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Property I
University of Kansas School of Law
Kronk Warner, Elizabeth




I. Concept of Property

A. Theories of Property

1. Bundle of sticks – all come together into an absolute property interest (such as a complete set of golf clubs)

a. Right to exclude others

b. Right to use

c. Right to destroy

d. Right to transfer

2. Focusing on private property

a. Legal positivism – property only exists to the extent it is recognized by the gov’t

b. Property/ownership as recognized by law

3. Theories of property

a. First in possession – first in time to possess

i. Administrationally efficient

ii. Works best with few people and abundant resources – when resources are not owned

b. Encourage labor (John Locke) – labor creates value

i. People don’t lose the time and resources they put in to their labor

ii. Cut an unowned tree, you own the lumber

c. Ensure democracy (Jeffersonian) – if you own your land then you’re making your own decisions (originally viewed for purposes of elections)

i. Free thinking, separate from the gov’t

ii. If you own the property you are more likely to take care of it

d. Maximize societal happiness (utilitarianism) – if you own property you can determine the most efficient use of the property in your opinion

i. Make “best choice” of how to use property and resources

e. Facilitate personal development – personal sentiment attached to property

i. Personhood

ii. This is my home

B. Pierson v. Post – case of first impression (unowned land)

1. Holding: Until you take the wild animal (ferae naturae), you do not have a property right. Must manifest an intent to take.

a. Mortally wounding, taking away its natural liberty and gaining possession of the fox. Do not have to physically take, may just severely injure.

b. When no one has a property interest in the underlying land, a person may create a property interest by taking the animal.

2. “Rule of Capture” – property rights of a wild animal acquired by the 1st person to take possession of the animal. First to capture the natural resource creates a property interest in that resource.

C. White v. Samsung

1. Holding: The appropriation of White’s identity without her consent is an invasion of her right to privacy when the right of publicity cause of action may be pleaded by alleging (4 prong test for violation of right of publicity cause of action): (1) D’s use of P’s identity, (2) the appropriation of P’s name or likeness to D’s advantage commercially or otherwise, (3) lack of P’s consent, and (4) resulting in injury.

a. Common law of publicity is not confined to name or likeness.

2. A celebrity’s appropriation and identity has a marketable value. A celebrity’s name, likeness, signature, and voice is protected by common law and cannot be exploited for the purposes of a commercial without consent or consideration.

3. Common law protects celebrities’ sole role to exploit their personal identity value. Property interest in your image. Protect what you’ve crafted.

a. Property interests in new creations usually vest with the individual who creates the new property.

II. What is Property?

A. Introduction

1. Property = rights among people concerning things

2. Bundle of rights

3. Four Implications of the “Rights” Approach:

a. Property rights are defined by the gov’t (i.e., legal positivism)

b. Property rights are not absolute, but are relative

c. Property rights can be divided (i.e., renter/owner) – property rights in a thing may be split among multiple owners

d. Property rights evolve as the law changes – creature of common law

B. Right to Transfer

1. What is the scope of the right to transfer?

a. Right to transfer property = alienability

i. General rule à anyone can transfer or alienate any part of their property to anyone. May be limited because of reasons of public policy.

1. Mentally incompetent

2. Gov’t restrictions

ii. More efficient/better for society to allow.

2. Johnson v. M’Intosh – explores right to transfer; doctrine of discovery

a. Holding: Native Americans do not have a concept of individual property rights. US has exclusive title to land because of the discovery and conquest of America by Europeans. Native Americans only have a right to live on the land or transfer the land to the gov’t

i. Chain of Title”- succession of ownership over time. Usually begins with the gov’t.

b. “Doctrine of Discovery” – US standing in the shoes of Great Britain, has title to the land and can exclude all other sovereigns.

i. Because of the doctrine and the authority to exclude, the US can determine how to apportion Native land use.

ii. Accordingly, federal gov’t owns absolute title to the land subject to the right of Native occupancy.

1. US gave Natives valuable consideration – Christianity and civilization

2. Necessary to avoid waste

3. Natives did not otherwise claim title

3. Moore v. Regents of the University of California – property rights in the human body

a. To establish conversion, P must establish an actual interference with his ownership/right of possession. If P has neither title nor possession, he may not maintain an action for conversion.

b. Use of P’s cells taken are not unique. No unique creation therefore no line of publicity interest.

c. Under existing CA law, there is no taking of property because:

i. No supporting case law

ii. Publicity lines of cases does not apply

1. Production of lymphocytes is not unique to Moore

2. Because cells are not unique, there is no likeness

iii. CA law limits control over biological material once removed – purpose of the statute is to limit control over biological material.

iv. Moreover, the cell line is not Moore’s property because it is not what was taken from his body.

d. Law of conversion should not extend to this type of case – policy argument

i. Protection of competent patients right to make autonomous medical decisions

ii. Shall not threaten with disabling social liabilities

iii. To extend conversion would frustrate society’s interests

is void.

a. No harm to decedent and no substantial benefit to anyone if the house is torn down – worth more standing.

ii. When one attempts to compel their successor to do what is against the public good, the law steps in and pronounces the condition void.

iii. Taking property by inheritance is not an absolute right, the state may foreclose the right absolutely and say what becomes of the property of a person, when death forecloses the deceased’s right to control.



III. Owning Real Property

A. Adverse Possession

1. Introduction

a. If you meet all the elements of adverse possession you gain legal property rights but still must bring suit to gain the deed.

b. Types of property

i. Real property = land and things attached to the land

ii. Personal property = moveable items, intangible things

c. Justification for Adverse Possession

i. Preventing frivolous claims – provides occupant with security of title à encouraging productive use of land

ii. Correcting title defects – lengthy possession serves as proof of title

iii. Encouraging development – reallocates title from an idle owner to the industrious squatter

iv. Protecting personhood

2. Elements of Adverse Possession (generally – some jurisdictions require you to pay taxes on the property to = adverse possession)

a. Actual possession

b. Exclusive possession

c. Open & notorious –visible/obvious

d. Adverse & hostile

e. Continuous for the required period of time

3. Gurwit v. Kannatzer – Gurwit using the land recreationally = the land not cultivated BUT asserted dominion over the property. Possession was actual, do not need to be in continuous possession

a. Gurwit bought the land. 17 acres of it was actually the Kannatzers. Gurwit chopped trees, grew food, using land in a way a true owner would. Court ruled Gurwit met elements of adverse possession.

4. VanValkenburgh v. Lutz Whether title was acquired to the premises by virtue of adverse possession.

a. At the time of case, to acquire real title to property by adverse possession must show by clear convincing proof that for the statutory period there was actual occupation under a claim of title. The essential elements of proof are that the premises are protected by a substantial enclosure or usually cultivated or improved.

i. Usually cultivated:

a. Uses the whole area

b. Evidence of substantial improvement

c. Color of title