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Property I
University of California, Hastings School of Law
Rao, Radhika D.




BLACK: Case book BLUE: Constitution/Statutes GREEN HIGHLIGHT: Policy arguments

BURGUNDY: Class notes RED: Case Names


GREEN: Titles and Subtitles PURPLE: Rules


< >: property is theft and argued that property is the source of many evils and inequalities. With property competition and inequality arise.


< >: labor is the foundation of property. “Whatsoever that he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.” right of property is the third absolute right after life and liberty. Property is absolute and individualistic. It is inherent intrinsic to the person, predates government. Property is natural right that predates government. : property exists to the extent the law will protect it; property and law are born together and die together. : property is not an absolute right but rather a bundle of sticks that include right to exclude, possession, use and control, transfer, right to destroy. Property right is a right endorsed by the state. In addition to being limited by the legal framework they are created in, property rights in a modern society are limited by another factor—right of others.


< >Positivism and Legal Realism: Property is whatever law says. Whether legal norm is legally valid depends on its source and not its merits. Judges only fill in gaps when not clear and when law does not directly apply and do it within the spirit of law. Emphasis on applying law; separate law and morals; Justice and Fairness (Rights argument): Gaps in the law must be decided with intention of promoting fairness and justice; some individual rights trump any public policy; focus on natural rights, labor (desert), autonomy, distributive justice Social Utility argument (Utilitarian): Efforts to promote general welfare or maximize social wealth.Kose theory. (Economic calculus) Internalizing the externalities. Internalize and do cost/benefit analysis. Choose legal rules to maximize utility measured in $. Moral calculus. Qualitative nature of harm/benefitEconomic analysis is indeterminate b/c it’s a function of the initial distribution of wealth and who you give the entitlement to. Just by virtue of having the entitlement b/c you can just buy it off. Social Relations. Property rights are relational; rights for one means vulnerability of other; shapes the power structures of the community (legal realists developed, now part of critical legal studies)Legislative Argument. Whether or not it is appropriate for judge to decide or legislature to decide. Proper relations between branches of government. Is it a narrow or broad holding? Judicial activism (imperative for judiciary to act) v. judicial restraint (this is for legislature to decide)Karl L. Bramble Bush. (Strict/narrow view of precedent; or The loose/broad view) (Friendswood: Broad). The doctrine of precedent is two-headed, it is Janus-faced There are two lines of doctrines.One doctrine for getting rid of precedents deemed troublesome and one doctrine for making use of precedents that seem helpful. These two doctrines exit side by side.The same lawyer in the same brief, the same judge in the same opinion, may be using the one doctrine the technically strict one, to cut down half the older cases that he deals with, and using the other doctrine, the loose one, for building with the other half.The Strict view – that view that cuts the past away is hard to use. An ignorant, an unskillful judge will find it hard to use: the past will bind him. But the skillful judge – he whom we would make free – is thus made free. He has the knife in hand, and he can free himself.LOOSE VIEW – the court has decided on any or all points on which the case rest on, no matter how broad the statementSTRICT VIEW – It is the recognized legitimate, honorable technique for whittling precedents away for making the lawyer in his argument, and the court in its decision free from them – it is the Surgeon KnifeINITIAL ACQUISITION

B. Competing Claims to Property:

RULE: According to the discovery doctrine whoever gets there first, gets the land. Discovery is connected to sovereignty, the right to govern the land. This is connected to the French and Indian war, where Britain claimed to have discovered the land in the Mississippi river first, and fought France since it had discovered the land second.

< >Johnson v. M’Intosh: Joshua Johnson’s (plaintiff) father was one of a group of men granted a tract of land by the Piankeshaw Indians, who were living on the land, prior to the American Revolution in exchange for a sum of money. After the Declaration of Independence, the county of Illinois, in which the land was located, was created by the State of Virginia. The Virginia delegates to Congress then conveyed the land to the United States government. About 35 years later, the United States government sold a portion of the land to William M’Intosh (defendant). Johnson brought this action to eject M’Intosh from the land.Holding and Arguments:

< >Land titles transferred by Indians to private individuals under foreign rule before the American Revolution are not recognized in the United States. Discovery of land brings with it the right to obtain title either by purchase or conquest, subject to the Indians’ right of occupancy.Under this case, the Indians have only a title of occupancy, which give the right to use and possess land, not have the power of alienation. The US had the right to extinguish/ acquire the titleWhat rights do the US have – absolute ultimate title subject to discovery ruleIndividuals cannot buy land, and only the discovering nation has the power to acquire the land.

C. Capture and Prior Appropriation:


RULE: Property in wild animals is acquired by occupancy, meaning at least mortally wounding and at most physical possession.

RULE: To constitute possession, one must physically capture or bring under certain control. Mere pursuit is no enough to constitute possession.

< >Pierson v. Post: Post (plaintiff) was hunting a fox and Pierson (defendant), seeing this, captured and killed the same fox. Post brought a trespass suit claiming that he had legal possession of the fox. The lower court found in favor of Post. Pierson appealed.Holding and Reasoning: Mere pursuit of a wild animal, without mo

much as possible as long as the taking isn’t wasteful (Acton v. Blundell) Reasonable Use RULE: Each property owner whose land overlies common pool of resource has a reasonable right to get their fair share,

the percentage that is underneath your land.

< >Surface water. (Streams): Generally subject to reasonable use test – either by balancing the types of uses or by splitting between all riparian owners; a few western states hold to prior appropriation for the stream

D. Labor and Investment

RULE: A quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade.

RULE: While there is no continuing property right against the public in uncopyrighted news matter after it is initially published, a commercial news source does retain rights to the material against other news sources.

RULE: Competitor news sources owe each other a duty to conduct their own business in a manner that will not unnecessarily or unfairly injure the business of others.

< >International News Service v. Associated Press: AP brought suit against INS seeking an injunction prohibiting INS from pirating AP’s news. Specifically, AP alleged that 1. INS was bribing its members to furnish AP news to INS so it could then publish the news to its own clients. 2. Additionally, AP alleged INS induced its employees to ignore company by-laws and provide news to INS before publication. 3. Finally, AP alleged INS copied news from bulletin boards and early editions of its newspapers, and then sold the news to its own customers. Holding and Reasoning: The right to exclusively sell news one has gathered through its own time, labor, and money is a quasi-property right, and interference with this right constitutes actionable unfair competition. INS is liable for unfair competition because it interfered with AP’s quasi-property right in selling its gathered news. The court says they are not giving monopoly to the plaintiff but rather rule for postponing participation by competitors to the extent necessary to prevent that competitor from reaping the fruits of plaintiff’s effort and expenditure. POLICY ARGUMENT: Social Utility: We want people to have access to the news, but if we give property rights to AP, then the AP will have a monopoly. When AP published its news on a public bulletin, it gave up its property right in the news matter. Thus, INS cannot be liable for unfair competition by taking and selling this news matter to its own customers. This result is necessary as a matter of public policy.