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

I.       First Possession: property right by possession of the thing itself; mortal wounding actual possession or certain control creates possession
a.      Dissent: labor theory of property, not necessarily possession but property right is created at the “reasonable prospect of capture”
b.     When a property right is created, it is against the whole world and forever
c.       Popov v. Hayashi: Guy caught the ball, was mobbed, other guy got it
                                                  i.      Two reasonable property rights, split the property rights
                                               ii.      Dissent: reasonable prospect of acquisition
II.    Acquisition by Creation: This is the labor theory of property; property right comes in creation
a.      Quasi-property right: property right for a short period against competitor
b.     Quasi-property has relativity of title: property right good against A but not B
c.       INS v. AP: there can be a property right in facts, must acknowledge the source
                                                  i.      Dissent: no property rights in facts but should attribute the source
                                               ii.      Dissent Brandeis: shouldn’t be creating property rights
Property Sticks
o   Right to exclude
o   Right to transfer (will)
o   Right to sell
o   Right to destroy
o   Right to use/occupy
III. Acquisition by Conquest: Discovery and possession give you title to land
a.      Native Americans only had the right of occupancy/exclusion, while conquest gives title which the courts cannot deny
b.     Johnson v. M’Intosh: Illinois tribe sold property to Johnson (but all they sold him was the right of occupancy because that is all that they had); M’Intosh buys land from the US; Indians cannot sell the land though they can sell the occupancy; the US has perfect title which extinguishes all other claims in fee simple absolute (aka fee simple, FSA)
                                                  i.      Also: fits with labor regime, Indians were savages, would not develop (labor) the land
c.       Jane (shoveler) and Jill (parker)
                                                  i.      Every snowstorm Jane’s car is under snow, spends 2 hrs clearing a space, marks her parking space with something like a chair or some shit; every night Jill is in her space
                                               ii.      Recognized custom in the neighborhood to protect her space by marking after labor; Jill’s the only one that doesn’t do it
                                             iii.      Who wins?
1.      Custom = Jane (promotes harmony but may be unclear)
2.      Labor = Jane (incentive shoveling snow, keeping streets clear)
3.      Possession = Jill (efficiency, also produces harmony)
IV. Acquisition by Find: lost, misplaced, abandoned
a.      Lost: accidentally misplaced
b.     Misplaced: put it somewhere and forgets (minute distinction)
c.       Abandoned: owner forms intent to relinquish all rights in the property
                                                  i.      If you find a treasure trove, it is yours so long as you are not trespassing it belongs to you
 
d.     Charrier v. Bell: Ancient village dug up, burial objects found
                                                  i.      Property was not abandoned, left the items there on purpose
                                               ii.      Landowner cannot relinquish rights to abandoned property
V.    Adverse Possession: if an owner of property fails to sue a person in wrongful possession of that property within the time allotted by statue, the possessor may acquire title to that property
a.      Brown v. Gobble: strip of land between properties, one thought he owned it, built a fence and some shrubs on it (was in his deed, had color of title). True owner sued, court to adverse possessor.
b.      Actual Possession
                                                  i.      Used in a manner that the true owner would use the specific tract of land: planted shrubs, fruit, built a tree house
                                               ii.      Average owner of similar property
                                             iii.      Nome 2000 v. Fagerstrom: Nome 2000 the true owner but D’s adversely use land for a number of years; they build at lot of things on the property and eventually build a cabin and reindeer pen
1.      You only own what you actually possess—stake in the ground is not good enough to establish adverse possession
2.      The quality and quantity of acts req’d for adverse possession depend on the character of the land in question
c.       Open and notorious
                                                  i.      Not secretive; true owner charged with seeing what a true owner should see as use of their land
                                               ii.      Nature of the land taken into account
                                             iii.      Just means capable of being seen, doesn’t mean that you were seen; must make yourself observable
d.     Exclusive
                                                  i.      Adverse possessor must generally be in sole physical possession, unless other adverse possessors in consort with one another
                                               ii.      Not shared control with owner
e.      Continuous
                                                  i.      Might have the tacking quasi-exception—however this must be transferred by some sort of privity
f.        For the Statutory period (differs from state to state)
                                                  i.      Might toll or stop the statutory period for several reasons
1.      Medically incapacitated
2.      Inf

          ii.      Powell on Property: Over time, property rights started to be usurped by other rights, human rights
                                             iii.      Narrow reading: right of access of charities/gov’t for migrant workers
                                             iv.      Broad reading: any employer must allow right of access to anyone serving the well-being of others
                                                v.      Court: right of access is granted, legally mandated, when to do otherwise would threaten rights too fundamental to be denied (as it may normally be in property rights)
b.     Public Access: in public, you can only exclude people who are disruptive/causing harm/otherwise dangerous
                                                  i.      No right to unreasonably exclude
                                               ii.      Uston v. Resorts International Hotel: reasonable right of public access v. right to exclude
1.      Unreasonable to exclude (based on State v. Shack) in this case; you can exclude for disorderly, intoxicated, disrupt the functioning of the business
                                             iii.      The more private property is used publicly, the less of a right to exclude exists.
c.       Suing under Title II of the Civil Rights Act: The owner has (these three things)
                                                  i.      Committed discrimination
                                               ii.      On the grounds of (race, color, religion, national origin)
                                             iii.      In denying access to places of public accommodation
1.      Inn, motel, hotel, restaurant, cafeteria, lunch counter, motion picture house, theater, concert hall, or any place whose operations affect commerce
                                             iv.      Title II doesn’t protect sexual orientation or sex, but state laws might…. Federal law is simply a floor, never a ceiling
1.      Does protect: Race, color, religion, national origin
d.     New Jersey Coalition Against War v. JMB Realty: Functional equivalent of the public square, therefore, the landowner cannot exclude just because they feel like it (ie not people that are expressing their right to political speech based on First Amendment rights)