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Property I
University of Toledo School of Law
Chapman, Douglas K.

v    Possession, Ownership, and Transfer
Ø      Exclusion/Inclusion
§         Exclusion commonly thought to be the most important factor in property ownership. Inclusion is the right to access that which you own.
·         Jacques v. Steenberg. 1997. Steenberg delivered a mobile home and tracked across Jacques’ land, intentionally trespassing; no actual damage to land (nominal damages of $1 awarded), but punitive damages of 100,000 upheld. Society has a strong interest in deterring intentional trespassers.
·         State v. Shack. 1971. Trespassing charges brought against aid workers who sought to provide aid pursuant to federal laws (the EOA) to migrant workers overruled by court. The power to exclude is not an absolute right. A landowner does not have the right to exclude people from receiving government services to which they have a right. One should use his property so as not to injure the rights of others.
Ø      Acquisition by Capture. First in time rule. He who grabs it gets it.
§         Pierson v. Post. 1805. Post chased a fox on unowned land, and Pierson caught it and killed it. Court found that ownership must be defined by actual physical possession; a rule of ownership at first sight would lead to chaotic results. Caveat to the rule hints that had Post mortally wounded that beast during the pursuit, he would have gained ownership rights. Dissent thinks that the ruling will deter the socially beneficial activity of fox-hunting.
Ø      Possession and Escape of Fugitive Resources
·         Ratione soli; “The reason of the soil.” A kind of Constructive Possession. While wildlife (ferae naturae) is on the land, wildlife belongs to the owner of the land.
·         Ghen v. Rich. 1881.The tagged whale case. The role of maritime custom applies. Whales were harpooned and were tagged by harpooner, denoting ownership. Once tagged, the whale became property; ownership is vested in the harpooner. If the custom were not recognized here, the industry would cease. Court recognizes custom.
·         Keeble v. Hickeringill. England 1707. The duck-shooting pond case. D intentionally disrupted P’s enterprise by coming onto P’s land and chasing away the ducks. By scaring off the ducks, P is being deprived of the right to profit from his property. This ability to make a living is a kind of property right in itself. There would have been no problem if D had just set up his own duck-shooting pond next door; that would be in the public interest because it would have furthered the market economy and the gain of property as a whole.
·         The rule of increase. If you own the mare, you own the baby.
Ø      Physical Discovery and Conquest
§         Johnson v. M’Intosh. 1823. Ownership here defined by grabbing, getting, and keeping rule, rather than straight first in time rule. The fiction of property ownership has to start somewhere; the Court as a tool of colonialism, not of justice. Indians only had a right to occupancy; because they hadn’t worked the land, and had been driven from the land they did not own the land; because they did not own the land, they could not sell the land. “Discovery” by European nations, compounded by conquest of the land, gives Euros right to sell or buy the land. U.S. government power over property is absolute; property rights have been inherited through Euro discovery and perfected through American conquest and tilling of the soil. Note the Lockean ideal playing into this rule – the Indians did not “work the land;” they did not gain ownership rights. Note also that Indians’ occupancy here is not enough to vest ownership.
Ø      Acquisition by Creation
§         Lockean ideal. Labor at something, and improvement of something, may vest ownership rights. Work the land, own the land.
§         International News Service v. Associated Press. 1918. Quasi-property and the relativism of title. The relationship is borne out of the competitive business relationship between these two parties. This material is “owned” only in the context of this relationship. Within this relationship, INS’s actions have interfered with AP’s quasi-property; ie, their ability to profit from the selling of newspapers. The news itself, as a reflection of the history of the day, belongs to no one; the ability to publish it for profit is a kind of property. By copying news and reselling it, INS is attempting to reap what it has not sown. Another decision to protect fair competition and the market, like Keeble v. Hickeringill. A nod to industry.
§         Cheney v. Silk. 1929.Cheney makes silk patterns, they make too many to patent each one; Silk copies these patterns and sells them, undercutting Cheney’s pricing. Holds that INS is too specific to be applied here. Imitation is necessary to reduce the prices and prevent monopoly. To exclude others from the enjoyment of chattels is one thing. To prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power…which the congress allows only the Constitution to create. Another decision based on policy to shape the market for what is perceived to be the public benefit. A nod to lower prices.
§         Smith v. Chanel. 1968. Follows Cheney. Strong public interest in allowing Smith to sell knock-off Chanel because it creates a fair price and competition.
§         Patents, Copyrights, Trademarks. At bottom, the idea behind patents, copyrights, and trademarks is to grant a limited monopoly over the protected material – monopoly to promote creative activity, but limited in order to advance competition.”
·         Patents. Granted for useful and novel products and processes. Patents last 20 years from the date of their application.
·         Copyrights. Protects the expression of ideas (not the ideas themselves). Last from the moment they are set down until 70 years past the death of author.
·         Trademarks. Words and symbols indicating the source of a product or service; owners are protected against use of similar marks when such use would result in confusion. Trademarks last until they are abandoned.
§         VW v. Virtual Works, Inc. Virtual Works grabbed a website name that VW would want, and intended to profit from selling the name to VW. Legislature had enacted a cybersquatting law to protect fair competition. Bad faith admitted on part of Virtual Works made application of statutory law easy he

l. England 1945. Hannah was staying at Peel’s place during the war and found a broach that Peel did not know about. The court found for Hannah. A finder of personal property prevails over an owner of “real” property if owner of “real” property is not in prior possession of the personal property.
§         McAvoy v. Medina. P found some money on the table of D’s barber shop. Court finds for D. Distinction between lost & forgotten property. Although it is well-settled that the finder of lost property is its owner regardless of where it is found, this case is different b/c the property was not “lost” but “forgotten;” its being found by P in D’s shop gives P no property rights.
Ø     Adverse Possession
§         General PFC for adverse possession
·         Actual physical entry and exclusive possession that is
·         Open and notorious
·         Adverse and under a claim of right**
¨      Conn. Doctrine (majority): the intent of the adverse possessor is irrelevant
¨      Maine Doctrine (minority): aggressive intent is necessary to gaining title
·         Continuous for the statutory period
1. Running of the Statute of Limitations
a. Title by adverse possession results from the running of the statute of limitations for bringing claims for trespass to real property.
b. The statute of limitations begins to run when the adverse possessor enters and gains possession (i.e. when owner first could bring suit).
c. The statutory period varies among states from 5 to 21 years. The trend is toward shortening the statutory period.
2. Actual Entry and Exclusive Possession
a. Sufficient to put owner on notice of the fact and extent of the adverse possession.
b. Of a type that a true owner would typically make of a parcel.
c. Title is gained only as to land actually occupied and controlled, if adverse possessor enters with no “color of title” (a written instrument). But partial occupation may give rise to constructive adverse possession of the whole tract where possessor acts under “color of title” (i.e. holds a written instrument identifying the whole tract)
d. “Exclusive” means no sharing with the owner.
3. Open and Notorious Possession
a. Sufficiently apparent to put owner on notice that a trespass is occurring
b. Some states have specific statutory requirements for showing adverse possession (e.g. the New York statute in Van Valkenburgh v. Lutz)
4. Adverse (or “Hostile”) and under a Claim of Right (or “Claim of Title”)
a. Lacking owner’s permission
b. Relevance of state of mind and knowledge of the parties: