Property Outline –Wegner Fall 2010
I. Concept of property- Chapter 1. The right to possess, use and enjoy a determinate thing.
a. The five theories of property
i. Protect first possession-first come, first serve. How property rights arose. Came from out west settlers
ii. Encourage labor- each person is entitled to the property produced by his own labor. Rewards labor efforts. Important in IP today.
iii.Maximize societal happiness- distribute and define property in a manner to promote the welfare of all citizens. utilitarian theory, encourage efficiency.
1. Law and econ variant- property seen as an efficient method to allocate valuable resources to maximize societal happiness.
iv.Ensure democracy-having a stake in society provides social and political benefits to us all. Property facilitates democracy
v.Facilitate personal development- good to develop an emotional connection, aids personal development. Object is an extension of oneself
b. Pierson v Post- rule of first possession
i.Rule of capture: property rights in wild animals are acquired by the first to take possession of the animal.
ii.Ferae natureae can only be acquired by occupancy (mortal wound counts)
iii.Ruling: mere pursuit of an animal does not constitute occupation and a ruling of this would violated peace and order in society, going against theory of property law
iv.Claim of ownership (1) an intent to possess and (2) actual control or holding the property
v.Dissent: based on labor theory. Property can be acquired without actual possession. If you show a pre-possessory interest, then you may have a claim.
1. Constructive possession would have been mortally wounding the animal.
c. White v Samsung electronics(robot Vanna White)
i.Common law right of Publicity- can’t appropriate anyone’s name or likeness to your advantage without consent
1. Court wants to protect identity and Vanna’s identity is her look in the context of the WofF board.
2. Issue- it’s a transformative image so suggestive of Vanna. But the impression leaves little doubt who is being depicted so it’s a violation of that person.
3. Policy: law protects celebs right to exploit IP b/c it was he/she who put the labor and effort into it.
ii.Dissent Kozinski
1. Overprotecting IP is harmful as underprotecting it.
a. Suppresses creativity and hurts public domain
b. As to labor theory-Her image here was created by and with producers
c. Don’t want to rob public of parody, transformative images
d. First Amendment puts forth the right of publicity, don’t need to interfere with that
2. need to balance between right of publicity and society’s interest in freedom of artistic expression.
II. What is property? It is defined by the rights
a. 4 key implications of rights
i.property rights are defined by the government
1. rights exist on to the extent the are legally recognized by the gov.
ii.property rights are not absolute, they are relative. Sometimes the relativity puts them in dispute.
iii.Property rights can be divided:
iv.Property rights evolve as the law changes based on technological, social, and economic conditions.
b. The Bundle of Rights
i.Right to Transfer- as a general rule any owner my freely transfer or alienate any of her property to anyone.
1. Law can restrict who transfers and how
2. Economics stress that the right to transfer is vital for efficiency.
ii.Johnson v Macintosh (Indian case)- beginnings of property law and the need for absolute title. Gov shows that it would rather have the land in possession of someone who will develop it.
iii.Moore v Regents of Cali- rights to tissue derivatives
iv.Rule- Human tissue should not be considered property after it leaves the body
1. Patented cell line: was inventive effort that patent law reward, not naturally occurring raw materials.
2. Moore abandoned and didn’t continue having an interest in the cell. No way he thought he was retaining possession.
ii. Policy- extension of conversion law into this area will hinder research by research. If law change the legislation needs to indicate it. Don’t want to create a market to sell human tissue.
iii. uniform anatomical gift act—conditions in which transfer may be made is limited. May give your tissue for benefit of society, but may not sell it
(1) market-alienable property
c. Right to exclude- each owner has a broad right to exclude another person from his property.
i.Entry made through privilege is not trespass.
1. Can be through consent or necessity
ii.Policy- privacy, safety, right to use land for economic benefits, protect public order
iii.Jacque v Steenberg Homes (mobile home moved across guy’s land)
1. Rule: deterring intentional trespass is in society’s best interest. Right to exclude is a fundamental property right and needs to be protected.
2. Punitive damages not for harm but for infringement of landowner’s right.
3. Court refuses to enforce Barnard rule that prohibits punitive damage award without compensatory damages. It would send the wrong message that trespassing was ok
4. Why prohibit trespass?(posner)
a. Unqualified power to exclude everybody else is necessary to maximize economic benefit
iv.State v Shack( lawyer w/ migrant workers)
1. Rule: you can’t deny someone fundamental right/liberty to have a visitor while you have given them consent to be on your property.
a. Fundamental rights: health and legal services
b. This case is exception to trespass doctrine: still not just anybody has access to land
2. Rule 2: Owner can require visitor to identify themselves before allowing them on land just not at the cost of depriving someone of their rights. Not right for an employer to isolate their workers from associations and liberties/
a. Rights too fundamental to be denied
3. Policy – property rights serve human interest and are duly limited
a. Cant use your rights to injure the rights of others
b. This was an isolate migrant group lacking political and economic power. Efforts by legislation to grant legal access to poor. (Economic Opp Act- creates SCOPE.)
d. Right to use –what is the scope to the owners right to use the land
1. Generally allowed to determine how to use land but not to injure the property of others
2. Those limits are nuisance and spite fences
3. Utilitarian perspective- landowner knows how best how to use land without need for gov interference.
ii.Sundowner v King – big fence by motel
1. Rule: No property owner has the right to erect and maintain an otherwise useless structure just to injure his neighbor.
2. Policy- nobody has right to make malicious use of property. We all have the rights to sunlight, air etc.
3. Fence needs to serve a useful purpose aka significant for advertising, then malice would not be provable.
iii.Prah v Maretti (solar panels)
1. Theory of nuisance
a. Intentional
b. Non-trespassory
c. Unreasonable
d. Substantial interference w/
e. The use and enjoyment of P’s land
i. Balance harm and value. The extent of the harm, social value invaded, burden, suitability.
2. Rule: landowners have right to sunlight. Private nuisance law balances landowners access to sunlight with another’s right to develop their property.
3. Policy: Access to sunlight is an important right and society has an interest in developing other sources of energy. Must balance the need for land development with letting someone fully enjoy their property.
4. Dissent: Guy could have tried to get a solar easement or done more to protect his investment. The right to use is a fundamental property right, and sunlight has only marginal efficiency.
5. Law and economics- Coase theorem- it doesn’t matter the initial allocation of a resource because the rational consumer will bargain to reach an efficient allocat
on to the land
V. Tioga Coal v Supermarkets General
a. Rule: If owner has not ejected the user within allotted time and all other elements of AP are established- hostility will be implied/ inherent in AP, regardless of state of mind.
i. Mistaken identity of true owner doesn’t matter
Proving AP- two ways
1. APer brings a quiet title action to confirm his title
2. Raise the doctrine as a defense to an owners lawsuit to recover possession
Tacking- adverse possession of 2 or more successive occupants may be added together to meet statutory period.
1. Must have privity or connection between owners
2. When there is no privity there is a gap.
I. Howard v Kunto
a. Rule: Privity is a prerequisite for tacking of AP
i. Nature of the home, a summer home wouldn’t be expected to be there year round
ii. Not color of title case because they take possession of the wrong land. Tacking is allowed here because P was the last successor of purchaser.
II . Disabilities: period of AP extends for disability- includes imprisonment??, minority and lack of mental capacity. Some states even protect military server or out of state resider
a. Most states provide a limited time period after the disability ends to bring a suit
b. Misc.
i. Identity of record owner can extend stat period
ii. AP normally implies FSA
iii. If owner has only life estate then that is all AP gets.
iv. Only AP against government if the land is used for a proprietary and non public use.
II. Water law
a. Laws differ from if you’re in the east or west(scarcity)
b. Three approaches to govern surface water
i. Riparian System- assigns water rights to each landowner whose property adjoins. Also adopted the reasonable use doctrine- allows riparian owner to take water for reasonable uses for her land, but not to unreasonably interfere with the use of other riparian owners.
ii. Prior appropriation system(western states)- location of the owner’s land is irrelevant, water rights are allocated to first person to divert for beneficial use. Ensures appropriator will not abuse her rights.
iii. Permit System- Many states require a permit for diversion of surface water, so the fov can effectively regulate the amount that may be withdrawn.
c. Ground water
i. Reasonable use approach- dominant view. Can only used groundwater for reasonable use on overlying land
ii. Correlative rights- surface owner is entitled to a proportional share of the groundwater beneath his land.
iii. Permit system- title to groundwater is vested in the state, so surface owner needs a permit to obtain water rights.
d. Sipriano v Great Spring Waters of America
i. Texas uses rule of capture- use as much water as you want over reasonable use. More a legislative choice.
e. Environmental Cases
i. Just v Marinette County- limits to uses where there is marshland especially if damage to ecosystem hurts general public
ii. Nat’l Audobon Society v Superior Ct. –State can’t deprive property owner off all economically viable use of property. Prior appropriation meets public trust standards.
