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Property I
Wayne State University Law School
Mogk, John E.

I.                    Attributes of Property
A.            Definition of Property
Real Property, Personal Property = Tangibles – Movables and Immovables
Intangibles – Intellectual Property (Inventions, Copyrights, Ideas)
3 bodies of property law – consensual (agreement between the parties), nuisance & negligence (tort law – law will enforce – no agreement between the parties), and governmental (zoning) – last two are not consensual. 
Property in a legal sense – (versus common language) refers to the right that an individual holds in the subject matter. This right is only enforceable if it is backed up by the power of the state (backed up by the courts). 
B.                 Limitation on Absolute Rights of the Landowner
State v. Shack (pg. 16)
Landowners rights are not absolute and so in this limited sphere – social service workers addressing problems at the federal and state level – operating with the support of public funding – entering on land for a limited purpose – we are going to conclude that the possessory right of the farmer – the law of NJ will not back up.
            C.            Finder may recover full value from one who deprives him of possession
Right of Possession of Personal Property – Armory v. Delamirie (pg. 95)
P, a chimney sweep’s boy, found a jewel in the course of his work and took it to D’s shop for appraisal. As a finder, P’s property right in the jewel entitles him to recover its full value from D, who received possession from P and new that P had found it. The finder of a jewel does not have absolute legal title but does have a property right against all but the true owner. 
When the sweep found the jewel did he have rights – only second to the true owner – this is called – possessory right. This is called involuntary bailment. True owner only has title and title is superior to possession. 
True owner still has title. Sweep’s right of possession is worth very little so when it sues the jeweler – can the true owner come along and sue for the full value as well? 
            D.            Objects Placed on the Land by Nature’s Forces
Goddard v. Winchell (pg. 85)
Rule: Any object placed on the soil by nature’s processes becomes part of the soil so that a subsequent taking by finder is wrongful. 
            E.            Property Rights vs. Individual Rights
                        Jones v. Alfred H. Mayer Co. (pg. 32)
P brought an action under 42 USCA 1982 alleging that D had refused to sell P a home in a St. Louis subdivision because P is black. §1982 – based on the granted power under 14th Amendment. Problem is no state shall deny equal protection of the law – the seller is a private individual not the state. Can’t read the act applying to private individuals – can’t be enforced – Congress does not have that right. 13th Amendment – base argument. This gives Congress the power – action of seller is discriminating against the buyers perpetuates slavery or involuntary servitude. 
Rule: Congress may proscribe a private person’s refusal to sell or rent property because of the other person’s race under the 13th Amendment – read broadly enough to apply to this situation and to enforce the act. This overrides the common law principles. 
F.                 Objects and Classifications of Property
Ad Coelum Theory – Edwards v. Sims (pg. 42)
P discovered and commercially exploited the Great Onyx Cave. Lee claimed that part of the cave ran under his land. Lee bro

pg. 69)
The Shelleys (Ds), who were black, purchased real estate that was subject to a restrictive racial covenant. The Kraemers (Ps) brought an action against the McGhees (Ds) to force divestiture of real property for violation of the covenant, which precluded “occupancy as owners or tenants…by people of the Negro or Mongolian Race.” 
In a companion case, McGhee v. Sipes, the Sipeses (Ps) brought an action against the McGhees (Ds) to enjoin violation of a covenant that provided “property shall not be used or occupied by any person or persons except those of the Caucasian race.” 
Rule: A racially restrictive private covenant included in a deed to land cannot by enforced in a state court. 
The covenant itself is not illegal, but because the state has to enforce, it brings in state action and therefore violates the 14th Amendment.
The Due Process Clause of the 14th Amendment would be violated if state action were allowed to frustrate this ownership. State action is found when state judicial machinery is used to enforce the private restrictive covenants. To allow these covenants to be enforced would allow the state to do indirectly what it is absolutely precluded from doing directly. 
            C.            Private Interests in Land
                        1.            Escheat and inheritance taxes
                                    In re O’Connor’s Estate (pg. 195)