Select Page

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

Property: Professor Rao. OUTLINE: Spring 2014
French Perspective
·         Rousseau – Property is theft, a source of inequality.
o   Earth belongs to nobody. Property is the source of many evils and inequality, with property arises competition and inequality.
English Perspective
·         Blackstone – Property is the 3rd right of man. (AMERICAN PERSPECTIVE)
·         Property is the “soul and despotic dominion which one man claims and exercises over the external things of this world to the total exclusion of rights of any other individual.
o   J. Weintraub. Counterpoint to Blackstone. “Property rights serve human values, they are recognized to that end, and are limited by it.” (State v. Shack)
o   Absolutist – Property is a natural right that predates gov’t.
o   Legal Definition of Property – Bundle of Rights Theory
§  Key Sticks in the Bundle. Right to:
·         Possession
·         Use and control
·         Transfer, give away and sell
·         Exclude
·         Destroy
·         Bequeath or inherit
·         Immunity from expropriation or damage
§  RELATIVITY OF TITLE: A party's title may not be absolute (her's against the world) but relative (her's against another specific party)
·         Bentham – Property is metaphysical, not physical. Therefore, property and law are one and the same, they live together and die together.
o   Positivist: Property is whatever law says. Whether legal norm is legally valid depends on its source and not its merits.
·         Cohen – Property is something you can own via power of state.
o   Embodies right to exclude. “property is to which the following label can be attached. “to the world, keep off X, unless you have permission which I may grant or withhold. Signed private citizen, endorsed the state.”
·         Locke – Labor is the foundation of property.
o   “whatsoever that he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.”
1.      Traditional American Indian Conceptions of Property. 1) land as spiritual, no ownership 2) systems more oriented to sharing
2.      Positivism and Legal Realism. Law rules and judges fill in gaps, emphasis on applying law, only making judgments when the law does not directly apply, and then still within spirit of law; separate law and morals;
3.      Justice and Fairness (Rights argument). Those gaps in the law must be decided with intention of promoting fairness and justice; some individual rights trump any public policy; focus on natural rights, labor (desert), autonomy, distributive justice
4.      Social Utility argument. (Utilitarian) Efforts to promote general welfare or maximize social wealth.
a.      Kose theory. (Economic calculus) Internalizing the externalities. Internalize and do cost/benefit analysis
                                                              i.      Choose legal rules to maximize utility measured in $.
b.      Moral calculus. Qualitative nature of harm/benefit
c.       Economic analysis is indeterminate b/c it’s a function of the initial distribution of wealth and who you give the entitlement to. Just by virtue of having the entitlement b/c you can just buy it off.
5.      Social Relations. Property rights are relational; rights for one means vulnerability of other; shapes the power structures of the community (legal realists developed, now part of critical legal studies)
6.      Legislative Argument. Whether or not it is appropriate for judge to decide or legislature to decide. Proper relations between branches of government. Is it a narrow or broad holding?  Judicial activism (imperative for judiciary to act) v. judicial restraint (this is for legislature to decide)
a.      Karl L. Bramblebush. (Strict/narrow view of precedent; or The loose/broad view) (Friendswood: Broad).
                                                              i.      Prof. R.: Know how to argue strict or loose depending on when it suits you. If making a PP argument, do it directly. If not, “inelegant.”
Tapscott v. Lessee of Cobbs. (Heir v. Trespasser). A peaceful possessor of property who has color of title, but perhaps not perfect title, is entitled to the property over a trespasser.
A true owner can recover from person to whom she entrusted the property, but that person may be able to divest true owner of title by transferring it
A thief ordinarily doesn't have right to sell property – any bona fide purchaser is SOL
However, when an owner voluntarily entrusts property to another who is a merchant and the entrustment was in the course of business, law sometimes grants possessor power to transfer title to bona fide purchaser (“voidable title”)
Somerville v. Jacobs. Majority. (Barn on your land). A court of equity may grant relief to a party who improves the land of another when the party in good faith mistakenly believes that the land is his own. This relief can be (1) the owner compensating the improver for the improvement or, (2) the improver buying the land from the owner. Dissent. (3) requiring that the Somervilles remove the building from the land.
·         Maj. rule is if you own land you own everything that is on the land. Above and below ground. When S constructed on J’s land, the J b/c owned land, J would own building and everything in it. S would get nothing. Not even the right to destroy.
·         Cts. here apply judicial activism. Not strictly adhering to precedent.
Johnson v. M’intosh. (Indian lands). Discovery Doctrine: discovery gives exclusive right to extinguish indian title of occupancy (because the nature of their ownership didnt entitle them to ultimate title) by purchase or conquest; and also right of sovereignty over those lands/peoples. 
·         Land title transfers are only valid when made under the rule of the currently prevailing government.
Pierson v. Post. (Fox). Capture/Possession Rule/Free Use: Mere pursuit is not enough to constitute ownership. You must show occupancy by killing/mortally wounding it, or depriving it of liberty. (Maj. PP = Administribility)
·         Dissent. (Rights/Fairness: Locke – Labor) Property in wild animals is acquired when the pursuer is within reach or has a reasonable prospect of taking physical possession. (Social utility: Ppl wouldn’t labor, “reeping where they haven’t sown)
Popov v. Hayashi. (Baseball). Pre-possessory Rule: If an actor takes significant but incomplete steps to get possession (physical control over the item + intent to control it or exclude others from it) but is prevented by the unlawful acts of others, the original actor has a pre-possessory interest in the property.
·         Equitable Division: Fair sharing. (sell the ball and split the profits)
Moby Dick. (Fat fish v. Loose fish).
·         Fast fish – capture it, its yours
·         Loose fish – fair game to all. If you haven’t captured it and in the commons, it is vulnerable to capture and owned by first person to subject it to their control.
Elliff v. Texon Drilling. (Oil). Capture w/ Negligence Exception. Negligent waste or destruction of gas and distillate drained under the law of capture is recoverable.
·         Negligent waste or destruction of gas and distillate drained from a neighboring well under the law of capture is not a legal appropriation of those minerals.
Capture: Water
Ground. Groundwater is also subject to the law of capture – a landowner can take as much as possible as long as the taking isn't wasteful (Acton v. Blundell)
Reasonable Use Rule: Each property owner whos land overlies common pool of resource has a reasona

ership. Makes sense.
May not make as much sense in modern times but did in the past.
Government immunity
·         Generally indiv. can’t claim AP against gov’t, but some gov’t waived rights in limited circumstances.
o   If held open to general public, generally can’t get AP over land. (Ex. National parks)
o   If gov’t property but held like any other property owner, may be able to get AP
Brown v. Gobble. (Treehouse). (By clear and convincing evidence). One who seeks to assert title in land by adverse possession must prove each of the following for a period of more than ten years: that he has held the land adversely and that the possession has been actual, open and notorious, exclusive, continuous, and under a claim of title or color of title.
·         Tacking: A transfer of possession of land w/ privity (G/F) of title or claim will “tack” on prior years for an adverse possession to establish the statutory minimum.
Romero v. Garcia. (Father’s land). The description of the land in a deed is sufficient for a claim of adverse possession if a surveyor can determine the boundaries of the land by using the deed and any extrinsic evidence on the ground. Moreover, A deed is sufficient for the purpose of color of title even though it is void because it lacks the signature of a member of the community. Therefore, Romero has a valid adverse possession claim.
·         Color of title: Adversely possess land with a deed, but for some reason the deed is defective.
o   Adverse Possession under color of title doesn’t require perfect deed
o   Deed is adequate if one can use extrinsic evidence to establish boundaries
o   Adverse possession under color of title grants AP’er what is contained in deed.
Nome2000 v. Fagerstrom. (Alaskan territory) Adverse possession depend on the character of the land in question, and the requirements (Continuity/Exclusivity) will be met if the land is used for the statutory period as an average owner of similar property would use it.
·         If only adverse possession = person gets only land actually possessed
·         If color of title = person gets land described in deed
Main Q: To what extent do private property owners have a right to absolute dominion b/c its their land?
TRESPASS: Unprivileged, intentional, intrusion on another’s property
Intent: Trespasser voluntarily entered
Intrusion: Occurs at moment non-owner enters property (building extending onto others land can also be an intrusion.
Unprivileged: privileged if (1) entry is done w/consent of owner; (2); justified by necessity to prevent more serious harm to persons/property; or (3) the entry is encouraged by public policy.
Shmidt test:
(1) What is the normal use of the property? (mission? School is to educate/shopping mall is for commerce).
(2) Extent to which public use is allowed or invited
(3) Compatibility of the type of speech with the normal use of property
Rule: Where a place of public accommodation and private club share a close and mutual and necessary relationship, the private club also becomes a public accommodation (Frank)