Liebesman/Property/Spring 2012 SLU LAW
I. FIRST ACQUISITION OF PROPERTY
A. PROPERTY LAW
v Origins
Ø Bundle of Rights (6)
§ Right to possess
§ Right to exclude
§ Right to transfer
§ Right to use
§ Right to fruits or profits from property
§ Right to destroy or consume property
Ø Can sell off rights to property, but one does not own the property unless they have the right to exclude others from it
v Possession
Ø Two meanings:
§ The physical act of taking possession
§ The legal conclusion of ownership
B. CAPTURE
v Scope of the Law of Capture – wild res (things)
§ What is wild: anything with wild properties (wild and fugacious in nature)
Ø Default Rule of the Law of Capture
§ In its natural state (wild and fugacious), the res (thing) belongs to no one
· One can acquire the property by taking possession actually (not by merely trying to do so)
§ Exceptions:
· Constructive Possession: If wild animal is on someone else’s property, then to come onto that person’s land is trespassing
· Loss:Property under capture is lost if you release it into its natural state, regardless of intent
Ø Pierson v. Post – Pierson killed and captured fox maliciously while he knew Post was pursuing it with his dogs. Pierson got the fox.
· RULE: Actual possession shows ownership – bright line rule to help promote peace
¨ Three (3) things person must show for ownership of feraeneturae:
Ø 1. Show that you wanted it (intent);
Ø 2. Deprive it of its natural liberty;
Ø 3. Bringing it within your certain control by:
§ Actual bodily seizure,
§ Mortally wounding it and continuing pursuit,
§ Trapping in nets, coils, snares or traps
· J Livingston Dissent: it is better to adopt the customs of sportsmen to determine ownership of the fox, this dissent protects the sport of fox-hunting and give Post the fox
· Policy Rationale
¨ Certainty: when we have a bright line rule then one either has the fox or doesn’t– cut and dry
Ø Compared to Livingston discussion which could become muddled and will flood the courts
¨ When the stakes are high, courts are confident enough to make individual decisions
Ø Most likely to promote peace and order
Ø Do not want to rely on local custom
§ Want to have a uniform rule across the state
Ø Mineral-based feraenaturae (oil, gas, water)
§ Hammond v. Central KY National Gas Co– Hammond sued D for trespassing bc they released $2 mil worth of natural gas into a dome under her 54 acre property
· HOLDING: neither party owns the gas because D has released it into its natural state, but Hammond can extract the gas if she wants to, once D released it they no longer owned the gas, so they did not trespass
¨ However, if they are contained exclusively under the ground on your land then you hold the exclusive right to them as long as they are in your possession
· Abandonment: if feraenaturaeis returned to its natural cond., it is abandon it and not owned
Ø Baseball as feraenaturae
§ Popov v. Hayashi– Barry Bonds baseball case.
· HOLDING: both parties had an equal and undivided interest in the baseball – cannot follow Pierson v. Post here bc there was an outside interference
· RULE: where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property (the ball), and the effort is interrupted by the unlawful acts of others (mob), the actor has a legal pre-possessory interest in the property. This constitutes a qualified right to possession which can support a cause of action for conversion.
· Abandonment:MLB tried to say they did not abandon the baseball
C. CREATION
IP Overview
COPYRIGHT
PATENT
TRADEMARK
Subject Matter
Literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio/visual works; sound recordings; architectural works
Utility Patent: functional features of products and processes
Design Patent: ornamental designs for manufactured goods
Words, names, symbols, or devices
Standards for Validity
Original work of authorship in a fixed, tangible medium
Utility Patent: novelty, nonobviousness, and utility
Design Patent: what is obvious to the ordinary designer
Use of mark to distinguish one’s goods or service
What rights/protection do you get?
Reproduction, to create derivative works, distribution, public performance, public display, broadcast of digital audio transmissions
The right to exclude other from practicing the invention
Exclusive right to use the mark in commerce or in connection with the goods or services, subject to any conditions or limitations in the mark
When protection begins
Upon fixation of original work of authorship in a tangible medium of expression
When granted by the U.S. Patent and Trade Office
Upon use of mark in commerce in connection with goods or services as an indicator of source or sponsorship, or filing an application with the U.S. PTO for the Intent to Use
Duration of Protection
Life of the author (or longest-lived joint author) + 70 years
Utility Patent: until 20 years from the date filed
Design Patent: 14 years from date issued
So long as properly used as a trademark
Standards for Infringement
Unauthorized exercise of one of the owner’s exclusive rights
Utility Patent: by making, using or selling something covered by the language
Design Patent: similarity of designs to ordinary observer
Likelihood of confusion
D. PROPERTY RIGHTS OF BODY
v Property is freely alienable (transferable), so by creating a property right in one’s body parts, the court would create a right to sell your organs
Ø Three reasons the law of not having property rights in your body parts should not be changed:
§ Policy considerations
§ Institutional compliance
§ Conversion theory here is not necessary
II. THE RIGHT TO EXCLUDE AND THE LAW OF NUISANCE
A. THE RIGHT TO EXCLUDE
v Corollary Right to Possession:
Ø The Right to Exclude Others from Possession
§ The right to include and the right to exclude together make the right to transfer fully effective
§ State v. Shack– migrant workers case where government workers tried to get to them on the employer’s land.
· HOLDING: State law of NJ: the ownership of real property does not include the right to deny access to governmental services available to migrant workers
· RULE: property rights are limited, just because you own something does not mean you can unconditionally exclude it
· GOAL: balance public policy and human rights with property rights
Ø Forced Exchanges
§ Encroachment:
· Property owners have the right to keep their property free from encroachments (wall of neighbor’s house extends ½ inch onto their property)
¨ But, right is only protected by damages, if it would be completely unreasonable, then an injunction can be issued and the parties can bargain over it
B. LAW OF NUISANCE
v Substance of Nuisance
Ø Principle:
§ A person may not use his own land in an unreasonable manner that substantially lessens another person’s use and enjoyment of his land
· Public Nuisance
¨ Interference with public rights held in common by everyone
¨ Intentional and unreasonable
· Private Nuisance
¨ Interferes with private right of use and enjoyment
¨ Unreasonable interference with a right common t
ture interest?
§ Reversion, if held by O
§ Remainder, if held by 3rd party
v Life Estate
Ø O → “To A for life”(O has reverter); “To A for the life of B”(called a Life Estate PurAutre Vie) (O has reverter); O → “To A for life, and then to B” (B has remainder)
§ Alienable, devisable by will, and descendible if purautre vie and the measuring life if still alive
· A can only sell what he has, A can sell to B, but B only owns it until A is dead, if B dies before A, B’s heirs get the property but when A dies, the property goes to the future interest holder
Ø Future interest?
§ Reversion, if held by O
§ Remainder, if held by 3rd party (would be specified – Remainderman)
Ø Doctrine of Waste
§ General RULE: a life tenant in entitled to all ordinary uses and profits of the land, but they must not commit “waste”
· Three types of Waste:
¨ Voluntary/Affirmative Waste
Ø Cannot trash the property – cannot do anything overt that causes a decrease in value
Ø Cannot consume or exploit natural resources
§ Four Exceptions:
· Prior use – if before the grant the land was used for exploitation (i.e. farming), the life tenant can continue that use
· Reasonable Repairs – you can consume natural resources for reasonable repairs and maintenance
· Grant – if the grant expressly allows the person to do something on the land
· Exploitation – if a life estate in land is only good for exploitation, you can exploit it (i.e. rock quarry)
¨ Permissive Waste/Neglect
Ø Not taking care of the place, life tenant has an obligation to make reasonable repairs and protect the land, and has an obligation to pay taxes on the land.
¨ Ameliorative Waste
Ø Life tenant cannot improve the property’s value – unless permission of all known future interest holders
v Defeasible Fees (Another type of Fee Simple)
Ø Subject to termination or divestment upon the occurrence of a future event
Ø Fee Simple Determinable (Possibility of Reverter)
§ O → “To A so long as…”; O → “To A until…”; O → “To A while…”
· Language providing that upon the happening of a stated event, (Grantor must use CLEAR durational language) land reverts: so long as, until, during, while
¨ If condition is violated, termination is automatic
· Property is alienable, devisable, descendible subject to the condition in the conveyance
§ Possibility of Reverter (held by grantor)
· NEVER a remainder
Ø Fee Simple Subject to a Condition Subsequent (Right of Reentry)
§ Fee Simple Subject to Condition Subsequent
· “To A, but if X happens, grantor reserves the right to reenter and retake”
¨ Grantor must use clear durational language, “but if…”
¨ Also uses clear language allowing them to reenter and retake.
· Not automatically terminated, but can be cut short at the grantors option if the condition occurs
Ø Fee Simple Subject to an Executory Limitation (Shifting Executory Interest)
· “To A, but if X event occurs, then to B”
¨ Someone other than grantor stands to take as a consequence of X occurring
¨ Estate will be terminated automatically if the even occurs in favor of someone other than grantor
Ø Shifting Executory Interest- there is an accompanying future interest
