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

Property – Prof. Baron Spring 2011


[Exam]: 1/3 take home test 2/3 in-class exam
·         For exam: Start w/relationships & disputes!
·         Take home: testing your ability to read cases and understanding its holding and rationale and relating it to other cases you’ve read [synthesis] ·         In-class: know enough law to apply what you learned to new fact patterns
o    Baron does not care about using case names – just give her enough facts
o    There’s a word limit – only use applicable law instead of note-dumping!
o    Use space economically and efficiently – [ie: “this can’t be AP b/c there was consent by owner here…”] [Note: 2 steps à goal step and means step:  identifying social goal is a balancing game amongst numerous possible goals, and one can always identify multiple means to achieve the chosen goal—focus on reasoning in opinion (how it works, different views, why there are different views, and how these are used)]
Grand picture of property:
Most come into property w/intuition that property is about “things/stuff” but property is ultimately about relationships b/w neighbors/families/parent-to-children/husband-to-wife etc.
–          Property disputes arise when there’s some kind of breaking in these relationships or some other human problem that causes dysfunction
–          Examples:
o    formerly good neighbors get into fights over what the other neighbor can and cannot build [Green – mobile home] o    father & son aren’t getting along/mother & daughter aren’t getting along [Carr & ?] o    relationship w/doctor very much influenced by Moore being sick [Moore] o    people are biased and act in unbelievably prejudiced ways and neighbors can agree that they’re going to be prejudice together [Northwestern, Shelley] –          When human problems arise and relationships break down, that’s when people start arguing that property law can try to deal w/this in number of ways:
o    (1) try to solve the problem by definition
o    (2) put people into categories (ie: “LLs have these powers,” “Joint tenants have these powers,” “licensees have these powers” etc.)
o    (3) more modern approach à look for some social goal, something that triggers some larger social good
–          These approaches may or may not tame the messy relationships but one thing is clear:
o    * It’s not about the STUFF, it’s about the PEOPLE!
–          Every time a new situations arises where a new definition needs to be laid out, it’s a crises for prop law b/c it’s not an one size fits all definition

A.    OVERVIEW – THE FUNCTION OF PROPERTY
Property as power: Trespass and the non-absolute right to exclude
·         “Private” Property and the Public Policy Limits on the Right to Exclude
o    State v. Shack (farm worker aids charged with trespass when informing migrant workers about rights)
§  Real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another”
§  Property rights cannot quash another’s individual rights which may diminish his well-being.  Balance the competing needs of the parties, the relationship between the migrant workers and the farmer.  The farmer is entitled to pursue his farming activities without interference. On the other hand, MWs need access to information.
§  “Property rights serve human values. They are recognized to that end, and are limited by it.”
o    Jacque v. Steenberg Homes – (Ps brought suit against D claiming intentional trespass to their land when D plowed a path across their field, over their protests, in order to deliver a mobile home)  
§  When nominal dmgs are awarded for intentional trespass to land, punitive dmgs may also be awarded at the jury’s discretion
§  The court recognized that the interest of a landowner in the right to exclude other from his land as one of the essential property right
·         Property Open to the Public
o    The more private property is devoted to public use, the more it must accommodate the rights which exists in individual members to the general public to use that property
o    Uston v. Resorts Int’l Hotel (Card counter excluded from the blackjack tables in its casino b/c his strategy increases his chances of winning $)
§  Crt held that a card counter has the “usual right of reasonable access” to a Casino’s bj tables where his presence is not disruptive or threatening. The 14th A’s EPC guarantees all citizens access to places of public accommodation

Sources of Property Rights
·         Discovery and Conquest – “first in time, first in right”
o    Johnson v. M’Intosh (P purchased a tract of land from Indians, and US granted title to the land to D)
§  Crts have held that although Native Americans had “possession” of the land on which they lived, they did not have “title” to it, and could thus not convey title. Therefore, a title derived from the fed gov., or from one of the states or colonies, has priority over an earlier purported “grant” from an Indian tribe.
§  In this case, “positive law” (law made by gov/posited by the state) trumps “natural law” (law based upon the natural principles of justice)
§  Justice Marshall states: “the title to a vast portion of the land we now hold, originates in [positive law]. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible w/it.” The law is an instrument of social good and even if it’s unfair to the Native Americans, we have to do this b/c it’s an instrumental goal
§  ROL: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy
·         Capture and Possession
o    In order to own property, you must have possessed it. Mere pursuit is not enough; you need capture
o    We do not have a thorough working definition of possession and possession is not fixed (depends on fact pattern)
o    Pierson v. Post (P put in enormous effort in chasing a fox as part of a hunt; D then stepped in, killed the fox, and carried it away)
§     Held: “Mere pursuit” gave P no legal right to the fox; ergo D had a right to interfere and capture the fox
§     Possession à holding it in your hand/confinement to take their liberty away (by nets and toils)/actual seizure
§  There are two disputes here: (1) certainty and peacefulness v. reducing the # of foxes; (2) if the goal is to reduce foxes, which rule would better serve this goal 
§  Prof: the just thing is not always the legal thing (as we’ve seen in Johnson)
o    Wilson v. Stroup (Willcox, the possessor of Civil War era documents worth $2.4 mil, sought declaratory judgment against South Carolina’s Dept of Archives that he was the rightful owner of the documents)
§  ROL: A rebuttable presumption exists that those in possession of property are rightly in possession, absent evidence of superior title in another
§  Both Pierson v. Post and this case uses the exact same argument: we need to promote stability and protect the public against violence
o     Multiple Possession – where an item has been processed by multiple people and it is unclear who the rightful owner should be, the court will sometimes divide the property btwn the two
o     Popov Case:
§  Popov caught a world-record breaking ball hit by Barry Bond but it was unclear whether Popov had complete control of the ball. A mob of people intervened to get the ball, and the Hidori caught the ball when it fell out of Popov’s grasp. Popov sued to get the ball from Hidori
§  Held: where more than one party has a valid claim to a single piece of property, the crt will recognize an undivided interest in prop in proportion to the strength of the claim; In order to effectuate this ruling, ball must be sold and the proceeds divided equally b/w the parties (ball sold several years later for $450k)
§  Possession à Possession requires both physical control over the item and an intent to control it or exclude others from it; since Popov clearly evidenced an intent to possess the baseball the only q is whether Popov did enough to reduce the ball to his exclusive dominion and control sufficient to create a legally cognizable interest in the ball b/f it was taken
§  Def of possession given by H à possession does not occur until fan has complete control of the ball

·         “Labor” and “Unfair Competition”
o    General rule: if you put labor into something, the more likely it is that you gain a property right. In some instances, the crts will define property interest in part to reward labor, and in part to encourage activities useful to society at large
o    Int’l News Service v. AP (AP sued to enjoin INS from publishing as its own news stories obtained from early eds. of AP)
§  When a news corp. publishes news to bulletins for paying members (not society at large) to distribute, another corp. cannot publish the news for proft and claim it as their own due to unfair competition in business (though the news is not property and does not carry prop. rights)
§  ROL: Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right
§  Court can’t use the reasoning of Pierson b/c there is a corollary rule to the Pierson rule: if you capture a wild thing but it escapes, it becomes common property again and reduced to ownership to whoever captures it again
§  Most important takeaway: property rights are relative and it depends on who you’re talking about (as seen in Johnson)
§  Crt does not discuss whether INS taking the info from AP and producing it to the West Coast constitutes labor
§  The narrow issue in the case: whether the absence of labor from a competition makes the competition unfair
Ø  Prof: this is completely circular – it does not tell us why the presence or absence of labor matters
Ø  If the goal is to produce more news, this opinion = bad
o    Moore v. Regents of the University of Cal (Moore claimed that Dr. Golde wrongfully used cells from M’s spleen and other organs for pecuniary advantage)
§  ROL: A person does not have a property interest in his cell tissues
§  When a person’s tissues are extracted as part of a medical procedure, the patient does not continue to “own” the extracted materials. If a dr. uses those sells for his own personal enrichment, at least one crt has held that the patient does not have a conversion claim
§  Underlying policy = societal interest in advancement of biotechnology research
§  First in time first in right theory wants to give something to Moore
§  Balance b/w personal integrity & importance for medical research; there are different human values out there and they aren’t always consistent w/each other
·         “Need,” “Fault,” and “Family”
o    Under the “equitable distribution” approach, prop is divided b

§  One way to win the balancing game is to frame the interest on your side in a much more abstract way than your opponent; keep characterizing your interest and learn to reframe your interest
o    Fountainbleau Hotel Corp. v. Forty-five Twenty-five (Eden Roc Hotel sought to stop FB from building a fourteen sotry addition to F’s hotel, b/c during the winter months, from around 2-evening, the shadow of the addition would extend over the cabana swimming pool and sun bathing areas of ER. Complaint alleged that it was done w/malice and would interfere with ER’s light and air easement which was a right under FL law)
§  Held: Where a structure serves a useful and beneficial purpose, it does not give rise to a COA, either for dmgs or for an injunction b/c even though it causes injury to another by cutting off the light and air and interfering w/the view that would otherwise be available over adjoining land in its natural state. In this case, the free flow of light and air is not a legal right
o    Prah v. Maretti (P built residence that makes extensive use of solar collectors for energy. D buys the vacant lot next door and proposes to construct a building, which would substantially block the sunlight from reaching P’s collected. D’s proposed home satisfies all current zoning requirements)
§  Held: The private nuisance doctrine should be applied to this controversy and if P can show that D’s building would unreasonably interfere w/P’s use or enjoyment of his prop, P will be entitled to enjoin the construction
§  In determining unreasonableness, the lower court should consider matters as the extent of the harm to P, the suitability of solar heat in this particular neighborhood, the availability of alterative for P, and the cost to D of avoiding the harm
§  How is this case distinguishable from the hotel case? Where a D’s conduct interferes w/a social goal, it is more likely to be termed “unreasonable”
§  Problem: how do we balance the interests out (free use policy vs. efficient energy policy)
§  We see three important things going on here: (1) Rights approach; (2) Policy based approach; (3) Balancing Approach
o    The takeaway: Nuisance law is unpredictable and hard to know; it is also hard to know whether any interference or offending use is going to be held actionable in the next case; Where people are faced w/uncertainty, this is risky b/c people want to protect there interest and since nuisance in not a reliable way, you can turn to other ways (ie: getting into agreements w/your neighbors)
Agreements Between Neighbors [Easements, Real Covenants, and Equitable Servitudes] Easements
·         Creation: To what extent does the grantor’s intent control? Intent governs but we discern intent from conduct
o    Easement: The right to utilize a portion of another’s real property for a specific use (permanently?)
o    Dominant estate: property whose owners benefit from the use of another’s property
o    Servient estate: property that is burdended in some aspect for the benefit of a dominant estate
o    Easement by Prescription – acquirement of a non-fee interest in land by adverse possession (Community Feed)
o    Easement by Estoppel – Crts may prevent a real prop owner from revoking a license if the owner grants the licensee the right to invest in improving prop or otherwise induces the licensee to act in reasonable reliance on the license (kind of like promissory estoppel)
o    Implied Easements
§  Sometimes effectuated by intent of the parties, manifested in their conduct
Ø  2 kinds of implied easements:
a.       Quasi-easements
i.            Easements by implication / easements implied from prior use
Granted only if
§  2 parcels were previously owned by a common grantor,
§  One parcel was previously used for the benefit of the other parcel in a manner that was visible and continuous, AND
§  The use is “reasonably necessary” for enjoyment of the dominant estate
ii.            Easements by necessity
May be granted to owner of a landlocked parcel over remaining lands of the grantor to obtain access to land
§  Underlying policies: (1) to effectuate the intent of the parties; and (2) to promote the efficient utilization of property