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

Property_Romero_Fall 2013

· PROPERTY GENERALLY: What is Property?

o Relational / Series of Relationships – The bundle of rights that the law says a person has in relation to others with respect to an asset.

§ (1) Right to Exclude

§ (2) Right to Use and Possess

· (Usury Rights – Indians: Johnson v. M’Intosh)

§ (3) Right to Transfer

· Selling v. Gifting

· Market Inalienable Property – Can Never Be Sold Legally (Organs)

· Life Estates (Cannot be transferred at death)

§ (4) Right to Destroy

o Regardless of form, anything is capable of becoming property if:

§ It is capable of being possessed, controlled and assigned to exclusion of others.

§ It has market value where its economic benefits can be realized and enjoyed.

§ Some or all of the above is given full effect by sovereign endorsement.

o James Madison Property Theory – Property is everything to which a man attaches value and has a right. By calling something property, it creates tangible economic and social benefit.

o Property Rights NOT Absolute (Individualism v. Utilitarianism & Private Good v. Public Good)

§ Sic utero tuo ut alienum non laedes (“One should not use his property in a manner that injures others.”)

§ Property rights serve human values, they are recognized to that end and limited by it. (p. 12)

· State v. Shack (NJ) (1971) – (p. 11-14)

o Once the Landowner allowed the migrant workers onto his land, his right to exclude was diminished because you cannot use your property in such a way that injures others.

o An owner may reasonably require a visitor to identify himself and state his general purpose if the occupant hasn’t informed owner that a visitor is expected. However, owner may not deny occupant his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. (p. 13).

o “Legal Fiction” (Bentham – Legal Positivism)

§ Rights defined and recognized by the sovereign that reflect the values of the legal system.

§ Rights acquire meaning only as they are enforced by the power of government.

§ Any right which the law will protect against infringement by others.


o Constitution doesn’t define property generally, it only defines certain very specific facets of property – such authority is left to the States (10th Amdt.)

§ Article I Confers Enumerated & Implied Powers to Congress

· Article I; Sec. 8 – Lists Enumerated Powers + Implied Powers via N&P Clause

o Cl. 5 – To Coin Money, Regulate Value Thereof

o Cl. 7 – To Establish Post Offices & Post Roads

o Cl. 8 – To promote progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

o Cl. 18 – “Necessary & Proper” – “To make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the US, or in any department or office thereof.”

§ 5th & 14th Amendments –

· Due Process Clause –

“Nor [shall any person] be deprived of life, liberty, or property without due process of law.”

· Takings Clause –

“Nor shall private property be taken for public use without just compensation.”

· 14th Amdt Equal Protection Clause –

“[No State shall] deny to any person within its jurisdiction the equal protection of the laws.”


o 10th Amendment – Police Power

“The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

§ Powers of States to legislate in health, safety, welfare, [and sometimes morals – Romero] of its citizens.”

§ Grants broad authority for States to regulate, define, and legislate property.

o State Constitutions, Statutes, and Ordinances –

§ Sentell v. New Orleans (US) (1897) – (p. 3-5)

· HOLDING: When rights are not specifically carved out by the Constitution, or those rights to be specifically governed by the Constitution, it is within the discretion of the State & Local governments (sovereigns) to determine what shall be recognized as property and to what extent.


o Ferae Naturae——-Pets——-Domesticated Animals

o Ferae Naturae (Killed/Subdued/Mortally Wounded/Possessed; NOT mere pursuit)

§ Wild Animals [Pierson v. Post]

o Pets – (Conditional Property Right – State Statute)

§ Animals kept for pleasure, curiosity or caprice – dogs, cats, monkeys, parrots

o Domesticated Animals (Complete & Perfect Property Right)

§ Horses, Sheep, Cattle, etc.

· Judicial Review – Rational Basis Used Here – If the means is reasonably likely to achieve the ends, the governmental conduct is valid, and it is presumed such a connection exists unless the challenger proves otherwise.

o Had this instead been applied to Domesticated Animals, a 14th Amdt violation may have occurred for depriving the owner of property by due processes that could be considered arbitrary, capricious, and unreasonable.


o Possession –

§ Generally, one who has dominion and control over real or personal property has possession.

· Intent to Control + Act of Control

§ Definition Varies According to Context.

o Title –

§ Generally,

§ Different categorizations of title exist. (ie: Fee Simple Absolute)

o Ownership –

§ Confers all sticks in the bundle of rights (exclude, use/possess, transfer) in relation to others with respect to an asset.

§ Determined & Defined by States


A perceived social realit

ine –

o Gave an exclusive right to govn’t to extinguish the Indian title of occupancy, either by purchase or conquest and diminished aboriginal rights to complete sovereignty because discovery gave exclusive title to those who made it.

o “Conquest gives a title which the law of the conqueror that the courts of the conqueror cannot deny”

o Rights to Persons –

§ Commonwealth v. Aves (MA) (1836)

o Rights in Trees/Vegetation –

§ Whitesell v. Houlton (HA) (1981)

o Rights to Use of Sunlight –

§ Prah v. Maretti (WI) (1982)


o Public/Private Place Distinction –

§ General Rule: Based on Theory of Prior Possession

· Private Land = Landowner via Constructive Possession

o (1) Intent to exercise dominion and control over her property

o (2) engaged in substantial acts of control.

· Public Land = Finder

o Mislaid Property –

§ True owner intentionally places property in a certain location with the intention of retrieving it at a later time, but then forgets or overlooks it.

· Rationale is that the TO retains title and intended the LO to have possession, in case TO came back to retrieve her property.

§ Ownership favors Landowner over Finder, but LO’s right inferior to TO.


o Lost Property –

§ True Owner unintentionally and involuntarily parts with possession of property and does not know where it is.

· Stolen Property = Lost Property

o Abandoned Property –

§ Owner intentionally and voluntarily relinquishes all right, title, and interest in the property.

· Must show strong and convincing evidence of affirmative act repudiating ownership

· Mere non-possession alone, insufficient to show intent to relinquish title.

§ First finder who takes possession after abandonment acquires title valid against even TO.

o Treasure Trove – Exception to “Embedded in Soil” à LO Rule.

§ Treasure intentionally concealed by unknown owner for safekeeping in a secret location in the distant past.

· Treasure Ancient to indicate TO dead or undiscoverable.

Many states reject doctrine of treasure trove, but in states that do recognize treasure trove the property found goes to the finder over all including LO, even if finder was in trespass.