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Property I
University of California, Hastings School of Law
Mammen, Christian E.

Property—Illustrated Rules
How do we think of it?
Deductive Syllogism:
– Major Premise: Rule of Law (ie. A Tenant who fails to pay rent on time can be evicted)
– Minor Premise: Relevant Facts (ie. Susan failed to pay her rent on time)
– Conclusion: (ie. Therefore Susan can be evicted)
What is it?
Real Property v. Personal Property (chattel)
– Real Property is land and things attached to the land.
– Personal Property is tangible things (cars, furniture)
– Mobile Homes: wheels off? Permanently affixed to the land? = real property (sold by real estate agents). Wheels on? Easily movable? = personal property (can be sold by anyone).
The Bundle of Rights
– Possess, Use, Exclude, Dispose (Sell, give, destroy)
Bentham on Property:
– positive law as opposed to natural law theory (law made by society not nature)
– Property rights a social convention solely as a basis for how we will interact with one another
– Society creates property rights in individuals on a balance of or public and private interests
Labor Theory of Property—John Locke
– Whatever you take from a state of nature and mix with your labor you own.
– Problems where more than one person mix their labor w/ something (I grow tree, you cut it down and make a chair. I make a canvas, you steal it and paint a painting)
o Haslem v. Lockwood: a man piled up manure in the street and went to get a cart. While he was gone, another man came by and took the pile.
o Haslem Syllogism:
§ Maj: Whatever you take from a state of nature and mix w/ your labor is your own.
§ Min: Haslem had taken the manure from its scattered state of nature and made it into an easily transportable pile through his labor.
§ Con: Therefore, the manure belonged to Haslem, Lockwood was trespassing.
Economic Theory of Property Rights—Posner
– Private property rights exist to create incentives to use resources effectively.
– Property rights make it safe to incur the cost of improving property b/c they give reasonable assurance that the improver can get the reward of the improvement (keep/sell the property himself)
– For Example, A farmer won’t go to the effort to plant crops if he knows someone can just come along and take them.
– Transferable property interests allow the transfer of property from those who cannot use it effectively to those who can.
Seligman- Social Utility Theory
– First occupation / first possession: but after that, what? And doesn’t take into account reasons why first possession is invalidated (ie. savages, public policy)
– Natural Rights—but what is “natural” (ie. right to possess slaves or women once natural, now no longer = view of natural rights always shifting)
– Labor theory—but does not take into account contribution of society/ nature
– Legal theory—what law says is property is property but more of a definition than a rationale
– Social Utility Theory: Each of the above justifications is allowed b/c they “redound to the social welfare” (economic theory would fit here too, though Seligman doesn’t say it).
– The Social Utility theory is natural only in the sense that social growth is natural
Torts against property (reflecting the balance of societal and private interests)
– A claim for conversion may be asserted upon interference with a person’s rights of ownership or possession of personal property (chattel)
o Moore v. Regents of UC: Moore claimed a property interest in his excised spleen cells, but the court held that he had neither an ownership nor a possessory interest.
§ Possessory interest: Court held that such cells are required to be destroyed and it was clear Moore did not want them back, nor could he have them back.
§ Ownership interest: statutory requirement that such cells be quickly destroyed for health reasons eviscerates the bundle of rights such that no such ownership interest could be found (this decision also motivated by desire to protect the biotech industry, could logically have gone the other way finding limited ownership interest in the use of the cells between excision and destruction but decided not to find such an interest could exist on balance w/policy) (also kind of a labor theory b/c the excised cells were taken out by the efforts of the scientists, and developed purely through their efforts).
o Moore Syllogism:
§ Maj: conversion requires interference with ownership or possession of personal property
§ Min: Moore had neither ownership nor possessory rights to the excised tissue
§ Con: Therefore, Moore has no claim for conversion of the excised tissue.
o Mosk’s Dissent: there are many cases where a portion of the bundle of rights is taken away and what remains is treated as a protected interest (eg. Licenses, zoning, wild game, condominium leases, bankruptcy)
– Going on someone’s property w/o permission (NJ crim trespass = continuing to do so against specific wishes of the owner)
o Exception: where the purpose of your presence on the property is protected by public policy. (e.g. necessity, or in furtherance of some other public interest)
o Damages: compensatory = actual damage to the land, nominal = $1 in recognition of violation of a right, punitive = extra amount sufficient to punish / deter the behavior (punitive can be awarded even if actual damages are nominal)
o State v. Shack: Two aid workers from state funded agencies enter farmer’s land to bring services to migrant workers. Farmer asks them to leave then brings charges for trespass when they don’t.
o Protected by Public Policy: Court held that agencies given gov’t funds to help aid migrant workers (who were always invitees on someone else’s land) were protected from trespass when entering that land to reach the workers.
o Shack Syllogism:
§ Maj: A claim for trespass exists when an actor is on another’s property against their wishes except when the actor’s purpose for being on the property is protected by public policy.
§ Min: The two aid workers were on the farmer’s land against his wishes, but their charitable purpose in being there is protected by public policy.
§ Con: Therefore, the aid workers were not guilty of trespass.
o Jacque v. Steenberg Homes: Landowner refused to allow D to cross his land to deliver mobile home to neighbor w/ whom he was feuding. D crossed the land anyway, but did no actual damage.
o Jacque Syllogism:
§ Maj: Trespass is when you enter someone’s property without their permission. Damages for trespass are nominal if there is actual trespass but no actual damage to the property, but punitive damages can be awarded to punish the D and to deter other’s from taking the same action in similar situations.
§ Min: Steenberg Homes did enter Jacque’s property without his permission, but they did no damage.
§ Con: Therefore, Trespass occurred, and nominal and punitive damages may be awarded to punish Steenberg Homes and prevent others from trespassing in similar situations.

Possession: exists where there is
(a) Actual power over the thing in question, and
(b) A manifested intent to control it.
Possession and the Nature of the Thing: examine under finding, capture, etc. But always discuss rationale based on the nature of the thing.
– “It is impossible to wrap one’s arms around a whale, a fleeing fox, or a sunken ship”
– Where does the thing fall on the continuum from Elusive to Controllable?
– Factors:
o Alive or inert?
o In motion or still?
o Big or small?
o What is the local custom?
– Is there an issue of conversion or trespass to cast a cloud on the title?
o Cf. pre-possessory interest in Popov v. Hayashi
Methods of Acquiring Property:
n First Occupation (Johnson)
n Capture (Pierson, Popov)
n Gift (Gruen)
n Find (Eads, Armory, Bridges, South Staffordshire, By Statute)
Steps to Acquiring Property:
n Different for each method
n Examine the method, discuss the steps
Possible Owners:
n Original Owner/ Donor
n Owner of the premises or land
n Finder/ Donee
n The State
Limitations on Ownership:
n Time-wise: (life estate, remainder)
n People-wise: (e.g. against the whole world except the true owner)
n Conditions on ownership (e.g cannot sell, conditional gift, executor limitations)
First Occupation: Doctrine of First Possession:
– First in time = First in Right. If you get there first and take possession and ownership (title) of an unpossessed thing, it is yours.
o Johnson v. McIntosh: Man who bought land from the Natives prior to revolution sues to evict a man who bought land from US gov’t post-revolution.
o Take Possession:
§ Some scholars say first possession enough for ownership.
§ Justice Marshall says the natives had possession of the land, that they drew subsistence from the forest and worked on

cease. A baseball that is in the fan’s hands, glove, net, or other receptacle—but which is dislodged by the fan’s incidental contact with railing, seat, wall, the ground, or other fans who are also attempting to catch the ball (or who may be trying to avoid the ball)—has not been caught and remains a loose ball. The first person to pick up that loose ball and secure it (as described in the preceding sentences) owns the ball.
o Bernhardt-Finkelman Rule: Possession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball, whether or not complete control is achieved.
– Exception: If you capture a wild thing on another person’s land that is either naturally there or attracted there by the efforts of the landowner, that thing belongs to the landowner.
o Keeble v. Hickeringhill: one man builds a decoy pond on his own land to attract ducks. His neighbor stands at the property line and fires a gun in the air to scare off the ducks. Court held that despite the fact that the decoy pond owner had not physically possessed the ducks, capture did not apply: the ducks belonged to him b/c he went to the effort of drawing them onto his land by building the decoy pond.
o Distinguishing Pierson: PvP took place on “an uninhabited waste” Keeble took place on the man’ property.
o Keeble Syllogism:
§ Maj: An exception to the capture doctrine exists where the wild thing to be possessed exists naturally or is drawn onto land owned by another. In such cases, the wild thing is owned by the owner of the land.
§ Min: The ducks were drawn onto the land by the decoy pond.
§ Con: The ducks were the property of the owner of the decoy pond.
Finding Property: Like capture, but more passive.
Abandoned Property: All reasonable hope of recovery given up by the owner
– Reasonable Hope: existence of a reasonable hope is measured by whether the owner is making reasonable efforts to find the item or the value of the thing lost and the difficulty of finding it suggest a hope may be retained in spite of no effort.
– Very Valuable Items: if it is valuable enough, it may never be abandoned. Except for public policy reasons (basically a statute of limitations on recovering it).
o In Eads v. Brazelton: the owners had left a ship w/ cargo of lead. that was not too hard to find at the bottom of a river for 30 years and allowed a silt island w/ plants to grow up around it.
o Atlantic Wreck Case: ship filled with gold lost on the bottom of the Atlantic for 130 years found by salvagers. Owners deemed to still have a partial interest in the property (10% to salvager’s 90%) Eads distinguishable b/c value of the gold and the ship not as easy to find.
o Atlantic Wreck Syllogism:
§ Maj: Property is abandoned when all reasonable hope of recovery is given up by the owner. Whether the owner has a reasonable hope is measured by the value of the thing lost and the difficulty of finding it.
§ Min: The Atlantic wreck had very valuable cargo of gold and was very difficult to find.
§ Con: The owners had not given up hope of finding it, though they could not and are therefore entitled to a portion of the value.
– Ownership of Abandoned Property: is established through actual taking of the property with the intent to reduce it to possession.
o Eads v. Brazelton: Eads locates and puts a buoy over a shipwreck in the Mississippi w/ intent to salvage iron. Goes away to get supplies and Brazelton comes along and starts salvaging.