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Property I
University of California, Hastings School of Law
Rao, Radhika D.

Theories of Property
        I.        Bundle of Rights: Power to use/manipulate/benefit from it; Right to exclude/include; Power to exchange/transfer (alienability); Power to devise/bequeath; Immunity from expropriation; Right to destroy; Immunity from damage (harm/loss)
A.     Any of these rights can be taken away and still be considered property. Almost everything has some limitations.
       II.        Absolutionist: Property is the third absolute right after life and liberty, independent of the government (Blackstone).
      III.        First Possession & Labor: first to take occupancy or control of the resources to those who have put in the labor for the resources.
      IV.        Positivism & Legal Realism: Property is what the law says it is. Expectations are from the work of law. There is no property without law.
A.     Laws can be based on public policy: individual rights, general welfare, social wealth, maximize social utility, separation of laws an morals.
       V.        Rights: Individual rights are so fundamental that they deserve legal protections which outweigh public policy.
      VI.        Social relations: Property rights are relationship between people.
     VII.        Property is evil: All property is theft; property is the source of inequality.
Initial Acquisition
        I.        Discovery Rule: Discovery gives the right to extinguish Indian title of occupancy either by purchase or by conquest.
A.     U.S. has “ultimate title” while Indians only had “right of occupancy” as long as the U.S. allows them to occupy land and be protected until it is extinguished (only by the U.S.) through conquest or purchase. Johnson v. M’Intosh (p. 98)
                                         1.    Meant to protect Indians because that way no one could trick them out of their land and the Indians only had to deal with the U.S. when it came to land.
                                         2.    Indians did not have property laws anyway.
                                         3.    Transfers from Indians were therefore invalid. Only those given by the U.S. or were grandfathered in through European law were valid.
       II.        Capture Rule: The person who captures a resource first, claims the property right. Capture rule was put in place to encourage development. Easy to administer but it does not recognize labor and investment.
A.     Popov v. Hayashi (p. 156): Equitable division; since neither party was at fault and giving the ball to either party would be unfair (or encourage bad behavior), the ball must be sold and proceeds split evenly.
                                         1.    Reasonable Use Test: Each owner must accommodate the interests of the neighboring owners; or the court balances the interests of the parties (extent of harm v. cost of preventing the harm.
B.     Negligence Exception to the Capture Rule: You own all that you capture except that which you destroy or waste. Eliff v. Texon Drilling (p. 160)
C.    Water Rights
                                         1.    Free Use/Capture with Negligence Exception
                                         2.    Correlative Rights: Whatever proportion of the resource is under your land that is the proportion of the resource you are entitled to.
                                         3.    Prior Appropriation Test: The first person to invest or make productive use of it becomes the owner.
                                         4.    Riparian Doctrine: Gives rights to all those bordering actual surface water governed by reasonable use rule.
                                         5.    Common Enemy Doctrine: Surface water is the common enemy and any owner has a right to remove it but cannot be negligent or cause unreasonable harm to neighbors.
      III.        Lost Property: Relativity of Title: Property rights can be relative. Charrier v. Bell.
A.     Prior Possession: Possession if strongest evidence for ownership (possession is 9/10 the law)
                                         1.    Possession will control if no one has evidence to the contrary regarding ownership. Wilcox v. Stroup (p. 168)
B.     Lost: Owner accidently misplaced it; the owner has title, but the finder has a superior claim compared to those of third parties.
C.    Mislaid: Owner intentionally left it somewhere but forgot where they put it; similar to lost.
D.    Abandoned: Owner intentionally left it and intended to relinquish all rights to the property. Finder has title unless found on private property.
E.     Private Property
                                         1.    If the finder is a trespasser, then the landowner gets a possessory right to the object/property
                                         2.    If the finder is an invitee, courts have gone either way
                                         3.    Private home means the homeowner gets title
                                         4.    Property that’s open to the public means that it either goes to the finder (Rao) or the landowner
a.     Mislaid property goes to the owner of the premises because the true owner might come to the landowner looking for his thing)
b.     Lost v. mislaid v. abandoned depends on context. In the street means likely lost. On a table in a café means probably mislaid. In a dumpster likely means abandoned.
                                         5.    Embedded in soil -> Goes to landowner
a.     Money/treasure exception goes to finder unless finder is trespassing
      IV.        Labor and Investment: Labor and investment does not necessarily make property. However, it can give you a stronger property right relative to others (relativity of title)
A.     INS v. AP. (p. 131): News was quasi-property (anyone could get it and share it) but it was not free for INS to take it AP. Thus, AP had a property right only against INS.
B.     Cheney Bros. v. Doris Silk (p. 143): Imitation is okay because we don’t want to encourage monopolies and want to encourage free competition.
C.    NBA v. Motorola (p. 143): Facts cannot be copyrighted since anyone watching the game could have gotten the same facts/states.
       V.        Body Parts and Genetic Material
A.     Moore v. Regents of UC (p. 231): Court found that there was no property right in spleen cells since they are neither unique nor part of human ingenuity.
                                         1.    To protect the valuable research from lawsuits.
                                         2.    Deep-rooted notion that the human body is sacred and not property.
B.     Kidney Sale Arguments
                                         1.    Pros
a.     People should be able to do what they want with their bodies
b.     Opportunity for the disadvantaged
c.     Everyone wins (sick person gets kidney, poor person gets money)
d.     Kidneys from live donors are result in more successful transplants
e.     It happens anyway so we might as well regulate it to protect donors and recipients
                                         2.    Cons
a.     Human body is sacred
b.     Exploitation of the poor
c.     Slippery slope leading to slavery
d.     Property rights in body parts is repugnant
e.     Undermines the value of human life (placing a dollar amount on body parts)
      VI.        Relativity of Title
A.     Color of title: The appearance of a legally enforceable right of possession/ownership that due to some defect, is not enforceable.
B.     Tapscott v. Lessee of Cobbs (p. 177): The right of the prior possessor protects peaceable possession against all but the original owner.
                                         1.    Discourages scrambles for property and we want to settle expectations after you’ve held property for some time.
C.    Jacobs v. Somerville: S accidently built a warehouse on J’s land with no one else at fault. Court gave the option to either pay for the warehouse or sell the property. Court did not allow the option to destroy the building (a social utility gone to waste).
                                         1.    Dissent would have included this option and then that would have hopefully led to the result that the parties negotiate in private between the value of the land and the cost of the property.
                                         2.    The majority opinion is that you actually own everything that is on/under your land.
     VII.        Adverse Possession
A.     Elements of adverse possession
                                         1.    Actual Possession: A fact-based inquiry that requires that the possessor use the land how an average owner would use the land in that area/character of the land
                                         2.    Open & Notorious: The possessor must provide a signal strong enough such that a reasonable owner would have been given notice under the circumstances (does not require actual notice)
a.     Reputation as the owner might be a factor
                                         3.    Exclusive: You must be in exclusive possession, though you can open it up to others as though you were the owner.
                                         4.    Continuous: Must be continuous (can be at regular intervals also depending on how other people use the area)
a.     Continuity may be met through tacking with periods from previous occupiers if there is some kind of relationship with the previous possessor.
                                         5.    Hostile: Occupancy without permission. The presumption is that it is hostile. The burden is on the other to show otherwise.
a.     Some states have a bad faith subjective test (intentional dispossession)
                                         6.    For the Statutory Period: As defined by statute.
a.     This can be inferred if the statute requires that claims for land be brought within x number of years.
b.     The transfer occurs when the statute of limitations passes.
c.     The statute of limitations may be tolled ifor infancy, insanity, incompetence, possibly imprisonment or absence from the state.
B.     Some jurisdictions require

blic. Prune Yard and NJ Coalition v. JMB Realty.
a.     Dissent argued that leaflet distribution is beyond the scope of consent (shopping) and is distinguishable from Princeton campus where education and an open mind are expented.
b.     Consider KKK handing out pamphlets.
                                         2.    Lloyd Corp v. Tanner: Yet in NY, they held the opposite and said that speech could be prohibited in private shopping centers if they were unrelated to the shopping center’s operations
C.    Homeless people in department stores hypo
                                         1.    Arguments to use: department stores have a duty to serve (expansion of the common carrier rule), social dependency on department stores, unreasonable to exclude as long as they are not unruly or disruptive
                                         2.    Arguments to exclude: Department stores are not like common carriers, reasonable access is only for patrons/shoppers, market forces will dictate that department stores are harmed when customers walk away.
D.    Are massive internet search engines public space?
                                         1.    Somewhat of a modern “public square” for education and information.
                                         2.    Also expectations that we should be able to access everything on the internet.
       V.        Paradigm of Right to Exclude
A.     Private Home (Jacques) ó Farm in Shack ó Desnick Eye Center ó Boy Scouts ó Casino in Uston ó Shopping Malls ó Private town in Marsh ó Public square/park
Nuisance: Causes (1) a substantial harm and (2) unreasonably interferences with a neighbor’s use/enjoyment of their land.
        I.        Flooding and Diffuse Surface Water: Drainage from rain, melted snow, and springs that runs over surface but does not amount to a stream
A.     Common Enemy Rule: No liability. Owners have an absolute right to protect their property and expel the “common enemy” without liability for any resulting damage to neighbors due to increased runoff of surface water.
                                         1.    Exception: Some jurisdictions have adopted a rule that imposes liability if pipes/drains are increased that collect and expel water in greater quantity that would naturally occur or in a direction different from natural drainage.
B.     Natural Flow/Civil Law Rule: Strict liability. If you interference with the natural flow of water and cause invasion to another, you are strictly liable.
                                         1.    Exception: Most states allow minor increases in the natural flow of surface water.
                                         2.    Some states use natural flow rule to rural land and the common enemy rule to urban areas.
C.    Reasonable Use Rule (Majority): Liability will turn on a weighing of the unreasonableness of Δ’s actions and the harm done to others. Allows for more flexibility. Consider…
                                         1.    Policy/moral judgments
                                         2.    Fairness
                                         3.    Justice of stopping/allowing activity
                                         4.    Social consequences of regulation/no regulation
                                         5.    Economic costs & benefits of both
a.     When assessing harms, we are concerned with the qualitative nature of the harm.
b.     Building low-income housing outweighs the loss in property values.
                                         6.    Promoting social utility & economic efficiency
                                         7.    Other means to avoid harm
                                         8.    Relative costs to π and ∆ (sometimes developers should internalize the cost of the externalities into the business decisions)
                                         9.    Which use was first
D.    Armstrong v. Francis Corp (p. 337) adopted the reasonable use test and used the factors to determine that F had to install pipes that drained all the way to the lake.