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Property Law Outline

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Property Outline Johnson v. M'Intosh - p. 3.
? Issue: may Indian tribes give a legally recognizable title in land to private individuals, such that the title may be received by the private person and upheld against any claims by courts of the United States?
? Holding: no; might makes right, and the Indians have no valid title to convey; title depends entirely on the law of the nation in which the lands lie
? Miscellaneous: not really sure what is "discoverable" -- for example, wouldn't have been able to "discover" China at the time of this case Pierson v. Post - p. 18.
? Holding (rule of capture): wild animal has to have come under your control -killed or mortally wounded; mere pursuit does not give someone a right to it
? Dissent: wants reasonable capture status to encourage fox hunting
? Just like a fox, if money leaves your hands and blows down the street, it's no longer yours (UNLESS you can show prior possession and an unwillingness to part with it)
? Miscellaneous: if you want dead foxes, fish, etc. you want the rule of capture o works the same with oil, water, gold, etc.
? We might want to stop applying a strict Pierson rule in close cases because they may just come down to a matter of notice (e.g. knowing if the silver foxes were native or not)
? Grand theme of Pierson: how to reduce something that is not owned to give someone property rights over it depends on species, whose land it was on, domestication status (something no longer ferae naturae when it has animus revertandi [will to return]), etc. o also, there's a difference between losing something you own and something under your control escaping -- it's all about whether the "you-ness" sticks to it when it leaves your control Ghen v. Rich - p. 26.
? One difference from Pierson is that the whale was already dead here o this, then, could actually have been decided on the Pierson rule since the whale had been killed / mortally wounded o judges CAN'T enforce customs (even if everyone agrees), when it violates our system of law
? When, according to this court, you can use custom o extremely limited scope o custom must have been recognized for a long time o **crucial one according to this court -- if industry would crumble if custom not allowed to stand
? this is where Miller disagrees because he thinks whalers would just hire beachcombers if this court had come out the other way

1 Some reasoning: combination of fact that (despite not having physical control) whaler did everything possible to possess the animal and custom allows whaler to get the whale Keeble v. Hickeringill - p. 30. (Duck case)
? Trespass on the case -- not asserting a possessory interest o this is opposed to actual trespass because with actual trespass, you have a possessory right to whatever is in dispute o here, P is just saying D was not playing fairly
? Judge imputed malice to defendant o fair competition is fine (e.g. he could use his own decoy and drive plaintiff out of business that way), but putting yourself through pain just to make someone else hurt is not okay (this is real malice)
? real world example: lowering pricing to drive someone out to then create a monopoly is pure malice
? Holding: we don't want to legitimize actions of pure malice (they're economically inefficient...if everyone behaved like D, there'd be fewer Ps to go after ducks, which would make price of ducks go up); even though P did not have title to ducks, he was using his land in accordance with the law and D was interfering with P's lawful use of the land, thus entitled to damages Hammonds case - cited p. 37.
? Have no right to penetrate boundary of neighbor's land in order to get resource, but if you're drilling under your own land (even if from same oil deposit), you're in the clear
? Can lead to compulsory unitization -- people with surface interests getting prorated shares o this keeps overdrilling down and raises the price for everyone
? Fugitive resource - you can harvest as much as you please even if it interferes with others' ability to get it (so long as you're harvesting legally)
? This is another illustration about the rule of capture being very effective for harvesting stuff as quickly as possible because it leads to the "I have to get it before my neighbor does" mentality Demsetz reading
? In a communal property regime, everyone has an incentive to over-exploit his share of the resources.
? External pressures can also lead the community to over-exploit, because there's no incentive to wait for greater gains later if there is a risk that another member of the regime will beat you to it
? Problem: Every property regime is a mix, and always has been. Demsetz is comparing two private property regimes!
o In a true communal property regime, there shouldn't be an incentive for my neighbor to chop something down because everyone should be sharing the profits (you don't get anything extra from your labor...this could lead to under-exploitation)2

The switch to a p.p. regime also assumes that individuals have an easier time making up their minds than do groups, which is not always the case
? Communal Property: 1) tons of externalities; 2) generates lots of costs AND benefits; 3) to make a move, must deal w/ moves of holdouts and freeriders - need everyone's consent to make decision
? Private Property: 1) fewer externalities (and fewer transaction costs); 2) everything made less costly to bring in externalities to cost-benefit analysis and then make more accurate; 3) fewer holdouts and freeriders to deal with Moore v. Board of Regents - p. 70.
? P suing D for profits researchers made off cell lines/samples from his body/spleen
? Holding: P has no claim to his own spleen, bc humans/body parts cannot be bought/sold
? Dissent: PLENTY of products of the body can be bought/sold (eggs, sperm, blood) or donated (organs)
? Basic rule of property lurking in this case: any time someone impermissibly takes something, good title is not transferred all the way down the chain, even if "innocent" people are involved o but court does not apply rule here b/c they say spleen is not property
? this is absurd because if Moore had gone back to get his spleen, he'd have been a thief, so it clearly is property to someone
? With trash, there is still some "you-ness" in it until the reason for which you've abandoned it has happened (can think of putting trash to curb as quasiabandonment) o court has no good abandonment cases to show Moore abandoned his spleen o this is similar to the case where leg accidentally put in smoker -- Miller thinks the amputee would get the leg because it wasn't true abandonment
? 22-pound spleen, which might generally be value-negative in itself, is similar to the value-negative gas station...better believe you still own that (because you have to still pay taxes on it, etc.)!
Jacque v. Steenberg Homes - p. 89.
? Right to exclude is most important proprietary claim you can make State v. Shack - p. 90.
? Migrant workers' landlord didn't let social worker onto his property o landlord had no right to exclude the social workers who were basically just ensuring that migrant workers got healthcare
? Right to exclude is eroded depending on certain policy considerations Armory v. Delamire - p. 98.
? Chimneysweep "finds" jewelry, refuses to just take 3 pence for it from jeweler
? Holding: first finder of lost or abandoned property has superior title against all others except true owner
? By overpricing the damages (by making D either return jewelry or give value of biggest stone), court is encouraging returning the jewelry3

Assuming J (jeweler) paid finder damages instead of returning piece, true owner could go after J and would win (in part because this is an involuntary bailment case) o this sort of "double screws" J, which further encourages giving piece back o BUT now J has claim against finder because, by paying owner the damages, he has now been subrogated to O's claim against anyone down the line
? O-F-J(sold to X for $2k)-X(sold to Y for $4k)-Y(sold to Z for $6k)-Z(market value now $8k, remains unsold) o this all assumes the value of the stone is increasing o O v. X - O wins $4,000 o X v. J - X wins $2,000 o If O originally went after X, would mean Y and Z were home free because X retroactively would have had right to convey perfect title (after X had been forced to assume O's position in the world)
? After acquired title doctrine o if you sell something (without perfect title) to someone and you then get sued, you can't sue on down the chain; you CAN, however, go up the chain to the person who sold you faulty title
? Overall, we give rights to finders so that O can have a claim against those rights Menzell v. Lizst - not in book (?)
? M goes after L to recover a painting originally looted by the Nazis, which has changed hands repeatedly. The court awards the painting to M.
? L then goes after Y for selling him a painting with bad title. In the intervening period, the value of the painting has risen from the 4000 Y sold it for to 50,000.
? Result: Y must pay L 50,000. Note that Y could then sue X for the current value of the painting, and X could sue down the line to Himmler for the current value.
? This is an alternative to Armorie v. Delamire, where the buyer of a stolen item must either return the item to original owner O or pay O the proceeds of the sale.
? In this system, the buyer of a good bears the risk that the value of a good with imperfect title will rise or fall after it has passed onto someone else. It is just as reasonable as a system that fixes recoveries at the price at the time of sale (usually awarded with interest). Winkfield
? Distinguished for cases of voluntary bailments. Where A voluntarily entrusts her property to B, and C steals, damages, destroys, etc. that property, B has an action against C. If B prevails in that action and C pays B, A no longer has an action against C to recover her property. A only has an action against B. Hannah v. Peel - p. 101.
? Corporal Hannah finds brooch at Major Peel's house, turns it in, Peel eventually profits by selling it after Hannah's lawyers had sent him a letter
? Holding: Hannah gets value of the brooch4

Case mentions Bridges v. Hawkesworth (case where money found in box on ground in shop) o what's actually important in Bridges is who counted as finder, shopkeeper or guy who picked it up?
? put differently, it's about who can be liable to true owner (that person will be the winner of the case)
? important thing is where it's found -- private or public part of the store (e.g. finding dollar bills in the aisle or behind the counter)
? General rule: if found in your land, it's usually assumed to be yours
? There's not really a discernible rule from Hannah, just a gut intuition to give him the value of the brooch since it wasn't worth too, too much
? Unlike Armory, Hannah isn't a relative title case -- it's about getting into the position where you can have relative title, i.e. who can be liable to true owner
? One possible policy goal of this would be to encourage people to turn stuff in (seeing as Hannah, who turned it in, got rewarded in the end)
? Miscellaneous: with misplaced property in the U.S., owner of locus gets it o owner of locus deemed to own everything in the ground and everything attached to the realty McAvoy v. Medina - p. 107.
? Total hornbook rule of American version of mislaid vs. lost property
? "Mislaid" basically just a term the bench will apply when they want the property to go to the owner of the locus o allows a court to act like it's rule-oriented when, for reasons it can't articulate, it wants to give something to the shop owner?

"Lost" implies it was accidentally put wherever it was (i.e. like in Bridges, where the guy had dropped the box of cash on the ground accidentally) - finder gets it

Popov v. Hayashi - handout
? Popov judge puts on his equity hat and splits ball 50/50
? No process of possession like this judge says...possession is a fact o think Pierson and how if you're about to get the fox, if you don't have it, it's not yours
? 50/50 split rule (or 10-90, etc.) would encourage more litigation because you're pretty confident you'll get something if you litigate o all-or-nothing rule discourages litigation, which is a good thing o it also encourages settlements Adverse Possession: Van Valkenburgh v. Lutz - p. 122.
? In general, for adverse possession in most jurisdictions, must be: open, notorious, visible, actual, adverse, exclusive (have to act as sole owner, excluding others from land), continuous, etc.
? Claim of right -- it's yours until someone kicks you off

5 This court just misunderstands the concepts of claim of right (subjective good faith, subjective bad faith, and objective; possessors believe [or don't believe] they own property) and hostility (possessors wrongfully seek something not theirs) o Court says: Lutz wasn't hostile b/c he just sort of built on land o Court says: when Lutz knew he didn't own it, he didn't have a claim of right o But by making these statements, court effectively eliminates all routes to adverse possession! Bad decision.
? "Under color of title" o X thinks she owns it because she holds a paper deed that turns out not to be good. Example: Y conveys the title to X by executing a quit claim deed, but it turns out that Y did not actually own the property. o Where X seeks adverse possession under color of title, she may be entitled to the entire parcel of land, and not just the tract she has possessed. (Only applicable in jurisdictions where the adverse possessor may/must make her claim under claim of right). Manillo v. Gorski - p. 136.
? Maine Doctrine: in order to claim title, the adverse possessor must have hostile intent (i.e. he knows he does not have a legal right to possess the land but does so anyway).
? Built steps 15" over the property line
? This case highlights how mental state doesn't matter when it comes to adverse possession; actions do
? But was 15" open and notorious? This court says no
? So, as the adverse possessor, you don't need to have hostile state of mind to satisfy hostility requirement
? But when it's a minor encroachment like this, open and notorious requirement only met if actual owner knows of the encroachment Tacking, Disabilities, AP against the Government, p. 150
? Disabilities statutes tack on a little bit of time to the statute of limitations (person was a minor, insane, off at war, etc.);
? Then, the adverse possessor has to satisfy that extra time requirement
? Only the disabilities that were there when the adverse possession started matter
? For the most part, cannot adversely possess government lands (this is the common law rule) o some states, however, have legislation or judge-made law that allows it in some circumstances O'Keefe v. Snyder - p. 151.
? P's paintings went "missing" from a gallery run by her husband in the 1940s. In the 1970s, the painting was discovered in D's possession. The painting was worth considerably more now.
? D argued that his father bought the painting in good faith from P's husband.6

?However, D is content with the theory that the painting was stolen, because the statute of limitations should perfect his title to the paintings. o Question: when does the adverse possession clock begin to run? Did it begin to run when P knew the painting was lost, or when she knew D possessed it? Was it D's duty to do due diligence before buying the painting (by checking a registry of stolen paintings) or was it P's duty to report the paintings stolen within the statute of limitations period?
UCC 2-403(1): A purchaser takes all title to a good which the seller has the power to convey (common law position). o Void title: what a finder or thief has. Void title passes all the way down the chain. The true owner has an action against anyone in the chain. o Voidable title: obtained when the goods are passed to an intermediary voluntarily. Example: when an artist entrusts her paintings to a gallery owner for display for a period of time. A holder of a voidable title may pass a perfect title to a good faith purchaser for value. So if the gallery owner wrongfully sells the painting to a good faith buyer for its full market value, the buyer obtains good title. The artist would then have an action against the gallery owner, but NOT against the GFP. o To be a good faith purchaser/bona fide purchaser, you must NOT be aware that the seller does not have perfect title AND you must pay the reasonable market value for the good. Otherwise, you are NOT a GFP and you acquire a voidable title, and PP still has an action against you.

Fee Simple, 191-198
? prime estate in land -- it's the most you can have o "to A and his heirs" o heirs have no interest until death o on time axis, it's until infinity Fee Tail, 198-201
? used to keep from son to son (i.e. no nephews, etc.) o "to A and the heirs of his body" Life Estate, 202-222 White v. Brown p. 202
? Old lady trying to convey her property with a life estate in the house to her sisterin-law; court basically voids it, calls it a fee simple - the sister-in-law gets the house, the restriction not to sell is void
? Old CL rule was that you needed formal language to convey a fee simple; this court changes it
? Some rules: o "Horror of intestacy" - courts want there to be a will o Presume fee simple unless one specifies otherwise (rebuts common law presumption that you need "magic words" to convey fee simple - via statute, TCA 64-101) 7

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