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Property I
University of Denver School of Law
Cai, Phoenix X.F.

Course Outline

Sunday, April 17, 2011

11:48 AM

· Different Rights in Property

o Use

o Share

o To Alienate

o Transfer/sell

o Gift

o Waste

o Exclude

· The only thing that ALL pieces of property share is the right to exclude

Theories of Property Law

· Values advanced by policy reasons


· how easy is it to administer or understand?


· Deals with laboring in vain

· How much labor was put in


· What are the expectations of the parties?

· Judicial economy?

· Explicit wealth maximization :looking at everyone as a whole

· First in time, first in right (arbitrary)

o Minimizes disputes

o Encourages discovery, incorporation of more property into economy

iii. Provides basis for intellectual property law

iv. Certainty- must know who owns what

· Labor Theory (Locke)

i. Since our labor is our property, when we improve land, we mix our labor with it, and thus it becomes ours.

ii. Encourages people to improve land, which benefits society on the whole.

· First Possession:

o acquisition of property by discovery, capture, and creation

a. Discovery

i. Johnson v. M’Intorsh (stealing land from Indians)

1. Certainty won over fairness due to historical exigency

b. Capture

i. Pearson v. Post (the fox-hunting case)

1. Certainty won over efficiency and fairness (court preferred a simple rule that was easy to apply).

c. Creation

i. Moore v. UC Regents (stolen cancer cells case)

1. Moore lost because:

a. Court wanted legislature to deal with issue

b. Social benefit of allowing researchers to benefit from medical discoveries

i. Helps society by encouraging new discoveries

2. For conversion to work, Moore’s possession or ownership of his property had to be interfered with

a. Court ruled blood and tissue were not his property once removed…

3. Did breach Fid. Duty

· Acquisition by Capture

o First in Time, First in Right

· Minimizes disputes

· Encourages discovery

o Labor Theory – Locke

· Nature altered in some manner by man’s labor = his property

· Encourages people to improve land which benefits society

· Property in One’s Person

· Acquisition by Find


o The finder has a right of ownership against all subsequent possessors, but not prior possessors (i.e. original owners)

· Based on the rule of “first in time, first in right”

· Chattel found on land

§ The possessor of land is generally entitled, as against the finder, to chattels found on the land

o The basis for this rule is based on favoring honest finders, bc a legal system favors honesty, don’t want to reward dishonesty

o The exception to this rule is the True Owner who trumps all

· This rule is only between finders, if the owner is found all others lose

o This rule protects chains of possession bc:

· Stops chains of stealing

· Possessors’ expectations

· True owners are protected

· Valuable social activities enabled (i.e. valet, dry cleaning, coat check)

§ Efficiency argument!

· By protecting possession, we enable bailments to occur, bailments create value(wealth), and that value enhances society’s wealth (law and economics argument)


Trover – type of action brought for damages for conversion

Replevin – type of action brought for return of personal property

3. Bailments – rightful possession of good by a person (bailee) who is not the owner (bailor)

i. Doctrine of Relative Title

i. A finder of a chattel does not acquire an absolute right, however, he does have superior title to everyone except the rightful owner.

ii. The finder of lost property has

keeping the jewel makes this a case of involuntary bailment

· Where you have involuntary bailment, the wrongdoer, having paid once already has an affirmative defense against subsequent claims


· The finder of property acquires possession of that property (although not absolute) against all other claimants but those claims of the original owner


· Rule of prior possession is said to only be explicitly evoked in cases of honest claimants

· Acquisition by Gift

Case by case/not a science…

2 key elements

intent(at moment of giving)


generally manual delivery req’d, depending on nature of property

3 types of delivery:

Manual- req’d if physically and practically possible

Constructive- access to thing given (ex. Keys)

Symbolic- modern invention, usually paper symbolizing property. Courts don’t like this as much

These req’s are intended to prevent fraud

Courts want people to use wills instead if possible.

Acceptance – law presumes acceptance on the part of the donee if gift has value

Gifts are irrevocable

Newman v. Bost (dying man gives property to mistress)

Intent was sufficient, delivery was not.

Gruen v. Gruen (dad gives son painting but keeps for his life)

Dad gives son letter stating that the painting is his, but that he reserves a life estate in it.

Because a remainder was the gift, only symbolic delivery becomes valid in this case.

Acceptance was contested, but has very low burden of proof.