PROFESSOR CAIN
SPRING 2011
SANTA CLARA UNIVERSITY
PROPERTY OUTLINE
I. POSSESSION
RIGHT OF OWNERS OF PROPERTY
-Property owners are entitled to a bundle of rights that include (1) right to possess for some period of time, (2) mortgage, (3) exclude, (4) sell, (5) gift, and (6) devise by will.
ACQUISITION BY DISCOVERY
a. FIRST IN TIME THEORY: The first in time theory states that the first person to take possession of a thing owns it and any prior possessor prevails over a subsequent possessor. The prior possessor is always protected regardless of how they came to possess it.
LABOR THEORY: (John Locke) : The labor theory provides that anything that is removed out of the state that nature has provided, he has mixed his labor with it and joined it with to something that is his own and thus makes it his property.
WILD ANIMALS
i. First to Kill and Capture: The first to kill and capture gives the capturer the right of possession.
1. Justinians: Not enough to simply wound the animal, must actually capture/take it.
2. Barbeyrac: Bodily seizure is not, in all cases, necessary to constitute possession. (sometimes mortally wounding is enough to claim possession because you’ve taken away its freedom)
EXAMPLE: [Pierson v. Post] The mere fact that a person is pursuing a wild animal does not grant that person a right to the animal.
ii. Custom and Usage: The court can look to custom and usage within an industry to determine the rule of law regarding the ownership of property.
EXAMPLE: The rule that a killer of a whale is the rightful owner has been recognized for many years in the industry. This custom must be sustained in order for the trade to continue.
iii. Land Owners and Wild Animals: Landowners are considered constructive possessors (first possessors) of wild animals on their land until they leave.
EXAMPLE: [Keeble v. Hickeringill] Plaintiff entitled to damages because the defendant intentionally frightened the ducks off of the Plaintiff’s pond.
1. Law of Nuisance: Cannot unreasonably interfere with the use of someone else’s land. Determining reasonableness=utility of activity>harm caused by activity.
EXAMPLE: [Boomer] Cement truck causes pollution, community unhappy about the damage. However, good use to having the cement company around. Court issued a conditional injunction making it necessary that the cement company pay damages and then they continue their actions.
ACQUISITION BY CAPTURE
a. Oil, Gas and Water
i. Diversion: Person who first diverts the water gets the ownership even if he hasn’t finished diverting. Takes a lot of time and resources to do what it takes to divert the water. Don’t want someone who is building for months to then lose their investment because someone built faster.
ii. Appropriation: The person who first appropriates water and puts it into reasonable and beneficial use has a right superior to later appropriators.
ACQUISITION BY CREATION
1. PROPERTY in ONE’S IDEAS
Absence some specific statute stating otherwise, a man’s property right is limited to the actual chattel that embodies his invention and does not extend to the idea behind the invention.
§ There is a general inclination toward allowing some social benefit toward innovation. Therefore, in absence a specific statute saying otherwise, a man’s property right is limited to the actual chattel that embodies his invention and does not extend to the idea behind the invention. Competition depends upon fair imitation.
§ Droit Morale: Integrity of sold art. Refers to moral rights, which are personal rights that a creator has in their work. Seller has a right in his work even after having sold it. The US has enacted the Visual Artists Rights Act which includes limited moral rights with regard to works of visual art created. Specifically, the right of attribution and the right of integrity.
2. PATENTS
Granted for processes or products that are novel, useful and non-obvious. No one can patent laws of nature, physical phenomenon or abstract ideas. No patent will be issued for the discovery of a new plant or mineral. Patents last for a period of 20 years from the date of the original application. They are not renewable and when they expire the process or product enters the public domain.
3. COPYRIGHTS: Protect the expression of ideas in books and articles, music, artistic works, and so forth. The ideas themselves cannot be copyrighted. Protection begins as soon as the work is set down in a tangible medium and lasts for a long time (usually 70 years after death of the creator). In order to qualify, the material must be original but need not be novel.
4. TRADEMARKS: Words and symbols indicating the source of a product or service. Owners are protected against similar marks by others when such use would result in confusion.
5. RIGHT of PUBLICITY:
-A celebrity’s “right of publicity” is a property interest, assignable during life, descendible at death. The property interest includes likeness, name and other aspects of one’s identity.
-Television and other media create marketable celebrity identity value. The law protects the celebrity’s sole right to exploit th
of the land owner trump the claim of the finder of lost property when the finder was a trespasser when entering the land and finding the property. This rule discourages trespass and unauthorized entries on property.
h. PRIVATE LAND OPEN TO THE PUBLIC:
If a finder finds goods on land that was open to the public, then the finder’s claim to that property can prevail over the landowner’s claim.
i. EMPLOYEE:
If the finder is an employee of the landowner, then any goods found by the employee, as an agent of the landowner, are found on behalf of the employer-landowner. The actions of the employee are generally attributed to the employer.
ADVERSE POSSESSION:
REQUIREMENTS: (1) an entry that is, (2) open and notorious possession, (3) Exclusive , (4) Continuous for the statutory period, (5) adverse or under a claim of right/title.
(1) an ENTRY that is (actual possession)
*Necessary bc it depends on the statute of limitations and the entry creates that cause of action.
*Usually requires the payment of taxes on the disputed land.
(2) OPEN and NOTORIOUS, (visible)
*Put the reasonably attentive property owner on notice that someone is on their property.
*Desire to penalize the dormant owner for sleeping upon his rights.
* Farmland-Fencing, cultivating,; Pastures for grazing-should be fenced; Hunting- hunting cabin, use regularly, no trespassing sign, don’t need to live on the land;
(3) EXCLUSIVE: Can’t use it at the same time as another.
*Cutting across the land for 10 years while the property owners are possessing the land. Can’t get title to the land because it’s not exclusive use.
*Ex: A and B use hunting lodge in winter and during the winter, a girl scout troop uses it for camping. NOT EXCLUSIVE
*Ex 2: Father tells sone he can own home bc he’s moving to nursing home. Son moves in. Father moves out, but visits once a month. EXCLUSIVE-son is allowing his dad to come visit as a visitor/guest doesn’t mean that both are adversely possessing. (ADVERSE-He’s acting like an owner and therefore that is sufficiently “hostile” or “adverse.”)
