First in Time……….. ……….. ………….2
Labor Theory
Capture
Pierson v. Post
Ghen……………………………………..3
Keeble
Trespass………………………………….4
Rule of Capture
Animus Revertie
Demsetz………………………………….5
Tragedy of the Commons…………………6
Tragedy of the Anticommons
Acquisition by Creation
Moore v. Regents of UCal………………7
State v. Shack……………………………8
Subesequent Possession………………….8
Acqu. by Find
Armory v. Delamirie
Hannah v. Peel………………….9
Adverse Possession……………………..10-14
VV v. Lutz
Marengo Cave………………….12
Manillo v. Gorski……………….13
Howard v. Kunto………………..13-14
O’Keefe v. Snyder……………….14
Discovery Rule
Acquisition by Gift…………………………15
Symbolic/Constructive Delivery…..…16
Newman v. Bost
Gruen v.Gruen
Freehold Estates………………………………..16
Categories……………………………17-18
White v. Brown………………………19
Restraints on Alienation……………..20
Baker v. Weedon
Waste…………………………………21
Mahrenholz
Mountain Brow Lodge v. Toscano……22
Ink v. City of Canton………………..22
Future Interests……………………………..23
Trusts……………………………………….24
Rule in Shelley’s Case
Doctrine of Worthier Title…………………..25
RAP……………………………………….26
Brown v. Ind. Baptist Church
Central Delaware v. Greyhound
Jee v. Audley……………………………..27
Unborn Widow Rule
Leaseholds…………………………………………28
Crechale v. Smith………………………..29
Bronk v. Ineichen
Discrimination
FHA
Delivery of Possession………………….30
Subleases ……………………………….31
Kendall v. Pestana
Tenant Who Defaults……………………32
Berg v. Wiley
Sommer v. Kridel
Landlord’s Remedies
Landlord’s Duties
Constructive Eviction
Warranty of Habitability………………33
Landlord Tort Liability………………..34
Problem of Affordable Housing
Nuisance…………………………………………34
Coase……………………………………35
Morgan v. High Penn Oil
Boomer ………………………………..36
Spur v. Webb
Easements………………………………………36-38
Willard v. First Church……………….38
License
Holbrook v. Taylor……………………39
Van Sandt v. Royster
Othen v. Rosier………………………40
Public Trust: Matthews v. Bay Head….41
Assignability of Easements……………..41
Scope of Easements……………………42
Brown v. Zvoss
Termination of Easements
Presault v. US
Negative Easement…………………….43
Covenants Running With Land…………………43
Equitable Servitudes…………………………….44
Tulk v. Moxhay………………………..45
Sanborn v. McLean
Neposit v. Emigrant
Coullett v. Stanley
Hill v. Community……………………46
Intro
A. ownership gives a bundle of rights
1. entitled to use it (open-ended property use) and
2. the right to exclude others.
3. right to transfer to someone else
a. inheritance
b. gifts (normally compulsory)
B. What can one use the property for?
1. for anything one likes, as long as it doesn’t violate the law.
C. Link between Freedom and property:
1. Property ownership carries obligations with it. So in some sense having property limits freedom
2. freedom is defined within the bounds of ones property
a. so in some sense imparts freedom.
3. link between freedom, democracy and property. Without private property, no freedom?
4. Property also about individualism and expression of personality.
D. How show ownership?
1. possession is a presumption of ownership
2. tracing the history of where they got it. (ie: a receipt)
a. how does a store show ownership- purchase order.
E. Where does ownership start? Problems with this concept:
1. in many post-cold war countries, Russians were placed on the land in the ‘40’s. At what point do you say that the Russians own the land or that it reverts back to the original land owners
2. the problem in Israel
3. someone always been screwed if go far enough back.
F. How is Property Protected? Usually covered in other courses
1. police- criminal law covers this
2. civil remedies- tort law concerns this. Intertwined with property law
3. self-help remedies
4. can get an order for the specific recovery of that thing.
I. First Possession: Acquisition by Discovery, Capture, and Creation
A. Discovery
1. Johnson v. M’Intosh
a. Facts
(1) argument over a land purchase from Indians
(2) Can P get land from Indians?
b. Court:
(1) Don’t have power to transfer
(2) discovery gave title vis a vis other European nations
(a) why? the accepted practice among the nations
(3) opinion doesn’t explain which particular land or how much
(4) discovery doesn’t give powers of government, but only gives the title of the land.
(a) accepted norms as shown by titles and charters, etc.
(5) if Marshall doesn’t confirm that discovery gives title, will disrupt the entire creation of the country.
(6) Indians have a right to occupancy- “rightful occupants”
(a) title is with Americans, but Injuns are rightful occupants and have a legal claim to the land
(b) US has ultimate ownership
(7) Acquisition of title means that Injuns can’t transfer title to someone else. But can transfer to the US. “very peculiar”
(8) Indians lose right by purchase or conquest or by leaving the place
(9) Law has to accept the status quo even if status quo isn’t necessarily just
(10)1924- Indians became citizens of US
c. Notes and Questions
(1) there are unoccupied territories where claims exist
(2) the whole opinion is based on a game of let’s pretend that the country was discovered by Europeans.
(3) first in time idea is trumped in this case. The first in time is used to rationalize property rights.
2. First in Time
a. in some way, it’s screwing the inefficient.
b. not clear if American property law turns on who was first in time….
c. Epstein:
(1) universal principle is original possession
(2) Simpson doesn’t buy this
d. Lots of objects come into existence at particular times (ie: a shirt or a hamburger) and first possession does come into use there
3. Labor Theory and John Locke
a. Labor as a reward and kind of a justification for property rights
b. if add to the value, it becomes yours
c. the manure case
(1) decided that first person had added labor to create the pile and so therefore had taken possession of it.
4. If someone is in possession of something must have some sort of relationship to it and an intention to exclude others from it.
5. Property and Power- property confers power. lack of property makes you powerless.
6. Freedom and property are connected- if no property, in some sense less free.
a. if no one owns anything, than can’t really be free.
B. Capture:
1. Pierson v. Post
a. Facts
(1) dude is chasing a fox with his hounds on public land
(2) D sees the chase and shoots the fox and takes it off
(3) P sues for trespass on the case
(a) trespass is for direct physical interference with property
(b) trespass on the case is indirect interference with property or action
i) could look at case as an interference with the act of hunting.
ii) If did this would be able to avoid the issue of who owns the fox.
(c) Court treats it as a trespass case. Looks at who owns the fox.
b. Court
(1) treats the fox as owned by nobody or owned by the public.
(2) foxes are ferae naturae
(3) mere pursuit is not enough to take possession.
(4) legal reasoning based on traditional sources of authority and public policy reasons.
(5) public policy:
(a) simple and clear rule
(b) will reduce quarrels
c. Dissent
(1) above rule isn’t fair; if reasonably certain going to catch, it is his
(2) economic incentive- should actually reward the person who made the effort and preparations to get the fox
(3) problem with this is that it is a less clear rule
d. Rule of Capture is a Bad One if want to conserve an animal
(1) could ban all capture of animals
(2) could issue permits for their capture
(3) could auction permits
(4) if whales were owned and only the owner had the choice of killing them, wouldn’t have a problem of their extinction
(5) private property is a method of dealing with extinction
e. there are other systems of regulations encouraging the extinction of animals
(1) bounty system
f. ratione soli- by reason of owning the soil
g. What to make of the argument that should have been settle by arbitration among hunters
(1) problem with it is that what happens to foxes may impact other groups (poultry owners, conservationists)
(2) won’t take into account the interests of others.
2. Ghen v. Rich
a. facts
(1) trying to recover the value of a fin-back whale
(2) whale is killed and then floats to surface a few days later
(3) harpoons used had identifiable markings
(4) person who usually found the whale sent notice to town and then picked up. Finder usually paid a salvage fee.
(5) person who found the whale in this instance, wasn’t aware of this custom
b. Court:
(1) custom is that it is the killer’s property
c. First Possession is not a factual determination
(1) that determination depends on the context and what is a reasonable determination
d. in a close case re: what constitutes possession, the court may look to customs or usages.
3. Keeble v. Hickeringill
a. Facts:
(1) P was engaging in decoying for ducks and D fired a gun on his own land
(2) Since D was on his own land, there was no trespass
(3) It’s important that dealing with a big capital venture with lots of time and expense
(4) Hickeringill was first in time- had a decoy built first.
(5) wild ducks- not domesticated ones
b. court:
(1) Keeble wins because there was a malicious interference
(2) case is really about the bounds of competition
(a) school example:
i) can’t prevent kids from going to another school
ii) but can build another school to try to get them to attend there.
(b) what’s the distinction between competition and interference?
i) not allowed to do something that doesn’t maximize the amount of ducks caught.
ii) If D
drive him out of business?
(a) driving out of business may increase number of goods in society
(b) shooting doesn’t have any social use.
5. The Tragedy of the Commons
a. Hardin links it to overpopulation.
(1) got this from Malthus. Pessimistic theory.
b. Solution is coersion. Coersion can be a good thing. Out of coersion can come good for public welfare. Coersion can eliminate the problems of the tragedy of the commons.
c. What would Demsetz say?
(1) Would want to internalize the externalities.
d. Purpose of the Lobster article:
(1) alternatives to intrusion by the state
(a) Extralegal mechanism of social regulation. Exists under the shadow of the law.
(2) Demsetz would sya that they are introducing a form of private property
(3) Can have property regimes without formal legal regime.
6. Tragedy of the Anticommons:
a. If a commons means a state of affairs where everybody can use the space and no one can exclude anyone else.
(1) Logically there should be a place where no one has a right to use the space and everyone has the right to exclude the use of the space.
(2) No examples of pure anticommons.
b. Heller says not a pure case, but are examples of where multiple people can exclude it’s use. 500 could agree to use the Moscow storefronts, but don’t because of transaction costs.
(1) The subdivision of the rights of an owner.
(2) An owner has a bundle of rights: Can exclude others.
7. Bentham:
a. Property is a product of law. Have property because it’s for the greatest happiness of the greatest number of people.
b. Trouble with private property is that lots have not much and a few have a lot of it. Unequal distribution. People have always been uneasy about it.
D. Acquisition by Creation
1. Cheney Brothers v. Doris Silk Corp.
a. creator sued person that stole a design and copied it.
b. in the absence of statuatory regulation, don’t have property rights over designs.
c. Should be allowed to copy or imitate something.
d. Learned Hand gives priority to the silk buying public
e. Law: a man’s property is limited to the chattels (personal- as opposed to real- property) which embody his invention. Others may imitate these at their pleasure.
f. Gut feeling is that it’s a shame because of the first-in-time/Locke property arguments
g. Arguments in favor of the decision:
(1) policy- will open litigation floodgates
(2) no need to stop it. P still has a lead time
(3) want to balance fairness to creative people against the needs of a free, competitive market
2. INS v. AP
a. INS telegraphed AP’s news from east coast to the west coast
b. courts protect the AP’s news as property
c. case has never been followed
d. argument that new agencies would go out of business isn’t a good one.
3. Baird
a. use by one person of a physical object, precludes the use by another
b. information can be used by many in many different ways.
(1) not universally true, ie: secret information
(2) in a general sense true
(3) treating information like it’s a public good (ie: a lighthouse- everyone can use it and one person using it doesn’t diminish its value) once it’s released
4. Smith v. Chanel
a. Chanel sued Smith for copying one of its lines of perfumes
b. other issue was that Smith was claiming it was like Chanel- can they do that?
c. Court says it’s ok to copy ad produce similar products and legitimate to say it’s similar. But not ok to say it’s Chanel.
d. free market works- but assumes a knowledgable buyer. That’s why need truthfulness.
5. Celebrity’s Right of publicity:
a. started as a right of privacy
b. but became more a right of publicity
c. persona has become a tangible property interest
6. Moore v. Regents of UCal
a. P had spleen removed
b. D used cell line to create a cell line
c. P wants money from the millions made on P’s cell line
d. P never agreed to have them use his cell line
e. No informed consent.
f. Ways to present case:
