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Property I
University of California, Hastings School of Law
Depoorter, Ben W.F.

Property outline

Forms of Acquisition

I. Ownership by capture

A. First in Capture – Title goes to person who captures something

– Used much less seldom today. It created a collective action/tragedy of the commons.

– i.e, crude oil customs lead to inefficient drilling + tragedy of the commons. Same w/water

a. Pierson v. Post

i. Ferae naturae – animals in the wild, if not on owned property, “fair game”

ii. Ratione Soli – “according to the soil”, if ferae naturae belongs to landowner

iii. Constructive possession – actual, legal possession (not physical)

Kill + capture = constructive possession

iv. Rational: peace + order, manage wildlife pop, reward labor & expectations

b. Popov v. Hayashi

i. Control vs. intent to control – purposeful or incidental contact– full control, continuum in capture leads to conversion of title, possession.

ii. Popov had pre-possessory interest if actor takes significant but incomplete steps to achieve possession but is interrupted by illegal acts of others.

iii. Gray’s rule –control and capture for possession – ball possessed when momentum is stopped & complete control achieved

iv. Conversion = wrongful exercise of dominion over property of others.

v. Court decided that the property should be equitably divided among parties. Ex ante effect.

B. Law and custom

a. Ghen v. Rich – for P, court followed whaling custom, to protect industry, labor

i. However, custom can be inefficient, create “tragedy of the commons” (overwhaling), overinvestment, collective action problem

ii. Custom can be: source, substitute, or antagonist (i.e., file sharing.

Problems: Inefficient, distribution costs, information costs

b. Ellickson “Order without Law: How Neighbors Resolve Disputes”

i. Open range system in one county (Shasta Cty) vs. closed range

ii. Norms became substitutes for law

C. Trespass

a. . Keeble v. Hickeringill

i. Under ratione soli, constructive (physical not needed) possession

ii. A violent/malicious act to harm person’s business is considered an action of trespass – protects labor. Competitive action = good.

b. “Whale Wars” –

i. This may be vigilante justice and the whaling ships are breaking international law, so the “malicious intent” factor is more grey.

D. Discovery – not first in time

a. Johnson v. M’Intosh

i. Discovery – rights to subjects under Christian rule to extinguish Native American title of occupancy

ii. Quiet Title Action – establish ownership and “quiet” any challenges/claims

to title

II. Ownership by Find – lost, abandoned, “treasure trove”, mislaid property

A. “Finders Keepers”

1. Lost: involuntary and accidental

“The title of finder is good against whole world except true owners & prior finders”

Includes stolen property

a. Armory v. Delamirie

i. Protects first finder/bailor

ii. Subsequent possession

iii. Trover – sought damages, waives right to obtain return of goods (vs. replevin, for goods)

iv. Information-forcing rule: maximizing damages to discover

b. .Anderson v. Goulding – P trespassed, gained logs, put labor into them, for P

2. Abandoned: owner lets it go, clean title to finder

3. “treasure trove” – element of antiquity

MOST OF THE TIME, it is considered mislaid in nowadays

a. Columbus-America Discovery Group v. Atlantic Mutual Insurance Co

i. Law of Find v. Maritime Law – applies maritime law (like Ghen) – for public policy reasons

ii. Law of salvage – full control of ship, Columbus gets (large) finder’s fees and passenger gold/possessions.

B. “Finders Weepers”

1. Mislaid property: voluntary, but forgot where/after placing – finder has no rights

* ‘The title is good anyone except the true owner, and the owner of the premise upon which item was found’ (ratione soli)

a. . Benjamin v. Lindner Aviation – classification differences, lost, mislaid, abandoned, treasure trove?

i. As mislaid, went to owner of property it was found on: State Bank

b. McAvoy v. Medina

i. Weakness: relies on honesty of owner of property where chattel was mislaid, no incentive to finder

C. Goals of “ownership by find”

i. Attach value to finding it first. Encourage people to find

ii. Peace + order in society. “Presumption of title”

iii. Possession is a good way to establish ownership

III. Bailments

– Common law: physical possession of property is transferred from one person (bailor, prior possessor) to another (bailee)

– Possession without being true owner, given for a limited purpose

– Only transfers possession, not ownership

– Three types of agreement bailment:

a. Mutual benefit (i.e., valet, repair persons), use “ordinary diligence”

b. Bailor benefits, bailee acts gratuitously (i.e., finder of lost property)

i. Limited liability – slight care, responsible only for gross negligence

ii. Involuntary bailor – someone who possesses something involuntarily. Most finders. No carrot or stick. Liability – only slight care is required – i.e., Curb Your Enthusiasm example

c. Bailee benefit, bailor acts gratuitously (i.e., a library)

i. Strict liability – use extraordinary care

IV. Ownership by Creation

Balance between…

a. Sort of Lockean philosophy:

Investing in labor/ rewarding labor à incentive to create.

i. The incentive is copyright/patent – a limited time for creator to have exclusive monopoly + recoup costs/profit

ii. Problem: where to start/end. Mixing your labor does not mean you gain rights over it (tomato soup in ocean)

b. Limited duration of copyright and “Progress”

i. Congress: “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (INS v AP 58)

ii. Otherwise, a “tragedy of anti-commons”, too difficult to gain access to information, slows progress

A. Copyright

1. “Original Work”

a. Feist Publications v. Rural Telephone Service Co

i. To be copyrighted, it must be original work to the author

ii. It must be independently created

– facts are not copyrightable, but compilations of facts are

iii. It must possess some minimum degree of creativity

– Needs to be tangibly expressed

iv. “Sweat of the brow” – copyright as a reward for labor (for compiling facts) (court dismisses)

b. Brandir International v. Cascade Pacific Lumber Co

i. Conceptual separatability – Constrained by functional concerns in creating a “work of art”?

If so, it is no longer art and not copyright-protected. If it is functional, it might be patentable.

c. International News Svc v AP

i. Commercial value lies in timeliness (also see NBA v. Motorola)

ii. “Quasi property right” in news. Not facts, but in compilation, author’s choice and arrangement of words

iii. “Unfair competition” – property right b/t competitors, injunction for AP until news no longer valuable

d Three Boys Music Corp v. Michael Bolton

i. Extrinsic – concepts underlying work, analytical dissection of work, needs expert testimony

ii. Intrinsic – “whether ordinary, reasonable person would find the total c oncept + feel of the works to be substantially similar”

iii. Here, “subconscious copying” – still liable. Cannot say you did not know.

e. Baker v. Selden

i. Book is copyrighted. System described in the book is not protected under same copyright.

ii. Idea-expression dichotomy/conceptual separability

Idea of the work and the expression behind the work merge together, that is, become inseparable, and as a merged component, become unprotectable under copyright law (merger doctrine)…in this case the copyright on book did not extend to system/method (ideas) in book

2. Right to Publicity (copyright)

a. White v. Samsung

i. Right of publicity – strongest in CA, then NY – states rights v. constitutional. Ii. Slippery slope- should celebrities have rights over something as broad and amorphous as “identity”?

iii. Right to protect commercial interests. Not property right, interferes with property right

b. Midler v. Ford Motor Co,

i. Two components: the recording, attributes of the artists – distinctive voice of singer, can be copyrighted

ii.This means copyright is “divisable” copyright (recording, “identity” of singer) – makes interests squishy

3. Derivative Works (copyright)

a. Anderson v. Stallone

i. Derivative work

– you add your original part, that part does not matter. Still violating copyright. (Tomato soup in ocean)

– 17 U.S.C. §103(a) The subject matter of copyright….does not extend to any part of the work in which material has been used unlawfully.

ii. Ideas not protected by copyright law, only the expression

4. Fair use (exceptions to copyright)

a. Elements of copyright v. fair use

There is effect of uncertainity in fair use – greater r

y imply ownership.

– Hostile: adverse, without owner’s consent

2. Why? To reward labor (Lockean theory) and reliance, punish absentee landowners, ‘wash over’ title errors/quiet old claims

3. How to stop adverse possession? During the prescription period (time period that you are able to claim your land back, before it comes AP’er)Break continuity – file for ejectment. Or “open and notorious” reentry of property, to establish reclaiming.

4. Cases

a. Nome 2000 v. Fagerstorm

i. Land use was: open (recreational use), continuous, actual, notorious, issues with exclusive (allowed others to use) and hostile elements

ii. Intend or belief of adverse possessors is not necessary for the “hostility” element

iii. Land that is used seasonally or not significantly built upon can satisfy “continuous” element if that is what average owner would do.

b. Van Valkenburgh v. Lutz

i. Color of title – refers to claim founded on written instrument or judgment or decree that is for some reason defective and invalid.

Can permit adverse possessor to lay claim to property beyond actual possession/use – if they have deed to part but color of title over whole, may gain whole.

Also, the adverse possessor may appear to possess title, but it doesn’t give AP’er title.

ii. Conflict in good and bad faith

Good faith: belief (s)he has title, (the garage encroachment)

Bad faith: intend to claim land as yours while knowing that it is not (the shed)

iv. Courts decided that improvements to land were not significant enough – Not “open”, “actual”

c. Mannillo v. Gorski

i. Small encroachments cannot be notorious. TO cannot have actual knowledge of possession, AP doesn’t have hostility

– Usually comes back to notice

ii. Resolved in usual way this type of dispute it – payment of fair value.

d. Howard v. Kunto

i. Tacking subsequent adverse possessors to satisfy “continuous” element

– Requires privity between subsequent adverse possessors.

– Right to transfer based on labor theory of value

e. Marengo v. Ross

i. Problem with “open and notorious” elements – in discovering if land is adversely possessed

C. Chattel (personal property)

Due to nature of item, “open and notorious” AP more difficult to prove.

a. O’Keefe v. Snyder

i. Discovery rule – cause of action will not accrue until injured first discovers, or by reasonable intelligence and diligence, should have discovered, that item is missing and identity of possessor – must begin to use due diligence to recover.

Rule sets out that the conduct of the owner (not the possessor) is controlling. The discovery rule puts the burden of showing due diligence in trying to recover the paintings. (So, if she has not shown due diligence the statute of limitations runs when the paintings were stolen)

ii. If art stolen, thief doesn’t have good title (title is voidable) and cannot transfer title.

….thief can gain title if statute of limitations ends

b. Erisoty v. Risik

i. Due diligence extends amount of time that TO is protected.

c. Menzel v List

i. Proper measure of damages: value purchaser would have obtained if sellers conveyed good title – interest runs from date when purchaser’s possession disturbed. Punish thief, protect good faith purchaser.

ii. Doctrine of relation back + Demand and Refusal – the good purchaser is awarded based on current market value, to be paid by thief.

d. Solomon R. Guggenheim v Lubell

i. Defense of Laches: the claim was left too long, plaintiff failed to use due diligence in trying to recover painting

ii. Laches = “extreme sleepy behavior”

Lowest: SOL, discovery, laches + demand and refusal