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Property I
University of Denver School of Law
Cheever, Federico

Chapter 1. Acquisition by Discovery, Capture, and Creation
A. Acquisition by Discovery-
a. First in time, first in right
b. Labor Theory- If you put your time and effort into something, you have a better title to it.
c. Johnson v. McIntosh- Establishes Real Estate title in America- Indians had granted land to US, which the government also later granted. Action in ejectment. Ds win ultimately, courts decide the Indians had no real rights to hand over the land. This was settled to set real estate precedent in the US. Essentially, the US conquered these Indian tribes so they forfeited their land to us. General Rule: Discovery of land by a European power gives absolute title.
i. Indians lose the right to transfer with their defeat.
ii. Conquest generally does not affect property rights
B. Acquisition by Capture- “Discovery is consummated by possession”
a. Pierson v. Post- This is the Fix Case. Post is chasing, pierson takes. Post had invested in the fox.
i. RULE: You need to physically occupy or ensnare an animal for it to be yours. A claim must be based on actual possession. Mere hunting does not vest title.
1. Possession encourages certainty.
2. Possession should encourage fairness
3. Possession should encourage maximum wealth in society.
ii. Ratione soli- Reason of the soil, in many places your possessory rights of animals is constrained by who’s land your on.
iii. RULE: As a whole we want rules to make us all richer. Rules which increase the aggregate wealth of society are good for society as a whole.
iv. Constructive Possession- Dissent- The idea that because Post was chasing the Fox, he had constructive possession of the animal although he didn’t actually own it.
b. Ghen v. Rich- Whaling case. Dude kills whale with bomb lance, scavenged by this other dude and sold. Judgment against guy who manufacturers the oil b/c of usage traditions for finback whaling. He likely has an action against the guy he got the whale from though. Custom in this case- “iron holds the whale,” the fisherman’s who puts forth the effort and leaves his mark gets it. RULE: When a hunter gets an animal in accordance to custom, title is acquired.
i. The real function of this case is wealth Maximization. We want laws to make everyone more wealthy
ii. Note: The Line: a way of prioritizing claims. Form of wealth maximization, inherently fair, encourages certainty.
d. Capture of Wild Animals Need actual possession. Also based on the laws of the land in which the animal is acquired on.
e. Capture of Fugitive Resources- Gas, oil, water. First in time, first in right.
f. Demetz Essay
i. Communal Ownership
ii. Utilitatian Theory of Property
iii. Common Property and the Rule of Capture- Problems and Solutions
iv. Pollution and the “tragedy of the commons”- The idea that if you have a common area, ie a field for grazing, every person who uses it will want to use as much of it as they can and the ultimate result is that the area becomes toast. No incentives to treat the resources wisely.
1. Externalities associated with depletion will be internalized if the common area is subdivided into plots.
2. Private property is one answer to resource depletion.
g. Externalities- The cost of an activity which the actor does not bear directly or entirely. Example: Car- Air pollution, road maintenance, policemen, etc.
i. External costs will never be taken with the same veracity as costs which are internalized.
C. Acquisition by Creation
a. Property In One’s Ideas, and Expressions- We want to protect to encourage creativity and wealth maximization.
b. International News v. Associated Press- Is news copyrightable or common knowledge? Time is really of the Essence here. Issue was if the IN was violating the APs intellectual property rights.
i. News is quasi-property; taking it off bulletin boards is theft.
ii. News cannot be copyrighted.
iii. RULE: A company which has spent money, skill and labor in creating news for its own profit, may exclude others from using that news until the marketable value of it as news has dissipated.
c. Cheney Brothers v. Doris Silk Corp-Silk makers and someone else making some knockoffs.
i. Imitation is for the public good.
ii. Copyrighting designs has really far reaching implications.
iii. RULE: Congress allows protection through the use of patents or copyright statutes, otherwise otherwise a persons property interests are limited to the chattels which embody them.
d. A&M v. Napster- Napster is making money advertising, not transferring files. This is a contributory infringer case, (Sony 1984 is the moby dick in this area, about VCRs. VCRs help infringe on private property rights, held not violating. Court held no violation because a VCR allowed for time shifting, and had a legit use. ) Napster asserts fair use, saying that their product is used for legit stuff too. Napster’s argument is weak.
i. Factors examined in looking at fair use are:
1. Purpose and character of use; commercial or nonprofit?
2. Transformative?
3. Nature of the copyrighted work.
4. The amount and substantiality of the portion used in relation to the whole
5. The effects of the use upon the potential market.
a. Non commercial, P must prove harm
b. Commercial, harm assumed.
ii. Vicarious or Contributory Infringement requires
1. Knowledge- knowledge. They knew of the infringement.
2. Material contribution- they helped with the infringement
e. Property in One’s Person
f. Moore v. Regents of the University of California-Doctors take out this guys spleen who has hairy cell leukemia, make a bunch of shit with his DNA. The facts in this case are not conclusive, they may never have happened this way.
i. CA court says that to call body parts property would lead to all kinds of problems of human privacy and dignity.
ii. RULE: Human body parts are not considered property such that they may be converted.
iii. No breach of conversion here b/c body parts are not property.
Chapter 2: Subsequent Possession
A. Acquisition by Find
a. Armory v. Delamirie- (Kid finds jewel in chimney) Kid has best title except for the jewels rightful owner.
i. RULE: Finder of property has the best title except against the original owner.
ii. Doctrine of Relative Title- If someone asserts title and no one else it, for efficiency reasons, that claim will be taken at face value.
iii. Bailment- The fact of rightful possession without ownership. (Valet, Laundromat, etc.)
1. Bailor- you give something
a. Involuntary- doesn’t choose the bailee
b. Voluntary- Chooses the bailee.
2. Bailee- the person you give it to
a. Sub-bailee- IE if a garage gives your car to a glass place, coat check at the opera house after you borrowed your roommates coat.
3. The Winkfield Doctrine- The Sub-Bailee, having paid the sub-bailor, now has a defense against the true owner. EX. You borrow roomies coat, go to the opera, who shreds the coat. This doctrine protects the opera house against the coats real owner, (your roomie), only you can recover.
b. Hannah v. Peel- (soldier finds brooch) Inquires into the relationship between finders and the owners of a place. In this case, the owner of the house had never actually been to the house and had no idea that the brooch was here, so he likely wasn’t the original owner.
i. RULE: The finder of property on the land of an owner who has never occupied the land has superior title against the land owner.
c. Bridges v. Hawksworth- Guy finds some cash in a public shop, keeps it. Important to note the guys honesty.
i. RULE: The finder of something in a public place where they are authorized to be has superior title, so long as they had a right to be in that place.
d. Sharman v. Staffordshire Water Company- Ring found in bird bath. Keeps the ring, which looks dishonest. Worked for the people who’s ring it was. This looks dishonest.
i. Limited Licensee- If you enter a place to do something you are only authorized to do that thing. In this case, to clean or whatever, not to take rings from birdbaths.
e. Elwes

to his kid. Concerned about some serious inheritance taxes if the painting goes to his kid, In order to get around this, the guys lawyer comes up with something brilliant, a remainder interest in the painting after the father’s life interest in the painting ends.
i. RULE: A party may make a valid inter vivos gift by giving a future interest in the chattel as a gift, and retaining the life estate themselves.
Chapter 3: Possessory Estates
A. From Feudalism- History on page 28 of notes
B. Fee Simple- “To A and His/Her Heirs” No longer required in documents, but it is presumed. This is full ownership
a. Development
i. Heritability
ii. Alienability
iii. FS Estate
b. Creation of FS
c. Inheritance of FS
C. Fee Tail- “To A and heirs of his body” We don’t have these anymore, because they are contrary to alienability.
a. This is a series of sequential life estates, generally to the oldest son/daughter.
b. Works like a monarchy; until there are no more direct descendants
D. Life Estate- “To A for life” Life estates are transferrable. Additionally, life estates are useful for avoid taxation multiple times.
a. White v. Brown- Mrs. Lide is this old lady who dies, and leaves her house so long as it isn’t sold. She leaves a holographic will, which courts must determine placement of in conventional property interest boxes.
i. Vocab
1. Holographic Will- A will written by oneself. Generally despised by lawyers because they don’t fit in conventional property interest boxes.
2. Testator- A person leaving a will
3. Testatrix- female version.
ii. Usually, unless specified otherwise, what a person HAS is what they GRANT.
iii. Presumption Against Partial Intestacy- Presumption that if you have a will at all, you intend all of your property to pass on.
1. RULE: Unless the will says otherwise, a will conveys a testator’s entire estate unless a contrary intention appears by the will’s terms and context.
iv. Generally, the court is hostile toward restraints on alienability
b. Baker v. Weedon- This is the case with Ana Plaxico. See notes, p 32.
i. RULE: A court should order a judicial sale only if it is in the best interests of the the life tenant and the remaindermen.
ii. The Law of Waste- waste occurs when the present possessor impairs the property’s condition for the remaindermen.
1. Affirmative- Liability resulting from injurious acts which are more than trivial.
2. Permissive- A question of negligence, failure to take reasonable care of the property.
iii. Vocab
1. Contingent Remainders- A remainder which may or may not come into possession. A condition must be satisfied before the remainder can become possessory.
2. Vested Remainders- A remainder that is sure to come into possession.
c. Seisin- (For FT/FS/LE)- Giving a piece of dirt in symbolic conveyance of land exchange.
i. Seisin today, is an indicator of a freehold estate.
d. Tricky things about life estates:
i. When a life estate transfers from A to B, it still terminates at the death of A.
ii. If B dies before A, his interest in the life estate transfers to his heirs and devisees until A dies.
1. Devisee- Someone who takes property by the operation of a will.
E. Defeasible Estates-