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

Property rights can be considered a bundle of sticks (you might have some sticks but not others):
o The right to exclude (right to exclude competitors but not others)
o The right to uses (right to use something for some period of time)
o The right to occupy/possess
o The right to alienate
o The right to leave to your airs
A. First Possession: Wild Animals
Pierson v. Post (New York Court of Appeals)
Facts: Post was chasing a fox when all of the sudden Pierson popped out of nowhere and killed the fox and took it away. Both want legal claim of the fox.
o Property right thru actual possession (physical control of the thing)
Lower court (Individual rights) decided that Post had possession (at some pt. he had a property interest) in the fox because he was hunting the fox (Pierson should pay Post money)
Appeal (Social utility) Possession gives you the property right; No property right before possession when there is mere pursuit
· “Actual bodily seizure” : when you have complete control, mortally-wounded it or have captured it
o Depriving the animal of its natural liberty and not abandoning the pursuit
· It is unfair but ensures peace and order by establishing a clear bright-line rule (advances policy goals of certainty and predictability)
· Actually encourages hunting if you are free to capture any animal that hasn’t been captured (and might promote the efficient killing of foxes)
Holding: The trial court is reversed and Pierson (the interceptor) keeps the fox.
Analysis: court wants a simple, bright-line rule that is easy and inexpensive to police, creates certainty (promotes peace and order), and will cut down on litigation. Finally, the court realizes that not everything that is impolite—or even immoral—shall necessarily be declared illegal.
Dissent: says we should look at customs of hunting
· mortal woundings or depriving animals of their natural liberty -i.e. chased by large dogs/hounds and not just chased with beagles only (by one not abandoning pursuit) may be considered the possession of the animal
· Labor Theory of property/value: advances policy goal of labor/reward for labor
· Enough labor gives you a property interest against everyone: once he has a reasonable prospect of capture/taking (intending to convert to his own use)
§ How long is property right good? Reasonable amount of time?
· Majority opinion discourages the investment of labor, works against the policy goal of killing foxes (if another can simply jump in an intercept)

Popov v. Hayashi (Cal. Super. Ct. 2002)
Facts: Popov caught a ball hit by Barry Bonds in the upper webbing of this glove. As the ball entered his glove, he was tackled by a crowd; meanwhile Popov lost the ball which was picked up by Hayashi. Popov sues Hayashi for conversion.
Issue: Did Hayashi wrongfully convert Popov’s personal property to his own?
Rule: Contextual as to what is required to possess property.
Analysis: the ball was originally owned by Major League Baseball but at the time it was hit it became intentionally abandoned property.
· The first person to come into possession of the ball (physical control over the item and an intent to control it or exclude it from others) would be its rightful owner
· Popov (citing Pierson v. Post) argues that possession occurred when he “intended to take control of a ball and was reasonably calculated to result in control over the ball some point in the near future
· Gray’s rule: possession does not occur until the fan has complete control of the ball. In the context of baseball, the actor must retain full control of the ball after incidental contact with people and things.
· Rule for intervention of wrongdoers: Unfairness can strip one of their property right. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by unlawful acts of others, the actor (Popov) has a legally recognized pre-possessory interest in the property (after a degree of labor has been undertaken)
Held: AS A MATTER OF FAIRNESS, Equitable division of the assets between Popov and Hayashi.
· Popov did not achieve full possession of the ball, only a pre-possessory interest in the ball.
· Hayashi was not a wrongdoer; he could extract himself from the bandit’s assault to discover the loose ball; he achieved complete dominion and control of the ball when he picked it up.
· Fairness: Because we cannot assume that Popov would have caught the ball if there had been no wrongdoers or would have dropped the ball if there were no wrongdoers, no one has a stronger claim on the ball.

B. Acquisition by Creation
o Many intangible property rights are created (i.e. property right of a novel is the copyright of the creator: the right to own the reproduction of the creation)
o Some creations are discoveries which the law protects with patents and the law of trade secrets
o Exclusivity: the problem of imitation
o Degree of exclusivity the property owner has in exploiting the intangible right
o Because information can be used by many people at once, some believe that the owner ought not to be able to insist on exclusive use
o Free availability of information (whether novels or computer software) may make the public as a whole better off, as long as this freedom to imitate does not destroy the incentive for people to come up with new ideas
Property in the news
o News matter is not copyrighted
· Dual character of news: substance of info and form of words writer has used (literary production); News element= report of the history of the day
o Abandonment is a question of intent (a newspaper would intends to keep rights to their info, otherwise distribution of the news would be profitless
o The news has an exchange value to one who can misappropriate it (novelty, freshness, regularity of service, as well as distribution and publication are important elements and take a good amount of time)
International News Service v. Associated Press (1918, Supreme Court)
o Parties: competitors in the gathering and distribution of news and its publication for profit in newspapers throughout the U.S.
o Each member agrees that news received through complainant’s service is received exclusively for publication in a particular newspaper specified in the certificate of membership (no other use is allowed)
o Associated Press sues International News in District Court (for cause of action of UNFAIR TRADE) to stop IN from pirating AP’s news
· By copying news from bulletins and early editions of AP newspapers, CONVERTING INTO THEIR OWN WORDS and selling to IN customers: Violates property right and is unfair competition in business

District Ct: this is okay, they converted news story into their own words and no property right in facts
Supreme Ct: this is not okay

it was misappropriation for INS to copy AP’s news and release it before AP could. AP expended money and effort to gather the news
Although AP posts their info on bulletin boards for all to see, IN’s argument fails to take into account their COMMERCIAL USE of the info as a competitor! IN is interfering with AP’s business
Gave a relativity of title to AP: granted AP a quasi-property right

good against their competitors: anyone who could harm them financially

intend to abandon your property rights
§ The finder of abandoned property has the right to keep property since the owner relinquished his rights
· If the true owner does not know the property has been found, the finder can keep the property as against third parties (has protected possessory right in the property but no claim on the property)
· The finder of lost or mislaid property on someone else’s property
o Finder v. Landowner’s property= Landowner will win if finder was trespassing at the time
o Finder v. Landowner’s property= courts widely split if finder was allowed to be on land
o Trespassing Finder v. Subsequent Possessor= courts split; more modern courts side with subsequent possessor
o Finder v. Private home= usually awarded to homeowner
· Relativity of title: Bonafide owner may have title against one who sold his property but not against the innocent purchaser
· Voidable title: although the true owner has the right to recover property from someone to whom she entrusted the property
o Common law: if you buy something from a thief, you are SOL
o UCC : if seller is a merchant who regularly deals with such goods, the law may give that possessor the power to divest the true owner of title by transferring title to a bona fide purchaser
· Reliance interest
· Economic interest to incentivize people in buying things from merchants

Charrier v. Bell (Louisiana Court of Appeals, 1986)
· Charrier: digs through 30 sites and takes possession of artifacts; later he found that that man who gave him permission to excavate was not the owner)

He continued to excavate for three years until he located 150 burial sites

· Charrier sues six landowners, seeking declaratory relief that he is the owner and compensation under theory of unjust enrichment for his time and expenses
· (1978) When Louisiana purchased Trudeau Plantation and the artifacts from the six landowners, it agreed to defend and hold the prior owners harmless from all actions
· (1981) Indians recognized as tribes; trial/supreme court judge held that:
1) Tunica-Biloxi Tribe was owner of artifacts
o plaintiff had to discover them “by chance” and that the legal requirement of “abandonment” did not include burial goods
o objects cannot be acquired by obtaining possession over the objections of descendants
2)No unjust enrichment for Charrier’s time/expenses

any impoverishment claimed by plaintiff was “for his own gain” and his being on property of third party was in “legal bad faith” original owners of the artifacts experienced upset over the ruin of burial grounds
plaintiff’s own fault/negligence, his own physical/financial risk
Any enrichment received by the Tribe would have been justified and no unjust enrichment if the real owners were deceived

E. Adverse Possession
ADVERSE POSSESSION – possessory claim (common law doctrine of your own state; varies widely