PROPERTY OUTLINE
I. Bundle of Rights
ú Property ownership is a multitude of rights that shifts through time and people. Property rights are NOT absolute.
1) Exclude – balance societal interests, think easements. One of the most essential sticks.
2) Transfer – can gift, inherit, or “devise” property, estate, and sale
3) Possess – legal title over the property
4) Use and Enjoy
5) Free from Damage
6) Free from Expropriation – when others try and take possession over property without owning the land
II. Theories to be Encountered
§ Property à relationships among people
§ Property exists because of a State
§ Locke’s Labor Theory – property exists because of labor
§ Ownership
§ Communal v. Private Property
§ Social Context Matters
§ Utilitarianism – cost/benefit analysis
§ Republicanism – property related to citizenship, if we all own private property we will all be more invested in our society – that’s why we should all have access to ownership
§ Justice & Fairness
§ Natural Law – property based on nature of human beings
III. Possession
A. “First possession”: Acquisition by discovery, capture, creation and conquest
1. Acquisition by “discovery” – the first person in possession is the first person to find the unknown/unchartered land.
2. Acquisition by capture
a. Rights to:
i. Animals – Capture is the rule. Pursuit with reasonable expectation of capture is not enough.
ii. Oil/Gas – Capture is the rule. Property goes from the core of the earth to the sky. Cannot build a rig to go into someone else’s land, but can dig on your own land to dig up what’s there.
iii. Water
A. Groundwater (well water)
ú English Rule – Capture
ú American Rule – Capture but with reasonable use. Capture what you can, but if you take too much to the point where it is detrimental to your neighbor, may be liable for that.
B. Surface water (streams, rivers, brooks)
ú Prior Appropriation [West] – first in time/the first person who gains title. Must use stream water for beneficial use (usually for development). Forces consumption.
ú Riparian Rights [East] – if your land abuts a brook or river, allowed to use, subject to the rights of other riparians.
b. Law of Accession – if taken mistakenly but since then the efficient use of the property and value increases, it is yours to keep, but you need to compensate the original owner. If taken intentionally, not rewarded! [Canvas, Painter] Labor convert’s P’s canvas into D’s property. Concept mixes with Utilitarianism.
c. Law of “Externalities” – grounded in economics. Private property came to exist because people who share resources will use them as long as the value is of most benefit to them. Lowers the cost of negotiation. On the other hand: underutilized resourcing can have a negative impact.
3. Acquisition by creation
First possession through creation. Very little protection to intellectual property unless protected by constitution or statutes:
a. Copyrights [Constitution] – arts, books, paintings. Concretes and tangibles, not ideas.
Life of creater + 70 years
b. Patents – inventions.
20 years
c. Trademarks – words, symbols, names and devices. Grants the exclusive right to use.
10 years (+ renewal option)
INS v. AP
§ News is a “Quasi Property Right”
§ Conflict: rewarding labor vs. protecting resources legally obtained
§ Majority rewards AP [labor] b/c they spent time and effort and money.
Cheney Bros. v. Doris Silk
▪ Copying silks OK because builds on existing ideas
▪ At the time of the case, designs could be copied without legal sanctions. Imitation and copying are commonly allowed UNLESS we have a copyright or some statutory enactment. Public has a strong interest in imitation – competition/efficiency/low prices.
▪ Cloth designs = matter of utility or functionality. Not a mode of expression
MGM Studios v. Grokster
§ One who copyright infringes with the object of fostering infringement shown by clear expression will be liable for the resulting acts of infringement. Not required to have actual knowledge of specific instances.
4. Acquisition by conquest – Taking land by force. Ex. War
People become attached to the land and have an expectation
to own the land. If relying, want to reward that.
Two types of AP:
1. satisfy CANE to get the own whole bundle of rights for the property; or
2. easement by prescription – satisfy CANE to show gaining a right of way through someone else’s land by continuously using it.
a. Lutz
b. Manillo v. Gorski
2. Adverse possession against the government
Traditionally never did, b/c of the notion that the crown owned all the land. Some states have said that you can ad against the govt but we’ll make the statute of limitations longer.
Utilitarianism applies – if the govt is failing to exclude ppl and fails to develop the land, and someone else is on the land making use of it, then they are going to recognize it.
a. Howard v. Kunto
DISABILITIES HYPO:
HYPO 1: O owns Blackacre in 1980 and he is only 5 years old. A enters adversely in 1980. In 2005, O becomes mentally ill and dies intestate [without a will]. O’s heir is under no disability. The age of majority is 18. When does the AP acquire title to Blackacre? [consider that in this jurisdiction, the SofL (21 years) is tolled during the life of the disability.]
How to break down disability
¡ 1980:
O is 5 and therefore under the age of majority
A enters adversely onto Blackacre
¡ 2005:
O becomes mentally ill
O dies intestate
O’s heir under no disability
Possible Scenarios
Disability (minor) that existed in 1980 would be removed in 1993.
§ 18-5 =13 years
§ 1980 + 13 years = 1993
§ 1993 + 21 years =2014
¡ If no disability in 1980, AP would acquire title in 2001. (S of L = 21 years)
¡ Therefore, will not acquire title until 2014
3. Underlying Theories of Adverse Possession – what justifies turning a trespasser into an adverse possessor?
