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


Class Information:

· Subject: Property

· Semester: Spring 2014

· Professor: Priest, Eric

· Book: Sprankling & Coletta, Property: A Contemporary Approach, 2nd ed. 2012; ISBN 978-0314275547

I. Why Recognize Property?

Need a concept of the relationship b/t people and property for society to function.

Property Theories

Purpose is to give clues as to how policy makers determine whether something should be the subject of exclusive rights.

· Protect First Possession

o Frontiersperson / ideological view – not particularly logical or necessary approach.

· Encourage Labor (Locke)

o Anything you exerted labor on belongs to you:

§ Possession plus investment of time, ingenuity, or labor = a natural right to the property from these efforts – beyond the need for justification.

o Limit: Can’t just mix your labor w/ everything and claim everything – Locke’s Proviso.

· Utilitarian / Maximize Social Happiness

o Utilitarian Goals (most influential theory in the U.S.):

§ Incentivizing creation – w/e way is best.

· Give them license or rights or ownership.

§ Welfare of all citizens.

o Balancing exercise – providing incentives to people w/o impinging on society.

· Ensure Democracy (Civic Republicanism)

o Frees people to vote how they want – don’t have to vote in sympathy w/ their master.

o IP frontier – Need copyright law in democracy by allowing authors to sell work to public.

§ Alternative would be:

· Patronage – compromises artistic integrity

· Government – natural endowment for the arts

· Personhood Theory (Facilitate Personal Development)

o Property – once owned – takes on a bit of a person’s personality – Kant and Hegel.

o We humans need certain rights in property to flourish as individuals.

§ For personal fulfillment – not utilitarian purpose.

What are the sources of property?

· First possession or capture – Pierson v. Post

o Applies to rights existing in un-owned things.

· Creation – White v. Samsung.

o Law usually vests title in the person who created an entirely new thing.

When do property rights spring into being?

Merely pursuing an animal ≠ a right of possession.

Pierson v. Post (1805) [p. 8]

F: Pierson was an interloping fox killer. Lots of competing claims to that land but the court said there were none. Post, on horseback, w/ hounds, chasing a fox. Pierson snuck out and stole the kill.

I: Did the actions that Post had taken by getting his posse together, locating, and corralling a fox, cause a right of property to spring into being? – Where do you draw the line?


Captured a fox Pursued fox Took class on fox hunting Dreamed about a fox

H/R: No right of possession for Post from hunting. Must exercise dominion or control / capture or kill.

Majority: Rule is you must manifest unequivocal intention of appropriating the animal, deprive the animal of its natural liberty, or bring the animal w/in certain control.

Dissent: Property transfer occurs when hunter had a reasonable prospect of catching the fox.

Priest: Majority is too bright line – dissent is more open standard but harder to adjudicate.

How far should we go in protecting certain property interests?

Celebrities have a property right of publicity – can exclude use of their likeness.

White v. Samsung Electronics America, Inc. (1992) [p. 15]

F: ∆ ran ad for VCR depicting π’s likeness as a robot in the future. π sues for appropriation.

I: Appropriate of a person’s identity w/o consent invasion of a property right?

H: Violation of CL right of publicity.

R: This is a tort-esque claim. Right of publicity contains property elements – right to use/exclude transfer/license. This is immoral action on part of ∆ – natural law/personhood approach?

Dissent (Kozinski): Overprotecting property rights is as harmful as under-protecting them. Court draws the line too early here – protects π at expense of future creators and public at large. – Utilitarian

CL – Right of publicity elements:

1. ∆ uses π’s identity

2. Appropriation of π’s name/likeness

3. Lack of consent

4. Gain to ∆ and injury to π.

II. Property Rights

Property is a bundle of rights – not an absolute notion of owning or not owning.

· There are about 11 different property rights; ex.: exclude, destroy, transfer…

· Property rights are not absolute.

o Ex. You don’t have the absolute right to exclude someone from your land

§ – Maybe they’re running away from a maniac.

· Sometimes you need to chip away at some rights to make sure that we can all co-exist in a friendly, functional manner.

· Therefore, b/c property rights are not absolute/monolithic:

o Property rights are an infinitely divisible bundle of rights.

o Not all people’s property rights vis-à-vis (in relation to) one another, are the same.

o We can create property and we can fix problems w/ them.

§ Ex. Community rules.

Tragedy of the commons theories:

· Tragedy of the commons – No common property regime will be effective b/c individuals selfish needs will outdo community benefit.

o However, in certain small communities people can police themselves in certain circumstances.

· Tragedy of the anti-commons – When you privatize everything you lose efficiency.

Private property is important but you need some communal resources in order for that private property to function better for everyone.

A. The Right to Transfer

Alienability – The right to transfer property. [p.27]

· Market efficiency – makes sure that property is devoted to its most valuable use.

Scope/Restrictions on Alienation:

· Who can transfer?

o US gov’t is source of titles in US – Johnson.

· What can be transferred?

o Public policy limits.

o No right to transfer tissue – Moore.

· How can it be transferred?

o Avoiding fraud and uncertainty. – Statute of Frauds.

Property rights/laws are determined/created by the government.

Johnson v. M’Intosh (1823) [p.29]

F: Prospectors purchased land from Native-Americans. The US subsequently bought/sold the same land to Δ. π sued for an ejectment. The law was: only the government could acquire titles from the natives.

I: Can a title that is not recognized by the US be recognized?

H: ∆ owns the land. Native-Americans have no right to transfer – except to the US gov’t.

R: Chain of title begins with the US gov’t. Natives have rights, like possess and occupy, but not transfer.

Legal positivism argument – source of law is determinative; not merits – here the US gov’t is the source.

The sovereign makes the rules and the US gov’t is sovereign here.

No pr

C. The Right to Use

The right to use your property in any way you see fit. [p.68]

· Traditionally (Blackstone): You can do anything except damage another’s property

· Modern: You cannot infringe on others rights to enjoy their property.

Limits on the right to use:

· Spite Fence Doctrine (utilitarian):

o Property owner cannot erect a structure just for the purpose of injuring a neighbor.

§ You can’t use your property maliciously.

§ Utilitarian b/c if only purpose is to injure, land is not being put to its best use.

§ Narrow b/c any purpose other than injury = No offense.

· Court expanded in Sundowner.

· Nuisance Doctrine (broader limit):

o Property owner cannot “substantially and unreasonably” interfere w/ another’s exclusive use or enjoyment of their land.

o Arose to fill a loophole around trespass law – nonphysical harm. Ex. Pig farm; neon light.

· Statutory limitations: Municipal codes and zoning regulations.

No right to use for: malicious, non-useful, solely injurious purpose (Spite)

Sundowner, Inc. v. King (1973) [p.69]

F: Bushnell’s bring spite claim against ∆’s for building fence along competing hotel next door.

Δ argued it was a sign, not a spite fence. But Ad experts determined that it was an unreasonable sign – indicating that it was built maliciously.

H/R: Spite fence b/c it was built maliciously. Court expands spite rule by finding zero advertising value.

No right to use for: intentional, non trespassory, substantial and unreasonable interference (Nuisance)

Prah v. Maretti (1982) [p.73]

F: π wants injunction on ∆’s house construction which would interfere w/ π’s access to light; but ∆’s view of lake may be impeded by move.

I: Whether private nuisance doctrine protects property interest in access to light.

H/R: Yes, protected b/c non-aesthetic reasons are sought. We can apply the old law to this condition.

First possession theory – Prior appropriation of sunlight by π. Old policy was focused on productive use of land – allowing this claim would impede this policy. But new PP reasons – sunlight is increasingly significant; needed for energy; we don’t need to incentivize development anymore.

· Nuisance is a much more malleable standard than the bright-line rule of spite-fence doctrine

o The laws change w/ the times – Pierson v. Post

III. Owning Real Property

· Real property consists of rights in land and things attached to land. [p.95]

o As opposed to personal property – rights in movable items/intangible things.