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Property I
University of Toledo School of Law
Cavalieri, Shelley

Professor Cavalieri – University of Toledo Law (Fall 2012)
I.                    Policy Themes
a.       Liberty: What you’re allowed to do or not to do with your stuff (freedoms, restrictions)
b.       Equality and Redistribution: How much can you accumulate; How much to keep; How much to give
c.        Efficiency: How can we use our stuff to be better off; using it the way it should be used; best use of land and time (Adverse Possession)
d.       Fairness and Responsibility:
e.        Access: Other people use and benefit from your stuff (FHA – giving access to handicaps)
f.        Judicial Economy: Easier for judge to rule on for next time – no ambiguity (knowing what is going to happen)
g.        Administrability: How can we make laws predictable and easier to follow – gives a foreseeable outcome (precedent)
II.                  Property Rights
a.         (1) Possess; (2) Exclude; (3) Use; (4) Enjoy (Exploit or Develop); (5) Transfer; and (6) Destroy (Pneumonic – DUTEEP)
III.                First Possession: Acquisition by Discovery, Capture, and Creation
a.       Acquisition by Discovery
                                                               i.      General Rule: The first in time to discover land in a new world has exclusive property rights, even as to the native people. This was agreed upon by European powers.
1.       Frequently accompanied by a landing and the symbolic taking of possession that gives rise to title that must be subsequently perfected within a reasonable time by setting in and making an effective occupation
2.       Note: The law has to reflect some notion of reality and history. Title is European created – this is not about logic but experience – the logical construct of the law is imposed on the history. If court had gone the other way, it would have undermined all claims of title given by U.S. government.
                                                             ii.      Labor Theory of Value (Locke’s Labor Mixing): Accession
1.       General rule: We want to recognize the value of the labor people invest into property. We want to encourage people to invest in productive labor.
2.       The Law of Accession comes into play when one person adds to the property of another.
a.       Tradition rule: person who owned original property is the owner, but if the improver changed it so much that it is a completely different thing, it belongs to the improver (grapes into wine).
b.      Modern rule: disproportionate value – if the value of the improvement is disproportionate to the value of the materials, improver gets it. It usually has to be done in good faith.
3.       This theory applied to Johnson v. M’Intosh: Native Americans didn’t put an adequate amount of labor into the land to perfect a “property” interest in the soil.
4.       Property confers and rests on power. Owners have a form of sovereignty over others because the sovereign state stands behind the owner’s assertion of right.
b.      Acquisition by Capture
                                                               i.      General rule: Property is acquired by actual capture or a mortal wounding (taking its liberty) – mere pursuit is not enough.
1.       Ferae naturae: wild animal (on unowned property) isn’t owned until captured
2.       Return to natural state: if animal escapes from possession, ownership right is extinguished
3.       Majority opinion is a clear rule: capture = title
4.       Dissent is a muddy principle: pursuit with reasonable prospect of success = title (constructive possession)
                                                             ii.      Ratione soli – owner of the land has constructive possession of wild animals on the land. Landowners are regarded as the prior possessors of any animals ferae naturae on their land, until the animals take off.
1.       This is a construct – a legal mechanism for determining ownership without actual possession. This enforces an owner’s real property rights and discourages trespass.
                                                            iii.      Custom and usage rule – court makes a decision about ownership based on the custom of the industry and whether a ruling would impair industry.
                                                           iv.      Fugitive resources: Oil, gas, or water found underground under property owned by more than one person.
1.       Traditional: This is like wild animals (ratione soli and the rule of capture). People own things on their property if they capture it.
a.       Realized this was a bad idea – it encourages people to pump as fast as you can; if you don’t get it someone else does. Leads to inefficient production and no conservation over the long term.
2.       Western states governed ground and surface water by first in time.
a.       First person who appropriates and puts it to reasonable and beneficial use has superior right to later people.
b.       Eastern states (more water) use riparian rights – each owner has right to use the resource subject to the rights of other owners.
                                                             v.      Externalities: Exist whenever someone makes a decision about how to use resources without taking full account of the effects of the decision. Externalities are a function of transaction costs and they encourage misallocation and inefficient use of property.
c.       Acquisition by Creation
                                                               i.      General rule: creator has exclusive rights to tangible property (chattels)
1.       Creator’s ownership rights in intellectual property may be uncertain unless protected by statute
2.       Quasi-property – property rights over intangibles with respect only to certain others, such as business competitors, but not to the general public (INS v. AP)
3.       Competition: creates a better deal for the consumers (Cheney Bros. v. Chanel)
                                                              ii.      Doctrine of Misappropriation
1.       When a plaintiff has by substantial investment created an intangible thing of value not protected by patent, copyright, or other intellectual property law, and the defendant appropriates the intangible at little cost so that the plaintiff is injured and plaintiff’s continued use of the intangible is jeopardized.
2.       Keep businesses from unfairly profiting from the labor of another. You can’t take something to “unfairly profit,” even if it is in the public domain. Want to encourage gathering news and keep it profitable.
3.       Copyrights
a.       Protects the expression of ideas, not the ideas themselves.
b.       It is a reward system and you want to provide incentive for people to keep creating new things. We’ll give you property rights so you can make money off of it in order to promote progress.
c.        Patents only last twenty years. Copyrights keep being extended.
4.       Smith v. Chanel
a.       Smith’s advertised product was the same as Chanel No. 5. Allowed to do so because there is a public benefit: imitation and competition = lower prices.
                                                            iii.      Property in One’s Persona
1.       Used to be all about privacy: Woman whose face was on a flour sack had to consent.
2.       Then it became more about the right to exploit one’s image for one’s own profit.
a.       Vanna White case: Computer image was produced based on her. It wasn’t her image but her character and concept. She has a property interest in her character.
                                                           iv.      Property in One’s Person
1.       Law of Accession: the addition of labor to a chattel of another person that, even without the other’s consent, so changes the chattel that its title is transferred to the laborer.
2.       The Right to Include and Exclude
a.       General rule: Property is a relationship among people that entitles owners to include (permit) and exclude use or possession of the property by others.
                                                                                                                                       i.      Privacy interests: In additions to property rights, there is a privacy and liberty interest at stake. Even though this is in an extreme situation, this is the law and you have the right to exclude people.
IV.                Subsequent Possession: Acquisition by Find, Adverse Possession, and Gift
a.       Acquisition by Find
                                                               i.      General rule: Finder has good title against everyone but the true owner.

                                                                                               ii.      The owner of the property should be put on notice by the use. You have to be able to know that there is a trespass. It isn’t fair to trigger the SoL clock if you don’t know about it or if there wasn’t a reason for you to know it.
                                                                                                                                    iii.      For small encroachments, actual notice to owner is required (Manillo v. Gorski).
f.        Continuous
                                                                                                                                       i.      If the owner reasserts his/her right to the property, then the SoL starts over. This use better informs the true owner.
                                                                                                                                      ii.      Continuous use is how the true owner would use the land under the circumstances.
g.       Why AP?
                                                                                                                                       i.      OW Holmes: Possessor has come to expect continued use and access and the true owner has fed that right by not ejecting.
                                                                                                                                      ii.      Economic: if the owner is not using the property, someone else should be allowed to. Property is there to be used productively. This is for the good of society.
1.       AP takes time. You have to do it for years. If someone makes productive use of property that would otherwise lie fallow, law says it is okay.
h.      Mistaken Boundaries (involving a building encroachment)
                                                                                                                                       i.      Objective Majority (Maine) view: possession is hostile so long as the possessor intends to claim the land as his/her own, even if he/she is unsure as to the location of the boundary.
                                                                                                                                      ii.      Subjective Minority (Connecticut) view: the possessor must actually know that he/she has crossed the boundary.
                                                                                                                                    iii.      Doctrine of Agreed Boundaries: if there is uncertainty between neighbors as to the true boundary line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time
                                                                                                                                    iv.      Doctrine of Acquiescence: long acquiescence is evidence of an agreement between the parties fixing the boundary line
                                                                                                                                     v.      Doctrine of Estoppel: comes into play when one neighbor makes representations about the location of a common boundary and the other neighbor then changes his/her position in reliance on the representation or conduct. The first neighbor is then estopped to deny the validity if his/her statements of acts.