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Property I
University of Oklahoma College of Law
Palomar, Joyce

Property Outline
Professor Joyce Palomar
Spring 2008
I. What is Property?
Definition of Property – The legal relations b/w persons w/ respect to objects such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.
Real Property – land and anything affixed to the land. 
Personal Property – Things that are movable
Note: Property rights are not absolute, but rather are relative
A. Acquisition by Discovery
Social Policy – Social policies are very important to the law being adopted. If rules in similar cases aren’t consistent, it’s probably b/c the social goal was different and different needs arose out of that case.
B. Acquisition by Capture
Pierson v. Post
Facts – Hunter in long pursuit v. Interceptor who takes at last second (Post was in hot pursuit of fox when Pierson took the fox
Social Policy / Instrumental End –
Majority – To promote certainty, peace, and order; prevent disputes among hunters; reward for killing noxious beasts. 
Dissent – Broaden Definition of Possession to say if you have reasonable prospect you have possession
Doctrine / Law
For sufficient possession to give a property right, you must capture the wild animal = deprive of natural liberty Pursuit alone is not enough. 
Capture = deprive of natural liberty by mortally wounding or trapping
Note: Main Point of these Cases – It’s the policy that determines what rule Ct’s use for their holdings
Oklahoma Law – An animal is a subject of possession only when on land of person claiming them or when tamed or when taken and held in possession or disabled and immediately pursued. 
Relativity of Title – If T1 steals fox from L’s land, then T2 steals fox from T1, who has the right to the fox?
There’s a relative property right to the fox – T1’s is greater than T2’s, but L’s trumps everyone’s (L > T1 > T2)
Constructive Possession – L has pretend possession b/c of social policy; You own anything on your property as long as its on your property (i.e. minerals, oil, animals)
Social Policy – promote certainty, peace, and order and discourage trespass
Keeble v. Hickeringill
Facts – Professional Trapper v. Malicious Interferer w/ Trapper (Keeble owned a pond where have was trapping ducks – D would come around and shoot his gun in efforts to scare ducks away and screw P. 
Social Policy / Instrumental End – Encourage furnishing the marketplace; interruption of his livelihood and the way he makes money.  
Law / Doctrine
Old Law from Piersons – P would lose, hadn’t deprived ducks of their natural liberty, so they cannot be his property. 
New Law: Professional has a legal right to stop malicious interference w/ his trade; however, pure competition is fine.
Constructive possession when the ducks are on his land but if they leave on their own accord he longer has possession over them. 
If animals develop a habit of returning to the captor’s belong to the captor as they roam at large. If someone else captor’s then they have possession until notified of the prior possession.
If animal escapes and resumes its natural liberty then possession is lost unless there is notice that the animal has escaped another’s possession (Elephant in Penn). 
Oil & Gas –
Hammonds Rule – Fugitive resources are to be treated like wild animals under Rule of Capture
Eventually overruled: Most now have rating rules – controls on oil extraction (how much you can take out) by statute.
Barry Bonds Case
Holding – Ct held that both parties (1-man who actually caught the ball; 2-man who stole it) had to split the profits. This holding was unusual and was a compromise between conflicting policies of recognizing ownership to the one who actually captured the item and recognizing ownership to the one that took significant steps to capture the item (prepossory interest). 
Normal holding would have been to give ownership to one person, b/c policy doesn’t want to encourage people to assault and otherwise interfere w/ someone’s ability to complete a catch so they could obtain possession themselves.
C. Acquisition by Creation
General rule: If there is no patent/copyright, the property right is limited to the actual chattel which embodies the invention, and this chattel may be copied or imitated. 
International News Service v. Associated Press
Facts – INS (D) admittedly took news from AP (P) bulletin boards and newspapers and used it to sell to their clients (among other things).
Issue – Issue was whether info from AP’s bulletin boards and early editions were fair game to be distributed by other companies or if it was malicious interference with one’s trade.
Analogy of news to wild animals – news is a fugitive resource and once out in the open, could be captured by someone else. 
Held – Ct created a quasi-Kx, which said AP had a “reasonable” amount of time, which was long enough for AP to get their profits from being the creator, unfair trade practices by INS. 
Policy –If competition is so unfair as to put one person out of business, it is no better for the public b/c now only one outlet is getting the news out. 
Cheney Brothers v. Doris Silk Corp
Facts – B/C of the ever changing market of clothing, patents are not able to be obtained. Doris took advantage of this by waiting to see what garments from Cheney Bros (P) were popular, then copied and sold them.
Held – Ct found for Doris (D), saying that you have property rights to your own actual invention, but not to all of your ideas and designs. 
Note: You can’t pawn off your work as someone else’s – Bill Gates can’t say “this is a Mac operating system,” but he can imitate it and market it as his own.
Policy – Competition should be encouraged b/c it stimulates the economy and more money is generated. Also, people will find better, cheaper, and more efficient ways to produce a product.
Note: Intellectual property is protected somewhat more now by patent/copyright laws
Smith v. Chanel, Inc.
Facts – Smith (P) created an imitation of Chanel No.5 perfume, and in its ads claimed it was the equivalent. Chanel possessed no patent, but claimed the copying was illegal b/c it impeded trade. 
Held – Ct held for Smith, saying that since it was unpatented, Smith had a right to copy it b/c of policy reasons (knock off’s are more or less good for competition). Said Chanel is not entitled to monopoly the public’s desire for the unpatented product, even though they themselves created that desire at great effort and expense. 
There was no misrepresentation in this case b/c Smith didn’t put his product out there as Chanel No.5’s, they just said they smelled like it. 
Policy – Competition drives prices down and gives more options.
MGM v. Grokster (property right in one’s body)
Issue – Napster and Grokster were having a P2P network and allowing people to rip off copyrighted movies for free. 
Held – If you make something that has no other viable purpose than illegal pursuits then its copyright infringement. Here they were marketing it for the sole purpose of ripping off the movie studios. 
Example: VCR when they first came out they could record live tv or movies. Not copyright infringement because they had other uses. 
Policy – There were competing policies: on the one hand D was arguing that it should be allowed to innovate and drive competition (lower prices etc.) and MGM was arguing that they created these things so they should be able to copyright them and be protected. 
D. Theories of Property
Walking Dead Capital Article (De Soto) – Article about how property rights can be tied to economic development.  
She said 70% of loans for small businesses put up real property as collateral. 
His theory got the World Bank excited (among other groups), and they put money into the area. 
Social policy of granting property rights. If you have property rights, you can put it up as collateral to make more money.
Land must have a title and value before a bank can accept it as a collateral. Land titles a

at all times, so if you do something out
American Theory – Employer Finder Gets it. 
Chamber Maid Exception – Part of someone’s job who cleans rooms, say for hotels, is to turn in anything that they find left behind to mgmt. Must return lost goods found within scope of their employment to the front desk.
Landlord v. Tenant Finder (T finds stash of money left behind by prior tenant in leased house)
Tenant would claim its abandoned property, and therefore he’s finder and keeper; LL would claim constructive possession as its on his property
Note: However, we use constructive possession to prevent trespass and the tenant isn’t trespassing here. 
Applying Mislaid Theory – Rightful owner would go to the house and ask the rightful possessor of the house for the $ (that’s the Tenant, not LL) – so T would keep money if rightful owner never shows up.
Note: Even if the property was lost, it would go to the finder, the Tenant)
Policy – To encourage T to report find of $ so true owner may be contacted.
Armory v. Delamarie- chimney sweep boy found jewel; D took stones out and gave boy $ for it—boy wanted the jewel back    trover v. replevin
·         Issue- did chimney sweep boy have property rights sufficient to assert a claim against D
·         Law- finder has property rights as against whole world except the true owner or prior possessors
·         Policy- 1) protecting possession promotes peaceful public order 2) encourage finding and bringing goods back into marketplace 3) possession is an efficient indicia of ownership
·         Finder v. Owner of Locus in Quo (location where found)
·         Employer v employee- goes to employer under English rule (master/servant relationship)
McAvoy v. Medina- P found purse in barber shop; D held on to it; P asked for it and D did not give it back
·         Lost property- finder of property acquires no right in mislaid property
·         Policy- store owner keeps possession so true owner can come back and reclaim
§513- finder can require reasonable proof of ownership; if the item is perishable, it can be sold before owner comes to reclaim
F. Acquiring by Adverse Possession
Gaining title by adverse possession results from the operation of the statute of limitations for trespass to real property. If an owner does not, w/in the statutory period, take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing suit for ejectment. Moreover, title to the property vests in the possessor, he must then quite title. 
Policy: protects titles and 3rd persons who have been there so long, bars state claims, and rewards productive use of land.  
Common Law elements that support a claim for Adverse Possession
1) An actual entry and exclusive possession by D’s (as to the rightful owner)
Actual Possession – Requirement designed to give the true owner notice that a trespass is occurring, and the extent to which it is occurring. Rightful owner needs a way to know that they have a cause of action (ejcetment/trespass).
This is when the statute of limitations would start to run. 
Exclusive Possession – Required to show that the possessor is not sharing w/ the true owner or the public at large