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Property I
SUNY Buffalo Law School
Su, Rick

Spring 2011
Conceptualizing Property
I.                Most Basic Types of Arguments
a.       Rights Arguments — most basic of the most basic
                                                  i.      Is something fair?
                                                ii.      Looks at relationships
b.      Utility Arguments
                                                  i.      Idea is to maximize the “good”
1.      Can sometimes lead to policies that may seem unfair to an individual but is maybe better for society as a whole.
2.      Looks at what policies will promote that maximization.
c.       Administrability Arguments
                                                  i.      Judicial Role — is this something that should be decided by law? Is this something that this court should decide? If yes, how should they be involved?
                                                ii.      Rules versus Standards
1.      If the judge is going to announce a “rule” should it be more like a rule or a standard?
a.       Rule is clear bright line (18 to vote) that's the plus, the minus is sometimes it can be too rigid. Who is to say that driving 62mph is too dangerous but 59mph is safe? Can be over-inclusive or under-inclusive.
b.      Standard is very broad (reasonable person standard). Requires a strong judicial role and judge has much more discretion. Bad thing is that it is vague and can be unclear. Good thing is it can yield a much more tailored approach that is much more inclusive.
II.             Pierson v. Post — POSSESSION
a.       Holding: If a person is pursuing a wild animal but has not captured or wounded it, then he does not have possession of it and someone else is free to take possession of it, even if he sees that the first is in pursuit.
                                                  i.      Policy argument is that to avoid quarrels and excess litigation and to preserve peace and order in society there needs to be a strict rule on this issue.
b.      Dissent: His policy argument is foxes are horrible beasts and they need to be exterminated so a rule is needed to support their extermination. Clear utilitarian argument.
c.       Another policy argument could be that people should stay away when others are in the middle of hunting in order to avoid danger…being accidentally shot by the hunter.
d.      Or there’s the market argument…whoever is the better hunter should get the fox. Pierson didn’t even have hounds, as far as we know, so he’s the better hunter. How long are we going to let Post go after the fox…hours…days?
e.       There’s a fairness component. It could be seen as unjust enrichment for Pierson to exploit Posts labor. But it could also be seen as unjust enrichment for Post to come into court with his lawsuit to try to get the fox that he was unable to catch, but Pierson did catch.
III.          Popov v. Hayashi (Baseball Case) — POSSESSION
a.       Holding: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, and a 3rd party picks up the property and takes legal and proper control over it, then both parties have valid claims to the property making it an undivided interest and the property should be sold with the proceeds split between the two parties.
                                                  i.      When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, he has a legally cognizable pre-possessory interest (right) in the property, which constitutes a qualified right to possession which can support a COA for conversion.
                                                ii.      But Hayashi was not a wrongdoer, not part of the mob…so when he picked it up and put it in his pocket he attained unequivocal dominion and control.
IV.          Johnson v. M'intosh COMPETING CLAIMS TO PROPERTY
a.       Holding: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy, so the land Jefferson and Britain acquired from the Indians was transferred to the U.S., which then had the sole discretion to sell it to D.
b.      Court says that the property was split into different titles. There’s a title of discovery, a title of occupancy, a title of conquest, and a title of purchase.
                    i.            Title of Discovery
1.      Obtained by the first person to discovery the property. Not quite ownership though. It gives you the right to exclude other nations from the right to acquire the land from the natives who are already on the land. Like a pre-possessory right to acquire it. According to Marshall, the title of discovery is against other imperial powers that haven’t previously discovered that land.
                  ii.            Title of Occupancy
1.      Obtained by the people who first occupied it. So they have the right to occupy it (to use it). The title cannot be sold as ownership, it is only gives the possessor the power to use the land.
                iii.            Title of Conquest
1.      One way of dealing w/ title of occupancy…can extinguish title of occupancy through conquest. However, whether or not title of conquest is legitimate depends on what you do with people that occupied land before conquest. Usually there is an aim at integration but if not, there needs to be a segregation where they still get a right to occupancy on some part of that land or an alternate land.
                iv.            Title of Purchase
1.      Gain ownership of land through purchase from previous owners who had ownership through purchase or conquest.
V.             Elliff v. Texon Drilling Co. – COMPETING CLAIMS TO PROPERTY
a.       Holding: The law of capture does not protect a neighboring landowner from damages caused by the wrongful drainage of gas and distillate from beneath the land of another (in a shared pool).
b.      Is TX’s law good, in light of competition?
                                              iii.      Utilitarian = people need oil…this encourages the drilling of it
2.      But isn’t this allowing the taking of others’ private property?
c.       Maybe if they don’t want it it’s okay.
                                              iv.      Interesting that the “use it or lose it” concept was used in Texas since it has elements of socialism.
c.       Texas rationale is that they allow people to own property b/c it promotes use and spurs development which adds to the good of the public.
VI.          Tapscott v. Lessee of Cobbs – TRANSFER: RELATIVITY OF TITLE
a.       Holding: A person in possession of a tract of land has a title that is superior to all others except the actual, rightful titleholder.
a.       Holding: When land is granted in fee simple, any condition placed upon the land that the grantee shall not alienate it or that he must pay a fee to the grantor at the time of any future sale is void because the condition is contrary to the nature of the fee simple.
b.      Fee Simple = an estate in land characterized by ownership of the entire property for an unlimited duration and by absolute power over distribution
c.       Rationale: Don’t want lord-tenant relationship
                                                  i.      don’t want too much centralization of land ownership (where you own all this state and can do whatever you want with it)
                                                ii.      but also don’t want too much fragmentation of land ownership (you own right to house, you own right to lease, you own right to drill, etc.)
VIII.    Intellectual Property
a.       International News Service v. Associated Press
                                            i.            Holding: Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right.
                                          ii.            Policy argument is if you let anyone take news from entity that put in labor to gather it, and use it for profit, then no one will bother making the effort of gathering the news and putting it into writing. It’s a free rider problem. So if you want people to gat

about the First Amendment? At some point you’re saying we cannot talk about anyone? Then it might allow celebrities to keep tabloids from talking about them.
Access to Property
I.                Common Law Trespass
= An unprivileged intentional intrusion on property possessed by another
a.       A trespass is privileged, and thus not wrongful, if:
                                                  i.      The entry is done with the consent of the owner,
                                                ii.      The entry is justified by the necessity to prevent a more serious harm to persons or property;  (even if owner says they don't give consent); or
                                              iii.      The entry is otherwise encouraged by public policy.
b.      A trespass is intentional if the D engaged in a voluntary act to go on the property.
                                                  i.      But it isn't necessary to show that the trespasser intended to violate the owner's legal rights….so mistaken entry doesn't relieve the trespasser of liability.
1.      Shifts burden on trespasser to know where they cannot go rather than on the owner to make sure everyone knows their property is private.
                                                ii.      However, the intent requirement is not met if the trespasser is carried onto the property against her will by others.
c.       The intrusion occurs the moment the non-owner enters the property.
                                                  i.      An intrusion may occur upon physical entry by a person, an agent (employee), or an object that extends over the boundary onto the neighbor's property.
                                                ii.      A trespass may occur either above or below the surface.
                                              iii.      Doesn't include anything on the adjacent property if it isn't on, over, or under the other person's property.
d.      State v. Shack – TRESPASS
                                                  i.      Tejeras and Shack (Ds), both non-profit advocates of migrant farm workers went on Tedesco’s (P) property to talk with some migrant worker clients who lived & worked on the premises. D would only allow Ps to see the workers if it was in the presence of P. Ds protested and refused to leave the property so they were charged with trespassing.
                                                ii.      HOLDING: An employer may not deny his workers, that he houses on his property, of their privacy; nor can he interfere w/ their opportunity to live w/ dignity and to enjoy associations customary among our citizens. Under NJ law, the ownership of real property doesn’t include right to bar access to gov’t services available to migrant workers.
                                              iii.      The migrant workers are a highly disadvantaged part of society, which is why the fed gov’t passed statute for their aid which Ps orgs fulfill. The ends sought by the statute wouldn’t be achieved if the intended beneficiaries could be isolated from efforts to reach them. P is entitled to pursue his farming activities w/o interference but court doesn’t see legit need for a right in P to deny the workers opportunity for aid from federal, state, or local services, or from recognized charities.