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Property I
University of Denver School of Law
Wiersema, Annecoos



Rights people have with property (what people can do with property):

Right to use property (or not use it) – including the right to dispose of it
Right to exclude others from using it (there may be some limits)
Has the option (right) to transfer title (gift, sale)
Immunity from having property taken or damaged without your consent

Bundle of Rights (aka bundle of sticks)

-Specific rights that attach and you don’t necessarily have all of them with each piece of property you have (some of the sticks in the bundle can be removed)


Definition: an unprivileged intentional intrusion on property possessed by another (don’t have to be aware they’re on someone else’s property)

-Designed to protect the right to exclude

-If they’re drunk and someone drops them there, it’s not trespassing (intent is required)


When the D engaged in a voluntary act, such as walking onto the property (doesn’t mean the trespasser intended to violate the owner’s legal rights; mistaken entry doesn’t relieve the trespasser of liability)


Occurs the moment the non-owner enters the property


A trespass is privileged (not wrongful) if 1) the entry is done with the consent of the owner (can be implicit or explicit = going into a store, library, etc.), 2) the entry is justified by the necessity to prevent a more serious harm to persons or property (defense to a claim of trespass); or 3) the entry is otherwise encouraged by public policy (public policy might be hidden in the definition of necessity)

Exceptions to Trespass –

State v. Shack (pg. 4)

Rights in real property are not absolute (some sticks get taken away) and are limited by the maintenance of the well-being of those people that the owner permits on his land. Tedesco permitted the migrant farm workers to stay on his land, so despite his interests in his property, he is not entitled to refuse access to individuals seeking to aid those workers. “Property rights serve human values. They are recognized to that end, and are limited by it.” If the right to exclude comes into conflict with some other compelling interest (human dignity), then the property right isn’t violated and there’s no trespass

Policy – employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied based on an interest in real property and too fragile to be left to the unequal bargaining strength of the parties

Defense of Necessity

Definition: the common law defense of necessity exonerates one who commits a crime under the pressure of circumstances if the harm that would have resulted from compliance with the law exceeds the harm actually resulting from the D’s violation of the law

For a D to be entitled to a necessity defense, he/she must present evidence on each of the following elements:

1) A clear and imminent danger, not one which is debatable or speculative (pg. 11)

-Weather is dangerous

-Having to use the bathroom is not dangerous

2) A reasonable expectation that his or her action will be effective as the direct cause of abating the danger

3) There is no legal alternative which will be effective in abating the danger, and

-Objective reasonable person standard; doesn’t have to be exhaustive of all alternatives (pg. 12)

-Repeated attempts to get an apartment

4) The legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values as issue

Commonwealth v. Magadini (pg. 9)

He didn’t need to exhaust all options – it needed to be what a reasonable person would have done at the time the necessity presents itself). Necessity is by its nature what is happening at that exact time. If they exhausted all options, the need would probably pass

*Sometimes courts are willing to modify right to exclude even in private settings

If talking about private property (not also open to the public) →

Does this amount to human dignity?


Could someone use the defense of necessity for the threat of human life or survival?

Trespass Remedies

Main thing: how courts might view what trespass is – intrusion on your property right

-If there are no damages, nominal remedies are $1

-Courts will use punitive damages to reinforce the legal right that trespass protects

Common measures of damages –

1. Value of damaged property

-Problematic when the property is a small cost and much less than the restoration costs (i.e. cutting down mature trees like Glavin)

2. Diminution in value of the property as a result of the harm

-Market value may be less than the value the owner places on the property. (i.e. Having mature trees on your property that you planted yourself. Using them to block view into your neighbor’s yard.)

3. Restoration damages are appropriate when other measures won’t work.

-Must be reasonable & reasonably necessary compared to damage

4. At judge’s discretion, other evidence may be used to determine damages

Glavin v. Eckman (pg. 34)

Actual restoration is impossible and uneconomical so damages are put in place to deter trespass

-Compensation fair market value

Policy – person might value higher because of personal reason

Jacque v. Steenburg Homes (pg. 38)

Private property right to exclude supersede efficiency and the damages reinforce that

-Punitive damages for complete disregard for essential right to exclude even if there are no damages (if no punishment, it would not deter their conduct)

Policy – individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results.


-Property rights are hollow if insufficient means to protect it

-No practical meaning unless protected by the state

-Right to exclude is one of the most essential sticks in the bundle


-People will resort to other means (killing) if right is not protected



Common Law –

Uston v. Resorts International Hotel, Inc. (pg. 25)

Majority Rule: businesses can exclude for any reason (it has to be consistent with civil rights statutes), except innkeepers and common carriers, who can exclude only for reasonable grounds

*We distinguish innkeepers and common carriers because of necessity and monopoly

Uston (minority rule): exclusion must be reasonable for any establishment that allows entry to the public

Reasonableness – disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants

Majority rule with modifications: expanding (to add retail stores for example)

Policy (pg. 29)-

-Amusement facilities survival rely on bringing in public business, so they will not kick out people for unreasonable reasons

-Inns and carriers are more likely to be a monopoly, they provide necessities, and they hold themselves out to serve the public

-Rigid rules like the majorities car

ample: money you stuff in mattress). Courts can’t agree – we don’t need to know

Questions to help figure out which case is relevant:

Is this already property?
If no, can it be property? (INS v. AP)
If it is property, has it already been owned by someone? Does someone currently own it?
If no, who can claim possession through occupancy? (Pierson / Popov)
If it has been owned, do we know who that someone was? Can the owner prove title? If not, possession may be relevant (Willcox)
If it’s been owned, has it been lost, mislaid, or abandoned?
If lost, who has the strongest title? (Armory)
If abandoned, consider occupancy/possession

-Incentives like hunting (Pierson)

-Deterring bad behavior (Popov)

-Fairness of labor (not wanting to reward freeloading)

-Certainty (very important)

-Effect on society as a whole

-Distribution (public policy)

-Role of judiciary/role of legislature


-Relationship between the parties

-Expectation in Popov is full control

Type of property

-Burial (Charrier)

-Engagement ring


-Historical records

Presumption of Title –

Willcox v. Stroup

When nobody can prove clear title → possession creates a rebuttable presumption of title

Policy –

Promotes stability and certainty
Protects private interests of longtime possessors
Increases social utility

Lost or Abandoned Property –

Charrier v. Bell (pg. 158)

When is property abandoned? What might influence this?

Buried goods are not abandoned – they need intent to relinquish rights

Policy –

Need to go to court with clean hands

Finders Rights –

Armory v. Delamirie (pg. 156)

If property is lost, a finder gets full ownership over everyone but the original owner. Once you have title you no longer need to have possession (different than Willcox)

Policy –

Could encourage stealing

Finding things on property:

-Landowner will win if found when trespassing

-If found on private home the homeowner will usually win

-If found on public accommodation usually awarded to the finder

Maid Example (pg. 157)

-Hierarchy between two finders


Occupancy/possession as a means to acquiring title in un-owned (Pierson v. Post) or abandoned property (Popov v. Hayashi). What do occupancy and possession mean?

Pierson v. Post (pg. 136)

Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession.

Policy – (pg. 139)

Reward the pursuer and not deter hunting

Popov v. Hayashi (pg. 142)

When the ball leaves Bond’s possession, it’s intentionally abandoned, so the next person will be the owner and have legal possession — all sides agree on this