Property Outline PDF

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Property OutlineMain Questions(1) Why do we recognize property and what is it?I. What is property?A. This focuses on private property; it is a human intervention, not the result of divine gift or natural rights; recognized by the government, and approach called legal positivism B. Types of personal ...

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Property Outline Main Questions (1) Why do we recognize property and what is it?

I.

What is property? A. This focuses on private property; it is a human intervention, not the result of divine gift or natural rights; recognized by the government, and approach called legal positivism B. Types of personal property: i. Real property (immovable): Land, everything growing out of land (trees, crops), and everything annexed attached or affixed to land (buildings) ii. Personal Property: rights in moveable property and intangible things (patent) C. Possession: physical control with intent to assert a claim i. Requires a. Physical control or constructive intent to claim AND b. Some physical act to assert control over the property ii. exercise of dominion and control iii. possession is measured objectively by intent-did person have possession or attempt to gain possession

II.

Why recognize property: A. Five Theories of Property i. Protect First Possession: first come, first serve because this is a practical and the best possible explanation, but it does not make sense as to why society should recognize those rights; this would be bad, but it still exists today with regards to oil and gas ii. Encourage labor: when you attach labor to the item, that person owns it according to John Lock; before the labor was added, there was no value; this theory deeply translates to the American Property Law; productive use iii. Maximize Societal happiness promotes the welfare of the citizens; use the tree effectively; this is more so the utilitarian argument; property is seen as an efficient method of allocating valuable resources to maximize wealth iv. Ensure democracy: citizens relationship with the state; gives everyone a stake in society v. Facilitate personal development: emotional connection and strength with someone’s property

III. Ways people view property and government interference (Freyfogle on Sakai) A. Libertarian Ideal of Autonomy: “pro land owner, therefore the government should not interfere i. government should ONLY interfere with that right when an owner is engaging in use of the land that is harmful to others ii. laws that restrict noninvasive activities of a landowners right should be unconstitutional iii. the problem with this is that the power rests on the individual B. Traditional Understanding: “pro land, government should not interfere but values community input” i. recognize communities; prevents owners from engaging in things that are unbeneficial for the public C. Property and the Evolving Community: “all about the community” i. embraces change and community control ii. community interest is paramount and community alone informs what ownership entails D. Narrative of Natural Use i. land has its own limits dictated by its natural character ii. the land itself holds value and an owner has not right to change it

IV.

Bundle of Sticks Theory and Property Rights

A. Bundle of Sticks (the right to transfer, destroy, use, and exclude)

i.

ii.

Right to Exclude: Trespass: one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally enters land in the possession of the other, or causes a thing of third person to do so. (See Jacque v. Steenberg Homes, Inc.) “One is subject to liability to another for trespass, irrespective of whether he [she/they thereby causes harm to any legally protected interest of the other, if he/she/they intentionally…enters land in the possession of the other or causes a thing or third person to do so.” a. There is an exception which is consent or necessity, the owner does not have absolute rights b. Trespass: an act intentionally to enter land owned by someone else & interferes substantially the property owner’s use and enjoyment of the land c. Why do we recognize exclusion?  (1) reduce vindication and violence, (2) public policy and we should not make people worry about others coming onto their property, (3) prevents damage to property

Case Illustrations Jacque v. Steenberg Homes, Inc. Ruling: Under Wisconsin law, a jury has discretion to award punitive damages for intentional trespasses, even if compensatory damages were not warranted and only nominal damages were awarded. Everyone has a right to exclude others from their land. Even though they did not harm the land, there is still a reason to protect your land.

State v. Shack Ruling: The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property. The ownership of real property is NOT absolute and there are situations where the owner does not have the right to exclude. iii.

Facts: Steenberg Homes (Steenberg) (defendant) sold a mobile home to a neighbor of the Jacques (plaintiffs). Because of snow on the nearest town road, the easiest way for Steenberg to deliver the mobile home was over the Jacques’ property. However, the Jacques refused to grant Steenberg permission to do so. Steenberg proceeded to deliver the mobile home across the Jacques’ property anyway. Reasoning: The actual harm here is not in any physical damage to the land, but in the denial of the owner’s legal right to exclude all others. The right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Further, repeated trespasses could actually threaten the individual’s ownership by giving the trespasser rights by prescription or adverse possession. Deterrence is a big factor as well. Facts: Although offering to let Tejeras and Shack consult the migrant farm worker, Tedesco refused to allow a private legal consultation and when Tejeras and Shack insisted on privacy, Tedesco filed a written complaint with the police alleging a violation of a New Jersey trespassing statute. Reasoning: The workers’ rights of privacy and the opportunity to receive such public assistance are too fundamental to be denied. Therefore, Tejeras and Shack did not invade any property rights of Tedesco and thus did not violate the trespass statute.

Right to Transfer, use, and destroy: Does this give the ability to sell one’s cells after it has left one’s body? Specifically, it explores the limitations a. Limitations to this right: nuisance or unreasonable b. Right to transfer is called alienability; sometimes this is limited due to public policy

Case Illustrations Moore v. Regents of the University of CA Ruling: (1) A physician has a fiduciary duty to disclose all material personal interests that may influence her professional judgment before securing a patient’s informed consent to medical treatment. (2) Once cells leave a patient’s body, they are no longer that patient’s property.

Facts: Golde then used Moore’s cells for research without Moore’s permission. Golde established a patented cell line, which he licensed for commercial development. The patent was held by the Regents of the University of California (Regents) (defendant), and listed as inventors Golde and UCLA researcher Shirley Quan (defendant). The defendants made a significant amount of money from the cell line. Reasoning: Physicians are free to conduct research. Once the cells left his body, they were seen as waste and the patient no longer owned it.

Conversion: in order to have this, one has to have a continued interest in the material, but Moore never said that he did. Prah v. Maretti Ruling: Private nuisance law is applicable in disputes over access to sunlight. This explores the limitations of the right to our property. These property laws are not absolute. The right to use land is not absolute, it will change depending on demands of society at the time.

V.

There is also a public policy argument to help to facilitate the growth and research from science.

Facts: When Prah found out the proposed location of the house, he told Maretti that at that particular location, the house would block sunlight from getting to the solar panels on Prah’s roof and in doing so reduce the efficiency of and cause other damage to the solar system. Maretti went ahead with construction anyway. Reasoning: However, the claim, although validly stated, still must be viewed under a reasonableness standard in a way that promotes the reasonable use and enjoyment of land. The judgment of the Waukesha County Circuit Court is reversed and the case is remanded for a determination on the reasonableness of Prah’s nuisance claim. He did have to move his house.

Establishing Property Rights: First Possession A. Discovery i.

ii.

Who essentially owns the land once it is discovered, but there were people placed on those lands in the first place; when the U.S. came over and conquered, they essentially did not recognize the English law nor Native American law because the United States law became the supreme rule of the land, therefore land ownerships under Native American law was ignored Discovery Principle: Europeans who can occupy the land, gave title to the government against others, therefore other Europeans were excluded. Marshall also throws in this idea of conquest. a. When people were conquered, this does not mean that those peoples’ rights need to be extinguished. He wanted to create certainty and not end the world to becoming savages (so he says). b. Natives American’s Property Rights: occupancy, not to destroy, could only sell to the U.S. government, but the problem is if you sell to only one person, the price does not really matter c. As a corollary, the "discovering" power gains the exclusive right to extinguish the "right of occupancy" of the Indigenous occupants, which otherwise survived the assumption of sovereignty. Marshall further opined that when they declared independence from the Crown, the United States government inherited their right of preemption over Native American lands. The legal result is that the only Native American conveyances of land which can create valid title are sales of land to the federal government.

Case Illustration Johnson v. M’Intosh Ruling: Land title transfers are only valid when made under the rule of the currently prevailing government. Native Americans can only transfer the title of the land to government.

Facts: The Virginia delegates to Congress then conveyed the land to the United States government, not to the people who were sold it by the Native Americans. About 35 years later, the United States government sold a portion of the land to William M’Intosh (defendant). Johnson brought this action to eject M’Intosh from the land. Reasoning: Discovery of land brings with it the right to obtain title either by purchase or conquest, subject to the Indians’ right of occupancy. However, the treaty ending the American Revolutionary War transferred sovereignty and power of the lands under such transfers from the British to the United States. The land conveyance to Johnson in this case was made under English rule.

B. Capture i.

Essentially, with capture, the court does not necessarily care about the motive behind how the item is captured; there is no need to think about good faith

ii. iii.

Kill

Landowners are presume to be constructive possessors of all things on their land The Occupancy Spectrum; where majority approach is “kill” is capture

Capture

iv.

v.

Mortal Wounding

Hot Pursuite

Pursuit with Reasonable Prospect

Pursuit with Chance

Pursuit with no chance

mere sight

Mere pursuit of a wild animal does not vest property rights in the pursuer. To have property rights, a person must establish occupancy, but the steps required to do so is a question of first impression for the court. a. (Ex.) Post shots a deer, but does not mortally wound it. Pierson comes and grabs it away. Pierson now owns the deer. b. (Ex.) Anna wets a butterfly, which is not wounded, but cannot fly normally. Bob comes to grab it. I think an argument can be made on both sides, but more than likely Anna would have it. c. Post shoots at a deer from a location 200 feet away; the shot grazes the deer’s ear and temporarily stuns it. Pierson immediately snatches the deer and puts it in a large sack. Post arrives on the scene one minute later, while the deer is still stunned. Pierson has the deer. d. Motivated by environmental concerns, Post nets a wild rabbit, paints “Property of Post,” and then lets the rabbit go. Pierson comes and shoots it. Pierson owns it. Oil: whoever got to it first essentially, then there would be a number of drills just by the area

Case Illustrations Pierson v. Post Ruling: Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. Dissent: Bodily seizure of a wild animal is not necessary to establish possession, so long as the hunter is “within reach” or has a “reasonable prospect” of taking the animal with intent to appropriate it for her personal use.

Facts: Post (plaintiff) was hunting a fox and Pierson (defendant), seeing this, captured and killed the same fox. Post brought a trespass suit claiming that he had legal possession of the fox. The lower court found in favor of Post. Pierson appealed. Reasoning: To have property rights, a person must establish occupancy, but the steps required to do so is a question of first impression for this court. It is useful to consider the opinions of ancient legal philosophers.

Popov v. Hayashi Ruling: When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item. In the end, they both sold the ball, then spilt the cost. Extra: When MLB hits the balls, the ball is gone unambiguously and therefore has no owner.

Facts: On October 7, 2001, Bonds hit his 73rd home run. In the stands that day were Alex Popov (plaintiff) and Patrick Hayashi (defendant). As the ball reached the stands, Popov was able to make contact with the ball through his glove. As the ball entered the glove, Popov was attacked by those surrounding him, dislodging the ball. Hayashi was not involved in this attack. The ball then rolled to Hayashi, who placed it in his pocket until he was escorted by security to a secure area in the stadium. Popov brought a suit against Hayashi for ownership of the ball.

Reasoning: Popov and Hayashi both have an equal, undivided interest in the ball, because Popov acquired pre-possessory rights when he was attacked while catching said ball. When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item. It is unknown if he would have acquired possession, because he was attacked by the fans seated around him. It would be inappropriate to create an incentive for such attacks to take place.

C. Creation, specifically Intellectual Property i.

ii.

iii.

What is protected?

What is not protected?

Copyright (See Eldred v. Ashcroft) a. Promote the progress of science and useful arts; it incentivizes people to create new work and not let people steal their own; the right to exclude and make sure people did use it poorly b. Three elements of Copyright: (1) need to be original, (2) work of authorship, and (3) physical rendering of the object; fixation c. Not protect: the ideas or the facts, need an actual manifestation of it d. Protect original works of authorship, such as books, computer programs, plays, sculptures, and songs e. Exclusive right to copy, adapt, and publicly distribute, display, and preform the work f. Timeline: author’s life + 70 years Patent (See Diamond v. Chakrabarty) a. Protect new inventions (cellphones, machines, medicine); b. The patent system exists because of a utilitarian goal  serves as an incentive for inventors to engage in creative effort; it receives a new socially valuable products, and because the patent application must disclose how her invention is made. c. The patentee may transfer her right to others or can destroy as well. However, to get a patent, one must meet the five requirements: (1) a patentable subject matter (process, machine, manufacture, composition of matter), (2) utility, (3) novelty, (4) non-obviousness, and (5) enablement. d. Exclude others from making, using, selling the invention e. Timeline: 20 years from filing date Trademark a. protect words, names, and other symbols, which are used by merchants to distinguish their goods and services from those offered by others; functional matter; generic terms I. promote consumers from deception, make sure people make the times b. TM has a potentially infinite life, as long as it continues

Copyright Original and fixed expressions (books, paintings, records)

Ideas, facts

Patent New and useful inventions and configurations; “new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof” Abstract ideas, products of

Trademark Symbols that identify and distinguish good or services (words, design, slogans, colors)

Functional matter, generic

What does this IP right give its owner?

How long does the right last?

How to obtain rights

Basis for Registration

Exclusive right to copy, adapt and publicly distribute, display, and perform the work After 1/1/1978: author’s life + 70 years; for works made for hire, 95 years from publication or 120 years from creation, whichever comes first Create work and fix it in tangible form; registration creates additional rights, e.g., availability of statutory damages and attorney’s fees Originality

nature Exclusive others from making, using, or selling the invention 20 years from filing date for utility, subject to periodic maintenance fees; 14 or 15 years for design patent (depending on when it was filed) Apply for a federal patent

Novelty, non-obviousness, utility

terms Right to stop uses that create a likelihood of confusion or dilute a famous mark As long as use continues

Use mark in commerce or apply for federal registration

Use or good faith intent to use in commerce followed by actual use (for U.S. owners)

Case Illustrations Diamond v. Chakrabarty Ruling: A live, human-made microorganism is patentable subject matter. Since Congress did not speak to this, it is allowed. This is not natural; it has been created. If Congress wanted to restrict things, they should have told us.

Eldred v. Ashcroft Ruling: The Copyright Clause’s requirement that copyrights be granted only for limited times does not bar Congress from extending the terms of existing copyrights. Congress can extend it, but the problem is whether or not this incentivizes people to create new things.

Goddard v. Winchell Ruling: ownership of a meteorite vests in the owner of the real property on which it lands. It’s real property where it was embedded in

Facts: Chakrabarty (plaintiff) filed a patent application for a human-made microorganism. A patent examiner rejected the patent because it was outside of the scope of patentable subject matter under 35 U.S.C. §101. The Patent Office Board of Appeals affirmed and ruled that living things are not patentable subject matter under § 101. The Court of Customs and Patent Appeals reversed. Diamond (defendant), the Commissioner of Patents, petitioned the United States Supreme Court for certiorari. Diamond argued that, by enacting the Plant Variety Patent Act, Congress implicitly understood that living things were not within the scope of 35 U.S.C. §101. Diamond also argued that the Court...