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Property I
Temple University School of Law
Hollis, Duncan B.

A. What is “Property”? How do Individuals Relate to It?
–         Legal Creation: Government regulates property relationships b/w individuals among themselves w/ government and w/ respect to the natural environment to create justice
o    The government is sometimes expressly involved but is sometimes lurking in the background, which may still influence how property owners act
o    W/o property, “might makes right” = no consistency
–         Models
o    Capitalist – Private ownership of property
§ U.S. strives to distribute property rights in a more egalitarian (equal) way – deters the use of force, bloodshed, etc.
o    Dictatorial – Maintain complete control, allow people to live off of the land in exchange for a share of the crops
o    Democratic – Allow everyone on the island to vote as to how to distribute the crops/structures on island
o    Communist – Government owns all of the land – no individual ownership
–         Types of Property
o    Real – Land and structures on land that are immovable
o    Personal/Chattels – Anything that’s not real property (i.e. computer, notes, clothes, intellectual property)
–         “Bundle of Rights” – 3 Elements that Define Property
o    Right to exclude
o    Right to transfer – right to devise it by will, leave it to heirs, sell it or give it away
o    Right to possess/use
–         Owners don’t have absolute rights!!
o    People must use their rights as not to interfere w/ other’s rights (e.g. nuisance, can’t do anything illegal)
o    At times, owners must take the interests of others into account (e.g. tenants, farmworkers, etc.)
–         Other interests
o    Neighbors – clash between absolute rights
o    Government – regulates individuals’ rights to use their property (Noise Ordinances, Laws, Zoning Ordinances)
–         Ways to view property rights
o    Key theme: Property rights serve human values – need to figure out which values to give priority to when they conflict
§ 1st in time 1st right (Johnson)
§ Labor (Island of Palmas)
§ Need (King)
§ Individual freedom/dignity (Shack)
o    Property=Power: The court always affects the power relationship between the parties (e.g. Shack)
o    Title is relative depending on who the parties are (i.e. Moore – His title didn’t have much against Gold but would have title if it were stolen; Shack – farmer has title to the press but not government owners)
–         Trespass: An unprivileged intentional intrusion on property possessed by another.
o    Intentional = Voluntary Act – Unnecessary to show that the trespasser intended to violate the owner’s legal rights
§ Just entering onto someone else’s land by mistake is enough
§ Entry against one’s will is not intentional
§ May occur either above or below the surface
o    Shack & Dresnick both seem to say that trespass is OK if there’s a social good that comes from it. (may be a slippery slope)
–         Privileged trespass: Trespasser is privileged if:
o    1) Entry is done w/ the consent of owner
o    2) Entry is justified by necessity to prevent a more serious harm to persons or property
o    3) Entry is otherwise encouraged by public policy
–         Remedies:
o    Damages: Payable to injured party by wrongdoer
§ Nominal damages available even if no other harm – suit to have court establish that P owns property, has right to exclude
§ Compensatory damages if other harm to property – measured by restoration or diminution
§ Punitives to punish, deter outrageous or malicious behavior
§ Injunction: Court order to cease conduct, remedy harm; failure to comply may lead to contempt, fine, imprisonment.
§ Ejectment: If trespasser has occupied property
§ Declaratory judgment: Court states P’s legal rights against other party
–         Public Policy Limits on the Right to Exclude
o    The more an owner has opened her property to the public, the more likely the court will find a public right of access.
o    Non-owners may enter an owner’s property to save a human life
o    Tenants – Right to receive visitors
o    Public Accommodations – Cannot discriminate on illegitimate grounds i.e. race/sex
1. Regulation of the Right to Exclude with Respect to “Private” Property
State v. Shack (N.J. 1971): Title to real property does not grant dominion over the destiny of persons who the owner permits to come upon the premises.
–         Ds entered private farm where migrant workers were employed and housed to offer legal, medical aid. Ended up being charged w/ criminal trespass
–         Court said state law doesn’t bar access to governmental services to migrant workers by property owners, so there was no trespass under statute.
o    Court doesn’t categorize this case – instead, seeks justice – instrumentalist reasoning, balances parties’ interests, considers public policy:
§ Governments’ interests in aiding the workers, government programs, goals
§ Migrants’ rights of access to aid, general plight, closed world VERSUS
§ Owner’s right to control, exclude others
·         Court says owners rights are not absolute – e.g., under common law, can’t use property to harm others
o    Balance tips to migrants, government, but owner’s security interest remains
§ Farmer has right to farming activity w/o interference – open-ended as to what that means
§ BUT no right to isolate workers in any way detrimental to their well-being – right to associate, common dignity
o    Wouldn’t allow workers to K away rights – protecting group w/ less bargaining power, less access to system, less familiarity w/ law, system
–         Decision alters power structure – either way, that would happen: Relationships control; regulation is allocation of power – between individuals, how society interacts w/ individual regarding their interests
–         No trespass if necessity, public policy, implied consent by having workers
o    Judge could have found an exception to common law for one of these reasons, didn’t
Desnick v. ABC (7th Cir. 1995): Though access gained by misleading omission, entry is not invasive in sense of infringing the kind of interest that trespass law protects – no interference w/ the ownership or possession of land.
–         Clinic, doctors sued ABC, et al., alleging trespass for critical show. Show sent undercover patients w/ cameras to clinic sites.
–         Either consent is consent or exceeded consent
o    Consent gained by fraud is an excuse for trespass in this case because there was no invasion of the ownership interests that trespass seeks to protect. (limited excuse)
o    If you exceed the scope of consent, there is trespass. Not exceeded here b/c ABC was authorized to do what they did, just had a different purpose than Desnick thought.
§ Offices open to the public have less of a right to exclude.
o    Public Policy: Activities promoting a good end may not constitute trespass (we want to encourage investigative journalism and expose fraud)
§ Expansion of Shack – private citizens may enter private property for public service
–         Most consent is often given legal effect even though the entrant has intentions that if known to property owner would cause him to revoke consent.
o    Restaurant critic OK. Guy posing as meter reader to get into home is not.
–         Hypo: What if Shack Ds knew farmer was a nutty character and said they were from a magazine, said they wanted to do glowing story on him. Story cast farmer in bad light. Could farmer sue under trespass?
o    Farmer: Had consent, but given under false pretenses , so no consent, no privilege- farm not open to public business, farm is private place; even if consent is OK, consent is exceeded
o    Ds: Consent is consent; w/in scope of consent; didn’t disrupt, damage land; didn’t interfere w/ ownership or possession of land (Desnick); [balance of harm/interests] Food Lion, Inc. v. Capital Cities/ABC, Inc.: Two ABC employees got Food Lion jobs, videotaped bad food-handling processes. Food Lion sued.
o    Initial entry consensual despite being obtained by fraud – no trespass on initial entering; however, trespass occurred after initial entry when they videotaped – this exceeded scope of initial invitation
o    Damages were about $1
Shiffman v. Empire Blue Cross and Blue Shield: Reporters who posed as potential patients could not assert consent as defense to trespass because “consent obtained by misrepresentation or fraud is invalid”
2. Right to Exclude vs. Regulation of the Right of Reasonable Access
–         Majority Rule: Absolute right to exclude – Businesses open to the public may exclude people from their property for any reason – came about as a way to exclude racial minorities from public places.
§ Statutory limitations: CRA of 1964 for race, color, religion, national origin; state laws for gender
o    BUT: Common carriers/innkeepers: Prohibited from all forms of unreasonable discrimination – not just based on race, religion, national origin
§ Rationale: Necessity, monopolies, hold themselves out as ready to serve the public and the public relies on this representation
–         Shack, Desnick, and Uston Take Away Points:
o    What are the interests at stake for each party? Necessity, privilege, what kind of property?
o    Balance the interests between the parties, decide which should prevail
o    The court decides whether to distribute power from one person from another
o    Many times courts are making value judgments
Uston v. Resorts International Hotel, Inc. (N.J. 1982): When property owners open their premises to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably – MINORITY RULE
–         Uston, a known card counter, barred from casino’s blackjack tables. Sues for declaration of rights.
–         Two interests at stake:
o    Right of amusement owner to exclude unwanted patrons and patron’s right of reasonable access.
–         If an owner opens property in pursuit of their property interests, they have no right to exclude unreasonably – they have a duty not to act in an arbitrary or discriminatory way.
o    If a party disrupts a business, causes disorder, is intoxicated, etc. he can be excluded, and, sometimes, property owners have a duty to do that.
–         Reasonableness a case-specific fact determination
–         Casino could be private, have an industry rule against card counting
Madden v. Queens County Jockey Club (N.Y. 1947): D barred P from attending races on belief he was a bookmaker. P sued.
o    Court found right of reasonable access applied to innkeepers and common carriers, not places of amusement and resort, which had the absolute power to serve whom they pleased
§ Legislature barred discrimination on account of race, creed, color or national origin     
A. Claiming Property Rights by Discovery and Conquest
–         2 Philosophies on Law:
o    Rule of positive law: Law that has been agreed to based on process of law formation that has been agreed to; favors law that is predictable; law is a function of consent; law is what people who make laws agreed to
§ Excludes some groups – those who might not give consent; secures power w/ those who create the law, ignores minority rights; custom helps craft it as times evolve
o    Naturalism – Law does not get its authority from what is agreed upon but from what is just/moral – divine source? No consistency – gives judges too much power to decide what the law is based on personal values
§ Morality isn’t universal, indeterminate, changing based on who is deciding
–         Theories of Property Allocation
o    First Possession or Original Ownership – ‘first in time, first in right’ (M’Intosh, Post)
§ Ignores need, use
o    Labor and Investment (Lockean Labor Theory) – Decides ownership of land based on who was the first to occupy the land & make it productive (Palmas)
§ Moral: We want to promote and reward labor, land in state of nature is worthless
§ Utilitarian: Better for society, will lead to more development of land and a more productive society
o    There are situations where we need to preserve land rather than put it to use. (U.S. v. Ray)
o    Some Other Value – Preservation of the family unit (Sawada), social utility, fairness, need (King)
–         Types of Reasoning:
o    Instrumentalism (e.g. Shack) – Doesn’t rely on precedent b/c times change; we should devise a rule that deals w/ today’s problem – 2 steps:
§ Identify a social/public policy goal
§ Craft a rule to best serve that goal
o    Institutionalism: Should it be the court that fixes the problem or is the legislature better served to resolve the Q
o    Formalism: This case would be better decided by the legislature
o    Categorical (e.g. Desnick, Uston) – Positivism, follows black letter law – creates certainty
–         Instrumentalist Goals
o    Utilitarianism: The law should make society as a whole better off; promote efficiency by producing the greatest good for the greatest many
§ Less concerned w/ fairness between the parties
§ Morality/Fairness: The law should promote the fairest result between the litigating parties
§ Green: Maybe we should think about the effects on the environment an

48): Each owner has a right to what they can get from beneath their land so long as they don’t act negligently; there is no right to waste – promotes efficiency, waste reduction – absolute ownership w/ reasonable attachment.
–         D’s well blew out, draining a huge reserve it shared w/ P. P sued for negligence.
–         Reasonable opportunity to produce a fair share is the landowner’s common-law right under Texas’ theory of absolute ownership of minerals in place. No owner, however, should be allowed to be reckless or lawless and submit to limitations necessary for each to get his own.
–         I drink your milkshake – can get the other guy’s stuff w/o trespassing , slant-drilling
C. Claiming Property Rights by Labor and Investment
International News Service v. Associated Press (1918): Quasi-property rights may be invoked to protect against unfair competition by competitors, even when the commodity in question is not “owned” by anyone (like the news). When the news has commercial value, it becomes quasi-property.
–         News has value, AP should get reward for labor, AP deserves reward, credit, INS shouldn’t
–         AP, INS competed, INS pirated AP’s news on the East Coast, sold it to its western papers. AP alleged that the conduct violates AP’s property right in the news and constitutes unfair competition in business.
–         Business competitors have duty to conduct business so as not to unfairly injury the other’s business – majority says Q here turns on unfair competition.
o    Published material loses property interest to the public, but not to competitors – it’s quasi property to them, there is value in misappropriated news.
o    To transfer the news for commercial use, in competition w/ AP, is different than a member of the public doing it.
§ These guys have property rights as to each other, not against the public at large
o    AP has gathered info through organization, labor, skill, money that is salable and has value
§ INS doesn’t have to do these things – it gains an unfair competition advantage
–         If the publication of the news meant AP abandoned it, the AP business model would be untenable.
–         Dissent (Holmes): If not copyrighted, no general right to forbid other people from using combination of words.
o    Thing not property because it has value, it has value because it’s given value by property law
o    Normal misappropriation case.
o    Legislation would be required to fully fix problem – however, the implied misstatement can be corrected by stating the truth w/ acknowledgment of the source.
–         Dissent (Brandeis): News is not copyrighted, so it’s not property, so it’s free for common use
o    That D may do this may be an injustice, but existing rules allow it and the court could only combat it by creating a new rule. A new rule could require machinery of implementation, enforcement – something legislation can deal w/.
o    Institutionalist: Legislature in best position to fix this problem.
–         Ramifications of no protection from majority?:
o    Instrumentalist: News is useful, important, decision here crafts an opinion to keep it going – if majority doesn’t act, AP could disappear
o    It may be – courts probably not as well served to society as a whole
o    Value to gatherers depends on the protection legal system provides for it
–         What would ruling in INS’s favor get?:
o    Would it tell AP to get news to west coast faster, do your job better?
o    If INS’s conduct allowed it could devalue news, keep people out of business, less news, less competition
–         Only where: i) P gathers information at cost; ii) info is time sensitive; iii) D is free riding; iv) D is in direct competition; v) free riding so reduces incentive to do the job it threatens continuation
–         Relativity of title. Does AP have property right in information it has gathered?
o    Judge acknowledges effort deserves some protection, but agrees w/ INS that information, once public, is in public domain – difference is INS’s status
o    AP has limited property right that extends against competitors – it’s not absolute, it’s relative
Moore v. Regents of the University of California (Cal. 1990): A person does not have a property interest in his cell tissue after it has been removed from his body and turned into a patented cell line.
–         Moore’s unique spleen yielded T-lymphocytes in such a quantity that it was valuable to use to make a cell line that has an estimated value of $3.01B. He alleged that his doctor was planning to research the spleen and profit from it w/o his informed consent. Moore wins on the informed consent claim, but not the conversion claim.
o    First in time vs. labor argument
o    Conversion: Unauthorized, wrongful exercise of dominion of and control over another’s property to the exclusion of and inconsistent w/ the rights of the owner.
–         Formalist Arguments:
o    Likeness, privacy: A person does have a right to his own likeness and can sue someone for using his picture w/o consent, products produced from cells are not unique
o    California law: For public health, limited “property” rights in cells once removed
Patent law: Doctors have significantly modified the cells to create a unique cell line – their labor warrants