Property Outline – Wegner, 1L, 1st Semester
Property is a bundle of rights not things, that serve human values.
Chapter 1: The Concept of Property
Five Theories of Property:
– Protect First Possession
– Encourage Labor
– Maximize Societal Happiness: Utilitarian Approach
– Ensure Democracy: Jeffersonian Notion
– Facilitate Personal Development
Case Study: Pierson v. Post (Supreme Court of New York: 1805) “The Fox Case”
o Deals primarily with Protect First Possession
o Rule: Must mortally wound a ferae naturae to obtain possession
§ Dissent: Labor theory, Reasonable expectation
Case Study: White v. Samsung Electronics America (US Court of Appeals, 9th Circuit, (1993) “The Vanna White Case”
o Deals with the Labor theory, and the expansion/ contract of the Public Domain
o Rule: Celebrities have a right to use their public persona for their own gain. Deals with the common law right to publicity (previously recognized as name or likeness). The common law right extends beyond name and likeness.
§ Right of publicity is not so narrowly constructed.
§ Not a matter of how, a matter of if.
§ Dissent: White’s likeness is in the public domain, bar to creativity
§ Exception: Transformative Artwork, SNL, commentary
What is Property?:
– The Right to Transfer
– The Right to Exclude
– The Right to Use
– The Right to Destory
Implications of the Rights Approach:
-Property Rights are defined by the government: Legal Positivism
– Property Rights are not absolute
-Property Rights can be divided
-Property Rights Evolve as the law changes
The Right to Transfer: Alienability
– The right to transfer is sometimes limited by public policy considerations. The law regulates what can be transferred, how transfers are made, and who can transfer or obtain property.
– The question is, under what specific circumstances can transfer be restricted?
Case Study: Johnson v. M’Intosh: Supreme Court of the United States (1832) “The Indian Land Case”
o Ultimate example of legal positivism: Right to Property is defined by the government
o Rule: Indians have a right to possession, but not to transfer to outsiders.
o Key Ideas: discovery, absolute title, chain of title
o Facilitate economic development
Case Study: Moore v. Regents of the University of California: Supreme Court of California (1991) “The Cell Line Case”
o Conversion: defined by interference with right of possession/ ownership, limited by expectation to retain possession
o Rule: Moore did not have an expectation to retain possession of his cells after excise, the inventive effort of the researchers have rights under the patent law of California.
o Human cells are not property, can’t sell but can transfer to other folks
o Patients must give consent to the medical procedures and or show that no reasonable person would consent under the circumstances (fiduciary duty)
o Extension of conversion will limit research.
o Cells are not property
§ Dissent: Parties are not in equal bargaining positions, burden required to argue consent is high:”no reasonable person would have given such consent”
The Right to Exclude: “One of the most important sticks in the bundle”
– The law generally protects the right to exclude, subject to privileges such as consent and necessity. Other exceptions may exist according to the jurisdiction.
– When can an owner exclude others from his land?
– People have a right to exclude folks from their property:
o Privacy
o Safety
o Investment
o Public Order
o Real Property = personhood
– Implemented through the tort doctrine of trespass (intentional and unprivileged entry) v. consent
– Privilege may arise through necessity (police chasing thief)
Case Study: Jacque v. Steenberg Homes Inc: Supreme Court of Wisconsin (1997) “The Mobile Home Case”
o Can punitive damages be awarded without compensatory damages? (Nominal damages) (Barnard v. Cohen: libel case)
o Rule: Punitive damages may be awarded without compensatory damages when society has an interest in discouraging conduct.
o The right to exclude gives legitimacy to the government/ legal system: Public Policy considerations
o Note: There was an alternate route across the land.
o Goes to personhood theory
Case Study: State v. Shack: Supreme Court of New Jersey (1971) “The Migrant Workers Case”
o “Property Rights serve human values”
o Right to exclude is not absolute, and there must be an accommodation not to injure the rights of others.
o Public Policy issue mainly
o Rule: Farmer cannot assert a right to isolate a migrant worker against his well-being.
§ May receive visitors
§ Fundamental Rights – Visitors were working for the federal government.
§ Did not violate the possessory right of the landowner
The Right to Use
– “the sole purpose of injuring others is not one of the immediate rights of ownership”
– An owner is normally entitled to use his property as he wishes, as long as he doesn’t injure the rights of others. The spite fence and nuisance law define the limits of the right to use.
– What is the scope of an owner’s right to use his land?
o Traditionally, absolute right as long as he did not injure the rights of others
o Principle limitation is the law of nuisance
o For the sole purpose of injuring others is not one of the immediate rights of ownership.
Case Study: Sundower v. King: Supreme Court of Idaho (1973) “The Motel Spite Fence Case”
o Affirms “finding of fact” as a jury issue regardless of
rship
§ Water Law
2. Personal Property
Adverse Possession:
“The most controversial doctrine in property law.”
4 Justifications:
1) Preventing frivolous claims – It provides the occupants with security of title, thus encouraging the productive use of the land. (A special statute of limitations)
2) Correcting Title Defects – Property description in a deed may contain an error; adverse possession resolves the problem by protecting the title of the person who actually occupies the land. Lengthy possession serves as proof of title.
3) Encouraging Development – Adverse possession is a legal tool to encourage economic development. It serves to relocate the title from the idle owner to the industrious one.
4) Protecting Personhood – The land becomes yours after it takes ‘root in your being.’
Elements of Adverse Possession
The elements vary somewhat from state to state, and the period may be established by statute or case law (or taxes paid).
Actual (possession) – the claimant must use the land in the same manner that a reasonable owner would given the character, location, and nature
Exclusive (possession) – the claimant’s possession cannot be shared with the owner or with the public in general
Open and Notorious – claimant’s occupation must be visible and obvious so that if an owner made a reasonable inspection of the land, he would become aware of the adverse claim. Often, clearing brush, planting crops, and building fences will satisfy this requirement
Adverse and Hostile (and non-permissive) – Some states require a “claim of right”, others require “good” or “bad” faith. Most states now treat this subjective determination as irrelevant
Continuous Possession – the claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land, sporadic uses of wild lands are often deemed continuous
For the statutory period – time depends on the state, less for color of title
Case Study: Gurwit v. Kannatzer: Court of Appeals of Missouri (1990) “The Greedy Old People Case”
– Gurwits used the land in accordance with all the elements of adverse possession
