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Property I
University of Pennsylvania School of Law
Parchomovsky, Gideon


I. Rule of Capture
A. First in Time is general principle.
B. Wild Animals (ferae naturae)
i Capture: Wild animals in nature are public property. One acquires rights in a wild animal when they take possession. Simple chase of the animal is not enough.(Pierson v. Post)
ii Trapping or wounding: trapping or mortally wounding an animal is enough to constitute constructive possession (Pierson v. Post)
(1) Majority rejects acquisition based on reasonable prospect of caching.
(2) Dissent (Livingstone): would grant fox to pursuer (Post).
iii But See: Custom: Courts may decide that a pre-existing custom (“iron holds whale”) should decide who has property in wild animals especially if 1) the rule is very specific to that industry (and hence won’t upset property regimes elsewhere) 2) works well 3) embraces an entire industry 4) indispensable to operation of industry (no need to wait till dead whale resurfaces) (Ghen v. Rich). Finder can only get finder’s fee.
(1) Two types of efficiencies:
(a) What’s good for the group/industry
(b) Overall society (i.e prevent overwhaling). When both are in conflict, overall society should prevail according to Parchomovsky.
(2) Why should law respect social norms?
(a) Pragmatic efficiency—if not broke, don’t fix it
(b) Information costs—social norms are often more accessible. Also, sometimes an industry will know best how to police itself
(c) Social norms are self-enforcing and low-cost
(d) The update and enforce themselves.
(3) Problems with social norms/customs
(a) Inherent prejudices; Difficult to change; Vague; No formal dispute resolution mechanism – sometimes can’t enforce; Occasionally not universal
iv Malicious Interference with Capture Prohibited: Malicious interference by non-competitor against person engaged in business of capturing wild animals is a cause for damages (Keeble v. Hickeringill)
(1) Keeble puts traps to catch ducks at his own pond. Hickeringill discharges gun nearby to chases fowl off. H liable for damages.
(2) Distinctions w/ Pierson v. Post
(a) Trade v. sport
(b) Constructive Possession (Keeble)
1. Birds are yours while they’re on your land.
(c) Interloping (Keeble) vs. Competing (Pierson). We encourage competition, but discourage thwarting.
v Capture and release: If wild animal captured and then released, the capturer no longer has right to it.
(1) exception: domesticated wild animals with a “habit of return” (animus revertendi)
(2) If the government/person reintroduces animals to a park, it has property rights in the animal but may be responsible for the animal’s attack on third person, especially while animal is on its way to the wild.
C. Popov v. Hayashi
i Popov grabs Bonds’ ball while stretching. Then a mob of fans jumped on him, knocked him down and ball rolled to Hayashi.
ii Pierson v. Post: no secure capture here; Custom: whoever keeps it in the end, but no malicious interference. Hayashi innocent though. Court sold ball and divided proceeds.
D. Oil and Gas
i Rule of Capture applies. Capture and release: As with wild animals, if oil or gas is captured and then returned to the soil for storage in an underground reservoir, then it once again becomes public property (the oil and gas become minerals ferae naturae). ( Hammonds v. Central Kentucky Natural Gas Co.)
(1) Criticism: this rule deprives proprietor of gas of the cheapest holding place. Overturned.
(2) Externalities: Rule led to excessive drilling, consumption, because storage was not permanent. -> tragedy of commons.
E. Water: types, issues and rights regimes.
i Ground water -> issues of appropriation and use
(1) Absolute rights – every owner is entitled to extract as much water as he wants from underneath his property, even if it adversely affects the ability of neighbors to extract water. Rare.
(2) Reasonable use – subject to other owners’ right.
(3) Relative Rights – allows every surface owner to withdraw a proportional amount based on % of the aquifer under his property.
ii Streams and lakes -> issues of appropriation and use;
iii Diffuse surface water (rain, snow, puddle or pond that appears on property when river overflows) -> disposal.
(a) Reasonable use rule (majority)
1. Liable for damages caused to neighbors for discharging water if it was done unreasonably. Creates balancing test
a. Value of activity or improvement
b. Gravity of harm
c. Alternative drainage scheme
d. Prevention costs by affected parties
(b) Natural flow doctrine – can drain water by using natural drainage taps (streams) on your property, but cannot change course of natural flow or power of the stream. Not liable for damage to neighbors. Rule for many years.
(c) Common enemy rule – dispose water however you like, neighbors must protect themselves. Legal certainty in disposition. No liability. New rule. Now limited – can’t deliberately cause avoidable harms or negligence.
iv East Coast Rule: Riparian owners (those with property next to stream) have right to “reasonable appropriation subject to the right of other riparian owners to do the same.” (Stratton V. Mt. Hermon Boy’s School)
(1) Con
(a) Informational costs—how do you know what neighbor needs
(b) Distorts lot allocation (“bowling alley” lots)
(c) A usufructory right—quasi ownership.
(d) Doesn’t maximize efficient use (i.e super fertile non riparian valley won’t have water carried to it)
1. Ignores relative efficiency of competing uses
2. In dry years may result in no use at all.
(e) High monitoring costs.
v West Coast Rule: water rights are vested according to principle of “priority of appropriation” in which the first riparian owner or a company with an easement up to the water can make beneficial use of the water source (even for non-riparian uses) acquires the right to use that much water forever. (see Coffin v. Left Hand Ditch Co)
(1) pro
(a) Increases certainty—facilitates commercial water uses in arid areas.
(2) con
(a) Monopoly
(b) Induces excessive initial appropriation and consumption
(c) Like East Coast, doesn’t consider relative efficiencies of competing uses.
(d) Discourages innovation – barrier to entry
F. Bodily Tissues
i Organs—no right to sell organs for profit (US Federal law)
(1) India study shows poor people who sell kidneys regret it and don’t become permanently richer. (mostly women)
ii Blood—can be sold on open market
iii Cells—No right to bodily cells uses for scientific & commercial research. But P is owed all information about what cells would be used for before he can give informed consent. (Moore v. Regents of the University of California)
(1) Majority: to allow market would (a) chill research (b) impede on legislature (c) hurt patients (d) would dramatically extend new law (there’s no precedent). Unlike right of publicity, these cells have same molecular function. (e) Cal statute regulates disposal of body waste.
(2) Concur: concerned about commodification of the human body and loss of human dignity
(3) Dissent: (a) patients not protected by informed consent (hard to prove b/c must show would not have otherwise consented) (b) fairness dictates patients get money (c) Cal code only prohibits sales of organs for transplants and therapy. (e) bundle of rights means don’t have a monolithic conception of property (f) not having a property tort means cause of action constrained against docs treating him, not subsequent users.

G. Other Factors in Ownership Analysis by Courts
i Utilitarianism
ii Fairness
iii Lockean theory of Labor

II. Personal Property
A. Acquisition
i Creation
ii Purchase
iii Finding
iv Gift
B. Law of accession
i What happens if someone takes and improves another’s property by mistake? This is accession.
ii Traditional rule: owner of the original materials has title to finished product unless finished product is radically different (i.e., grapes turned into wine)
iii Modern rule: If 1) disproportionate value is added to original materials by someone who acquired the materials in 2) good faith, original owner is entitled to merely the market value of the raw materials. (i.e. absentminded Van Gogh painted on his neighbor’s canvas)
(1) GOOD FAITH: must be in good faith. Don’t want to encourag

ure enjoyment
i Donor may present transfer of title, but reserve right of possession/enjoyment for duration of life (Gruen v. Gruen)
(1) The letters about a painting were a present transfer of a future interest (vested remainder) while the father kept a life estate.

A. Discovery—land traditionally enters possession of new individuals by discover (Johnson v. M’Intosh)
i Discoverer has pre-emptive option on land. If Native Americans refuse to sell, then government can take by conquest
ii Foundation of property regime in the United States. Can’t be undone with upsetting public order
(1) property rights fundamentally concerned with stability
B. Encroachments
i Defined as “unintentional trespass.”
ii Older rule—Any encroachment on property of another gives the offended property owner right to demand destruction of encroachment, even if encroachment is 1 3/8 inches below ground and it is hugely expensive to remove. (Pile v. Pedrick)
(1) Pros
(a) Lets parties figure out the real sum of damages in post-judgment negotiations.
(2) Cons
(a) prevents negotiation—give offended property owner monopoly power. Can charge encroacher rent up to the cost to removing encroachment.
(b) Warol Farnsworth “Do Parties to Nuisance Cases Bargain after Judgment?” – his survey of 20 cases show 0 deals b/c of enmity between parties.
iii Modern rule: A non-negligent “good-faith improver” who accidentally improves another person’s land can either purchase improved land or have to give it up to encroachee but be compensated for its market value. (Raab v. Casper)
(1) Court remands for findings of negligence, when improver failed to check property line even after owner’s warnings.
C. Trespass
i Rule: property owner has right to exclude others from using his property even for beneficial purpose. Negotiations failing not a justifications for intentional trespass on road: $100,000 award (Jacque v. Steenberg Homes, Inc)
(1) Exception: landlord farmer no right to exclude government agents or charities from coming to medical, legal or other aid of migrant workers lawfully living on farmer’s property. Worker has right to receive agency visitors and not be isolated; trespass statue wasn’t violated. This isn’t part of owner’s property bundle. (State V. Shack)
(2) Exception: under California constitution, no right to exclude political activists from property when political activists do not interfere with the property owner’s right of use and when the property owner holds out his property as a de-facto public space (Pruneyard Shopping Center v. Robbins)
ii Consent
(1) Once property owner grants consent, he can’t revoke it.
(2) But what if consent was secured fraudulently?
(a) Food Lion v. Capital Cities/ABC (4th Cir. 1999). Producer of tv show fabricated recommendation letters and background to get a job in order to record market’s unhygienic practices. Court found two trespasses: the initial entry and exceeding permission granted (by using cameras). The appellate court reduced Food Lion’s $5.5 million award to $2 noting the public policy interest.
(b) Desnick v. ABC (7th Cir. 1995). Surgeon v. Reporter. Posner ruled no trespass at all.

VI.Adverse Possession
i Elements of adverse possession
(1) Adverse possession must be actual
(a) Purpose
Want t