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Property I
University of Toledo School of Law
Cavalieri, Michelle

PROPERTY
CAVALIERI
FALL 2011
 
 
POLICY CONCERNS IN PROPERTY LAW
1.      LIBERTY
→Defined: freedom to do anything within the law with regards to owning property and using it
a.      What can you and can’t you do with your property?
i.                    Ex: I can own a dog, but I am not free to kill my dog
2.      EQUALITY AND REDISTRIBUTION
→Defined: these are questions about how much you are allowed to accumulate
a.      If you have a lot, can we take some away?
i.                    Should we use it for public purposes?
b.      The Constitution gives authority for gov’t to take your property
i.                    Under what circumstances could that happen?
3.      EFFICIENCY
→Defined: The law should seek the most economical way of operation
a.      What is efficient?
4.      FAIRNESS AND RESPONSIBILITY
→Defined: how one uses his land with respect to the effect on the surroundings
a.      The doctrine of ‘coming to the nuisance’
i.                    Person cannot recover if he purposefully moves to the area of the prob.
5.      ACCESS
→Defined: when landowner allows access to outsiders and then terminates access
a.      Law of easements: a person may use land indefinitely after certain time
6.      ADMINISTRABILITY
→Defined: when the law is easy to follow and clear/predictable outcomes
a.      This policy can come from all three branches of government
7.      JUDICIAL ECONOMY
→Defined: does the law make it easier for judges to resolve
a.      Courts can deal with problems quickly through administrable laws that are clear-cut answers to issues
***CUSTOM→ a universally agreed upon manner of doing a particular thing that remains static over time; Judges try not to elevate custom to law but it happens
 
 
 
 
 
 
 
I.                  INTRODUCTION TO PROPERTY FUNDAMENTALS
 
1.  First Possession→1st in Time
            A. ACQ. BY DISCOVERY:
                        i. Johnson v. M’Intosh: Indians never ‘actually’ owned the land so a sale                                                                 of land by an Indian to ∏ was considered invalid
                        ii. Locke’s Labor Mixing Theory: one must mix their labor and effort into                                                                the land for it to be considered ‘owned’, i.e., bldg cabins,                                                                            planting/harvesting, irrigation
            B. ACQ. BY CAPTURE:
                        i. Pierson v. Post: Post did not achieve occupancy b/c he did not actually                                                                           mortally wound/kill animal and capture it
                        Rule→ Mere pursuit of animal d/n give legal right to pursuer—must have                                                               control to possess
                        ii. Keeble v. Hickeringill: ∆ interfered with ∏ business by scaring ducks
                        POLICY→ Efficiency: court sees an interest in conducting a productive                                                                            business and when one interferes out of contempt, he will                                                                            generally be ruled against
a.       Constructive Possession: judge will modify the reality of the facts to fit the case dispositive facts and conform to policy
                        iii. More on the Rule of Capture: ‘animus revertendi’ is an animal that has                                                               habit of returning and considered owned by someone, i.e., sheep    
 
            C. ACQ. BY CREATION:
             INTELLECTUAL PROPERTY
                        i. INS v. AP: Is there a property right in the news?
                        Rule→ Property considered the right between the parties
                        POLICY→ Efficiency: encouraging productivity b/c of efforts to collect
                        ii. Cheney Bro. v. Doris Silk: Can ∆ copy Cheney’s design?
                        Rule → Learned Hand: property is limited to the chattels which embody                                                                the invention
                        iii. Smith v. Chanel: Can a rival company copy another’s product?
                        POLICY→ Court weighs Chanel’s private right against the public good
            PROPERTY IN ONE’S PERSONA
                        i. White v. Samsung: Is using a celebrity’s likeness a violation of rights?
                        Dissenting Opinion→ J. Kazinski: the broader you make property rights                                                                                         the more difficult for the good of society
            PROPERTY IN ONE’S PERSON
                        i. Moore v. Regents: Should conversion be extended?
                                    a. ANALYZE HOW COURTS THINK→ Dissenting opinions                                                                   tend to poke holes in the majority opinion reasoning
                                    b. BUNDLE OF RIGHTS→ If something is going to be named                                                                  ‘property’ the bundle of rights must be satisfied b/c prop. denotes a legal concl.
                        Rule→ One’s own tissue d/n count as personal property
                        Policy→ Court wants to minimize potential for black market sale of body                                                               parts and also minimize the risk to research that could result
                       
                        ii. Jacque v. Steenburg: Purposeful trespass of another’s land
                        Rule→ Private Landowners rights one of the most ‘essential sticks in the                                                                bundle of rights’
                        Policy→ Punitive damages are good to use to prevent ‘self-help remedies’
                                                           
            D. RIGHT TO EXCLUDE
                        i. State v. Shack: Are there exceptions to a private landowner excluding?
                        Rule→ Right to exclude is important but can be superseded by policy
                        Policy→ Fairness and Responsibility coupled with Access policies
 
2. Subsequent Possession→
            A. ACQUISITION BY FIND:
            LOST PROPERTY→FINDER TAKES
            MISLAID PROPERTY→LOCUS OWNER TAKES
            LOCUS OWNER→ Barber shop owner is considered ‘locus’ owner when a patron finds an item that has been mislaid in shop owner’s property
                        i. Armory v. Delamirie: ∏ claims ‘trover’ and gets $ damages for ∆’s                                                          conversion of his chattels
            Rule→ Finder has right to property against the whole world –but- the true owner
                        ii. McAvoy v. Medina
            Policy→ Courts want to promote honesty and integrity and assume the locus owner has the means to, and will exercise due diligence to find true owner
 
 
CIRCUMSTANCES
EXAMPLE
FINDER’S RIGHTS
LOST
Owner accidentally and causally parted with possession and does not know where to find property
O d/n notice that his watch has slipped off his wrist and landed on the street
Finder entitled to possession against all the world except the true owner (EXCEPT: if finder is a trespasser, employee, guest, or licensee, or if property is found in a private locus or buried, owner of locus gets possessory rights)
MISLAID
Owner intentionally placed property in the spot where it is found and thereafter forgot it
O lays his watch on the sink in a hotel room and forgets

table for tolling
7)      A.P. AGAINST GOVERNMENT: generally not applicable due to vast amounts of land owned by government
8)      DISABILITIES: person claiming land must have a disability or infancy at the time of the cause of action to have S.O.L. stopped
            C. ACQUISTION BY GIFT:
            ELEMENTS:
1)      DONATIVE INTENT: on part of donor to give gift NOW in the present tense
***Future gifts are NOT enforceable and deemed gratuitous***
2)      DELIVERY: Two Forms→
a.       CONSTRUCTIVE DELIVERY: handing over a key or object that will open access to subject matter of the gift (TRADITIONAL RULE)
***CAVEAT→ if item is absent or incapable of being moved, delivery                              can still be accomplished***
b.      SYMBOLIC DELIVERY: handing over something symbolic of the property given, i.e., a letter (MODERN RULE)
i.                    Newman Rules for Gifts:
1)      Causa Mortis Gift→ given at time of death or approaching death and can replace a will but held to a high stand. of proof (WILL IN MOST CASES BE INVALIDATED B/C THERE WERE DEFECTS IN DELIVERY)
a.       If you can actually deliver you must do it, if not you can constructively deliver it.
2)      Inter Vivos Gift→ gift handed over while donor still alive
3)      Spouse/Child Common-House Gifts→ donor must notify donee that gift has been made –and- both parties must behave consistent with the gift having been given
Ex: calling the piano ‘Ms. Julia’s Piano’
3)      ACCEPTANCE BY DONEE: donee must accept the gift if he/she wants it,                      BUT if no response is made, it is assumed the gift has been accepted
a.        Gruen v. Gruen: Father gives son a ‘life estate’ for a painting
b.      LIFE ESTATE: when a gift is given to another but held by the donee until the donor’s death, then it belongs to the donee in perpetuity
            **POLICY: court allowed symbolic delivery for EFFICIENCY reasons   
 
***POLICY INTEREST→Court may err on the side of JUSTICE & EQUITY and award the life estate to a widow if she is left with nothing after the death of her husband
 
 
 
CIRCUMSTANCES
EXAMPLE
ACTUAL PHYSICAL DELIVERY
 
Donor physically vests donee with possession of the item such that donee has dominion and control over it
 
X hands a pearl necklace to Y
CONSTRUCTIVE DELIVERY
 
Actual manual delivery is impracticable; donor surrenders the means of obtaining of possession and control
X, intending to give Y a two-ton safe and its contents, gives Y a slip of paper with the combination written on it
 
SYMBOLIC DELIVERY
 
Actual manual delivery is impracticable; donor hands over some object symbolic of the thing given
 
X executes a document stating that he is giving to Y a certain two-ton sculpture currently on to an art museum
DELIVERY THROUGH A
3RD PERSON
 
Donor instructs his agent to deliver a gift to donee
 
Donor delivers gift to agent of donee
X tells jewelry store (X’s agent) to deliver a pearl necklace to Y
 
X personally delivers a pearl necklace for Y to Y’s butler