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Property I
University of Oklahoma College of Law
Palomar, Joyce

Property: the legal relations bet persons w/ respect to objects such that owners of property rights can exclude others or permit others from certain activities and in either case can secure the assistance of the law in carrying out their decisions.
UNIT 1: How to Screw Others Out of Property
Acquiring Property by Discovery: Johnson v. M’Intosh – Screw the Indians
Doctrine: Possession gives property rights.
Policy: To provide a starting point for American property rights; to preserve existing ownership expectations in 1823; a way to determine who owns what. Economic necessity of maintaining the status quo of US land title.
Held: Only the US gov’t can transfer legal title to land in the US, not the Indians. Reasoning: Land went to home country of explorers. Thru Amer. Revolution title passed to US. Indians had mere occupancy of the land. White settlers took actual possession by parceling up the land and making improvements.
Acquiring Property by Capture: Pierson v. Post – Screw the Foxes
Doctrine: Possession gives ownership rights or title.
Policy: Reduce conflicts; keep peace in hunting; give clear rule to follow for possession.
Held: To have sufficient possession for title or ownership of a wild animal, you must deprive it of its natural liberty. (Actual physical poss – mortal wounding/trap).
Related Hypo – Hunter chases fox onto O’s land. O takes fox as his won just prior to hunter’s capture.
Doctrine: Poss gives ownership rights/title.
Policy: Reduce conflicts, keep peace. Priority of land rights over rights to movable property.
Held: Landowners have constructive poss of animals on their land. Even w/o depriving them of their natural liberty, ownership exists.
The Gov’t Screws You: Gov’t constructively owns wild animals and so can keep people from killing them; however, gov’t is not responsible for damage caused by wild animals. Gov’t does not own the animal until it has been captured.
Keeble v. Heckeringill – Don’t screw with trade
Duck pond owner v. guy who purposefully shoots his gun nearby.
Held – One may not maliciously interfere w/ another’s trade, esp. a trade that furnishes marketplace w/ food.
Screwy Fugitive Resources: Oil/Gas/Water Property Law dev through analogy to wild animal cases. Originally, the resource must be captured before someone has ownership of it. Now statutes provide how much oil/gas can be extracted and when from under multiple owner’s land. Law works by analogy!
Acquiring Property by Creation: Cheney Bros. v. Doris Silk Co. – Screw Creative People
Held: A person’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. (You have prop rights to you own actual invention, but not to the idea or design). [However, you can’t pawn off your own work as somebody else’s. Bill Gates can’t say “this is the Mac operating system.” But he can imitate it and market it as his.] Policy: Imitation and competition are good for the economy b/c others find better, cheaper, more efficient ways of producing a product.
*Intellectual prop is protected somewhat more now by patent/copyright laws.
Rights to Your Person: Moore v. Regents – Screw with People’s Bodies
Held: People do not have property rights to the cells/tissues that are removed from their bodies. People can be protected against abuses through informed consent or duty to disclose on doctors and researchers.
Policy: There is great social good derived from medical research. If property rights to cells were granted, every medical researcher would be subject to great liability for their use. Don’t want to bankrupt those who do socially beneficial work..
Acquisition by Finding: Screw or Be Screwed
Basic Rule: A finder’s right is superior to all but the rightful owner.
Policy: We should recognize the prop rights of a finder b/c (1) finders may help in eventually getting thing back to the true owner (2) if finders had no ownership rights, people would snatch away found things from each other. Recognition that possession indicates ownership.
Statutes: Some provide that a finder can become a true owner by putting a certain amt of work into an item or keeping it from perishing (ex. Dog). By statute, a finder is a voluntary bailee. She has a duty to keep the prop in good condition. If the rightful owners show up, finder can ask for reimbursement of expenses.
Who Gets Screwed:
1. Owner > Finder > Taker
2. Owner > Finder 1 > Finder 2
In order for F2 to prevail over F1, F2 must show a superior claim to title. Not enough to show that F1’s claim is not good enough.
3. Landowner v. Trespassing Finder
LO prevails b/c F was trespassing on land. LO has constructive possession of all things on his land. Policy is to protect LO’s right to exclusive poss and use of his land. Keeps people from trespassing and stealing.
True Owner > Landowner > Trespassing Finder
L.O.s also have constructive poss to things under the land (minerals, oil, fossils).
4. Something left in a public place: Shopowner v. Finder – Is it lost or mislaid?
If mislaid, shopkeeper holds item for true owner. Owner will most likely come back for it, and easier to come back to shopowner than to find the finder. If lost, finder can keep it.
5. Employer v. Employee Finder
Employee Finder prevails
Unless the “chambermaid exception” applies: People who are working in a capacity of finding things lost and helping the employer get them back to true owners must give the property over to the employer. (Maids, janitors, etc.)
6. Landlord v. Tenant Finder (T finds stash of money left by prior T in leased house)
T wins: The money was mislaid, but mislaid property goes to the possessor of the land, not nec the owner of the land. (But, even if prop was lost, it would go to finder, the T). Policy – to encourage T to report find of money so true owner may be contacted.
ADVERSE POSSESSION – Camp Out for Long Enough and Screw the True Owner
Elements: Four elements must be shown to start the statutory period:
1.      Actual entry and exclusive possession as against the true owner
(W/o actual entry, true owner has no CA for ejectment/trespass)
2.       Open and notorious possession
Owner must have notice that you are trespassing and the he should eject you. This element is determined from the perspective of a reasonably attentive owner. If everybody in the community knows but the owner, this is evidence that owner is not reasonably attentive.
3.      Continuous possession for statutory period
a. “Continuo

ii.   Contingent
B.     Executory Interest
i.                    Shifting
ii.                  Springing
Duration:                     Unlimited
Future Estate:              None
Lang. Creating:           * “to A and his heirs”
* “And his heirs” are words of limitation, not words of purchase (the heirs are not actually receiving anything. Heirs have a mere expectancy, no actual rights)
·         The current presumption is that a Grantor intends to give the maximum amount of rights to the grantee. You only give less if you specifically say so. Policy reason: so courts and attys do not have to track down heirs to give out remainders. Easier to give everything to one person.
Transferability:            Fully transferable by deed, will or intestacy. (If language restricts the transferability, it may contradict the presumption of a FSA).
FEE TAIL (@ common law)
Duration:                     For the life of the first taker and through succeeding generations so long as there are any living lineal descendants of the first tenant in tail. When there are no more lineal descendants, the interest reverts back to the original Grantor or passes as a remainder to another named party.
Future Estate:              Reversion to grantor OR Remainder to a 3d party grantee
Language Creating:     “O to A and the heirs of his body.” (reversion to O when A’s line dies out)
OR “O to A and the heirs of his body. If A dies w/o issue, to B and her heirs. (remainder to B)
Transferability:            Transferable during the grantee’s (A’s) lifetime (may sell his present possessory interest to B). But when A dies, the land goes to A’s lineal descendants, despite B. (Or if A dies w/o descendants, land reverts to O or goes as a remainder to a 3d party).
Problems w/ Fee Tail: Land is not marketable. No one wants land that can be taken at the death of another; can’t be sold or used as collateral for a loan.
4 American Approaches to FEE TAIL:
FT may be created, but the tenant in tail can bar the entail by transferring a FSA
FT cannot be created. (Majority). So, FT language will create
Life estate in A (original grantee) and remainder in A’s issues in FSA
FSA in A (any remainders void)
FSA in A, but if O also gives a remainder, A gets a FSA and B gets a future interest. Ex: “to Ann and the heirs of her body; but if Ann’s line dies out, to Bob.” If Ann has children at her death, they get a FSA, and Bob can never have anything. But if Ann dies w/o kids, Bob gets FSA. Keeps Bob’s uncertainty from running past Ann’s death.
·         Oklahoma falls in this group!!