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Property I
University of Tennessee School of Law
Pulsinelli, Gary A.

Pulsinelli, Spring 2010
Property “That sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
Chapter 1. First Possession Page 3-17
a)     Nemo Det Quad Non Habet (Nemo Det) – One cannot give what one does not have. Benefits the initial owner
(1) What about money, cocaine, etc . . . Plank thinks it’s wrong to say that you cannot have property without the law. The idea is that you can have property that is illegal, it’s just not going to be very efficient. 
1.      Person who has the ownership of tangible property…people who are the strongest.
(b)   Exceptions- NATURE OF THE THING- money is a medium of exchange. (buyer-superior interest)
ii)    Entrusting: (judge and RSMT) says, “if individual transfers goods to a merchant who sells goods of that kind it’s called entrusting. The merchant now has power (not the right) to transfer whatever rights the entrustor had. Since the initial owner had title, the merchant now had the power (not right) to transfer title. [exception to nemo det)
(1) Initial owner has action for Conversion (wrongful use) or Replevin (you want the thing back).
b)     If title is silent about when possession takes place, then it passes at the time of
c)     Possession gives notice whereas a contract does not!
2)     Acquisition by Capture (Pg 35-50)
a)     1st person to capture a wild animal wins, but if a hunter chases animal across another’s land, owner of the land has superior interest in the animal. (Remember: It’s the capture, not just the pursuit required for interest).
b)     Externalities: Definition: an external effect, often unforeseen or unintended, accompanying a process or activity: to eliminate externalities such as air pollution through government regulation.
3)     Acquisition by Creation (Pg 51-59)
i)       Degree of Exclusivity
b)     Assertion: if you create something – it in that sense you are the first in time, then that something is yours to exploit b/c it’s the product of your efforts. The primary purpose is to reward labor, but when one’s labor is mixed with the labor or good of another – that’s when problems creep up
i)       International News Service (51): news agency has a quasi-property (similar to property but is not quite property)interest in the news it gathered and can prohibit competitors from disseminating the news until its commercial value has passed away. (Plank says this is really not good law)
c)     Cheney Brothers (55): Avoid monopoly and encourage competition, CL allows copying and imitation of ideas, as opposed to their expression. (Plank says good decision)
(1) Exceptions: the right of publicity. 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 against another’s using it for profit.
(2) In absence of some recognized right at common law, a man’s property is limited to the chattels which embody his intentions. Others may imitate these at their pleasure.
ii)    Statutes: Copyright, Trademark, and Patent laws have been enacted by congress to solve the dilemma of how much protection to give creativity. Intellectual property rights are limited by time. Moreover, copyright law includes a fair use exception and a right to parody. A person cannot copyright an idea, but can copyright the expression of it.   The idea is that we are creating property rights where there is no real property.
(a)    Trademarks- words and symbols indicating the source of a product or service; owners of marks are protected against use of similar marks by others when such use would cause confusion.
iii) Smith v. Channel (56): Allowed P to claim that its product was the same as the Chanel No. 5 perfume. Chanel had not patented their perfume formula—and were not using their name- NO property right there.
d)     Exploring the concept of public right v. the protection of the individual who created the product.
e)     Right to Include, Right to Exclude (Page 86-93)
(a)    Include (permit)- Exclude- (deny)
(b)   Tangible- Only have a right to exclude if there is some sort of legal thing saying you can I.E. Land!
ii)    Jacque v. Steenberg Homes (87): (landowner sought punitive damages after a developer delivered a mobile home across the landowner’s property w/o permission)
(1) Rule: Punitive damages may be imposed for intentional trespass to property. 
(2) The right to exclude is an important property right. we need to provide alternatives to self-help.
(a)    If people feel like their rights will not be protected, they will either not buy at all, or they will devote their money into protecting the property themselves.
(b)   Rights must be protected by the state in some way other than a nominal dollar or they mean nothing.
f)      State v. Shack (88): (Man entered property to give legal aid to farm workers.). (farmer called trespass)
(a)    You can’t control people who live on your property.
ii)    Rule: Property Rights may not be exercised so as to endanger the well-being of others. Necessity, private or public may justify entry upon the lands of another. The owner of the land here is trying to push costs on other people. This is an externality.
iii) The idea is that property rights allow you to exclude others, but this is not without limits.  
Chapter 2. Subsequent Possession (95-99) FINDERS KEEPERS!!
a)      Acquisition by Find – A finder has rights superior to everyone but the true owner.
i)        Exceptions:
b)      Armory (pg 96): Chimney Sweep finds a jewel and takes it to a jeweler to have it appraised and jewler steals it.. 
i)        Rule: The title of the finder is good as against the whole world but the true owner.
Page 97- #2 in orange.
ii)       Trover: CL money damages resulting from the D’s conversion to his own use of a chattel owned or possessed by P. The P waives his right to obtain the return of the chattel and insists that the D be subjected to a forced purchase of the chattel from him. 
iii)    Replevin: You want the thing back.
iv)    Bailment- A rightful possession of goods by a person (the bailee) who is not the owner.
v)      Social Goals of the Prior Possessor Rule: (1) protects an owner that cannot prove he is the true owner (2) protects individuals who entrust goods to others. Entrusting goods to others promotes social welfare. (you can entrust your clothes to the dry cleaner and not have to worry about getting them back) (3) Protects the expectations of prior possessors, who expect to prevail (4) promotes peaceable possession. If prior possessors did not prevail, individuals might begin to steal property, hoping that the law would protect them.
TRUE OWNER (prevails over) POSSESSOR (finder, or even a thief) (prevails over) SUBESEQUENT POSSESSOR
c)      Acquisition by Adverse Possession 122- – Statutory and Decisional Law- If within a number of years specified in the statute of limitations, the owner of the land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action in ejectment.
i)        Van Valkenburgh (115): Some states have statutes that require specific kinds of acts for A.P.
ii)      Lein: an interest that secures payment of a debt.   Person who has the lein under the statute finally gets to sell the property and get your money back- (goes first to pay off the debt…then it goes to the owner)-
d)     Note 1: (124) Requirements for Adverse Possession
i)        The specific elements of adverse possession differ across jurisdictions
(1)   Actual entry giving exclusive possession: actually acted in manner of an owner of the property
(2)   Open & Notorious: Engaged in visible acts of possession consistent w/ property at issue
(3)   Exclusive: Does not occupy land concurrent w/ the true owner or share poss’n in common w/ public.

er surrenders possession to the donee before the donor’s death YES
e)      Note 1 (165)
i)        Gift Inter Vivos: is made during the donor’s life when the donor is not under any threat of impending death. Ordinary Gift Once made, it is irrevocable. The donor cannot get the object back.
(1)   Intent to make transfer; Actual or constructive delivery; Acceptance
ii)      Gift Causa Mortis: is a gift made in contemplation of immediately approaching death. A gift causa mortis is revoked if the donor recovery from the illness that prompted the gift. Substitutes as a Will
(1)   They die so you really don’t know that they meant it.
(2)   Suicide is not been held as someone in imminent peril of death (jurisdictions are split on this one)
iii)    Gruen (166): (The elder Gruen gave Gruen (P) a painting but reserved a life estate for himself.)
iv)    Rule: A party may give a future interest in chattels as a gift while reserving a life estate in himself. This makes sense because the goal of property law is to promote alienability.
v)      A life estate is a PRESENT possessory interest
vi)    Remainder: When the life estate died, then the other person gets a present possessory interest. 
vii) Whether the maker intended the gift to have NO EFFECT until after the maker’s death, or whether he intended it to transfer SOME PRESENT INTEREST. 
You can change your will until you die.
Chapter 3. Possessory Estates
h.      Seisin
                                            i.            DEF: possession, of a particular kind and with peculiar consequences.
                                          ii.            Fee simple, fee tail, and life estate are all freehold estates
1.      Freeholder had Seisin
2.      Livery of Seisin
a)      Problem 1 (206): O conveys “to A for 99 years if A so long live.” What estate does A have? Who has seisin?
i)        You either have a life estate or a conditional term of years. Examine the language of the grant to determine what it could possibly do. **99 years is the next thing so it is given primary meaning with ** conditional (if A lives so long)- …we will say that it modifies the 99 years. 
2)      Words of Purchase- “to A and his heirs”- A=grantee- (“A”)
3)      Words of Limitation- “to A and his heirs”- Heirs do Not have an interest in the land, only after A’s Death
Primogeniture- First born child always gets the land.
Oà A for life, then heirs of B (C=oldest son of B)
            B dies—
            A dies—C will get the Fee Simple Absolute.
HEIRS: Not the same as children- 1) be dead and 2)be intestate. IF you have a will (testate)- you have devisees or legatees (Not Heirs) and heirs have to be alive when you die. NOTE: If A dies and you don’t know “who the heirs” are, then your problem is (you cannot transfer the fee simple absolute to someone else) because there is an interest for the heirs in there. 
Descendants- children, grandchildren, great-grandchildren- Children now ALL share equally
Collaterals: All other blood relatives that aren’t issues or ancestors. Brothers, sisters, parent’s brothers or sisters—no limit—No in laws, step-children, or space-
Escheat: goes to state when you die without heirs.