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Property I
Temple University School of Law
Wells, Harwell

Property Outline- Spring 2013 (Wells)

1. Introduction: What is Property?

[p. 3-8, 12-23, 28-36 (Shack, Notes, esp. Food Lion case, Uston, Jacque)]

Property: something you can use, exclude others from using, can transfer

(but there are always exceptions/limitations to these rights).

Property = bundle of rights. (Implies that you can take apart the bundle and sell some rights, but keep others.)

Trespassing: Right to Exclude Others From Property is Not Absolute­

Trespassing [p. 12-13]

– Common Law Trespass: unprivileged intentional intrusion on property possessed by another.

Do not need to show that you intended to commit a trespass, merely that a voluntary act occurred in committing the trespass (i.e. being carried onto the land against one’s will is not trespassing.)

Trespass = privileged (and not wrongful) when:

(1) Entry done with consent

(2) Entry = justified with necessity, or

(3) Entry encouraged by public policy (exception).

– Criminal Trespass: initiated by state, federal, or local officials.

I. State v. Shack (N.J. 1971) [p. 3]- Farmer (P) employs migrant workers. Field worker offering medical assistance and staff attorney offering legal aid, both working for NGOs, trying to cross P’s land to help migrant workers. P sued for trespassing.

*Rule: Trespass does not include a situation where representatives of recognized charitable groups enter private land in order to provide government aid to those workers who need it.

– JUDICIAL ACTIVISM: Judge decided he wanted a certain outcome here and pushed boundaries of law to get that outcome.

“We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” [p. 8, top]- Rejecting the notion that a certain outcome is mandatory because law dictates it.

– Court balances interests of the property owner and of the migrant workers. (Interest to keep trespassers off land vs. interest of workers to have access to government aid, i.e. legal/medical assistance.)

Redistribute power between P and migrant workers, bending property law.

II. Jacque v. Steenberg Homes, Inc. (Wis. 1997) [p. 28] – Steenberg Homes moves a mobile home over Jacque’s property, even though Jacque asked them not to do so.

– Distinguished from Shack: harm done, people involved, owners/possessors.

Incomplete justification of necessity (trespassing to save lives/property).

– No compensatory damages awarded → court did not recognize any physical harm done to the property that would detrimentally affect the property owners.

– “Because a legal right is involved, the law recognizes that actual harm occurs in every trespass.” [p. 30, top]→ Sense that my right to property that is so fundamental, that a violation of this right causes harm, even if there is no physical harm done to the property.

*Rule: Courts take trespassing seriously!

– Outcome: Court believes that $100K is an appropriate punitive damages reward because $100K will actually deter Steenberg Homes to commit the trespass. $30 citation would not be sufficient. Steenberg homes may believe paying $30 to trespass each time is worth it, which doesn’t deter Steenberg from continuing to violate Jacque’s right to property.

– Court bothered by the way Steenberg trespassed. Knew they didn’t have permission and violated Jacque’s property right anyways. $100K fine says we actually take this type of violation very seriously.

III. Food Lion, Inc. v. Capital Cities/ABC, Inc. [p. 13]- Two investigative journalists used false resumes to get jobs at Food Lion, where secretly taped and broadcasted “unwholesome food handling practices.”

– Black letter rule: Trespass = unprivileged, but sometimes there are exceptions (privileges)

One privilege = consent (which is discussed by the Food Lion case); Initial entry was consensual.

– Scope of consent in Food Lion: ABC journalists had consent to come onto the property as a Food Lion employee, but exceeded that scope when the journalists began secretly videotaping the meatpacking process.

– Outcome: Fraud thrown out (no harm from the fraud; harm came from the trespass); defamation thrown out because no false statements; no punitive damages because those were based on fraud; P left with only $2 in nominal damages of trespass.

IV. Uston v. Resorts International Hotel, Inc. (NJ 1982) [p. 16]- Uston (P)= card counter banned from casino. Uston suing to prevent casino from not allowing him into the casino- wants declaratory judgment.

– Ruling: For Uston.

– Reasoning:

Actual justification: NJ common law says that if he isn’t threatening the security of any casino occupant/not disturbing business of casino, then he can’t be excluded. Uston was not a drunk, did not start fights, etc.

Public setting, so all people should have access to it and therefore, cannot exclude people unreasonably/arbitrarily.

*Rule: Broad rule here, not just hotels and common carrier- all businesses open to the public cannot deny entrance arbitrarily.

– Note: Rule in NJ now is that card counters are still allowed in casinos, but casinos now have rights to use multiple decks/use certain limitations.

Reasons why you cannot deny someone to stay in a public hotel, common carrier, etc.

Policy Arguments [p. 20]

1. Some rules you can contract out of.

Default rules (ones you can contract out of) v. mandatory rules (ones you cannot- i.e. cannot contract away the right to life- allowing someone to murder you)

2. Highway men, pirates, bandits, etc.

3. Monopolies- if you are not allowed into a hotel monopoly, you have no other options.

4. Reliance element- by setting yourself up as a public business, others rely on the fact that you are available for them to access

Making Arguments in Uston:

-For Uston: Public policy: government allows and encourages casinos, what is the default setting we want? We want inclusion, Uston is engaged in a legitimate right in access in the property to gamble, which is what the property is for to begin with. Affirmative invitation for people to come in and use the property.

– For Casino: reasonable reason- no cheating, hotel services are needed but gambling is a luxury not necessity, comparing card counter to migrant workers is not comparable (i.e. precedent used in the Uston case)

– Note: Still the rule that innkeepers and common carriers need to be open to everyone- cannot arbitrarily deny access.

2. Property by Discovery and Conquest

[p. 97-109 (Johnson v. M’Intosh)]

– Discovery rule: Person who discovers property (+ tie of labor into land) has best title to the property.

European discoverer gets title and discoverer has sole right to acquire soil from Indians. Subject to Indian right to occupancy. Right of occupancy by Indians is transferable by purchase or conquest.

– John Locke- Where does property come from? Tie of labor into land. “I make something my property when I mix my labor with it and change it.” Knew there were people there in America, but for the most part, that land had been untouched. How am I going to get ownership of that land?

I. Johnson v. M’Intosh (1823) [p. 98]- Dual Conveyance of Land: Johnson (title from Native Americans) & M’Intosh (title from US).

– Main Issue: Who has the initial right to claim ownership of property?

– Plaintiffs argue:

1.) Piankeshaw Indians were owners of the land and had the right to sell.

2.) Not British subjects so they should not have been held to king’s proclamation in 1763.

3.) The king’s proclamation was void.

4.) Act passed by Assembly of Virginia should not take away rights to plaintiffs.

How does property in the US come about?/How does property get created at all?

– Reasoning:

– Upon discovery, European governments get title to the land/ the right to take the soil from the natives and establish settlements upon the land. Right to keep out other European countries.

– The Indians’ right to land is not immediately diminished- still have the right to occupy the land, but their right as complete sovereignty/independent nations = diminished. This means they cannot transfer the land as they see fit.

– Ruling: For M’Intosh- US had the right to transfer title. Indians did not have the power to transfer title, therefore Johnson has no title when buying the land from the Indians.

Indians can only transfer the right of occupancy to the US. Cannot transfer to individuals.

How do judges make decisions?

– Justice Marshall: Land title throughout the US is based on assumptions that are already there. – Depending on the rules laid out during European conquest. Cannot change this because it would cause chaos, although Marshall may not be comfortable with this idea. Even blames a bit of this on the Indians- last line on p. 105.

– Returns to John Locke’s argument that allowing settlement is how the land is going to be developed. Perception delivered by Marshall that Indians were hunter gathers (not necessarily the right perception).

3. Property by Capture and Possession

[p. 152-167 (Pierson v. Post, Popov, Elliff, Problem p. 164)]

Possession: Animals become possessions when an individual manifests the intent to own by exercising actual or constructive dominion and control.

– The act of hunting the animal without actually obtaining it does not constitute constructive possession unless a vest property right has been created by mortally wounding the animal such that capture is inevitable.

I. Pierson v. Post (N.Y. 1805) [p.152]- Post chasing fox with his hounds, and Pierson, although knowing that the fox was being hunted, killed the fox and carried it off.

– Post claims that he should have the fox because he was the first one pursuing it, tired the fox out.

– Pierson

e resource, i.e. you cannot spill lots of oil in the haste of drilling the oil out.

(-) requires more administration, what is considered negligently wasteful?

(+) economic efficiency, prevents some from damaging the property of others.

– Why not stick to just one rule? If only used rule of capture, everyone would be trying to drill as fast as possible. It would be under your interest to drill as fast as possible because if you don’t your neighbor would do it- like leaving money on the table. – encourages exploitation of a resource as fast as possible.

– Takeaway: TX law begins with the notion of capture- you are allowed to capture everything that comes out; but with limitation- cannot be wasteful. You + neighbor both have right to drill oil from your land. But if purely law of capture, that would encourage people to race to drill as fast as possible- this could conflict with not being wasteful.

– Outcome: Elliff’s won. Texon was negligently wasteful. Even if Elliff’s didn’t have right to the oil yet, Texon took the opportunity to drill away from Elliffs.

4. Property by Labor and Investment

[p. 131-146, 231-239 (INS, Notes, esp. Upton case, Problems 1&2, p. 144-45, Moore)

I. International News Service v. Associated Press (1918) [p. 131]- Intangible property

– Facts: International News Service (INS- Defendant) copying bulletins of news from Associated Press (AP- complainant). Both businesses collect news from around the world and sell it- direct competitors. On the east coast as news came in, AP would put news up on a bulletin. Then, someone from INS would look at the bulletin or buy the first copy of AP news and sell the news on the West coast, which is what AP is complaining about.

– AP is claiming: Their property has been stolen through the acts of INS; unfair competition/business practices. Well-developed body of law that prevents unfair business practices.

– INS: The actual facts of the stories are not copyright-able.

– History is open to everyone.

– Nevertheless, Judge Pitney here decides to focus instead unfair competition aspect of this case.

· Reaping what hasn’t been sown: It is unfair for INS to reap the benefits of AP’s labor.

· No credit: INS doesn’t attribute their news to AP; You cannot misrepresent what you are selling.

· Market Share

· No profit in news.

· News has value-> legal protection

(quasi-property); which means there can then be misappropriation

– Hot news exception: The value of news is there when it’s fresh. You can keep it secret, but it’s not valuable until you publish it– not as easy to protect. News deserves legal protection because there is value behind news.

[- Tautological argument when you say news has value so then it requires legal protection, and legal protection is what gives the news value.]

– Holmes (dissent)

Legal realism- property is whatever the law is going to protect. News cannot be worthy of protection.

– Pitney (majority): The effort and labor that goes behind the news also adds value to the news, which is what INS is ripping off from AP.

– Holmes: Says what Pitney is asking for is extreme- INS should just give AP credit.

– Brandeis (dissent)

– Ownership of ideas/words: [p. 138] “But the fact that a product of the mind has cost its producers money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property.”

(- Professor Wells: What is AP is being deprived of when INS copies AP’s news?

AP still has its customers, and its news is just being spread.)

– [p. 140] “The injustice of such action is obvious.” – Still not completely fair to allow INS to rip off AP,

[p. 141] .. But it’s up to the Legislature to fix the problem is in front of us. They are better equipped to make a decision because they can do research/deliberation/investigation, have ability to enforce, and Legislature = better at keeping up with the times.