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Property I
University of Iowa School of Law
Odinet, Christopher K.


Good mix of private and public law (as opposed to torts, for example which is highly private law)

Real (real estate/land)
Personal (movable)
Tangible (things)
Intangible (money, stocks, etc.)

example of Intangible Real would be an easement
example of Intangible Personal would be money


Theory of Property

1. Naturalist theory (Locke)

a. we are born with God-given ownership of our body

we are also born with God-given right to self-preservation

we therefore create property by using our body to obtain (labor) things that contribute to self-preservation (food, drink, etc.)

as long as there’s “enough for everyone”, whatever we desire to obtain/own should be allowed

b. Blackstone started breaking from this: ownership is a man-made construct

2. Tragedy of the commons and the economic theory of property

a. Tragedy of the commons (Hardin)

property ownership should be regulated by the government – if everything was open to all, individuals would use up the resources under the view that “my little bit of extra use is huge to me, but is not gonna have that much of an impact on the bigger scale”;

unfortunately, if everyone believes this, then pretty soon resources will be used up

economic theory is in line with this: goal is to enhance social welfare, by maximizing the value of scarce resources

key tenant is externalities (can be viewed as positive or negative, but generally negative) – outward effect of people’s actions (e.g. if I drive my car, it will produce pollution – doesn’t seem like a big deal, but again, if everyone’s doing it, it becomes a big deal); property rights force internalization of externalities in two ways:

rights concentrate costs and benefits on owners, giving them incentive to use their own resources more efficiently
rights reduce costs of negotiating with others over remaining externalities

in a commons, everyone has to agree so there ends up being free riders and holdouts

comes from utilitarian account of property (Hume), which was a break from naturalist theories (Locke), and says that property is human invention/institution

dominant theory in use today

3. Property as a bundle of rights

theory we are working with, and that the SCOTUS focuses on

property isn’t the ownership of “things” or rights between an individual and his “things”, but rather a bundle of rights/duties between individuals regarding control of resources (things?)
if someone has a privilege (e.g. right to exclude trespassers from his land), it necessarily imposes duties on others (to stay off his land)

a. Right to include and transfer

e.g. renting/leasing

b. Right to exclude – biggest of all rights

i.e. keep people off your property (39 Jacque v. Steenberg)

there are limits

discrimination (e.g. refusing to rent to a certain race)
rent controls and other limitations on a landlord’s right to evict
adverse possession
public rights to private beaches
homeowner protections when they have defaulted on their mortgages
(42 State v. Shack)

punitive damages can accompany compensatory AND/OR nominal damages
policy for enforcement – if courts did not back this up, people might take law into their own hands (e.g. shooting trespassers)

c. Right to destroy

limited based on present or future contribution to society (e.g. rare Van Gogh painting, tearing down a skyscraper in the middle of downtown)
courts are generally more skeptical of this right than others

4. Progressive Theory of Property

a. looks at human values that property serves, and the social relationships it shapes and reflects

these things are intangibles; they can’t be easily measured
this is in opposition to (or at least qualifies) other theories

other theories focus on a person’s rights to property, BUT does not necessarily include the impact one person’s rights have on others

says other theories are too “cold”; we should have laws that encourage equality in power, political participation, and living environments (raising up poor communities)

What Is (And Is Not) Property

1. Property in one’s person

generally your body is your property

limits – e.g. cannot prostitute yourself, or sell self into slavery

once something leaves your body, it could cease to be yours (i.e. tissue taken by doctors, who then use it for research), and thus there is no grounds for a conversion suit (76 Moore v. UCLA)

2. Property in one’s persona (right to publicity)

others cannot profit from your name, likeness, and other parts of your i.d. without your consent descendible upon death

seems to be rooted in the right of privacy, which also says can’t use someone’s likeness for profit

following points based on MLK case (Handout, MLK Center for Social Change v. American Heritage)

may be acceptable for others to use for other purposes besides profit (e.g. put in the newspaper)

whether or not the right was exercised in the person’s life, descendants can exercise


Rule Of Capture And Law of Finders

1. Rule of capture – unowned property

a. just attempting to go for something does not give you a possessory interest – there must be

some obvious manifestation (chasing the fox? nope. wounding the fox? yes.) (14 Pierson v. Post), otherwise (policy) people could bring all kinds of claims of “I wanted it first”
dissent in Pierson said pursuer of property in reach of, or with reasonable prospect of taking, the property should have pre-possessory interest

b. if you do manifest pre-possessory interest, but there is criminal NOT incidental interference by others and don’t end up with the property, you may have claim to the property (conversion) (27 Popov v. Hayashi)

may be qualified (i.e. you may not get it, or may not get it all), if someone else ends up with physical possession

c. difference between Popov and Pierson is custom –matters in Popov but not Pierson

d. constructive possession – if it’s on someone’s land, the landowner has right to it generally – in

Pierson the unowned property (hunted fox) was on public land, so this did not factor in

e. Fugitive resources

oil and gas

if multiple landowners share a reservoir below lands, history has been “first to capture”; many states have modified this; 1st to capture creates tragedy of commons, as each person has incentive to pump first and fast, which uses up resource quickly
slant drilling is trespass


surface water

Riparianism – land that abuts water gets to use it (Eastern states)
Prior appropriation – first to appropriates (captures) water and puts it to reasonable and beneficial use (Western states where water more scarce)
rights go with the land, not the owner (i.e. you sell land? no more using the water [potentially])

ground water (underground aquifers)

usually governed by statutory law
some states – “you-pump, you-keep” even if it is a shared aquifer
some states – pump as long as it’s not wasting water or harming neighbor

2. Importance of possession – it’s 9/10 of the law because we assume possessor acquired his things

lawfully; it’s efficient to assume so (policy).

a. a finder has right to possession against everyone but the true owner (122 Armory v. Delamirie) and prior finders

includes thieves

b. if finder sells to another, and true owner later shows up, the finder owes true owner (i.e. buyer/current possessor doesn’t have to pay)

c. trover – inst

e summer is ok [146 Howard v. Kunto])

can tack prior possessor time, if there is privity

uninterrupted – owner must not interrupt by starting to use property again, or filing an ejectment

Hostile and adverse possession

claimant’s possession cannot be with true owner’s permission
must be with intent to possess

not just using by mistake and/or with intent to ultimately adhere to legal line (140 Hollander v. World Mission Church)
again, can be based on color of title which can misstate (and thus cause mistaken belief) the amount of land or even the completely wrong plot of land (145 Howard v. Kunto)

A few states have additional requirements

state of mind (usually worked into “hostile” element)

objective (138 dissent in Fulkerson v. Van Buren) – claimant’s state of mind does not matter

most states
because it’s difficult to establish intent

good faith (136 Fulkerson v. Van Buren) – claimant must NOT have realized he was on someone else’s property (if you do realize, court assumes you are there under “subservience to owner’s rights”)

discourages stealing

bad faith – claimant MUST HAVE realized he was on someone else’s property

may maximize economic efficiency, by giving title to the one that values property more highly, and encouraging the efficient trespass (one that benefits the trespasser more than it harms the owner)
Miscellaneous (not elements, but fall in here somehow)

quit-claim deed (136 Fulkerson v. Van Buren) – “I’ll give you whatever rights to the property that I have, assuming I have any rights” – (heir’s property prof example)
mistaken improvers – building things on someone else’s property

innocent improvers – mistakenly builds on another’s land

some courts force conveyance from owner to builder, of land at market value
some give landowner option to buy the improvement at market value
if improvement is minor, relief may not be granted at all
if improvement is substantial, removal may be ordered
relative hardship test may be used – P’s hardship if removal is denied v. D’s hardship if removal is granted – could result in easement

intentional encroachment – most courts require removal by P, whatever the cost

other ways to settle boundary disputes

agreed boundaries – oral agreement between neighbors is binding
acquiescence – long period of acquiescence (can be shorter than actual SOL) is evidence of an agreement on the boundary line
estoppel – one neighbor indicates intention to mark boundary (builds fence), and the other neighbor acts in accordance with it; the first neighbor is “estopped” from changing his stance later (he’s now committed to abide by his actions to mark boundary


if person is disabled, a minor, imprisoned, etc., at the time of cause of action (other person’s entry), the SOL can be extended, starting when they no longer fall under the disabled, minor, imprisoned category