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

Why Recognize Property (1-25)
09 February 2015             16:07
Key to property is the rights we attach to the property including rights to exclude Five (5) Theories (progressively more stringent or limiting of rights)
a.    1st Possession / Rule of Capture
i.    First-in-time system
3 Basic features for Property Rights
Unowned things become property simply because owner is the first person to take possession
1.    Universality
Does not leave anything for anyone else; unlike Locke proviso
a.    All valuable, scarce resources
b.    Labor Theory
owned by someone
ii. iii. iv.
John Locke- mix labor to unowned resource to make it yours
Increased moral claim
Helps prevent free rider problem
New Frontier is Intellectual Property which is going over same issues as early colonial America.
b.    Example: Cows are sacred in
India, thus has a smaller cow market because they have no commercial purpose
v.   Fails to draw line between property law and system
2.    Exclusivity
Lockes Proviso- keeping only as much as you can use and leaving some for others
a.    If an owner is not able to
b.    Does not apply to 1st Possession which does not have proviso
exclude others they have no
Used with copyrights and other newly-created property
incentive to improve the
c.    Utilitarian Theory (Maximize Societal Happiness)
No natural right like 1st Possession or Labor
Provides incentive to invest in activity that had productive purpose of land
Looks for overall social benefit
b.   Example: Farmer sows wheat
and neighbor harvests it with no repercussions
Only gives enough to provide social benefit
3.    Transferability
1)    No free riders
2)    Avoid rights that are too broad
a.   Cannot sell or transfer
property, locked in or stuck
v.   Measured in dollars
b.    Ensure Democracy
i.    Popular around Revolutionary War
1)    Only property owners mattered & tenants could be forced to vote in favor of property owners
Encouraged democracy by ensuring property rights because not beholden to rich or government
c.     Facilitate Personal Development
Allows creative expression and personal development
More popular in Europe
In order to achieve personal development one has to leave property
Questions asked by Prof.
d.   Pierson v. Post
·    Post problems 1–4 on page 14.
ii. iii. iv.
First US case of 1st possession with some Locke and a bit of Utilitarian
Question of law: Where do you draw property lines? Who owns the fox?
Post was chasing a fox when Pierson killed it, with full knowledge that other was chasing
Since fox was killed on public land argument is over who owns the property. Big argument of philosophers but decide 1st possessor wins
Holding: Needs appropriate intent and actual seizure is not indispensable, requires that depriving the animal of its natural liberty and rendering escape impossible
Courts reasoning where on the line to make the rule
Never heard or
Restrict            Bodily
Seen a fox
liberty        Possession
I.   White v. Samsung (two cases; one CA state statute and one CA Common Law)
Right to Transfer (25-48)
15 February 2015     19:03
I.    Right to Transfer
·    Right of Publicity problems 2–3 on page 25
·    Moore problems 1–2 on pg. 47
a.    Exceptions
ii. iii. iv.
Fraud Minor
Sale on credit Dishonored checks
b.    Johnson v. M'Intosh
i.    Need to outline
c.    Moore v. Regents
ii. iii. iv.
Issue: Right to your own body once tissue removed? Exercise control over own chattel
Once you lose control over own body parts 3 part test
1)    Intentional exercise control over chattel
2)    Actual ownership or right of cells
3)    Maintain ownership after surgery
4)    Dr acted improperly
d.    11 Named rights in the bundle
Right to Exclude; Right to Use (48-81)
15 February 2015        19:03
a.     Jacque v. Steenberg Home, Inc.
Natural rights violated
Punitive damages not for damage but violation of rights
b.     State v. Shack
ii. iii.
Hierarchy of rights
Ownership of real property does not include the right to bar access to gov't svc Human values can override individual property rights
a.     Health, welfare
Laws change with the times quoting Pierson v. Post
Title over real property cannot allow cannot allow dominion over workers on the land
c.     Prah v. Maretti
ii. iii. iv.
Should nuisance apply to sunlight? Utilitarian govt
Laws favoring private property development no longer a reality
a.     Within the bounds of local social norms
d.     Right to Use but not exclude
No other person Sundowner v. King
a.     Spite fence
b.     Cannot deny neighbor access to sunlight and air
c.     Productive use of land
Useless structures exempt from productive use if no useful purpose Cannot erect a fence for the sole purpose of annoying a neighbor
Nuisance elements pg 72
a.     Intentional
b.     Non-trespassory
c.     Unreasonable
i.     Gravity of the harm outweighs the utility of the actor's conduct
d.     Substantial interference
e.     Use and enjoyment of plaintiff's land
Concept of Property Page 11
Adverse Possession (95-132)
15 February 2015          19:03
I.    Two broad catagories
a.    Real Property
Rights in land
Things attached to land
b.    Personal Property
i.    Moveable items
Adverse Possession
a.    Test will be 10 years
b.    When dealing with adverse possession then add prescriptive easement!
Four Justifications for adverse possession pg 97
a.    Preventing frivolous claims
ii. iii.
Seen as special statute of limitations Provides occupancy of title Encourages the productivity of land
b.    Correcting title defec

reasons one of which Mr. Lutz had the chance to file and only claimed an easement.
State of Mind
a.   In most jurisdictions this is irrelevant but some do require either good faith or bad faith.
Fulkerson v. Van Buren The Arkansas Church case [Bad Faith] a.    Issue: Did the church meet all the elements for adverse possession?
b.    Outcome: No, because they did not show bad faith.
c.    Facts: Church moves in and makes improvements but can't show bad faith to screw the owner.
d.    The court finds that mistaken belief is not bad faith.
e.   The owner wins
Tioga Coal Co. v. Supermarkets General Corp. Pennsylvannia road case [Good Faith] a.    Issue: The Tioga coal company thought the road was the cities and not the supermarkets, can they still claim adverse possession?
b.    Outcome: Yes, the use for the Coal company for 21 years meets the def of hostile because the true owner did not eject the interloper.
c.    Mental state of the trespasser is implied because Tioga intended to keep the land
X.    Proving Adverse Possession
a.    Tacking
When the adverse possession spans two or more occupants that may meet the time period If the first occupier conveys the rights to the second occupier than can work
Howard v. Kunto, the mistake in survey; remedy title defects
a.   Issue: Is the property still belong to the occupier even though the title contains a technical error
b.    Outcome: The occupier has possession, through the use of tacking with the first possessor
c.    Facts: The owner of a lot down the lane had his land surveyed
d.    The surveyor found all the lots on the tract were off by 50 ft.
e.    The two neighbors conspired to claim title to the lot of land possessed by another.
f.   The possessor used tacking with the first owner to show he met the duration for adverse possession since he did not meet the terms without 'tacking' his length of possession to the first owners.
g.   Since the tacking was through 'privity' or contract the court found it was adequate, the court also thought it fair since the other two owners were trying to legally gain possession on a technical basis.
Oregon Adverse Possession
a.   Must meet all the elements
b.    For 10 years
c.    Honest belief they were the owner including in the vesting period
d.    Reasonable under the circumstances
e.    Continuous, reasonable mistaken belief
f.   Grazing of livestock is insufficient