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Property I
University of Denver School of Law
Romero, Tom I.

University of Denver
Professor Romero
Property – Spring 2012
What is property?
In short, property rights are defined by law, and the corresponding values of that legal system
Property rights only exist with the sanction and principles of the sovereign
                                In the US, from bill of rights
5th amendment'
14th amendment
“Property” generally is:
–A politically contested and historically contingent set of relationships,
–created, authorized, and enforced by the sovereign,
–conferring rights, privileges, powers, and immunities to something.
Bundle of Sticks Metaphor
What “sticks” entail property
Who has other claims (Limiting Rights)
Whole bundle of property – Fee Simple title
If you have everything, you can sell it
Always look at state law.  Possession, property, all the sticks, are defined in state law
What does property do
Individual Autonomy
Creates Democratic Rights
Gives you a stake in the system
Democratic Identity
Provides a stronger remedy (specific performance) than a tort claim
Why do we care?
Property confers citizenship
Property lets one derive value from their own labor or the labor of others
Property confers “freedom” to:
–contract, exclude or include, be or not be “productive” and “efficient”
Property confers power to define:
–freedom, labor, social, economic, political and cultural value, citizenship, groups, community, and relationships
Common Law Rule
Pierson v. Post (New York)
While Pierson may have been discourteous, he did not deprive Post from his property rights
Allows claim of ownership to person who takes possession, not who is chasing it.
As a general principle, nobody owns wild animals.
In American law, creates presumption of title to facilitate trade and minimize resource wasting conflict
Goal: To get property to its highest marketable value
Ghen v. Rich (Massachusetts)
The fact that Ghen had not maintained contact with his whale did not deprive him of the right to recover it
                The first taker of a resource gains the property right to that resource
Continued in “capture theory” where the first person to “capture” a natural resource such as oil had the property right
Property  damages are not always recoverable
Sentell v. New Orleans &C.R. Co (US)
While the dog is property based on the state statute, but it is not recoverable property because it was not placed on the assessment roles
The state has the right to dictate what is property, what is not, and what is recoverable property
Johnson v. M'intosh (US)
The sale by the Indians was not valid because they did not establish an initial property right, therefore they had no title to sell
In this case, title does not descend from the first possessor because their actions were not of the type that create property rights
“in the courts of the conqueror, the conqueror can not be denied”
Title is derived most appropriately from the US government, not the Indians
If the Indians used the land like the settlers, they may have had good title
Plume v. Steward & Thompson (California)
While Steward and Thompson were occupying it, Plume was in title of the land, was paying taxes, etc.   Court ruled that it was not abandoned
Court find that most states favor the claims that a prior possessor without legal title over a subsequent occupier of the land
First test, was the land first utilized?
Don't have to use the whole of the land, if the whole of it is marked
State v. Shack (New Jersey)
Property owner did not have the right to exclude basic constitutional rights from workers he invited on his property
Property rights are not absolute
Property rights are relative, conditional, relational
Property Rights serve human values
He still has the right to exclude, but it is not ultimate.  It changes when he invites others onto his property
Kirchburg v. Feenstra (US)
The state law that granted all joint property rights to the husband is unconstitutional
Property rights can not be created in a way that violates the constitution
Is this illegal taking?
No, not really, the property rights are not recognized
Columbus America Discovery Group v Atlantic Mutual Insurance Co. (4th Cir)
The insurance company never abandoned the property so columbus america was not entitled to ownership.  They were only entitled to a salvage fee
Law of Finds
Whoever finds it, keeps it
“True owner”Intentionally, and voluntarily relinquishes all right, title, and interest
True Owner Unintentionally, and Involuntarily parts with possession and does not know where it is
Stolen property found by someone who did not participate in theft is considered lost
Voluntarily put in a certain place and true owner forgets and overlooks
Treasure Trove
Coins/currency concealed by true owner who is long since dead or undiscoverable
Law of Salvage
Original owner keeps title,

There can be no property right to an idea
Nadel v. Play-By –Play Toys (3rd) – Notes
                3 part test that plaintiff must prove to recover for idea submission rights
1.       The idea was novel
2.       The idea was conveyed to the defendant in confidence
3.       The defendant made use of the idea after being informed of it by the plaintiff
Ruckelshaus v. Monsanto Co. (US) – Notes
                Courts will enjoin inappropriate disclosure of trade secrets
                For a while this protection was only a breach of “special confidence”
                Recently the court has been considering trade secrets as private property
Holmes v. Hurst (US)
                When holmes published each episode, he relinquished his right to copying
                Holmes abandoned his copyright by allowing Atlantic to publish them without copyright
Baker v. Selden (US) – Notes
                Distinguishes between expressions and ideas
                A description of art is copyrightable, but lays no claim over the art itself
Folsome v. Marsh (Massachusetts)
                Right to “Fair use” entitles a third party to use copyrighted material for “reasonable” uses
A&M Records v. Napster (9th)
                Internet sharing is not fair use
Misc Property Theory
Property is everything that a man attaches value has a right
Right to disposition
Right to sue and enjoyment (reputation)
Absolute right to exclude
Sovereigns right in the creation of private property interests
The principle that the government can, with fair compensation, take private property for public use
Limitations to right to exclude 
Save lives, property, etc
Public Policy and social need
Public trust
Public safety
Public accommodations and duty to serve
Public forum under state law and jurisprudence
Relative hardship
How long and how invasive is intrusion
There is no absolute right to exclude
Right to exclude is one of only many sticks