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

Property I Outline
Property – The legal relationship among people with regard to a thing, an idea à something tangible or intangible à A bundle of rights
                                                               i.      Can be a patent or copyright
                                                              ii.      6 primary property rights: (1) Possess; (2) Exclude; (3) Use; (4) Enjoy (Exploit or Develop); (5) Transfer; and (6) Destroy (Pneumonic – DUTEEP)
II.                  Acquisition by Discovery
a.       Rule – entails the sighting or ‘finding’ of unknown or unchartered territory
                                                               i.      The Doctrine of discovery is based on the principle of first in time/ first in right
b.       Johnson v. M’Intosh (1823)
                                                               i.      First in time, first in right principle doesn’t apply because in this case because the Indians didn’t own the property in the traditional European sense
                                                              ii.      Traditional view was that the Americans received title by discovery from the Europeans
                                                            iii.      Marshall claimed that Americans received title by conquest, which courts can’t deny
                                                            iv.      Locke’s view, which was embraced by Marshall in his decision, the Indian’s didn’t own the land because they moved around and didn’t make improvements to the land
                                                             v.      Indians had limited property rights and they can’t transfer their land to anyone but the federal government
III.               Acquisition by Capture
a.       Rule –a person who captures the resources is entitled to possession
                                                               i.      actual occupancy amounts to possession –
b.       Capture of Wild Animals
                                                               i.      If wild animals are captured (farae naturae), then they belong to the captor
                                                              ii.      Applied the capture rule – you have to reduce an animal farae naturae to your possession or actual occupancy to claim property rights over the animal (Pierson v. Post)
                                                            iii.      This applies to public lands (common grounds)
                                                            iv.      Rationale:
1.       Gives incentive for competition à wanted people to kill the fox
2.       Easier rule to administer than the previous rule of pursuit
                                                             v.      Exception to the Capture Rule à Custom
1.       Custom of a trade may dictate possessory rights prior to capture when it’s economically efficient
2.       Ex – When an animal is killed and left with the marks of the appropriate captors, then that is sufficient to claim ownership by capture (Ghen v. Rich)
c.        Wounded or Trapped Animals
                                                               i.      General Rule
1.       If an animal has been mortally wounded or trapped, the animal is treated as captured à if the animal is in the process of being trapped, then it has not been captured
                                                              ii.      Captor must use reasonable precautions against escape à must use an “escape proof” enclosure
                                                            iii.      This promotes competition à but desire to be “fair”
                                                            iv.      Interference By a Non-Competitor
1.       A competitor can interfere with capture, but a non-competitor can’t
a.       Ducks in pond case
                                                             v.      Landowner
1.       A landowner has constructive ownership over all wild animals on his property
d.       Constructive possession (ratione soli) – The owner of the land owns everything on the land – including the animals until they leave
e.        The Rule of Capture and Other “Fugitive” Resources
                                                               i.      Fugitive resource is a resource that wanders from place to place
                                                              ii.      Initially likened to farae naturae, but some courts later rejected this analogy
                                                            iii.      Hammonds– fugitive resources are no longer the resource of the initial person owning the resource because of the rule of capture
                                                            iv.      Courts vary in their application of the rule from region to region. Different rules are:
1.       Rule of Absolute Ownership
a.       The owner of the land owns everything below the soil and up to the sky
b.       Surface owner has the rights to the resources above and below the land
2.       Rule of Reasonable Use
3.       Rule of First in Time, or Prior Appropriation
4.       Riparian Rights
f.        Demsetz – Property Rights and Externalities
                                                               i.      Posited that property rights convey the right to benefit or harm oneself or others
                                                              ii.      Close relationship between property rights and externalities
                                                            iii.      Externality
1.       basic definition – an ambiguous concept that includes external costs, external benefits, and pecuniary (money) as well as nonpecuniary (non-money) externalities
2.       it’s only an externality if the person benefiting does not take it into account
3.       Demsetz theory was that new production functions led to property rights based on the need to internalize costs and benefits
IV.                Property in One’s Person
a.       Moore v. Regents of the University of California
                                                               i.      Moore sued for conversion of his spleen, which the court rejected because he didn’t maintain an ownership interest in his cells
1.       Policy rationale is that the court protected the research for public benefit and prevent the slippery slope of commodifying the human body
2.       Conversion – wrongful exercise of ownership rights.
                                                              ii.      Moore did have a case for either the failure to disclose their economic interest in his cells by failing to obtain consent or lack of fiduciary duty
                                                            iii.      Moore shows that you have limited property rights after parts of your body are removed
b.       State v. Shack
                                                               i.      Sends important message that property rights are not absolute
                                                              ii.      Policy reasons can exist for limiting a land owners property rights, specifically to exclude
                                                            iii.      When Tedesco invited the migrant workers onto his land, he lost the right to exclude government workers who are responsible for watching out for the rights of migrant workers
                                                            iv.      The government’s entry was privileged based on necessity, which was giving aid to migrant workers
                                                             v.      General rule – necessity, public or private, justifies entering the lands of another
c.        Jacques v. Steinberg
                                                               i.      You have the right to exclude people from you land
                                                              ii.      If one doesn’t honor your right to exclude, you are eligible for substantial punitive damages
d.       Transferability
                                                               i.      To have fully effective power to transfer, you must be able to both include and exclude
                                                              ii.      Free transferability of property rights is important when owning property
V.                  Acquisition by Find
a.       Rule – the finder of lost property has superior property rights against all others except the rightful owner (Armory)
b.       Policy rationale
                                                               i.      Want to get lost items back to their true owner
                                                              ii.      Prevent an endless series of seizures and reprisals
                                                            iii.      Reward the conduct of honest finders
c.        Wrongful Acquisition of Property

more time
a.       if O’s Disability is removed in year 8 of the SOL period, then it would ripen into ownership at year 21
b.       if owner becomes of sound mind in year 18, then will ripen into ownership in year 28
c.        if year 25 after adverse possession started – owner will have up to year 35 to bring cause of action
d.       if O’s disability is removed in year 35, the adverse possessor’s ownership will ripen into possession in year 45
e.        if a minor, then will get 10 years after the age of minority (disability has been removed)
f.        it’s only when you get closer to the 21 year SOL that the 10 year extension kicks in
g.        the owner with the disability has to have the disability at the time the adverse possession starts
* Gives owner 10 more years when the disability is removed. No protection if the owner’s disability starts after the adverse possession commences
4.       Trend in American law is that the SOL periods are getting shorter  – most provisions are accelerating the adverse possession period
                                                         viii.      State of Mind question
1.       What is the requisite state of mind of the adverse possessor?
a.       Objective standard – the state of mind of the adverse possessor is absolutely irrelevant so long as he is on the land without the permission of the owner
b.       Substantive standard – some states say there’s a state of mind that the adverse possessor must have made a legitimate mistake
c.        Third view – I know I’m a bad guy, I trespassed, I went on to the land with the intent to gain adverse possession – some states say this is the state of mind you need to have – you need to be a bad guy
2.       a and c have caused lots of problems in courts
3.       Majority of courts have come around to agree that they don’t care as long as the adverse possessor is on the land of the owner without permission of the owner – that satisfies the hostility requirement
4.       adverse possession operates only against present possessory interests only
                                                            ix.      Remedies
1.       if adverse possessor wins, the rightful owner loses cause of action
2.       adverse possessor rarely has to pay for what he gets
                                                             x.      Color of Title
1.       has been and is in possession under a reported conveyance
2.       adverse possessor has a document, even though it may be invalid (forged) or will, in some states having a color of title, even if invalid, strengthens the claim of title
                                                            xi.      Adjective Law (body of rules governing procedure and practice) – Look to:
1.       Burden of proof is on the adverse possessor to claim adverse possession
2.       Standard of proof is by a preponderance of the evidence (51%)
3.       Presumptions – how the court manages the evidence
                                                          xii.      Remedial Law
1.       remedy of the owner is to recover possession
2.       usually also to say that a possessor has superior property right
3.       Replevin actions – want to recover the chattel or land vis-à-vis the adverse possessor
                                                         xiii.      Tacking
1.       Use hypo on notebook paper from class
2.       allowed as long as there is privity between subsequent adverse possessors
privity – a relationship such as a sale or gift against a forcible removal. This is necessary to tack interests of adverse possessors together