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Property I
University of California, Hastings School of Law
Crawford, John

Fall 2011
·         Property = a bundle of rights.
o   Right to exclude others; the right of a person to use it to the exclusion of others.
·         Quiet title actions = any interested person can seek a declaratory judgment resolving a dispute over title to land.
·         Rights in rem = bind “all of the world,” must be respected by all.
o   Generally, property is here.
·         Rights in personam = the behavior of some person; binds only specific individuals.
o   The world of Ks.  
·         Approaches:
o   Essentialist Approach (Penner) – Our property rights are En Rem (Absolute against the world) and we have an absolute right to exclude others.
o   Skeptical Approach (Grey) – “Bundle of Sticks Approach.” We have a collection of property rights, but they are dividable, which is evidenced by multiple parties utilizing the same property (time shares, shopping carts, etc).
·         COA FOR P
o   Trespass to Land: Any intentional intrusion that deprives another of possession of land, even if only temporary.
§  Jacque v. Steenberg Homes, Inc. (trailer over land).
·         Here, the harm was not done to the land but to the right to exclude others.
·         Punitive damages are likely to prevent others from similar conduct in the future.
·         Rationale: reinforces notion that property is exclusionary. Also, encourages people to avoid self-help by utilizing the courts.  
§  Hinman v. Pacific Air Transport (home next to airport).
·         The Ad Coelum Doctrine was meant to be figurative rather than literal.
o   If one owns the land, they also own all below down to the center of the earth, and all above to the heavens.
·         The air, like the sea, is incapable of private ownership, except in so far as on may actually use it.
·         This should be a nuisance claim (enjoyment of land).
§  Remedies
1.      Punitive Damages; OR/AND
2.      Injunction
o   Nuisance Doctrine: A non-trespassory invasion or interference in another’s use and enjoyment of land. Anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable.
§  Generating pollution or making excessive noise.
§  Small object/intangible (sometimes) = nuisance.
§  Big/solid objects that land on property = trespass.
·         Throwing rocks
§  Elements: sdafasdf
1.      Substantial
o   Reasonable person standard?
2.      Unreasonable
o   Balance interest test.
o   Gravity of harm outweighs the social value of the activity alleged to cause the harm.
§  Hendricks v. Stalnaker (septic tank next to water well).
·         Government may determine that comparative rights of two owners.  
·         D’s septic tank next to P’s water well is not unreasonable; interests are equal.
·         Defenses for D
o   A TO’s right to exclude “for any reason or no reason at all” can be limited in the following circumstances:
o   Necessity: Circumstances where one must trespass or convert a chattel in order to prevent injury or loss of life/limb.
§  Ploof v. Putnam (P ship on D’s dock b/c storm; D unmoored, P  injured).
·         Privilege to enter land of another without consent in order to avoid serious harm;
·         Threat of bodily injury not required, but the doctrine does apply with special force to the preservation of human life.
o   Life trumps property.
o   TO retains entitlement, but is no longer protected by rule of exclusion.
o   Intruder must pay just compensation for any damage (not applicable for public necessity).
o   Custom: Right to exclude may be ignored if it is custom to do so.
§  McConico v. Singleton (D hunted on P land, warnings to not; no fences).
·         D not liable for trespass b/c it was custom to hunt in area.
§  Posting Laws
·         1818 S. Carolina
o   No right to exclude hunters from unenclosed, unimproved land.
·         Today
o   Some states have “posting laws,” which permit anyone to hunt on rural land unless “No Hunting” or “No Trespassing” signs have been prominently posted.
o   Why? Economic laws have changed; hunting is more for recreational purposes than for livelihood.
o   East coast: responsibility to fence in livestock/property.
o   West coast: responsibility to fence out livestock/interlopers.
o   Public Accommodations Law: Owner may not exclude others w/o just cause b/c an individual has a reasonable right to property open to the general public.
§  PA is a place open to the general public (hotel, restaurant).
1.      NJ = any property opened to public in pursuit of owner’s property interest (economic interest; casino).  (Modern)
2.      IL = inns and common carriers.
§  Duties on owners:
1.      First come, first served; AND
2.      Reasonable price.
3.      No discrimination on the patron’s race, religion, national origin, or disability.
4.      Exclude someone for security risks/disruption = okay.
§  Uston v. Resorts International Hotel, Inc. (barred casino card cting).
·         Casino could not bar P for card counting b/c it was not a reason recognized by the gaming commission (no just cause).
o   Antidiscrimination Laws:
§  Civil Rights Act (1964):
·         Inns, restaurants, entertainment venues.
·         On the basis of race, color, religion, or national origin.
§  Shelley v. Kramer (neighborhood private agmt to not to sell to blacks).
·         Private agreement with a racially restrictive covenant isn’t unconstitutional per se because it involves no state action.
·         Judicial enforcement of such an agreement does involve state action and is prohibited by the 14th Amendment.
o   Would enforcement of trespass law count as state action?
§  Everyone assumes not.
§  Ct never addressed the ?. (Distinguish Shelley).
·         Coa for p:
o   Repeated Trespasses: Generally, courts will not grant an injunction (an action to stop another party from a particular action) for a trespass. Courts will, however, grant an injunction for repeated trespasses if:
§  Baker v. Howard County Hunt (Dr. shoots fox after trespass/hurt wife).  
·         Rare for mere trespass, but here D had intent to continue.
·         Rationale: costly and time consuming to litigate each trespass.
·         Unleashed dogs are trespass when one has reason to believe they might do damage or if one’s voluntary actions cause/facilitate the dogs being there.
§  Injunction
1.      The remedy at law (money damages) is inadequate
1.      Irreparable harm; OR
2.      Injuries intangible and incapable of measuremen

on v. Post (both parties pursuing and hunting the same fox (unowned)).
§  Rule of Capture: Occupancy requires
·         Possession/capture
o   Deprived the animal of its natural liberty and brought it within your certain control in tangible ways.
§  Rationale: Designed to minimize disputes b/c unlikely that more than one person can claim such possession/capture.
o   Ferae Naturae (wild animals) = acquired when reasonable prospect/reach of taking animal (mortal wounding, trapping).
o   Land Owners = have constructive possession of wild animals that are on their property against a trespasser, even if that trespasser has captured the animal?
o   Ghen v. Rich (whaler killed whale with unique tool = owner).
§  Industry Custom
·         Translate custom into what should count as capture given the nature of the thing at stake and the industry’s dependence on this custom.
§  Rationale: A way to reward and encourage productivity and limit free riders; also minimalize disputes, maintaining social order.
§  Rules
·         Fact-fish Rule (Majority) – when the whale is constructively controlled (held fast to the ship), it is possessed.
·         Sperm Whale Rule – fast iron + fresh pursuit = possession.
·         Finback  = first iron (no need of fresh pursuit) = possession.
o   Keeble v. Hickeringill (used gun to scare away ducks).
§  COA may lie for malicious (and wasteful) interference with prepossesory interest (man’s livelihood).
·         Exception: No COA if it was fair competition (own livelihood).
RULE:  Interference with a business activity becomes the basis for asserting property rights (e.g. “fair competition” policy consideration)
·         Abandoned Property
§  Relinquish ownership (place on gutter for garbage).
§  First person can claim new ownership.
§  Eads v. Brazelton (recovery of sunken steamboat).
·         First owner requires actual possession (make it obvious, mark the territory, etc.)
·         Actual taking + intent to possess + certain degree of diligence in first possession claim.
§  Home Run Baseballs:
·         Balls hit into stands are abandoned property.
·         Ball landing in the glove establishes “exclusive prepossesory interest” to finish the catch (and thus establish possession) without interference.
·         Popov v. Hayashi (Barry Bonds)
o   Both parties had equal superior claim (no malice shown [didn’t mob?]. ball sold and profits split.
·         Lost property
§  Have not relinquished ownership (lost wedding ring on sidewalk).
§  True owner has superior right to lost property relative to everyone in the world.
·         Finder can claim qualified ownership.