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Property I
University of Toledo School of Law
Kennedy, Bruce M.

PROPERTY I – FALL 2011
PROFESSOR BRUCE KENNEDY
THE UNIVERSITY OF TOLEDO COLLEGE OF LAW
 
 
I. Property in General
A. Property as a bundle of rights concerning individuals and things; (not the things themselves)
1. Relationships among people with respect to things (rights and duties)
2. That is property to which the following label may be attached: “To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private citizen. Endorsed: The state”
B. Bundle of rights (none essential to propertyà can take one away and still have property)- what makes it property?
            1. Include/ Use
            2. Exclude
a. Exceptions: governmental services, police, medial help for people invited on property
                        3. Transfer
a. Gift, sale, devise (death transfer by will), or descent (death transfer without will)
b. Cannot transfer a better title than you have
                        4. Usfruct
a. Profit from using car—whoever owns the property owns the profit of the property
                        5. Compensation (if government takes/ uses it)
            C. These rights are exclusive but not absolute
                        1. They only belong to the owner, but there are limitations on them
                        2. Competing rights result in limitations
D. Theories regarding justification of property (blend of all of these)- who owns the property?
                        1. Occupation theory- first in time, first in right (Fox case)
2. Labor theory- becomes property by labor – any significant change in value of land reasonably construed as an improvement is one
                        3. Natural rights theory- ownership as an inherent human right
                        4. Utilitarian theory- private ownership maximizes social welfare
a. Law and economics approach—happiness is measured in dollars
b. Most prominent in U.S.
                        5. Liberty/civic republic- property necessary for democratic self-government
                        6. Personhood- property essential to the “full” individual
            E. Cannot transfer a better interest than you have
 
II. Acquisition by Capture/ Discovery
            A. Capture: a person who first captures resources is entitled to the resource
1. Original possession- taking possession of un-owned things is the only possible way to acquire ownership of them
2. Occupation theory
            a. Ferae naturae (wild animals)
                        i. Capture required because no one owns wild animals
                                    a. Pursuit alone doesn’t work
                                    b. Pursuit + wounding it doesn’t make something your property
c. Mortal wounding of wild animal (and capture virtually certain) and not abandoning pursuit may constitute possession
                                                ii. Trapping wild animal may constitute possession
a. Must use reasonable precautions against escape in order to constitute capture
 
b. Escaped wild animal is deemed to have returned to nature
iii.. Ferae naturae on private land  
1. Immovable animals permanently affixed to land can be owned (clams, mussels, oyster, etc.)
2. Doctrine of rationi soli
                        a. Owner has constructive possession of FN
                        b. If trespasser kills FN on private property, landowner takes
                        c. Ownership ends once animal leaves land
3. Wild animals on private land aren’t property of the landowner (still FN)
4. Right to exclude anyone from his land (landowner has exclusive right to kill FN on his land against the world by virtue of his ownership of the land)
iv. Character of property bends application of the rule
1. Dog, cat (domesticated; have habit or returning to owner’s property)
            a. still considered captor’s property no matter where it is
2. Elephant in Ottawa Hills (not native to area; assume they belong to someone)- outside of FN, considered personal property
                                                v. One in competition can interfere with another’s activity
                                                            1. school example
                                                vi. If other doesn’t want to capture the animal, then can’t interfere
                                                            1. Duck pond
                                                vii. If customs are reasonable, they can be used to establish capture
                                                            1. Ghen v. Rich
2. If one does al that is possible to do in order to make the animal his own, that would seem to be sufficient
viii. US government doesn’t own wild animals and cannot be held liable for damage done by wild animals
                                    b. Killing the fox turns it into personal property (chattel)
                                                i. Policy driven approach
                                                            1. Reward those who kill pests with ownership
2. Easier to know who killed fox first than to know who saw it first or who pursued it the longest
ii. Formalistic approach- look at what other courts/scholars have applied and what rule they have made
                                                            1. Possession through occupation is necessary
2. Have to have a level of occupation to have any sort of ownership interests
            B. Discovery: sighting or finding of unknown or uncharted territory
                        1. One can acquire original title through discovery plus possession
                        2. Derivative title
                        3. Custom and damage computation threads
                        4. Discovery of caves
                                    a. Belong to owner of land directly above
                                    b. Each surface owner entitled to share in profits made by owner of entrance
                        5. Discovery of oil, gas, other natural resources
                                    a. Rules of capture apply
                                    b. If negligent, then must pay damages to others
                        6. Rights in water
                                    a. Depends on the source of the water
                                    b. Ground water
                                                i. Rule of capture applied
                                                ii. Where water is scarce use reasonable use doctrine
                                    c. Surface water
                                                i. Can capture reasonably
                                                ii. Can expel it
                                    d. Streams and lakes and Riparian Rights
            C. Conquest- taking possession of territory thru force
                        1. Johnson v. M’Intosh
                        2. Native Americans had occupancy, not possession
                        3. US had possession/owned the land
                        4. Property can only descend from one sovereign
a. “Title to lands must be admitted to depend entirely on the law of the nation in which they live”
 
III. Acquisition by Creation
            A. Can acquire property by creating it
B. Accession
1. Doctrine of who owns when one adds labor or labor and new materials to chattel owner by another
2. If improver acted in good faithà chattel owner takes
3. If adds labor only, owner of material takes
a. Unless improver transforms original item into a fundamentally different article or greatly increases the value of the original item
            i. Then improver takes and pays FMV to original owner for clay
b. If grossly unjust for the chattel owner to appropriate the improver’s labor then the improver will get compensation for his labor
                        4. Adds labor and materials
                                    a. If materials owner by 2 then owner of principal materials takes 
C. Property in chattel/ intellectual property
1.  Common law gives original title in something you create (chattel), not in an idea or expression
2.  Want fair competition but not unfair competition
i. Distinction between public and competitors (AP case)
ii.  Quasi property- property right against some people but not all people
3. Right to imitate is allowed for competition and to avoid monopoly (silk scarves case)
            i. Policy- public benefit and free market place
4. No right to discourage competition through control of your name (Chanel perfume case)
5. Patents, copyrights, trademarks, and rights of publicity create a limited monopolyà promote creative activity but limited in order to advance competition
            C. Property in one’s person
1. Allowed to sell certain replenishable body parts
            a. Hair, blood, bone marrow, sperm
2. Can give organs but can’t sell them
3. Moore
            a. No ownership of cells after removal
            b. Policy- if owned excised cells then complications for research
4. Doctrine of accession- labor justification only applies when value of goods has been drastically physically transformed into something dramatically more valuable
5. Genetic material as property
            a. Options
                        i. Treat it as property
      

fact (borrow rake from neighbor)
3. Involuntary
a. Implied by law
b. Finding lost property, true owner doesn’t know who bailee is
D. Duties
                        1. Transfer of possession; no transfer of title
2. Duties of bailee- preserve chattel during bailment to specific degree of care and to return chattel to bailor upon demand
a. Duty to protect- sliding scale of liability depending on who benefits
                        i. Bailor benefits- gross negligence (ask to store car in garage)
                        ii. Mutual benefit- ordinary negligence (dry cleaning)
                        iii. Bailee benefits- slight negligence (neighbor borrows rake)
iv. Most states have adopted ordinary negligence standard (reasonable care) for all bailments
            b. Duty to redeliver
                        i. Voluntary= strict liability
                        ii. Involuntary
                                    1. Old case law- strict liability
                                    2. Progressive case law- negligence
E. Parking lot cases
            1. Park and lock (keep keys yourself)
                        a. Old cases- no bailment
                        b. New cases- bailment
            2. Attended lots (leave keys w/ attendant or guarded lot)
                        a. Baliment created
F. Not a bailment
                        1. Sale
                        2. Lease
                        3. Gift
            G. Analyzing a bailment problem
                        1. Does a bailment exist?
                                    a. Bailee’s actual control of the bailed chattel
                                    b. Bailee’s intent to possess the chattel
                        2. If so, is the chattel within the scope of the bailment?
                                    a. Hidden object
                                    b. Mistake in value
                        3. If so, which bailee duty is at issue?
                                    a. Duty to protect, and/or
                                    b. Duty to redeliver
4. If duty to protect- apply correct standard to care per benefit of bailment
5. If duty to redeliver- apply correct standard per voluntary or involuntary bailment
 
VI. Adverse possession- know ohio statute on adverse possession/ tolling tacking
A. Actual and exclusive
                        1. Actual
                                    a. Claimant must use property in the way the true owner would
i. Actual element starts clock, gives true owner a claim, defines the scope of the claim
                                    b. Minority- must cultivate, improve, substantially encluse land
                                    c. Can only claim land actually used
                                    d. Unless AP enters land under color of title
                                                i. Bad title/ incorrect document
                                                ii. Limited to whatever land deed describes
                                                iii. Have to meet AP requirements
                                                iv. Can claim all landà constructive possession
                        2. Exclusive
a. Adverse possessor doesn’t share possession with the true owner
b. Doesn’t share possession with the public
c. Exclusive as would characterize an owner’s normal use for such land
            B. Open and Notorious
                        1. Property must be used openly and visibly
                        2. Adverse possessor’s acts must constitute reasonable notice
                                    a.  Doesn’t need actual notice (generally)
b. Need actual notice for small encroachments (boundary disputes)