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Property I
Wayne State University Law School
Hall, Noah Donald




– Right of Exclusion

Jacque v. Steenberg

– Right of Possession


Pierson v. Post

Rule – Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. Mere pursuit is insufficient to establish property rights. Depriving an animal of its natural animal.

Popov v. Hayashi

Rule – When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item.

Holding – Split the baby: sell the ball, split the profits. Popov had exerted some control over the ball, but had not yet acquired possession. It is unknown if he would have acquired possession, because he was attacked by the fans seated around him. It would be inappropriate to create an incentive for such attacks to take place. Thus, in this situation, Popov is deemed to have acquired a pre-possessory interest in the ball. Because Hayashi was not involved with the mob that attacked Popov, both Popov and Hayashi have an equal, undivided interest in the ball.

– Right of Control or Use

– Right of Alienation

– Right of Benefit

– Right of Destruction

Eyerman v. Mercantile Trust Co.

Rule – When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void.

Holding – Johnston instructed her executor to raze her home and sell the land. Neighbors objected. Based on public policy, the court may step in. While alive, things like rational thought might stop someone from doing some petty shit like destroying their property for seemingly no reason. In death, however, they have no such restraint nor do they have that property interest any longer. Thus, the court may, as a matter of policy, step in.


Natural Flow – This theory prohibits any use or diversion by an upstream owner of the water that materially diminishes or alters the natural flow, even if the downstream owner still has plenty of water for his own needs and therefore suffers no real harm.

Reasonable Use – every riparian owner has the right to make any reasonable use of the water. See Restatement (Second) of Torts § 850. The analysis operates in much the same way as the law of nuisance, which we’ll cover in another clip. See id., comment b, § 850A, comment g. Even so, one quirk here is that the “reasonable use” theory basically holds that any kind of domestic (or natural) use is superior to any kind of “artificial” or “non-domestic” use. See, e.g. Tunison v. Harper, 690 S.E.2d 819 (Ga. 2011). This has important implications. First, no commercial or artificial use can be made at all, except insofar as there is more than enough water to facilitate all domestic uses, without materially altering the flow or quantity of the water. Second, a riparian owner may use all she reasonably needs for domestic purposes, without regard for the rights of others to make non-domestic use. Next, the reasonable-use analysis applies as between multiple riparian owners competing for water to make domestic use. See Evans v. Merriwhether, 4. Ill. 492 (1842); Restatement (Second) of Torts § 850A, comment c. Lastly, no riparian owner may completely divert or block the flow of the water, or block access to it, since that deprives others of the use of the water. See 93 C.J.S. Waters § 13.

Prior Appropriation – The last major theory governing riparian use of water that we’ll study is the “prior appropriation theory,” most often seen in arid Western states where water is scarce. This theory is simple: Use rights go to the first riparian owner to make “beneficial” use of the water, whether that use is riparian or non-riparian. Period. In other words, priority = superiority. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).


– Right to Wharf Out (build dock, pier, or wharf)

– Right of access to the water (including a right of way to and from the navigable part of navigable water) free from unreasonable interference.

– Right to alluvium and accretions

– Right to make a reasonable use of the water adjoining the land, including for domestic uses (like bathing or drinking), agricultural uses, and commercial uses. In the case of n

enjoyment of right by the other.”

Three Underlying Principles:

Fair participation in the use of water for the greatest number of users.

(‘strike a proper balance between protecting the rights of the complaining party and preserving as many beneficial uses of the common resource as is feasible under the circumstances.)

The law will only protect reasonable uses.

(Water use that has little value or is excessive or harmful will not be protected)

The law will only redress unreasonable harms.

(Thus, the plaintiff must demonstrate interference with their reasonable use and substantial harm)


the purpose of the use

artificial or natural (second preference)

natural – all those uses necessary to the existence of the user and his or her family
artificial – those which merely increase one’s comfort and prosperity and do not rank as essential to existence, such as profit and recreation

whether the use benefits the land from which the water is extracted (on tract v. off tract) (first preference)

the suitability of the use to the location

the nature of the water source

e.g. a large body of water may be unaffected by massive withdrawals while a small body of water may be unduly strained even by modest withdrawals

the attributes of the water source

‘the uses to which a particular water source is customarily put are relevant to a determination of whether a new use is suitable to the area

the extent and amount of the harm

social (effects on fishing, navigation, and conservation)

traditional use employed in the locality where the body of water resides
predictability is important, so the protection of existing water uses should be an important consideration