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Property I
University of California, Hastings School of Law
Leshy, John D.

Topic 1 – The Right to Exclude
Kaiser Aetna v. United States (USSC): The right to exclude is an essential feature of property.
Jacque v. Steenberg Holmes, INC. – page 89
Facts: Homes needed to deliver a mobile home.  They had two options: (i) cut across Jacque’s land; or (ii) deliver down an extremely curvy private road that was covered by 7 feet of snow.
Issue 1: Whether punitive damages can be assessed in the absence of actual damages
Issue 2: Whether there is an inconvenience defense to the law of intentional trespass
Rule 1: Punitive damages may be awarded at the discretion of the jury EVEN in the absence of actual damages
Rule 2: There is no inconvenience defense; It does not follow that the act was necessary merely from the fact that the alternative was inconvenient
Policy 1: Protect property rights of others and the integrity of the legals system.
The US Sup. Ct. recognizes the right to exclude as “one of the most essential sticks in the bundle of rights of property ownership” (Aetna).  Yet a right is hollow when the legal system fails to provide a means of enforcement.
The court awards punitive damages to protect the most essential property right and the integrity of the legal system
State v. Shack page 90
Facts: Plaintiff owned a farm that employed migrant workers.  As part of their compensation, the workers were provided with on site housing.  Defendants, Shack and Tejeras, are government aid workers for organizations designed to provide assistance to vulnerable members of society.  Defendants entered plaintiff’s land against the latter’s wishes to deliver aid to certain migrant workers.  Plaintiff filed suit for intentional trespass.
Issue: Whether a land owner has the right to exclude government workers from providing aid to vulnerable people who are effectively isolated from society at large.
Rule: The ownership of real property does not include the right to bar access to government services available to migrant workers and hence there was no trespass within the meaning of the penal statute.
General Rule: Necessity, private or public, may justify entry upon the lands of another
Policy: Property rights serve human values.  They are recognized to that end, and are limited by it.  Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.  Their well-being must remain the paramount concern of the law.
Authority deferred to: Title III-B of the Economic Opportunity Act of 1964 for “assistance for migrant and other seasonally employed farmworkers and their families…”
Maxim of property law: one should so use his property as not to injure the rights of others.
Fashion Valley Mall, LLC v. National Labor Relations Board, handout #1 pg3
Facts: A labor union distributed flyers in a private mall that were adverse to the interests of one of the mall’s tenants.  The mall has a policy prohibiting expressive activity that “encourages in any manner, customers not to purchase the merchandise or services offered by any store in the shopping center”
Issue: Whether the mall’s policy violates the right to free speech granted by article I, section 2 of the California constitution
Rule: The shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the CA constitution.  Shopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall.
Principle: “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it” USSC
Marsh v Alabama: promulgated the idea that private property can constitute a public forum for free speech. 
Test: is the property accessible and to be freely used by the public and is there nothing to distinguish it from any other public space other than the fact that the title to the property is privately owned.
Dissent: it is wrong to compel a private property owner to allow an activity that contravenes the property’s purpose
Topic 2 – Property Rights in One’s Person
Moore v. Regents, Page 70
Facts: Plaintiff sought medical treatment at Hospital.  Defendant doctor realized plaintiff’s cells were unique.  Doctor and defendant hospital used plaintiff’s cells without his consent.
Issue 1: Whether the taking of plaintiff’s excised cells without his permission amount to unlawful conversion
Whether plaintiff continue to own his cells followeing their removal from his body, at least for the purpose of directing their use.
As a general rule, there can be no conversion when the plaintiff has no title to the property or possession thereof.
Did plaintiff have an ownership in his excised cells
Majority: NO, for three reasons:
(i) No common law support;
(ii) California statutory laws limit any continuing interest in excised cells; and
(iii) the subject matters of the Regent’s patent – the patented cell line and the products derived from it – cannot be plaintiff’s property
Issue 2: Whether conversion liability should be extended to these facts
Response: No, it is inappropriate to impose liability for conversion based upon plaintiff’s allegations for three reasons:
(i) a fair balancing of the relevant policy considerations counsels against extending the tort;
Relevant policies: (i) the protection of a competent patient’s rights to make autonomous medical decisions; and (ii) the desire to not threaten innocent parties who are engaged in socially useful activities with disabling civil liability suits.
(ii) problems in this are are better suited to legislative resolution; and
(iii) the tort of coversion is not necessary to protect patient’s rights
Plaintiff’s already got a cause of action: The fiduciary –duty and informed-consent theories protect the patient directly, without punishing innocent parties or creating disincentives to the conduct of socially beneficial research
Holding: The use of excised human cells in medical research does not amojunt to a conversion
Policy doing the work: The extension of conversion into this area will hinder research by restricting access to necessary raw materials.  This theory would threaten to destroy the economic incentive to conduct important medical research.
Dissent on Moore (Mosk)
Why not just recognize his right, but then place proper restrictions on it; not all property ownership comes with the same bundle of sticks.  Owners of various forms of personal property may likewise be subject to restrictions on time, place, and manner of their use.
The sources the majority cites does not support their argument
It is not true that human organs and blood cannot be legally sold under the Uniform Anatomical Gift Act (UAGA, Health and Safety Code).  The section of the act cited by the majority simply says that organs can’t be sold for the purpose of medical transplant.
The legislature was particularly concerned about the consequences that would follow from a for profit organ transplant industry
This concern does not apply to the sale of blood and organs for the purpose of medical research
On majority’s remedy: the remedy offered by the majority is largely illusory.  As a practical matter it may be difficult to recover on this type of negligence theory because the patient must prove causal connection between his or her injury and the physician’s failure to inform.
Two barriers to recovery:
(i) The patient must show that if he or she had been informed of all pertinent information, he or she would have declined to consent to the procedure in question
(ii) The patient must also prove that in the same circumstances no reasonably prudent person would have given such consent
Policies: Society values fundamental fairness and condemns unjust enrichment.  This is particularly true when parties are not in equal bargaining positions.  The defendant’s acts were inequitable and immoral.
Law of accession
The law of accession applies when one person adds to the property of another either by labor or labor and new materials.
A person whose property is taken and used by another is always entitled to the value of the property taken
Topic 3 – Acquisition by Capture
General rule of capture: A person who first captures otherwise unowned resources is entitled to the resources.  Ownership of an object is obtained by whomever is first to capture said object.
Capture of wild animals:
General principle: Mere pursuit is insufficient to establish occupancy
(a) Wounded or trapped animals: If a wild animal has been mortally wounded or trapped so that capture is practically certain, it is treated as captured.
(b) Escaped animals: The original captor loses possession once a previously captured animal escapes.
Ratione soli: Under ratione soli, a land-owner is said to have possession, albeit constructive possession, of the wild animals on their land.  Under this view, landowners are regarded as the prior possessors of any animals ferae naturae on their land
Constructive: a legal fiction that pretends that some condition exists when it actually doesn’t
Ferae naturae: wild animals
Pierson v Post, Page 18
Facts: Post, out hunting with his dogs, was in hot pursuit of a fox on “waste” land.  Pierson swooped in and snatched the fox just as Post was descending on his prey.
Issue: The issue is whether Post had a property interest in the fox by virtue of his hot pursuit and perhaps imminent capture
Rule: Property in animals is acquired by occupancy only.  The condition of occupancy is established when a hunter continues their pursuit after inflicting a mortal wound on their prey.
Policy: the above rule will provide not only certainty, but will also preserve peace and order in society.
Dissent (Livingston)
The court should formulate a rule that will maximize the destruction of such animals.  The current rule will disincentivize hunters from investing in the practice.
Dissent’s Standard: Occupancy consists of a reasonable prospect of taking the object of his discovery with an intention of converting it to his own use.
California Statute
Civil code, section 656: Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued.
Occupancy theory and the principle of first in time
The theory of first possession dates back to Roman Law and influenced Grotius and Pufendorf.
Grotius’ views
The riches of the earth were initially held in common.
Grotius thought that greed would lead to scarcity of resources and that private property rights would be necessary to preserve the peace.
Private ownership was thought to be established by both explicit agreements and those implied by occupation; it was to be “supposed” that whatever each person had taken possession of should be that person’s property.
The institution of private property protected men’s natural equality of rights. 
Everyone had an equal right to grab
The institution of property was an agreement among men legalizing what each had already grabbed, without any right to do so, and granting, for the future, a formal right of ownership to the first grabber.
While “original possession” is a good positive theory, its original formulation was lacking in normative force
Labor theory of value, John Locke, page 14
Locke brought greater moral weight to the concept of occupancy by integrating it into his theory of labor.
Issue: Why should people have a right to own something they possess before anyone else (first possess)
Premise 1: Locke believed that every man has property in his own person and that he has a right in what he produces.
Premise 2: Everything in nature is up for grabs.
Conclusion: By taking something from nature and modifying it, his labor becomes combined with that thing, and a property right is vested in it.
Modern Applications of Capture
Analogies to the capture of wild animals have been made with “fugitive” resources being reduced to possession for the first time.
(a)   Oil and Gas
Courts have characterized oil and gas as “fugitive” resources and have applied the rule of capture to them
Barnard v. Monongahela Natural Gas Co.: A landowner can extract all the oil and gas from a well bottomed under the landowner’s land, even though the oil and gas may be drained from neighboring land.
Hammonds v. Central Kentucky Natural Gas Co (OVERRULED) – Reinjected resources: Under the rule of capture, reinjected resources are no longer possessed by the prior captor and, thus, are subject to recapture by anyone
Via similar reasoning,  reinjection does not give rise to liability for the use and occupation of parts of a reservoir underlying the land of neighbors – Railroad Comm. of Texas v. Manziel
(b)   Water
The rule of capture has been applied to groundwater – water that is found in underground aquifers
Historically, the E

ight to all but the original owner
Point: Title, or ownership, is relative
Issue: Does someone who obtains possession of an item unlawfully have a superior title against those who later take such item?
Rule: One who takes property from the possession of another can only rebut their presumption of title by showing a superior title
To maintain replevin, the plaintiff’s possession must have been lawful as against the person who deprived him of it.
Policy: a rule to the contrary would lead to an endless series of unlawful seizures and reprisals in very case where property had once passed out of the possession of the rightful owner
What about a dispute between a prior wrongful possessor and an honest subsequent possessor?
Minority Rule: the rule of prior possession is said to be explicitly invoked ony in support of honest claimant
Finder v. Owner of Premises
The owner of the premises where the item was found may try to claim title under the theory of constructive possession.
Owner is NOT in possession
Hannah v. Peel, page 101
Facts: Defendant owned a house, but had never himself occupied it.  Plaintiff occupied defendant’s house during a period of requisition (troops quarters).  During his stay in defendant’s house, plaintiff found a valuable Brooch.  Plaintiff turned the Brooch over to the police, who released it to defendant.  Defendant sold the Brooch and plaintiff shough an action of trover.
Issue: Whether an occupier who finds an item lost by someone other than the owner in property owned by another has a superior title to such item as the latter
Holding: The brooch was both “lost” and “found” in the ordinary meanings of the terms.  Accordingly, Bridges should apply.
Rule: No, reason to part from the standard rule under these circumstances
Finder is employee
If the finder is an employee of the owner of the premises, some cases hold that the finder can’t keep the object.  These courts often hold that the finder was “acting for” the employer in the course of his duties.
South Stafordshire Water Co. v. Sharman
Facts: Stafordshire hired Sherman to clean out their water pools.  Sherman found two rings in the bottom of one of the pools. 
Issue: Whether Stafordshire had a superior title to the rings as to Sherman because the former owned the property and had hired the latter for a specific task.
Holding: Stafordshire as the freeholders of the locus in quo was entitled to the rings
Rule: The owner of a property is entitled to items found on the property by people hired by them to work there
Lost item is found in business
Bridges v. Hawkesworth
Facts: The plaintiff found an unopened package containing money on the floor of defendant’s shop.  The plain entrusted the money with the shop owner under the pretense that he would locate the true owner.  After three years without finding the true owner, the plaintiff asked that the money be turned over to him.  Shop owner refused.
Issue: Whether the finder has a superior title to items found unattached on another’s property
Rule: The finder of a lost article is entitled to it as against all persons except the real owner EVEN when the item is found on the property of another
Analysis: The item had not been deposited with the owner intentionally.  As such, the notes were never in his custody of the defendant nor within his protection.  Accordingly, the defendant had no responsibility to the true owner and no superior title as to the finder
Objects found under the soil
Rule: If the object is found under or embedded in the soil, it is awarded to the owner of the premises, not to the finder
Elwes v. Brigg Gas Co.
Facts: A prehistoric boat was found by the lesee on land that had been leased to them for 99 years.  The lease stated that all mines and minerals on the property were to be retained by the lessor.
Holding: The boat did not pass to the lessees at the time of granting the lease, but rather was the property of the lessor despite his ignorance of its existence.
Rule: An item buried on the lessor’s property, but found the lessee, belongs to the lessor and not the lessee.
Object is found in a public place
The outcome depends upon the lost-mislaid distinction
Lost property is property that the owner accidentally and casually lost
Mislaid property is property intentionally placed somewhere and then forgotten
Rule: Lost property generally goes to the finder; mislaid property goes to the owner of the premises
Rationale: The purpose of classifying property as mislaid is to facilitate the retur of the object to the true owner.  It is assumed that the true owner will remember where they mislaid the item and return to claim it.
McAvoy v. Medina, page 107
o        Facts: Plaintiff, a customer in the defendant’s barbershop, found a pocket book on a table
o        Issue: Whether the finder has a superior title to the pocket book than the owner of the shop
o        Holding: Since the pocket book was voluntarily placed upon the table, it should be treated as mislaid and, as such, the owner of the shop has superior title because he is more likely to be able to return the item to the true owner
§     The shop keeper had a duty to use reasonable care for the safe keeping of the object until the owner should call for it