v Possession, Ownership, and Transfer
Ø Exclusion/Inclusion
§ Exclusion commonly thought to be the most important factor in property ownership. Inclusion is the right to access that which you own.
· Jacques v. Steenberg. 1997. Steenberg delivered a mobile home and tracked across Jacques’ land, intentionally trespassing; no actual damage to land (nominal damages of $1 awarded), but punitive damages of 100,000 upheld. Society has a strong interest in deterring intentional trespassers.
· State v. Shack. 1971. Trespassing charges brought against aid workers who sought to provide aid pursuant to federal laws (the EOA) to migrant workers overruled by court. The power to exclude is not an absolute right. A landowner does not have the right to exclude people from receiving government services to which they have a right. One should use his property so as not to injure the rights of others.
Ø Acquisition by Capture. First in time rule. He who grabs it gets it.
§ Pierson v. Post. 1805. Post chased a fox on unowned land, and Pierson caught it and killed it. Court found that ownership must be defined by actual physical possession; a rule of ownership at first sight would lead to chaotic results. Caveat to the rule hints that had Post mortally wounded that beast during the pursuit, he would have gained ownership rights. Dissent thinks that the ruling will deter the socially beneficial activity of fox-hunting.
Ø Possession and Escape of Fugitive Resources
· Ratione soli; “The reason of the soil.” A kind of Constructive Possession. While wildlife (ferae naturae) is on the land, wildlife belongs to the owner of the land.
· Ghen v. Rich. 1881.The tagged whale case. The role of maritime custom applies. Whales were harpooned and were tagged by harpooner, denoting ownership. Once tagged, the whale became property; ownership is vested in the harpooner. If the custom were not recognized here, the industry would cease. Court recognizes custom.
· Keeble v. Hickeringill. England 1707. The duck-shooting pond case. D intentionally disrupted P’s enterprise by coming onto P’s land and chasing away the ducks. By scaring off the ducks, P is being deprived of the right to profit from his property. This ability to make a living is a kind of property right in itself. There would have been no problem if D had just set up his own duck-shooting pond next door; that would be in the public interest because it would have furthered the market economy and the gain of property as a whole.
· The rule of increase. If you own the mare, you own the baby.
Ø Physical Discovery and Conquest
§ Johnson v. M’Intosh. 1823. Ownership here defined by grabbing, getting, and keeping rule, rather than straight first in time rule. The fiction of property ownership has to start somewhere; the Court as a tool of colonialism, not of justice. Indians only had a right to occupancy; because they hadn’t worked the land, and had been driven from the land they did not own the land; because they did not own the land, they could not sell the land. “Discovery” by European nations, compounded by conquest of the land, gives Euros right to sell or buy the land. U.S. government power over property is absolute; property rights have been inherited through Euro discovery and perfected through American conquest and tilling of the soil. Note the Lockean ideal playing into this rule – the Indians did not “work the land;” they did not gain ownership rights. Note also that Indians’ occupancy here is not enough to vest ownership.
Ø Acquisition by Creation
§ Lockean ideal. Labor at something, and improvement of something, may vest ownership rights. Work the land, own the land.
§ International News Service v. Associated Press. 1918. Quasi-property and the relativism of title. The relationship is borne out of the competitive business relationship between these two parties. This material is “owned” only in the context of this relationship. Within this relationship, INS’s actions have interfered with AP’s quasi-property; ie, their ability to profit from the selling of newspapers. The news itself, as a reflection of the history of the day, belongs to no one; the ability to publish it for profit is a kind of property. By copying news and reselling it, INS is attempting to reap what it has not sown. Another decision to protect fair competition and the market, like Keeble v. Hickeringill. A nod to industry.
§ Cheney v. Silk. 1929.Cheney makes silk patterns, they make too many to patent each one; Silk copies these patterns and sells them, undercutting Cheney’s pricing. Holds that INS is too specific to be applied here. Imitation is necessary to reduce the prices and prevent monopoly. To exclude others from the enjoyment of chattels is one thing. To prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power…which the congress allows only the Constitution to create. Another decision based on policy to shape the market for what is perceived to be the public benefit. A nod to lower prices.
§ Smith v. Chanel. 1968. Follows Cheney. Strong public interest in allowing Smith to sell knock-off Chanel because it creates a fair price and competition.
§ Patents, Copyrights, Trademarks. At bottom, the idea behind patents, copyrights, and trademarks is to grant a limited monopoly over the protected material – monopoly to promote creative activity, but limited in order to advance competition.”
· Patents. Granted for useful and novel products and processes. Patents last 20 years from the date of their application.
· Copyrights. Protects the expression of ideas (not the ideas themselves). Last from the moment they are set down until 70 years past the death of author.
· Trademarks. Words and symbols indicating the source of a product or service; owners are protected against use of similar marks when such use would result in confusion. Trademarks last until they are abandoned.
§ VW v. Virtual Works, Inc. Virtual Works grabbed a website name that VW would want, and intended to profit from selling the name to VW. Legislature had enacted a cybersquatting law to protect fair competition. Bad faith admitted on part of Virtual Works made application of statutory law easy here.
Ø Property in One’s Own Person
§ The right to privacy/the right to publicity. Aside from everyday privacy concerns of regular people, recognized as a kind of property right, celebrities now have a recognized property right in their name, likeness, and other aspects of their identity, which have a marketable value. Right to privacy is rooted in the right to exclude, and provides a guard against another person appropriating another’s self or devaluing it somehow.
§ Moore v. Regents of the University of California. 1990. Moore sued for conversion on his cell-line, which doctors mined for research and patents. The rights in one’s person are not absolute. Conversion claims require (1) ownership by P and (2) wrongful use of that property by D. Court refuses to find for P, fearing a slippery slope of litigation that would hinder research; a finding for P here would not be in the pu
varies among states from 5 to 21 years. The trend is toward shortening the statutory period.
2. Actual Entry and Exclusive Possession
a. Sufficient to put owner on notice of the fact and extent of the adverse possession.
b. Of a type that a true owner would typically make of a parcel.
c. Title is gained only as to land actually occupied and controlled, if adverse possessor enters with no “color of title” (a written instrument). But partial occupation may give rise to constructive adverse possession of the whole tract where possessor acts under “color of title” (i.e. holds a written instrument identifying the whole tract)
d. “Exclusive” means no sharing with the owner.
3. Open and Notorious Possession
a. Sufficiently apparent to put owner on notice that a trespass is occurring
b. Some states have specific statutory requirements for showing adverse possession (e.g. the New York statute in Van Valkenburgh v. Lutz)
4. Adverse (or “Hostile”) and under a Claim of Right (or “Claim of Title”)
a. Lacking owner’s permission
b. Relevance of state of mind and knowledge of the parties:
(1) Objective test: The Connecticut Doctrine. The majority view is that an adverse possessor’s state of mind is not important (mistake, good faith, or hostile intent). The possessor’s actions and statements must simply look like a claim of right to the property.
(2). Subjective test: Some states say that the adverse possessor must have a good faith belief that she has title. A squatter or aggressive trespasser (knowing she lacks title) cannot be an adverse possessor under this test.
(3). The “Maine doctrine” for boundary disputes: a minority of jurisdictions hold that a possessor who is mistaken about the boundary line of his property but did not intend to claim title to adjoining property may not obtain title by adverse possession because adversity is missing.
(4) The New Jersey rule: New Jersey follows the majority rule now (the objective test), but when intrusion on a small area is not readily apparent without a survey, the possession is not sufficiently “open and notorious,” if the owner has no actual knowledge of the encroachment. [Mannillo v. Gorski]
(5) Courts sometimes resolve boundary issues by finding or implying the existence of an agreement between the parties about the location of the boundary line. The doctrines of “agreed boundaries,” “acquiescence” and “estoppel” as applied to boundary lines do not rely on a finding of adverse possession.
b. Most states do not require that the adverse possessor also act under “color of title” (relying on a written instrument). But the minority view is that “color of title” is required for adverse possession.
5. Continuous (uninterrupted) possession
a. Degree of occupancy and use that the average owner would make of the property. Intermittent occupancy may qualify as continuous possession if typical occupancy by a true owner would be intermittent
