Bronin – Property – Spring 2014
I. The Commons and Open Access Systems, p. 95-102
II. The Coase Theorem, p. 30-40
III. Property Rules / Liability Rules p. 56-62
IV. Ex Ante Analysis / Ex Post Analysis p. 62-67
I. Wild Animals, p. 81-95
a. Pierson v. Post
b. Ghen v. Rich (whale case)
c. Keeble v. Heckeringill (decoy pond / trespass case)
II. Finders, p. 102-110
a. Eads v. Brazelton (Abandoned lead case)
b. Popov v. Hayashi (Homerun baseball case)
III. Land Grants and Mining, p. 120-134
IV. Accession, p. 165-166
Intangibles Subject to Ownership
I. Ideas / IP, p. 134-135; p. 1084-1089
II. Personhood, p. 243-277
a. Whether there are certain interests that are inappropriate for treatment as property rights because they are too closely connected to personhood. INALIENABILITY?
i. Newman v. Sathyavaglswaran (post-death cornea extraction)
ii. Moore v. Regents of CA
iii. Hecht v. Superior Ct.
III. Artists’ Moral Rights, p. 277-284
a. Moakley v. Eastwick
IV. Cultural Patrimony, p. 284-292
a. Extension of personhood – inextricably linked
b. U.S. v. Corrow
PROPERTY RIGHTS IN NATURAL RESOURCES
I. Navigable Waters / Airspace, p. 308-314
a. Airspace rights
i. U.S. v. Causby
II. Public Trust 1 (property that is too public), p. 314-342
a. Prescription, Custom, Prescriptive easements (not ideal) are possible sources of law
b. Illinois Central Railroad v. Illinois
c. Lake MI Federation v. US Army Corps of Engineers (Loyola University expanding?)
d. State of OR ex. rel. Thornton v. Hay (building fences around dry sand areas on beach)
III. Public Trust 2 (property that is too public), p. 342-349
a. CAROL ROSE, Comedy of the Commons
b. Criticism of public trust doctrine
c. What kind of government involvement is necessary?
IV. Water, p. 349-372
a. Evans v. Merriweather – riparian proprietorship
b. Coffin v. Left Hand Ditch Company – priority of appropriation, first in line, first to right
c. Higday v. Nickolaus – reasonable use
Right to Exclude
a. Jacque v. Steenberg Homes
b. Hinman v. Pacific Air Transport
a. Pile v. Pedrick
b. Golden Press v. Rylands
iii. Adverse Possession
i. Lessee of Ewing v. Burnet, p. 199
1. 5 elements of adverse possession claim
ii. Color of title –
1. Howard v. Kunto, p. 208
2. Relation Back
iii. Disabilities – statute of limitations can be tolled for owners suffering from certain disabilities
iv. Exceptions to Right to Exclude
a. Public Accomodation Laws
b. Uston v. Resorts International Hotel, Inc., p. 448
c. Anti-discrimination laws, p. 456
i. Shelley v. Kraemer, p. 456
d. Fair Housing Act, p. 467
i. Attorney General v. Desilets, p. 471
v. Abandonment and Destruction, p. 518
a. Pocono Springs v. Mackenzie, p. 518
b. Eyerman v. Mercantile Trust Co., p. 523
vi. TAKINGS 1 (Right to exclude government from private property), p. 1220, 1258
a. Takings Clause, 5th Am.
b. REGULATORY TAKINGS
i. Pennsylvania Coal v. Mahon, p. 1259
ii. Penn Central v. NYC, p. 1269
1. Ad hoc vs. Per se rules
vii. TAKINGS 2
a. Loretto v. Teleprompter Manhattan CATV Corp., p. 1286
b. What connotes “private property” for the purposes of Takings Clause? 1321
c. Lucas v. South Carolina Coastal Council, p. 1299
viii. TAKINGS 3, p. 1334
a. Palazzolo v. Rhode Island
b. Tahoe Sierra Preservation
c. Lucas, Laretto, Tahoe, Penn Central = TAKINGS DECISION TREE
i. Physical Occupation or Regulation?
1. Physical Occupation
a. Permanent (Laretto) – TAKING
b. Temporary (Penn Central) – MAYBE TAKING
a. Does it prevent nuisance? (Lucas)
i. Yes (Laretto – NOT A TAKING!)
1. 100% diminution of value – TAKING (Lucas – per se rule)
2. < 100% diminution of value – apply Penn Central 3-factor test – MAYBE TAKING
a. Also temp. moratorium analysis – Tahoe Sierra. (NOT Per se rule)
alencis, p. 637 (Tenancy in common, partition by sale?)
1. To determine whether a partition in kind or partition by sale is in the best interests of the parties, the court must look to the interests of all the parties, not just the economic gain to one tenant.
a. The trial court failed to account for the fact that one of the tenants has been in exclusive possession of the property, resides on the property and derives her livelihood from use of the property. These factors must be given due weight.
b. The court must look to whether the property can be practically and physically divided.
iii. Gillmor v. Gillmor, p. 645 (tenancy in common, ouster)
1. A co-tenant may sue for his share of the rents and profits from common property if he has been ousted from possession of common property.
2. Mere exclusive use of commonly held properties by one co-tenant is not sufficient to establish an ouster.
3. TIC has right to use and occupy entire property without liability to other co-tenants.
4. Each co-tenant has the right to free and unobstructed possession without liability for rents for the use and occupation thereof.
5. Can’t interfere with other co-tenants rights to likewise occupy, use and enjoy.
6. Exclusive use requires an act of exclusion or use in such a nature that prevents a co-tenant from exercising his rights to the property.
7. (Here the P sought to graze livestock, prevented from doing so)
8. Offset for repairs made on common property: where a co-tenant is in sole possession and makes repairs or improvements to the common property without consent from fellow co-tenants, he generally has no right to contribution.
9. Contribution is allowed where other co-tenants have stood by and permitted harm to proceed to his detriment.