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Property I
University of California, Hastings School of Law
Carrillo, Jo J.

Property Fall 2007
Professor Carrillo-Ostrow

Goals of Property
· Encourage efficient and productive use of land (competition is GOOD b/c it furthers efficiency).
· Protect investments (property is an extension of a person). Ex. Moore, Nuisance, Trespass.
· Keep land marketable (someone Must own it).
Balance Against
· Furthering grantor’s intent (interests).
· Serve human needs.


Doctrine of Discovery = First person to sight or find unchartered territory can take possession of it. The discovering country has the right to acquire good title from the original inhabitants, either by purchase or conquest.

Chain of Title = your title is only as good as your “predecessor in title” – if your predecessor didn’t have complete title, you don’t have complete title and risk having your ownership challenged
-For land in the US, all title must trace back to the US (title derives from sovereign)af
-Real time v. Law time à Law time is better

Labor Theory = When you put your work into something, you own it; your labor transforms something unowned into something owned. Labor can give a person title to common property. It protects investment, promotes productivity, and allows for capture of resources so owners can invest in it. Elkus v. Elkus: Look below.

Johnson v. M’Intosh – Because NAs only had right of occupancy (not possession), person who bought land from U.S. gov’t has superior title to person who bought land from NA chief


Possession = key concept of American property law: If you have possession of something, you probably own it (possession is a presumption of title)

Two Elements:
1) Intent = will to have power over something
2) Control = actually take power over it

Kinds of Possession:
1) Actual possession = form the intent to take control of something and then manifest that intent and carry it out
2) Constructive possession = not using body to control item(s), tool that gives access to item, ex: keys to a car
3) Symbolic possession = a representation to the world of possession, ex: flag

First Possession = First come, first served. First in time is first in right …the first person to intentionally take control of something previously unowned becomes its owner, first in chain of title

Rule of Abandonment: The mirror-image of possession; returns property to the commons.
(1) Intent to relinquish your rights and (2) to do so.

The Rule of Capture = in order to get title of ownership of a wild animal (applies also to fugitive resources) the first person to reduce the animal to possession wins (gets title) à Winner takes ALL, cannot be forced to share
-Pursuit alone is not enough, Capture (4 elements) = 1) kill, 2) mortally wound, 3) trap without possibility of escape, 4) harvest
-Title by capture à INSTANT

Pierson v. Post – Post was chasing fox when Pierson kills it and claims it. Pierson is the winner because Post did not meet all elements of Rule of Capture

Causes of Action: Trespass v. Trespass on the Case
-Trespass = an action brought to recover damages for interference with one’s property/entry to one’s property without permission, requires ACTUAL harm – crossing a boundary is an actual harm (Johnson v. M’Intosh)
(Legal remedy = Ejectment – kicks trespasser off the land) v. Unintentional Trespass = if there are no physical damages, then there can be no cause of action

Jacque v. Steenberg Homes, Inc. – defendant crossed plaintiff’s land because it was easiest route. Very important for State to protect property rights. Defendant’s trespass was a harm to the concept of property. Property is the right to exclude, if you can’t exclude, then property rights are pointless.
State v. Shack – property owner would not allow lawyer and medical worker to cross land to help migrant workers who were tenants on his land, they cross anyway – technical trespass, but a legal trespass
Property rights serve human values – when people are in danger, property rights must be relaxed.
Property right is the right to exclude, but it doesn’t go as far as to control

ership or possessory right, (2) defendant interferes with ownership or right of possession, (3) damages à remedy = FMV of what was taken (intent to possess is state of mind for conversion), only applies to tangible property, not intangible property

Moore v. UC – Doctors used Moore’s excised cells to develop a lucrative patented cell line:
1) No ownership right à Statute prevents patients from taking biological materials home – unreasonable to think you can still have a property right in something that you can’t take home
2) No possessory right à Cells had already been taken out of his body (had a right pre-excision, not post)
3)No “intellectual” property right à you can’t patent something that is naturally occurring (cells), you have to put some kind of human ingenuity into it (doctors/researchers did this so cell line is theirs)


The Rule of Subsequent Possession = The first finder has a legally enforceable RIGHT of possession as against all subsequent finders – first finder has a cause of action to protect his right solely in possession (not title) against all later in time possessors – the right stems from possession

Armory v. Delamirie – chimneysweep finds a jewel, takes it to a goldsmith who takes it and offers $.
First finder has a cause of action to protect his right of possession against all except for true owner (TO).

Trover = common law action for money damages resulting from the defendant’s conversion to his own use of a chattel owned or possessed by the plaintiff

General Rule = The landowner who is in control of his land gets to keep items found on or buried underneath land