Property I - Fall

Property I - Fall

OVERVIEW

Property rights concern relations among people regarding control of valuable resources. Balance of relational rights, limitations, duties.

Types of property:

-REAL property: land and things physically attached to land

-PERSONAL property: everything else (complicated line – may matter HOW something is attached)

Ownership involves a bundle of entitlements:

-possession
-use

-right to exclude others (exclusion)

-Power to transfer title (transfer/alienation)

-Destruction (or right to prevent destruction)

Full ownership involves full bundle of entitlements; many other variations of ownership involve various combinations of entitlements amongst individuals and groups.

Remember, social context matters (settling expectations, for example, or use vs. conservation), and the relational element matters – e.g. balancing right of access vs. right to exclude.

Possession

-9/10ths of ownership!

-Actual possession: direct physical control

-Constructive possession: no physical possession, but for purposes of law, you have possession.

I. ACQUISITION OF PROPERTY

A.First Possession

For acquired property, whether captured, found, etc., person who has rights first in time has superior rights over others.

B.Rule of Capture

RULE: Usually, pursuit alone doesn’t constitute possession. Must deprive thing of “natural liberty” by killing, trapping, or mortally wounding AND continuing pursuit (majority view – PIERSON v. POST)

-Some argue that being close enough to capture, with a good chance of capture, and with reason to believe capture is imminent, is good enough to show possession (minority view)

-EXCEPTION: Mortal wounding without further pursuit may be good enough to establish capture in some circumstances. It depends on if it is realistic to continue pursuit after wounding (e.g. whale), and if there is a way to mark wounded animal to show your INTENT. Largely depends on custom: if there is firmly established usage, may uphold that in order to settle expectations. GHEN v. RICH

Wild animals vs. tame animals:

-WILD: RULE: (majority) In most states, hunter gets ownership of animal it captures even on private land, unless signs are first posted (no hunting, no trespassing, etc.)

RULE: (minority) Ratione soli: owner of property has constructive possession over wild animals that enter onto property. Less common in U.S. However, this rule guides reasoning for ownership of minerals.

-TAME: RULE: If a person knows or should know that an animal is domesticated or tamed, and is likely escaped/should return to owner, that person will not gain ownership by capturing the animal. Cannot have rule of capture apply, because there was first possession!

Natural resources:

RULE: Those who own ANY amount of land over common resource have EQUAL, correlative right (right in comparison to others) to extract the resource (USE), even if their method would extract all the resource from under other person’s property, and even if their share of the land is less than that of the other party. ELIFF v. TEXON

RULE: While have a right to use, do not have a right to WASTE resource, depriving other person of reasonable opportunity to use fair share. If resource is wasted through negligence or illegal behavior, that is not acceptable use, and may be liable to other party for loss. ELIFF v. TEXON

What happens if someone maliciously interferes with capture? In some ways, this is similar to rule against negligent/illegal waste…

RULE: with resource that may be captured by many people, fair competition is allowed, but deliberate, malicious interference (scaring away resource) generally not allowed (unless perhaps community values conservation). KEEBLE v. HICKERINGILL

RULE: Pre-possessory interest: very unique view. Someone who didn’t have possession, but was in process of acquiring it and might have done so but no way of knowing because of malicious interference of third party (such as a mob). POPOV V. HIYASHI

Tragedy of the Commons:

If we apply rule of capture and first possession to common lands, there is incentive to take as much as possible, or else someone else is likely to do so. This can lead to depletion of resources, inefficient use of land.

C.Acquisition by Find

Possession and Presumption of Title

RULE: Where there is possession (assuming no proof of illegal possession) but no proof of title, there will be a rebuttable presumption of ownership: courts will assume the possessor has ownership unless other party can prove they have title WILLCOX V. STROUP

Finders

GENERAL RULE: Finder has property right against all but rightful owner or prior possessor/finder. ARMORY V. DELAMIRIE (chimney sweep found jewelry, took to get appraised, show took jewels, sweep won)

Common Law Finders Categories

1. Lost: Owner unintentionally and involuntarily parted with possession of property, does not know where it is. RULE: FINDER has property right in lost property against all BUT rightful owner or prior possessor/finder.
   
2. Abandoned: Owner no longer wants to possess property, voluntarily relinquishes all interest in it. RULE: FINDER has right in property against all others, INCLUDING true owner b/c that person relinquished rights.

1. Mislaid: Owner voluntarily puts property in certain place, but forgets where it is. RULE: OWNER OF LOCUS where property was mislaid (if it is movable object, it will be owner of that object over place where object has been transported) has right in property against all others including FINDERS, EXCEPT for true owner.

BENJAMIN V. LINDNER (man inspecting plane found $ in wing, claimed that statute regarding lost property meant lost, mislaid, or abandoned property and therefore he should get $. Court said no, common law rules applied b/c legislature didn’t change them, therefore lost or abandoned property to finder, mislaid to owner of locus – here, the bank that owned plane, which won, though dissent felt that facts supported abandoned)

1. Embedded Property: Property which has become a part of the natural earth. RULE: OWNER OF LOCUS where property is found has right in property against all others including FINDERS, EXCEPT for true owner.

1. Treasure Trove: Coins or currency concealed by owner for such a length of time that the owner is probably dead or undiscoverable. RULE: FINDER has right in property against all others, EXCEPT true owner.

CORLISS V. WENNER (Difficulty in distinguishing between embedded and treasure trove. Treasure trove is less common, as here, where argument was that it wasn’t actually part of state common law. Also, people who discovered coins in this case had been hired to dig by the locus of the property, so they were acting as agent, so even if treasure trove applied, probably land owner would have won).

Policy considerations: Courts like to promote/reward honesty, prevent trespass, promote care of property, settle expectations

D.Gifts

2 Categories of Gifts

1. Gift inter vivos – ordinary gift from one living person to another

RULE: Required Elements for Gift Inter Vivos:

1.Donative intent

a.Must intend to immediately transfer ownership to donee

b.Intent may be inferred from evidence including statements and actions of donor, value of the item, or the relationship between the parties

2.Delivery

There are three forms of delivery

i.Actual (also called “manual”) delivery – handing over the item

ii.Constructive delivery: Allowed when actual delivery impossible or impracticable. Donor physically transfers to done means of obtaining access and control of property. For example, by giving a key to the item

iii.Symbolic delivery: Traditionally allowed only when manual delivery is not possible or practical. Modern view is to recognize writing as symbolic delivery even if actual delivery would be possible. Most often done by giving done some type of writing/letter

3.Acceptance by recipient

Normally, easy to establish. Can be presumed if gift is valuable/beneficial to done.

GRUEN V. GRUEN (letter to son conveyed present ownership in painting, with symbolic delivery through letter, while father simply retained possession; son was gifted REMAINDER, and that remainder was delivered. Possession was merely the life estate created by father, and he no longer had other rights of ownership because son’s interest vested immediately. That said, symbolic delivery made sense where it was rights other than possession that were being transferred – otherwise would have had to deliver painting, than have it returned)

1. Gift causa mortis – gift between living persons, but made in expectation and anticipation of donor’s IMMINENT death

•Substitutes for a will (which would require writing and disinterested witnesses)

•Revocable at any time before death; in most states automatically revoked if donor recovers

•Requires all three elements of gift inter vivos, PLUS a fourth element – donor’s expectation of immediate death. Otherwise, if NOT in expectation of immediate death, invalid because SHOULD HAVE BEEN IN WILL.

E.Acquisition by Conquest

RULE: People who have been conquered retain right to possess, and limited right to sell: may sell to conquering government, not to anyone they wish. JOHNSON V. M’INTOSH

Court was trying not to unsettle expectations: everyone would be dispossessed of conquered land, otherwise. Also, they seemed to have serious problems with the way native people were stripped of land, but essentially found that rules like this were best not decided by courts.

F.Adverse Possession

RULE: If ALL 5 elements are satisfied for the duration of the statute of limitations on an action of ejection (generally 10-21 years), the possessor will gain ownership of the property. The elements are as follows:

1. Continuous: Throughout course of SoL, occupy as true owner would (seasonal if that is custom in area, permanent if custom in area) HOWARD V. KUNTO (Use of house only during summer was deemed continuous, because summer use only was typical from other similar property in area)
   
2. Hostile:

-Majority of courts use OBJECTIVE STANDARD, say state of mind of possessor is irrelevant, and that element is satisfied so long as owner did not give permission. Mutual mistake as to location of a boundary line will not defeat a claim of adverse possession. (PIMENTAL v. MEDRO, where original owners of disputed land placed hedge row based on faulty understanding of boundary line, and court found that did not constitute permission for neighbors to possess disputed area).

-Minority require either GOOD FAITH (though had permission) or BAD FAITH (thought didn’t have permission).

1. Actual: Must actually enter property with intent to possess, and exert some control over it. NO constructive possession.
   
2. Notorious/open: Can’t hide possession. Generally, using as true owner would will satisfy this. Needs to be something that SHOULD put reasonable person on notice. (MARENGO CAVE V. ROSS not open and notorious where cave was underground and unseen, border of cave unknown so couldn’t evict until survey) MANNILLO V. GORSKI (minor infringement of 15 inches in structure –stairs- does not put reasonable person on notice, so even though visible, not open and notorious – MINORITY VIEW- usually, even if minor, a visible encroachment is considered notorious)

1. Exclusive: True owner was not also there, possessing property. (MARENGO CAVE V. ROSS where court held earth underground not severable, so because Ross used above ground, Marengo’s underground use wasn’t exclusive – although not all courts would agree)

Disability:
RULE: If a party has one of 3 possible types of disability when another enters his land and begins S o L clock, the law give that person WHICHEVER IS LONGER: SoL or 10 years after the disability is removed before the other party can gain property by adverse possession. 3 types:

-Minor (under 18)

-Incarcerated

-Unsound mind (declared insane)

Note: A new, or second, disability that begins AFTER the AP SoL starts running will not be taken into consideration.

Color of Title:

RULE: Where a party has bad/faulty contract/title to property (forged deed, mistaken signature – fraud or error, but person THINKS it is valid), but b/c has ACTUAL possession of part (through adverse possession), may claim constructive possession of the rest. HOWVER, ACTUAL possession of true owner will trump CONSTRUCTIVE possession of adverse possessor. So adverse possessor will NOT gain full property through color of title if true owner ACTUALLY possesses that part of property.

Tacking:

RULE: May add prior possessor’s years of possession for purposes of SoL IF: property voluntarily transferred (needs to be privity – legally recognized transfer, so NO squatting), with no interruption in time between possessor, and prior possessor was acting under AP or color of title. OR, get deed for land that prior owner thought was larger, you accept thinking you own land is bigger than it actually is under deed. May tack on the new land.

II. RIGHT TO EXCLUDE

Exclusion is one of most important rights of property.

RULE: Can’t access someone else’s property if they disallow it just because it would cost a great deal to avoid going through property. (JACQUE v. STENBERG HOMES, where mobile home company drove across someone else’s property because it was inconvenient and expensive to do otherwise, and they didn’t even damage property, but other people had said no to request – had to pay for violating property rights)

But right to exclude is NOT without exception.

RULE: Right to exclude does not give person right to infringe upon rights of those living/working on property, such as right to receive emergency services, medical care, general aid from gvt. or charitable agencies seeking to help him. MAY also (min. view) include press access (STATE v. SHACK farmer was preventing attorney working with nonprofit funded by federal program to aid migrant workers from entering property to assist workers, was told he couldn’t exclude)

III. INTELLECTUAL PROPERTY/PROPERTY IN THE PERSON

3 major types of intellectual property:

1. Copyrights protect EXPRESSION of ideas through books, songs, videos, etc., NOT the ideas themselves.
2. Trademarks protect words, names, symbols, devices, etc. used to identify and distinguish goods and products from those manufactured or sold by others.
3. Patents protect inventors of new products and processes that are useful, novel, and non-obvious, providing inventor a monopoly on use of invention for duration of patent.

Is there a property right in news?

RULE: Generally, may copyright stories but not facts

RULE: Against the public, there is no right (public may share news). Against other news agencies, there is a quasi-property right, in that competitors are not entitled to undercut business through unfair practices (INTERNATIONAL NEWS v. AP, where AP spent time and money gathering news, and then IN took headlines from bulletin board on east coast, used in papers on west coast so that AP didn’t have jump on story anymore, and this was ruled unfair business practice)

Right of publicity

RULE: Generally, a person may control commercial use of her name, image, likeness, voice, and other aspects of personal identity. What constitutes a likeness rather than just a reminder is FUZZY, courts may disagree:

WHITE v. SAMSUNG (Vanna White sued Samsung over an ad for a VCR that used an image of a robot in a position similar to hers in Wheel of Fortune, in a context evocative of Wheel of Fortune, she argued this was use of her likeness without her consent, majority held that since ad EVOKED her identity, it was a violation of statute. This is broader interpretation than usually allowed, and dissent said it criminalized a mere reminder rather than an actual likeness, thereby stifling creativity and infringing on public use).

Property in the person

This seems controversial and ever-shifting. Policy considerations seem paramount. Concern over morality of commodifying body, exploitation of poor, vs. promoting scientific research and medical advancement. Tends to be split between organs and cells. Also a concern regarding added value and consent. RULE: If someone innocently takes something belonging to another and adds value, only liable for original value. But if takes property in way that is NOT innocent, liable for full, added value.

RULE: Generally, people may have property right of disposal of organs and subparts (can’t take deceased’s organs without family consent), and may donate them, but may not sell them.

FLYNN v. HOLDER (Court rules bone marrow stem cell is not a subpart of marrow, therefore doesn’t count as organ and sale is OK., says stem cells throughout blood and blood sale allowed, therefore every time bllod sold, could be selling organ subpart if that were how it was defined. Concerned with invasiveness (taking marrow through needle in hip bone invasive and not OK, taking stem cells through blood less invasive and OK)

RULE: MAJORITY: A person does not have a property interest in all use of his cells following their removal from body.

MOORE v. U CAL (Man was encouraged to give samples while he was undergoing medical treatment, wasn’t told samples were be used so that cells could create cell lines work potentially billions. Sued, but was told that while there was breach of duty and doctors misled him and should have gotten consent, there was not a property claim b/c no right to sell, dispose of body part under statute, therefore no property right at all. And no likeness claim because cells not unique and could have come from anyone. Dissent believes there are ownership claims that don’t include right to sell, therefore shouldn’t sue one forbidden property right to preclude all rights.)