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Property I
University of Connecticut School of Law
Paul, Jeremy R.

A. Unowned Items (76-83)
·         Actual possession of a contested resource often creates a presumption of a right to possess that may only be rebutted only be evidence of a superior claim
·         Pierson v. Post: Post is hunting a fox on a neutral property. Pierson shoots it and takes it even though he is fully aware of the hunt
o        What acts amount to occupancy? Pursuit is not possession. Killing and taking away is. Court here has to look into precedent of which there isn’t much. (1805 case). Court says there must be some action that “deprives them of their natural liberty and subject them to the control of their pursuer”.
§         Majority also wants to reduce litigation and notes that morality does not equal law – Post is an asshole but there is nothing we can legally do about it
o        Dissent: We want to encourage investment in “the destruction of an animal, so cunning and ruthless in his career”. We want hunters to kill foxes. Allowing a hunter to invest time and money into a hunt only to have the fruits of his labor taken away at the last minute should not be allowed. Rule should involve “reasonable prospect of taking”
§         Side note, there is a tension between using precedent to find the rule (majority) and using the law as a tool for social change (dissent)
·         Popov v. Hayashi: Popov caught Barry Bonds’ ball but was tackled and lost possession to Hayashi. Again, court needs to determine when possession begins: “Where an actor undertakes significant but incomplete steps to achieve possession… and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion”. Court basis this on fundamental fairness
B. Rule of Capture Analogies (83-89)
·         Elliff v. Texon Drilling Co (“Milkshake”): TX drilling was situated next to Elliff. The TX well blew through negligence and caused a crazy chain reaction that resulted in the Elliff’s losing a lot of gas through the TX well. Elliff wants tort damages for lost gas and damage to property/cattle
o        Rule of Capture: You own what is underneath your land even if it migrated from somewhere else. Here, the oil migrated on its own – you want to get the stuff out, so start drilling. If you get it, you keep it (this encourages drilling)
·         Court chooses to disregard capture in favor of negligence. Yes we want people drilling, but we also want them drilling responsibly.
C. Investors and Competitors (1093-1099, 32-45, 53-55)
·         Copyright laws are federally regulated – “owners of original works of authorship” that are fixed in “tangible medium of expression”. Ideas and facts cannot be copyrighted – only original expressions of ideas can be protected.
o        Copyright Law, Page 1094-1095
·         Fiest v. Rural Telephone: Fiest copied Rural’s phone book. Fiest sues claiming that it owns the compilation of facts – it worked hard to compile those facts and they should be rewarded. Court holds that facts are not copyrightable. Facts aren’t protected but compilations are. Facts aren’t created, they are discovered. There are competing interests here though – what about Feist’s investment in the gathering of facts?
o        Compilations of facts are copyrightable but only aspects that display originality such as order and arrangement
o        Primary objective of copyright is not to reward the labor of authors but to promote the progress of science and useful arts.
·         Intl. News Service v. Associated Press: Same situation as before. AP is taking INS facts and distributing them on its own. If you go the copyright route, the case fails because facts are facts. So they take the unfair competition route – AP puts all the time/effort/money in and if they can’t recoup there is no more incentive
o        Majority: Don’t want to decrease financial incentive to gather news or let INS reap benefits of AP’s work
§         Relativity of title: Pitney notes that property rights may extend against particular individuals rather than against the public at large – so this ‘new’ property right is limited only to claims against competitors in the news business – so the question is, who has better title, relatively?
o        Quasi property right: The court is stretching here to get the outcome it wants – the process amounts to an unauthorized interference with the normal operation of complaint’s legitimate business precisely at the point where profit is to be made
§         Court holds that the quasi-property right exists for so long as the news retained commercial value
o        Dissent (Holmes): Just give them credit
o        Dissent (Brandeis): “The fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it” the right of exclusion.
§         Distinction between private and public. This is Brandeis’s commitment to the legislative process. He doesn’t want to make guesses – if a new property right needs to be created, just leave it to the legislature
o        In general, this rule has NOT been extended past the ‘hot news’ context
·         Upton v. JWP Businessland: Public Policy case: Is employment possession? There are competing public policies in this case – do we allow employers to fire at-will employees or do we protect parents. This is Brandeis’s point from INS v. AP – when there are competing policies, we should send it to the legislature.
D. Relativity of Title and the Improving Trespasser (97-102, 215-223)
·         Determining who has the better claim in the situation where O is the rightful owner but there is a fight between A and B. Rules of force generally award both real and personal property to the prior peaceable possessor, even though she does not have title to the property.
·         Right of Ejectment rests on the strength of your own title – not by showing a defect in the other party’s title.
o        Tapscott v. Lessee of Cobbs: Cause of ejectment (cause of action trying possession)
§         Who owns the property? Anderson (Dies), Executors (Harris, Rivers, Anderson), Rivers (got it through auction), or Lewis (who claims she bought the land first). Lewis Dies, her heirs (Cobbs) want the land but have no clear title. Tapscott takes possession without pretense of title (he just squats). Cobbs wants to kick Tapscott off. Tapscott says ‘wait’ you need to prove you own it first.
§         Cobbs can bring the lawsuit even though she has no clear title “when the relations are so that you can bring a case”. In this case, possession is not 9/10 of the law – even if there is no proof that Cobbs had moved in, the court will say ‘we assume they were there because we have not proof otherwise’
§         Peaceable Possession: If we held for Tapscott, it would be open season for minions of squatters – holding that someone who has a defect in their title is subject to squatting makes no sense – it would lead to seizure
ú         Court has a presumption and preference for continued peaceable possession of property. The only way for Tapscott to win is to rebut this which is s very high bar to meet
o        In the case of stolen property, you never have title. Relativity of title may come into play when determining who has title between two innocent parties (O leases to A, A sells to B, A flees to Mexico – who gets title? O or B?)
·         The Improving Trespasser: What happens when you build something that improves the value of a neighboring property (on that property)? Does the builder have a right to compensation to avoid unjust enrichment? Should the builder get the land?
o        Right of removal: many courts – especially older ones – hold that the property owner has an absolute right to removal
o        Most states apply Relative Hardship doctrine: If the encroachment is innocent (the result of mistake), the harm minimal, the interference in the true owners property interests small, an the costs of removal substantial, the courts often refuse to grant an injunction ordering removal of the structure – you either get damages or forced sale.
o        Unjust Enrichment v. Forced sale: What about an entire structure build on land belonging to another? Is this unjust enrichment if the owner of the land gets the building? Or

f 500 acres, you still get all 500 acres.
o        Policy: Reward the user of land
·         “Open and Notorious”: The possession must be sufficiently visible and obvious to put a reasonable owner on notice that her property is being occupied by a non-owner. This doesn’t mean that the A/P need prove that the true owner knew or saw the A/P.
o        Hidden, furtive, secret activities do not satisfy this requirement
§         Open Policy: Punish sleepers (make sure owners keep an eye on the property)
§         Notorious Policy: Imposes duties on the A/P to actually do something with the land
·         “Exclusive”: Possession must not be shared with either the true owner or the general public. Absolute exclusivity is not required The claimant’s possession must be as exclusive as would characterize an owner’s normal use for such land
o        So you don’t need to always exclude everyone always. If you A/P a tract of wild land, for example, a hiker or hunter passing through does not destroy the A/P
·         “Continuous”: Tacking doctrine comes into play here. A/P must exercise control over the property “in the ways customarily pursued by owners of that type of property”.
o        Tacking: Succeeding periods of possession by different persons may be added together. But the preceding A/P must be in privity – must have purported to transfer title to the property of the successor.
§         This does not work if the successor dispossessed the prior A/P
o        Policy: To protect the reliance
·         “Adverse/Hostile”: This goes to the A/P’s state of mind. It usually means that the A/P assumes that his possession of the land is nonpermissive. But look to the j/d.
o        How to tell true owner’s state of mind? If no outward signs, the courts almost always hold that there is a presumption by the A/P that possession of another’s property is nonpermissive.
o        Three approaches: Objective Test: A/P’s state of mind is irrelevant (majority of states follow this rule), Good Faith Test: A/P must believe in good faith that he owns the land, Intentional Trespass Test: The A/P must know that he does not own the land and must intend to take title from the true owner.
o        Policy: Prevention of waste – we want to keep land moving.
o        What about A/P state of mind? Four approaches:
§         An objective tests based on possession, Subjective tests based on a claim of rights, Intentional dispossession, Good faith
§         Objective test makes the A/P state of mind irrelevant, subjective test requires A/P to prove a particular attitude in addition to showing that the true owner did not permit
·         “For the Statutory Period”: Each state differs, and many will toll if the true owner is under disability (infancy, insanity, incompetence (wardship))
·         “Color of Title”: “An individual acquires color of title when a written conveyance appears to pass title but does not do so, either from want of title in the person making it, or the defective mode of conveyance”. Does the title lack signature, have ambiguous description, or procured through faulty procedure?
o        If the deed is defective, it does not matter – this is not a defense. The A/P will have color of title
o        Prescriptive Easement: Limited rights to use the property of another. You get the right to use the property but not the title to it.