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Property I
University of Illinois School of Law
Smith, Bruce

Property 1

Prof. Smith

Fall 2013

I. First Possession

a. First in Time: In determining ownership, first person to take possession owns it, first in time first in right

b. Locke Labor: Reward people who invest in resources

c. Possession: 1) Intent to possess and 2) actual controlling or holding

1. Acquisition by Capture

a. Need occupancy, deprived of liberty and brought within control, mortal wounding

b. Customs may cause different results depending on industry; use selectively, hard to administrate, can be wasteful on resources

c. Doctrine of relative title-first trespasser has a better claim even if originally stolen, one can have better title then another, while having inferior right to another

d. Animus revertendi- habit of returning, rule saying domesticator is rightful owner even if animal escapes/roams, but how is one to know unless the animal is uncommon to the area

e. Oil and gas: if under 2 properties a person can drain, as long as drilling isn’t through others land

f. Cases

i. Pierson v. Post-post lost since he not physically shoot and seize the animal, just chased, on wild land

ii. Ghen v. Rich-Custom was to return whale, recognized by court as possession

iii. Keeble v. Hickeringill-Hickeringill fires guns to scare game, but not actually capture, imports damage, unlawful interference, keeble has constructive possession, damages for keeble

2. Property In Ones Person

a. Should body parts be able to be sold; need alienability

b. If no intent to retain possession, no conversion

c. Any action to recover asset is replevin

d. Trover- monetary compensation for conversion of property

e. Cases

i. Moore v. Regents of the University of California- no property rights in spleen removed from surgery and used for cell line; only to sue dr for non disclosure/consent; only worth money due to doctors improvement

3. Acquisition by Creation (IP)

a. Lacks tangibility, cannot copyright an idea, only expression

b. non rivalrous: consumption of it does not diminish rights or value for next person

c. Public is better off if people can copy, incentivize competition or be lazy and copy

d. Cases

i. INS v. AP-Hot news doctrine; news survives instant of publication until commercial value dissipates; quasi property; cannot pass off as own is unfair competition and misappropriation

ii. Cheney Bros. v. Doris Silk Corp- persons property right is limited to actual chattels that embody his invention, D can copy, no copyright on quick patterns

iii. Smith v. Chanel- Fair/normative use- D can use P trademark, (and copy perfume formula claiming it is same) if describing and does not confuse with actual product, cannot slander

iv. White v. Samsung Elecs-Right of publicity- cannot use celebs personality, likeness, voice or signature for profit

4. Right to Include and Exclude

a. Right to keep people out; essence of private property is right to exclude, exclusive possession; most important stick in bundle

b. Strict liability- without regard to damage caused or to whether trespasser views conduct as reasonable

c. Coase theorem- parties will negotiate to optimal point where transaction costs (lawyers, valuation) are 0; pay to trespass, P gets $ and D gets utility

d. Limitations on trespass when involving necessity or policy (legal/medical)

e. Cases

i. Jacque v. Steenberg Homes- punitive damages against a company that willfully moved trailer acorss Ps land after Ps objection

ii. State v. Shack- employer housing migrant workers cannot exclude union medical or legal workers from coming on property

iii. Ebay v. Bidders Edge- trespass to chattels with online material

5. Acquisition by Find

a. Finder has superior rights to all others but true owner (finder must be in actual or constructive possession)

b. Prior possession protects an owner w/out title, ownership is title to property, possession is physical control and intent to exclude others

c. Can entrust goods to others (dry cleaners)

d. Landowner has constructive possession of everything on land whether he knows of it or not, Embedded in land goes to owner

e. Employees are agents of employer, do not gain possession

f. Lost (causally parted, accidently): wallet on floor goes to finder, unless he is a trespasser, employee, guest

g. Mislaid (intentionally placed): ring placed on counter goes to owner of premises, person most certain to find owner

h. Abandoned (voluntarily and intentionally relinquished): finder acquires title and possession

i. Treasure: must determine is lost, mislaid, or abandoned; like any other property, in England belonged to king

j. Estray- property is $100 or more, person must go to courts and advertise, if not in a year it is given to finder

k. Cases

i. Armory v. Delamirie-chimney sweep took to jeweler, chimney sweep has superior right by prior possession, awards finders

ii. Hannah v. Peel-owner of house who had not yet made house his personal space (absentee owner) is not in constructive possession of articles which he is not aware (Hannah had reported find to police, may have rewarded honest behavior)

iii. McAvoy v. Medina-P, finder of wallet in barbershop n

II. Present Possessory Estates (4)

No new estates can be created

1. The Fee Simple Absolute

a. “To A and his heirs” “To A” (heirs don’t actually get anything, just words of limitation)

b. May endure forever, any length of time, indefinite

c. Tenant has status as tenant of the fee or tenant for life

d. This status may become estate

e. No reversion back to grantor

f. Issue- decedents children and grandchildren

g. Intestate- dies without a will, then estate is split between wife and heirs

h. Escheat- if fee simple owner dies without a will or heirs (get if no will), estate goes to state

i. Collaterals- Brothers, sisters, cousins

j. Ancestors- parents take as heirs if decedent leaves no issue

2. The Fee tail

a. “To A and heirs of his body” If he dies without issue then B and heirs

b. Illegal in most states

c. Can potentially last forever, ceases when first fee tail tenant has no lineal descendants

3. The Life Estate (or term for life)

a. “To A for life”

b. Pur autr

c. e vie- can also be measured “for the life of another”

d. Measured estate that will end at the death of one person; grantor has reversion

e. Creates problems with selling, mortgages, improvements

f. Doctrine of waste- future interest holder can sue for damages or injunction to prevent waste to chattels on land

g. Affirmative waste- cutting down trees

h. Permissive waste- letting a fire burn to diminish property value

i. Cases

i. White v. Brown- language “to live in and not be sold” was a fee simple, since “not be sold” was void as a restriction on alienability, no other life estate language

ii. Baker v. Weedon- court approved partial sale of property in life estate to provide for expenses; trial court got it right should have sold and put in trust

iii. Woodrick v. Wood- rotting barn allowed to be removed since it had less value then the property value increased by removing barn. Awarded damages equal to value of barn, as long as no diminution of value, destroying structures does not constitute waste