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Property I
University of Kansas School of Law
Outka, Uma

Property Spring 2013 Uma Outka
 i.      Theories of Property
 a)    Protect First Possession – This is the first-in-time approach. Whoever takes possession of property first owns it. Critics say this only explains the how of property and not the why.
 b)   Encourage Labor – Ownership of property is created by investing labor in it.
 c)    Maximize Societal Happiness – This is the utilitarian approach which seeks to distribute and define property in a way that best promotes the welfare of citizens. Property thus becomes an efficient means of allocating resources to maximize wealth.
 d)   Ensure Democracy – Property is necessary for democracy because it provides security and independence from the government and invests people in their communities.
 e)  Facilitate Personal Development – Ownership of property is necessary for personal development. We need control over external objects and resources to fully develop, thus once personhood it bound to an object, that person should be given broad liberties with respect to it.
 ii.    The Fox and the Celebrity
 a)   Pierson v. Post – Mere pursuit of an animal does not give one a legal right to it
 b)  White v. Samsung – A celebrity’s appropriation and identity has a marketable value. A celebrity’s name, likeness, signature and voice is protected by law and cannot be exploited for the purposes of a commercial without consent or compensation.
 i.      What is property?
 a)    Types of property: real property refers to land and improvements attached to land; tangible property is property that is physical in nature; intangible property is property that is not physical but still hold value.
 b)   Property is rights among people concerning things. Property is a bundle of rights concerning a thing rather than ownership of a thing.
 c)    The of four rights which make up property are:
1)     the right to transfer;
2)     the right to exclude;
3)     the rights to use; and
4)     the right to destroy.
 d)   There are four key implications of the rights approach to property:
1)     Property rights are defined by the government
2)     Property rights are not absolute. Legal limitations exist on the exercise of rights for almost all kinds of property.
3)     Property rights can be divided (e.g., multiple owners, divisions over time).
4)    Property rights evolve over time.
 ii.    The Right to Transfer (Alienability)
 a)    Generally, any owner may freely transfer (or alienate) property, but there may be some restrictions for public policy reasons.
 b)   The law favors free alienation, but possession and ownership do not necessarily lead to an unfettered right to transfer.
 c)    Alienability may be constrained by policy goals (who, what, how).
 d)   Johnson v. M'Intosh – Discovery of land gives the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy only in the natives. Native Americans do not have title to land on which they live; they only have possession. Since they do not have title, they cannot convey title to others.
 e)  Moore v. Regents of University of California –  A person does not retain a property interest in his bodily tissue once it is removed from his body.
 iii. The Right to Exclude
 a)    Any owner has a broad right to exclude any other person from her property.
 b)   An owner's right to exclude is implemented through the tort doctrine of trespass. Trespass is :
1)     The unprivileged (no Consent, Public necessity, Private necessity, Certain landlord rights)
2)     And intentional (i.e., voluntary)
3)     Entry onto land
4)     Owned by or in possession of another
 c)    Jacque v. Steenberg – (Common Law) Nominal damages can support punitive damages in the case of an intentional trespass.
 d)   State v. Shack – (Statute) Ownership of real property does not allow for denying access to government services for those on the property.
 e)    Casino Hypo
 f)     Evolving Common Law: The Right to Roam
1)     In England, the Countryside Rights of Way Act classifies private land that contains mountains, moors, heath or downland as “open country” and requires landowners to allow the public to roam freely access to these lands.
2)    Right to roam shows ability of law to accommodate changes in attitudes towards balancing of individual and public interests
 iv.  The Right to Use and the Right to Destroy
 a)   Right to Use
1)     Traditional – absolute right to use property in any way so long as that use does not harm the rights of others > evolving scope
(a)   Right as default rule?
1      Absolute right
2      Nuisance law as constraint
3      Burden on P
(b)  Privilege as default rule?
1      Extensive regulation of property use (e.g., zoning, HOA)
2    Landowner must ask permission
2)     Resolving Right to Use Conflicts: Nuisance
(a)   Elements of Private Nuisance:
1      Intentional
2      Nontrespassory
3      Unreasonable
4      Substantial interference
5    W/ the use and enjoyment of the plaintiff’s private land
3)     Spite Fence: a high fence built on someone’s land specifically to annoy a neighbor. Spite fences are not a legal use of property.
4)     Sundowner, Inc. v. King – A property owner may not build a structure on his or her property that has no use and no purpose other than to injure a neighbor.
5)     Prah v. Maretti –
(a)   Obstruction of access to sunlight is actionable as private nuisance.
(b)  What's new? Previous absolute right was b/c wanted to support uninhibited development of land, which courts have been drawing back from; recognition of sunlight as energy source/interest in sunlight.
(c)   Common law has now altered – many states have statutes protecting access to solar energy
 b)   Right to Destroy
1)     Eyerman v. Mercantile Trust Co.- Dead people have more restricted right to destroy than live people.
 i.      Basic Idea:
 a)    Someone who is not the true title owner
 b)   but is in possession of land
 c)    can force involuntary transfer of the title from the true owner
 d)  if certain conditions are met.
 ii.    Public Policy Justifications
 a)    Prevent frivolous claims: Serves as a statute of limitations – on ejecting a trespasser; functions as a defense to trespass.
 b)   Correcting title mistakes and defects: Minor mistakes get ironed out over time.
 c)    Encourage development: You snooze, you lose.
 d)  Personhood: After 20 years, it's you, so it's yours.
 iii. Elements
 a)    The elements for adverse possession are:
1)     Actual: actual physical use, some states limit types of use
2)     Exclusive: not shared with the true owner or the general public
3)     Open and notorious: reasonable owner would notice
4)     Adverse and hostile: not with owner's consent or in owner's interests
(a)  Majority rule: intent is not relevant
(b)  Minority rules: some states require good faith, a few require bad faith
5)     Continuous: given a reasonable owner would use
6)     For statutory period: usually 10, 15, or 20 years (varies by state)
 b)   Gurwit v. Kannatzer – Posting no trespass signs, cutting firewood for continuous 20 years was enough to support adverse posses

and foreseeable uses.
 i.      Property Rights in Water
 a)    Property rights in water in different states clearly reflect the resources reasitinties in different parts of the country
1)     East of 100th Meridian: rainfall generally enough for farming
2)     West of 100th Meridian: need irrigation for farming
 b)   Why do we consider water law to be an aspect of real property law and not personal property? Adoption of English rules, where rights to take and use water were an aspect of real property ownership – specifically, ownership of real property that bordered a body of water.
 c)    Terminology
1)     Riparian Property: Land that has as one of its legal borders a river or stream
2)     Littoral Property: Land that has as one of its legal borders a lake or ocean
 d)  Note: Real property bordering water has ambulatory boundaries that move with the slow and gradual changes of the water body.
 ii.    Surface Freshwater Rules
 a)    Eastern States: Based on English riparian rights
1)     Right to use water is tied to ownership of riparian or littoral lands
2)     Natural flow theory largely replaced by reasonable use doctrine
3)     Use of water had to be on a riparian property
 b)   Western States: rejected riparian rights for prior appropriation
1)     First in time, first in right
2)     Water has to be applied to beneficial use without waste
3)     Water could be used anywhere
 c)   Modern: permit systems
 iii. Rules for Underground Water
 a)    Problem: behavior of underground water difficult to understand
 b)   England: Rule of capture
 c)    United States:
1)     Rule of capture (absolute ownership) – the owner of the land surface could remove as much groundwater as he wished, even if this process caused severe injury to his neighbors.
2)     Reasonable use – (dominant view) A surface owner may use groundwater only for a reasonable use on the overlying land.
3)     Prior appropriation – Under this system, followed by many western states, the location of the owner’s land is irrelevant; instead, water rights are allocated to the frst person to divert the water for beneficial use. This requirement ensures that an appropriator will not abuse her water rights, serving the same ufnction as the reasonable use doctrine in riparian states.
4)     Correlative rights – The surface owner is entitled to a proportional share of the groundwater beneath his land.
5)     Permit system –  Title to groundwater is vested in the state, so the surface owner can obtain water rights only by securing a permit.
 iv.  Sipriano v. Great Spring Waters of America, Inc. – Essentially, the rule provides that, absent malice or willful waste, landowners have the right to take all the water they can capture under their land and do with it what they please, and they will not be liable to neighbors even if in so doing they deprive their neighbors of the water’s use. Court decided it was an issue for the legislature.