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

OUTLINE
PROPERTY – WINTER
 
I.                    Attributes of Property
 
A.            Definition of Property
Real Property, Personal Property = Tangibles – Movables and Immovables
Intangibles – Intellectual Property (Inventions, Copyrights, Ideas)
 
3 bodies of property law – consensual (agreement between the parties), nuisance & negligence (tort law – law will enforce – no agreement between the parties), and governmental (zoning) – last two are not consensual. 
 
Property in a legal sense – (versus common language) refers to the right that an individual holds in the subject matter. This right is only enforceable if it is backed up by the power of the state (backed up by the courts). 
 
B.                 Limitation on Absolute Rights of the Landowner
State v. Shack (pg. 16)
Landowners rights are not absolute and so in this limited sphere – social service workers addressing problems at the federal and state level – operating with the support of public funding – entering on land for a limited purpose – we are going to conclude that the possessory right of the farmer – the law of NJ will not back up.
 
            C.            Finder may recover full value from one who deprives him of possession
Right of Possession of Personal Property – Armory v. Delamirie (pg. 95)
P, a chimney sweep’s boy, found a jewel in the course of his work and took it to D’s shop for appraisal. As a finder, P’s property right in the jewel entitles him to recover its full value from D, who received possession from P and new that P had found it. The finder of a jewel does not have absolute legal title but does have a property right against all but the true owner. 
When the sweep found the jewel did he have rights – only second to the true owner – this is called – possessory right. This is called involuntary bailment. True owner only has title and title is superior to possession. 
True owner still has title. Sweep’s right of possession is worth very little so when it sues the jeweler – can the true owner come along and sue for the full value as well? 
 
            D.            Objects Placed on the Land by Nature’s Forces
Goddard v. Winchell (pg. 85)
Rule: Any object placed on the soil by nature’s processes becomes part of the soil so that a subsequent taking by finder is wrongful. 
 
            E.            Property Rights vs. Individual Rights
                        Jones v. Alfred H. Mayer Co. (pg. 32)
P brought an action under 42 USCA 1982 alleging that D had refused to sell P a home in a St. Louis subdivision because P is black. §1982 – based on the granted power under 14th Amendment. Problem is no state shall deny equal protection of the law – the seller is a private individual not the state. Can’t read the act applying to private individuals – can’t be enforced – Congress does not have that right. 13th Amendment – base argument. This gives Congress the power – action of seller is discriminating against the buyers perpetuates slavery or involuntary servitude. 
Rule: Congress may proscribe a private person’s refusal to sell or rent property because of the other person’s race under the 13th Amendment – read broadly enough to apply to this situation and to enforce the act. This overrides the common law principles. 
 
F.                 Objects and Classifications of Property
Ad Coelum Theory – Edwards v. Sims (pg. 42)
P discovered and commercially exploited the Great Onyx Cave. Lee claimed that part of the cave ran under his land. Lee brought suit to quiet title, and the circuit court directed a survey to be taken of the land to determine if part of the cave was under Lee’s land. P is suing to prevent D, the judge, from enforcing the order. 
Rule: A trial court may order a survey of one person’s land to adjudicate a claim made against the owner. The order is within the jurisdiction and power of the lower court. 
Two reasons: no one will suffer a great injustice or irreparable injury by the survey and the court was unable to resolve the dispute based on the evidence before it. The intrusion into P’s land is necessary to determine whether P is trespassing. 
 
G.            Nontraditional Types of Property
                        Body Cells – Moore v. Regents of the University of California (pg. 53)
Rule: An individual does not own property rights in his own cells, such that use of the cells for medical research without his permission does not constitute conversion. 
A conversion arises when the P establishes an actual interference with his ownership or right of possession. In this case, P certainly did not expect to retain possession of his cells after their removal, so he had no ownership interest on which to base a conversion claim.
 
II.         Role of Property
 
            A.            Conquest and Dominion – American Indian Claims
Johnson v. McIntosh (pg. 63)
P claimed land through deeds given by nature American Indians in 1773 and 1775. 
Rule: The United States courts cannot recognize title to real property obtained from a grant by an Indian tribe. Discovery gives an exclusive right to extinguish the Indians’ right of occupancy either by purchase or by conquest. 
 
            B.            Constitutional Limits
Fede

nough because of the long time honored requirement that fee simple advance be so expressed.
                                    b.            Defeasible Fees
(i)                  Fee Simple Determinable
A conveys to B so long as liquor is not used on the premises. Triggered by the words “so long as”, “while”, “until.” That ran with the estate so that if B re-conveyed to X, X took a Fee Simple Determinable. If the party used liquor on premises the estate automatically reverted to the holder of the possibility of reverter upon that event. 
Enforcement = 30 years. Strict forfeiture estate. 
 
(ii)                Fee Simple Subject to a Condition Subsequent
Upon the condition that”, “but if”, “provided that.” Power of termination (or right of re-entry) – right of interest that A keeps. A needs to assert his/her rights – grantee has not complied with the conditions – bring an action for ejectment (an action at law not equity) – if don’t bring a suit within one year (whatever the statute of limitations is) then the power of termination expires and returns to a fee simple absolute. By statute today these both can be transferred during the lifetime of the holder. MI = 30 years. Flexible forfeiture estate. 
 
(iii)               Fee Simple Subject to an Executory Interest
Put the interest in the hands of the third party. Same words as (1) Someone else police the liquor business –”on the condition that liquor is not used on the property, “but if it is” used, then to “C and her heirs.” C has an executory interest. If condition is broken then C gets fee simple absolute. 
 
Condition – If the condition is not met in all three – this results in a forfeiture.
Covenant – if broken will result in injunctive relief or monetary damages but not forfeiture. 
Wishful Expression – You would like it to happen, but there is no cause of action if the requirement is not met. 
 
2. Fee Tail
A fee tail is an estate that has the potential of enduring forever, but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession.