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Property I
University of Illinois School of Law
Freyfogle, Eric T.

PROPERTY OUTLINE Profess. Freyfogl Spring 2012 university of Illinois

I. Acquisition of Property

A. Acquisition by Discovery

1. Johnson v. M’Intosh – D got land from US, P purchased from Indians. US claimed land by discovery, giving exclusive right to extinguish the Indians’ right of occupancy by either purchase or conquest. Indians merely occupants, no right to transfer absolute title. D has proper title to the land.

2. Two principles define ownership:

a. Possession: Property rights are established by possession

b. 1st in time = first in right

i. Example: T trespasses on to O’s land and takes a chicken. T1 then takes the chicken from T.

ii. T owns the chicken over T1. O owns the chicken over them both.

3. Locke theory Locke “we start out with the principle that a person owns themselves. He takes this further to state that if you take something that is unowned, and mix it with your labor, you come to own it.”

4. Locke Provisio – Locke “we start out with the principle that a person owns themselves. He takes this further to state that if you take something that is unowned, and mix it with your labor, you come to own it.”

B. Acquisition by Capture

1. Pierson v. Post – A fox is an animal ferae naturae and property in such animals is acquired by occupancy only. Mere pursuit of a wild animal does not vest any rights to the animal, even if it is wounded by the pursuer (mortal wounding does). To allow possession based on mere sight our pursuit would produce numerous arguments and litigation.

a. Livingston Dissent – Death of foxes is in the public interest and this decision should be made to encourage it. Wild animals may be acquired without having to touch them, provided pursuer in reach or has a reasonable prospect of taking. Labor theory, he put in work to catch fox so he should possess.

2. Keeble v. Hickeringill – He that hinders another in his trade or livelihood is liable to an action for so hindering him. Not a case of D setting up competing duck pond (where P would have no action). More like school master chasing away students and teachers with a rifle than opening up another school drawing teachers and students to it. Public policy favors protection of those who use their skill and industry to promote trade.

3. Applying the rule of capture to Fugitive resources:

a. Oil:

i. General Rule: I find oil underground, you get the rights to all of it…even if the well goes under your land and someone else’s land

· The remedy to this for another property owner is to put their own drill underground.

b. Water:

i. Reasonable use doctrine (Eastern States): Treated like community property. Limitations:

· You can’t obstruct the natural flow

· Must use reasonable use.

ii. Prior appropriation (Western States): First in time rule. Limitations:

· You are allowed to obstruct the flow if you are first in time and not done maliciously.

C. Creation

1. Intellectual Property

a. INS v. AP – Though once news is made public the property right is lost to the public, there remains a quasi-property right between P and D. News is gathered, distributed, and sold through enterprise, skill, labor, and money as any other merchandise. D interferes with P’s business at the exact point where P reaps a profit for its labor, D has the advantage of not being burdened with the expense of gathering the news. Unfair competition. Right to transfer to newspapers without losing right to exclude INS. Based on labor theory, want to reward AP’s labor and investment in collecting the news.

b. Cheney Brothers v. Doris Silk Corp. – Copying silk designs, many need to be made, only a few succeed, people copy the successful ones without putting investment into it. Limited INS to newspapers. In the absence of some recognized right at common law or by statute, a man’s property is limited to the chattel that embody his invention. The power to limit imitation (create a monopoly) can only Constitutionally be conferred by Congress.

c. White v. Samsung Electronics – [Kozinski dissent] Vanna White sued Samsung for violation of her common-law right to publicity & other IP infringements. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain, IP rights are imposed at the expense of future creators and of the public at large. Requires a careful balance between what’s set aside for the owner and what’s left in the public domain for the rest of us.

2. Physical Personal Property

a. Moore v. Regents of the University of California – Moore treated for leukemia, his doctors used cells taken from him to do research and patented the results. Violated principle of informed consent, but cannot recover on conversion theory. Subject of the patent, cell line and products derived from it, cannot be Moore’s property under California law. Policy consideration: if Moore allowed to recover, it would threaten to destroy the economic incentive to conduct important medical research if companies are uncertain if clear title exists. [Concurring – Selling human body parts is a moral issue. Should be decided in the legislature and not the judiciary.]

D. Finding

1. General rule is the finder of lost property has title superior to all but the true owner.

a. Armory v. Delamirie – The finder of a jewel, though not acquiring an absolute property right or ownership, may keep it against all but the rightful owner. Unless D produces the jewel, jury could presume stones were of the finest quality.

2. Two Elements of Possession – actual physical possession of lost property and intention to have dominion over it.

a. Hannah v. Peel – Brooch found in house never physically occupied by owner. Dispute over who has proper title. Bridges: Parcel found on floor of shop frequented by public, finder had superior claim over everyone (including shop owner) except the true owner. South Staffordshire Water Co.: Worker for landowner found two rings in a pool, held that if a servant/agent finds something, he finds it for his master. Elwes: prehistoric boat discovered buried on land leased for 99 years, held lessor owned the boat despite not knowing it existed prior to its discovery. From these authorities, a person possesses everything attached to or under his land and doesn’t necessarily possess everything that is unattached on the surface of his land. Here, brooch was lost and not attached to land. D never possessed brooch, no knowledge of its existence. Finder prevailed.

3. Lost v. Mislaid – Mislaid property placed and then forgot

G. The SOL continues to run because there is privity between the owners.

o Belotti – If any of these constituents is wanting, the possession will not affect a bar of the legal title. There was intent to convey the land and whole building even though part of the building was on the other’s property. Used road (easement) as an owner would, build on it after easement ended. Adverse possession.

iii. Howard v. Kunto – Deed described a different lot than they occupied. The fact that it was used only in the summer months makes no difference to continuous in adverse possession. Privity requirement is no more than a judicial recognition of the need for some reasonable connection between successive occupants. In this case, prior estates could be tacked onto the present defendant’s time period to meet the statutory time period.

iv. If there is an interruption by the real owner, SOL starts again.

d. Open and Notorious

i. Possession must be of such a manner as to give reasonable notice to the real owner that the adverse possessor is possessing, thus giving the owner a chance to defend his property rights [objective analysis that depends on the circumstances]. The owner has to have reason to know of the AP…at least constructive knowledge.

· Punish people who sleep on their rights.

ii. One key exception to constructive knowledge:

· Mannillo v. Gorski – Steps mistakenly encroached neighbor’s land by 15 inches, claimed adverse possession. Maine doctrine rewards the possessor who enters another’s land with a premeditated and predesigned “hostility.” Connecticut doctrine makes not inquiry about state of mind. Entry and possession is an assertion of title, no matter what the state of mind is the result is the same (owner ousted from possession). Held any entry and possession for the required time that is exclusive, continuous, uninterrupted, visible and notorious, even though under a mistaken claim of title, is sufficient to support a claim of title by adverse possession. However, not open and notorious in this case. Where possession o f the land is clear and unequivocal to such and extend that it is immediately visible, knowledge by owner is presumed. Where encroachment is small, not clearly or self-evidently apparent must show actual knowledge of encroachment.

e. Hostile

i. Refers to the state of mind of the AP’er. Three approaches:

· Objective Standard : State of mind is irrelevent. The SOL runs regardless of the AP’er’s state of mind

o Majority of courts rule with this standard in mind

· Good faith doctrine/Subjective standard: “I thought I owned it” attitude. Mistakenly acting as though you own it.