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

Prof Leshy
1L Property I
Fall 2012
Property by Dukeminer 7th edition
·         Bundle of Sticks: right to possess, use, exclude, dispose
·         Right to exclude core principle
·         Rights=relationship between ppl, in relation to the item
o    Transferability; requires right to include and exclude
·         Rationale: equality
o    Stability
·         Rationale: not mere commodity
UTILITARIAN THEORY  (dominant theory)
·         Property=means of organization of relationships of ppl, not things
·         Purpose of prop=economic efficiency/maximization through
o    Alienability which promotes:
·         Dist of wealth
·         Transferring -> both parties better off
Overview Topic 1
·         Right to Exclude/Trespass
·         Limitations on RtE
§  Necessity
§  Constitutional rights
·         Theories of Prop
The Right to Exclude/Trespass
·         O's have RtE if doesn't infringe others rights
o    RtE Strong, not absolute 
·          Jacque v. Steenberg: willfull mobile home transportation trespass
o    Issue: Does Π have RtE
o    Holding: Π RtE protecting long term econ benefit outweighs Δs immediate $ loss
Limitations on RtE -rights to property depend on usage
·         Necessity can justify the entry onto the land of another.
o    State v. Shack (migrant farm worker assistance a trespassing suit)
·         Prop title not give dominion over persons permitted on land 
·         Constitutional Rights such as, Free speech may be exercised in Public Forums
o    Fashion Valley Mall: Labor union protesting, discouraging patrons, mall forces them to public area across street
·         Held: Mall=public forum though private prop b/c has characteristics of a public space + malls replacing public square.
·         Dissent: Just b/c  public ≠ public forum. Boycott contradicts
purpose of the mall (make $)
o    FED level, private malls ≠ public forum b/c privately owned
Theories of Property
·         Cohen: Property= Rte, not absolute
·         Epstein= RtE absolute
·         Singer: Fulfill need of more vulnerable party
Overview Topic 2 (Property in Ones Person)
·         Law of Accession
·         Conversion
·         Moore v Regents
Locke’s Labor Theory
·         Everybody has property in themselves.
o    (May not be a part of Locke's) People can lose ownership in selves in some cases (extraction)
·         Law of Accession=Property + your labor (change or improve) -> it's yours
§  Rationale=recognize value of labor people invest in property. Encourage people to invest productive labor.
o    Traditional View: O owns prop. If A changed prop to point that it is a different prop then  it belongs to the A (ex. grapes to wine)
o    Modern View: disproportionate value. A gets prop if value of improvement is disproportionate to the value of the materials (canvas-> painting) 
·         Occupation Theory-First in time justifies ownership rights
·         Conversion: person wrongfully asserts control over others property
·         Moore v. Regents of UC:
o    Facts: π had emergency surgery during which time, unbeknownst to π took his cells for research & later made $ from research his cells were used for.
o    Rule: A person does not have ownership rights to excised body parts. A conversion ( person wrongfully asserts control over others property) requires actual interference w/ownership or rights of possn. If π has neither title to said property, nor possn of the prop -> No conversion COA
o    Analysis: Cells did not belong to Moore once removed and he had no expectation of keeping them, so no conversion.  UC made major improvements -> title through accession. Rationale=advancement of science
o     Held: No conversion b/c π didn’t retain ownership interest in his cells once removed & the cell line ∆ Dr.s invented based on π’s cells ≠ π’s  cells.
o    Leshy->Dissent: Π  had a right to control cells b/c had prop in his own person, and nondisclosure COA will not be sufficient. Law says can’t sell for transplant (nothing on research). Removing 1 stick doesn’t remove whole bundle (cells can still be property)
o    Policy: Balancing private property and societal interests
Overview Topic 3 (Acquisition by Capture)
·         What's necessary for Capture?
§  Pierson v Post
·         Capture rule for
§  Oil/Gas
§  Water
·         Common Property
General Rule
·         Property is acquired by actual capture.  Mere pursuit insufficient. Occupancy creates a property right, but what is occupancy?
o    Continuum of Occupancy – Physically capture reasonable prospect of capture.
Pierson v. Post
·         Facts: Post & hounds in pursuit of a fox, Pierson saw chase still killed fox, kept it.
·         Issue: What act is sufficient to gain possession of fox
·         Rule: Mortally wounding or depriving of natural liberty (trapping) constitutes possession
·         Dissent: Let hunters decide according to custom, this will negatively impact the sport because of confusion
o    Ferae Naturae: wild animal on un-owned property isn’t owned until captured.
o    Ratione Soli: an owner of land has constructive possession of wild animals on that land, until the animal leaves.
o    Constructive Possession: Legal (fictional) possession, not actual physical possession
·         Policy Rationale: encourages real property rights & discourages ppl from hunting on private land
·         Capture and Other Fugitive Resources: Water/Oil/Gas v. Animals:
o    Animals can reproduce/Fossil Fuels can't
o    Ad Coelum: Whoever owns the soil owns the sky & to the depths
·         Extracting resources= capture -> possession
o    Capture rule: Belongs to owner of land as long as resources are under his land. If moves under anothers land, its theirs.
·         Benefits competition & drives production,
·         Cons:can lead to overdevelopment/exhaustion, land grabs, econ inefficiency
·         Oil/Gas: Traditional View = ratione soli – first come first served (was inefficient)
§  Apportionment- Own % of oil based on % of land owned
·         Water: Rsnbl use (most states): If waste & harms neighbors then unrsnbl & unlawful b/c may be wasting h2o neighbors could have gained

    F: Δ gets Πs news b4 distributed, sells to own clients.  Π claims news = its prop. & Δ should be restrained from reselling. Π wins
o    Value of Πs news partly derived from keeping rivals from copying info they gathered
·         A/H: Π  has “quasi property rights” in news it gathers (for tort purposes) & can prohibit only  competitors from selling it until commercial value gone
o    Don’t own facts, do own literary value
o    SCOTUS doesn't declare absolute prop rights in news bc it would = “takings”
o    Policy: W/o this protection, no incentive to be news source
Prof: This is a tort case of unfair competition, not a property (copyright infringement) case.
Cheney Bros. (Δ ) v. Doris Silk Co. (Π): Prop limited to chattels which embody invention. Others may imitate (p. 55). (fashion manuf=built in delay)
·         F: Π created seasonal designs. Δ  copied Π’s design and undercut Π ’s price. Π sued for seasonal protection. Δ  wins.
·         A: Case deals w/ fair competition; INS v. AP deals with unfair competition.
·         Policy: Competition ->innovation & lower prices
·         Judge Hand  construed INS narrowly
·         Sd INS rule = if copyright or patent law doesn’t protect it property or tort (unfair competition) doesn't
§  Even though INS court used unfair competition
·         Hand reversed his opinion in Peter Pan Fabrics, Inc. v. Martin Weiner Corp. because of an amended Copyright Act.
Smith (D) v. Chanel (P): A product cannot be monopolized simply b/c it was made at great expense; public interest prevails. (p. 56).
·         F: D copied P’s perfume formula and advertised it as identical to P’s perfume, Chanel No. 5. D prevailed.
·         A: The court holds imitation breeds competition & provides a public benefit
Nichols (P) v. Universal Pictures Corp. (D): Copyrights not provide absolute IP protection from use in the public domain
·         F: P alleges D copied key characters from play to produce D’s movie. D prevailed.
·         A: Assuming P’s play was wholly original, and novelty not essential to copyright, still no monopoly.
Diamond (D) v. Chakrabarty (P): Patents may extend to artificially-created micro-organisms. (p. 60).
·         F: D barred P from patenting genetically engineered cell since organic in nature. P prevailed.
·         A: Congress created broad patent laws
·         upholds Jefferson’s Patent Act of 1793 and 35 USC 101 “anything under the sun… made by man.”
White (P) v. Samsung Electronics America (D): In CA, IP rights extend to ownership in one’s own likeness.