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Property I
University of Denver School of Law
Wiersema, Annecoos

Wiersema, Property, Spring 2013

General Property Interests

A. Property rights are generally referred to as a Bundle of Rights where some rights can be removed while the rest of the property rights & ownership still exists. So many rights, however, can be removed that the idea of a property rights is dissolved and turns into a contractual right.

B. Some rights:

1. Right to use property (or not use it) including the right to dispose of it

2. Right to exclude others from using it

3. Right to transfer title (gift, sale)

4. Immunity from having property taken or damaged without your consent

C. Whether there are property rights may depends on:

1. The attributes of the property

2. The social interests served by ownership or not granting ownership

3. Relativity of title – who else has an interest in the property

D. There are many recurring themes in property law regarding the public policy in how the law has been shaped and developed

1. Social context

2. Formal versus informal sources of rights

3. Alienability dilemma

4. Contractual freedom versus minimum standards

5. Social welfare

6. Justified expectations

7. Distributive justice

Right to Exclude

In general the right to exclude others from property is absolute, but in reality social interests prevent property rights from infringing on other rights. Therefore, many exceptions exists to the general rule that included in the bundle of sticks that is the right to exclude. There has been a rapid expansion in the US for these exceptions on the right to exclude especially on grounds of Necessity and implied consent.


Required, but also prevents trespass when given

a. Express: When consent is expressly given to be on property

b. Implied:

i. Desnick v American Broadcasting Companies, Consent given deviate to far from behavior expreseed (Fraud)

1. Consent is Valid when the consent is to an activity that is the object of the consent that includes peripheral elements of other behaviors (fraud) that does not fundamentally change the activity consented to

2. Consent is Invalid when consent is granted to an activity that is fundamentally altered by the elements of fraud into another activity


a. Federal statute and human dignity

i. State v Shack

1. Using state common law and federal law creating a standard of human dignity opening up access to property against the consent of owners (access by medical personnel and similar to farm workers living another another’s property

b. Priviliage

i. Ex.

1. Desnick v American Broadcasting Companies: there is no journalist privilege to trespass,

2. Firefighters: access to fight fires

1. Right to exclude did not apply to

a. Historically: [right to reasonable access] (including inn keepers and common carriers

b. Majority Rule: Racism Historical context: common carriers or inn keepers only

i. Why distinguished? Are retail stores equal to innkeepers & common carriers?

c. Uston v Resorts International Hotel: Exclusion must be ‘reasonable’ for any establishment that allows entry to the public

Trespass Remedies

Galvin v Eckmen : Cutting down trees to clear view to the beach on neighbor’s property, Cost of restoration. Compensatory Damages

Jacque v Steenberg Homes Inc.: Punitive Damages on a willful trespass violation after express exclusion with no compensatory damages. Are nominal damages sufficient to sustain a punitive damage award

1. Actual Harm occurs in every trespass & Protecting the right of society to exclude is extremely important

2. Is the punishment grossly excessive

a. Was it trespass reprehensible? If so greater justification for more damages.

b. Disparity between harm and potential harm and punitive damage award? [ yes, but it doesn’t matter because the disparity can’t be seen because of the noneconomic harm]

c. Punitive damage award and the civil or criminal penalties that could be imposed for comparable misconduct. Max is $1000 for trespass class B forfeiture, but that would not be enough to deter.

Public Trust, Breach, & Inherent Rights

1964: Equal access to the enjoyment of, goods services, facilities …. Of any place of public accommodation, without discrimination on race, color, religion, national origin. Is injunctive relief.

0. Hotel, motel, not small building with less than 5 rooms

1. Any facility principally dedicated to selling food

2. Any public event space, opera, movies, etc.

3. Any place inside one of these other places already listed

4. Not private clubs

1866: discusses contracts, which relates to property rights and obtaining property, ability to enjoy property rights. Can make a claim for damages.

Mathews v Bay Head: Semi Public entities that act as a municipality must open up beaches to general public, can charge fees, but can’t limit membership to a select group of people, if you can pay the fee you can go.

Free access to ocean below the high water mark, Avon expanded this right to dry sand area.

Acquisition, Conquest, Redistribution

Full ownership rights to land have historically occurred from discovery & conquest. These principles govern American Property law historically.

Homesteading: When you work the land you are vested in it and gain rights to that land. (Issue of use, Indians conflict)

Scarcity, and limited supply fuel the necessity for distinctive property rights, and a demand to keep lands in use.

Problems in application:

Reallocation of property right via slaves post-civil war:

Why was land not redistributed to slaves who had worked the land? It May have undermined the certainty of property rights, because there were concerns that government would be overstepping by taking land property rights away when slaves where considered property and had property owners had already lost that.

Right by capture

Pierso v Post

Obtaining wild animals reuire motral wounding it and still be in pursuit in order to gain a property right.

“ownership-in-place”: Possessory interest similar to fee simple in substances beneath his land, but ownership is a determinable fee simple

strictions or benefits their property was subject to through physical telling or otherwise.

Constructive: Constructive notice is when a person is on notice through records of the property to which they possess and should be aware through ordinary due diligence to any benefits or limitations on their property.

Inquiry: Inquiry Notice is when a person is on notice through ordinary due diligence of their property, what it obviously apparent should they visit the property or have it inspected for them.

Adverse Possession

1. Actual possession

a. Use as ordinary owners would depending on the context of the property (Nome 2000) / Enjoyment, cultivation (Brown v Gobble)

2. Continuous

a. No break in possession (Brown v Gobble) /Continual use depending on context

b. Use: The standard is for how an average owner of similar property would use it. Seasonal use or not building significant structures are not important given the nature of the property. [rural areas v other areas].

c. Notorious: had the owner checked on the property they would have discovered its use.

3. Exclusive

a. Possessor acting as owners excluding others

4. Adverse & Hostile

a. Inconsistent with title of true owner, without permission, objective (intent not relevant) (Nome 2000)

b. OBJ test. Must show that they acted without permission using the land as if they owned it.

5. Open and Notorious

a. Visible use that would put reasonable true owner on inquiry notice of possessors adverse possession (nome 2000)

6. Statutory period

a. Length of time sufficient for jurisdiction

Nome 2000, Seasonal use is continuous depending on the location, cared for it as if they owned it by improvements and structures, hostile is acting as if you own it. Corner posts are not the same as a fence.


is allowed in adverse possession cases when two parties have a direct relationship with each other such as being parties to a deed, then they are in privity. When privity exists periods of adverse possession can be added together so the statutory time requirements can be met

Color of Title

Exists only by virtue of a written instrument which purports to the claimant, but which is infective because of a defect in the means of because the grantor did not actually own the land he sought to convey.

Showing all the elements of adverse possession for a portion of the land covered by color of title, a adverse possessor can adversely possess the entire area claimed by color of title.