PROPERTY
Salsich, Peter
Spring 2011
SLU Law
– What is property?
o A bundle of rights, privileges, powers, & immunities
o A rule-governed entitlement
· Based on a set of rules
o “Everything which one person can own and transfer”
o “The right… to possess and use… to the exclusion of others
· Real Property – Rights in Land (main emphasis)
· Personal Property – Rights in Things
· Intellectual Property – Fruits or expressions of creative work
· Why do we value property?
o Facilitate Personal Development
o Allocate Resources (1st possession)
o Encourage Labor (Productive Activity)
o Maximize Societal Happiness
o Ensure democracy
· Do I have a property interest in my BODY?
o Do property rights protect bodily integrity & liberty
· What can we do with property?
o We can transfer it.
· Absolute
· Pierson v. Post
o Pursuer of fox in wasteland beach area v. man who captured it and carried it away
o Fox was a wild beast, no one had possession of it
o Occupancy = possession
· Sight –> Pursuit –> Hot pursuit –> Wounding –> Moral Wounding
You have to deprive the animal of its natural freedom
Take control
Manifest intent
Is the law living or something that we just apply when it exists? Subjective or objective?
It is an instrument of social change
The customs of the people create the law
Did Post suffer any type of harm?
Did Pierson violate the rules of the game and interfere with Post's lawful activity?
The jury found for Post and gave him 75 cents
The court made a policy judgment… making law
This was a case of first-impression
· 3 basic conflicts
Certainty vs. Fairness
If searching for fairness we have to be flexible, which creates uncertainness
Encourage competition vs. Reward investment
Formal Law vs. Custom (formalism vs. instrumentalism)
· Right to Transfer
o Johnson & Graham's Lessee v. McIntosh (Ejectment)
· Land Claims:
§ Johnson (P) – absentee land speculators
· Native Americans — Thomas Jefferson (1773) —- Johnson (1819)
· First in time (Native Amer's had rightful first possession – C.L. rule)
· P's title (1773) was prior to D's (1818): Chain of Title concept
§ McIntosh (D) – industrious settler?
· Great Britain — VA Col.(1609) —-U.S. (1789)— McIntosh (1818)
· Discovery gives title vis-a-vis other European nations – exclusive right to acquire
· Claim established by taking possession
· Would this decision make everyone happy? The President? Etc.
· Possession is based on first-in-time
§ According to this principle, however, the Native Americans are the possessors of the land***
§ Defendant claims their predecessor got there first and claimed the property
· Issue is whether Johnson's title transferred by the Native Americans to him can be recognized by the U.S. courts
· Did Native Americans have the power to transfer under their laws?
· Did Native Americans have rightful possession of the land they sold?
· Why did their transactions not control this case?
§ The Native Americans were different. They didn't believe that land was valuable once you turned it into developed land by building cities, etc.
· Did NA's retain any property rights?
§ Right to possession & use
§ Qualified power to exclude
§ Right to transfer w/in their tribe
· What did Native Americans lose?
§ Right to transfer outside tribe, except to U.S.
§ Absolute power to exclude
· The common law came from England – we had already accepted the law of England so the argument that Johnson's title was not effective because he bought it from the Indians while the U.S. was under the rule of England does not work
Moore v. Regents of U. of California
o Should the law allow a person to sell parts of his body?
o Property rights can arise by creation (White v. Samsung Electronics)
o Patents (another form of Intellectual Property)
o Moore ——— Dr. Golde ———– Regents
· Spleen/cells —> cell line patent —-> product
· Raw matter ——> idea/process —–> build
o What is the “thing” in dispute?
· Value of the cell line
o What legal doctrines apply?
· Property Law
· Fiduciary Duty & Informed Consent
o Moore's conversion claim
· Did Moore own his cells before the operation? Why or why not?
§ Yes because they were part of his person. He had the right to do with them whatever he wanted.
· What does it mean to “own” cells in your body?
§ Could M use them? For some purposes, not for others
§ Could M exclude others from using them? Yes
§ Could M donate a kidney to his daughter?
§ Could M sell his blood? A kidney?
§ If you own them, you can exercise the power to exclude others from using them but you cannot exercise the right to use them yourself.
· There are statutes, both California and National that mean you cannot sell those cells under any circumstances
§ It only says you cannot sell it for therapeutical or other purpose, but does not specifically say you cannot sell them for research
· Moore gave away his cells, losing ownership
§ Which is why he got the cause of action for Failure to Disclose
§ There was no evidence that he would not have given away his cells
o Property really is a series of relationships and we can have property interests/rights without having the whole thing
State v. Shack
o Trespass tort = unlawful entry on someone else's property
o In previous similar case, punitive award of 100,000 even though there was no injury had been awarded
o 2 migrant workers on farm are visited by legal workers
· Appeal of criminal trespass conviction
· D's (Shack & Tejeras) were poverty workers (legal & health care services) (OEO funding)
· L.O. (Tedesco) (previous differences w/ D's) said he would bring migrant workers to D's
· D's wanted to meet clients in private
· L.O. told D's no, that he had to be present and no private.
o Arguments on Appeal
· Shack (appellant)
§ The rights of the workers are being infringed upon and it is our job as legal servants to make sure that this does not happen
§ The legal workers and the migrant workers' 1st amendment rights were being violated
§ The court sidestepped this, throwing out all Constitutional claims
§ They argued that they had property rights as lessees of the land (landlord/tenant relationship)
· The court did not decide that the migrant workers were tenants
§ They have privacy rights – meeting was denied privacy with legal workers
§ The court treats it as a common law problem
· Migrant farm workers have a PERSONAL right of privacy
· Includes having visitors in their homes
· Landowner cannot block visitors if no harm likely
· Tedesco (by state)(appellee)
§ Right to exclude (PROPERTY right)
§ Landowner has right to bar general public access
§ Landowner may impose reasonable restrictions
§ Title of property includes power to exclude
o Competing Interests (needs)
· LandOwner
§ Right to farm without interference
§ Exclude public (or require identification)
§ Exclude
Respondent moved for summary judgment, asserting that the state did not recognize petitioners' claims because it followed the rule of capture. The court determined that it was asked whether the state should abandon the rule of capture for the rule of reasonable use, which would limit the common-law right of a surface owner to take water from a common reservoir by imposing liability on landowners who unreasonably use groundwater to their neighbors' detriment. The court determined petitioners presented compelling reasons for groundwater use to be regulated. However, the common law would have to be guided and constrained by constitutional and statutory considerations. It was found that the legislature was addressing the question of the regulation of groundwater, and the court was not persuaded that it was appropriate to insert itself into the regulatory mix by substituting the rule of reasonable use for the current rule of capture. The court affirmed the judgment of the court of appeals.
§ OUTCOME: The court affirmed the judgment of the appeals court that affirmed the decision of the trial court which granted summary judgment against petitioner landowners who sued respondent bottled-water company for negligently draining their wells because the legislature was attempting to craft regulations to meet the state's groundwater conservation needs.
§ Case of First Impression – no prior case regarding this, creating common law, which is subject to decisions by the legislature
· CAPTURE doctrine
§ The Legislature in Texas set up what would become a public agency with its own taxing powers and possibly perhaps even the power of eminent domain under appropriate circumstances
State v. Shaw
Trial court defines control as having no possibility of escape
Supreme Court argues that the fish were confined and it was practically so impossible for the fish to escape
Larceny dispute over the fish
Personal Property
Possession – how much control?
Location
Wild and not domesticated (pets)
Custom
Tragedy of the Commons (Lte)
Popov v. Hayashi
Barry Bonds's 63rd home-run ball
Both plaintiff and defendant were innocent
Neither did anything wrong
Popov catches the ball in his glove, then fans knock him down and the ball falls out
Hayashi picks it up and takes it
Popov argues that he had possession since he caught the ball first and was therefore entitled to it
MLB abandoned the ball once it was hit into the stands – CUSTOM
Did Popov ever have possession?
Court decides to cut the ball in half by selling it at an auction and splitting the proceeds
Court decides Popov had a pre-possessory interest in the ball, therefore it would be unfair to deprive him of some possession.
The ball was actually in his glove. He was in position to complete the lawful activity, but people interfered with that activity.
Pet = domesticated animal meant for companionship, not service, production, or a hobby
Who may escape and pose a comparatively low risk to neighbors
An animal who has been tamed and would tend to return
