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Property I
University of California, Hastings School of Law
Williams, Joan C.

Property Outline
Origination and Relativity of Title
I. Republican Image of Property
                a. Jefferson-Egalitarian
                b. Elitist Strain
II. Liberal Vision of Property
III. Indian Title / Title by Conquest
IV. Labor and Investment
                a. Property rights through labor
                b. Rights limited by human dignity
V. Possession
a. Wild Animals
b. Oil and Gas
c. Water
d. Finders
VI. Relativity of Title
Formalistic Reasoning – defining a box with rules, and making sure things fit into the box.
Functionalist Reasoning – looking at society’s needs and forming a resolution around them.
Judicial Notice – court introduces evidence on its own…evidence that “everyone knows”.
Arguments Toolkit – p. 827 / Just updating / Metaphor shopping /
I. Republican Image of Property
§         U.S. 1st Republic since Rome
§         Group of citizens bound together, who have sufficient property, can have virtue to pursue the common good.
§         “Citizens” must be independent – dependence leads to pursuance of narrow self interest
a.   Jefferson-Egalitarian Strain
§         Citizen should have right to sufficient property to pursue common good.
§         Expressed in Homestead Acts – 160 acres to anyone
§         “Give property to everyone”
b. Elitist Strain of Republican Imagery
§         “Voting” for the rich
§         Only those who possessed land were “citizens”
II. Liberal Vision of Property
§         Property is a pre-social right, stemming from labor
III. Indian Title / Title by Conquest
§         Johnson v. M’Intosh, Tee-Hit-Ton, Oneida Cases
IV. Labor and Investment
a. Property rights through labor: International News Service v. Associated Press
§         Property is a set of rights that differs based on relationships between parties.
§         AP had no right in published materials vis-à-vis the public, but did against other news agencies (INS).
§         Example of liberal property view – derived from labor in gathering / assimilating news.
1.   Common law of misappropriation
§         P gathers info at a cost
§         Info is time sensitive
§         D’s use is “free-riding”
§         Direct competition between P and D
§         Protection necessary for incentive to produce
NBA v. Motorola: NBA had right to distribute its games, but had no rights in facts arising from the games.
b. Rights limited by demands of human dignity: Moore v. Regents of U.C.
§         No property rights in cell tissue
§         Doctors created property right in products of Moore’s basic tissue by virtue of labor/innovation.
§         P’s action would have been in malpractice/informed consent, but not in property.
V. Possession
                a. Reducing common property to individual property: Pierson v. Post
§         Liberal vision of property
§         Property by occupancy à Formalistic reasoning: defining occupancy and seeing whether or not case fits into that box.
§         Versus functional approach, which designs a rule based on what society needs.
§         Occupancy: pursuit alone is not enough, actual corporeal possession is. Must have “unequivocal intention of appropriating.”
§         If trespass to capture, landowner may have superior right to animal
b. Oil and Gas: Elliff v. Texon Drilling Co.
§         Law of capture: rights to oil are usually obtained by party that withdraws it from the ground. This absolute right of capture is qualified by reasonableness in Eliff.
§         Where the withdrawal of oil and gas does not constitute reasonable and legitimate drainage, the rule of capture does not apply and liability may be applied.
c. Finders: Charrier v. Bell
§         Was property lost? Only owner of original title can override that gained by possessor.
§         Was property abandoned? Owner gives up title, subsequent finder becomes true owner. Ownership through occupancy = where property belongs to no one, first to possess with intent of acquiring right of ownership is the owner.
§         Finder vs. Landowner – Was finder a trespasser? Landowner owns property found. Finder had permission? Courts divided as to ownership.
§         Was it a treasure trove (money intentionally buried for later recovery)? If YES, finder gets it, unless trespasser.
§         Indians in Charrier didn’t abandon property à never surrendered title to subsequent finders.
§         Policy consideration: burial sites are not “abandoned” or “treasure trove” because this would encourage speculation and despoilment of burial grounds.
IX. Relativity of Title
a.       Prior peaceable possession: Tapscott v. Lessee of Hobbs
§         Cobbs possessed land for long duration of time, never had valid title.
§         She could not prove her title, but had peaceable possession prior to that of Tapscott.
§         Where neither party has valid title – “the law protects prior peaceable possession against all except him who has the actual right to the possession, and no other can rightfully disturb or intrude upon it.” à this is to avoid endless litigation between 2 parties neither of whom could prove a greater right to property otherwise.
“Although A may prevail over B, O would prevail in a dispute with A. A’s title is not absolute but relative”.
X. Personal Property
a.       Was property stolen? Thief generally has no right to transfer title to 3rd party – one can pass no greater title than one has.
b.       Exception: thief sometimes has power to vest title in a bona fide purchaser, or “voidable title”. 
                                                §         UCC § 2-403(2): bona fide purchaser prevails over true owner when:
1.       True owner has entrusted the property to merchant who regularly deals in such goods
2.       Merchant sells to innocent 3rd party
Property O

e either way.
Traditional Rule: Disregarding reasonable access: Nation and Brooks (p. 125).
Where this rule is applied, O may exclude as long as not based on:
                                                               i.      National origin
                                                              ii.      Race, color, creed or sex
Argument is that it is self regulatory b/c business do not want to exclude people for no good reason – economic argument.
V. Public Accommodations Statutes and Antidiscrimination Policy (pp. 130-131)
Property Outline
Relations Among Neighbors
I. Adverse Possession
                a. Elements
                b. Border Disputes
                c. Color of Title
                d. Squatters
                e. Prescriptive Easements
                f. Improving Trespasser
                                i. Relative hardship
                                ii. Unjust enrichment v. forced sale
                g. Boundary Settlement
                                i. Oral Agreement
                                ii. Acquiescence
                                iii. Estoppel
                                iv. Dedication
                h. Adverse Possession of Personal Property
II. Nuisance
                a. Land use conflicts among neighbors
                b. Water rights
                c. Nuisance
                                i. Use and enjoyment of land
                                ii. What is “unreasonable” land use?
                                iii. Light and Air
III. Servitudes – Easements
                a. Easements created by implication
                                i. Estoppel (Irrevocable License)
                                ii. Constructivce Trusts
                                iv. From prior use
                                v. Easements by necessity
                b. Easements created by express agreement
                c. Ambiguous easements: Scope and Apportionment
                                i. Appurenant Easements
                                ii. Easements in Gross
                d. Modifying / Terminating Easements
IV. Servitudes – Covenants