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Property I
Temple University School of Law
Kelly, Alicia Brokars

Overview – The Function of Property
Property as Power
 Private Property [Assignment #1; CB 103 – 116]  
Trespass –unprivileged intentional intrusion on property possessed by another.
Intent – met by any voluntary act [does not require intent to trespass specifically] Intrusion – met the moment the non-owner enters the property
Owner’s Right to Exclude – absolute right to free use of land, limited by certain considerations
Ownership rights limited by the welfare of others [Shack] Trespass only protects narrow property rights [Desnick] 1971, NJ; State v Shack; p.104 [Limits to Owners’ rights to exclude access based on well-being / dignity of others] Migrant workers living on owner/employers land, depicted as a wholly insular group
Govt. aid workers come onto owner’s land w/o consent seeking to provide aid to migrants
Owner sues for trespass
Held – The powers conveyed to property owners are limited by the rights and well being of others
Property owner has rights entitling him to exclusion of trespassers; however
Right to exclude may be limited in certain circumstances
Character of trespassers – government workers pursuing statutory function [vs. solicitation] Purpose of trespassers – visiting resident to provide necessary information [vs. visiting nonresident]  
 Property open to the public [Assignment #2; CB 116 – 132]  
Public Accommodations – exclusion from public accommodations privately held must be reasonable
Acceptable Reasons for exclusion from public accommodations
Disrupt the regular and essential operations of the premises
Threats to security [how does one identify a security threat prior to injury?] Purpose of the Civil Rights Act of 1964
Bar individuals from perpetuating and acting on negative stereotypes in question
Preclude certain value judgments about who is a potential disrupter or threat
1982, NJ; Uston v Resorts International Hotel, p.116 [exclusions must be reasonable] Casino excludes card counter from premises for winning at blackjack
Held – if a place is open to the public, right to exclude may not be exercised arbitrarily
Underlying assumptions of old rule no longer valid
Old Rule (Common Law) – Inn keepers cannot exclude arbitrarily [three underlying assumptions] Monopoly justification – out of date
Necessity justification – out of date
Public reliance on representation – maybe, maybe not
Source of Property Rights
“Capture” and “Possession” [Assignment #4; CB 76 – 83, 87 – 89]  
Possession – First in time, first in right [Actual possession à gray area à Mere pursuit] Deprivation of natural liberty = Possession
Actual possession
Mortally wounding
Reasonable prospect of capture = gray area, not possession under Post
Thesis – promotion of resource expenditure by reward of ‘possession’
Antithesis – we don’t give patents for almost inventions
Mere pursuit ≠ possession [there is no “A for effort” in possession]  
Capture– reducing prepossession to possession [Interrupted by Wrongdoers [Popov]]  Partial Interest – pre-possessory interest by party interrupted in process of capture
Equal Interest – possessory interest by innocent third party
No interest – party who wrongfully interrupts capture
Ferae naturae – property which is un-owned and subject to capture [fox, unclaimed land, subterranean oil fields, etc.]  
1805, NY; Pierson v Post; p.76 [Property by Possession] Post hunts fox; Pierson kills and carries off fox. Pierson was aware that Post was hunting the fox
Held – Title in wild property is acquired by “occupancy” [possession] Actual physical possession [thing in hand rule] is sufficient to constitute occupancy
Depriving animal of natural liberty sufficient to constitute occupancy [Mortally wounding / trapping] “Mere pursuit” is insufficient to constitute occupancy
Instrumental Reasoning
Goal – create bright line rule & promote destruction of foxes [noxious beasts] Means – ruling that you keep what you kill
Dissent – ownership created by “reasonable prospect of capture” [Difficult to apply] This rule lacks the ease of application of the majority’s rule [procedure] This rule seems to provide a more just result [substance] Instrumental reasoning
Goal – create bright line rule & promote destruction of foxes [noxious beasts] Means – incentivize hunting and expenditures required for hunting
2002, Cal.; Popov v Hayashi; p.79 [Pre-possessory interest by Capture] Kid catches a pop fly but drops it as he is mobbed in the stands. Ball is recovered by third party
Held – Party in the process of capture, interrupted by wrongdoers, has a partial interest in property
Pre-possessory interest – partial interest for possession which fails by others wrong doing
Wrongdoers – no interest
Innocent third party possessor – interest at least equal to pre-possessory interest
“Labor” and “Unfair Competition” [Assignment #5; CB 32– 55]  
Labor – Labor instilled in the thing grants a certain measure of property right [INS v AP] Circular argument – “profit by lack of labor is unfair, so lack of labor was unfair”
Labor is one way of acquiring a right in property…not the only way, not in every situation
Labor may be relevant where there is competition
Parental labor obligation cannot be used as public policy shield from employee termination [Uston] Exchange value – is a function of extent of legal protection [more protection = higher value] Circular argument – “property interest exists [legal protection] b/c of exchange value”
Exchange value may be sufficient to grant property; e.g. – patent of accidental discovery [INS v AP] Property does not

land because I believe [wrongly] that it is mine
Tacking – allowing adverse possessor to include previous adverse possession to theirs to meet statutory time [Gobbles]  
1990, Ala.; NOME 2000 v Fagerstrom; p.187 [possession through use as average owner] Π owns title; Δ makes use of land for habitation / Π wants to use land for mineral extraction
Held – Π adversely possesses portions of land used as an average owner of such land would use it
Must establish actual possession [no merely using footpaths] Objective test – did owner act towards land as if he owned it, without the permission of the true owner
1996, W.Va.; Brown v Gobbles; p.179 [tacking] Property dispute between neighbors; the fence between houses is two feet off the property line
Held – Δ may add previous periods of possession by tacking to establish adverse possession
Could have merely established adverse possession of previous owner and conveyance of interest
Standard of Proof – clear & convincing
“Earned” rights and “quiet” title [Assignment #8; CB 191 – 198; 202 – 215]  
Prescriptive Easements[similar to adverse possession] – obtaining non-possessory use rights
Elements [all but one are the same] Use [not possession] Open & notorious [Open & notorious use is presumed to be adverse] Hostile & under Claim of Right
Area Claimed by Use – must prove “general outlines with reasonable certainty” [Community Feed] Exclusivity – Use requirements for Adverse Possession vs. Prescriptive Easements
AP – requires use of an ordinary owner which is exclusive
PE – requires use of an ordinary owner which is not exclusive
Transfer – transfer by owner or by user
Non-possessory interest may be transferred by owner
Transfer of possessory interest does not destroy existing easements
Determination of Nuisance or Prescriptive Easements
Grants power in negotiations between neighbors
1989, Vt.; Community Feed Store, Inc. v North Eastern Culvert Corp; p.207 [Earned Use Right] Π, customers, & delivery trucks use Δ’s land for turning/backing up vehicle
Held – grant Π an easement of access [use] Rule – “Where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue.”