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Property I
University of California, Hastings School of Law
Carrillo, Jo J.



1. Policy

a. Purposes of Property

i. Property Law system is based on the concept that property is a human invention, not the result of divine gift or natural right

ii. Legal Positivism: Property exists only to the extent that is recognized by the government

iii. Natural law theory: The idea that certain rights naturally exists as a matter of fundamental justice regardless of government action

iv. Traditional View: Property right is a right to a thing. Good against the world

v. Modern View: Property is a collection (bundle of rights) with content that varies according to context and policy choices

b. Theories of Property

i. Protection of First Possession

ii. Encourage Labor

iii. Maximization of Social Happiness

iv. Ensuring Democracy

v. Facilitation of Personal Development

2. Protection of First Possession

a. First-come, first-serve

i. First in time has a superior right to a thing

ii. Pierson v. Post [first possession, fox case]

1. Post hunting fox but Pierson shot first

2. Pierson keeps it because property in wild animals is vested by occupancy (mortal wound or capture) unless it escapes back to its habitat, and is then wild again

b. Encourage labor

i. Assuming unlimited supply of natural resources, Locke argued when a person “mixed” his own labor (owned) with natural resources (unowned), he acquired property rights in the mixture.

ii. Reasonable expectation that the labor produces something of some utility

iii. Laws will protect you

c. Maximize Societal Happiness

i. Utilitarian Theory: recognize property in order to maximize happiness

ii. Civic Republican Theory: it helps us better understand our relationship with the state

iii. Law and Economics Variant: property is efficient method of allocating resources. System of property rights must have universality (owned by someone), exclusivity, transferability

d. Ensure Democracy

i. A right to property is a basis for democracy; incentivizes community to be involved democratically

e. Facilitate personal development

i. Personhood Theory: argues that property is necessary for individual development. Emotional connection to some pieces of property. Recognition of property as extension of self.

ii. White v. Samsung [Vanna White Misappropriation of image without consent]

1. Samsung ran an ad campaign using an image of VW’s likeness

2. Alleged enough facts to show prima facie case of misappropriation because they commercially exploited her celebrity likeness without consent

3. Rule: A person has the exclusive right to use her name, likeness, signature, and voice for commercial purposes.


1. The rights

a. Right to transfer

b. Right to exclude

c. Right to use

d. Right to destroy

2. The property

a. Tangible property

b. Intangible property

c. Personal property

d. Real property

3. Right to transfer

a. Transfer is

i. Right to sell

ii. Right to give

iii. Right to hypothecate (relinquish interest)

iv. Right to transfer even upon death

b. General Concepts of Transferability

i. Owner may freely transfer (alienate) his property to anyone

1. Law may restrict who and whom

2. Law regulates what property may be transferred

a. Some types of personal property may be given away but not sold (i.e. body parts)

ii. Chain of title: Succession of ownership over time

iii. [Tort of] Conversion: Invasion of property rights or interference/deprivation with possessory and ownership interest in personal property.

iv. Johnson v. M’Intosh

1. F: Private individual gets land title transfer by Indians. US conveys land to third party.

2. H: Land title transfers are only valid when made under the rule of the currently prevailing government. Land titles transferred by Indians to private individuals under foreign rule before Amer. Rev. are not recognized by the US.

v. Moore v. Regents of the UC

1. F: UC use cells from Moore’s spleen (w/out permission) to patent cell line for profit, Moore sues for conversion on grounds that he still owned those cells.

2. H: Once cells leave a patient’s body, they are no longer that patient’s property. You cannot obtain a patent for an individual’s cells; there must be some form of “human ingenuity” added to the cells

4. Right to Exclude

a. General Concepts of Exclusion

i. Exclusions is the right to refuse when another party wants possession of your property

ii. Trespass: (1) intentionally enters (2) the land in possession of another. It is voluntary, doesn’t have to know it is wrong.

iii. Ownership of title confers landowner right to exclude implement through tort of trespass

1. Entry made under privilege is not trespass

a. Common privilege is consent

b. Privilege may arise from necessity

b. Jacque v. Steen Homes, Inc. (WI) (1997)

i. F: Steenberg Homes elected to deliver mobile home across Jacques property w/out permission/license. @TC, Nom. dmg. = $1, pun. dmg. = $100k

ii. H&R: Pun. dmg. may be awarded when there are only nom. dmg. and no comp. dmg. Because when one possesses the land, they have the right to exclude and make use of the land how they please. (protects from intentional trespass)

c. State v. Shack (NJ)

i. F: Landowner/employer employs migrant workers and houses them on his private property, but restricted entrance to private legal aid for the migrant workers.

ii. H&R: The ownership of real property does not include the right to refuse access to individuals providing gov’t services to workers who are housed on the property. Property rights do not allow absolute dominion over the individuals who enter.

5. Right to Use

a. General Concepts of Use

i. Use is…

1. Right to accumulate property

2. Right to utilize property arbitrarily

3. Right to use land or property as one wishes (limited by laws)

ii. Sundowner, Inc. v. King (ID) [SPITE FENCE]

1. F: S sold motel to K, built a motel next door, and erected a spite fence btwn, blocking 80% of K’s building and restricting light & air.

2. H: Ct looks at intent of parties in erection of structure. Held one may not erect a “spite fence” solely to annoy neighbor or out of ill will.

iii. Nuisance: allowed to sue a neighbor even though there has not been a trespass.

iv. Private nuisance is an (1) intentional, (2) nontrespassory, (3) unreasonable, and (4) substantial interference with (5) the use and enjoyment of the plaintiff’s land. It is unreasonable if the gravity of the harm outweighs the utility.

v. Prah v. Maretti (WI) [Housing remodel blocks solar panels next door]

1. F: Maretti started building a house on his property that would block light from hitting Prah’s solar panels; Prah sued for injunctive relief

2. H: Prah granted relief because private nuisance law protects both landowner’s interest in access to sunlight as well as right to build on one’s own property

6. Right to Destroy

a. Property owner possesses the right to destroy, but difficulty arises when an owner seeks to destroy property that retains substantial value. Courts may empower or appoint a guardian/conservator to preserve estate/property. (landmarks; animals)

b. Eyerman v. Mercantile Trust Co. (MS)

i. F: woman died and her will directed executor to destroy house and sell land; court found this would reduce value of that and surrounding properties

ii. H: When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void because of reduction of value to properties


1. Real Property vs. Personal Property

a. Real Property: rights in land and things attached to the land

b. Personal Property: rights in movable items and tangible things

2. Adverse Possession

a. General Concepts

i. A occupies B’s land long enough meeting certain conditions, thus acquiring title to land without B’s consent. B becomes divested, A gets vested title and new chain of title is created

intention to do so. Depends on going over the line.

2. Inception of title – this is the moment when a person has a property right and can transfer and do something with the property.

3. Vesting of title – possession is complete and perfected (2 and 3 happen at the same time)

4. Proof of title – court judgment filed in public record.

ix. Fulkerson v. Van Buren (AK)

1. State of mind is irrelevant. Met all 5 elements and claimed quiet title.

x. Tioga Coal Co. v. Supermarkets (PA)

1. Subjective hostility is not required to establish adverse possession. Subjective hostility is not required to establish adverse possession.

xi. Howard v. Kunto (WA) [people had deeds to each others’ beachouses]

1. Issues: (1) Does property used as a summer home constitute uninterrupted use for purpose of AP? (2) May previous owner’s time occupying property count towards the statutory period of AP?

2. Holding: (1) Summer residence satisfies AP because that is ordinary and natural given the nature of the property

3. (2) Successive owners of property may add their occupancy times together where they share privity in the ownership interest.(tacking)

OWNING PERSONAL PROPERTY (owning title/interest in chattel)

1. Rules of Capture (kill, mortally wound, trapped without possibility of escape)

a. Pre-Possessory Interest – To sustain cause of action for conversion, this requires…

i. Actor undertakes significant, but incomplete steps to achieve possession of abandoned property, AND

ii. Effort interrupted by illegal act of 3rd party

b. Elements of Conversion Action (Moore)

i. P must have title, possession, or pre-possessory interest (Popov) of the item

ii. D must interfere with P’s title/possession

iii. Must have damages/harm

c. Gray’s rule: unless you capture it, you don’t own it (Popov court adopted)

i. Contact with an inanimate object or another person, before momentum has ceased, is not possessed.

ii. Incidental contact with another person is contact that is not intended by the other person.

d. Custom: have to prove 3 elements

i. Custom worked well in practice

ii. That observance of customary rule is necessary for the industry to continue

iii. Meets the expectation of the greater industry

e. State v. Shaw [Grand Larceny of Fish; Policy: 1 fish maybe, 700 lbs..FU]

i. Facts: Fisherman, Shaw (D) comes along, takes fish from a net that was put into place by Grow & Hough. State charges Shaw with larceny

ii. R/H/A: charges upheld because although G&H didn’t have absolute security against the possibility of escape, they had sufficient possession and control to claim a pre-possessory interest in the fish

f. Popov v. Hayashi [baseball case]

i. Facts: Popov “caught” Bonds’ home run ball but was jostled by crowd (intentional tort) and dropped it; Hayashi picked it up. Who owns the ball?

ii. R/H/A: Both own, must split sale proceeds because while Popov may have had PP interest, Hayashi brought ball into exclusive dominion/control and he had intent to possess it. When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item.