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

First Possession and Wild Animals
·         Property right by possession of the thing itself
·         Mortal wounding, actual possession or certain control creates possession
o   Need the action to have been virtually complete
o   Pierson v. Post (1805): fox hunt; Post sues Pierson because he took the fox he had been hunting first; merely laboring after the fox was not enough—this argument is nonsensical; no legal remedy it was plainly uncourteous ; promotes less conflict, cost benefits are better; more efficient
o   Dissent: Labor theory of property (Lockian idea); what gives you the property is not necessarily possession but acquired by sheer labor and that gives you the property interest; property right is created at the point the pursuit becomes reasonable prospect of capture; also considering the custom of hunters; labor product, fairness, having to lean on the phrase reasonable and leaning toward custom
§ Difficult to apply: How much labor is enough?
§ What kind of labor do we reward?
·         Rationales
o   For the rule: to encourage killing or capture of wild animals for the benefit of society consistent with utilitarian theory; bright line standard; avoids disagreement and prevent quarrels that may result in violence
o   Against: encourages the destruction of wild animals
·         There needs to be an intention to exclude others from possession
·         Possession when the forward movement of the ball stops
o   Custom: must have FULL control
o   Fairness: property right to opportunity to complete
o   Pre-possessory interest; qualified right; if you undertake significant steps (even if they are incomplete), and then the effort is interrupted by the unlawful acts of others the actor has a legally cognizable pre-possessory interest in the property; the property right vests before you even touch
§ Papov v. Hayashi (2002): Barry Bonds hits his 73rd home run; Papov had it; he was mobbed; and Hayashi picked it up
§ When you have 2 competing property interests you split it
§ Dissent: reasonable prospect of acquisition
Acquisition by Creation
§ Quasi-property right: Property right for a short period against competitors
§ Relatively of title: Property right against A but not B
§ Labor theory: By creation, property is created
o   INS v. AP (1918): AP sues INS; claims a property right was violated under unfair trade; taking news of the boards; labor theory rule
§ District Court: You cannot have a property right in facts
§ Appellate Court: You can have a property right in facts but you must a least acknowledge the source
§ Dissent Holmes: they should attribute the source; no property rights in facts; you can publish facts all you want
§ Dissent Brandies: the court should not be in the business of creating property rights—legislative decision; majority undermines the news reporting business
Acquisition by Conquest
§ Discovery and possession give you title to land
§ Native Americans right of occupancy ONLY
§ Need right of possession to sell
§ Conquest: gives title which the courts cannot deny
o   Johnson v. M’Intosh (1823): Ejectment Action: Illinois tribe sold property to Johnson (but all they sold him was the right of occupancy because that is all that they had to give him); M’Intosh buys land from state; Indians cannot sell the land though they only can sell the occupancy; the US has perfect title which extinguishes all other claims in fee simple absolute
o   Property rights have to start somewhere and this is the point at which we will start recognizing a new legal regime and we just have to live with itàJohn Marshall
§ Ex. Jill Shovler: spend 2 hours clearing out your parking space but you come home to find that Joe has thrown aside the ironing board which you put to mark your spot and parked in your place; this is recognized as customàwhat should happen?
§ Today’s Conquests: Australia, Antarctica, the moon
Acquisition by Find
§ Property that is left with purpose or intention to stay in a particular spot is not abandoned
o   Charrier v. Bell (1986): Ancient village of the Tunica was dug up by this guy and he digs up this stuff for 3 years; alleges that he was digging up with permission
o   There is no unjust enrichment in terms of property
o   This is not abandoned property—they left it there for a reason
§ Landowner cannot relinquish rights to abandoned property
§ Lost or mislaid property
o   Lost property is accidently misplaced
o   Misplaced owner puts somewhere and forgets about it
o   Does not loose title unless you eventually abandon it—voluntary abandonment
§ Treasure trove considered mislaid or embedded in personal property
Adverse Possession –if you are looking at this also look at easements—for limited scope of non-owners actions
·         Adverse possessor has all the right of the true owner EXCEPT against the true owner
·         Bring adverse possession claim to “quiet title”
·         Color of Title: Reliance on a mistaken document: adverse possession by mistake
o   Brown v. Goble (1996): 2 ft wide tract of land; 1994 claim this piece of land theirs via adverse possession; living in house since 1985; informed that they owned the property up to the fence which included the 2 ft tract; the deed was wrong; the other landowners did nothing about it until the suit
·         Adverse Possession Elements (An ECHO)
o   1-Actual Possession
§ Used in a manner that the true owner would use the specific tract of land
§ Average owner of similar property
§ Nome 2000 v. Fagerstrom (1990): Nome 2000 the true owner but they adversely use land for a number of years; they build at lot of things on the property and eventually build a cabin
§ You only own what you actually possess—stake is the ground is not good enough to establish adverse possession
·         Exception for constructive possession or color of title mistakes
o   2-Open and notorious
§ Not secretive; true owner charged with seeing what a true owner should see as use of their land
§ Nature of the land taken into account
§ Necessary possession will be shown by the fact that the possessor has put up a fence—but it can be less than that
o   3-Exclusive
§ Adverse possessor must generally be in sole physical possession
§ Not shared control with owner
o   4-Continuous
§ Might have the tacking quasi-exception—however this must be transferred by some sort of privity of estate
o   5-For the Statutory period (differs from state to state)
§ Might toll or stop the statutory period for several reasons
·         Medically incapacitated
·         Infancy
·         Priso

ty rights are not absolute
o   May not deny access when the right is fundamental
§ Right to live with dignity is a fundamental right and that cannot be denied on the basis of a property right
Public Access
·         In public places, you can only exclude people who are disruptive/causing harm/disorderly/or otherwise dangerous
o   No right to exclude unreasonably
o   Uston v. Resorts International Hotel (1982): Uston claims that there is no statute or common law which bars undesirables based on card counting; casino is a public accommodation
·         The more private property is devoted to public use the more rights that must be given to public and the availability of your right to exclude becomes less and less
Public Accommodations
·         Civil Rights Act of 1886
o   Violates the Constitution if you force private parties to not discriminate; only applicable for places of public accommodation
o   Does not reach private places like lunch counters
·         Civil Rights Act of 1964
o   List: Race, color, religion, national origin
§ Not listed: age, sex, sexual orientation, height?
·         When does the right of association trump?
·         Political and religious associations are included but how broadly and narrowly do we want to interpret the list
o   Public places listed: inn, hotel, motel, or other establishment that provides lodging for traveling guests, restaurant, cafeteria, lunchroom, soda fountain, other food selling places, theatre, concert hall, sports arena, stadium, or other place of exhibition or entertainment
§ Not listed: Private club
·         Most of time if you are big enough to affect commerce you are no longer considered a private club
·         Asserting a violation
o   3 claims required
§ D has committed discrimination
§ On one of the grounds provided for
§ In a place of public accommodation
·         Right to free speech in some private spaces when the private spaces become public
o   Cannot interfere with business; the right to exclude reattaches when a associated right comes into place
§ New Jersey Coalition Against War in the Middle East v. J.M.B Realty Corp (1994): hand out leaflets in mall; owner of mall says get off my land; P claims the right to free speech trumps the right to exclude because of the nature of the shopping mall—become a town square
§ Dissent: they have gone beyond the scope of the invitation; they are taking free speech to the extreme; the mall is owned by store owners not downtown or the town square?
o   What is the extent of the invitation?
o   What is the purpose of the activity that someone seeks to conduct on private property?