1. A Guide to the Book – What is Property?; Recurring Themes; and Normative Approaches
a. Why Property? What is It? Do you have any? What purpose does it fulfill? Do we need rules defining it?
i. What is Property?
1. Belongs to one individual, group, gov’t corp, Claimed by someone, Wealth, Entitlement/Privilege, Tangible v. intangible, Right of possession, “Bundle of sticks”’àTaxed to property
2. Property may be a legal fictionàFor something to be property the law has to say so.
ii. Tensions
1. Exclusion v. Access (housing laws, discrimination laws, beach access)
2. Use v. Security from harm (Individual v. neighbor, v. society)
3. Transfer v. Ownership (Restrictions & Conditions, Alienability)
4. Immunity from loss v. Power to Acquire (Eminent Domain , Actions affecting propety)
iii. Bundle of RightsàThree Basic Rights
1. Owner has right to
a. 1. Possession of the thing
b. 2. Use of the thing
c. 3. Alienate or otherwise dispose of the things
d. Noteàno right to acquire b.c. rights attach once have ownership
iv. Sticks in the bundle
1. Right to exclude, Liberty to use and enjoy. Power to transfer, Power to leave to your descendants or any person on earth after you die, Right to be free from damage, Right to be from expropriation
2. How Does One Acquire Property?
a. Discovery, Labor & Investment, Capture, Find, Relativity of Title, Adverse Possession
b. By Discovery
i. Johnson v. M’Intoshà Property Acquisitionà how determine where the title comes from
1. Factsà Johnson inherited land from his father, who bought land from the Indians. M’Intosh later granted title from the U.S. gov. Both sued for ejectment.
2. Hldà Native Americans do not have title to land on which they live; they only have possession (b.c don’t believe in private ownership). Since they do not have title, they cannot convey title to others. U.s gov has title b.c of the discovery and conquest of America by Europeans. M’intosh has superior title.
3. Ruleà apply chain of title (from conquest) not chain of possession
ii. Native American Conceptions & Dwelling Types
1. Land is not fungible and cannot be separated from the self. Built flexible houses that allowed systematic migration.
c. By Labor & Investment
i. What type of property is intellectual property
1. Tangible or Intangible, Ideas (words from own minds), Unique, Inventions, Art/Creativity, original product of one owns work that others value.
2. Common Law protection
a. Copyrightàfederal law protects rights in original works for life of autho 70+years (e.g. books, paintings) (Protects original expressions).
b. Patentsàfederal law protects property rights in certain types of inventions (protects Application of Ideas)
c. Trademarkàprotects words, names, symbols or device used to identify and distinguish products. 10years +renewable for 10 yrs. (Protect Identification of brand).
ii. International News Service v. Associated Press.
1. Fact àthe Associated Press (P) and International News Services (D) involved in the news collection business which is distributed to newspapers around the county. Both parties are in direct competition with each other. D collected news posted by the P on bulletin boards and newspapers and then reproduced it as their own work. (i.e. invested labor & capital when gathering news thus has value thus property ) P sued claiming that this copy of the news constituted unfair competition.
2. HldàThere is a quasi property interest in news collected by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute the news collected by another news collection agency.
a. Noteàif public did this news company would lose b.c public not competing and news is public info.
3. Noteàcan imitate a product unless it would confuse customers about the origin or manufacturer of the product or statutory limits.
a. Problem pg. 144
d. By creation? Or Commodification?
i. Moore v. Regents of the Univ. of Calif. àproperty in genetic info.
1. FactsàMoore (P) was treated by Golde (D) at U.C.L.A. Medical Center for leukemia. D removed blood, bone marrow etc. D then established a “cell line” from the matter taken from P’s body. Regents of cali then applied for a patent on the cell line. Patent was granted. Moore sued for conversion of his bodily fluids.
2. Ruleà no action based on a theory of conversion may be prosecuted where the subject matter of the allegation are excised cells taken from Plaintiff in the course of a medical treatment. The cell line is factually and legally distinct from any part of materials removed from Plaintiff’s body and declined to extend conversion liability in this type of suit. However, that an action may be based on theories of breach of fiduciary duty or lack of informed consent.
3. Dissentà P’s body is unique and based upon ethical and equitable concerns the P should have a proprietary interest in the cells and tissue of his body.
4.
Concurrence. P wishes to have a legally recognized right to sell portions of his body for profit, and such a result is immoral.
ii. Noteàsperm not property.
e. By Capture
i. Pierson v. Post àby capture in the wild
1. Fact: Post hunting fox, then Pierson shots it.
2. Issue: Do post acts constitute occupancyàNo b.c cannot occupy fox
3. Holdingàmere pursuit doesn’t give Post title. Must have shot it injured it etc to have possession. Therefore Pierson wins b.c he killed the fox.
a. Noteà PrioràMortally wound it then its yours. Pursue it with hounds then its yours.
4. Ruleà Capture=pursuit & mortal wounding, pursuit and trapping.
ii. Noteà Un-owned PropertyàCan make un-owned property one own by
1. 1st Possession/Capture
2. By Find
iii. Popov v. Hayashià
1. FactàBall hit Popov glove but lost his balance and Hayashi picked it up. 1ST possessor: major league baseball Popov sues for conversion.
2. HldàRule of capture doesn’t apply from Pierson b.c. each man has a claim to the ball i.e. sell the ball and divide it.
iv. Noteà Subsequent Possession: ways to acquire property from previous owner.
1. Purchase, Gift, Inheritance/Bequest, By Find, Adverse Possession.
f. By Find
i. Common law forms of action
1. Personal property àReplevin &Trover
2. Real propertyàtrespass and ejectment.
ii. Armory v. Delamirie àPossession by find of personal property
1. Factàchimney sweep found jewel and took it to goldsmith who takes out jewels and doesn’t want to give it back
2. Holding: Chimney sweep have superior claim trumped only by the true owner.
iii. Hypoà boy looses watch and 2nd finder claims ownership. Boy sues 2nd finderàboy still have superior ownership. Subsequent owner cant have superior title if prior owner has sufficient title.
iv. HypoàIf boy sold jewel to goldsmith then true owner demands the jewelàTrue owner wins b.c. goldsmith didn’t have true title b.c. have notice that his title isn’t superior to true owner.
v. HypoàIf goldsmith didn’t know that Boy found jewel then true owner demands jewelàgoldsmith claims is that he is a bonafide purchaser thus have superior claim.
vi. Noteàa thief never acquire good title against the owner.
vii. Charier v. Bell àpossession by find of real property
1. Factà digs on plantation at burial site, finds artifacts, tries to sell them but those people then get permission to appraise artifacts.
2. HldàIndian burying something on burial ground which then gets owned by someone else is not abandonment b.c. no intent to allow someone else to acquire goods. No unjust enrichment (b.c. he found artifacts thur his efforts and money) b.c. he was on property w/o owner’s consent.
3. NoteàAbandonment = voluntary relinquish possession & intent to relinquish possession permanently.
viii. NoteàMust look at intent of owner, the nature of the item and the circumstances under which it was found.
ix. Hypo: if Indians didn’t claim artifactsàartifacts would go to landowner if P is a trespasser. If P an invitee then P wins b.c he is the finder. If land owner makes a claim that it is the true owner then land owner would win.
x. THREE categories for lost personal property
1. Lostàowner looking or don’t know it is gone
2. MislaidàLeft w/intent to return. Didn’t relinquish title.
3. Abandoned à Relinquish with intent to leave.
xi. Hypoà Personal propertyà
1. True owner v. Finder
a. Lost of Mislaid propertyàtrue owner May recover from the finder
b. Abandoned Propertyàtrue owner May Not recover since true owner has relinquished her rights.
2. Finder v. 3rd partyàfinder prevails
xii. Hypo
1. Cell phone in charger airportàmislaid.
2. Cell phone on charger but not plugged inàLost (fell out of bag) or Mislaid (forgot to put in bag)
3. Cell phone on seatàLost
4. Cell phone in trashàAbandon or Lost (was in trash in bag when threw out trash)
5. Treasure trove à finder wins as long as not trespassing.
6. Modernàturn over to police then 90days to 1yr to claim after belongs to finder.
g. The Concept of “Relativity of Title” (who has a better claim )
ts & met other elements.
3. The Big Stick in the Bundle — The Right to Exclude
a. Rights of Access to Private Property I
i. Trespassàunprivileged intentional intrusion on property possessed by another.
1. Intent if engage in voluntary actàphysically on land
2. Don’t need to show that trespasser intended to violate the owner’s legal rights. (thus mistake not defense)
3. Property possessed by anotherà ownership, renting, adverse possession, title, relativity of title.
4. Defense àwhere unprivileged not met
a. If consent from owner
i. If exceed the scope of initial invitation.
b. Necessity to prevent serious harm to persons or property
i. But if damage must compensate owner.
c. If encouraged by public policy.
ii. Jacques v. Steenberg Homes
1. FactsàJacques (P), don’t want pple on their land. Their neighbor bought a mobile home from Steenberg (D). SteenBerg tried to get permission from Jacques to cross their land b/c easiest way to deliver the mobile home but P refused. On the day of delivery SteenBerg tried to cross the land and were stopped by Jacques. The then told them to disregard Jacques and cross the land.
2. Hldà Punitive damages are appropriate in intentional trespass cases even if there are no actual damages. Landowners have an interest in protecting his or her land from trespass and the right to exclude others from land is one of the most essential property rights.
3. Policy reasons: deterrence, avoid self help
4. Hypo A (class #5 powerpoint)à
iii. State v. Shackàunprivileged element not met
1. D #1àfield worker for a nonprofit corporationà provide health services of migrant farm workers. D #2à attorney for a nonprofit corporationà provides legal advice and rep. for workers. The two D went to the farm of the P, who stopped them at the entrance. The P offered to bring both men to his office, but the ds wanted to see the men in their living quarters outside the supervision of the P. The P called police and charged with trespass.
2. Hldà Trespass does not include a situation where representatives of recognized charitable groups enter private land in order to provide government aid to those workers who need itàprivate and public necessity.
b. Rights of Access to Private Property II
i. Desnick v. American Broadcasting Companies, Inc.
1. Factsà A producer for tv program on ABC (D) called Dr. Desnick, the owner of Desnick Eye Center (P) and asked permission to shoot footage for an upcoming program. Unknown to P, D dispatched people w/ hidden camera to D to pose as patients and request eye exams. D took the recordings of the patient exams and used them as part of the program. D claims a trespass occurred when the undercover patients entered his office.
2. Hldà Trespass is the interference with the ownership or possession of land and does not include a misrepresentation to enter the land. Thus when posed as patients and got real service and didn’t record other conversation so they didn’t trespass.
3. Noteàdifference bw restaurant critic hiding identity & meter reader impersonatoràwhether its private or public knowledge
ii. Uston v. Resorts Intl. Hotel, Inc.
1. Factsà Uston has a card counting strategy that increases his odds of winning at blackjack. The Resort has excluded him from playing because of his strategy. Uston contends that there is no common law or statutory right to exclude him because of his blackjack strategy.
2. HldàA person has a right of reasonable access to property open to the public as long as the person does not threaten the security of the premises and its occupants and his actions do not disrupt the regular and essential operations of the premises.
