Property Law Outline
Seaman – Spring 2013
I. Theories of Property
A. First-in-Time Theory
§ How un-owned things came to be owned
§ First come, first served
B. Locke’s Theory
§ Locke: each person is entitled to property produced via their own labor
§ Encourages labor
§ Most things are already owned, except intellectual property
C. Utilitarian Theory
§ If ownership is protected, then owner is able to use property in a way that best serves the common good
D. Civic Republican Theory
§ Ensure democracy
E. Personhood Theory
§ Facilitate personal development
§ Each person has a close personal connection to tangible things which virtually become part of oneself – these rights merit special protection
II. Acquisition
A. Pierson v. Post – fox hunt, who has rights to fox? Actual corporal possession of animals except when they have been mortally wounded – then they cannot be intercepted.
§ All things being equal, the law tends to vest title in the first-in-time possessor
B. Popov v. Hiyashi – Must have intent to possess it and some degree of physical control over the object
§ Gray’s Rule: Full control is required for possession; actor must retain control of the ball after incidental contact with people and things
§ Equitable Division: Court decides that the ball must be sold and they split the profits
III. Bundle of Rights – property rights are defined by gov’t; they are not absolute; they can be divided; they evolve as the law changes
A. The Right to Transfer
§ Alienability – any owner may freely transfer any of her property to anyone; gov’t may impose limits on alienability as a matter of public policy
§ Johnson v. Mc’Intosh (1823) – Ct. held that Native Americans have right to occupy & use land & LIMITED rights to transfer property (can only transfer to US gov’t) but the gov’t holds title and can terminate their possession at any time
1. Reasons: Don’t want them to transfer to other countries, more potential buyers increases price
2. Legal Positivism – property rights exist bc there is a gov’t that recognizes them & grants some mechanism to enforce them
3. Chain of Title – succession of ownership
§ Moore v. Regents of University of CA (1991) – Ct. held the cell derived from Moore’s cells are not his property bc they are factually & legally distinct from the cells taken from Moore’s body; use of excised cells in medical research doesn’t amount to a conversion
1. There’s a difference btwn image and biological data
2. The product was not unique to an individual
B. The Right to Exclude
§ Trespass – any intentional, unprivileged entry
§ Restatement 2d Torts § 158
§ ∆ acts intentionally if he voluntarily enters onto the land – not necessary to prove that he had a subjective intent to trespass or that there was bad faith
§ An entry made under a PRIVILEGE is not a trespass
1. Consent – most common privilege
2. Necessity – privilege can arise from this
§ Jacque v. Steenberg Homes, Inc. (1997) – Ct. holds that nominal damages may support punitive damage award in intentional trespass to land.
1. Right to exclude means nothing unless it’s protected by the state
2. Actual harm occurs in every trespass
3. More than a nominal interest – private & societal interest
§ Why Prohibit Trespass?
1. May interfere with the efficient use of land
2. Exclusion maximizes economic power
§ State v. Shack (1971) – Non-owners have a right of access to property based on need or some other important social policy. Employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens (ppl were trying to provide migrant workers with med. services & legal assistance)
C. The Right to Use
§ Traditionally – landowner had absolute right to use his property in any way, as long as he did not harm the rights of others
§ Nuisance – common law doctrine; principal limitation on owner’s right to use
§ Utilitarian Perspective – owner of land in agricultural society knows best how to use it productively for the benefit of all, without any need for gov’t interference
§ Spite Fence Doctrine
1. Sundowner, Inc. v. King (1973) – Ct. holds that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor.
a. Some jdxs require malicious intent, some do not recognize the doctrine at all
§ Private Nuisance
1. Elements:
a. Intentional
b. Non-trespassory
c. Unreasonable – if gravity of the harm outweighs the actor’s conduct
d. Substantial interference with
e. The use and enjoyment of the π’s land
2. Prah v. Maretti (1982) – Issue was whether nuisance law was applicable as a theoretical matter to one neighbor constructing a house that infringes upon the other neighbor’s use of sunlight and ct. held that it was applicable under reasonable use doctrine.
IV. Adverse Possession
A. Elements of Adverse Possession
§ Actual Possession – physically use the land as a reasonable owner would based on its character, location, and nature
§ Exclusive Possession – cannot be shared with the owner or public in general
§ Open & Notorious Possession – visible & obvious possession; if there was reasonable inspection of the land, owner would become aware of adverse claim
§ “Adverse & Hostile” Possession –
§ Continuous Possession – Continuous as a reasonable owner’s would be given the character, location, & nature of the land
§ For the Statutory Period – ranges from 5-40 yrs (usually 10, 15, or 20 yrs)
1. Justifications for Adverse Possession:
a. Preventing Frivolous Claims
b. Correcting Title Defects
c. Encouraging Development
d. Protecting Personhood
2. Gurwit v. Kannatzer (1990) – Met all elements of adverse possession. Also mutual mistake by both parties bc they believed the disputed land belonged to Gurwit.
a. Actual Possession: gathering firewood, cutting timber, planted plots of land – these types of activities are considered actual possession of wild & undeveloped lands in most jdxs
b. Open & Notorious: did all those things in presence of passersby, acknowledged by all
c. Exclusive: didn’t share possession with anyone
d. Continuous: was continuous as land would allow; were not there everyday but sporadic uses of wild lands are usually deemed continuous
e. Hostile & Adverse: no trespassing & no hunting signs plus their intent to control & possess the land
f. Statutory Period: was 10 yrs, they possessed it or 20 yrs
3. Van Valkenburgh v. Lutz (1952) NY – Majority held that failed to establish adverse possession bc he didn’t meet the elements and he conceded that he knew the Van Valks owned the land in the 1st lawsuit.
a. NY Approach: Essential elements of proof being that either the premises are 1) protected by a substantial enclosure, or are 2) usually cultivated or improved. The adverse possessor must also have a claim of title to the land (good faith belief that the land was his)
b. Color of Title – deed, judgment, or another written doc. that is invalid for some reason. If adverse possessor holds color of title, he is deemed to be in constructive possession of land. (easier to meet adverse possession standards in many states when you have COT)
B. Adverse Possession & State of Mind
§ Good Faith – the possessor believe in good faith that they are the owner of the land
§ Bad Fait
Voidable Title – somebody who has possession and has purportedly had someone convey title to them (similar to color of title)
§ Intangible Property – doctrine of adverse possession applies to intangible property
§ Statute of Limitations Rules:
1. Common Law à SOL starts at time of the theft
2. Discovery Rule (modern trend) à SOL doesn’t start until owner discovers, or reasonably should have discovered, there is a cause of action
3. Demand and Refusal à SOL doesn’t start until rightful owner actually demands return of the property and that demand is refused
V. Mineral & Riparian Rights
A. Subsurface Rights
§ Chance v. BP Chemicals, Inc. (1966) – An owner’s property rights are not absolute and are contingent upon interference with the reasonable and foreseeable use of the property. Here, there claim of trespass was too speculative and indirect (that chemicals entered the subsurface below lands of other home owners).
1. Common Law – surface owner’s absolute title extends to the center of the earth.
2. Landowner has a right to exclude invasions only if the actually interfere with the owner’s reasonable and foreseeable use of the subsurface.
B. Water Law
§ 3 main approaches
1. Riparian System – assigns water rights to each landowner whose property adjoins a watercourse (usually eastern states)
a. Reasonable Use Doctrine – allows owner to take water for reasonable use on their land, but not to unreasonable interfere with the uses of other riparian owners
2. Prior Appropriation System – water rights are allocated to the first person to divert the water for beneficial use (location of owner’s land is irrelevant)
a. Ensures that an appropriator will not abuse water rights
b. Usually western states
3. Permit System – requires a permit for the diversion of surface water, so the gov’t effectively regulates the amount of water that may be withdrawn
§ Groundwater – 3 main approaches:
1. Reasonable Use Approach – dominant view, surface owner may use groundwater only for a reasonable use on the overlying land
2. Correlative Rights – surface owner is entitle to a proportional share of the groundwater beneath his land
3. Permit System – title to groundwater is vested in the state, so the surface owner can obtain rights only by securing a permit
§ Rule of Capture – owner could remove as much groundwater as he wished, even if it caused severe injury to his neighbors (English law)
1. Sipriano v. Great Spring Waters of America (1999) – Ct. found compelling reasons for groundwater use to be regulated, but this change should be made by the state legislature.
2. Negative Externalities – a cost that is not considered in the decision-making process
3. Tragedy of the Commons – shared ownership of a resource tends to result in the depletion of that resource; common response = gov’t regulation (can be difficult to enforce); another option = privatization à assign private ownership and that owner can assign sub-rights to others
