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Property I
University of Denver School of Law
Pidot, Justin R.

Property – Pidot – Fall 2012

Sticks in the Bundle/General Property Rights

1. Sentell v. New Orleans – 1987

a. State has the right to maintain property

b. Stick in the Bundle – Right to sue

i. In this case, Sentell does not have this right because he failed to register the dog as the state required

2. State v. Shack – 1971 (New Jersey)

a. Stick in the Bundle – Right to exclude

b. The Doctrine of Necessity also is important in this case

i. Public Necessity

1. Public officials can use property to protect the public good in circumstances of exigency without paying compensation

2. Classic Example: Fire!

ii. Private Necessity

1. Private individuals can use property to avoid substantial harm, but typically must pay for any damaged caused to property

c. Constitutional Avoidance

i. Deciding a case on anything but the Constitution in order to escape stare decisis

1. This way, the legislature can still re-define terms as it sees fit

3. Kirchberg v. Feenstra – 1981

a. Crazy Cajuns Doctrine

1. Husband can sell jointly held property without permission/notification of wife under LA law.

1. Intermediate Scrutiny b/c sex discrimination.

2. Court isn’t saying that husband and wife have to confer/agree on every decision concerning marital property.

-Specifying man OR woman is unconstitutional.

4. Pierson v. Post – 1805 (New York)

a. Wild Animal Law

i. Pursuit alone does not vest property

ii. How to gain possession:

1. Take physical Possession

2. Mortally wound and persist in pursuit

3. Deprive of its natural liberty

4. Corporal possession is required; wounding not enough

iii. Common Law: Hunter not landowner gets possession (Duck in Pond Exception)

5. Johnson and Graham’s Lessee v. M’Intosh – 1823

a. Title dispute where one person got title from Native Americans, and the other got title from US Government

6. Definitions

a. Replevin à CL suit seeking recovery of PERSONAL property.

b. Trouver à CL suit seeking damages for loss of PERSONAL property.

c. Conversion à Modern claim replacing the CL.

-Intentionally exercising control over the PERSONAL property of another in a way that is inconsistent with the owner’s rights with intent not to return the property.

Gifts and Finds

1. Inter vivos Gifts

a. Gifts during the course of one’s lifetime

b. Requirements

i. Intent

ii. Delivery

iii. Acceptance

c. If valid:

i. Property passes immediately

ii. Cannot be revoked

d. Future inter vivos gifts are not gifts at all

-(not recognized by property law)

2. Donatio Causa Mortis

a. Gifts effective at one’s death

-Saying, “when I die I want you to have X is NOT a gift causa mortis.

-Donor must be DYING at the time of statement.

b. Only applicable to personal property

c. Requirements

i. Intent

ii. Delivery

iii. Acceptance

iv. Death

v. Donee has to be still alive

vi. Donor on Death Bed

3. Delivery

a. Three Kinds

i. Actual Delivery

1. Physically giving the property to the donee

ii. Constructive Delivery

1. Example: Key to a safety deposit box

2. Giving someone something that grants access to the thing

3. Giving something that allows the use of enjoyment

-Example: Trailer hitch for a trailer

-***USUALLY, Constructive is sufficient when the gift is too big or unwieldy to move easily.

iii. Symbolic Delivery

1. Example:

1. A note that says “I will give you ____ ”

2. Photograph of the object

2. The passing of some sort of physical object that is designed to represent the property that is to be transferred

3. Jurisdictions split on allowing symbolic delivery.

4. Usually if physical is possible, symbolic will not be allowed

b. Newman v. Bost – 1898 (North Carolina)

4. Finds

a. Four categories

i. Abandoned Property

1. Requirements

a. Physical abandonment

b. Voluntarily relinquished all rights

2. Finder has ownership effective against everyone

a. Including the original owner

ii. Mislaid Property

1. Requirements

a. Voluntarily placed somewhere by the original owner

b. Forgotten

2. Owner of situs (place where property was found) has ownership effective against everyone but the original owner

a. Finder has no rights whatsoever

iii. Lost Property

1. Requirements

a. Involuntarily Lost

b. Unintentionally Lost

2. This includes stolen property where the finder is not the

f. For the Statutory Period

i. Colorado – 18 years

ii. Varies from state to state from 5 to 40 years

iii. Some States also have a state of mind requirement

1. Depending on the state it must be either in good faith (accidental) or bad faith (intentional)

2. Exceptions

a. You cannot adversely possess from the Government

b. The Statute of Limitations cannot run while the owner is:

i. Mentally Disabled

ii. Minor

iii. In Prison


The Right to Exclude

1. Exceptions

a. Navigable Servitude Doctrine

i. Kaiser case (Class #6)

1. If you create the navigable waterway, it is exempt from this doctrine

2. Question remains as to act of God creating navigable waterway

2. Loretto case

a. Shows how important the right to exclude is

b. Even in a case where the invasion is simply a small cable box, the government still has to pay

i. Typically, an invasion that increases property value does not require the government to pay

1. She won $1

3. Doctrines that have eroded the Right to Exclude

a. The Right of Custom

i. Oregon supreme court held that there was a customary right for the public to use the dry sand beach along the coast of the Pacific

b. Prescriptive Easement

i. Similar to adverse possession

ii. Must show hostile/continuous use, typically by the public

iii. This is a judicial question

1. Cannot be decided by the Legislature

2. Opinion of the Justices – New Hampshire

c. Public Trust Doctrine

i. The state may own the property in trust of the public

1. Illinois Central Railroad case

ii. If the private owner is going to further the interests, then the state can sell the land