukemia and the cells were then patented and used to make a commercial cell line worth millions. Rule: There is no property interest in removed cells. It is unreasonable to expect to retain possession of cells after removal. The patent on the cell line couldn’t have been issued if the cells had belonged to Moore. The hospital is entitled to rewards from their inventive effort. Giving ownership of cells would inhibit research and degrade human dignity. Dissent: The fact you cannot sell something does not mean that it is not property. Limited property rights do exist. It is much harder to prove a failure of consent claim than a conversion claim. Patient rights are not adequately protected.
6. Acquisition by Find: Prior possessors always prevail over subsequent ones. The owner always has a claim against the finder, even if the finder no longer possesses the chattel. Owner may also go against any subsequent finders. Owner may make multiple claims. Value of lost chattel should be subtracted by the possibility of the original owner showing up. Exception: where someone in good faith and in the ordinary course of business purchases the lost chattel. Unlawful acquisition does not give one property rights.
a. Armory v. Delamirie: Boy finds jewel, takes it to jeweler, jeweler does not return the jewel. Rule: One who finds has property rights against all but the rightful owner.
i. Owner versus the Finder—> Owner wins
ii. Owner–>Finder—> Purchaser—>Owner can go against the Finder and Purchaser
iii. Narrow Exception – purchaser bought in good faith and in ordinary course of business
b. Hannah v. Peel: Defendant bought property but never occupied it. Plaintiff occupying residence finds brooch and turns it over to authorities. Authorities then hand brooch over to Defendant. Rule: the finder of a lost article is entitled to it as against all persons except the real owner.
i. Finder v. Owner of Premises (Based on idea of constructive possession: when the law treats a person as if they are in possession despite the fact that he is unaware of it)
1) Finder is trespasser: if the finder is a trespasser, the owner of the premises always prevails over the finder.
2) Finder is on premises for limited purpose: if the finder is on premises for limited purpose (i.e cleaning) it may be said that the owner gave permission to enter only for that limited purpose, and the owner is entitled to objects found.
a) South Stratfordshire Water Co. v. Sharman (defendant found ring while cleaning out a pool on plaintiff’s property; held for the owner of the land)
3) Object found under the soil: if object is found under or embedded in the soil, it is awarded to the owner, not the finder.
a) Elwes v. Briggs Gas Co. (plaintiff leased land to defendant and defendant found prehistoric boat embedded in the soil; held for owner of the land)
1) SURFACE V. EMBEDDED – property owners are entitled to everything attached to or under the land and it makes no di

used in the same ways the true owner
would (3 mos. out of the year etc.)
3) Since the possession must be continuous for a statutory period, interrupted periods that together total the required time are
1) Title passes when the statutory limitation period has run
vi. Van Valkenburgh v. Lutz – D walked through a triangular tract to reach his home and built a shed & kept a garden on the tract
a) 27 yrs. later P bought tract & wanted D to vacate
b) D obtained a judgment for right of way by prescription through the tract and then in a judicial proceeding established title to
the tract by adverse possession.
c) Rule: Title to a parcel may vest in an adverse posessor who occupies the parcel under claim of right, protects the parcel by an
enclosure, improves or cultivates the parcel and maintains that state of affairs for the statutory period.
b. Mechanics of Adverse Possession –
1) CLAIM OF TITLE – expressing the requirement of hostility or claim of right on the part of an adverse possessor
a) State of Mind required by Adverse Possessor –
1. State of Mind Irrelevant – instead the court focuses on the actions of the possessor.
a. The possessor’s actions and statements must look, to the community, like they are claims of ownership.
2. Good Faith Claim – I thought I owned it (they might get rights)
3. Aggressive Trespasser Claim – I though I did not own it , but intended to make it mine
2) COLOR OF TITLE – a claim founded on a written title or that is for some reason invalid (as when the grantor does not own the
land conveyed by the deed or is incompetent to survey, or the deed is improperly executed)
a) Advantages: some states have shorter s.o.l. for adverse possessors with color of title than to those without.
b) In all states entry with color of title may have an advantage where the adverse possessor enters into possession of only a
part of the land
3) Actual possession under color of title of only a part of the land covered by the defective writing is constructive possession of all
that the writing describes.
a) Constructive possession is that the activities relied upon to establish adverse possession reach not only the part of the