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

·         Moore v. Regents of University of California
o   What is Moore’s concern? Money
§  There’s no question in order to be treated there would be something extracted, researched, and he went for treatment to a research university
§  But for his body parts the research could not have occurred and he is not a partner in the economic gain of the doctor, hospital, university
o   Court will not recognize Moore’s ownership interest – contrary to public policy
§  Liable to conversion = runs contrary to public policy
§  Individuals do not have owner interest in body parts
o   Court says too many problems that would arise out of recognizing his continuing right to say conversion took place and allowing a right to relief
§  But second count – breach of fiduciary duty regarding failure to obtain informed consent through informed disclosure may be the basis for some kind of relief
·         3 Basic Attributes of Property (not absolute)
o   1. Right to exclude others
o   2. Right to transfer to others
o   3. Right to use it
·         State v. Shack
o   Right to exclude social workers is not one of property rights recognized or backed by the state/court
§  Violates public policy
o   Property rights are not absolute – only those that are recognized/backed up by the state
o   State often going to refuse to recognize when violative of public policy
o   Necessity to enter lands of another is going to be justified by public policy
o   Note – case like this – as long as employer not acting for own personal gain or to deprive workers to basic care – may regulate or bar entry (i.e. of other guests)
o   Migrant farmer takes a stick out of the landowner’s bundle of rights when he divides a space for them to live there – a real property right
§  The defendants invaded no possessory right of the farmer/employer
o   Doctrinal principal at work – the interest that you have in the subject matter is that which is recognized and backed up by the state
§  In this case they don’t back up the farmer as a matter of policy – their conduct is beyond the breach of the trespass statute
·         Jones v. Alfred H. Mayer Co.
o   Landmark civil rights case
o   Statute 42 U.S.C.A. § 1892 – Civil Rights Act – all citizens of the US shall have the same right as enjoyed by white citizens to inherit, purchase, lease, sell, hold, convey real and personal property
§  Are these words broad enough to use in case where buyer refusing offer purely on basis of discrimination for race
o   Does it extend to private discrimination or only state action – Issue
o   Court states legislative history is meant to address multi faceted problem of racial discrimination – meant to prevent all discrimination in sale or rental of property from African American
·         Edward v. Sims
o   Edward’s cave runs under the ground of (allegedly) Lee’s land
o   Lee exercises full control of the surface of his land, and theoretically should have full possession of everything from the land to the center of the earth and the heavens above it
o   Want to inspect the cave to survey whether it does go under the land of Lee
§  Edwards says that would cause irreparable harm to the property
o   Argument one – that there’s no jurisdiction and that the court has proceeded erroneously
o   Assuming the cave does go under the land of Lee and we discover that – can it be argued that Edwards has a right that could establish to possess or use the area that has been developed for public viewing?
§  Yes – dissent makes that emotional appeal – all this work and effort, even if it does go under the land of Lee – opening it up for viewing by the public, the efforts should be recognized in terms of establishing a right to continue to use this area for this purpose for which he has developed
o   Courts have concluded that right to possess from the center of the earth to the heavens doesn’t really reach – it’s as far as you can make practical use above the land – and that extinguishes by the height at which air traffic exists, it is a public policy limitation on the common law
§  Court’s concluded prior to there being a craft that could fly nobody envisioned this type of circumstance – but the argument here is that Lee can’t use this area is it’s separated by considerable amount of earth and subterranean fill – but it’s more likely that he would have use of the area below the ground than where the airplanes can fly
§  Court is not willing to extend same principle below ground than it does above
o   Court: Trial judge did not proceed erroneously by allowing surveyors to see if cave extended under neighbor’s land because if it is, Edwards is trespassing
o   If you have a case like this on the final – for such an inspection, must show a bonafide claim AND allege facts showing a necessity for that inspection of the adverse party’s property
§  Other party must be given fair opportunity to hearing
·         Johnson v. McIntosh
o   Parcel of land – two different issues:
§  Title, bundle of rights
o   Johnson and McIntosh
§  Johnson claims to have received title from the Indians
§  McIntosh claims to have received title from US Government
§  US Government claims to have received title from Great Britain
o   Law of United States as it relates to property it just so happens to be it is the law of Great Britain – this action is Johnson v. McIntosh but we have to ask ourselves from whence did these two parties derive title?
§  Johnson derives his title from the Indians
§  McIntosh derives title from US Government which came from Great Britain
§  Johnston takes no better title than he got from Indians – McIntosh takes no better title than he got from US
·         Johnson is standing in the shoes of the Indians – and McIntosh is standing in the shoes of Great Britain
§  This is actually the case of Indians v. Great Britain
·         Transferee takes no greater title than transferor
o   Foreign powers originally though there wasn’t much bounty looking west but soon found they were absolutely wrong
§  A lot to be had – and unfortunately early on they began to plunder one another’s ships
§  They all got together and determined there was more than enough to go around
§  Country that conquers the land gets sovereignty, control, ownership over the property – has control of all the property within the land
·         Using the sovereign property rights as they wish, can recognize or not the rights of the native peoples
o   It follows Native Americans only have right of occupancy – and the conquerors have title
§  License, according to Marshall, for Native Americans is revocable
·         Some might say that’s not what France is doing, etc. – but Marshall says these savages are kind of angry, and we can understand wanting to toss them off the land
§  Right of occupancy cannot be transferred except back to the federal government, but cannot be to the a private individual – therefore Johnson could take nothing from the Indians
§  Therefore McIntosh holds the title
o   Court: Native Americans did not have the right to convey title of the land b/c they only had an occupancy right
o   Principle that transferee takes no greater title than his/her transferor
o   Did not have right to eject him b/c he had title interest to prop
o   Only those recognized and backed up by the state –principle
·         Shelley v. Kramer (has been on every final)
o   14th amendment case – says government shall not deny equal protection of the laws
o   Shelley – deeds to the lots not permitted to be sold to African Americans
§  Very important case, nullifies private scheme of racial separation
o   Number of adjacent parties enter into agreement – a stick in the bundle of each participant to mutually enforce this covenant that attach to the bundle
o   When they want to sell the one parcel, the neighbors are enforcing it against them because they do want to sell the property to an African American
§  Once we get state action (enforcement from courts) we have a violation of 14th amendment
o   Supreme Court strikes down enforceability of this true property interest the neighbors entered into/will not recognize/back it up
o   Shelley says racial restrictive covenant violates 14th amendment – Equal protection
o   Court says though not local, state ordinance, act of legislation – racially restrictive covenants nonetheless require state action (zoning) to be enforced
§  State action provides basis for 14th amendment protection
o   Principle – racially restrictive covenants on private property are invalid under the 14th amendment because they require state action to be enforceable… in court
·         Goddard v. Winchell
o   This case subject of personal property in the context of the finding of personal property
§  Hoagland, a stranger, traces the aerolite to where it lands, comes upon the land of Goddard, finds the aerolite, sells it to Winchell for $100 and then Goddard sues Winchell

erest, creditors can reach half interest, either can seek partition
o   Only real distinction between joint tenants and tenancy in common is survivorship
§  Also if the four unities are not present you cannot have joint tenancy
·         In Re Estate of Michael
o   If at common law four unities present – presumption was joint tenancy
§  Changed in the United States (presumption is now tenancy in common)
o   Court holds there is a statutory presumption survivorship is not intended – has to be very clear indication survivorship was intended to overcome the presumption
§  Even though they use phrase with rights of survivorship that can be open to at least three interpretations and they used the words their heirs and assigns forever which normally indicates tenancy in common
o   Principle – statutory presumption toward creation of a tenancy in common with no rights of survivorship as opposed to a joint tenancy with rights of survivorship
·         Jackson v. O’Connell
o   Does conveyance of interest from one co-tenant to another when more than two joint tenants destroy entire joint tenancy or only as it applies to the interest later conveyed?
o   Four unities need to be present – unity of time, title, interest, possession to create joint tenancy
§  A conveys to B, C, D as joint tenants – B conveys interest to C – C’s original interest is a joint tenancy, and B’s interest, now held by C is as a tenant in common
§  C and D still have right of survivorship over their original undivided 1/3rd
o   When more than two joint tenants and one of them conveys interest to another co-tenant – that co-tenant/grantee holds that share as a tenant in common although he continues to hold his original share in joint tenancy with remaining co-tenants
·         Matter of Estate of Vadney
o   Despite preference for tenancy in common, may extrinsic evidence rebut the presumption such that unspecified co-tenancy may be deemed joint tenancy with rights of survivorship?
§  Yes – presumption may be overcome by clear and convincing evidence and extrinsic evidence is admissible – because we have evidence here it was a drafting error, attorney’s fault – the court will excuse that and it shows intent to create joint tenancy
o   Despite preference for tenancy in common, extrinsic evidence satisfying clear and convincing standard may rebut the presumption
·         Palmer v. Flint
o   Same sort of principal as Vadney – where evidence establishes clear intent to create joint tenancy with rights of survivorship the courts will enforce as such
·         People v. Nogarr (has never been on a final exam)
o   Is a mortgage on real property enforceable after death of cotenant in joint tenancy
o   Presumption of four unities – jurisdictional split – some consider mortgage to transfer title and some consider it a lien against the interest
§  If treated as transferring title – the court would say the joint tenancy is automatically severed
§  In CA – it is treated against lien against interest, expires with that interest, which expires at the joint tenant’s death
o   Nothing inequitable in holding lien on mortgager’s interest does not survive him after his death – they could have enforced it by foreclosure or sale prior to death and they didn’t do that – treated as expired at his death
o   Principle – where a mortgage is seen as a charge or lien upon mortgage’s interest as a joint tenant, the execution of the mortgage by one of the joint tenants does not operate to terminate the joint tenancy, rather the mortgage expires upon expiration of the interest which is at the joint tenant’s death