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Property I
University of California, Hastings School of Law
Crawford, John

Theories of Property
Bundle of rights:                                                        
Right to use and control                          
Right to exclude
Power to transfer  (Alienability)              
Power to devise or bequeath
Right to destroy
Immunity from damage (harm or loss)    
Immunity from expropriation
Conquest and Government Distribution of Land – Conquest gave an exclusive right to extinguish Indian title of occupancy, either by purchase or by conquest
Johnson v. M’Intosh
M’Intosh granted land by King.  Johnson purchased land from Indians.  Who owns the land?  M’Intosh
What is the power of Indians to give land?
M’Intosh’s arg:
Indians did not really own the land, discovery principle gave exclusive title to those who found it
Arg. 1: Indians in state of nature, weren’t cultivating it, used it for hunting (non-exclusive)
Arg 2: Even if they owned the land, they were conquered and thus cease to own it
Arg 3: Even if they still own the land, Indian’s didn’t believe in exclusivity of property so when they sold it the Indian belief applied
Land is acquired only through conquest or purchase.
Established US power over land, protects Indians from future expropriation of land, Indians used this case to win back land and money
Capture and Prior Appropriation
1. Free Use / Capture Rule:  Own everything you can kill or control (Pierson)
If multiple captors – equitably divide property (Papov)
Policy reason: easier to administer
Disadvantages: Doesn’t recognize labor and investment, destroys incentive to hunt
Pierson v. Post
Post chasing fox, Pierson shouts and kills fox claiming fox.  Who gets fox?  Pierson
Animals belong to no one until captured.  Mere pursuit does not give one possession, but mortal wounding would be sufficient as a capture.
Own everything you can kill or control.
2. Capture with Negligence Exception: A landowner can take as much as he can capture, but is liable if done negligently so as to waste or destroy the resource (Elliff)
Elliff v. Texon
Capture with Negligence Exception
Texon drilled negligently causing Elliff’s well and reservoir to be destroyed.  Can Elliff recover for lost oil and gas even if it had not been captured yet?  Yes
Texon’s arg: Law of capture says landowner owns the oil and gas produced from his wells even if it may have migrated from another’s land, you own what you capture.
Exception to law of capture: If gas was negligently withdrawn and destroyed it was not captured.  No right to destroy oil and gas.
Landowner can take as much as can capture, but can be held liable if done negligently so as to destroy the resource.
3. Free Use / Absolute Ownership Rule: A landowner is free to withdraw as much water as he likes from beneath the surface of his property, even if it has the effect of withdrawing water from beneath neighbor’s property
4. Correlative Rights / Individual Ownership Rule: A landowner may withdraw specified portion of groundwater in proportion to what percentage underlies his property à allocate rights in advance
5. Prior Appropriation Rule: Whoever uses it first gets present and future rights (only applies to water)
6. Reasonable Use Test: Each owner must accommodate the interests of neighboring owners
·         Courts may balance the interests of the parties and compare the relative utility of the uses
o   Factors to consider:
§  Relative social value of each owner’s use
§  Extent of harm to D
§  Cost of preventing harm relative to benefit
Popov v. Hayashi
Ball is in Popov’s glove but Hayashi ends up with ball.  Who owns ball?  Both claims are compromised so sell the ball and split the profits.
Pierson’s majority would say Hayashi owns ball because he ended up with it.
Both have an equal and undivided interest in the ball, only fair way to decide is to sell the ball and split the profits.
2 Rules:
Gray’s Rule – Actor must retain control of the ball after incidental contact with people and things
Court’s Rule – When an actor takes significant but incomplete steps to possess abandoned property and the effort is interrupted unlawfully, the actor has pre-possessory interest in property.
Lost Property
Prior Possession: Best evidence of ownership
Relativity of Title: Original owner has best claim, but finder has relatively the best claim over property over everyone but the original owner
Policy – allows for stable society: protects finder without perfect title, promotes productive use even though no perfect title, reward labor by giving privilege to finder who exerts effort
Lost:  Owner accidentally misplaced property
Finder does not acquire title, original owner has title
Finder has superior claim of right to third party
Mislaid:  Owner intentionally left it somewhere, but forgot where she put it
Finder does not acquire title, original owner has title
Finder has superior claim of right to third party
Abandoned:  Owner intentionally relinquishes all rights to property
Finder has title unless on private property
Private Property:
·         If finder is trespasser à landowner gets possessory right to object/property
·         If finder is invitee à Courts are split
·         Private home à Homeowner gets it
·         Property open to public
o   Lost property goes to finder (Rao) v. Lost property goes to landowner
o   Mislaid property goes to owner of premises (more likely for property to be claimed)
·         If object is embedded in soil – In absence of stat

they please with their bodies; poor would benefit and those in need would as well; better for patient to have healthy kidney than from cadaver; it occurs anyway so should regulate it; gives opportunity to disadvantaged
Moore v. Regents of UC
D treated P and then used cells from P’s diseased spleen to create and patent a cell line, without P’s knowledge.  P claims 1) breach of fiduciary duty, and 2) conversion.  Court held there was a breach but no conversion because P had no property rights in his excised body parts.
CA statutory limits on what you can do with body parts after removal limit the bundle of rights to body parts so much that it cannot be considered property
P’s cells are not unique, everyone has them, so they can’t be property
Products of “human ingenuity” so can be patented, naturally occurring organisms may not be patented
Human tissues should not be viewed as sellable commodities
Protects and promotes valuable research from crippling law suits
An individual does not retain property rights in cells excised from his body.
Relativity of Title
In General – Refers to who has the better claim over the title, in a case between two people who do not have true title to the land, the person with the relatively better claim will win
Color of Title – The appearance of a legally enforceable right of possession or ownership.  A written instrument that purports to transfer ownership of property but, due to some defect, does not have that effect.
Theft – One can only convey to someone else only what one owns.  One can pass no greater title than one has.  (Ex: A thief never obtains title to stolen goods and therefore ordinarily has no right to transfer title to a third party)
Voidable Title – Although the true owner would be able to recover the property from the thief, he may not be able to recover it from a bona fide purchaser.  The thief has “voidable title” because he has the power to divest the true owner of title and transfer.
Bona Fide Purchaser – One who is innocent (has no knowledge that the property is stolen) and paid fair value (did not receive it as a gift)
Generally, a bona fide purchaser of stolen goods receives no title and must surrender it to the true owner because the thief could not transfer a title he did not have