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Property I
University of Connecticut School of Law
Berger, Bethany

property spring 2007 outline
introduction (I.)
Property for January 30
I.                    Introduction (structure)
A.      property rights are not absolute; owners have obligations as well as rights
B.      tensions within the property system:
1)       right to exclude v. right of access
2)       privilege to use v. security from harm
3)       power to transfer v. power of ownership
C.      recurring themes:
1)       alienability dilemma
2)       contractual freedom v. minimum standards
D.      normative approaches:
1)       justice and fairness
2)       utilitarianism, social welfare, and efficiency
justifications for allocations of property (II.)
Property for Feb 1
Pg 77-97
I.                    Possession
A.      rights in and derive from the gov and are then transferable to others; actually possession of a contested resource creates a presumption of a right to possess that may be rebutted only evidence of a superior claim
B.      conversion—wrongful possession of personal property rightfully owned or possessed by another
C.      possession—required both physical control over the item and an intent to control it or exclude others from it
D.      Elliff v. Texon (oil and gas)
1)       petitioners can recover under the law of capture for damages resulting from the wrongful drainage of gas and distillate from beneath their lands
E.       Charrier v. Bell (finders)
1)       occupancy—mode of acquiring property by which a thing that belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it; legal concept of abandonment does not extend to burial goods
F.       Notes
1)       property is lost when the owner accidentally misplaced it
2)       mislaid when owner intentionally left it somewhere and the forgets where she put it
3)       abandoned when the owner forms an intent to relinquish all rights in the property
4)       Rule: finder of lost or mislaid property does not acwuire title to that property against the true owner; true owner has a right to recover the lost property from the finder; finder does have right to keep abandoned property
5)       Finder has the right to prevail over everyone but the true owner
Property for February 6
Pg 32-44, 1093-1100
I.                    Acquisition by Labor and Investment
A.      International News Service v. Associated Press
1)       news = “quasi property”; news cannot be considered abandoned to the public because abandonment is a question of intent; AP contended that knowledge so acquired is property because it costs money and labor to produce, and has value for those who don’t have it and are willing to pay for it
2)       dissent: no gen right to forbid ppl from repeating an uncopyrighted combo of words
II.                  Copyright law
A.      copyright law regulated by federal statute; ideas and facts cannot be copyrighted, only original expressions of ideas can be protected
B.      contributory infringement—when knowingly help others violate copyright laws (can be indirect, too)
C.      Fiest Publications v. Rural telephone—nothing in phone book listings is original, its inevitable; doesn’t fall under copyright act’s scope of protection
Property for February 8
Pg 3-14, 20-30
I.                    Acquisition by Gov. Fiat/Distributive Justice
A.      Johnson v. M’intosh
1)       discovery gave title to the government; rights of U.S. gov. described as absolute title, rights of American Indian nations to their traditional lands described as right of occupancy (right to occupy but not sell)
B.      Current Indian land claims
1)       in 2005, court said that Oneidas had acquiesced in this state of affairs, unreasonably delaying (20o years) in going to court to seek return of the land (laches); would be disruptive and impractical
limiting the rights to exclude (III.)
Property for February 13
Pg. 103-132
I.                    Trespass/Rights of Access
A.      trespass—unprivileged intentional intrusion on property possessed by another
1)       intent—D must engage in a voluntary act such as walking onto the property (not necessary to show that the trespasser intended to violate the owner’s legal rights; mistaken entry onto land does not relieve the trespasser of liability
2)       intrusion—occurs the moment nonowner enters the property; trespass may occur above or below the surface
3)       privileged—a trespass is privileged if the entry is don’t done with the consent of the owner; entry justified by necessity to prevent more serious harm; entry encouraged by public policy
B.      remedies—include damages, compensatory damages (when trespasser caused harm), injunction, declaratory judgement
C.      State v. Stack
1)       property rights serve human values, not dominion over destiny of migrant workers; property rights not absolute, but evolutionary
2)       fed. anti poverty statute intended to aid migrant farm workers; congressional intent defeated if migrant farmworker could be isolated from efforts to reach them (farmer did not have possessory right to interfere w/ migrant workers destiny)
3)       people entitled to have visitors, so migrant worker must be allowed to receive visitors there of his own choice, may not interfere with right privacy
D.      Desnick v. American Broadcasting Co.
1)       there is no journalist’s privilege to trespass; there can be no implied consent when express consent is procured by a misrepresentation or misleading omission; yet some cases deem consent effective even though it was procured by fraud
2)       like critics at restos—privileged trespasses designed to promote competition; court calls this case not an interference with the ownership or possession of land
E.       Uston v. Resorts Int’l (right of reasonable access to prop open to pub.)
1)       case where casino wants to exclude card counting blackjack player
2)       rule: when property owners open their premises to the gen pub. in pursuit of their own property interests, they have no right to exclude people unreasonably; cannot act in arbitrary/discriminatory matter
3)       rule: prop owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use
4)       this case extended right of reasonable access to all business open to the public (traditional absolute right to exclude w/o cause; duty to serve public limited to innkeepers and common carriers
F.       Civil Rights Act—prohibition against discrimination/segregation in places of public accommodation (1964)
G.      Canons of construction example:
1)       Thrust—if language is plain/unambiguous must be given effect
2)       Parry—not when literal interp leads to absurd consequences, thwart manifest purpose
Property for February 15
Pg 179-184, 187-215
I.                    Adverse possession
A.      adverse possession doctrine allows a non-owner to acquire full overship rights in real property if the non-owner actually possess property w/o permission by true owner in a visible manner for a period of time established by statute; elements of AP
B.      actual possession—must physically occupy the property in some manner
1)       color of title—deed that purports to transfer land in question by is ineffective because of a defect in the deed (occupying land in this case is generally deemed actual possession
C.      open and notorious—true owner is chaged w/seeing what reasonable inspection would disclose; APer need not show that true owner observed or knew about APer’s use of prop; enclosing land by fence or wall universally recognized as sufficiently open/notorious
D.      exclusive—means that use is of a type that would be expect

C.      Current law: some courts impose liability for undermining subjacent support only when negligence can be show; owner of the surface has an absolute right not to have its subjacent support undermined by the owner of the mineral estate
Property for February 22
Pg. 271-308
I.                    Nuisance: protection of use/enjoyment of land
A.      nuisance—substantial and unreasonable interference with the use or enjoyment of land; nuisance law used when no such special rules have been created by courts or legislatures; flexible doctrine
1)       distinguished from trespass (intentional invasion of the P’s interest in the exclusive possession of his property
2)       right being protected is quiet enjoyment of land; protection of this interest not absolute because harm must be substantial and interference unreasonable
3)       “smoke particles” can be trespass/nuisance, direct v. indirect
4)       Nuisance distinguished from negligence: neg. law provides remedies for unreasonable conduct; nuisance focuses on result of conduct rather than the conduct itself (conduct that is not negligent may still be a nuisance)
5)       Temporary v. permanent nuisance—SOL
6)       Some courts impose strict liability for ultrahazardous activities
B.      Page County Appliance v. Honeywell (Radiation)
1)       radiation leaking from honeywell computer; P went forward on nuisance and tortious interference theories
2)       existence of nuisance not affected by the intention of its creator not to injury anyone; priority of occupation and location (who was there first) is a factor of considerable weight
3)       defines unreasonableness: manner in which, place where D’s business is conducted, location, character of neighborhood, nature of alleged wrong, character and gravity of resulting injury v. utility of D’s conduct
C.      Notes
1)       determination of unreasonableness
a.       what interests are encompassed? (freedom from pollution, noise, odors, smoke, etc)
b.       harm must be substantial
c.        harm must be unreasonable
d.       extra: when P comes to the nuisance, one can argue that she created the prob herself because the harmful activity was established first
e.        fairness side: character of harm, distributive consideration, fault
f.        welfare side: costs and benefits, incentives, lowest cost avoider
D.      Current Nuisance Law in courts (remedies)
1)       Injunction à D’s conduct unreasonable and causes substantial harm to P
2)       May obtain Damages but not injunction à D’s conduct reasonable, but harm to P is substantial so that it is unfair to burden D w/ costs of D’s socially useful conduct
3)       No remedy à harm not substantial, conduct causes more social good than harm, imposition of damages would put D out of business
4)       Purchased injunction à D’s conduct causes more harm than good but it is fair to impose the cost of shutting down*
E.       public nuisance—unreasonable interference with right common to the gen. public (pub. health, no malarial mosquitoes)
F.       Fontainebleau Hotel v. 4525 (Light and Air)