Select Page

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

Chapter 1: The Concept of Property
I. Why Recognize Property?
     A. 5 Theories of Property
           1. Protect 1st Possession (1st in time, 1st in right)– describes how unowned things become owned
              a. Want to protect 1st possession
              b. 1st person to take occupancy or possession of something owns it
          2. Encourage Labor – property acquired through labor
              a. B/f labor was added, thing had no value. Once labor was mixed in, value arose –thing became
                 private property.
              b. Modern context: may apply to newly created property – copyrights & patents
          3. Maximize Societal Happiness – recognize property in order to max. overall happiness of society
  a. Means toward end –distribute & define property rights in manner that best promotes welfare of all
              b. Law & economics variant of utilitarianism – property seen as an efficient method of allocating
                  valuable resources in order to max. one particular facet of societal happiness à wealth
                  1. Property exists to ensure that owners use resources in an efficient manner –manner which max.
                      econ. value à person’s willingness to pay
                  2. In order for an econ. to reach its optimal level of production –Needs 3 basic features:
                       i. Universality – all valuable, scarce resources must be owned by someone
                      ii. Exclusivity –exclude others from use & enjoyment of property
                     iii. Transferability of property
           4. Ensures Democracy – recognize property & ownership b/c it provides individual w/economic security
               necessary to make political decisions that serve common good
                a. Right to own private property has an important salutary effect on citizen’s relationship w/the state
                    & citizen’s understanding of that relationship
                b. Personal security & personal independence from gov’t are guaranteed in a system in which right of
                    ownership is protected through public institutions
                c. In a state which private property doesn’t exist, citizens dependent on good will of gov’t officials –
                    seen as beggars rather than right holders
                d. Facilitating relationship b/w state
                e. Legal positivism- property exists only to extent it is recognized by the gov’t
           5. Facilitate Personal Development (personhood) – property is necessary for an individual’s personal
                a. To be a person, an individual needs some control over resources in external enviro. –necessary
                    assurances of control take form of property rights
II. Two Stories: The Fox & the Celebrity 
     A. Pierson v. Post, (1805) (fox hunting)  
          1. Ferae naturae –unowned, wild animal
              a. Property in such animals can be acquired by occupancy; pursuit alone vests NO property right, even
                  pursuit w/wounding, UNLESS animal is actually taken.
          2. Rule of Capture: Property rights can be acquired through actual possession or mortally wounding
              animal –since pursuer manifests unequivocal intention of appropriating animal to his individual use
              –depriving it of its natural liberty, bringing it under his certain control. Moment of possession gives
              legal right to property in fox. ONLY applies to a wild animal in an UNOWNED space
              a. 2 Elements:
                   i. Depriving animal of its natural liberty
                  ii. Control/conduct
          3. Ratione soli –“according to the soil” wild animals/resources considered to be in constructive
               possession of the landowner  
          4. 1st Possession approach to property –property rights in a wild animal acquired by 1st person to take
              possession of animal, legal rights commence w/1st possession – control
              a. Approach also used to allocate property rights to natural resources –ownership of oil given to 1st
                 person who physically possessed it
      B. Difference b/w Possession, Constructive Possession & Abandonment
          1. Possession
              a. 2 Elements
      i. Intent to possess
     ii. Actual Possession –control over item
          2. Constructive Possession
              a. 2 Elements
                  i. Intent/want to possess
                 ii. Don’t have actual possession yet
          3. Abandonment
              a. 2 Elements
                 i. “I intend to relinquish my right”
                ii. “I actually relinquish my right”
     C. White v. Samsung Electronics America, Inc., (1993) (Vanna White robot)
          1. Right of Publicity –CL right may be pleaded by alleging:
               a. D’s use of P’s identity
               b. Appropriation of P’s name or likeness to D’s advantage, commercially or otherwise
               c. Lack of consent
               d. Resulting injury
o   Does not require that appropriations of identity be accomplished through particular means to be actionable
o   Developed to protect commercial interest of celebrities in their identities not important how D has appropriated P’s identity but whether D has done so
o   Not limited to name or appropriation of likeness
           2. TV & other media create marketable celebrity identity value
           3. Introduces different source of property –creation – law usually vests title in person who creates an
               entirely new thing
III. What is Property?
o   Rights among people concerning things –bundle of rights – “bundle of sticks”
           1. Right to transfer
           2. Right to exclude
           3. Right to use
           4. Right to destroy
o   4 Implications of rights
           1. Property rights are defined by gov’t
           2. Property rights are not absolute –property rights are relative
           3. Property rights can be divided
           4. Property rights evolve as law changes
     A. Right to transfer –alienability –as a general rule, any owner may freely transfer or alienate any of her
          property to anyone. Occasionally law restricts who can transfer or obtain property, ex. insane person.
          Law regulates what property can be transferred –sometimes can’t be transferred at all, while others
          can’t be sold (body parts)
           1. Johnson v. M’Intosh, (1823) (Native Americans)
               a. Discovery & conquest gave title to European gov’ts exclusive right to discover & appropriate lands
                   occupied by Native Americans
                   i. Extinguished Native American title of occupancy- by purchase or conquest  
               b. Right of original inhabitants (Native Americans) impaired- rights to complete sovereignty
                   diminished & their power to dispose of their land to whomsoever they pleased was denied by
                   principle that discovery gave title to those who made it
                   i. Native Americans seen as occupants, DON’T have the right to transfer & DON’T have title
               c. Property rights are defined by the gov’t
                   i. To own property in US – it must trace back to an original chain of title, if not, then it is not
                        à Chain of title –succession of ownership over time
           2. Moore v. Regents of the University of California, (1991) (patented cell line)
               a. Conversion –SL tort that protects against interference w/possessory & ownership interests in
                  personal property
                   i. To establish conversion, P must establish actual interfe

ü  Nuisance protects owner’s use & enjoyment of land, non-trespassory invasion
ü  Spite Fence: unusually high fence along owner’s property line for the sole purpose of annoying his neighbor
          1. Sundowner, Inc. v. King, (1973) (spite fence)
             a. One may not erect a structure for the sole purpose of annoying his neighbor, courts hold that a
                 spite fence which serves no useful purpose may give rise to an action for both injunctive relief &
                 i. To hold otherwise, would make law a convenient engine to injure & destroy peace & comfort
                     comfort & to damage property of one’s neighbor for no other than a wicked purpose
              b. No property owner has right to erect & maintain an otherwise useless structure for sole purpose of
                  his neighbor
           2. Elements for Malice in a Private Nuisance Claim:
                a. Intentional
ü  Acts for purpose of causing harm or knows that harm is resulting or is substantially certain to result from conduct
                b. No trespass
                c. Unreasonable (gravity of harm outweighs utility of actor’s conduct)
                d. Substantial interference
                e. W/use & enjoyment of P’s land
           3. Prah v. Maretti, (1982) (solar panels)
               a. An owner of land DOES NOT have an absolute or unlimited right to use land in way that injures
                   rights of others. Rights of neighboring landowners are relative – uses by one must not unreasonably
                   impair uses or enjoyment of other. When one landowner’s use of her property unreasonably
                   interferes w/another’s enjoyment of her property -use is said to be a private nuisance  
               b. Obstruction of sunlight might be found to constitute a nuisance in certain circumstances, but does
                   not mean that it will be or must be found to constitute nuisance under all circumstances
     D. Right to destroy –NOT absolute
·         Law is reluctant to interfere w/an owner’s freedom to abuse, or even destroy her property
          1. Eyerman v. Mercantile Trust Co., (1975) (house demolition)
              a. No individual, group of individuals, nor community benefits from senseless destruction of house –
                  –instead all are harmed & only caprice of the dead testatrix is served
              b. To allow an executor to exercise such power stemming from apparent whim & caprice of the
                   testatrix contravenes public policy
              c. Against public policy –conflicts w/morals of time & conveyances any established interest of
                  society. Acts are said to be against public policy when the law refuses to enforce or recognize them,
                  on grounds that they have a mischievous tendency to be injurious to interests of the state
              d. Senseless destruction serves no apparent good, a well ordered society cannot tolerate waste &
                  destruction of resources when such acts directly affect important interests of other members of