Property Law (Dukeminier, Krier, Alexander, Schill, 7th ed.)

Property Outline

1. Introduction: The First Possession Rule
   1. Property Policies
      1. Behavior Prevention
         1. Certainty
         2. Preservation of Peace
      2. Behavior Facilitation
         1. Reward Labor (Locke)
         2. Pro-Market
      3. Acquisition by Discovery
         1. Discovery acquires title (legal claim) over land – absolute ownership – dominion
            1. Dominion is not just exclusionary – it also allows control of one’s possessions – power to dispose of it
         2. First in time doctrine: the person whose interest is first delivered prevails over anyone    who acquires an interest later
            1. Reduces Conflicts
            2. Rooted in our nature as living organisms (Pipes)

• Incentivizes Productivity, economic efficiency, an activity

1. Marxist critique – ideological – benefits the powerful – unjust and arbitrary

3. Johnson v. M’Intosh (Should the government recognize Indian title to land when the government also has title to land?)
   1. Holding: Title is established by the first person to possess the now legally claimed land.
   2. Conquest gives title which the courts of the conqueror cannot deny

• Chain of title – GB relinquished claim to the proprietary and territorial rights to the US and states ceded their claims to title through the US Constitution
• Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest

1. An absolute title to land cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title or at least a title which excludes all others not compatible with it.
2. Property rights are defined by the society in which they are at issue

• Discovery Doctrine – gives title (legal claim) to the land
• Rose – Indians occupied but did not possess the land by altering it – the doctrine of first possession reflects the attitude that human beings are outsiders to nature

1. Acquisition by Capture
   1. Pierson v. Post (Post was suing Pierson for killing the fox he was pursuing)
      1. Holding: Mere pursuit of a wild animal gave Post no right to the fox.
      2. Occupancy requires actual physical possession of the animal
         1. Policy reasons:
            1. Certainty
            2. Preservation of Peace (prevents conflict)
            3. Objective fact

• Rule of capture – possession requires either physical possession or mortally wounding

1. Lockean perspective – Physical possession (or mortally wounding) the animal mixes the labor sufficiently to create a property right. Pursuit doesn’t mix with labor enough.
2. Dissent (Livingston): (1) It was better to adopt the custom of sportsmen to determine ownership of the fox (2) recognition of property rights in wild animals when there is a reasonable likelihood of capture would conduce more rapid extermination of foxes – promote economic activity
3. Ratione solie – a justification for assigning property rights to landowners over resources found on their own land

2. Ghen v. Rich (Whaling case)
   1. Rejection of the rule of capture in favor of custom
   2. Holding: When an industry represents a reasonable act of first possession, property claims based on this custom will be upheld.

• Policy Reasons: custom is certain and preserves peace – promotes the policy goals

1. Marking may justify a property claim of wild animals if it follows the same principle of first possession
2. Bartlett v. Budd
   1. The act of killing and attaching a flag to the whale was sufficient to establish first possession even if the whale is later found by a third party without the flag attached
3. Keeble v. Hickerngill (P had a decoy pond to capture ducks for profit. D fired guns near P’s land to drive away ducks)
   1. Holding: D cannot maliciously interfere with P’s commercial use of property.
   2. Rule: A person will be liable for any malicious interference with another person’s commercial use of property

• Policy Reasons: rewards labor, pro-market, and preservation of the peace
  1. Individuals should reap the fruits of their labor – increase productivity – support for capitalism

1. Keeble had “constructive possession” of the ducks because they were on his property

4. Fugitive Resources
   1. Hammonds v. Central Kentucky Natural Gas Co.
      1. The nature of oil and gas is fugitive and migratory and can escape without the violation of its owner and is analogous to wild animals – status as common property
   2. Property in One’s Person
      1. Moore v. Regents of the University of California (D uses P’s discarded cells for profitable purposes, P sues for conversion)
         1. Holding: A patient does not have a property interest in excised body parts and thus cannot sue for conversion for the use of these body parts without the patient’s consent
         2. P did not expect to maintain a property interest over his cells – no property interest, no cause of action

• To establish conversion – the P must establish an actual interference with his ownership or right possession – where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion

1. Conversion is a strict liability tort – if P has a property interest – anyone who handled the cells is liable – creates uncertainty
2. A patient may sue for a physician’s breach of a (1) disclosure obligations and (2) fiduciary duties in the use of the patient’s tissue without consent
3. Pannelli – Property requires the right to exclude (false dichotomy – property rights can be split up)

• Dissent (Mosk): we limit and restrict property in a number of ways – you can’t sell an organ but you can still gift it – organs are inalienable – but you can still transfer them.
  1. Bundle of Sticks view – losing one stick doesn’t eliminate the whole bundle
  2. Statutes treat organs as property in other cases – their use should receive compensation
  3. Patients should have the right to both refuse consent and to grant it
• Policy Reasons:
  1. Allowing conversion creates uncertainty
  2. Encourages medical innovation
  3. Better solved through legislative action
  4. Not necessary to protect patient rights

1. Accession v. Exception (p84 f.48)
   1. Accession – owner of property has dominion over what occurs on that property
   2. Exception – If the third party’s labor accounts for substantially all the value of the final product, reward trumps certainty
2. Radin
   1. Property is more than a commodity on the market
   2. The body is personal property and constitutive of one’s personhood

• Commoditization and alienability of organs lead to anti-personhood

1. Marxist – market inalienability leads to human alienation

3. Hirschmann
   1. Commerce promotes peace and attaches men to one another through mutual utility
   2. Market economy creates a more polished human type – more honest, reliable, orderly, disciplined
4. Conceptualizing Property
   1. Rose – possession requires communication, notice – it must be a declaration
   2. Blackstone: The Commons and the Evolution of Property
      1. World starts as a commons, possession is a right so long as you use it
      2. Use becomes the foundation for the conception or property

• Exclusion is recognized as the foundation of property as dominion

1. “That sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

3. Economic Analysis of Property Rights
   1. Demsetz
      1. In a commons – no one is responsible
   2. Transaction cost of people agreeing to prevent the destruction of the commons is too high for them willing to engage in those transactions to gain benefit

• Private property is the solution to the transaction cost problem
  1. Provides a right to exclude – internalize costs and benefits for the use of the resource
  2. Lowers transaction costs

1. The Right to Exclude
   1. Jacque v. Steenberg Homes Inc. (D elected to trespass on P’s land rather than use an alternative private road that required extra equipment to get through)
      1. Holding: The P had “exclusive enjoyment” of his own land and had the right to exclude the trespasser
      2. Purpose of remedy is to uphold the right to exclude and prevent future trespass – secure the peace

• Property serves a social function – peaceful nature

2. State v. Shack (D, a landowner, had no right to bar poverty agency worker from access to migrant workers)
   1. Holding: D’s right to exclude ended where the tenant worker’s need for reasonable access by visitors began.
   2. Title to real property are not absolute – cannot include dominion over the destiny of persons the owner permits to come upon the premises
3. Morris Cohen
   1. The essence of private property is always the right to exclude others, but it is not inviolable: if the property owner is viewed, as he ought to be, as a wielder of power over the lives of his fellow citizens, the law should not hesitate to develop a doctrine as to his positive duties in the public interest
4. Richard Epstein
   1. Nothing wrong with a system that allows individuals to exclude – those who exercise absolute rights in a capricious fashion pay for their folly by losing their markets

1. Subsequent Possession: Find, Adverse Possession & Gift
   1. Acquisition by Find
      1. General Rule: Finder Prevails against all but prior possessors and the rightful owner
         1. Finder v. Owner of Premises in Lawsuit over Found Object
            1. Finder = Trespasser: Owner of premises where object is found prevails in dispute over ownership
               1. Policy reason: we want to discourage trespass, which is a breach of the peace and a potential source of conflict
            2. Finder = Employee on Premises for Limited Purpose: The owner of the premises usually prevail (states differ)
               1. Same policy justification as in McAvoy: we want to facilitate return of objects to the person who left it
               2. Hopefully: person who forgot the item will return to reclaim it – owner can keep it
            3. Object Found Underground: always awarded to the owner
               1. Policy: the law respects the owner’s expectation of ownership of things in property
               2. Exception: Doctrine of Treasure trove –valuables such as money, gold, silver, etc.. that are intentionally buried with the intent to retrieve it at a later point
               3. English Rule: the object belongs to the crown
               4. American Rule: treat as mislaid property and apply relevant rule
            4. Object Found in Private Home: goes to the homeowner
               1. Exception: If the owner is not in possession of home, then it goes to the finder
               2. From Hannah v. Peel (p101)
            5. Object Found in Public Place: Apply lost/mislaid distinction
               1. Rule from McAvoy
               2. Lost property – property mistakenly left somewhere
                  1. Result: Object goes to the finder
               3. Mislaid property – property intentionally placed by the owner and then forgotten
                  1. Result: property goes to the owner of the premises
                  2. Policy justification this facilitates return of the object to its rightful owner who will approach the owner of the premises in attempting to recover the item
               4. Finder of Abandoned Property
                  1. Property intentionally discarded by its true owner with no intent to retrieve it
                  2. Rule: Property goes to the finder

• State Statutes
  1. In NY, all lost, mislaid, and abandoned property and treasure trove will be treated as lost property

2. Armory v. Delamirie (P “found” a jewel in someone’s home and tried to cash it in and D’s employee took it)
   1. Holding: The finder prevails against all but the rightful owner
      1. Prevents people from taking the law into their own hands
      2. First possession = objective fact
      3. Finder only has relative title
   2. Trover – action for monetary damages in equal value of the chattel

• Replevin – Action for return of chattel

3. McAvoy v. Medina (A pocket book accidentally left by D’s customer was recovered by P and given back to D on the condition that the rightful owner recovers it)
   1. Holding: The finder of misplaced chattels on another’s property does not have the right to possess the chattels.
      1. Item was misplaced, not lost
      2. It was the duty of the D to use reasonable care for the safe keeping of the object until the owner should call for it
   2. Policy reason: certainty – facilitate the return to the person who lost property.
4. Acquisition by Adverse Possession
   1. Adverse Possession Doctrine: If, within a specified number of years, the legal owner of property (chattels or land) does not bring a legal action to eject a possessor who claims adversely to the owner, then the owner is barred from bringing an ejectment action. (standards based, not rule)
      1. Two Broad Requirements:
         1. Expiration of the relevant statute of limitations
         2. Adverse possession during the limitations period
      2. Four elements of Adverse Possession
         1. Actual entry giving exclusive possession
            1. Rule: Possession must be of a character that the community would reasonably regard the adverse possessor as the true owner
            2. From Lutz:
               1. Cultivated or improved it
               2. Enclosed it

• Used it for harvesting materials

3. From Ewing:
   1. If the adverse possessor has done something with the land, such as the factor identified in the statute in Lutz, and filed trespass lawsuits against third parties, then it is sufficient to qualify as actual entry with exclusive possession
4. Serves 2 functions:
   1. Triggers claim by title owner to bring trespass and ejectment actions
      1. Starts clock on statute of limitations
   2. Establishes basis of adverse possessor’s claim to the land
      1. The adverse possessor is acting as the true land owner
   3. The Adverse possessor’s title to the land, once established, relates back to the moment the action accrued, i.e., the beginning of the trespass that ultimately lead to full-blown adverse possession.
   4. Policy Justification
      1. Rewards possession, as possession is the root of title (property=dominion=exclusive and absolute possession of something) (reward labor)
      2. Economics: signal function of property (certainty; reduce conflicts; pro-market)
   5. Open and Notorious
      1. Rule: Possessor must provide reasonable notice to the legal title owner that an adverse possessor is on the property
      2. If the owner can’t see adverse possession if he actually looks at the trespass – or if owner couldn’t see trespass if owner had bothered to survey the property – then the trespass is not open and notorious
         1. Example: Manillo (minimal adverse possession only identified by on-site survey is NOT open and notorious)
         2. Manillo – if possession is only a minor encroachment, then it must be “clearly and self-evidently apparent to the naked eye”
      3. Purpose of the requirement: If the adverse possession is kept secret, the title owner can’t defend her rights and file trespass/ejectment action
   6. Adverse and under claim of right (Hostile)
      1. Rule: Possession must be without the owner’s consent
         1. Easiest way for title owner to defeat potential adverse possession claim: The property owner tells the putative adverse possessor that she knows the person is on her property and she grants permission to use her property
         2. The adverse possessor must possess land under claim of right
      2. Two Tests:
         1. Objective test: actions of possessor determine if there is a claim of right – the adverse possessor’s state of mind is irrelevant
            1. Majority rule in American and England
            2. Policy Issues
               1. More certain in application, as there is no need for court to attempt to divine content of mind of adverse possessor
               2. Problem: rewards the bad actor
            3. Subjective Test (Maine rule): the adverse possessor must have bona fide or good faith belief that he or she has title to land
               1. Minority Rule in America
               2. Policy Issues
                  1. More certain in application, as there is no need for court to divine content of mind of adverse possessor
                  2. Problem: rewards bad actor
               3. Continuous and uninterrupted possession for the statutory time period
                  1. Rule: continuity of how an average owner would possess this particular type of property
                     1. There can be intervals during which the property is not used (such as seasonal homes)
                     2. Some states require that adverse possessor must pay taxes on land
                  2. Policy Justification: provide owner with sufficient enough time to discover the unlawful possession and do something about it. We only want to punish truly delinquent or nonfeasant owners.
                  3. Abandonment by the adverse possessor stops the running of the clock for adverse possession
                  4. Tacking is permitted
                     1. Adding periods of possession by prior occupants in order for the adverse possession claimant to meet the statutory time period
                     2. Requires privity between the adverse possessors, i.e., a successive or mutual legal relationship with respect to the property

• Can tack 28 years of adverse possession

5. Two ways the title owner can stop the clock:
   1. Interruption: If owner reenters the land openly and notoriously for purpose of regaining possession, then the clock is stopped
   2. Disability of Owner: tolls the clock for as long as disability exists

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