Select Page

Property I
University of California, Hastings School of Law
Depoorter, Ben W.F.

Property Depoorter Fall 2015

Four main themes in Property

-Allocation of resources (scarcity-we have resources but theyre limited, whats optimal allocation of resources)

-personal use of resources in society-the rules that determine what you can do with a resource, relationship between individual and resource

-regulate interpersonal use of resources, one persons use of property affects another person, use and enjoyment of property, regulation of relationships among individuals as it relates to the property

-state involvement, state regulate boundaries of property rights, state can take property for public use with just compensation

Ownership and Acquisition

I. Possession- intent to possess and actual control

a. possession can be context dependent (policy considerations)

§ want to reward labor

§ but reduce conflict

§ reduce waste of resources

II. Ownership by Capture: to get something no one owned before

a. Pierson v. Post – man kills fox another man is pursuing

I: Does pursuit constitute possession?

R: Mere pursuit doesn’t constitute possession. Control to deprive animal of natural liberty (mortally wound) and manifest intention to seize animal. Where does ownership of ferae naturae begin? Need to exercise a certain amount of control before you own it.

b. Popov v. Hiyashi – baseball case

I: Can action for conversion proceed where P has failed to acquire possession?

R: No. physical control is stopping the momentum of the ball and of yourself and the catch with the ball still in your hand. No conversion because H was a bystander and P wasn’t true owner of property. P had pre-possessory interest, which constitutes right to possession, but H not wrongful doer. Equitable division.

a. Conversion- wrongful exercise of dominion over the property of another

III. Fugitive resources

a. First capture rule for oil (the first person who drills the oil first)

-We want to encourage drilling and reward efforts

– First capture doesn’t often work very well for oil excavation

-Often, the oil field extends beyond several part of lane – creates distributional issue

-Creates unfairness of the other people whose land also has oil

-Tragedy of the commons and diminishing returns – people have the incentive to drill all the oil

-People could be drilling in the wrong spots, which creates diminishing returns

-For society, optimally, we need to drill in the right spot

-Maybe better to coordinate with all owners with the land: pooling contracts, merge (concentration of an industry)

b. Water rights

-Eastern US uses riparian water rights: system for allocating water among those who possess land about its source

-Western US

-Prior-appropriation water rights: the person who first “captures” the water and puts it to reasonable and beneficial use has a right superior to later appropriators

-Related to the scarcity or water in Western US – want to protect the person who invested in appropriating the water

IV. Usage and Customs

a. Customs as a source of law:

a. Social norms as a substitute for law: determines people’s behavior and does so in disregard of what people are prescribed to do

-In small, close-knit communities with repeat players (not in an end-game situation), law doesn’t really matter – e.g. cow-grazing example

-But conflict between norm and law could occur if, for example, an outsider becomes involved

1. Ghen v. Rich- whaling case

I: Can custom help in determining possession?

R: Yes. When the custom is embraced by the whole community and works well in practice. When a whale is lance and left, it is the occupancy of the person who lanced the whale

b. Antagonistic: custom in conflict with the law

-Internalized norms: people disobey laws sometimes because their beliefs are in conflict with the law

-Backlash effect: if you push very hard against a law, it’s often counterproductive for people who have internalized the norm

-E.g. cyber piracy and copyright law

b. Problems with going with customs as a source of law

a. Norms are the least binding of all potential sources of law

b.Customs that promote and incentivize the activity, like hunting, is sometimes actually inefficient

-Collective action problem: when a group adheres to a rule that helps them individually, but hurts them as an industry

-First capture is no longer the rule in animal hunting. It’s socially suboptimal to capture so many animals.

-Also may drive down prices too much

c. Tragedy of the commons: what’s good for the individual is not good for the group

d. Sometimes leads to problematic distributional outcomes that we consider inappropriate, unfair, wrong (e.g. racial segregation)

e. Information costs: Not everyone adheres to customs. Who is affected by this rule? Are there a lot of outsiders? Do a lot of people suffer from accepting the custom?

V. Interference With capture

a. Keeble v. Hickeringill- intefered with capture

R: can’t interfere with others property with malicious or violent intent, especially if prevent them from occupation

a. Ratione soli: assigning property rights to landowners over resources found on their land. Once a wild animal escapes from someone’s land, it becomes ferae natruae again.

b. Constructive possession: an individual has actual control over chattels or real property without actually having physical control of the same assets

a. But a domesticated animal that’s free to roam remain in the ownership of the person who domesticated it

Ex. If robert deniro shot a fox on robert redfords land, the fox would be robert redfords. Even if redford had permission to go on land, it would be redfords because it was shot on his land

VI. Discovery

a. Johnson v. M’intosh -native american land transfer

R: Possession by discovery-discovery as concept gives exclusive right to deal with the land that you discover and deal with occupancy.

Possession by occupancy also

VII. Ownership by Find

a. Goals of finder’s law:

a. True owner should get it back – want to incentivize finders to return things they find.

b. Encouraging the return of property

b. Why should we stick with the first possessor?

a. Psychological aspect: owning something means that you like it or there’s a reason why you own it. You value it more than others. You become attached.

b. Endowment effect: having something in your possession in and of itself creates value

c. Loss aversion: don’t like losing something. Person who values it most would be demoralized.

d. Golden rule: we would all like to keep whatever we find, but if we were the person who lost something, we would like for it to be returned

c. 4 classifications of find

a. abandoned which owner no longer wants property and voluntarily relinquishes rights. Founder is owner

1. Columbus Amer v. Atlantic Mut. Ins -shipwreck case

I: Did the district court correctly find that the insured shipments of gold were abandoned by the underwriters?

R: Property involuntarily taken from control is not abandoned property.

i. Law of salvage- a party had not acquired title, but the right to take possession of property for the purpose of saving it from destruction, damage, or loss, and to retain it until compensation has been paid

b. lost is when owner unintentionally and involuntarily parts with property and doesn’t know here it is

1. Armory v. Delamireie -Chimney sweeper finds ring

I: Does the finder of a jewel give him sole ownership over the founded property?

R: finder has ownership until the original owner shows


3. Adapt/altering

4. Display publicity

5. Perform publicity

c. What is copyrightable?

1. Original works of authorship that are fixed in a tangible medium of expression. Low-bar for creativity/originality (as long as it’s not copied)

-personal expression, modicum of orginality

-independent creation, no copying

-created not discovered or mere labor

2. Excluded from copyright protection:

i. Facts

a. Feist v Rural – phone book case

I: Did the way in which Rural compiled the directory count as original, and thus qualify for copyright?

R: To establish copyright infringement, 2 elements must be proven:

1 ownership of a valid copyright and

2 copying of constituent elements of the work that are original

b. INS v. AP – AP stealing news

I: Can INS lawfully be restrained from appropriating news taken form bulletins issued by AP or any of its members, or from newspapers published by them, for the purpose of selling it to INS clients?

R: News is quasi property. Not a right to exclude all others, but to exclude others in the same field


-hot news items-time sensitive information


ii. Ideas and Systems

a. Baker v selden – book keeping system

I: Whether the exclusive property in a system of book keeping can be claimed, under the law of copyright, by means of a booking which that system is explained?

R: Cant copyright an art form, should have sought patent

d. Trademark

a. Trademark is a property right in a word, name, symbol, or device, or any combination thereof.

-Has to be commercially used to identify your own goods and to indicate the source of those goods

1. Qualitex v. Johnson-trademark of color

R: If there is secondary meaning to aid with identifying the goods. Protects consumer and company so no confusion between various goods

b. Weak to strong scale of trademark words

1. Generic terms: completely descriptive – NOT TRADEMARKABLE

E.g. cannot trademark your brand “Computers”

2. Descriptive: identify characteristic or quality – necessary that it has secondary meaning

More than a generic term – word is valuable

Choose word that’s descriptive

3. Suggestive: like descriptive, but you need a bit of imagination

E.g. Coppertone Sunscreen; Microsoft (SOFTware); Netscape (browse NET)

4. Arbitrary: goes further away from descriptive, use common term out of context

E.g. Apple Computers (wtf is Apple?), Lotus Cars

5. Fanciful : completely taking it to other edge, invent a word

E.g. Exxon-Mobil, Kodak

Strong and distinguishing itself from others

c. Choosing a brand name

1. Strong marks give better protection but require more investment in getting people to recognize you (e.g. Geico)

2. Weak marks will allow people to better associate you with your product, but gives less protection (e.g. E-surance)

3. Generic-ness: sometimes a brand becomes the generic term (e.g. Kleenex)

Companies sometimes actively combat generic uses of their name (e.g. Coca Cola)