Property
Prof. Dolin
Spring 2012
Property rights
Purpose:
i. To give people a “legal title” to “things” and resolve disputes
ii. Changes based on social norms and history.
iii. A bundle of rights, right to use land
What is property?
i. Real property – land or houses on land
ii. Personal property – automobiles, books, clothes, computers and corporate stock
1. Fixture – personal property that has been permanently attached to real property but can be removed. (i.e. dishwasher in a cabinet)
a. Subject to rules of personal property and sometimes rules of real property
2. Tangible property – items (pens, books, etc)
3. Intellectual property – ideas, computer games
iii. Bundle of sticks-you can take one out but the others are still there
1. Right to transfer
a. Real estate transactions, RAP
2. Right to exclude
a. Issues of trespass, adverse possession, house discrimination
3. Right to use
a. Landlord/tenant, nuisance law
4. Right to destroy
5 theories:
i. first in time AKA rule of capture
1. Benefits: time is easily calculated thus reducing the transaction costs, peace and certainty, it encourages development/investment (encourages you to work towards a solution to the problem)
2. Cons: the first person at the property may not be the best at using the land (took to much land to develop), may become anti-environmental if you can grab as much as you can infringing on natural preserves, arbitrary rule – why give it to the first person and not someone who needs it more (the problem with this is any other rule could be just as arbitrary), does rely on power
ii. Labor theory (john locke)
1. Help create the item gives you an ownership interest
2. Benefits: we reward
3. Cons: it’s not easy (how do we figure out how much labor is enough)
4. i.e. eminent domain – government takes the land for a public purpose. Government improves the land for everyone; therefore, they should have the rights.
iii. Utilitarian (wealth maximization)
1. People to use property in the most beneficial way
2. Tragedy to the commons – people chop as much wood as possible even if they don’t need it unless they have a property interest then they won’t abuse it
iv. Personhood
1. emotional aspect of ownership that defines a person; i.e. a wedding ring is expensive and sentimental
v. Ensuring democracy (political liberty)
1. private property makes you less dependent on others
2. everyone has a stake in society so give them property rights
Ways to acquire property (7 ways)
Conquest/discovery–falls under the first possession theory; method of acquiring territory in international law
i. Johnson v. M’Intosh
1. Two entities cannot have absolute right/dominion to the same parcel of land/piece of property
2. You cannot give or sell more than what you have
3. The chain of title. He traces the chain of title (i.e. current owners, US government). To see who owns a piece of property you trace the chain of title
Creation
i. Property in ones persona – property in trademark, intellectual property
1. White v. samsun electronics America inc
a. P has a cause of action under common law right of publicity and the statute.
b. Common law right of publicity:
i. D must use P’s identity
ii. D must appropriate P’s name or likeness to their advantage, commercially or otherwise
iii. Without P’s consent
iv. And results in injury
c. Rationale: Vanna White first possessed her identity and fame. She employed labor and resources in becoming this glamorous and famous therefore she should be able to market her image to different companies. She spent a lifetime making this image and should be able to market it to companies.
d. She owns her image because she created it
ii. Property in ones person
1. Moore v. regents of the university of California
a. Moore could have sued for lack of informed consent or breach of fiduciary duty. However, to sue for conversion, P must show that he owned the cells, and the products thereof.
b. Reasons it is not his property:
i. No case law stating otherwise,
ii. Doesn’t have one right (right to destroy) therefore he lost all his rights, and
iii. The patent doesn’t belong to him because it was the cell-line that was patented, not his own cells
1. Can’t claim an interest to raw material if that raw material was used to build something.
c. CA law limits patients’ interest in excised cells
i. They must be properly disposed of, meaning that once they are excised from the patient, the patient no longer has a possessory interest in them
ii. The patient can refuse consent to excise, but he cannot keep them after they’ve been excised
d. If we extended the conversion law to cover this type of case there would be numerous problems
i. There would be a payout for raw material which would mean that the body would be marketed
ii. This is ok for blood, hair, sperm, etc. because they regenerate themselves – but your organs do not
e. Not allowing patients to have a possessory interest in their excised cells is for the greater good of society in finding a treatment for cancer
iii. Transferability of rights – private places can discriminate, public cannot. NO ONE can advertise discrimination.
1. Jacque v. steenberg homes inc
a. everyone has a right to exclusive use of their own property to the extent that it does not injure others.
b. Right to exclude is seen as the most important “stick in the bundle”
c. Reinforces ensuring democracy theory – in that if we know we can exclude others from out land, we know we have a greater right to that land
d. Damages
i. Punitive – punishment and can be over and above compensatory
ii. Compensatory – reimburse for damages, physical, emotional, exc
iii. Nominal – no damages but there was wrong
e. P received $1 in nominal damages and $100,000 in punitive damages
i. Why so much punitive damages?
1. Maintains and establishes property rights so no one goes on your land.
2. State v. shack
a. Ownership of real property does not include the right to bar governmental services to migrant workers residing therein. Property rights serve human values and are therefore limited by human values. Title to property cannot give the owner complete dominion over everyone who enters upon that property.
b. Congress provided for assistance to migrant workers and barring the entry of persons who would offer such assistance would frustrate congressional intent
i. No legitimate reason to deny entry to people seeking to help migrant workers-residents
iv. Misappropriation
1. A person might invent or create a thing, and be entitled to obtain a patent or copyright under federal law, or a right to sue to prevent its misappropriation. When a P has by substantial investment created an intangible thing of value not protected by patent, copyright or other intellectual property law and the D appropriates the intangible thing at list cost so the P is injured and P’s continual use of the intangible thing is jeopardize an action for misappropriation will lie
2. Cases:
a. International news service v. associated press – intellectual property
i. News is communal, you can’t have property over the news. No one has possession of the history which makes the news.
ii. Courts want to know whether
Keeble v. Hickeringill
a. Ducks are wild animals, communal property. Before the D shot his gun the ducks were not captured and thus not keeble’s possession. They were still communal property.
b. Both prongs satisfied
i. Catching ducks is legal
ii. Ducks on his property
c. Allowed to compete such as building another decoy pond that’s even better, but being malicious about it like firing a gun causes society to suffer, not just Keeble because people buy their ducks from him and now they can’t.
d. Courts consider with the instrumental end of who is going to be better or worse off. They’re not okay with Hickeringill destroying the livelihood of other people because then society was worse off.
Finders (personal property)
i. Rule: a finder of lost property has greater rights to the found property than the whole world except the rightful owner, a prior or rightful possessor, or a person holding through the rightful owner or rightful possessor.
1. Exceptions:
a. Courts disfavor trespassers so a trespasser who finds lost property, abandoned property, or treasure trove will lose out to the landowner unless the trespass is trivial.
b. A finder who is on the premises for a limited purpose must relinquish any found property to the landowner (finder doesn’t have permission to find things and is acting outside the scope of his authorized entry)
c. Employees must give objects to their employers when they are found in a place that isn’t open to the public (i.e. hotel rooms)
d. Objects embedded in the soil belong to the property owner and not to the finder even if the object is foreign to the native soil
e. Objects found on the surface might stay with the finder subject to all the earlier rules that award found property to the owners of the premises or others (mislaid property, private place, residence, limited purpose access, employee)
ii. Categories of found chattels
1. Lost property – unintentionally and involuntary; finder of lost property has greater rights to the found property than the whole world except the rightful owner, a prior rightful possessor, or a person holding for such person
2. Mislaid property – unintentionally left, purposely put there
3. Abandoned property – intent to abandon
4. Treasure trove – owner concealed property in a location a long time ago; belongs to the finder
iii. trover
1. common law action where the P seeks monetary damages for the wrongful taking of personal property
iv. replevin – lawsuit to recover possession of personal property
v. Cases:
1. Armory v. Delamirie—AKA finders keepers
a. Damages – D either has to give the jewel back or pay for the value of the most expensive jewel
b. The ring is classified as lost property therefore the finder has greater title against all the world except for the true owner
i. This is not the best rule because there is an assumption that Armory was the first finder and there was no one who had possession before him except the true owner
2. Hannah v. Peel
a. Under Armory you would think that the finder wins
b. Peel argues that he owns the house therefore he has constructive possession over everything in the house, therefore he is the prior possessor and has greater rights than Hannah
c. Court looks to three different cases:
i. Bridges (finder)
1. The banknotes were accidentally dropped in the shop and the locus owner was neither aware of the notes nor in control or custody of them.
