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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


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

vi. Greenberg v. Miami Children’s Hospital Research Institute –

1. Parents provided blood samples of tissue and blood from their children afflicted with Canavan disease to researchers who used the material to discover and then patent the disease’s genetic sequence. Parents allowed to sue for unjust enrichment

2. Alternative approach to Moore

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. 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. 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 intere

t doing anything to the land “under claim of title” (*Note: still got easement)

vi. 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)

Pre Trespass

Start of disputed period: “entry”

AP starts claim

Disputed period:

AP perfects claim

End of disputed period: AP title “vests”

Record Owner

RO continues to own the land

During disputed period, but RO has claims to interrupt AP

Trespass (protect possession)

Ejectment (protect title)

RO must interrupt AP’s claim to keep title

RO is “divested”

RO’s chain of title expires

Trespasser ENTERS RO’s land

Intentional trespass (p. 49) – same as CLAIM OF RIGHT

Unintentional trespass – same as COLOR OF TITLE – gives good faith trespasser benefit of constructive possession doctrine

Trespass gives rise to RO claims against AP

AP elements are met

AP elements, p. 98

SL period

No interruption occurs

Policy supports transfer of title from RO to AP, p. 96

AP is new RO

AP’s chain of title is new.

Made marketable by court judgment.

OWNING PERSONAL PROPERTY (owning title/interest in chattel)

1. Rules of Capture

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

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.