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Property I
University of California, Hastings School of Law
Williams, Joan C.

–          P. 12: Discovery gave an exclusive right to extinguish Indian title of occupancy, either by purchase or by conquest
–          Indian title often denied because it didn’t conform to Western views
o        No Western system meant no ownership
–          Tee-Hit-Ton Indians v. US
o        Takings case – Native Americans didn’t get to share in pot of gold from sale of timber because they didn’t have title
§         Native American view of property – Possession and simultaneous possessory rights
o        Republican vision of property (INS v. AP hits on this)
–          INS v. AP
o        AP has no property rights w/ respect to public, but has w/ rights to INS
§         Emergence of relative property rights
o        Liberal view of property à focusing on creation of property rights
o        Relative v. absolute
§         Relative property rights: property defines social relationships, and titles are relative
§         Absolute notion: property rights present the notion of relationships
o        Dissent (Brandeis)
§         AP has no absolute property rights
·         Public interests’ needs limit property rights
o        Classic republican tradition
–          Have claim under Common Law of Misappropriation if:
o        Π generates or gathers information at a cost
o        The information is time-sensitive
o        ∆’s use of information constitutes free riding on π’s efforts
o        ∆ is in direct competition w/ a product or service offered by πs
o        The ability of other parties to free-ride on the efforts of π or others would so reduce the incentive to produce the product or service that its existence would be substantially threatened
–          Moore: property rights should be limited by the demands of human dignity
Wild Animals
–          Person who ends up w/ the animal in the end (has possession) is the owner
o        Doesn’t matter how much labor invested into the capture
–          Functionalist approach: Should construct rules to achieve goals
o        Converse of formalistic approach
Oil and Gas
–          Unqualified law of capture only applies when property owner acts reasonably. Part of legitimacy of title in oil is not wasting it
–          Law of ownership rights to minerals isn’t absolute in any way à subject to reason
o        Reasonable means what will benefit the common good; create the most oil in the long run
–          If A loses something and somebody else finds it, finder’s keepers
o        Except when A comes to claim the item à A still has true title
–          Lost: Owner accidentally misplaces item
–          Mislaid: Owner intentionally left item somewhere and forgot where she put it
–          Abandoned: Owner forms an intent to relinquish all rights in the property
–          Treasure trove: When valuables have been intentionally buried beneath the surface and never reclaimed by the owner, such property belongs to the State
o        This idea has been abandoned in the United States
–          Law defining rights between finders and landowners
o        If the finder is a trespasser, the landowner owns it
o        If the finder had permission to be on the land, then cts are divided
Transfer: Relativity of Title
–          Relativity of title: although A may prevail over B, O would prevail over A in a dispute
o        If you have prior peaceable possession and you’re ousted by a subsequent possessor, the prior peaceable possessor is treated as having primacy of right, even though she can’t prove her ownership
–          Ex: O lends car to A. W/o permission, A sells to B. Can O get car back from B? Cts sometimes vest title in “true owner” and sometimes grant title to innocent or “bona fide” purchaser
o        O may have title as against A, but not against B
–          A thief ordinarily has no right to transfer title to a third party
o        A thief never obtains title to stolen items, and one can pass no greater title than he has
o        Exception: UCC § 2-403
§         Bona fide purchaser will prevail over true owner when the true owner has entrusted the property to a merchant who regularly deals in such goods
–          Involves a gift of real property from a private owner to the public at large
o        Requires offer by owner and acceptance by public
§         Offer must be an unequivocal act by landowner showing intent to dedicate land to public use
§         Cts will sometimes find implied offers by one party who invites or permits the public to use her land for a long period of time
·         Acceptance may be made formally by passing a city council resolution or informally by taking over maintenance of the area or ceasing to collect property taxes on the parcel
§         An acceptance may be implied from the owner’s long and substantial public use, even absent governmental action
–          Long-standing acquiescence in use of beachfront property by the public may be interpreted as an implied dedication by the property owner and acceptance by the public à but this case was overturned by the CA legislature
–          The lack of reasonable alternatives should not be mistaken for choice
–          No one chooses to be homeless à become homeless due to a variety of factors out of their control
o        The harmless conduct for which they are arrested is inseparable from their involuntary condition of being homeless. Consequently, arresting people for harmless acts they are forced to perform in public effectively punishes them for being homeless
§         This is cruel and unusual punishment
–          One way to look at it is there

ufficient time under statute
o        Must be connected by privity of title or claim
·         Some states shorten statutory requirement if there is color of title (invalid title/deed)
o        Boundaries in this deed used to determine boundaries of possession
§         Adverse
·         Possession must be nonpermissive
·         Did the possessor act toward the land as if he owned it w/o permission? à Test differs by jurisdiction
o        Presumption: if other three requirements met, then presumption that there’s adversity
§         Can be used in cases where landowner has said nothing either way
o        Pure mind: adverse possessor had to be in good faith to get the land
o        Intent to trespass: adverse possessor had to know what he was doing
o        Objective/Restatement test: act like the owner of the land
§         Notorious
·         Is known or should have been known to a reasonable owner who should have reasonable notice of his property
§         Exclusive
·         The use is of a type that would be expected of a true owner of the land in question and that the adverse claimant’s possession cannot be shared w/ the true owner
o        Need to establish CANE for the whole statutory period
o        Also need to establish actual possession à fence or engaging in significant activities on the land
o        In the western states, payment of taxes is often another condition that must be met
–          Two adverse possessors who possess property jointly may acquire joint ownership rights as co-owners
Is Adverse Possession a Good Idea?
–          Pro
o        Creates responsible landowners
o        Favors the underdog à favors the republican view of widespread property distribution
o        Anti-waste à property designed to maximize wealth, so land lying fallow is going to waste
o        Shifts part of burden to property owner; good to have flexibility in settling boundary disputes
–          Cons
o        If you want to keep land in a wild state, AP makes you vulnerable because you have to keep improving on it
o        Intuitive image of property à “I can do whatever I want w/ my land”
o        Landowner should be secure in his property rights à What if he’s land-banking?
–          Always involves neighbors