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

Property – John Mogk

Wayne State University Law School

Winter 2016

Efficient system of property rights (Posner)

Universality= All resources should be owned, or ownable, by someone, except resources so plentiful that everybody can consume as much of them as she wants without reducing consumption by anyone else (e.g. sunlight)
Exclusivity= The ability to prevent others from using property or being hindered by others’ property (hog example)
Transferability= The ability to shift resources from a less productive to a more productive use through voluntary exchange

Property right restriction problems (Posner’s broadcasting example)

Limits the pool of applicants who are willing to pay for a service
Resources are not allocated efficiently
The actual allocation of resources is more inefficient than leaving it to market forces
Prevents transfers
Can’t reserve for later use

Property Three parts=

Real property
Personal property
Intellectual property

What is Property? Relationship between the person and the object.

Property is an interest an individual holds in a subject matter backed up by the power of the state through laws adjudicated by the courts.
HYPO: Mogk lends you a book and delivers it to you. Do you have a separate interest?

YES; You have the right of the possession
Mogk; maintains the title
Is there a category of property law that governs that relation?

Bailment= Separation of possession and title pursuant to agreement between bailor (Mogk) and bailee (you).

Mogk loses right of possession under the agreement
When return have all right, title, and interest

What is Mogk’s relationship to the book? Your relationship to the book?

You have 2 obligations in regards to Mogk

Reasonable care using the book

May not be negligent

Duty= Bailment relationship
Strictly liable to return it
May not assert title to it

Can’t convert the book= Mogk needs to receive the book back

Use outside of agreement, then convert the book
If deliver the book to someone else, then conversion

What if someone steals the book from you? Who goes after it? Can you assert your rights against a third party?

Both can assert rights because they both have an interest

Bailee has been denied possession= Action of replevin
Bailor can bring action because the thief has converted inconsistent with Mogk’s rights= Conversion or trober

Real property= Separation of possession and title

Can keep it or transfer to others
Mortgage to lender
Profit (easement) for oil and gas right
Ingress or negress= Easement to convey to the neighbor
Convenant or servitude that limits the use of Mogk’s land
At anytime can return to the bundle and can become all title and interest

Same bundle of rights is associated with any piece of land in the state

Real property law usually remains CL based
Some states (i.e. California) has codified some real property laws
Laws quite similar from state to state

Courts will sometimes interpret differently from state to state
Legislature can augment CL

Landlord/tenant= Legislature has

NO writ, no right

Example: Moore v. Regents of the University of California 27

Facts= A patient with hairy cell leukemia travelled to UCLA to have different procedures done. A doctor and researcher used samples of the patient’s cells to patent a new cell line used for research.

Issue= Is the patient entitled to part of the proceeds for his share of his cell contribution? Is there a writ or a cause of action the court recognizes?

1) Rule= Conversion= A tort that protects against interference with possessory and ownership interests in personal property. Arguing essentially bailment. Agreed to transfer his possession of his body parts to the doctor. Bailment b/c he retained title but they have possession. Argues dominion and control over his body parts. Converted his body parts. No bailment b/c didn’t expect to get the body parts back= must extend the laws of conversion. Looks like an intent problem= no intent to get cells back. Free to transfer both possession and title. The delivery of subject matter is transferable title and possession= sale or a gift. Distinguish from a bailment. Even if intend to retain title, state law prohibits it.

2) Sub-issue= Is there a scientific duty to investigate the consensual pedigree of each human cell sample used in research

Rule= California law limits a patient’s rights to excised cells

Reasoning= The object of the statute is to limit the handling of hazardous waste. The court concludes that the practical effect of the statute is to limit a patient’s control over his/her cells

3) Rule= Cell line was patented by UCLA

Reasoning= The patented cell line is factually and legally distinct from the cells taken from the patient’s body. The Patent office issued a patent for intellectual property not personal property

Sub-issue= Would the cell line be transferrable

4) Rule/Policy= We value medical research. If patients’ owed a share of their cells, then it would hinder the free exchange of resources. Researchers’ using the cells would be liable for conversion if accept cells.

Holding= The patient should recover because the doctor lacked the patient’s consent and failed in his fiduciary duty. Higher duty. Would not extend to other researchers. The patient fails on the conversion argument.


1. Every person has a legal right to his/her bodily integrity.

2. The parties are not in equal bargaining positions. The patient should be justly compensated for his/her contribution

Three attributes=

Right to exclude others
Right to use
Right to transfer to others

Personal property disposal= You give up title and possession when throw something away

Another person can pick it up

Possession is control with intent to control
When person picks the disposed thing up, the former title holder no longer holds the title because it abandons

If pick it up abandoned property, you get the title as well as possession

Must be a full bundle of rights identified in property= Must be able to identify where all the rights are for property law to work

Person picks up the abandoned property gets full title because the title must be somewhere

What is the interest in the subject matter in which the bundle of rights turn?

Real Property differs from personal property

Real Property= Mineral rights, air rights etc.
Both= Rights of possession, security rights, etc.

Intellectual Property right= Can transfer the rights like other property rights

Maintain the right to manufacture, use, or sell to another


ge foreclosure
City could condemn the house through eminent domain

Example: Jacque v. Steenberg Homes, Inc. 36

Facts= The defendant trespassed on the plaintiff’s land to deliver a mobile home to a third party. There was no damage to the plaintiff’s land.

Rule= The plaintiff has a right to exclude others from his land, one of the most essential sticks in the bundle of rights that are commonly characterized as property

Example: State v. Shack 36

Facts= The defendants, representing two agencies created by federal statute, tried to talk to migrant workers working on the plaintiff’s farm. The plaintiff had the sheriff remove the defendants off the property and fined them. Farmer has the full bundle of rights. Farmer gave right to be there if in presence= Give license. Defendant’s think it would interfere with work. Went from civil trespass to criminal trespass because asked to leave but refused to leave

Issue= Can government officials trying to assist the workers be prohibited from entering private property

Procedure= AC upheld fine

Rule= Any person who trespass on any lands under the owner and being forbidden to trespass and remaining there is a trespass. 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 within the meaning of the penal statute.

Reasoning= Ownership of real property cannot include dominion over the destiny of persons the owner permits to come on the premises. The occupants have the right to contract. Property rights are relative and can be curtailed by societal restrictions. The owner must make accommodations’ between the right of the owner and the rights of individuals who are parties with him in consensual transactions relating to the use of the property

Court doesn’t want to make migrant workers tenants
Farmer’s rights= Not broad enough to restrict the Ds from coming onto the land

Limits= Not opening private property up to the general public but can’t interfere with interpersonal interactions

Holding: Reversed and remanded

Trespass= Incorporated into the civil and criminal law – can only arrest if criminal.

Criminal law= Aggrevated trespass= Want to prohibit certain type of trespass

Includes refusal to leave land

Civil trespass= One neighbor can obtain damages from the other

Civil trespass= Unauthorized entrance onto land
License= A privilege to be on land
Two Categories=

We did NOT trespass= Statute doesn’t apply

As it relates to the farmers’ bundle of rights, migrant workers enjoy two different states: Workers AND tenants= Worried about the extension of this argument