Property I Outline

PROPERTY
Wegner
Spring 2012
 
 
Concept of Property and why recognize property
 
·         Theories about Property:
o   Natural Law (really applied by gov’t, not inherit)
o   Protect first possession
o   Encourage labor
o   Maximize societal happiness
o   Ensure democracy
o   Facilitate personal development
 
·         How do you possess something and make it your property?
o   What constitutes possession with wild animals, or ferae naturae? 
§  Reasonable expectation of capture during pursuit is not enough; need to occupy physical possession over it (Pierson v. Post)
 
·         Intangible property also exists
o   Right to publicity, under common law
o   Common law claim for “right of publicity” gives cause of action if (White v Samsung):
§  Use of P’s identity
§  “Appropriation” of “name or likeness” to D’s advantage, commercially or otherwise
§  Lack of consent
§  Resulting injury
 
What is property?
 
Right to transfer
§  Exceptions/Clarifications
o   Native American lands and the US rule over them via concept of “discovery”; have right to use and exclude, but not to transfer (Johnson v. M’Intosh)
o   Owning of body parts—if something completely new is invented through parts from something else, like a spleen, it is known as “accession” (Moore v CA Regents)
§  Rights of previous owner, then, do not give it a right over the accessioned property—ended once surgery started
§  Fiduciary duty was broken in Moore however, w/ lack of informed consent
Right to exclude
§  Punitive damages can be gained even when only nominal charges apply after someone goes over your land w/o owner’s permission, or after owner refuse (Jacque v. Steenberg Homes)
o    relates to the rights of the individ owner and greater society, more than just the actual damage caused
§  Exceptions to the broad rule, however
o   Ex: workers’ right to organize (State v. Shack)
§  No right on the part of the employer to isolate migrant workers and keep from accessing available aid set by law (note how issue is framed)
§  There was no invasion of state property/possessory right by farmer-employer; conduct was beyond reach of the trespass statue
 
Right to use
·         Limitations: cannot make a “spite fence,” with malice and sole purpose to annoy neighbor (Sundowner and blocking the hotels)
 
·         Can’t be a nuisance (Prah and his solar panels being blocked)
o   Components of private nuisance:
§  Intentional
§  Nontrespassory
§  Unreasonable (most ambiguous)
ú  Modern view: if “gravity of the harm outweighs the utility of the actor’s conduct”
§  Substantial interference…
§  w/ use and enjoyment
 
o   Nuisance balancing
§  Gravity of harm to P
ú  Extent of harm
ú  Character of harm
ú  Social value attached to the type of use of enjoyment invaded
ú  Suitability of the particular use to the character of the locality
ú  Burden on the person harmed of avoiding the harm
§  Usefulness of conduct to D/society
ú  Social value of the conduct
ú  Suitability of the conduct to the character of the locality
ú  Impracticability of preventing or avoiding the harm
 
·         Right to use and the environment: Endangered Species Act (Babbitt v. Sweet Oregon…)
o   Broad regulatory powers under the ESA under the def’n that it applies, particularly under the word “harm”
o   Despite economic harm, ESA prevails w/ interests of protecting species
Right to destroy
·         If there is a greater public/economic good, and absent any legitimate intentions from a deceased testator, a will’s declaration of destroying a home in a prestigious neighborhood can be overruled (Eyerman v. Mercantile Trust)
 
·         Right to destroy and the environment: Hazardous waste (Monsanto)
o   Under RCRA and CERCLA, there are broader liabilities for corporations and other “covered persons” who deal with reckless waste disposers
o   Can be joint and severally liable for an indivisible harm
Adverse Possession
 
Elements of adverse possession:
·         Property owner loses rights because
o   has not brought action to “eject” someone who has possessed property in a way that is…
§  actual
§  exclusive
§  open and notorious
§  adverse and hostile (no permission given is key; possibly frame of mind? Though mostly objective)
§  continuous for statutory period
o   (Has to take into account the nature, location and                                                   character of the land)
 
·         Adverse/hostile component and state of mind
o   Can be taken in good faith, bad faith, or can be irrelevant
§  Good faith can make stronger case for some, such as with Church on other’s property knowing it wasn’t theirs (Fulkerson)
§  Most modern day say that it’s irrelevant (or at least bad/good faith doesn’t count one way or the other) and we should look at objective factors of actions, such as with a paper street along a supermarket (Tioga)
 
·         2 factors to consider in the AP elements:
o   When the possessor actually begins use of land—what evidence is sufficient to indicate the beginning of this? 
§  Gurwit meets the AP test (17-acre sparsely-used tract of land)
o   Nature of the property
§  if it’s in a rural area v. a more urban environment, your claim of title may need to be more explicit.
ú  Ex: going to property only in the summers may work as continuous occupation b/c of the nature of the land (Howard v Kunto)
§  Under NY statute, Van Valkenburgh’s gardening did not qualify (“usually improved and cultivated” part of statute)
 
·         Generally, statutes provide for two scenarios
§  “under claim of right” (basic)
ú  allows title to only that portion that has been cultivated/improved
§  “under color of title” (relying on a written instrument for a “virtual fence”)
ú  allows them to have title to all landà”constructive possession”
·         assumes other person not using part of the land
·         always objective adverse/hostile standard
ú  Problems with color of title
·         Multiple lots: you only end up possessing that which are on
·         Lappage: overlapped land goes to the one with the correct deed, unless you adversely possess
 
·         Tacking
o   Allows continuous use across multiple owners
o   A property can be adversely possessed if the tacking switches owners in privity, even if the privity is under a mistake of fact. 
o   Reason