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

Winter 2012
Introduction: Casebook pp. 2-3, 12-18, 27-42, 57-62 (1/10/2012)
I.              What Is Property?
a.       Introduction
                                                               i.      Property is neither an intangible or tangible thing, but a concept.
                                                             ii.      It is the legal relationship among people in regard to a physical res or an intangible subject such as a website or idea.
                                                            iii.      Therefore, property depends upon the enforcement mechanisms of the state.
b.      The Economic Theory of Property Rights
                                                               i.      Legal protection of property rights has an important economic function: to create incentives to use resources efficiently.
                                                             ii.      The criteria of an efficient system of property rights:
1.       Universality: All resources should be owned, or ownable, by someone.
2.       Exclusivity:
a.       There are intermediate stages of exclusivity.
b.      The more exclusive the property right, the greater the incentive to invest the right amount of resources in development of the property.
3.       Transferability:
a.       Mechanism which can induce the transfer of rights in property to someone who can work it more productively.
b.      Through succession of transfer, resources are shifted to their highest valued, most productive uses and efficiency in the use of economic resources is maximized.
c.       Property Rights in Law and Economics
                                                               i.      Willingness to Pay
                                                             ii.      Ability to Pay
d.      Future Rights
e.      Moore v. Regents of the University of California
                                                               i.      Background
1.       Plaintiff Moore was treated by Defendant Golde at Defendant U.C.L.A. Medical Center for hairy-cell leukemia .
2.       This treatment included several instances where Defendant Golde removed blood, bone marrow and several other bodily substances.
3.       Defendant Golde eventually established a “cell line” from the matter taken from Plaintiff’s body.
4.       Thereafter, Defendant Regents of University of California applied for a patent on the cell line and named Defendants as inventors.
5.       Moore brought suit alleging conversion of his cells by the Defendants.
                                                             ii.      Discussion
1.       Whether the Plaintiff can retain an ownership interest in his cells such that he may prosecute the Defendants for conversion?
2.       To establish conversion, plaintiff must establish an actual interference with his ownership or right of possession.
3.       Where plaintiff neither has title to the property alleged to have been converted, nor possession, he cannot maintain action for conversion.
4.       The Court examined Plaintiff’s claim under the existing law and found that no judicial decision could be found to support the claim.
5.       Court found that statutory law drastically limits the continuing interest of a patient in excised tissue, and because of so, the subject matter of the patent cannot possibly belong to Plaintiff.
6.       The Court noted a California statute which ordered that any materials removed from patients be disposed of in a safe matter.
7.       The legislative intent was, according to the Court, to limit the patient’s ownership of any material excised in the course of medical treatment.
8.       The Court finds that the cell line is factually and legally distinct from any part of materials removed from Plaintiff’s body.
9.       Conversion is a strict liability tort which subjects innocent third parties to liability for acts which may not be under their direction and control.
10.   The court found that the breach of fiduciary duty theory and the lack of informed consent theory were better suited to protect plaintiff’s rights. Thus, court declined to extend conversion liability in this type of suit.
II.             Attributes of Property
a.       The Right to Exclude
                                                               i.      State v. Shack
1.        Background
a.       One defendant is a field worker for a nonprofit corporation that provided for the health services of migrant farm workers.
b.      Another defendant is an attorney for a nonprofit corporation that provides legal advice and representation for these workers.
c.       The two defendants went to the farm of the plaintiff, who confronted them at the entrance.
d.      The plaintiff offered to bring both men to his office, but the defendants wanted to see the men in private.
e.      The plaintiff refused and summoned a state trooper, and the defendants were charged with trespass.
2.       Discussion
a.       Whether trespass on real property includes the right to bar access to governmental services available to migrant workers?
b.      Under state law, the ownership of real property does not include the right to bar access to governmental services available to migrant workers, and hence, there was no trespass.
c.       Title to real property does not include control over the destiny of people the owner permits to come onto his premises.
d.      Their well-being is the paramount concern of the law.
e.      The government created the two nonprofit corporations that the defendants belong to in order to be of service to migrant farm workers.
f.        Migrant farm workers are unaware of their rights and the opportunities available to them, and so can only be reached by the effort of others.
g.       A person’s right to his real property is not absolute and private or public necessity may justify entering onto his land.
h.      There is no need for a farmer to deny his worker the change to receive aid from government services or charity groups, so representatives from those groups may enter the land and see the worker in his living place.
i.         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.
b.      The Right of Disposition
                                                               i.      Jones v. Alfred H. Mayer Co.
1.       Background
a.       Petitioner/Plaintiff attempted to purchase a home from Respondents/Defendants, who refused to sell.
b.      The Petitioners allege that the sole reason that they were refused the sale is because they are African-American.
c.       The Petitioners, relying on Section 1982, which gives all citizens same right to purchase, sought injunctive and other relief.
d.      The District Court ruled in favor of Respondent’s motion to dismiss the case, holding that Section 1982 applied only to state action and does include private refusals to sell.
2.       Discussion
a.       There are two issues here:
                                                                                                                                       i.      Whether Section 1982 prohibits all discrimination in the sale of property, including sale by private parties?
                                                                                                                                     ii.      Whether Congress has power under the Constitution to prohibit all racial discrimination, private and public, in the sale and rental of property?
b.      Section 1982 bard all racial discrimination, private and public, in the sale or rental or property.
                                                                                                                                       i.      In order to do what it purports to do, this regulation, must encompass every racially motivated refusal to sell or rent, and cannot be confined to officially sanctioned segregation in housing.
                                                                                                                                     ii.      The language of the statute grants all citizens the same right to purchase, without regard to race.
                                                                                                                                    iii.      It is the view of the Court that, through examination of the legislative history in this case, Congress meant exactly what it said in enacting this statute.
                                                                                                                                   iv.      Courts uses Section 1 of the Civil Rights act to show that it applies to private individuals, and not just the state.
c.       The statute is a valid exercise of power of Congress to enforce the 13th Amendment.
                                                                                                                                       i.      If Congress has power under the 13th Amendment to eradicate conditions that prevent African-American’s from buying and renting property because their race or color, then no federal statute made to achieve that objective can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate conduct of private individuals.
                                                                                                                                     ii.      The Court concludes that the 13th Amendment, through its enabling clause, allows Congress the power to create such

cussing how Europe, when discovering the continent, established a principle that title properly belonged to the nation which discovered the new land.
4.       Incident to the principle that title belonged to the nation which discovered the new land, was the subsequent diminishment of the natives ability to dispose of their land.
5.       This impairment of native sovereignty was subject to the recognition that the natives could live on the land, but that they could not grant the land to a private individual.
6.       This was the case because the land itself was subject to the dominion and control of the nation which discovered and conquered it.
7.       The court then went on to explain that the United States accepted this principle after Revolutionary War, when Great Britain relinquished any claim to “proprietary and territorial rights of the United States.”
8.       Thus, the United States owned the entirety of the lands which were situated within the boundaries of the states existing at that time.
9.       The natives who lived within such boundaries lost title to the land.
10.   Therefore, the Plaintiff in this case does not have a title recognizable by the United States.
b.      Shelley v. Kraemer
                                                               i.      Background
1.       30 out of 39 property owners in a neighborhood in Missouri entered into a restrictive covenant stating that for term of 50 years no property in the neighborhood could be sold or rented to black or Asian persons.
2.       On August 11, 1945, Petitioners Shelley, who were black, bought a property in the neighborhood from Fitzgerald, and Petitioners were not aware of the restrictive covenant at the time of the purchase.
3.       Respondents, the other owners in the neighborhood, sued on the basis of the restrictive covenant requesting the Court divest the Petitioners of their newly acquired property and return title to Fitzgerald.
4.       The Missouri Supreme Court held that the provisions of the covenant were enforceable against Petitioner.
5.       Petitioners then appealed to the U.S. Supreme Court, arguing that the judicial enforcement of the restrictive agreements in these cases has violated rights guaranteed to petitioners by 14th amendment, and denied the equal protection of the law.
                                                             ii.      Discussion
1.       Whether the Supreme Court of Missouri was in error by enforcing the restrictive covenant, depriving Petitioner of rights guaranteed by the Fourteenth Amendment?
2.       First, the Court found that the restrictive agreements, standing alone, could not be regarded as a violation of any 14th Amendment rights.
3.       The action inhibited by the first section of the 14th amendment is only such action said to be hat of the States and erects no shield against merely private conduct, however discriminatory.
4.       The Court found that the requirement for state action was not met in a purely private and voluntary covenant.
5.       However, the Court found that in this case there was state action by virtue of the Supreme Court of Missouri’s decision to enforce the restrictive covenant.
6.       The Court found that state action includes actions by legislative bodies, courts, and judicial officials within the meaning of 14th amendment.
7.       The Court held that in granting judicial sanction to an agreement that would deprive the Petitioners of equal protections guaranteed by the 14thAmendment is an action which cannot stand.
8.       Therefore, the Court held that the Supreme Court of Missouri had to be reversed.
9.       Because the Court decided the case on the question of equal protection it was unnecessary to consider the Petitioner’s arguments regarding due process and whether the Petitioners had been denied privileges and immunities accorded to citizens of the United States.