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Property I
Temple University School of Law
Baron, Jane B.

I.                OVERVIEW–THE FUNCTION OF PROPERTY
A.   Property as power: trespass and the (non-absolute) right to exclude
1.            “Private” property

Right to Exclude – An owner cannot exclude someone from her land if it affects the dignity and destiny of those otherwise isolated and whose role as citizens would be excluded.

State v. Shack, 277 A.2d 369 (N.J. 1971), GOVERNMENT AGENTS TRESPASSING TO SEE MIGRANT WORKERS, p. 104
Defendant government employees assisted migrant workers with legal and health issues, pursuant to federal legislation. The workers were isolated on the land of the employer. Court avoids the question of whether they are tenants (addressed later in Vasquez v. Glassboro). Court balanced the property rights of the owner with the needs of the migrant workers. This was the only way the migrant workers could be reached.
§         Judicial activism – the court redistributed power from the landowner to the workers; an alternate holding would have been activist as well, as the power of the workers to maintain their own destiny, dignity and well-being would have been removed.

Consent by Fraud – One gaining consent to enter another’s real property is not trespass if for socially good end.

Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 (7th Cir. 1995), PRIMETIME LIVE STORY ON UNNECESSARY CATARACT SURGERY, p. 108
ABC’s PrimeTime Live gained permission from Desnick to interview employees by assuring him it was not an ambush, but a story on cataract surgery. They also had test patients secretly film as well. Turned out to be a story against Desnick. Court says you can’t claim implied consent when real consent was gained through misrepresentation. Court also differentiates between protection of person and protection of property, and uses a less strict test when for protection of property. There must be some sort of interest of the owner’s that is violated. There was no invasion of private space, as any patient could enter freely.
§         No solid rule – if “socially good end” is the only test, then why couldn’t one enter the private home of someone if the parents are teaching neo-Nazi beliefs?

2.            “Property open to the public”

Sliding Scale – The more property is open to the public, the less legitimate interest a property owner has in unreasonably excluding a member of the public.

Uston v. Resorts International Hotel, Inc, 445 A.2d 370 (N.J. 1982), CARD COUNTER BANNED FROM CASINO, p. 116
While Uston was already banned from Nevada casinos, he claimed NJ had no common law or statutory reason to allow Resorts to ban him. The court rejected majority of states and said that there’s no bright line for public and private venues. Instead, there’s a sliding scale – the more a property is open to the public, the rights of the owner to exclude others decreases. There is not a property interest in excluding individuals when the venue is open to the public generally. 
§         Disrupting essential operations– Court disregards Uston’s interruption of the casino’s interests in making money.

B.   Sources of property rights
1.            “Discovery” and “co

Post, 3 Cai. R. 175 (N.Y. 1805), FOX HUNTER, p. 76
Post was pursuing a fox, but had not captured it. Pierson took the fox. Post claimed that his pursuit alone transferred the previously non-existent ownership to himself prior to Pierson’s procurement, thus Pierson took Post’s property. Occupancy defines ownership, but what defines occupancy? Majority says that one that holds either physical possession or such that the animal has already been deprived of liberty (nets, shot) is the owner. Until then, no one is. Court says that the goal must guide the standard. First, decide the social objective – peace, elimination of foxes, etc. Then decide what the means are to achieve that – allowing mere pursuit to be sufficient, total control, etc. We may need to give up some certain to achieve goals.
§         No bright line – Total control and no control are ends of a line with varying degrees of control in between, such as a reasonable prospect of capture, a near absolute chance of it, etc.

Gray’s Rule – An actor must have control of an object after incidental contact in order to claim ownership.

Pre-Possessory Rights – Once a significant action has been undertaken and that action was interrupted by the unlawful action of others, the actor has the pre-possessory right to obtain control.