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

Property Mogk Winter 2014


Property Defined:

· It is the interest or the right that someone owns in the subject matter backed up by the state. The state knows of the interest and is willing to back that person’s interests.

· American property draws heavily on English law. Property is often described as a “bundle of rights”. The “sticks” that make up the bundle of rights include the right to exclude, the right to transfer, and the right to possess and use. Some rights are stronger and thicker than others. Ownership is the thickest right in the bundle.

To Evaluate:

§ Determine what legal interest/right or issue is at issue under common law.

§ Ask if it is modified by the government’s use of the rights:

a) Does it fall within the structure?

b) Does the state have the power and right to police it?

Personal Property

· Legal right of possession backed up by the state.

· Though you may not always have possession of personal property, you still have a right to a legal title (Ex. Lending a book: you still own title, just lending it as a bailment)

Real Property

· Immovable property (Ex. Land, home). It is still based within the common law. It is something that you get a deed or mortgage too.

· Common Law: can discriminate

· Modern: look at statutes and laws, can stipulate differently

o The Freehold Estate is the center of this bundle

o When referring to title of real property we really mean Fee Simple Estate



§ The act of depriving an owner of his property without permission or justification


§ Sticks in bundle distributed among many different people

Moore v. Reagents of the University of California:

§ Facts: P had leukemia and was treated by Ds who took bodily substances which they used for research, resulting in a cell line used to treat others and sell for money. P argues Ds for unjust gain and that the cell line was from his property (bodily substances) and thus has property rights. P seeks compensation on theory of (a) conversion- owned sells, no consent, or (b) breach of duty- lack of informed consent.

§ Court finds no conversion as (1) the statute only applied to destruction of cells, (2) no common law supporting this theory over ownership of blood samples (3) that could severely restrict medical research [policy]- unfair to impose strict liability on all. Holding, viable claim for breach of duty.

§ Finding: Court finds that as a matter of public policy, the potential extension of the liability that would result, and the manipulation of the cell line into something different than Ps cell line or genetic material, no ownership can be claimed.

§ FP: One cannot claim ownership for genetic material due to lack of statute support, no common law ownership of blood samples precedent, and the potential to hurt industry [policy]. No conversion.

Attributes to Property:

§ The extent of these rights depend on the society and societal structure

1) Right to Exclude

§ Real property rights are not absolute. Necessity, private or public, may justify entry onto land of another.

· State v. Shack

o Facts: Ds acting under grants from federal government, with purpose to aid migrant workers, entered farmers land to aid migrant workers. Owner asked them to leave, Ds refused. Owner claims trespassing. Ds found guilty on criminal trespass, Ds appeal.

o Finding: Court states they will not back up the possessory rights of land as they will not recognize them. Thus, property rights are not absolute as governmental functions can trump other rights. Also, courts reason that the migrant workers can be seen as tenants, who have possessory rights which allow social visitors which cannot be excluded.

o FP: Private or public necessity can justify entry onto land and the right to exclude is not absolute. A landowner cannot control the destiny of the workers who have implied rights.

2) Right of Disposition

§ 42 USCA 1882 protects right to purchase and rent land without discrimination

§ An Act (42 USCA s1982) of Congress bars all racial discrimination, private and public in the sale or rental of property. The statute is a valid exercise of the power of Congress to enforce the 13A.

§ S1982 does not apply to boarding houses in which the landlord-like person resides

§ Jones v. Alfred Mayer

o Facts: Seller refuses to sell home to blacks (P). P sues, case dismissed and upheld. Reversed.

o Finding: Court finds that 42 USC section 1982 applied to both private and public racial discrimination and that section 1982 and is enabled by the 13th amendment (no discrimination due to race). Note: burden of proof on discriminated party.

o FP: Seller has a right to exclude all property interests to others under common law. However the state has a right to police both public and private sales under statute section 1982. Statutes and the Constitution thus control the rights of parties and trump any conflicting common law that exists.

o NOTE: Fair Housing Act: To cover sale of home must be by broker or agent. Exceptions: (1) does not apply to sale of home alone by individual, (2) Mrs. Murphy’s Boarding House exception: if you own house and you are renting to no more than 4 renters/tenants you are not covered by the act

3) Right to Use

§ It is a right to use a “thing” as the owner sees fit

§ Limitations to this, from governmental bodies: (ex. Zoning, environmental regulations, ordinances)

§ Use of land can also not unreasonably injure the land of another

Objects and the Classifications of Property:

§ An owner owns the land above and beneath.

o Mineral rights often severed from surface rights however

§ A court of equity can require one to submit to survey so that it can be ascertained as to whether something like a cave falls on another’s property as well, entitling them to interests as well (implied right).

Edwards v. Sims

Facts: P seeks protection from order against judge to allow surveyors to enter his land to survey a cave and determine if any portion sits underneath another’s land for which they can claim property rights. Court determines that judgement not erroneous, as question of injury not up for debate. Theory of Ownership applies to Lee- other landowner (see FP)

FP: The owner of realty owns the land above (air), upon and below the surface.

Roles of Property in Society

§ A transferee takes no better title than the transferor

§ Right of Occupancy:

o Indian occupancy was not recognized as ownership by action authorized by Congress, and thus may be extinguished by government without compensation

§ Law Of Conquest:

o If one is conquered or land is discovered, they claim the best title

o Indians were

back jewel after P does not accept money of the appraisal. P seeks trover (conversion, seeking value of object).

Finding: court finds that this is lost property and treats it as a quasi-bailment. Sweep had first right of possession and appraiser had second right of possession. Sweep should have just been awarded value of possession (nominal), however due to the terrible actions of appraiser, awarded value of jewel.

Rule: The finder of a lost object may claim trover as they have possessory rights as under common law the test of the possession of property is control with the intent to contol.

FP: Common law possession= control with intent to control. A finder of something lost has superior title to everyone but the rightful owner. However it can also be seen as abandonment with full title to finder.

Bridges v. Hawkesworth

­Facts: Property found in a shop, lost by one customer and found by another. The issue is if the same rule applies to a private premise. In common law there was a distinction between private and private open to general public. They applied the Armory v. Delamirie rule to private places upon to the public. Here, the control of the property is for the owner as it is their property. Thus it is treated like the Goddard v. Winchell case, where when personal property went into real property it is the right of the owner of the property- in this case the shopkeeper.

FP: When personal property is lost or abandoned on real property it is the left to the right of the owner of such real property. First possessory right to owner of real property where item found.

Private Interests in Land: The Historical Development of the Estates Doctrine

Estate Doctrine:

§ An escheat of property to the state constitutes a transfer by reversion, not by succession, and, therefore, the state is not liable for payment of inheritance tax


§ Common law docrine

§ Land reverts back to crown/soverign when line of heirs or successors ends

§ Traditionally only applied to real property, not personal property

Bona Vacantia:

§ Applied to personal property

§ Crown can take possession of personal property is no heirs or successors

Uniform Unclaimed Property Act, 1981, 1995

§ Provides state custody for unclaimed property

§ Requires holder of unclaimed property o give written notice to owner and to turn the property to a treasurer or comptroller of the state of owner’s last known address if there has not been activity for 3-5 years.

In Re O’Connor’s Estate

Facts: Man dies without successor, and property escheats to state. County wants state to pay tax. Court says yes, but reversed on appeal.

Finding: Since escheated real estate reverts to the state and the inheritance tax is applicable to property acquired by a right of succession only, no inheritance tax is due on escheated realty.

FP: Escheat to state not form of succession which can be taxed.