Property Midterm

What are the five theories or property?

First possession, Encourage Labor, Maximize Societal Happiness, Personhood, Ensure Democracy

what is legal positivism?

property is what the gov says it is/recognizes.

What are the bundles of sticks/rights?

right to use, right to exclude, right to destroy, right to transfer

• they all show limits, and the bottom line that property serves human values.

• also show how as society develops, so do our rights

  • i.e. the sun used to not be apart of your rights.

Right to use

Occupy it, enjoy it, make it productive, as long as it does not impede on the rights of others.

Prah v. Maretti

basically building a house that blocked the neighbors sunlight, for their solar panels. The old rule was that you didn’t have a right to sunlight. this case established a test that the courts use, where they weigh the harm against utility.

Right to exclude

Keep other people off.

Jacque v. Steenberg

Case where there was an alternate route, but they chose to go through the Jacques land despite being told no. This case established there does not need to be damages for a trespass claim. Here nominal damages supported 100,000 in punitive damages

• what is the right to exclude if courts don’t enforce it AND deterrence

State v. Shack

Case where, he had workers living on his land and were not allowing people to come on the land, without him being there. This case is a great reminder that property serves HUMAN VALUES.

• Your right to exclude cannot be used to make people on your land unreachable.

• Demonstrates that their is a limit to the right to exclude

Right to destroy

Consume it, alter it, tear it down. The most contested stick.

Eyerman v. Mercantile

Wanted to destroy house after she died. This case demonstrates an exclusion to this stick, you cannot destroy something of value, if it affects others. Limits your right to destroy when it may affect others.

Right to transfer

Sell it, give it, leave it in a will.

Johnson v. M’intosh

Two men claim the same land in what is now Illinois. One bought from the tribes. One took a grant from the United States.

This case demonstrates the Idea that EVERY land went back to sovereign grant so have to recognize it.  

• Native Americans were unable to convey land. they were just occupants of the land, that the discover found, giving title to their country.

1. Legal positivism: it is what the gov says it is 

Moore v. Regents

Moore needed medical treatment and he has valuable tissue, that the dr uses without his consent and basically create a cell line that makes a lot of money 

1. The cell line itself is the product of human inventive effort (patented), which further undercuts Moore's claim to it. 

2. Moore did not expect to retain possession of his cells after they were removed, so he never had an ongoing ownership/possessory interest in them. 

What property rights do we have?

NONE, we have interests in property. property is only what is recognized by the state.

Pierson v. Post

Pursuit alone is not enough, need some element of control.

White v. Samsung

The Eastwood Test:

• Use of the plaintiff's identity

• Appropriation of name or likeness to the defendant's advantage, commercially or otherwise

• Lack of consent

• Resulting injury

protects celebs from any appropriation of identity, by any means

What is adverse possession?

The idea that title can move without there needing to be a deed.

Policy reasons: Maximize societal happiness and encourage labor, personhood(if you use it that long it becomes apart of your identity)

**on exam START with the weakest element

Gurwit v. Kannatzer

This case is where there was a dispute over a property line. One owner thought he owned and used it, when in reality the neighboring land was the true owner. After the statutory period ran, the true owner then tried to take possession.

Elements of Adverse Possession

OCEAN

-open and notorious

-Continuous

-Exclusive

-Actual

-No consent/Hostile

ALL for the entire statutory period

• if anyone fails during that period, the clock resets

Open and notorious

Visible enough to alert a reasonable owner

Continuous

owner like use for the entire period

Exclusive possession

under your control, not open to public, or also being used by the real owner

Actual

physical use suited to the land

No consent/hostile

using the land without permission

**if you have permission to use it, you are not using the land hostility.

Approaches to hostility

• Objective approach

  • belief about ownership is IRRELEVANT to hostility.

• Good-faith approach

  • the owner honestly believes they own the land

    • under this approach if you know it is not your land, your claim would fail

    • color of title- a written title, that seems to convey title but doesn’t

• Bad-faith approach

  • they know it is not theirs, and buy using it, they intend to claim it.

    • if they don’t know, then their claim would fail for lack of intent.

    • Claim of right - asserting your right as the owner

Van Valkenburgh v. Lutz

**court here favored the bad faith approach.

basically there was this parcel of land and they used it as an easement for years. they also built a little house on it, their garage was partly on the land, they also had a garden there.

well someone buys the land and they try to sue for an easement first, THAN AP. By acknowledging the owner’s title when claiming easement, they forfeited AP. they acknowledged that there was another owner and that by claiming the easement they were not trying to assert a claim of right/hold the land like it was their own.

Fulkerson v. Van Buren

in 1985, a church began using an abandoned church like their own. They improve it, used it, exercised control, etc. In early 1990s they asked the true owner for a deed, he said no. SO with that, they were not using the land hostile anymore because they recognized that it belonged to someone else. Right there the claim stops and time restarts.

The claim failed here, because of the 7 year period. by asking for deed, the clock restarted, so even though they remained there they did not remain 7 years

Tioga Coal v. Supermarkets

They thought someone else owned the land, but satisfied all of the other elements.

• this case establishes that hostility only need be objective

What is tacking?

Tacking occurs when multiple adverse possessors time periods are combined. They must be combined through privity which is some voluntary transfer of possession.

Howard v. Kunto

demonstrates tacking. they bought a lot where all of the lots were shifted over on the deeds. well people tried to pull a fast one one them. they had not lived there long enough but there time period tacked onto the other adverse possessors, therefore satisfying the time period.

also demonstrates that seasonal use of a property is fine.

What is tolling?

Pulling apart. If in hospital for 2 years, then 2 years of adverse possession does not count .

Basically protects people from adverse possession claims. Stops the clock

What is the traditional idea on airspace and subsurface rights?

The maxim: That a landowner owns all the way up to the heavens and down to the earth. Not true today

Courts look at:

1. the property interest involved

2. type of invasion

3. and the governing claim

   1. what’s being sued for

Courts ask: how can they actually use the land? if they can use it and interferred with they have a claim.

U.S. v. Causby

The owner retains the immediate reaches usable in connection with the land. case where the U.S. flights caused their chickens to die and buisness to fail and was overall a nuisance. The court said you have the right to the airspace within reaches you use. They used the land and the planes directly interfered with their use and enjoyment of the land.

The new idea: The owner retains the immediate reaches usable in connection with the land.

Chance v. B.P

There was no evidence of injury or affect on the landowner. subsurface trespass requires some type of physical damage or intereference.

Rule of Capture

first person to bring something under certain control possess it.

Exceptions:

• Animals that come home

• Customs (like whale hunting, cannot possess a whale)

• The commons

  • everyone can capture until the resource becomes scarce.

State v. Shaw

fisher had nets out. virtually impossible for them to escape, court said that enough control, they had precuations to prevent escape.

Popov v. Hayeshi

this case is just weird. basically they adopted Greys rule: that possession requires complete control but then they said he had a pre-possessory interest which is established when someone takes significant steps, but incomplete, towards possession but interrupted by unlawful acts. So basically they made them split the proceeds.

What is the order of title?

True Owner

Earlier Possessor

Finder (even if a thief)

later taker

Armory v. Delamirie

boy found a jewel. he became the finder and had possession over anyone else including the goldsmith who stole it.

The Finders Right  

1. Finder lacks complete ownership, yet has rights against all but the rightful owner 

2. The Master is Liable  

3. The Measure of Damages  

   1. Since he refused to give up the jewel they found the value of the best jewel 

Hannah v. Peel

he won just because the guy never lived there

established bailement

Whats a bailee?

keep the property safe and return to anyone with a better claim

1. mutual benefit: reasonable care

2. for bailees benefit: extraordinary care

   1. bc ur borrowing it

3. bailors benefit

   1. gross negligence or bad faith

   2. Someone is doing YOU a favor. Only legally responsible if they do something in bad faith or gross negligence 

Four categories

1. Lost—Parted with by accident, finder, subject to prior rights

2. Mislaid—placed and forgotten, goes to place owner to hold for real owner

3. Abandoned—-gave up rights to, goes to finder

4. treasure trove

embedded property goes to the landowner

McAvoy v. Medina and Benjamin v. Linder Aviation

pocketbook found on table. Mislaid, the owner holds onto it for rightful owner

• owner would come back and look there

Found in the plane wing

• thought the thing was misplaced so when to the bank that now owned the plane

Adverse possession of chattels

Title to personal property may be obtained by adverse possession. The basic concept is the same as for adverse possession of real property: the statute of limitations bars the prior owner from bringing an action to recover possession, thus vesting title in the adverse claimant.  usually a shorter time period

1. Good faith for value 

   1. Thinking they bought it paying fair value for it

2. use it open and notorious

   1. For the statutory period  

here they changed the varnish but only after the period, also took it to lessons

Reynolds v. Bagwell

Violin stolen. Resold to innocent byer.

O’Keefe v. Snyder

establishes the discovery rule: basically that the clock does not start running until they discover where the chattel is or reasonably should have known. here she didn’t look for a long time but had no idea where it was.

Asks: whether the owner has acted with due diligence in pursuing his or her personal property.  

1. By diligently pursuing the goods, owners can prevent the statute of limitations from running. 

1. Must justify a delayed start in looking.  

What makes a inter vivos gift?

Irrevocable

1. donative intent

   1. transfer ownership RIGHT NOW

2. delivery

   1. as perfect as the nature of the gift allows.

   2. Manual

      1. physical

   3. constructive

      1. means of access, a key to a desk

   4. symbolic

      1. something that stands for it, the letters

3. acceptance

   1. presumed for anything of value

Exceptions: Gifts by check are not finished until cashed. engagement rings until married.

Gruen v. Gruen

Dad wants to give son a painting. he sends letter to him saying its his but he wasnt to keep it for rest of his life.

intent- he was vesting his sons interest in it NOW

delivery—the letters

acceptance—he told people abt it but it was also of hella value.

Gifts Causa Mortis-in anticipation of death

Revocable until death- if you think you will die and don’t you can take back the gift because it was conditioned on you dying

intent, delivery, acceptance, AND anticipation of imminent death (present illness or external peril) - delivery was leaving the note

Suicide wont always satisfy this but here it does.

In re Estate of Oaks

veteran with ongoing mental health issue, commits suicide. he writes a note leaving everything to his long term partner who lives with him

• estranged daughter tries to make claim.