Property Outline 2006
Part 1 – Creation of Property Rights
I. First in Time, First in Right
A. Johnson v. McIntosh
1. Why were Indians not first in time, first in right? Because, they were not really first in time because they were not really using the land, but merely occupying it
2. Have to have legal title that originally comes from the United States or relevant state government
3. Property rights are culturally contingent and are set up to promote the values of the society that creates them
B. Edwards v. Sims
1. Lee gets the cave due to the property of cujus est solum, even though Edwards
was using it and had put a lot of work into it
C. What rights come with “ownership” of property; or, to put it another way, what
rights make up the “bundle of sticks?” The right to exclude, the right to transfer, the
right to enjoy the fruits of the land, the right to alter the land, the right to use the
land (all of these rights apply to personal property as well). One can have only some
of the aforementioned rights with regards to a piece of real or personal property and
still be said to have property.
D. Pierson v. Post
1. Establishes the rule of capture
a. To acquire a property interest in something, one must (1) have an intent to
possess it and then (2) exercise some control over it
b. Leads to overcapitalization
E. Common law right to privacy and statutory right of publicity
1. Elements of the common law right of publicity – defendant (1) uses the plaintiff’s
identity (2) to defendant’s advantage, commercial or otherwise, (3) without the
plaintiff’s consent (4) causing injury to the plaintiff
2. Elements of violation of the right to publicity under the CA statute – defendant
(1) knowingly uses (2) plaintiff’s name, voice, signature, photograph, or likeness
(3) in any manner (4) for purposes of advertising or selling (5) without the
plaintiff’s prior consent
3. Likeness in the statute is broader than identity in the statute
4. Can use another’s likeness if put in enough of one’s own talent that the product is
not valuable only due to the public figure appearing in or on it (e.g. Cardtoons,
Andy Warhol)
F. Requirements for a patent – process/product is (1) patentable subject matter; (2) is
useful; (3) is novel, and (4) is not obvious to a person of average competence in the
relative field
1. Can have three types of patents – (1) product; (2) process, and (3) process and
product
2. The general rule is that living things are not patentable, but that was slightly
expanded with the Chakabardi case, so that one may can patent something like a
bacterium or a DNA line
G. Finders
1. The general rule is that the finder of personal property has a superior claim to that property against all others except for the TO
2. If the property is found in the course of trespassing, the property goes to the landowner, unless the trespass is minor
3. Property embedded in the ground belongs to the landowner since it is part of the real property, unless it is treasure trove (has a sense of antiquity, the true owner is long dead and cannot be ascertained
4. Sometimes courts will give the property to the employer if it is found by an employee on the job, unless the employee finds it in a public place
5. Objects found in a residence typically belong to the owner or renter, provided that he lives there
6. Often, someone who is on the premises for a limited purpose must relinquish found property to the owner, on the theory that finding things was not in the scope of his permission to be on the property
II. Limitations on the Right to Exclude
A. Pedrick v. Pile
B. The right to exclude is pretty absolute
1. In the case of an encroaching structure, have two possible remedies – (1) treat the encroachment as a continuing trespass and have the encroacher pay the landowner; essentially a private imminent domain action, or (2) get an injunction and force the encroacher to remove the offending structure
2. Factors to consider in deciding which remedy to apply may include (1) whether the encroachment was intentional or unintentional; (2) whether the encroachment was in good faith or bad faith; (3) extent of economic waste; (4) whether the injury to the plaintiff in allowing the structure to remain would be slight, and (5) the significance and scope of the encroachment.
a. Most jurisdictions, though not all, will take the aforementioned factors into account in deciding which remedy to grant the plaintiff, rather than applying a bright-line test
C. Jacque v. Steenberg Homes – any trespass is an injury to the plaintiff and an affront to property rights; even in the absence of compensatory damages, punitive damages may be appropriate in an action for trespass, especially if it is intentional, as in the Jacque case.
D. State v. Shack – really just illustrates that the right to exclude is by no means absolute, even in the case of trespassers
Part 2 – Adverse Possession
A. The Elements of Adverse Possession
1. Actual Possession
a. One must be in physical occupation of the land and use it in the manner that a true owner of the land would
b. Have to distinguish between actual possession and a series of isolated trespasses – see Mullis v. Winchester
2. Exclu
owner (1) engages in conduct amounting to the concealment or misrepresentation of a material fact (e.g. where a boundary is, who owns a tract of land) (2) intending or expecting that the person will rely on it and (3) the other person in fact relies on it
a. Most cases require that the misrepresenter know where the true boundary is and deliberately misrepresent it
b. As far as concealment, some courts will allow silence to suffice as concealment
c. Some courts raise the BOP on this to “clear and convincing evidence”
2. Agreed Boundaries – The parties are unsure as to where the true boundary is, so they have an oral or written agreement that does not satisfy the SOF, and then they engage in conduct suggesting that the agreed upon boundaries are the true boundaries
a. The length of time that this sort of possession must continue before ripening into title varies from JD to JD and is usually recognized by statute
b. This doctrine is recognized in NC, but there must be a high level of uncertainty, perhaps even to the point of the true boundary not being discernable
3. Acquiescence (sometimes called mutual recognition) – there is no explicit agreement (can be used where it is difficult but not impossible to tell where the true boundaries are), but the two landowners conduct themselves as if a certain line were the true boundary
a. The SOL for this is often the same as for AP
b. Many JDs use the “clear and convincing” standard for this
G. Minor Encroachments/The Manillo Doctrine
1. In NJ, a minor encroachment is not open and notorious AMOL unless TO actually knows of the encroachment
2. In the Manillo case, the court did not make the encroacher move the offending structure as long as he agreed to pay for it
3. The idea behind Manillo is that people often do not know where their true boundaries are, especially in urban areas, whereas the presumption of the CL doctrine of AP is that if people do not know where their true boundaries are, they should take steps to find out
H. Betterments
1. The traditional CL rule was that if someone built a structure on another’s land and the landowner brought an action for ejectment, then the structure was a gift to the landowner whose land it was own
