Select Page

Property I
University of California, Hastings School of Law
Feldman Harry, Robin

Super 2L
Feldman: Property Fall 07

·Occupancy Theory and principle of first in time:
1. Property rights seek to protect what one “owns” which is whatever an individual has managed to get a hold of, and equality of right, applied to property, means only that every man has an equal RIGHT TO GRAB.
2. Formal right of ownership went to the first grabber.
3. The doctrine reflects the attitude that humans are alien to nature and that nothing that is not subdued is not possessed.
4. Problem is that this theory has no real logic behind it.
·Natural Rights Theory:
1. Private property is a natural right, a part of the law of nature. At one time, slaves were considered to be a natural right of man.
2. Problem is that what is denoted by nature is constantly changing.
·Locke’s Labor Theory:
1. The labor of a man’s body and work of his hands, are properly his and whatever he takes from a state of nature and mixes his labor with, and joined to it something that is his own, makes it his property.
2. Labor is the unquestionable property of the laborer.
3. Problem w/ this theory is accession when someone adds their labor onto another’s.
·Posner’s Economic Theory of Property:
1. Legal protection of property rights has an important economic function, that is to create incentives to use resources efficiently.
2. Individuals will endeavor by cultivation or other improvements to maximize value of land if an individual can legally exclude all others from using it.
3. Exclusive rights are a necessary rather than sufficient condition for the efficient use of resources.
·Social Utility Theory:This is the prevailing and most important theory.
1. Property rights are natural rights only in the broad sense that all social growth is natural.
2. Measure consequences to society and then balance rights based on these measures.

Jacque v. Steenberg (D deliberately transported mobile home over land of P)

The private landowner’s right to exclude others from his or her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property.
Court recognized every person’s constitutional right to the exclusive enjoyment of his property for any purpose which does not invade the rights of another person.

Johnson v. McIntosh (Policy)
-Ultimate dominion and right of discovery bestows sole power to grant soil.
-European perspective of property: One does not posses land in the absence of improving it. Another justification, not accepted by Europeans, is that possession of land stems from co-habitation or preservation.
-John Locke believed, applying his labor theory, that the Indians had not invested enough “labor” into the land for them to justify possession.

A gift is voluntary, given without consideration, and irrevocable after transfer. Person claiming a gift has the burden to prove with clean and convincing evidence that the gift is theirs. By obtaining a gift, one obtains full and complete rights now and to the full extent of property
Things to consider:
·Inter vivos? Testamentary? Express or constructive delivery? Conditional gift?
·Time, types of rights, and conditions being able to divide bundle of rights
Things to include:
·Delivery as ceremony of transfer

Testamentary Gift
·Have no effect until the will maker dies which is why anyone can change wills during lifetime. Gifts on wills are testamentary.

Inter Vivos Gift
·Gifts that are made that take effect immediately and is given away during one’s lifetime.
·To make a valid inter vivos gift, there must exist:
1) intent on the part of the donor to make a present transfer
2) delivery of the gift
3) acceptance by the donee.
1. Courts will respect property rights of both a life estate owner and the owner of future rights;
2. Future rights, under property law, are a property now (2 prop. Owners separated by time OK)

Gruen v. Gruen (painting)
I: Whether a valid inter vivos gift of a chattel may be made where the donor has reserved a life estate in the chattel and the donee never had physical possession of gift.
a. Intent: if there is intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately. Here, intent was made in letter.
b. Delivery: Method of delivery should generally coincide with nature of gift. Written instruments may serve as evidence of a complete gift and constitute Constructive Delivery.
c. Acceptance: If gift is of value, courts will assume acceptance. When gift is of no value, donee must present evidence of acceptance such as relaying news. Donee does not need to know of the gift; must repudiate it to reject
d. Present give of future enjoyment: Enforceable because it is a present gift of the right to the subject matter, even though enjoyment of the subject matter is postponed to a later date.

Lindh v. Surman
F: P gave D an engagement ring, he wanted it back, she said no.
R: Setting conditions is a way of separating bundle of rights.
a. No fault rule is generally applied in divorce/marriage dissolution cases because the certainty of making a decision prevents court from being bogged down through the debris of a broken engagement, something a fault based system would have to deal with.

·Possession plays a different role depending on what legal question you are asking. It may help you obtain property rights.
·Finders have property rights against all but the original owner and finders have rights they entrust property to.
·A core reason to give property rights are to give people an incentive to return things.
·Things to Consider:
Type of property at issue: law may want to enforce a stricter level of control for a wild animal that has a will of its own rather than a sunken ship that cannot move.
·Clash of rights between parties Þ law will look for things that will weaken or strengthen the interests of each party or interests of society to find a judgment for either.
1) A landowner’s interest in an item can be weakened based on where the item is found (public/private) or 2) A finder’s interest may be weakened by the responsibility of returning things (lost/mislaid)
Abandonment: An item knowingly and voluntarily relinquished without further intent for future property rights. All reasonable hope must have been given up. Abandonment of an item can be inferred from the facts/situation.
Conversion: The unjustified refusal to give property back when a person entitled to possession of personal property demands its return. It is the wrongful exercise of dominion over the personal property of another.

Establishing Possession/Competing Finders
*Notice is irrelevant when the one giving notice has no possession
*Intent is an element but it is not enough on its own. Expression of intent no good (markings on tress)
*Possession does not require physical occupancy
·Pierson v. Post (Fox Hunting)
I: When will pursuit ripen into possession? What constitutes occupancy or possession of wild animals?
a. Pursuit alone vests no property or right.
b. Elements of possession: 1. Unequivocal intention to capture must be present. 2. Animal must be deprived of its natural liberty and 3. Brought to certain control.
c. Dissent: Potential unjust enrichment if one can obtain possession of an animal without much effort. Coming in last minute and snatching away. All you need is a reasonable prospect of success.

·Eads v. Brazelton (Sunken ship)
R: Elements of possession of abandoned property:
a. Act of possession is one that is recognizable to the court as one’s express intention to take property with intent to reduce it to possession + actual taking.
b. Physical contact is not required for “actual taking” as long as pos

cant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, actors have a pre-possessory right to the property. This right constitutes a qualified right to possession.
H: Both men have a superior claim to the ball against all the world. Neither could present a superior argument as against the other. Hayashi’s claim is compromised by Popov’s pre-possessory interest and Popov cannot demonstrate full control. They thus have an equal and undivided interest in the ball.
Court borrows logic from:
Keron-Kids find sock with money on railroad and it passes through many hands. However, none had intent + control thus none actually had possession. Intent came only after the boys knew about the money.
Arnold-Fruit was mixed from different growers and the fruit rotted because of improper treatment. Impossible to distinguish multiple owners/proper thus all had an undivided interest in proportion the % of fruit.
Criticism (Feldman Concurs):
If we are going to divide property based on strength of claims, then there would not be property. Court could have solved under existing law. Pierson and Eads say that you can get rights short of full possession, so could have ruled for Popov based on .6 seconds and fulfill interest in discouraging such action.

Things to Consider
Consequential Language: These are “Magic Words” that determine what type of fee/estate it is.
·Possessory interests: Interests that are said to entitle their owners or that may entitle them in the future to exclusive use of property. For example, a landlord may have a present and future interest/estate in their land and a tenant generally only has a present interest/estate. In the case where there is a tenant, a landlord owns present protection of his future interest/estate.
·Non-possessory interests: Easements, profits, running covenants, equitable servitudes
·Heir: Person the law says your property goes to in the absence of a will. If you die intestate without heirs, estate escheats to state.
·Beneficiaries: People who benefit from wills.
·Escheat: When a person dies intestate without heirs, the person’s property escheats to the state.
·Estate: An interest in land that entitles its owner, or may entitle him in the future, to possession of land.
·Fee Simple: “Whole Ball of Wax”/”Bundle of All the Sticks” An estate that is potentially infinite in duration by reason of its transferability and general inheritability. It can be passed onto heirs, it can be sold and transferred, it is always inheritable, it lasts forever, once you have it, it cannot be taken away. When transferring Fee Simple, the phrase “and his heirs” in a deed is commonly used. The phrase indicates intent, all that is important.
Magic Words: Heirs
·Cole v Steinlauf (unmarketable deed)
R: The words “assigns forever” in a deed is not sufficient to transfer fee simple. The word “heirs” is exempted.
a. A deed can be reformed to vest a fee simple in a grantee where the word “heirs” is omitted if it can be determined from the clearly expressed intent of the parties that a fee simple was intended.