PROPERTY I. Eagle. Fall 2009.
1. Chapter One: The Concept of Property
a. Why recognize Property?
i. Five Theories of Prop
1. Property exists only to the extent that it is recognized by the government. This is called legal positivism.
2. Protect first possession
a. Explains how unowned things become owned on a first come, first served basis.
3. Encourage Labor
a. John Locke said that when someone mixes their labor with natural resources that were unowned, he acquired property rights in doing so.
b. This process raises value of resources too.
4. Maximize Social Happiness
a. Ownership gives someone the security they need to use their property effectively
b. Property is seen as an efficient method of allocating resources in order to maximize a facet of societal happiness: wealth
c. Property exists to ensure that all people can use their resources in a manner that maximizes economic value
5. Ensure Democracy
a. Owning property gives people the economic security necessary to make political decisions that serve the common good.
b. Not quite as important today, since most people gain economic security from their jobs, not farming their own land.
c. Still, a right to private property, free from governmental interference, is necessary for democracy to work.
6. Facilitate Personal Development
a. All other things being equal in a dispute, the party with a personhood claim to property should get special consideration because of the human attachment that can occur to things like a home, love letters, heirlooms, etc.
ii. Two Stories: The Fox and the Celebrity
1. Pierson v. Post
a. Post chased a fox down the beach. Pierson was aware of the chase and killed and took the fox anyway.
b. Rule: Mere pursuit or even wounding of an animal does not give one a legal right to it. Must capture or kill—reduce it to possession.
c. Competing Policies: In giving the fox to the hunter, we presumably encourage hunting of foxes. In giving the fox to the interloper, we are sticking to clear rules.
2. White v. Samsung Electronics America
a. The term “likeness” refers to a visual image not a vocal imitation.
b. The common law right of publicity cause of action may be pleaded by alleging
i. (1) the defendant’s use of the plaintiff’s identity;
ii. (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
iii. (3) lack of consent; and
iv. (4) resulting injury.
c. The right of publicity is not limited to the appropriation of name or likeness.
d. Factors relevant to a likelihood of confusion include:
i. (1) strength of the plaintiff’s mark;
ii. (2) relatedness of the goods;
iii. (3) similarity of the marks;
iv. (4) evidence of actual confusion;
v. (5) marketing channels used;
vi. (6) likely degree of purchaser care;
vii. (7) defendant’s intent in selecting the mark; and
viii. (8) likelihood of expansion of the product lines.
e. Competing Policies: We want to protect White’s right to her likeness, but also to encourage creativity.
3. White v. Samsung Electronics America (Dissent)
a. Creativity is impossible without a rich public domain.
b. Creativity grows by accretion; over protection stifles the creative forces it is supposed to protect.
c. Parody and mockery create a safety valve
iii. What is Property?
1. Rights among people concerning things
a. Most Common Sticks
i. Right to transfer (aka alienate)
1. The law restricts who can give what and how they can give it
ii. Right to exclude
iii. Right to use (and enjoy)
iv. Right to destroy
iv. Right to Transfer
1. Johnson v. M’Intosh
a. Can a title conveyed by Native Americans be recognized in Federal Courts? No.
b. Native Americans only had right of occupancy and could not give away the absolute title.
c. Discovery of land gave U.S. exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy in the natives.
d. Easement: right to enter onto property, whether the owner likes it or not
e. Who makes the rules? Obviously not the native Americans, even though they were subject to the rules
f. Reallocations are problematic and thus rare.
2. Moore v. Regents of the University of California
a. Cell line created was from human ingenuity, so the cell line was not the patient’s property
b. Cali Law limits patient’s property rights over cells removed
c. Should this be conversion? Reasons No:
i. Should not discourage D’s socially useful research
vii. Right to Destroy
1. Eyerman v. Mercantile Trust Co.
a. The owner of the home died and directed her executor to raze the home, sell the lot, and transfer the proceeds to the residuary of the estate.
b. The neighbors asserted that razing the home would adversely affect their property rights, violate the terms of the subdivision trust indenture, produce an actionable private nuisance, and was contrary to public policy.
c. The neighbors, the community as a whole, and the beneficiaries of testatrix’s estate would be severely injured should the provisions of the will be followed.
d. No benefits were present to balance against the injury.
e. The court held that to allow the condition in the will would be in violation of the public policy of Missouri.
f. Dead Hand Control: how far do we let a person’s hand reach from the grave to control things after death?
i. Public Policy says not far.
2. The Right to Destroy
a. The Scope of an owner’s right to destroy is unclear. Typically, the law will let you blow your stuff up, unless doing so would be harmful to society and thus against public policy.
i. Like with a Picasso—you can’t burn that kind of cultural treasure
2. Chapter Two: Owning Real Property
a. Real property consists of rights in land and things attached to the land such as buildings, whereas personal property consists of rights in movable things like watches and shoes.
b. Adverse Possession—“Who is acting more like an owner?”
i. Why we have it
1. Preventing frivolous claims: bars lawsuits based on stale, unreliable evidence and thus protects the occupant from frivolous claims
2. Correcting Title Defects: resolves problems in land conveyance by protecting the title of the person who actually occupies the land (think beach houses). Lengthy possession can serve as proof of title.
3. Encouraging Development: reallocates the title from the idle owner to the industrious squatter
4. Protecting Personhood: a thing that you have enjoyed and used for a long time takes root in your personhood and it hurts when it is taken away.
ii. Elements of Adverse Possession
a. Actual possession: claimant must use the property in the same manner that reasonable owner would
b. Exclusive possession: cannot share it with the owner or the public
Open and Notorious possession: A reasonable inspection by the owner could reveal that their land is being
