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Property I
University of Toledo School of Law
Hopperton, Robert J.

      I.      What is Property?                                                                                                
a)     4 things in bundle of property rights
                                  i.      right to use
                                ii.      right to refuse
                              iii.      right to transfer
                              iv.      right to destroy
b)     Moore v. Regents of the Univ. of CA
                                  i.      when does, when should, the law define something as property, and what consequences, legal, social, economic, and moral, flow from that definition.
                                ii.      John Moore, in for spleen removal, follow up appts, cells removed, used for research without consent
                              iii.      Went to Supreme Ct. of CA after trial court sustained D’s demurrers, COA reversed   
1.       demurrer – yes we did it but so what? No body of law to say we can’t
                              iv.      two issues – property issue is conversion – whether Moore had property over his spleen once removed from his body; conversion is a tort that protects against ownership and possessory interests in personal property
                                v.      in order to prove conversion, Moore would have had to show possession or ownership
1.       possession – he had possession of it before the surgery, but not after. He did not expect to have possession of it after the surgery. Cannot claim possession
2.       ownership – he agreed to give it up, no ownership
                              vi.      SC ruled that not conversion- Moore wanted rights to patent in cell line because his spleen, ct feared everyone donating would want right to compensation
                            vii.      the Court has always tried to support “infant industry” – may have been what this court was doing
c)      Courts Of Equity
                                  i.      Seek injunctive relief, want something to stop instead of monetary compensation
                                ii.      Can only seek equitable remedy if remedy at law is inadequate; have to show that money is not enough
 II.      Acquisition of Property                                                                                       
a)     Primary Acquisition
                                  i.      Johnson and Graham’s Lessee v. M’Intosh, Sup. Ct. 1823 / pg69
1.       Piece of land in dispute – Johnson received land from Indians and M’Intosh from US gov’t – who’s land is it?
2.       Supreme Court agreed with lower cts, deed from US valid and not the deed from the Indians even though given first  
3.       Want land to be used productively and improved
4.       Doctrine of Discovery: you can claim what you find. Undeveloped = undiscovered
5.       Policy: economic and social happening is important and dominant view that is that if land is under utilized then the vast and valuable land is going to waste.
6.       Relativity of Title: what was decided in this case was that the def’s title was better than the pl’s. In a typical action to quiet title, a court determines which of the parties before it has superior title to the land in question.
b)     The Concept of “Capture”
                                  i.      Pierson v. Post, Sup. Ct. of NY, 1805 / pg94
1.       Post was using hunting dogs and going after fox, Pierson knew he was going after but killed and kept – did Post have property rights to fox because pursuing?
2.       Post won in lower court, Pierson appealed, said had occupancy of animal – we need occupancy to hold claim to the fox
3.       Pierson said that Post did not have any property rights over the fox, therefore did not have a cause for action
4.       Reversed judgment, taking of fox was no injury or damage for which a legal remedy can be applied
                                ii.      John Locke, Second Treatise of Gov’t, pg3
1.       property arises when a person mixes his labor with a material resource
2.       as a result of the mixing, the person “removes” the resource from its “common state” and becomes “bound” with it
                              iii.      Posner, Economic Analysis of Law, pg15
1.       legal protection of property rights has an important economic function – to create incentives to use resources efficiently
2.       Three criteria for an efficient system of property rights:
a.       universality: ideally, all resources should be owned, or ownable, by someone, except resources so plentiful that everybody can consume as much of them as he wants without reducing consumption by anyone else.
b.       exclusivity: needs careful qualification
c.       transferability: if a property right cannot be transferred, there is no way of shifting a resource from a less productive to a more productive use through voluntary exchange
                              iv.      Garrett Hardin, The Tragedy of the Commons, pg17
1.       Freedom in the commons bring ruin to all
2.       particular concept of private property – deters from exhausting the positive resources of the earth
c)      Water Rights
Especially in the last decade, water law and policy have shifted from a focus on human uses toward the inclusion of watershed and habitat protection in the balance.
                                  i.      Evans v. Merriweather; Sup. Ct. of Illinois, 1842, pg103
1.       original action was Merriweather v. Evans for obstructing and diverting a water course
2.       Evans built dam in branch causing all water to go to him during dry season for steam mill; Merriweather needed for life resources
3.       water has common ownership of people whose land goes through – riparian rights
4.       Rule: riparian owners each have an equal right to make a reasonable use of the waters, subject to the equal right of the other riparian proprietors likewise to make a reasonable use
5.       people will inherently overuse commons because don’t think of result, not solely responsible
                                ii.      Coffin v. Left Hand Ditch Co.; Sup Ct. of Colorado, 1882
1.       P claimed to be owner of water by appropriation and D owner of land lying on the margin. P made irrigation system and D took the damn down that diverted the water into P irrigation system. P sought for trespass and injunction to keep D of the creek.
2.       Rule – Appropriation: Water user who first puts to beneficial use acquires the 1st right to the water to the extent reasonable necessary to his use and he who requires it 2nd has 2nd right.
3.       Holding – Riparian system is inapplicable to Co. and court ruled the D are the wrong-doers
                              iii.      Water rights – summary
1.       very different rules throughout the country
2.       In East, we use riparian rights (English rule) – makes it difficult or impossible to sell the water separate from the land
3.       In West, prior appropriation rule; really a species of capture. CO seems to have started as riparian rights state, but changed. By the time they had enough white settlers, they figured out that prior app. didn’t work. Now we have land that has no access to water b/c the water rights have been sold. Default rule changed because the conditions of the area changed.
d)     Intellectual Property
                                  i.      Is an idea property? How about news?
1.       International News v. The Associated Press Sup. Ct, 1918; Supp21
a.       Issue: Is the news property?
b.       Quasi-property: Court declared the news property and not property at the same time. In the relation between the press and public, it’s not property. In relation between media companies, it’s property.
c.       Property in equity, but not in law.
d.       AP asked for a permanent injunction
e.       Injunctive relief granted, news is property until becomes common widespread property
f.        today, it is possible for newspapers to get a blanket copyright for each story
g.       basis of common law doctrine of misappropriation
2.       Downey v. General Food Co.
a.       P offered idea to Jello to market product as Wiggly and then DD later used “Mr. Wiggle” in marketing; sued for damages for misappropriation of an idea
b.       replied with an affirmative defense – yes called Mr. Wiggles but so what? Said created and invented the term before plaintiff suggested
c.       legal issue- was idea original and novel? An idea has to be both to be property!
d.       D had proof that idea wasn’t original and novel, P lost
e.       ideas are not property according to this case, but they can become property if they are original or novel- this is common law property claim
                                ii.      Trade secret law – state doctrines that protect against the misappropriation of certain confidential info.
1.       private intellectual property law; once a trade secret is disclosed, protection is lost
                              iii.      Copyright –broad range of literary and artistic expression, ideas are not copyrightable but the expression of them is
1.       work must be

b.       exception of “constructive possession”: adverse possessor who holds “color of title” (claim based on document that turns out to be defective) gains title to all land described in the deed, not just the land he actually possesses.
2.       Hostile and with a right of claim
a.       doesn’t require actual hostility, just hostile if occupier claims land as own
b.       must possess without express or implied permission from owner
3.       Open and notorious
a.       gives owner opportunity to detect adverse possessors
b.       adverse possessor must possess the land without express or implied permission of the true owner
4.       Exclusive
a.       must be exclusive of possessor over statutory period
b.       if owner exercises ownership rights, not exclusive
5.       Continuous for the statutory period
a.       must be continuous but not necessarily constant, but as an ordinary occupant
b.       tacking- doesn’t have to be by single claimant, successive occupiers can “tack” their periods together as long as some “privity” between them
                                v.      an adverse possessor gains “color of title” if purchased in good faith not knowing already owned, so all land on title not just that he possesses
                              vi.      to prevent, true owner should file suit for quiet title and to eject the claimant
                            vii.      some states have to pay taxes for statutory period
                          viii.      Tolling – some states have “tolled” or delayed the beginning of the period if the true owner is incapacitated when claimant first takes possession
a.       Infancy, imprisonment, insanity
§    max of 20 years for infancy and insanity
§    max 2 yrs for prison
§    can’t toll for mental illness if begins after occupied; also not tolled for successive disabilities
                              ix.      Statutory period – in most eastern states, 15-30 years; western states – 10 years or less
                                x.      states with shorter limitations periods typically also require the occupier to have paid the property taxes assessed and levied during the statutory period.
                              xi.      gov’t land not subject to adverse possession
                            xii.      Hostility, Open and Notorious and Tacking
1.       Mannillo v. Gorski, Sup. Ct. of NJ, 1969; pg84
a.       P seeking mandatory and prohibitory injunction against alleged trespass upon their land (steps encroaching) and D counterclaimed for declaratory judgment saying gained title to land by adverse possession
b.       Issue – Whether there was requisite hostile possession, need to have known and intended? No.
§    Maine Rule – It is not adverse possession if the possessor did not intend or know; If it was done by mistake then it is not adverse possession
§    Connecticut Rule – Persons intention is not an element for cause of action, it is more about the nature of the act
§    Court adopts Connecticut Rule
c.       Issue – Whether open and notorious possession? Court had problem.
d.       Rule – Can’t be hidden, visible and obvious and anyone who is paying attention could have seen it
§    Only where true owners has actual knowledge may it be said that the possession is open and notorious
e.       Holding – No presumption of knowledge arises from a minor encroachment along a common boundary therefore lacked open and notorious, no adverse possession. Remand to try the issue of actual knowledge of the P.
f.        Equity – Too much of a burden to take down the stairs; minor encroachment upon a common boundaries can be brought to a court of equity if: