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Property I
University of Pennsylvania School of Law
Gordon, Sarah Barringer

I. Possession and the Initial Allocation of Property
A. General Introduction
1. Basics
Allocation of Resources: who owns property

Bundle of Rights: interests connected to property ownership; (1) possess (2) use (3) exclude (4) alienate

Scope of Entitlement: what owner can & can’t do

Types of Property: (1) Real Property: land & improvements on it; (2) Personal Property: movable or intangible resources (ex. Intellectual property)
2. Seven Realms of Legal Thought (1) Legal Realism (2) Expectation Theory (3) Federalism (4) Separation of Powers (5) Formalism (6) Instrumentalism (7) Positivism
Expectation Theory: if rule creates given widespread and widely accepted order & expectations, expectations have created norm of anticipation that rights and interests created by rule will be respected. Overturning expectations creates more harm than good

Federalism: sovereignty shared btwn fed. & state gov’ts rather than centralized

Formalism: strict adherence to legal rules, changes in law should come from legisl.

Instrumentalism: identify desired result, then form rules to get there “result-oriented jurispr..”

Legal Realism: from early 20th cent., focused on judges and lawyers creating rules/laws to serve own interests rather than distillation of abstract principles of justice like labor theory.
Counter-Majoritarian Difficulty: legls. Have more democratic legitimacy, probs arise from judicial review of laws (unelected judges overturn representative rules)

Positivism: all property flows from state; law separate from morality (Holmes); Traditional notions of sovereignty tied to territory; Power to allocate resources in government; Law & morality can’t be unified, laws will suit majority of people; Without property, no state and vice versa

Separation of Powers: division of gov’t into 3 distinct branches with own responsibilities
3. Four Theories on Property: (1) Labor (Locke) (2) Possession (Pierson) (3) Settled Expectations (4) Personhood
Labor Theory: labor makes possession, labor creates value (99/100ths); Example: Day laborers in England richer than landowners in America, work in àvalue out

Personhood: 3 main overlapping aspects of personhood, freedom, identity and contextuality; people have a connection to their environment, including property. See Radin below.

Possession: ownership restricted only to while property is being used; encourages self-inducement, investment & initiative; issues w/multiple people working same land and translating exact labor quantities into possession; ex. Pierson v. Post- classic case, mortal wounding of animal constitutes possession; Determined conversion of public to private property (labor of killing); If don’t make it firm, open floodgates of litigation

Settled Expectations: people already have notion of what they have, not good to disrupt it now, relates to positivism; ex. Johnson v. M’Intosh- Marshall uses failed Doc. of Disc. to back him up bc trying to encourage nonviolent use of land; Has to make big call that is unjust bc if he rules full rights to NA’s, then gov’t has nothing to rule over, no legitimacy, & overturns expectations set forth since Rev. War. Must preserve U.S.; Also incorporates Labor Theory: says NA’s just roam land, don’t work it and make it valuable. Marshall=Positivism; Increase pwr of fed gov’t relative to states and put NA’s solely under its protection/control

4. Property Tools
Alienate: sell real prop.

Conversion: unauthorized and wrongful exercise of dominion and control over another’s personal prop., to the exclusion of or inconsistent w/ the rights of the owner

Doctrine of Conquest: NA’s victim of conquest bc not incorporated into Euro pol. & legal systems

Doctrine of Discovery: title conferred to Euro pwr. that discovered, against all other Euro pwrs; Meant to discourage violence/fighting-doesn’t work, (i.e. French and Indian War)

Ejectment: action at common law to recover poss. of land, typical method for trying title of real prop.

Free rider: someone who reaps the benefits from others efforts w/o contributing to the efforts (Int’l News Service)

Indian Title: right to occupy subject to right of discoverer to assert full ownership title (Gov’t)

Possession: (1) intent to possess & (2) actual control/holding of property (occupancy)

Relativity of Title: title to kinds of prop. is not always absolute. Q becomes whether claimant would win against another particular person, not every poss. chall. Outcome depends on rel. (Int’l News Service)
5. Margaret Radin: Personality Theory-“Prop. and Personhood” & “Mkt Inalienab..”
Fungibles: goods identical w/others of same nature

Property Types: (A) Fungible: (1) expressly for exchange (2) can be exchanged (3) loss w/o trauma (4) external to pers.; (B) Personal: (1) intends to keep (2) can’t adequately replace (3) loss w/ trauma (4) internal to person; Both eventually cross (when enough is offered for certain things)

Three Aspects of Personhood: (1) Freedom: will, power of choice; (2) Identity: integrity & continuity of the self required for individuation; (3) Contextuality: sense of self in relation to other people and things in the world
Healthy Items: home, clothing, common law protection for prop., positive law of prop. contract, tort law—want to encourage this (tax rates and law do this)
Object fetishism: multiple homes, collectors, higher tax rates on private 2nd homes, progressive income tax, public subsidies—want to discourage this (tax rates and law do this)
Commodification: extending to everything would be a bad idea, some level of attachment—moral judgment as to what we should be attached to

Pierson v. Post: pursuit doesn’t constitute occupancy, mortal wounding does
· Π pursues fox, Δ kills it mid-pursuit, Π sues, claims right, Ct. rules in favor of Δ
· Dissent: settled by gamesmanship (pursuit would grant occupancy)

Johnson v. M’Intosh: discovery gives ult. title, NA’s can’t convey title bc only have occupancy rights
· Π claims bought land from NA (Piankeshaw), Δ claims bought land from U.S. Gov’t
· Marshal: rules land discovered by Britain, given to U.S., natives only have occupancy rights; Natives can’t give title bc U.S. has ult. Title, so rule for M’Intosh
· Principle: can’t sell more rights than you have

Associated Press v. International News Service: quasi-property rights in non-copyrighted material (relativity of title for AP)
· Π wants Δ restrained from publishing news it takes from Π for profit; Δ argues that once published, it is public knowledge and no prop rights; Ct. rules that Π has quasi-property rights against competitors like Δ-Relativity of Title Not quasi!
· Policy: news benefits society, must continue to create incentive to publish news, protecting against free riders unlike Pierson v. Post, prevent unfair competition by INS (moral arg.)
· Homes, DIS: prop rights source rather than result of value (Ct. creating right from value)
· Brandeis, DIS: legls. should be creating new laws/rights, not judiciary

Moore v. Regents of Univ. of Cal.: no prop. interest in tissue after it leaves the body
· Π was treated by Δ for hairy cell leukemia; Δ took Π’s cells and patented Mo. Cell line, going to make profit off of Π’s cells; Π claims conversion bc of prop. interest in own cells, ct. rules no title and no possession or intent after left his body, therefore no conversion; Π claims lack of informed consent-ct. rules in favor bc of potential for judgment impairment from ec. Interest.
· Policy: extension of conversion would really hurt medical research.
· Arabian (Con): legislature should be solving this problem
· Broussard (Dis): dec. simply bars Π from receiving any of the benefits from his cells (bad behavior)
· Mosk (Dis): individuals do have prop. right in own tissue & this is unjust enrichment
o Need to put time, place & manner restr. to protect little guy-lesser form of slavery already here
II. Abandonment, Adverse Possession, & Reliance
A. Abandonment
1. Blackstone, “Commentaries on the Laws of England”
Philosophy: Used for training in North America, became extremely popular; Argues people were destined to rule the world, property came out of necessity; At first, possession extended only to use, but eventually extended to substance (permanence); Property causes government, not the other way around.; Argues common law is the best system
2. Box Theory of Property Rights
a coelo usque ad centrum: “from the sky to the center” or “from heaven all the way to the center of the earth”; Rights of total ownership include complete dominion of boundaries of property in question
3. Lost, Mislaid, Abandoned Property, & Treasure Trove (Thief v. Bona Fide Purchaser)
Abandoned: owner has (1) relinquished prop. rights (abandoned) and (2) has no intent to possess.; Elements must be proven—poss. Given to finder (Willcox v. Stroup); Res derelictae: voluntarily abandoned w/intent for poss. to go to first pers. taking poss.

Lost: unintentionally and unknowingly (accidentally) misplaced; Possession given to finder unless true owner is located

Mislaid: intentionally placed somewhere and left (possibly intending to return later); Poss. given to owner of locus in quo unless true owner is located

Philosophy: give true owner best chance of recovering prop. –dictates who gets to keep it; Law favors possession absent a better claim to title (Willcox v. Stroup)

Treasure Trove: money embedded in soil intended to be recovered later (usually indications that owner has long since died); Poss. Given to finder; Regular objects embedded in soil, possession is given to landowner

Willcox v. Stroup: law favors giving title to those in possession absent a better claim to title
· Π claims that Confederate papers Δ found in step mother’s closet belong to S. Carolina.; Π failed to prove that papers were public prop. at time of creation; Ct. rules that prop. was abandoned, awarded to finder then passed down & found by π
· Policy: protects expectations of possessors, keeps peace, prevent flood of litigation
· Held: “possession is prima facie evidence of a legal title in the possessor”

Charrier v. Bell: abandonment doesn’t extend to burial goods
· Π finds NA burial ground on another’s land, gets vague permission from groundskeeper to excavate; Π claims Tunica NA’s abandoned burial goods, Box Theory gives landowners title-transfers to him
· Π wants title to ownership otherwise should recover for services under de in rem verso
o 5 elements: (1) must be enrichment, (2) must b

ox Theory)
A. Nuisance
1. Nuisance Tools
Nuisance: intentional activity by prop. owner that unreasonably interferes w/neighbor’s use & enjoyment of their property; Senses: usually involves 5 senses; Sic utere tuo ut alienam non laedes: use yours so as not to harm others
Private: unreasonable interference w/one or more neighboring prop. owners
Public: acts that interfere w/ general community interests or comfort of pub. @ large

Civil law rule: strict liability imposed on anyone who interferes w/natural flow of surface waters, and the result is the invasion of a neighbor’s interest in use and enjoyment of his land. (Armstrong)

Common enemy rule: each landowner has right to fend off surface water from own land w/o taking into account effect on other landowners, who also have right to protect themselves (Armstrong)

Reasonable use standard: some interferences are “reasonable,” and that must be toler. by neigh.-balance between common enemy and civil law rule (Armstrong v. Francis); Factors: (1) Amount of harm; (2) Foreseeability of harm; (3) Purpose or motive of actor; (4) Relation of action to greater social good

Spite fences: when fence erected purely out of spite and of no econ. Benefit to erecting party can be enjoined as a nuisance.

Defenses: (1) Extraordinarily sensitive use, (2) Coming to the nuisance & (3) “slept on rights”
Extraordinarily sensitive use: π’s use of land must be reasonable to claim nuisance, can’t be extraordinarily sensitive (may be denied relief)
Coming to the nuisance: π moves onto land next to existing source of interference; Considered in determining reasonableness of Δ’s conduct.; May impact damage calculations as well (purch. price reflects existence of nuisance)
Laches: form of estoppel for delay; Vigilantibus non dormientibus æquitas subvenit: equity aids the vigilant, not the sleeping ones; Opposing party “slept on its rights,” and no longer entitled to original claims; Not asserting rights in timely manner can result in barred by laches.

2. Theories
Coase Theorem: mutuality of harm; joint costs the result of adjacent ownership of land, rather than fault; Damnum absque injuria: a harm w/o legal remedy; Central claim: when no transaction costs, doesn’t matter what initial conditions are (chosen legal rule) b/c any rule will lead to efficient result; Private markets: efficient-cts. basing decisions on fault only create inefficiency

Cooter: doesn’t believe people can solve bargaining problem, doesn’t agree w/Coase; Central claim: human nature not to bargain to a just result unless coerced; Offer/asking problem: market val. may be lower than price owner wants to pay for parting w/ item

Criticisms of Coase: (1) Singer: efficiency function of initial dist. of wealth; those w/more wealth have more “votes”; ex. Individual’s utility counted equally; (2) Radin: commodification; certain kinds of resources shouldn’t be traded in mkt; (3) Hobbes theorem: people need the state/leviathan to get anything done; minimize inefficiency of mkt. transactions; Balance: must balance Coase w/ Hobbes

Calabresi & Melamed, “One View from the Cathedral”-Distributional Justice
Efficiency analysis: says nothing about who should pay for outcome
Lowest Cost Avoider: burden placed on party w/ best access to info. & highest incentives to make social cost-benefit analysis OR party that can avoid harm at lowest cost
Property: no state valuation of the resource, voluntary transaction only between willing buyer and seller, no state intervention
Liability: state valuation, entitlement may be destroyed if someone willing to pay to do so and state gives approval
Inalienability: state prevents transaction, so no transfer allowed b/c contrary to pub. policy
Big Problem: transaction costs; in prop. rules, have prob. of holdouts, not in liab. rules
Three Reasons for Entitlements: (1) Economic efficiency: minimize admin. costs of enforcement, use prop. rules, transactions sort out poor initial distribution; (2) Distributional Preferences: dist. of wealth and goods; (4) Other justice considerations
4 Rules: situations of entitlements between protagonist (P) and neighbor (N)
1. Prop Rule: E in N, injunction protects: P must pay to use E (Spite fences, Prah v. Maretti)