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Property I
University of Illinois School of Law
Hamilton, Daniel W.

            PROPERTY – claim of a right
legal recognition of a claim
                                    not absolute, whoever has ownership gets it
                                    creation of property is fluid
                                    not everything can be property – ie: human organs
                                    ownership is infinite in duration, is good against the whole world
                                    you can convey only what property that you have
                                    property rights are relative
BUNDLE OF STICKS – property rights as sticks
Right to exclude
                                    Right to use
                                    Right to occupy or possess
                                    Right to alienate or sell
                                    Right to leave to your heirs
                        FEE SIMPLE ABSOLUTE – perfect title. To have all the property sticks
                        Affordability of land
Alienation of land
Ancient authority
Availability of land
Bargaining power inequality
Civil rights
Dead hand
Fairness – Labor, reward labor
Human life/dignity
Prevent land dynasties
Productivity of land
Public interest
Society – costs and benefits to
Waters down property rights
POSSESSION – acquisition of property through possession
            FIRST POSSESION – first possession creates a property right, pursuit not enough – [Pierson v. Post]             3 WAYS TO GET A PROPERTY RIGHT OF POSSESSION [Pierson v. Post] 1.      Actual Possession (bodily seizure)
2.      Certain Control (put under net/toils)
3.      Mortally wounding and not abandoning
REASONABLE PROSPECTS TEST – property rights go to the first party with reasonable prospect of possession [Pierson dissent] LABOR THEORY OF ACQUISTION – labor not possession creates the property right, justified by the sheer labor expended
PRE-POSSESSORY INTEREST – property interest that attaches when you undertake steps to possess it [popov]             POSSESSION – possession is also a property right which competes with pre-possessory interest
EQUITABLE DIVISION – Both parties have equal and undivided interest in the property and split the proceeds from the sale of the item [popov] CREATION AND LABOR – acquisition of property through labor or creation [AP v INS] RELATIVITY OF TITLE – quasi property right only against one specific party, limited in duration to only when it is still novel [majority] LABOR THEORY OF CREATION – property right created from the labor expended to make it [majority] HOLMES DISSENT – No property right in the news, but competitors still must attribute the source, can only publish facts, not the stories verbatim
BRANDEIS DISSENT – creating a property right in news is judicial lawmaking, not good. Majority will prevent competition and hurt people’s ability to get the news
CONQUEST – acquisition of property through conquest or capture
DISCOVERY DOCTRINE – discovery of land and possession gives title (discovery + possession) [Johnson v m’intosh]             POLICY JUSTIFICATIONS – [Johnson]                         Race – Indians are savages
Utility – white Europeans put land to better use than Indians
Religion – Europeans gave Indians religion so taking their land was justified
Start somewhere – property rights have to start somewhere, shouldn’t upset settled title
FIND – acquisition by find
LOST – owner accidentally forgets where it was put, you cannot take title from him
MISLAID – owner intentionally left it somewhere and forgot where, you cannot take title from him
ABANDONED – owner forms intent to relinquish rights to the property, finder gets title
RELINQUISHMENT – lost and mislaid can be abandoned if owner intends to relinquish ownership, if he doesn’t go to claim lost or mislaid property that is an inference of relinquishment
            – if finder was trespassing when found abandoned property, the rights go to the land owner
RELATIVITY – relativity of property rights; finder has superior property rights over everyone but the true owner
TREASURE TROVE EXCEPTION – valuables buried underground for recovery later goes to the finder rather than the land owner, as long as the finder was not trespassing [charier] NAT AMERICAN GRAVES PROTECTION/REPAT ACT 1990 – Indian cultural objects found on tribal or federal lands are property of the tribe most strongly associated with them [charier] – Indian ancestors in case intended to relinquish rights to the artifacts but not abandonment, no treasure trove exception
NOT ABANDONED – tribe claim its their stuff because it was relinquished but not abandoned, it is theirs due to the native American law above
UNJUST ENRICHMENT – argument by the archeologist why he owns    
1. An enrichment
2. An impoverishment
3. Casual connection between the enrichment and impoverishment
4. Absence of cause/justification for the enrichment/justification
5. Must be no other remedy at law for the plaintiff
LANDOWNER – state argument is that they own the land but, this is smacked down by the native American grave protection act
            – you can never get AP against the govt
            ADVERSE POSSESSION – 6 elements
1. adversely or hostile
– AP asserts claim against the whole world, not sharing
– Combat AP by giving him permission to be on the land
2. actual
– Act as though you are the true owner; use the land as a true owner would
– Exception to actual is color of title
– fence can show actual possession [gobble] 3. open and notorious
– AP must be capable of being seen, not necessarily be seen
– AP and/or effects on the property were observable
4. exclusive
– AP can’t share, slides in at the margins with actual element
5. continuous
– must be for the entire time during the period
– there can be times of extended absence, if that is what a true owner would do
– exception – tacking
6. all have been good for whole statutory period
TACKING – AP by adding together succeeding periods of time under adverse possession if, not alone sufficient. must be in privity. can be from selling from one AP to another. [brown v gobble] COLOR OF TITLE – mistakenly relying on an inaccurate document
ADVERSE POSSESSION STATE OF MIND – 4 possibilities; where state of mind is required
1. lack of permission of the true owner (objective rule based on possession) – majority
2. claim of right (subjective)
            Acts as a true owner would, intent need not be expressed, can be inferred from conduct
3. intentional dispossession (subjective)
            AP aware occupying others land intend to oust the true owner
courts reject this test – rewards intentional trespassers and fails to protect innocently occupied land of another
4. good faith (subjective)
minority of states, AP is the opposite – only an AP that made an innocent mistake can claim adverse possession
SUBJECTIVE – requires an inquiry into the adverse possessor’s state of mind, in addition to showing true owner did not give permission
TOLL EXCEPTIONS – adding the time accrued while disabled on top of the statutory period. lengthens SoL for AP claims if owner is in prison, insane, coma, etc.
                        1. Not just – rewarding bad behavior, if AP wants property he should have to buy it
                        1. Land ought to be put to more productive use
                        2. Certainty, eliminate stale claims – AP creates certainty and make transactions cheaper
                        3. Holmes economic defense –
AP protects the settled expectations of the AP against the true owner, who would see recovery of his property as an unexpected windfall like winn

the security of patrons or occupants [uston] 3 JUSTIFICATIONS FOR OBLIGATIONS ON PUBLIC ACCOMMODATION
1. MONOPOLIES – those businesses were most likely to be monopolies, so denial would be tantamount to denial of traveling,
2. DANGER – denial by these businesses would put lives at risk from robbers and the elements
3. RELIANCE – hold themselves out as being ready to serve the public, and the public relies on that
CRA 1964 – made exclusion based on certain discrimination on private property illegal – race, color, religion, national origin 
            SOME CONST. PROTECTION – for freedom of association [1st amendment] TO STATE A CLAIM – 3 elements
1. def committed discrimination
2. on one of the 4 grounds; race, color, religion, national origin
3. in a place of public accommodation – on the list, must serve the public, must affect commerce or supported by state action, – cannot be a private club
MORE ACCESS – states can give more access by including sexual orientation, gender to the list of grounds that cannot be disc. against
                        CONST RIGHT v ANTI DISC – right to religious, political association meet anti-discrimination
PRIVATE CLUB v. PUB ACCOM – what point is a private club a private accommodation?
PRIVATE CLUBS – makes an exemption for private clubs to disc., must be small and selective to be considered a club. If it gets too big it touches commerce [boyscouts] EXHAUSTIVE v ILLUSTRATIVE – can argue about statutory interpretation of CRA, whether it is exhaustive or just illustrative, in finding a right to exclude or not exclude
NUISANCE – non-trespass interference – use of your property infringes on other’s property interests
NUISANCE –             3 elements
1. substantial harm and;
2. an unreasonable interference to the;
3. use of enjoyment of your property (quiet enjoyment)
            nuisance should be framed in terms of substantial harm and unreasonable interference, get fact specific
NEIGHBORS – for nuisance, you are always suing your neighbors
            activities that are physically offensive to the senses
noise, odor, smoke, dust, loud music, toxic waste, harmful particles
BALANCING – nuisance always uses balancing – [Armstrong v francis] extent of harm to plaintiff
social benefit of defendant’s activity
social costs and benefits for conflicting land uses
alternatives to the harm
defendant’s motive
who got there first
COMMON ENEMY DOCTRINE – NJ doctrine allowing for homeowners to get rid of water any way possible w/o liability [Armstrong v francis] HARM WITHOUT INJURY – using property in a way entitled to and not legally responsible for what happens elsewhere, ie: driving a hummer [Armstrong] CIVIL LAW RULE – NJ; liability for whatever harm you cause
REASONABLE USE DOCTRINE – balancing test for water in NJ – diversion of water is permissible but creates liability and if others are harmed, it is then unreasonable [Armstrong]             Balances: amount of harm, foreseeability of harm, purpose and motive
1. defendant’s privilege; freedom to act despite the harm – damnum