Crawford – Property Law – Spring – 2015
2 Conceptions of Property-Philosophical Perspectives
● Essentialists: attempt to uncover the single true definition of property as a legal concept. (Jacques)
○ In rem: good against the world
● Skeptics: it is fruitless to try to come up with a single canonical conception of what property means in a legal system. “bundle of sticks.” metaphor (Hinman)
○ In personam: right against the person
Ex Ante/Ex Post Problem
● Ex ante analysis: An analysis of the situation BEFORE some critical event takes place
● Ex post analysis: An analysis of the situation AFTER a critical event occurs
Exclusion and Governance
● Exclusion = If there is a dispute over land, the owner will have complete authority over how the land is going to be used (gatekeeper/manager)
● Governance = Government will determine how owner is going to use his/her land (Use)
Types of Damages
● Nominal damages: Trifling sum when there is no actual harm; Used to vindicate the legal right.
● Compensatory damages: Compensates actual economic damages.
● Punitive damages: Deterrent effect outside of the criminal perspective; Usually with recklessness, malice or deceit
○ State Farm v. Campbell (2003): exceeding a 1:9 ratio of punitive damages = excessive
○ Rationale: If nominal damages are the only available remedy, trespassers may do cost-benefit analysis and see it is beneficial to trespass
Trespass to Land
● Right exclude is paramount
● Physically enter the property
● No intent or actual harm necessary
● This includes space above and below physical land, as long as it’s actually used
Case: Jacque, Hinman
Nuisance
● Public Nuisance
○ Is public nuisance if unreasonable use of property in relation to the particular locality
● Private Nuisance
○ Substantial AND unreasonable interference
● Balancing test of unreasonableness
○ Determined by balancing landowners’ interests
■ Interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm
■ Gravity of harm extent, character, social value, suitability of particular use/enjoyment, burden on person harmed of avoiding harm
● Alternative Balancing Test
○ Determine whether D committed some kind of invasion of P's land that causes harm above a certain threshold
○ Enforce a general understanding of what constitutes normal uses of land
○ Temporal priority
○ Determine whether P or D has been acting in a way consonant with general norms of neighborliness
Case: Hendricks v. Stalnker
Trespass
Nuisance
Protect Possession
Protect use/enjoyment
Clear and strict test
NO clear or strict test
No Harm
Need to show considerable harm
Invasion of land by something big and solid
Invasion of land by something small
Employs exclusion strategies (court only cares about if landowners can exclude) → gatekeeper/owner
Employs Governance strategies (court determines how one can use land) → use
Coase Theorem
● No transaction costs: efficient allocation of resources will occur regardless of the choice of legal rule.
● Positive transaction costs: efficient outcome may NOT occur under every legal rule–it matters who starts with the given legal right.
○ Most favorable outcome: Minimizing the transaction costs AND maximizing value
● Problems with theory: Difficult to assign monetary values to goods, people are not always rational maximizers, and endowment effect
● Factors creating high transaction costs
○ Assembly problems: Assembling property rights from a large number of owners in order to undertake some project
■ Some owners might hold out for a generous payment
○ Bilateral monopoly (localized monopolies): Owner of property needs something that can be provided by only one other person or entity
■ Physical lay of the land caused each party to only have the other as a possible negotiating partner
■ Because there’s a monopoly on each side, only one seller and one buyer for a contest resource
● Always consider potential coasean bargains in lieu of litigation
Property and Equity
● Traditional rule: Trespass could only result in legal remedies (award of money damages). Mere trespass is NOT sufficient to grant equity remedies (injunctions).
● Exception to traditional rule: Repeated trespass
○ Threshold issue: Whether there was actionable trespass
○ If YES > money damages
○ Injunctive relief further requires:
1) Clean hands
2) Remedy at law is inadequate (damages are intangible or irreparable harm OR threat of repeated trespass)
Case: Baker v. Howard County Hunt Club
● Building encroachments
○ Minority (Pile): Absolute right to injunction
○ Majority (Golden press):
■ If intentional → always injunction;
■ If unintentional/good faith → weigh circumstances
■ injunction may be denied if (all four has to meet):
1) D’s encroachment is unintentional & slight
2) P’s use not affected
3) P’s damage small & fairly compensable
4) Cost of removal great
● CA Good faith Improver act: Good faith/Unintentional + Non-negligence
● If there is an absence of evidence, there is a presumption of good faith
Case: Pile v. Pedrick and Golden v. Rylands
Original Acquisition
● First Possession – being the first to possess something that is unclaimed
○ Wild Animals
■ Minimum standard for possession = wounding + fresh pursuit, capturing/trapping
Case: Pierson v. Post
○ Whales
■ Fast-fish-loose rule: A whale belonged to the first harpooner as long as it was attached to his boat (default)
■ Iron-holds-the-whale rule: The first harpooner would get exclusive rights to the whale as long as he was in fresh pursuit (applies to sperm whales)
■ Finback: The first harpooner would get exclusive rights in the whale
Case: Ghen v. Rich
● In competition for resources:
○ If malicious and wasteful interference with someone’s livelihood = actionable Interference
○ If honest competition = no interference
Case: Keeble v. Hickeringill
Tragedy of the commons = Degradation of the environment is to be expected whenever many individuals use a scarce resource in common
● Externalities: Person engaging in the activity is NOT incurring any costs
● Potential costs:
○ NO incentive to cultivate OR replace the good that they are extracting
○ Extraction may be non-time o
ves for protecting property:
○ Incentive for IP/Intangible Goods: Produce more of it
○ Incentive for Tangible Goods: Assure that it is allocated efficiently among potential users
Misappropriation and Quasi-Property
● Misappropriation: One shouldn’t be allowed to reap what another has sown–Unfair competition
Case: International News Service v. Associated Press
Right of Publicity
● Immunity:
○ Immunity will be granted: The purpose of the media use of a person's identity is informative or cultural
○ Immunity will NOT be granted: The purpose of the media use of a person's identity serves no such function, but exploits the individual portrayed
● Generally: When a distinctive likeness (voice, face) of a professional is widely known, a seller cannot deliberately imitate it in order to sell a product
○ Factors:
■ Commercial: People could actually be confused of whether she was endorsing the product)
■ Deceptive: What you are evoking is unique in some way
● California: Actual name, voice, likeness where the use is commercial (Cal. Civ. Code §3344)
● Misappropriation of an imitated professional singer’s voice:
○ Midler v. Ford Motors (1998): Violator imitated a professional singer’s voice where the use was commercial AND deceptive
● Misappropriated evocation of a unique public role:
○ White v. Samsung (1993): Violator evoked a unique public role where the use was commercial BUT NOT deceptive
Principle of Accession: A way in which property rights are acquired without voluntary conveyance
● Doctrine of Increase: Increase offspring or increase of tame or domestic animals belongs to the owner of the dam or mother. Partus sequitur ventrem (the offspring follows the mother).
○ This is a rule not a standard, there are no exceptions
● Doctrine of Accession: Applies when someone mistakenly takes up a physical object that belongs to someone else and transforms it through her labor into a fundamentally different object
○ Elements
■ 1) Good Faith AND
● Reasonable grounds for taking—i.e. a taking by mistake
■ 2) Fundamental transformation
● a) Physical (change of species), OR
○ Change of Species Test: When the original material cannot be perceived by the senses, the fundamental transformation prong is met.
■ Ex of change of species: grapes to wine, olives to oil, timber to house
■ Ex of no change of species: cloth to clothes, leather to shoes, iron to bars
● b) Significant increase in value + some physical transformation
○ Note: There is NO bright-line rule for what constitutes as “significant”
