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Property I
University of Oregon School of Law
Priest, Eric Ronald

Professor Eric Priest, Spring 09, Property Law
 
WHAT DO YOU DO ON AN EXAM FOR THIS QUESTION? He wants to know that you can apply the facts and categories, come up with a reas. conclusion based on your application. No right or wrong answer in this question. Do sophisticated reasoning. MAKE A CALL! If you reason persuasively, profs don’t care about the conclusion because in a case like this, reas. people can disagree. But he DOES WANT US TO MAKE A CALL
 
Theories of Property Law (why recognize property)
o   Labor theory
§ More typically cited as a theory of acquisition
·         Aka one way that we can justify granting individual rights in a piece of land is that someone has mixed their labor with something that exists in common
§ Labor theory looks at the end itself – this person has mixed labor with the property and thus it should belong to them; more of a social justice theory
§ Pierson v. Post dissent
·         Disagrees with majority because majority rule reduces incentives to invest capital, time, labor, because if the fox can be taken away what’s the point?
White v. Samsung Electronics
Facts: Vanessa White who hosts Wheel of Fortune. Samsung used a robot to represent her on the wheel of fortune for an ad.
Rule: (1) D’s use of P’s identity (likeness, voice, but not limited to these), (2) appropriation of P’s name or likeness to D’s advantage, (3) lack of consent, and (4) resulting injury.
S was liable for using W’s “likeness.”
Utilitarian theory
Maximize social happiness theory is usually called the utilitarian theory
Utilitarian is more a means to an end theory
It creates incentive for people to do things that are good for society
Cited a lot in intellectual property casesWe want to get people to create things for the good of society;
we don’t really care about giving them the property because it’s just or fair, but it helps society; produce things that are a benefit to society
Utilitarian = justification for property rights
Pierson v. Post dissent
People will be more likely to hunt and kill foxes if the foxes can’t be taken away, and foxes are nuisances, so we want more dead foxes. Benefits society
Possession should be when /e hunter is within reach and has a reasonable prospect of catching /e fox
Dissent was Instrumentalism: come up w/ good working rule; used Utilitarian and Labor theories
White v. Samsung Electronics
Dissent: maj is overprotective; utilitarian theory – public needs to use these things; freedom of speech; protect her image just enough to give incentives to create an image.
Productive v. Unproductive use of land
Johnson v. M’Intosh
Marshall’s quote: allowing Native Americans to remain in possession of their lands would “leave the country a wilderness”
§ Utilitarian theory: produce things that are a benefit to society
§ Productive v. unproductive use of land. Supposedly Indians’ use of land isn’t productive cuz they don’t use it to farm, industrialize, etc.
o   Personality theory
§ Notion that you almost have a natural right in property that has some connection to you; personal connection
o   First Possession Theory
§ Right to capture – Property rights go to first possessor
·         Pierson v. Post
o   Majority rule: On unowned land, to get possession of animal, must have (1) unequivocal intention of appropriating the animal, (2) deprived the animal of its natural liberty, and (3)brought him within certain control. 
o   Formalism ruling: looked at old school attenuated precedents to decide that douche should get to keep fox
§ Prior appropriation (minority water rights rule) – common approach to allocating property rights in natural resources. But less common today.
·         Sipriano v. Great Spring Waters of America, Inc
o   Ensure Democracy theory
 
Publicity rights
White v. Samsung
What is property?
o   1) Right to transfer
§ Overview
·         Bundle of rights
·         Property rights are defined by government
·         Property rights are not absolute
·         Property rights can be divided
·         Propert rights evolve as law changes
§ Legal positivism v. natural law theory
·         Legal positivism: rights are created by the state and only exist so far as the state recognizes these right
·         Natural law theory = inherent rights
§ To whom can you transfer?
·         Johnson v. M’Intosh
o   Facts: Ct said Indians don’t have the right to sell their land to anyone. Only to US govt.
o   Bundle of rights: Indians had right to occupy, but not transfer or sell.
o   Also note Marshall’s quote: allowing Native Americans to remain in possession of their lands would “leave the country a wilderness”
§ Utilitarian theory: produce things that are a benefit to society
§ Productive v. unproductive use of land. Supposedly Indians’ use of land isn’t productive cuz they don’t use it to farm, industrialize, etc.
§ What can you transfer? Property interests in body parts. Where rights end
·         Moore v. Regents of UC
o   M’s cells were used by R to create new cell-line and make $; (sued under conversion) R won
o   Majority Rule: This is so highly regulated by statute that you haven’t shown to me that it should be property.
§ Legal positivist argument
o   Dissent: You haven’t shown that it shouldn’t be property!
§ Natural law argument
o   Pro hist
§ Conversion claim. How does court analyze? (1) P has to actually own the property, (2) D exercised subst dominion over the property (in this case that would be after the cells had been removed, (3) D interfered w/ Ps ownership or dominion over /e prop
o   Issue:
§ should we extend definition of conversion liability to include cells? NO
o   Reasoning
§

a traditional US pov
§ Spite fence doctrine
·         Sundowner, Inc. v. King
o   Bad past history, and D built a huge sign that was pointless and made to annoy P. P won.
o   “No property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor” Sundowner
o   Traditional rule: p. 71, “An otherwise useless structure for the sole purpose of injuring his neighbor”
§ it can have no other use and its sole purpose
o   Questions: is usefulness determined by an objective standard? Commercially reasonable?
§ Private Nuisance
·         Elements from Lynne
o   Substantial and unreas interference to enjoyment of the land.
§ For substantial it must be prop being interfered w/. Some interference must be accepted. 
§ Unreas harm look at gravity of harm from Ps perspective and utility
§ Prah v. Maretti
·         D’s house blocked sunlight that would have gone onto P’s solar panels.
·         Questions: Do you have right to air and sunlight? If so, what does that mean for the development of prop law and development of land. To what extent does the bundle of sticks notion have to change to work with society today?
·         Main issue: the court is trying to decide if this is a nuisance case, and court won’t decide whether or not Ds house is a nuisance
·         Rule:
o   3 reasons based on policy consideration that nuisance law of the past did not extend to say restriction of sunlight
§ Who would build big apt buildings if they were worried about casting shadows on other properties
·         But now we can expand nuisance liability to unreasonably restricting sunlight
·         Movement away from the three policy consideration
·         Diezs rule – Unreasonable use of the land by the D that cause an unreasonable harm to P is actionable under nuisance law
o   Ct is analogizing this to sunlight
·         Dissent
o   Certain properties are only zoned for business or private etc. much of private nuisance law is obsolete because there are zoning laws that take care of things
o   According to dissent: zoning laws already take care of these issues
·         Does it matter what percentage of the solar collector is affected? Yes because it affects balance of reas interests
o   4) Right to destroy