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Property I
University of Pennsylvania School of Law
Ross, Richard J.

ACQUISITION BY CREATION
Primary purpose in recognizing this is to reward labor, NOT “if value, then right”
 
1.       General Rule: A person can acquire property by creating it.
 
2.       Rights in Intellectual Property
a.       Includes tm, c, pat, & may include property in one’s persona.
b.       The dilemma
1)       How can we nurture individual creativity & reward labor without going too far by creating monopolies & stifling creativity in others? Law of IP is a careful balance of which is protected, for how long. Solution = idea/expression dichotomy
c.        The common law
1)       Imitation of Ideas allowed
a)       To avoid monopoly & encourage competition, common law commonly allows copying & imitation of ideas (while protecting particular expression of those ideas.)
b)       Cheney Bros. v. Doris Silk Corp. – man’s property is limited to the chattels which embody his invention. Others may imitate at their pleasure…there is no property in an idea. Ct allowed rival textile company to copy the pattern of a silk company & sell it for cheap.
c)       Smith v. Chanel – Chanel was not protected by a knockoff purfume that claimed to be “as good as Chanel.” No copyright in the idea behind purfume. Trademark not harmed b/c there’s no consumer confusion.
2)       Quasi-Property interest under law of Unfair Competition
a)       To deny an inventor a property right in his idea might disincentivize his own creativity. One solution is to create a short-term quasi-property interest that will protect labor & investment under the law of unfair competition
b)       INS v. AP – AP sued INS for unfair competion for copying AP’s news stories before they ran in the papers. Ct held that news agencies have a quasi-property interest in news it gathers & can prohibit competitors from disseminating that news until its commercial value as news has passed.
3)       Property in One’s Persona
a)       A person’s right of publicity is an exception to the idea/expression dichotomy. A person may not use a celebrity’s name, likeness, voice, or signature for profit without the celebrity’s consent. The celebrity’s labor in creating a persona of value is protected.
b)       This interest is alienable & descendible.
c)       Bette Midler case – Midler won against D who made profit by deceiving customers into thinking she was singing in their ads. This is like palming off a trademark, almost.
 
3.       Rights in Body Parts
a.       Ct in Moore v. Regents said that a man did not have a property right in his cells after excision in sugury b/c no one intends to retain possession of his cells after their removal. The doctors who subsequently created the cell line from the cells acquired original ownership.
1)       The court refused to extend the definition of property to a person’s excised cells
a)       It would be against pubpol b/c incentives for research & innovation would be negative
b)       Leave it to the legislature to expand
c)       & property rights aren’t necessary to protect a patient during surgury – dr.’s duty enough
2)       The real question is not whether body parts can be treated as property (some can – hair, blood, sperm), but whether they should be saleable in the traditional market.
a)       MJ Radin says that the buying & selling of some things like body parts, blood, or infants can diminish intrinsic human dignity, so they should be nonsaleable (something that can’t be sold). This would still allow for gift-giving. 
b)       Marx = universal noncommodification, Radin = pluralist, Posner = complete commod.
C) ACQUISITION BY FIND
                The title of the finder is good as against the whole world but the true owner or prior possessor
 
Owner:
·       Holds the “title” to the property
·       Need not physically hold the object
·       Only true owner can transfer all sticks in bundle
·       Prevails over all
Possessor:
·       Physical control + the intent to exclude others
·       Similar to “capture
·       Can transfer a more limited number of sticks
·       Prevails over subsequent possessors
 
 
COAs involving personal property
·       Replevin – action for return of goods
·       Trover – action for $ damages in amt of good
COAs involving Real Property
·       Ejectment – action for possession of land
·       Trespass – action for $ damages
 
 
Relativity of Title: Owner > Prior Possessor > Subsequent possessors
 
1.       Prior Posessor v. Subsequent Possessors Rule
a.       A finder has rights superior to all but the true owner or prior posesser.
1)       Armory v. Delamirie – Chimney sweep finds a jewel & takes it to a jeweler to have it appraised. Jeweler refuses to give the jewel back to Sweep, saying that Sweep doesn’t own it. Ct says that Sweep is entitled to recover from the jeweler either the jewel or the full money value of the jewel b/c the prior possessor has the superior right.
 
b.       Rationale for favoring prior possessor > subsequent possessor
1)       Prior possession protects an owner who has no indicia of ownership to show. Though possession isn’t ownership, it is easier to prove than ownership & often provides evidence of who the owner might be.
2)       Entrusting goods to another is an efficient practice, facilitating purposes we want to encourage (eg, bailments). The only thing required to get your stuff back is to prove prior possession, which is easy.
3)       Legitimate expectations. Prior possessors expect to prevail over subsequent possessors.
4)       Protection of peacable possession is aimed at deterring breach of the peach
5)       Protecting a finder who reports the find rewards his honesty
6)       Protecting a finder rewards labor in returning a useful item to society.
 
c.        When the possessor’s a trespasser or thief:
1)       The rule still applies. 
2)       If A steals a jewel & hands it to B, who refuses to return it, B is still liable to A. B can’t question A’s right if B is merely a subsequent possessor.
3)       Rationale
a)       To rule in favor of B would not likely deter crime
b)       Avoids endless litigation where possessor has to prove they didn’t steal it.
 
d.       Possession definition
1)       To be a possessor, the finder must acquire physical control over the object & have an intent to assume dominion over it by excluding others
2)       Constructive Possession:
a)       A legal fiction that the court infers to treat a person as if he is in possession even though he is not, or he is unaware that he is. The owner or occupant of premises may constructively possess something on the premises of which he is unaware.
i.         Not used in Hannah v. Peel bc owner of premises had never taken possession
 
2.       Finder v. Owner of the Premises Rule, & The Lost-Mislaid-Abandonned Distinction
a.       In a case where the owner does not own the object in question: Often finder will find object & owner of premises will try to lay claim to it also. Owner claims to have constructive possession. 
b.       Who wins depends on circumstance & location:
1)       If finder is trespassing on owner’s premises,
a)       Owner of premises wins.
b)       Rationale: Discourage trespass
2)       If finderisan employee or agent of the owner of premises
a)       Cases usually hold that the employee cannot keep the object (used often in hotels)
i.         Rationale: Encourage the return of property to the rightful owner
ii.        Problem: If the guests never claim it, why should the duty to report preclude an employee-finder from getting it? We want to reward honesty – rewarding the reporting of a find may encourage a report, which is the first step in getting the property to owner
3)       If finderis on the premises for a limited purpose (ie, cleaning)
a)       It may be said that the owner gave permission to enter only for a limited purpose of cleaning, & owner is entitled to objects found.
4)       If objectis found under the soil, owner wins
a)       Rationale: The soil is part of the land itself
b)       Treasure Trove (money intentionally buried w/ intent to return) is a toss-up in the US
5)       If objectis found in private home or “personal space”
a)       Usually awarded to the owner of the premises
b)       Rationale: owner has an intent to exclude everyone except for limited specific purposes that do not include finding property. Also, owner has a strong expectation that everything in his home are his (even those he is unaware of – use constructive possession).
c)       Exception: Owner not in possession
i.         If the owner of the house has not moved into the house (has not made it his “personal space”), it has been held that the owner of the house is not in constructive possession of articles in the house that he is unaware of.
ii.        Hannah v. Peel – Peel owns large house for 2 years, never moves in, & its requisitioned by gov’t to quarter soldiers. Soldier finds a brooch in the house hidden on a window ledge. Soldier-finder prevails over Peel b/c Peel never moved into the house & took physical possession over it, so he never had prior possession (physical control + intent to exclude). So Hannah was a prior possessor & wins. This rule rewards the finder’s honesty.
6)       If object is found in a public place (ie, restaurant, shop)
a)       Courts have resolved the issue by using a lost-mislaid-abandonned distinction test
b)       Lost Property
i.         Property that the property owner accidentally & casually lost
ii.        Goes to the finder usually, not the owner of the premises
a.       Bridges v. Hawkesworth – Finder finds wallet on floor of shop. The wallet is lost property b/t its assumed it wasn’t intentionally placed on the floor, so Finder can keep it & will prevail over the owner
iii.      Rationale: its unlikely that the true owner would come back, so we give the item to the prior possessor – the finder.
c)       Mislaid Property
i.         Property that the property owner intentionally placed somewhere & forgot
ii.        Goes to the owner of the premises
a.       McAvoy v. Medina – Finder finds wallet on counter of shop. The wallet is mislaid property b/c from its position it is assumed that it was intentionally placed there & forgotten & that the true owner will come claim it. Owner keeps it & prevails over F.
iii.      Rationale: to facilitate return to true owner – its likely that the true owner will remember where she placed it & will return to the shop to claim it
a.       Some states have gotten rid of this distinction b/c of high administration costs in deciding if there was manipulability (its easy for finder to shove purse on ground & say it was lost instead of just mislaid)
d)       Abandonned Property
i.         Property that was intentionally placed & voluntarily relinquished w/ no intention to reclaim (ie, items in garbage can)
ii.        Goes to the finder, who will then become the “true owner”
a.       If multiple finders, rule of equitable division (sale at auction & split $)
b.       Ex: Barry Bonds baseball abandonned when hit, 2 fans catch, share value
D) ACQUISITION BY ADVERSE POSSESSION
                A means of creating title by long, uninterrupted possession of someone else’s land
 
1.       General Rule:
a.       If, within the state’s Statute of Limitations, owner fails to take legal action to eject possessor who claims to own adversely, owner is thereafter barred from bringing action in ejectment, his title is extinguished, & a new title vests in the AP by operation of law.
b.       Note again that the adverse possessor has priority over subsequent possessor & can evict them, but will not prevail against the true owner until SoL has run & all requirements are met.
 
2.       Adverse possession is a non-consensual transfer
a.       Can be used offensively (possessors suit for quiet title)
b.       Or defensively (in cases where the previous owner wants to eject the AP). 
 
3.       AP is dictated by:
a.       Statutes of limitations – fixes the time beyond which the owner of land can no longer bring a

ntee owners, only when actual entry has been made against all owners, & only on contiguous land.
c.        BOUNDARY DISPUTES B/T NEIGHBORS
1)       A mistakenly believes a strip of land along his boundary is his, & it turns out to be his neighbor’s.
a)       Objective Test – majority view. The mistake is not determinative; look at the actions.
b)       Maine Doctrine – minority view. If mistake & APer wouldn’t have claimed the land if he had known the mistake, he has no intention of claiming title & so there’s no hostility
i.         Sort of like the aggressive trespasser model.
c)       Agreements on Boundaries – boundary disputes can be resolved by other doctrines besides AP
i.         Doctrine of Agreed Boundaries: if there is uncertainty b/t neighbors as to true boundary, an oral agreement to settle it is enforceable—not as a conveyance (b/c that would violate SoF), but as a way of locating the boundary described in deeds
ii.        Acquiescence: long acquiescence, but perhaps shorter than the SoL needed for AP, is evidence of an agreement b/t the neighbors to fix the boundary line
iii.      Estoppel: If A indicates positively the location of a common boundary, & B relies on A’s representation, A is estopped from denying the validity of his representation. 
a.       Ex: Humphrey v. Futter, where A & B set line & A adhered to it. B’s successors in interest are estopped from asserting any other boundary.
d)       INNOCENT IMPROVER DOCTRINE – A erects a building or part of one on B’s property, thinking its his own land. When B discovers ths mistake, the encroachment has not existed for the SoL, so A is not an APer.
i.         Common law: B has the right to force A to remove the encroachment
ii.        Modern law: a good faith & reasonable improver gets relief – ct may let A’s encroachment remain if A pays damages to B (SWITCH from property rules to liability rules!), may award building to B if B pays its value to A, may have B sell the land under building to A at fair market value.
a.       Rationale: prevents unjust enrichment, seen as more fair, preserves community by facilitating neighbor-to-neighbor transactions, economic efficiency through liability rules
b.       Cons: its inconsistent – why do we reward innocent improvers who haven’t yet reached the SoL for AP while we don’t help reguar AP-hopefuls who haven’t reached the SoL? Creates incentives for neighbors to be lazy & not check out their boundaries before building.
c.        Ex: Sommerville v. Jacobs – garage extended 6 feet onto B’s property
iii.      Intentional encroachment is not rewarded.
 
4.       Continuous & Uninterrupted Possession for the length of the SoL
a.       Requires only the degree of occupancy & use that the average owner would make of the particular type of property. No break in the attitude of mind required for adverse use. Total continuity not required.
1)       Purpose: Give owner notice that possessor is claiming ownership
b.       Seasonal Use counts for land that would be used only seasonally (Nome v. Fagerstrom, Howard v. Kunto)
c.        Leaving on vacation w/ the intent to return does not destroy continuity.
d.       Sporadic Use does not count bc it doesn’t provide adequate notice, looks like abandonment
e.        Abandonment is the intentional relinquishment of possession, & destroys continuity. If APer returns, the SoL begins to run anew
1)       Keep straight Seasonal Use from Abandonment: consider if the APer intends to return – does the APer believe this is their vacation home that they are going to return to each year? Does the APer want to leave & not come back?
f.        “Tacking” by successive APers is allowed, if there is privity between the possessors (both APers must satisfy the other requirements though – thus, if A is not hostile & B is, no tacking).
1)       Howard v. Kunto, where A owns lot 1 but by mistake builds on adjoining lot 2 owned by O. 5 years later sells to B, giving B a deed to lot 1 & transferring physical possession to lot 2. B can tack A’s possession of lot 2 onto his own, acquires title after SoL runs.
2)       Ex: O owns X. In 1981, A enters adversely. 1994, A sells interest to B, who continues to hold adversely to O. 1998, B dies & interest is inherited by C, who takes possession & continues to hold adversely to O. SoL = 20 years. In 2001, C acquires title by AP à 13 from A + 4 from B + 3 from C = 20.
3)       Privity means that a possessor voluntarily transferred to a subsequent possessor either:
i.         privity of estate – interest in land –
ii.        or privity of possession – physical possession (in Howard v. Kunto there was only privity of possession, but court allowed tacking). 
b)       No privity if transfer was involuntary or came after a period of abandonment.
c)       POLICY:
In England no privity is requ