1. DEFINITITIONS:
  1. Property law is the body of law that governs the relationship of persons with respect to things. It clarifies the relationships of different parties with respect to rights vested in certain things [property].
  1. Types of property rights [what kind of protection?]
  2. Right to exclusive use and control [includes the right to exclude others]
  3. Right to transfer/convey
  4. Right to protect resources
  5. Right to income and benefits [from sale or use]
  6. Right to compensation for takings [gov’t]

a)Midkiff: don’t have a right to insist at all costs you can keep your property- if gov't wants to pay for it, you have to give it up

  1. Right to protect stability (Utilitarian theories)

a)Property rights today should be what they were yesterday

  1. Right to hearings

a)Perry v. Sindermann: property right for due process purposes if

(1)There is a legitimate claim of entitlement (objective test)

(a)No matter how small the chance was or winning

(2)Claim is based on rules, or mutual understandings of the gov't that can be invoked at a hearing

(a)This means you have to show that the state has established standards by force of law that govern its own discretion- whenever the applicable law creates standards, then entitled to a hearing of some kind under the due process clause

  1. Right to be free from arbitrary discrimination
  2. Right to enjoyment- freedom from unreasonable interference
  3. Possessory rights:

a)Free from trespass and nuisance

  1. Policy basis [why give protection?]
  2. Protecting rights promotes law and order
  3. Rewards labor

a)A person who mixes their labor w/material things & takes them into possession, has a natural right to those things

b)INS v. AP: Associate Press put work & labor into getting news stories, therefore they should have some property ownership in them. Therefore they should have the right to exclude INS from using those stories as their own.

c)Keeble v. Hinckeringill: Economic activity should be protected from unfair competition, in order to protect labor. ∆ could use his property to fairly compete in the same business, but he cannot try to sabotage P from using his land lawfully

  1. Having rules reduces disputes

a)The clearer our property rules are, the less chance there is for disagreement

b)Agglomerative tendency: there should be a bright line rule about whether one has a property right or not- if you have one right to something, you have all the rights to it (bundling rights)

(1)This goes AGAINST RELATIVITY OF TITLE:

(a)Whether you have a right to exclude depends on who you are trying to exclude- you have rights against some but not others

(b)This is an application of the Jus Tertii doctrine- possessor has rights against everyone except the true owner.

  1. God’s will

a)Occupation theory- based on Natural law

(1)A person should have a property interest in land or other things that he occupies

(a)Occupies can mean using, or actual possession

(b)In Pierson, occupying meant actual possession/capture, not just pursuit

b)Natural law principles regarding property

(1)The premise of the natural law school was that there were fundamentals that were inherent in nature that would transcend over time, thus would still apply today. The idea that the natural law was out there, and it was for us to discover it. God made the world, and we only have to be smart enough to figure out what he wanted. Smart people figured it out a long time ago, so the law should not change. The judges were in the best position to discover the natural law.

(2)Now, we are realists. Law should be made by the people, not merely discovered. Law should change w/the times (dissent in Pierson)

  1. Protects expectations

a)Utilitarianism: Jeremy Bentham

(1)The law should confirm the expectations of the term “my property”- a good society makes the max number of people happy, and the law should guarantee this expectation

(2)The legislature’s job is to preserve the people’s expectations

(3)Efficient results if property is held privately b/c better bargaining positions/abilities: Demsetz’ theory of property rights

b)Kaiser-Aetna v. U.S.: KA invested in a pond, and expected to be able to exclude others from use of it. The gov't encouraged expectation, by not telling KA from the start that they would be subject to national navigable water laws. Therefore, we should protect KA’s expectation of reasonable investment backing.

(1)This is also an example of RELATIVITY OF TITLE, not agglomerative tendency

(2)Since the gov't, by opening the waterway to the public, has engaged in a TAKING- KA reasonably expected to be able to exclude others and the gov't is acting contrary to this expectation- “taking of reasonable investment backed expectations”

  1. Promotes efficient use of resources
  2. Protection of political liberty

a)Nestor

  1. Protects individual autonomy & liberty

a)Personality Theory (Hegel):

(1)Property is an embodiment of real world autonomy. W/out property, people are not really free. Their rights must be protected to safeguard against actions of the state seeking to limit human freedom

(2)Protect the individual against the power of the state

(a)Utilitarian is more focused on the greatest good for the greatest number

b)Flemming v. Nestor: N was deprived of his SS benefits based on his membership w/the communist party. N argued he had an absolute right to the benefits b/c they were an accrued property right. But, the court said that a statutory benefit is not like a property right, b/c Congress made it clear that it might alter or amend the provision of the act, so he didn’t have the right to expect this money. If however, he would have had a fee simple & the gov't took that, he would be entitled to just compensation.

  1. Protects privacy against gov't
  1. Marxist Theory:
  2. Land in the hands of capitalists deprives laborers of the fruits of their labors

a)The people who own all the property will always own it, and the laborers are doing nothing

  1. Marx would argue that there should be no private rights

a)Whenever you give someone the power to exclude, it will always end up being the bourgeoisie who have that right

  1. Shelley v. Kraemer: Neighbors signed racially restrictive covenants. These are not violative of the 14th amendment, but judicial enforcement of them against UNWILLING parties on BOTH sides amounted to a state action. This violated the fundamental notion of equality in the enjoyment of basic rights envisioned by the framers
  1. Conflict of Property rights with other rights:
  2. As a general rule, focus on the underlying values meant to be protected by certain property rights.
  3. State v. Shack---Does state trespass law violate Constitution, where legal and medical aid workers are charged with trespass on private property in there efforts to reach migrant workers employed by owner? Yes; The power to exclude cannot be used by a property owner to exclude or isolate individuals from social services deemed important and not otherwise available.
  4. Pruneyard Shopping ctr.V. Robins-May a shopping center owner exclude individuals from freely expressing there political views on the grounds of the mall? NO. Owner contends that this is a taking, however court rejects this argument b/c a) the mall is held out as open to the public; b) no diminution in economic value/function; c) owner can simply put up a disclaimer.
  1. Actions and Remedies: set of procedures that respond directly to the cause of action-could only sue for certain things, but the distinction is no longer made
  1. Trespass: action for an injury to one’s possession of land

a)Affirmative action by D

b)Direct or forcible action

(1)Invasion of land by tangible physical action or object

c)Remedy:

(1)Damages

(2) injunctive relief, usually granted routinely w/out balancing equities (don’t think of whether ∆ was blameworthy- its strict liability).

(3) Ejectment

d)Measures of Damages

(1)The ∆’s gain from the trespass is equivalent to the P’s loss. In such cases, it doesn’t matter what the measure of damages is.

(2)P’s loss exceeds ∆’s gain: the P is still entitled to be made whole. However, if the P elects to recover ∆’s gain, rather than his own loss (waiver of suit in tort), he can do so by suing in assumpsit instead. This focuses more on ∆’s gain, rather than on P’s loss.

(3)∆’s gain clearly substantially exceeds P’s loss, this is a BIG problem!

(a)Edwards v. Sims (Edwards II): restatement view doesn’t allow P to recover ∆’s gain. But in this case, recovery was allowed. This is b/c the tort damage award would be to restore the P to the position he was in to begin with, but in this case P is no worse off b/c he cannot get to the cave anyway. So, the court looks to the ∆’s gain.

(i)Not necessarily true that P’s loss is zero- loss may be what they would have bargained for.

(b)In most cases, courts will go with what is easier to calculate

(i)Geragosian: the owner of land is entitled to injunction for trespassing structures b/c

(a)Property is unique

(b)If ∆ didn’t move, might be a ripening for AP

(c)Might resort to self help

(c)Hard to figure out what the damages would be

(i)Economic rent: money paid for land that is only valuable to 2 parties

(a)Because this unique relationship, this something that is not useful to anyone but the 2 parties, thus there is no fair market value price & no way to calculate damages

(b)Injunction encourages bargaining between the parties, b/c the parties don’t have to enforce the injunction- they can bargain for less that it would cost to enforce the injunction, and both parties are better off economically

(i)Transfer earnings: if X could rent out a factory on his property but for Y’s using the property, the transfer earnings is the amount of money Y would have to pay to beat out the factory.

(ii)Exception:

(a)A showing of Estoppel or latches (when the landowner shows an undue delay in pursuing the remedy)

(b)A showing that enforcing the injunction would cause unreasonable hardship

(4)Injury to P or P’s property[No longer required to show harm or fault]

  1. Trespass on the Case: if the elements for trespass where not satisfied, then could try for action on the case.

a)The wrong: no direct physical invasion

(1)Nuisance covers much of this today. Action on the case is still used by the owner of an easement to challenge an obstruction of the easement (try to enforce the right to use the easement)

b)The remedy: damages

c)Examples:

(1)Inaction by D

(2)Indirect injury to P [e.g., when the injury is the loss of the horse, not the injury to the horse itself]

(3)Injury was to property not in P’s possession.

  1. Trover: action against a person who had found the goods of another and wrongfully put them to his own use; or, action to recover the value of lost chattel

a)Lies for wrongful interference with P’s goods

b)P is entitled to the full value at the time of conversion.

  1. Replevin: claim and delivery; suit to regain chattel taken by D.

a)Must show prior possession

  1. Ejectment: Action to recover possession of land from a trespasser

a)The wrong: owner ousted from land, ∆ in possession

b)The remedy: Sheriff removes trespasser and puts P back into possession of the property

c)In LL/T, may also have summary eviction [speedier, no defenses or extra claims allowed]

  1. Quiet Title Action: Possessor seeks declaratory judgment that P is the actual owner [preemptory]

a)The wrong: cloud on title: a claim of rights to the land from someone not in possession- when in possession but someone else has a legal claim.

b)The remedy: declaratory relief. Possessor wants the situation clarified that his rights are superior over others

  1. The Acquisition of Private Property Rights [by means other than voluntary transfer]
  1. Occupancy is “only a means to let all others know that we have an intention to appropriate such a thing.”
  1. Possession: physical control and the right to exclude others from such control; that which was appropriated by you.
  1. the right to exclude others from using the property

a)Keeble v. Hickeringill → D fired gun, scaring wild geese that resorted on P’s pond. Interference? P did not own the ducks in the pond. Court holds business competition is not illegal, but malicious sabotage/interference is illegal. Court finds this is such sabotage, therefore interference. Focused more on the interference aspect than property aspect.

(1)Protection

(a)Right to exclude others

(b)Freedom from disturbances

b)People are protected from business interference when they have a private franchise

(1)Exclusive right to do something

(2)In Keeble, the pond was open to all newcomers, but was still entitled to be protected against malicious interference

  1. Consists of dominion and control over the property with intent to exclude others.

a)Dominion and control must conform to nature of the thing and its suitable uses.

b)ejectment action

  1. Res Nullius: a thing that belongs to no one

a)2 tests to determine ownership over something that was previously res nullius: (a fox that was killed and captured)

(1)Occupation theory

(a)actual capture [manucaption] equals possession; mere pursuit is not enough.

(2)Labor theory → putting in the work and making it yours.

(3)Not Ownable

(4)Collectively Owned

(5)Owned by the State

  1. Possession is obtained by:
  1. Accession Doctrines: ownership of one thing is established by that parties’ ownership of something else.

a)Ex. If have a tree & you are trying to find the owner, you would find out who owns the land the tree grows on.

b)Ex: Ratione Soli → he who possess the soil possesses that which sits upon it. --Domestication can make a difference

  1. Agglomerative Tendency: either you have the property right or not [keeping it simple; having one set of rules]. This is what Pierson case is more focused on. Life is more complicated if there are lots of different subcategories of property protection. Its easier to say you have the possession under all principles, or you don’t.
  1. Capture Doctrine/Occupation theory: actual capture [manucaption] equals possession; mere pursuit is not enough.

a)Pierson v. Post → bright line rule is that you actually have to possess the object [have it in your hands] to have ownership of it [focus on property aspect]. Mere pursuit is not enough.

(1)Prior to capture a wild animal is farae naturae, and thus res nullius. Also the beach was res nullius, so ratione soli does not apply.

(2)This case was pleaded in “case” because the injury was to the fox that was not in the possession of P or to an interest that could not be described as his property

(3)Dissent: law should be changed with time; respect for labor and expenses of the hunt. Hot pursuit with an objectively reasonable ability to capture is good enough [majority didn’t like this because it would cause a flood of cases].

  1. Other animal doctrines:

a)Escaped wild animals: if they escape, they become farae naturae

b)Animus revertendi: owner retains possession if they roam

(1)Meant to encourage domestication because it’s valuable to society.

c)Commonwealth v. Agway → In order to acquire ownership of the fish, the state would have to acquire possession, and they could do this by physically capturing them. But they want to protect the fish, so capturing them would be illogical

(1)Occupancy theory is used here: in order to establish ownership rights, the state would have had to already physically possessed/captured them.

(2)State has the power to determine how the fish may be captured for the common good, but its not the owner of the fish to support this tortious claim.

  1. Jus Tertii defense:
  2. JT rule: T2 can win a suit for ejectment by saying that T1 cannot sue him, b/c he was not the owner of the property and thus does not have the right to sue
  3. Exception to the rule: If T1 is a PPP he is the only person who can use JT effectively to win a lawsuit, unless he is suing or being sued by the actual owner. A trespasser cannot win against a PPP using this defense, because the PPP has stronger title.
  4. Protects peaceful possession of property.

a)Peaceful possessor of land is usually allowed the same protection as an owner would enjoy, against some one who subsequently enters on the land

b)This is UNLESS the trespasser can show he is the owner.

  1. Policy: courts want to discourage self help
  2. Effect: prior to the expiration of the statute of limitations [SOL], possessor can prevail over anyone except the actual owner.

a)If adverse possession is met, then possessor can beat out actual owner.

  1. Chain of rights:

a)Owner → Prior Peaceful Possessor → Trespasser

(1)PPP: requirements

(a)Must have physical control over the property

(b)And intent to assume dominion over them [see above].

(c)[More than mere discovery of property]

  1. Trilemma (issue of damages- should we allow PP to recover?)

a)Recovery of possession: if PP recovers possession of land in a lawsuit, owner can later come and recover from PP.

(1) If owner sues trespasser, trespasser has 3rd party claim against PP, or the defense of property being turned over to PP.

(2)Therefore allowing PP to recover the property from the trespasser turns out not to have made a problem when the owner shows up later.

b)Monetary Damages:

(1)if PP recovers damages from T, and owner later shows up and demands damages:

(a)If PP is not bankrupt or gone

(i)Owner can recover from possessor, OR

(ii)Owner can sue T, and T can bring a 3rd party action against PP.

(b)If PP is bankrupt or gone

(i)If allow suit against T, then he may have to pay damages 2x.

(ii)If don’t allow suit against T, O has no remedy.

(c)If allow PP a monetary damage against T, there is a chance that

(i)Double liability against T

(ii)Leaving O w/out a remedy

(d)Can avoid the dilemma if refuse to allow PP a monetary remedy

(i)This often seems unfair, & it rewards the most recent T, b/c may not have to pay damages to anyone

(2)There is a split in the courts whether PP can recover monetary damages

  1. Adverse Possession: when a non-title holder is engaged in the occupation or use of property belonging to another person for some period of time, the possessor may be able to beat out the actual owner and gain good title to the land [until the required time has been met, the adverse possessor is a trespasser, against whom the owner can seek an ejectment action].
  2. Judge made law based on the owner’s loss of right to sue for ejectment due to an expiration of the SOL.
  3. Policy: punishing lax owners and rewarding diligent possessors; clears up title to keep property out of limbo.

a)When the owner cannot get any remedy at all, then it makes sense to say that the possessor has become the new owner