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Property I
University of Connecticut School of Law
Berger, Bethany

Property-Berger-Spring 2015
Property is:
Right to use, right to exclude, right to transfer, right to prevent infringement on use exclude transfer without consent
Rights are divided between others, in space, in time, between people
Space: territorial, up and down, not really all the way up
Time: time share, rental, future interest
People: renting (rights are limited), zoning rights, rights split between couples
Right to property does not exist before the law
Why is property important to people?Identity, control, efficiency.
= unreasonable delay in bringing the action (it is an equitable defense)
Endowment Effect: We may value what we have more than what we could have
Prospect Theory: Asserts that people measure their well-being by reference to their current entitlements and endowments and are risk averse in that they seek to avoid loss more than they seek to acquire gains of the same magnitude
Justifications for Allocation of Property
First possession/occupancy
Positivist/government allocation
Settled/Justified expectations
Utilitarian/protection of social welfare
Distributive justice/egalitarian/need based
Might make right
Governmental Fiat
Johnson v. M’Intosh (1823)
Identity; Native Americans believed land was not fungible; so who has the right to claim the land?
Johnson was private purchaser from Native Americans and argued they owned the land and so could sell it
But after the 7 Years War, British King royal proclamation that no one can acquire land west of Appalachians from Native Americans.
π argues that Native Americans can own and sell their land since British law does not apply to them
Court says that only the government can extinguish NA right to occupancy bc NA do not own their land, but rather just use- (just fishing and hunting, not actually owning/using indicative of owning land)
Judge uses positivism- “they are the conqueror and so we should defer to them”
Uses pragmatism: we are deciding things on what is going to work
They set up a monopsony (only one buyer as opposed to one seller)
Rule: the US courts are not going to recognize title granted by the NA except to the fed govt or with the consent of the fed govt
How to deal with past injustice
Settled expectations- if many people have lived there, you can’t kick them off (first possession/justified expectations)
(accepted/established way of acquiring property rights in U.S.)
Made the Train (and gave the Train rights to property/land around the train so there was someone that wanted to take the train)- squatters made a gov’t to defend themselves, and said we worked the land and so it is ours now, labor
Freed slaves (the person who labors on the land should own it; land should go to the one that CAN work it; “might makes right”) but govt gave land to plantation owners anyway to create stability
Claim for ownership of Property: Labor
John Lo >You can remove that land you worked for as long as there is enough left for others [distributive justice] What kind of labor is sufficient to give rise to property rights? i.e. IP? I made it its mine, incentive to make it, if you can share without harm you should, don’t want a monopoly.
INS v. AP  [not good law anymore] Justice Pitney (conservative libertarian)
INS had been taking news AP gathered (and published publicly) and distributing it to its consumers
INS is taking news and publishing it on the west coast before AP newspapers can.
Does AP have property rights for the news?
Court says it is unfair to take something that isn’t yours; honor code argument (competitors shouldn’t harm each other); fairness; utilitarian; quasi-property (made up by Pitney) right bc there can’t be a monopoly on facts;
Property: rights you can assert generally on the whole world
Quasi-property rights: only good around competitors
Dissent: Holmes: they can copy it but they have to use AP’s story
Dissent: Brandeis (liberal) (pro free speech): legislative issue not judicial.
NBA v. Motorola: 2nd circuit
5 factors to consider if you have quasi-property rights:
Time sensitive, gathered at cost, defendant free riding, defendant and plaintiff are competitors, undermine business
Barclays flyonthewall: reduced factors to: time-sensitive; free-riding; undermine business model
Copyright Laws:
Give creator exclusive rights to publish or reproduce works of creative expression
Gives exclusive right to creator for life plus 70 years, or if made for hire 95-120 years
Fair use: considers whether purpose commercial or not, portion of work copies, impact on market for work
Fashion cannot be copyrighted
: applies to original and non-obvious inventions of any process, machine, or matter or improvements of one
It lasts for 20 years after registration (for first to register)[what distinguishes patent from copyright] 20 years for inventions but 70 years after artist’s death or 95 years after publication/ 120 after creation for copyright
: permits exclusive use of marketing symbols after registration
Goals: intended to prevent consumer deception; manufacturer dilution of value of mark
Claim for ownership of Property: Possession: (successful labor, secure physical possession, physical capture)
Common Property: everybody has incentive to use as much as they can from that resource bc they are going to get the full benefits of that resource; not concerned about depletion of that resource; overall cost/benefit calculation is not good for society
Hardins answer to this: government controls [but people aren’t always rational/selfish actors…] But there are always some types of property that are most useful shared: marketplace, internet
Pierson v. Post (fox hunting case) (1805) (mere pursuit gave Post no legal right to the fox, but killing did to Piersen)
Certain control, Certainty- notice
Successful labor vs. labor (need to actually succeed in order to claim a right of possession)
Dissent: this should be left to the arbitration of sportsmen
But there is an element of recreational fun in this case; whereas the same might not necessarily apply to things people do for a living
Adverse possession can sometimes function for taking other people’s stuff
Popov v. Hayashi (baseball case) (2002)
No labor, no effort, not a situation you could control.Can’t tell if Hayashi had actual possession or not
Custom and practice of the stands create a reasonable expectation that a person will achieve full control of a ball before claiming possession
Most efficient result in terms of maximizing what everyone would choose ahead of time [equitable division] Compare to where you would put effort in to finding it, that is labor
Elliff v. Texon Drilling
Oil site broken by Texon Drilling Co.
Law of Capture: can use whatever is directly under your land, regardless of whether it has migrated
When it drains, it finds a new owner.But drainage has to be reasonable
This is was a mess-up, so people who own the land win, against the drilling company
Law of capture DOES NOT absolve you from liability for negligent waste
Not like a fox bc it just sits there until someone does something
Exxon Valdez v. Hollywood
Piersen as precedent: fish are public property so no one has private property rights to it; but fishing is pursuit
Bad oil spill so Elliff applies- responsible
Relativity of Title:
No longer the rule of property law (if I own it, my rights are there for the rest of the world)
Rights don’t work against certain claimants
Rule of Finders: [finders prevail over all but true owner; prior possessors win over subsequent possessors] Armory v. Delamiri (1722): (boy found something with jewels and took to jeweler who stole jewel)
Court says he has a right to the jewel above that of the jeweler; the finder of a jewel has such property as will enable him to keep it from subsequent possessors
(owner accidentally misplaced it)à goes to the original owner
(deliberately putting something somewhere and forgetting it is there)à goes to the landowner
(when the owner forms an intent to relinquish all rights in the property)à goes to finder
à goes to landowner
Charrier v. Bell (1986): plaintiff excavated land after obtaining permission from who he thought was the landowner but was then informed was not.  Could not sell the collection bc he did not actually possess title.  Court said NA were rightful owners bc the legal concept of abandonment does not extend to burial grounds
De in rem verso criteria: (to recover a sum of money to compensate his services)
There must be an enrichment; an impoverishment; a connection between enrichment and resulting i

oise, odors, criminal activity, etc.
Issues in Nuisance cases:
Which party has the basic entitlement?2) The remedy used to vindicate the entitlement
Factors [none dispositive in self]:
Who was there first, can one party be made to change their actions, who has more resources
Trespass: unprivileged/non-permitted entrance onto another’s land; negligence: it is a defense to negligence to show that it would be unreasonable for you to avoid the harm
Dobbs v. Wiggins (2010) (Dobbs/Richards lived on prop for 30 years, then Wiggins moved in and started kennel)
Extent- bothered them a lot- sleeping issuesCharacter- conflicting testimony
Balance- making a living from business, no economic harm, value of dog-raising business
Suitability to location;Avoidability
The noise was substantial and unreasonable
An intentional invasion occurs when defendant knows that an invasion of another’s interest in the use or enjoyment of his or her land is resulting or is substantially certain to result
Property Rule: 1 party has the absolute right to decide whether the activity goes forward or not
A property rule favoring a plaintiff is an injunction [] A property rule favoring a defendant is the plaintiff losing (no remedy)
Parties figure out who values their property more (private bargaining)
Liability Rule: if the activity goes forward, you have to pay for the damages to the other property [Boomer] Favoring plaintiff: defendant has to pay for reduction in property value
Favoring defendant: purchased injunction- plaintiffs will pay losses to defendants for stopping activity
Court sets damages
Page County Appliance v. Honeywell (1984): (action for past damages; ITT placed a comp with CTS which is 1 business away from Page, maintained by Honeywell.  Leaked radiation and Page complained.)
Test: reasonableness of conducting it in the manner, at the place, under the circumstances shown by evidenceà this is too broad and should, on re-trial, include the substantial factor test
ITT benefitted in collecting lease payments.Nuisance is not negligence so Honeywell shouldn’t be the only
Extent: everybody needs TV so they aren’t specially sensitive in complaining about fuzzy TV reception
Public Nuisance: actions can be brought by individuals as well as government- i.e. drug dealing
Boomer v. Atlantic Cement Co. (1970) (cement plant that gave off smoke, dirt, vibration BUT was good for the economy) Court granted permanent injunction up until permanent damages would be paid off
Total damage caused compared to total value of operation is relatively small
Plant if $45mil and employs 300 people; house is $300,000 [utility] Based on a legal mistake that when you find a nuisance you must grant an injunction [not actually the rule] Dissent: they said this was public use but this is a private cement co.; not const. to impose a fine for continuing to pollute the land
Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (1959) (14 story addition would cast a shadow on Eden Roc from 2pm on; can’t enjoy the beach)
This is malice; in violation of ordinance requiring 100 ft. setback; laches; complaint dismissed bc he is allowed to build a hotel despite his malicious intent
Ancient lights doctrine: no longer used bc it sets property right at 1st owner without possibility of transfer; unreasonable in a developing country; obligation to not interfere with property is no more, only illegality works in court