TOPIC I
ACQUISITION
BY DISCOVERY:
The sighting or finding of hither to unknown or uncharted territory.
BY CONQUEST:
The taking of property through force
OCCUPANCY AND THE THEORY OF FIRST IN TIME:
First person there owns it aka Original possession
LABOR THEORY:
Whatever you work on or alter so that it is no longer in its natural state is yours since you have annexed it. You have a right to it that no one else has
Haslem v. Lockwood
By finding abandoned property and changing it so that it becomes something of value you have a possesory right in it that cannot be lost if you do not use it for a reasonable time.
ACCESSION:
One person improves the value of another’s property by labor alone. Problematic stretching labor theory.
Johnson v. M’Intosh
Discovery or Conquest
Could be either depending on which view you took. Europeans viewed the Indians as a nonentity and so the y said it was discovery but Indians might say conquest
Labor Theory
The Indians did not alter the land enough to make it acquisition by labor
First in Time
The Indians were not considered a factor so the Europeans were first in time
Pierson v. Post
Fox captured by the guy who saw it last minute and not the hunter who was expending effort.
To capture a wild animal you must Mortally wound OR Tie up OR Kill
MAJORITY
MINORITY
: Property rights should be more flexible so they can be adapted to suit the societal needs of the time. Defer to custom
Keeble v. Hickeringill
Neighbor whose duck decoy went bust is scaring away the ducks of a successful decoy operator.
The doctrine of waste is a key factor in determining the nature of property rights.
Could compete but not scare away
APPLYING VARIOUS CASES:
If using Pierson majority then argue that the ducks weren’t were secured and therefore were in possession
Hickeringill
Locke and Pierson dissent
Note also the mention of ratione soli.
Here the doctrine of waste is apparent. Pierson was actually making use or benefiting from the fox but Hickeringill was merely scaring away and wasting the resource.
Ghen v. Rich
Whaler kills whale out at sea and it washes up on a beach and the guy that finds it sells it.
Custom may be the answer to defining property rights if this would result in the most efficient use of resources.
In Pierson the majority did not think custom was the best way.
Note:
Labor, First in Time, acquisition by discovery, acquisition by capture could all be also argued here depending on whom you were representing.
ACQUISITION BY CREATION
Cheney
It is okay for a silk manufacturer to copy the designs of another manufacturer.
The goal of efficient use of property outweighed the goal of efficient creation. Imitation is okay.
INS v. AP
It is not okay for INS to sell news that AP gathered before AP could sell it.
Where property is not used for profit yet it is more difficult to justify market factors and competition copying it. This was also a more original creation than a silk design and did not really involve a creation but a theft of something they didn’t create.
Note that INS was later overruled.
Chanel
Imitator saying that it was able to create an exact replica of Chanel # 5 but only cheaper.
A large expenditure of money does not in itself create a legally protected property right and if it is imitatable then it obviously wasn’t so much of an original to justify acquisition by creation.
DISTINGUISHING CHANEL FROM THE WHITE AND MIDLER CASES
The time that the cases occurred
The fact that especially in the Midler case the court seemed to say that a voice or personality is more protectable than a mere Chattel
Superficially is that it was privacy rather than property
Armstrong
Property rights develop generally in response to technological advance, social change generating new demands, new scarcity, and new opportunities.
Demetz
Changes in knowledge, result in changes in production functions, market values, and aspirations and the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.
Moore
Guy whose excised cells were used by his doctor unknown to him to make a profitable cell line.
Property rights do not extend to excised cells because property is a bundle of rights consisting of the right to:
Exclude
Possess
Use
Transfer or dispose of as you see fit
(limited by the doctrine of waste)
Court ruled that since he had no power to dispose after excision and so it wasn’t property. Need all four to be property. There is no need to try to fit the square pegs of dignity and privacy into the round hole of property.
The court seemed to go for a fixed definition of property saying that certainty is necessary and not strict liability because of the potential harm on biological research. Did not consider staggered liability. It was a cost benefit analysis.
DISSENT/MOSK:
Flexible approach to definition of property
Property is not a material thing but refers to rights or relationships among people with respect to things
State v. Shack
Not all types of property have all the sticks in the bundle for example
a. Market-Inalienable Can transfer by gift but not sale
b. Market-Alienable Can transfer by sale but not by gift
c. Inalienable No mode of transfer permitted.
The elements of proof and causation are difficult in privacy and fiduciary breach cases and are not enough to protect a patient.
Texas farmer says “Get off my property” to two federal workers who pursuant to statute are trying to render legal and medical aid to migrant farm workers on owner’s property.
THIS REPRESENTS AN ADVANCEMENT OF THE MOSK DISSENT IN MOORE IN TERMS OF THE FLEXIBILITY OF PROPERTY RIGHTS.
Reliance Theory: To the extent that you rely on the public’s access to increase the value of your property you sacrifice certain exclusionary property rights.
Property rights are never greater than the health welfare or dignity of people
Rights are relative and in flux and there must be accommodations where property rights and other rights collide. Rights of workers to privacy and dignity are too fundamental to be abridged by an interest in real property
Trespass must involve the invasion of a possessory right.
Defining the reliance principle:
Jacques v.Steenberg Homes
No invitation of public to use land and increase value so you could limit access by the trailer delivery guy
Kaiser v. Aetna
The private landowners dredge a connection to the sea.
Public benefit could not outweigh the substantial devaluation of private property if the right to exclude is abridged.
Uston v. Resorts Int. Hotel
Casino trying to exclude card counters
No right to exclude in an arbitrary manner when you open your property to the general public for your benefit.
State v. Schmid
In determining the extent to which you have absolute control over property consider the following:
Primary use of the property
Extent and nature of public’s invitation to use such property
Purpose of the public (expressional) activity as it affects private and public rights.
United Steel Workers
Steel workers saying that there life long use of plant and reliance on job could prevent the plant from closing.
The reliance principle will abridge property rights far more readily than it will result in a transfer of property rights.
TOPIC II
SUBSEQUENT POSSESSION: ACQUISITION OF PROPERTY BY FIND, ADVERSE POSSESSION AND GIFT
FIND:
Armory v. Delamire
Action in trover by finder of jewel against goldsmith who refused to return it to finder after examining the jewel and offering the finder money for it.
The finder of a chattel has a title to the chattel superior to all but the rightful owner
BAILMENT:
Rightful possession of goods by a person (bailee) who is not the owner of the goods.
Prior possessor is paid by subsequent possessor for jewel and then prior possessor disappears. True owner retur
won’t take care of you
CLAIM OF RIGHT: A way of expressing the requirement of hostility or claim of right on the part of an adverse possessor.
There are 3 standards that are used to establish if claim of right exists in various jurisdictions:
Objective
Good Faith
Halpern v. Lacy Inv. Corp
Aggressive Trespass
Presumption that an intruder enters to hold for himself.
Must be aware he is on land that is not his to get title.
Richard A. Epstein
Proposing a 2 tier SoL w/a longer period for bad faith possession and describing adverse possession as a change in the nature of the rule governing the property.
PROPERTY
LIABILITY
Interest cannot be taken from owner without consent
Owner’s interest can be taken without consent but only after compensation. Eminent Domain.
In adverse possession the property owner’s interest is protected by a property right until the SoL runs and then the Adverse Possessor’s interest is protected by a property right afterwards.
DIFFERENCE BETWEEN ADVERSE POSSESSION
WITH COLOR OF TITLE AND WITHOUT
COLOR OF TITLE
NO COLOR OF TITLE
Sometimes SoL shorter
Advantageous in all states
Actual possession of part of adversely possessed land is constructive possession of all the deed conveys.
Limited to actually possessed land. No constructive possession.
Ewing v. Burnett
Claimant under claim of right paid taxes on lot, from time to time dug sand and gravel from it, permitted others to use and brought actions for trespass.
The sort of entry and exclusive possession that will ripen into title by adverse possession is the use of property in the manner that an average true owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as a person exercising exclusive dominion
BUT SEE
Pettis v. Lozier and Lutz and Kuntos to see how courts manipulate the factors and make the generalization dangerous.
I thought I did not own it and intended to take it
Hostile position is equivalent to claim of right and must be done in good faith
Courts will award title to good faith trespasser and not to trespasser who is aware the land is in dispute.
I thought I owned it. Majority American view. State of Mind Irrelevant. English view.
The owner has relinquished all right, title, claim, and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoyment. Owner has involuntarily parted with it through neglect, carelessness, or inadvertence, and is property which owner has unwittingly suffered to pass out of his possession, and has no knowledge of its whereabouts Owner has voluntarily and intentionally laid down in a place where hecan again resort to it and has forgotten where he laid it
(The Princeton Case) compared to Right of Life Advocates Abortion protest case)
would say that Keeble invested labor and removed the ducks from their natural state so he possesses them. would say that if he could scare them away then they were obviously not in possession.
: Property rights should be rigid to generate certainty and to prevent a slew of litigation. Labor theory not enough
