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Property I
University of California, Hastings School of Law
Massey, Calvin R.

Possession & Personal Property: [1]1
Cases – Possession & Personal Property: [1]12
Freehold Estates: [175]17
Cases – Freehold Estates: [175]23
Future Interests: [225]25
Cases – Future Interests: [225]33
Concurrent Ownership & Marital Interests: [275]33
Cases – Concurrent Ownership & Marital Interests: [275]43
Leasehold Estates: [363]46
Cases – Leasehold Estates: [363]48
Nuisance: [639]48
Cases – Nuisance: [639]51
Servitudes: [667]53
Cases – Servitudes: [677]66
Eminent Domain & Regulatory Takings: [941]72
Cases – Eminent Domain & Regulatory Takings: [941]75
Keyed to Dukeminier, et al., 6th Edition 2006.

Possession & Personal Property: [1]

Property in General: Property is socially contingent. Its meaning varies across cultures and, over time, within cultures. Property is whatever interest in a thing the legal system protects against invasion by others; therefore property rights depend upon state power [16n6]. Moreover, property rights are not absolute. Property is relative – it describes the relationship btw people with respect to things, not the relationship btw persons and things.

Theory: The following theoretical explanations of property are:

i. Labor Theory: Locke is the originator of the idea that by mixing your labor with something unowned (e.g. catching a wild fish) you own the resulting mixture of labor and object [14n4].
ii. Utilitarianism: Hume and Bentham argued that property was utilitarian – we protect others’ possessions as property b/c we desire the same protection for our possessions. The implicit root of property in this theory is possession [11n3].
iii. Economic Efficiency & Externalities: Property is economically efficient. If everything is unowned, or owned communally, under conditions of scarcity people will unduly deplete the resource b/c the individual gain from depletion is greater than the individual cost (i.e. tragedy of the commons). Yet, from the society’s perspective, the aggregate gains from depletion are less than the total cost. To an individual these additional costs are external. Demsetz theorizes that property helps to internalize these costs, so that individuals make economically efficient judgments. Theoretically, property rights should naturally form when the gains outweigh the cost of internalization [35, 41].
1. HYPO: If the Atlantic cod fishery is unowned, individual fishers will take as much cod as they can, since the cost of over-fishing is borne by others – external to them. Eventually, there will be no more cod. If each fisher had an individual property interest in the fish, the incentive to over-fish would be reduced, to the long-run benefit of the fisher and to the society.
2. Coase Theorem – No Transaction Costs: In the absence of transaction costs, resources will be put to their most efficient use. It no longer becomes necessary to penalize a party for activities that create negative externalities. Instead, impacted parties will use their resources to eliminate the externality [45fn28].
iv. Custom: Property has a customary root. People engaged in a common activity (e.g. whaling or cattle ranching) often develop customs that govern their relationships btw themselves and toward their objects of acquisition or husbandry (e.g. whales or cattle). Some customs acquire force of law.

Doctrine – Sticks in the Property Bundle: Property may be broken up into constituent elements: (1) the right to use; (2) the right to exclusive possession, and; (3) the right to dispose or transfer. These elements are important to what constitutes property, but it is not possible to say, for example, that the combination of any two makes property [81n2].

Possession: Possession of an object implies its ownership. But it has a dual quality. It can mean the physical act of possession and it can mean the legal conclusion that someone is in possession of an object. Usually, the first actual physical possession of an unowned object makes you its owner, but even this must be qualified, b/c property rights are relative to others.

Discovery, Capture, and Creation of Property: There are several methods of acquiring property rights in unowned things.

i. Discovery: Acquisition by discovery is related to first possession. If you discover a rare shell on an unowned beach you are simultaneously its discoverer and first possessor. Discovery also includes conquest, where conqueror acquires title by force. See Johnson v. M’Intosh (P’s title, purchased originally from the native Indians, was superseded by D’s title, which was granted by the U.S. government, b/c Indians only had occupancy rights) [3].
1. Embedded Objects and Treasure Trove: Property embedded in or under the soil is awarded to the landowner. The landowner is entitled to things under his property (e.g. oil).
ii. Capture: Unowned property that is captured (e.g. wild animals, fugitive minerals such as oil and gas) becomes the property of the person effecting the capture. The unowned thing must be actually possessed for it to become property. See Pierson v. Post (P was in pursuit of a fox when D suddenly appeared, shot the fox, and took it. D allowed to keep fox as capturer) [17].
1. Policy: Property doctrine tries to serve the following four values: (1) reward productivity and efficiency; (2) create simple enforceable rules; (3) create rules consistent with customs; (4) produce fair outcomes. Courts analyze whether holding will advance or retard desirable social objectives. See Keeble v. Hickeringill (D liable for maliciously scaring away birds from P’s duck decoy pond) [27].
2. Custom: But possession may sometimes be decided by custom, particularly when those customs embody sound public policies. See Ghen v. Rich (D liable for violating custom when he sold dead whale marked with P’s lance that D found on beach rather than informing P of find) [23].
3. Relative Title: A person’s claimed property right must be looked at in relation to others. Landowner’s right to exclude is superior to the right of first possession. For example, if T1 trespasses on L’s land and takes wild animal and then T2 comes and steals the animal from T1. Btw T1 and T2, T1 wins as first possessor. But L has a better claim than either T1 or T2 as prior possessor via his constructive possession of wild animals on his property. This also supports the policy of not rewarding wrongdoers [31n1].
4. Fugitive Minerals: Courts are split on how to handle fugitive minerals, such as oil and gas. Originally, the law pertaining to wild animal capture controlled. The primary policy concern is fostering efficient exploitation of the resource. Compare Barnard v. Monongahela Natural Gas Co. (Oil reservoir was open to all drillers) and Union Gas & Oil v. Fyffe (P can get injunction to stop D from excessively extracting oil from under P’s land) [33n1].
iii. Creations: Lots of property is acquired by creation (e.g. copyrights and patents). A key issue with IP is the degree of exclusivity the creator ought to have. Cultural expectations shape legal views of the nature and extent of creative property (e.g. recent development of property interest in their own celebrity, or patentability of genetically engineered bacteria).
1. Exclusivity: Creators of IP are generally granted exclusive rights to exploit their creation. The law of misappropriation is used to determine when imitation is permissible (promoting consumption) and when it is not (b/c it will destroy the incentive to create). See International News Service v. Associated Press (P granted injunction to prevent D from copying its news bulletins and redistributing them) [51] and Cheney Brothers v. Doris Silk Corp. (P’s complaint to prevent D from selling copies of their silk patterns dismissed) [55] and Nichols v. Universal Pictures (D not infringing on P’s copyright by creating a movie with similar themes to P’s play) [59] and Diamond v. Chakrabarty (D able to patent genetically engineered bacteria as a novel “composition of matter”) [60].
2. Personal Image: The ability to exploit your image for profit is a protected property right. See White v. Samsung Electronics America (D not allowed summary judgment on P’s claim that D’s commercial of robot next to Wheel of Fortune infringed on P’s publicity rights by “reminding the viewer of her”) [62].
3. Third-Party Liability: A party who distributes a commercial product that could be used to facilitate infringement, but has substantial non-infringing uses is not liable for the infringement, unless they had knowledge of specific acts of infringement and failed to act. See Metro-Goldwyn-Mayer v. Grokster (D not allowed to distribute file-sharing software with the object of promoting its use to infringe copyrights) [65].
4. Property in One’s Person: While we have the right to exclusively possess and use our body (and its parts), it is generally market-inalienable (i.e. can gift but not sell). This is an example of property without all the “sticks in the property bundle” (no right to dispose/transfer). See Moore v. Regents of the University o


i. Rationales: There are three policy rationales for adverse possession.
1. Sleeping Theory – Holmes: If the true owner doesn’t care enough to protect his interest in possession, he deserves to lose title [113].
2. Earning Theory – Ballantine: An adverse possessor who takes possession and stays there for the limitations period has probably expended time, energy, and money to make the land productive and so should be rewarded for his efforts, at least when the true owner has not bothered to recover possession [113].
3. Stability Theory – Powell: Adverse possession operates to resolve disputed claims of title and possession after there has been a long wrongful occupation with no action to recover possession. Adverse possession promotes efficient resolution of such disputes [112].
ii. Elements: For the true owner’s claim of possession to be time-barred, the adverse possessor’s occupation must meet the following elements:
1. Actual Entry: The adverse possessor must take actual and exclusive possession of the property. Exclusive possession means to exclude the world, except by permission of the possessor (such that observers would regard the occupier as the exclusive owner). Actual possession means to physically take possession of the land. See Van Valkenburge v. Lutz (D denied adverse possession of land he farmed for 30+ years b/c he didn’t sufficiently cultivate or improve it and therefore didn’t actually possess it) [115].
a. Usage: It is generally held that for entry and exclusive possession to ripen into title by adverse possession, the occupier must use the property in the manner that an average true owner would use it under the circumstances. See Ewing v. Burnet (D adversely possessed an unimproved lot where he dug sand and gravel intermittently, allowed others to do the same, and brought action against those to did so without his permission) [124n2].
2. Open & Notorious: The adverse possession must be readily detectable to a true owner by being the type of occupation a true owner would make. Even if the owner doesn’t have actual knowledge of the occupation, they are presumed to have constructive notice.
a. Underground Occupation: For possession of a subsurface location to be open and notorious, the owner must know of the occupation, or at least know that it is accessible to outsiders. See Marengo Cave Co. v. Ross (D’s occupation of cave under P’s land not notorious despite running public tours of cave) [125n3].
b. Boundary Disputes: Some courts hold that encroachments by one neighbor onto the land of another is not open and notorious if the encroachment is of a small area and is not clearly and self-evidently an encroachment. In such situations, the limitations statute does not begin to run until and unless the owner has actual knowledge of the encroachment. See Mannillo v. Gorski (D added stairs that extended 15 inches onto P’s land. Incursion so minor that it would only be notorious from the time P actually knew about it) [130].
c. Inquiry Notice: If you’ve been given inquiry notice of an encroachment (i.e. notice that there might be an encroachment), do you have an obligation to investigate?
3. Hostile or Under Claim of Right: There are three different views of hostility [126n4]:
a. Good Faith: The adverse possessor must actually believe, in good faith, that he is entitled to possess the property.
b. Objective – Connecticut Doctrine: The adverse possessor’s acts and statements relevant to his occupation objectively appear to be claims of ownership. Therefore, his mental state is irrelevant. See French v. Pearce [132].
Aggressive Trespass – Maine Doctrine: A minority of