Property Outline Attempt PDF

Part I A. Private Property Genisis 1. Capture a. First in possession i. Root in title b. [Pierson v Post ] ii. Post (plaintiff) was hunting a fox when Pierson (defendant) captured and killed it. Post sued Pierson for trespass, claiming posses...

Part I A. Private Property Genisis 1. Capture a. First in possession i. Root in title b. [Pierson v Post ] ii. Post (plaintiff) was hunting a fox when Pierson (defendant) captured and killed it. Post sued Pierson for trespass, claiming possession of the fox. The lower court ruled in favor of Post, and Pierson appealed. iii. The court held that mere pursuit of a wild animal does not vest property rights in the pursuer; actual possession is required. iv. The court reasoned that historical legal sources agree that pursuit alone is insufficient to establish property rights. The court emphasized the need to deprive the animal of its natural liberty through capture or mortal wounding to claim ownership. v. The outcome was that the court reversed the lower court\'s decision, ruling in favor of Pierson, who had captured and killed the fox. 1. **Keys** a. **You own a wild animal by being the first to possess it ("Rule of Capture** b. **How to "possess"?** i. ** Spotting → pursuing → closing in → wounding → trapping → killing/carrying away** c. **Categories of arguments:**\ ** Efficiency**\ ** Fairness**\ ** Administrability** c. [Keeble v hickergill] vi. Keeble owned land with a decoy pond used to lure wildfowl for profit. Hickeringill, from his own property, fired guns to scare away the wildfowl. Keeble sued for damages, and the lower court ruled in his favor. Hickeringill appealed, arguing Keeble had no possession of the birds. vii. The court held that a property owner making lawful use of his land for profit is protected from malicious interference by others. viii. The court reasoned that interfering with a person\'s livelihood through malicious acts, such as scaring away wildfowl, is actionable. Lawful competition is permissible, but malicious interference is not. The damage was not the loss of birds but the disturbance to Keeble\'s trade. ix. The court upheld the lower court\'s judgment, affirming that Keeble had a cause of action against Hickeringill for the disturbance caused to his decoy pond. x. Though Keeble did not own the wild ducks, the court recognized his property interest in the right to exercise his trade, allowing him to sue for interference. 2. **Keys** d. **Intentional interference with completing possession by a non- competitor is actionable**. d. [Ghen v Rich] xi. Ghen, a whaler, killed a fin-back whale which later washed ashore and was found by Ellis, who sold it to Rich. Ghen sued Rich to recover the value of the whale, claiming ownership based on local custom. xii. The court held that a person establishes a property right over whales when he takes possession of the carcass and takes practical steps to secure it, in accordance with local custom. xiii. The court reasoned that local custom, which had been embraced by the industry for a sufficient period, provided an adequate level of appropriation over the dead whale to give Ghen ownership rights. The court emphasized that Ghen did everything possible to take control of the whale by using a bomb lance with his unique mark. xiv. The court ruled in Ghen's favor, ordering Rich to pay damages based on the market value of the whale's oil, minus processing costs. 3. **Keys** e. **Sometimes the Rule of Capture applies ambiguously. If so, zoom out: Is there a preexisting custom dictating ownership?** f. **When to follow a custom (factors to consider):**\ ** The custom applies only to a limited population**\ ** It is longstanding and followed by all**\ ** It helps support a "desirable" activity** e. [Popov v Hayashi] xv. Barry Bonds hit his 73rd home run on October 7, 2001. Alex Popov (plaintiff) made contact with the ball but was attacked by a mob, causing him to lose it. Patrick Hayashi (defendant) picked up the ball and kept it. Popov sued Hayashi for ownership of the ball. xvi. The court held that both Popov and Hayashi have an equal, undivided interest in the ball because Popov acquired pre-possessory rights when he was attacked while catching the ball. xvii. The court reasoned that Popov had exerted some control over the ball but had not yet acquired possession due to the unlawful interference by others. Recognizing a pre-possessory interest prevents rewarding wrongful conduct and is fair to the actor who was thwarted through no fault of their own. xviii. The outcome was that the ball was ordered to be sold, and the proceeds were to be evenly divided between Popov and Hayashi 4. **What counts as "possession" varies based on the asset and the context.** 5. **Here, control of the ball after incidental contact (but courts have room to pursue an "equitable" remedy).** xix. **Takeaways** 6. **The "Rule of Capture": First to take possession of an unowned thing owns it. This is the most common form of original acquisition, and applies to many natural resources.** 7. **2. For wild animals, you need more than mere pursuit under Pierson. Wounding and continued effort.** 8. **3. Common forms of argument we'll see in ownership disputes: What is most efficient/productive? What is fairest? What is administrable?** 9. **4. What does "possession" require? Consider holdings and arguments in Pierson, Ghen, and Popov (bumped to next class).** g. **But remember Keeble carve-out: Legal action for spitefully interfering with possession without actually competing for the resource** 2. Doctrine of discovery NOT f. Common Law\ Rule of Capture applies (typically means actually extracting the resource)\ Surface owners can't trespass with their own equipment.\ ▪ But if it ends up draining resource from under another, it's okay. g. Alternative in some other countries: either ad coelum ownership applies, or govt owns underground resources h. [Johnson v m'intosh] xx. The father of Joshua Johnson (plaintiff) was granted land by the Piankeshaw Indians before the American Revolution. After the Revolution, the land was conveyed to the United States, which later sold it to William M'Intosh (defendant). Johnson sought to eject M'Intosh from the land, but the district court ruled for M'Intosh, and Johnson appealed to the Supreme Court. xxi. The court held that land titles transferred by Indian tribes to private individuals under foreign rule before the American Revolution are not recognized in the United States. xxii. The court reasoned that the discovery of land brings the right to obtain title by purchase or conquest, subject to the Indians\' right of occupancy. The treaty ending the American Revolutionary War transferred sovereignty from the British to the United States, invalidating the transfer to Johnson under American law. Additionally, treaties between the Indians and the United States presumed the annulment of previous agreements like Johnson\'s. xxiii. The outcome of the case was that the Supreme Court affirmed the district court\'s decision, ruling in favor of M'Intosh and invalidating Johnson\'s land title. xxiv. Johnson v. M'Intosh confirmed the superiority of land grants issued by the United States and cemented the structure of land distribution, while also affirming that land grants by Native American tribes were invalid, depriving them of sovereignty and land. 10. **Keys** h. **driven by necessity? Too many land titles called into question if conquest couldn't extinguish rights based on occupancy.** i. **Marshall may have thought it was unjust, but necessity is powerful.** j. **He says that courts aren't in a position to question conquest.** k. **Property confers power, and the powerful can define "property" to suit them.** 11. **Todays Takeaways** l. **What does "possession" require? See holdings/arguments from Pierson, Ghen, and Popov.**\ ** Johnson provides another method for original acquisition: "discovery" (aka conquest).**\ **▪ It also famously demonstrates how property can give power, and how power can define property rights.** i. [US v corrow] xxv. Ray Winnie, a Navajo religious singer, wore ceremonial masks during religious ceremonies. After his death, Richard Corrow bought the masks from Winnie\'s widow and attempted to resell them for profit. Corrow was charged with illegally trafficking in Native American cultural items and selling protected feathers, and he was convicted by a jury. Corrow appealed, claiming the law was unconstitutionally vague. xxvi. The court held that a law is not void for vagueness when it prohibits the buying and selling of cultural artifacts that a tribe considers to be inalienable, even if the tribe disagrees about whether the cultural artifacts are inalienable. xxvii. The court reasoned that Corrow had notice he could not purchase the masks for profit without criminal consequences. The evidence showed Corrow\'s awareness of the masks\' cultural significance and NAGPRA. The scienter requirement of § 1170(b) mitigates any vagueness by punishing only those who are aware that their conduct is unlawful. xxviii. The outcome of the case was that the district court\'s judgment was affirmed, and Corrow\'s conviction was upheld. xxix. The Corrow opinion is noteworthy for its use of NAGPRA to successfully prosecute a Native American art dealer who had fair notice that his conduct was illegal. 12. **Keys** m. **This case demonstrates how a statute can play a role in safeguarding Native American property.** n. **Under NAGPRA, to count as "cultural patrimony," the property:**\ ** May not be owned by an individual**\ ** Cannot be alienable**\ ** Must have "an ongoing historical, traditional, or cultural importance central to the Native American group** j. [Smith v James] xxx. Joyce James and her sisters, members of the Hopi Tribe, filed a quiet-title action in the Hopi Tribal Court against Ruth Smith, also a Hopi Tribe member, over a plot of farming land left by their grandmother. The tribal court ruled in favor of the sisters, and Smith appealed, arguing the court failed to consider customary law before the fact-finding hearing. xxxi. The court held that before deciding a property dispute over Indian land, a tribal court must adequately ascertain the applicable legal standard based on the customary laws and traditions. xxxii. The court reasoned that the tribal court did not establish the applicable legal standard based on customary laws and traditions before conducting the fact-finding hearing. The court also noted that the village and its representatives should have been involved to ensure an adequate ascertainment of the proper legal standard. xxxiii. The outcome of the case was that the tribal court's judgment was vacated and remanded for new findings of law and fact after adequately ascertaining the proper legal standard. xxxiv. The concurrence agreed with the result but emphasized the need for a more accurate definition of the court's discretion regarding Hopi law. k. **Keys** xxxv. **Difficulties with relying on custom:**\ ** Insufficient resources, and too small a community for precedent**\ ** Customs change. If courts put it in writing, does that impede natural change?** xxxvi. **Consider land's role in tribal sovereignty** l. **Takeaways** xxxvii. **What does "possession" require? See holdings/arguments from Pierson, Ghen, and Popov.** xxxviii. **Johnson provides another method for original acquisition: "discovery" (aka conquest).** xxxix. **It also famously demonstrates how property can give power, and how power can define property rights.** xl. **Corrow shows how statute can help safeguard tribal rights/property. For an object to be cultural patrimony under NAGPRA, the object:** 13. **May not be owned by an individual** 14. **▪ Must be considered inalienable by the tribe** 15. **Must have "an ongoing historical, traditional, or cultural importance central to the Native American group** 3. Creation and intellectual property m. [INS v AP] xli. Associated Press (AP) sued International News Service (INS) for unfair competition, alleging that INS was pirating AP\'s news by bribing AP members, inducing AP employees to leak news, and copying news from AP\'s bulletin boards and early editions. The trial court granted a preliminary injunction on some claims, and the appellate court extended it to all claims. The U.S. Supreme Court granted certiorari. xlii. The court held that a quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade. xliii. The court reasoned that INS\'s actions interfered with AP\'s quasi-property right by taking news gathered by AP and selling it as INS\'s own, thereby gaining a commercial advantage without investing the same time, labor, and money. This constituted unauthorized interference with AP\'s business at the point of profit. xliv. The outcome was that the Supreme Court affirmed the appellate court\'s decision, directing the district court to grant an injunction prohibiting INS from gathering and reselling AP\'s published news immediately. xlv. Justice Holmes, joined by Justice McKenna, concurred, disagreeing with the creation of a property right in news but agreeing that there should be a legal remedy, suggesting attribution to AP if INS republished the news. Justice Brandeis dissented, arguing that information does not become property merely because resources were spent to gather it and was not persuaded by the unfair-competition argument. xlvi. The decision created the tort of misappropriation under federal common law, recognized until the Supreme Court abolished federal common law in 1938. Although the decision no longer carries precedential weight, several state courts have incorporated the misappropriation tort into their common law. 16. **Keys** o. **Laboring to create can generate quasi-property rights. This extends even to news against competitors who aim to copy.** p. **Don't find quasi-property rights like this much these days because IP law does all the work. But think of this when you think of labor giving ownership rights.** n. Copy Right basics xlvii. Protects original works of authorship, fixed in a "tangible medium." xlviii. Duration: Funny story. Right now it's for the life of the author plus 70 years. Unless you're a corporate author, in which case it's 95 years from publishing, or 120 years from creation, whichever comes sooner. xlix. Purpose: Promote the arts o. [Fiest Publications v Rural telephone ] l. Rural Telephone Service (plaintiff) published a phonebook listing subscribers alphabetically. Feist Publications (defendant) used Rural\'s listings without permission after being denied access, leading Rural to sue for copyright infringement. The district court ruled in favor of Rural, and the Tenth Circuit affirmed. Feist appealed to the Supreme Court. li. The court held that an alphabetical phonebook is not sufficiently original to warrant copyright protection. lii. The court reasoned that facts are not copyrightable, and while compilations of facts can be, they must exhibit some minimal degree of creativity. Rural\'s alphabetical arrangement of subscriber information did not meet this standard of originality. liii. The outcome was that the Supreme Court reversed the Tenth Circuit\'s judgment, ruling in favor of Feist. liv. The Supreme Court\'s decision in Feist rejected the sweat-of-the-brow doctrine and emphasized that originality is essential for copyright protection, impacting future cases involving electronic compilations and databases. 17. **Keys** q. **Copyright protections for original works of authorship** r. **Facts are not copyrightable.**\ ** But the organization of facts could be, if it represents a "modicum of creativity."**\ ** Alphabetical order doesn't reflect a modicum of creativity** p. Copy right fair use defense lv. Defense to copyright infringement based on these factors: 18. Purpose and character of the use\ 19. Nature of the copyrighted work 20.. Amount and substantiality of the portion you use 21. Market effect on the copyrighted work q. Trademark Basics lvi. protects words, phrases, designs (or combination of these) that identifies your product or its source. 22. While in active use and if it hasn't turned generic\ 23. Purpose: Promote business. 24. Lanham Act:\ Creates federal registry (not necessary for protection)\ Prevents use of similar mark if likely to create customer confusion or dilute the original mark r. [Diamond v Chakrabty] lvii. Ananda Chakrabarty, a microbiologist, invented a bacterial organism capable of digesting multiple components of crude oil, which he sought to patent. The patent office rejected his application, but the Court of Customs and Patent Appeals reversed the decision. The case was then brought before the United States Supreme Court by Sidney Diamond, the Commissioner of Patents and Trademarks. lviii. The court held that a live, human-made microorganism is patentable subject matter under the Patent Act. lix. The court reasoned that the Patent Act allows for the patenting of any new and useful manufacture or composition of matter, and that Chakrabarty\'s bacterium, being a product of human ingenuity and not naturally occurring, fits this definition. The court also noted that the legislative history of the Patent Act supports a broad interpretation of patentable subject matter. lx. The outcome of the case was that the Supreme Court affirmed the appellate court\'s decision, ruling that Chakrabarty\'s bacterial organism is patentable. lxi. The dissenting opinion argued that Congress\'s specific legislation allowing plant patents, but not bacteria patents, indicates that bacteria remain outside the scope of the Patent Act. Any change to include bacteria should come from Congress, not the courts. lxii. *Diamond v. Chakrabarty* established a broad interpretation of patent law, which remains significant today as genetic and biological innovations continue to advance. 25. **Keys** s. **Naturally occurring things, living or otherwise, cannot be patented, but nearly anything human-made could be.** t. **Here, creation of a new form of bacteria was patentable.** u. **(From Myriad Genetics: "Law of Nature Rule": You cannot patent anything naturally occurring, even if you make a groundbreaking discovery related to that thing.)** s. [Qualitex v Jacobson ] lxiii. Qualitex, a dry cleaning business, used a distinct green-gold color on its press pads. Jacobson Products, a competitor, began using a similar color. Qualitex registered the color and sued for trademark infringement. The trial court ruled for Qualitex, but the appellate court reversed, stating color alone cannot be trademarked. The Supreme Court granted certiorari. lxiv. The court held that colors, on their own, can be trademarked if they meet the requirements of a trademark, including acquiring secondary meaning and not being functional. lxv. The court reasoned that colors can acquire secondary meaning, identifying and distinguishing the source of goods. Colors are generally not essential to a product's function, so trademarking a color does not disadvantage competitors. Qualitex's green-gold color met these requirements, serving only as a visual identifier. lxvi. The outcome was that the Supreme Court reversed the Ninth Circuit\'s judgment, allowing Qualitex to trademark its green-gold color. lxvii. Since this case, companies can trademark colors if they have acquired secondary meaning, associating the color with a specific product or brand. 26. **Keys** v. **Color alone can be trademarkable, if the color:** ii. **Has acquired "secondary meaning," and** iii. **Does not provide a functional benefit.** 1. **Few limits after Qualitex to what could gain trademark protection under the right circumstances.** t. Nomitve use lxviii. One party can use another's trademark to identify it if party holding trademark:\ 1. Can't be identified without it\ 2. Only uses as much as necessary for that identification\ 3. User does nothing to suggest sponsorship or endorsement u. Patent Basics lxix. 35 U.S.C. § 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. lxx. Duration: 20 years from time of filing\ No requirement of practice lxxi. Purpose: Promote science. v. Creation lxxii. Way to establish original ownership lxxiii. People who create new information are (sometimes) rewarded with the right to control it lxxiv. This control right is called intellectual property w. Principles regimes lxxv. Patent 27. Applies to new, useful, and nonobvious inventions lxxvi. Copyright 28. Which applies to original works of authorship lxxvii. Trademark 29. Applies to words or symbols that identify commercial enterprises, goods, and services x. **takeaways** lxxviii. **INS v. AP demonstrates creation as a form of original acquisition. It lays the groundwork for rights in intellectual property.**\ **2. Copyright, trademark, and patent each protect different products and incentivize different things. Understand the basics of each form of protection, what subject matter can be protected, duration of protection, etc.**\ **3. Copyright and trademark protection may yield to issues of societal importance like free speech**\ **4. Patent protection doesn't generally extend to naturally occurring phenomena**\ **5. Pay attention to the arguments people make for whether something should be protected through IP: What do we want to incentivize? How much property rights protection is needed to incentivize what we want? What harms might the public suffer with too much protection?** 4. Accession and sequential possession y. Main Sub-Categories of Accession lxxix. 1\. Basic accession doctrine on improvements (Wetherbee) lxxx. 2\. Increase lxxxi. 3\. Ratione soli lxxxii. 4\. Ad coelum (Edwards) lxxxiii. 5\. Fixtures (Strain) lxxxiv. 6\. Accretions and avulsions (Nebraska v. Iowa) z. [Edwards v sims] lxxxv. Levi Edwards owned land with a cave system developed into a tourist attraction, while Fielding Lee owned nearby land under which part of the cave system allegedly extended. Lee sued Edwards for a share of tourist proceeds and to prevent trespassing, leading to a court-ordered survey. Edwards appealed the survey order, which was dismissed, and then sought a writ of prohibition against the survey. lxxxvi. The court held that the holder of exclusive property rights to surface lands also possesses exclusive property rights to subterranean areas beneath the surface lands. lxxxvii. The court reasoned that long-standing property laws grant surface landowners rights extending above and below their land. It found that a court can order a survey if there is a bona fide claim of trespass, as in this case, to determine the true ownership of the cave system. lxxxviii. The outcome was that the writ of prohibition was denied, allowing the court-ordered survey to proceed. lxxxix. Justice Logan dissented, arguing that property rights should be limited to resources the surface owner can actually use, and that ownership should vest in those who can make beneficial use of the resources. xc. Edwards v. Sims is a landmark case applying the center of the earth theory to subsurface rights, and the Great Onyx Cave was later sold to the federal government and became part of Mammoth Cave National Park. 30. **Keys** w. **The doctrine of ad coelum: A landowne**r **owns to the skies above and the depths beneath their land.** x. **In some contexts, ad coelum might yield to competing considerations. We'll see more exceptions to the doctrine later.** a. Title theory v Possession theory b. [Wetherbee v green] xci. Wetherbee harvested timber from Green\'s property under the mistaken belief he had permission, and used it to make hoops. Green filed a replevin action to reclaim the hoops. The trial court ruled in favor of Green, and Wetherbee appealed. xcii. The court held that under Michigan law, a wrongful possessor in good faith who adds substantial value to property through their own efforts or expense acquires title to the improved product. xciii. The court reasoned that common law compensates the rightful owner for the value of the lost property while avoiding inequitable injury to the improver. The focus should be on the extent to which the improvement enhanced the property\'s value. xciv. The outcome was that the trial court\'s judgment was reversed, and the case was remanded for a new trial to allow Wetherbee to present evidence of the value added to the timber. xcv. In Wetherbee v. Green, the court granted ownership to the improver, illustrating the principle of accession where transformed materials can become the property of the transformer. 31. **When a converter changes the nature or enhances the value of what they took, who is entitled to what?**\ **Considerations:**\ **1. Mental state of the improver**\ **2. Degree the converter transformed the property**\ **3. Relative value contributed by each party** c. [Strain v green] xcvi. Jacob Green and his wife sold their house to William Strain and his wife. After the sale, the Greens removed several items, including a hot-water tank, Venetian blinds, mirrors, and light fixtures. The Strains sued, claiming these items were non-removable fixtures. The trial court ruled some items as fixtures and others as personal property. The Strains appealed. xcvii. The court held that the presumption that an owner of realty intends to enrich the realty by annexing furniture or machinery thereto is not overcome by the owner\'s secret intention that the annexation be a removable chattel. xcviii. The court reasoned that determining whether an item is a fixture or chattel depends on whether the item is annexed to the realty, its purpose, and the intent of the annexing party. Intent should be determined based on the circumstances, not the owner\'s secret intention. The court found the trial court erred regarding the two attached mirrors and light fixtures, which were fixtures, but upheld the decision on the bathroom mirror. xcix. The outcome was that the trial court\'s judgment was reversed regarding the two attached mirrors and light fixtures, but affirmed regarding the bathroom mirror. c. Strain v. Green added one more decision to the so-called wilderness of authority on the question of fixtures. 32. **Keys two variable tests** y. **Custom: Is some sort of item of this class generally included in a house in this price range? If so, it's a fixture.** z. **2. Bolted-to-the-Wall Test: If it is bolted to the wall and can't be removed without leaving some trace of its former presence, it is a fixture** d. [Nebraska v Iowa] ci. The center of the main channel of the Missouri River served as the boundary between Nebraska and Iowa. Due to rapid erosion and gradual soil deposits, the river\'s course changed significantly between 1851 and 1877. Nebraska sued Iowa in the United States Supreme Court to determine the boundary line. cii. The court held that if a water body serving as a boundary line experiences rapid changes on one side and gradual changes on the other, the boundary line is flexible under the law of accretion rather than fixed under the law of avulsion. ciii. The court reasoned that gradual changes to a water body cause the boundary line to adjust with the water body, as each riparian landowner is subject to the same means of land loss or gain. However, sudden and visible changes, such as the creation of a new channel, keep the boundary line fixed at the center of the old channel. civ. The outcome was that the boundary line between Iowa and Nebraska is a varying line, except for the portion of the river above Omaha, where the boundary remains fixed due to avulsion. The states were instructed to agree on the boundary line or have a commission appointed to survey and report. cv. Nebraska v. Iowa established that a river boundary line will follow the river\'s changing course if the river shifts through accretion. If the river suddenly changes course through avulsion, the boundary line remains fixed. 33. **Keys** a. **Accretion: A gradual shift in the course of a waterway** iv. ** Result: The middle thread of the waterway still serves as the**\ **boundary** e. Not first possession cvi. Finders and converters f. [Armory v Delmarie] cvii. Armory, a chimney sweep, found a jewel and took it to Delamirie, a goldsmith, for appraisal. Delamirie\'s apprentice deceitfully kept the jewel, leading Armory to sue for its return or value. cviii. The court held that the finder of lost property has a possessory right to the property, which is enforceable against everyone except the true owner. cix. The court reasoned that Armory, as the finder, had superior property rights over Delamirie, who was not the true owner. Delamirie\'s failure to return the jewel entitled Armory to damages, presumed to be of the highest quality due to lack of evidence to the contrary. cx. The outcome was that the court affirmed the lower court\'s judgment in favor of Armory, awarding him damages for the lost jewel. cxi. While Armory\'s fate is unknown, Delamirie became a renowned silversmith. The case remains a fundamental precedent in property law. 34. **Keys** b. **Finder of the property has title against all but the true owner** g. [clark v Maloney ] cxii. Thomas Clark found 10 pine logs floating in the Delaware Bay and secured them, but John Maloney and Robert Maloney later took possession of the logs. Clark sued Maloney in an action for trover to recover the value of the logs, and the case was heard by a jury in trial court. cxiii. The court held that the first finder of lost property has superior title to the second finder, provided neither party is the original owner. cxiv. The court reasoned that possession is prima facie evidence of a property interest, which can only be rebutted by evidence of better title. Clark\'s initial possession of the logs created a property interest that allowed him to exclude all individuals except the rightful owner. cxv. The outcome of the case was a verdict in favor of Clark, allowing him to recover the value of the logs from Maloney. cxvi. Finders keepers, losers weepers is not an accurate statement of the law; prior possession creates a superior claim to the property against everyone except the true owner. 35. **Keys** c. **The finder of property has title against all but the true owner and earlier finders** h. [Anderson v gouldberg] cxvii. Anderson (plaintiff) harvested timber without permission from an unknown third party\'s land and took it to a mill. Gouldberg (defendant) took the timber from the mill, claiming authority from the Ann River Logging Company. Anderson sued for return of possession or value of the timber. The jury found in favor of Anderson, and Gouldberg appealed. cxviii. The court held that under Minnesota law, one in possession of illegally acquired property may assert a claim for replevin against a subsequent possessor. cxix. The court reasoned that possession of property raises a presumption of title that can only be defeated by proof of superior title. This rule prevents an endless cycle of retaliatory seizures and lawsuits. cxx. The outcome was that the court affirmed the trial court\'s judgment in favor of Anderson, as Gouldberg could not prove superior title to the timber. cxxi. Anderson v. Gouldberg is a leading case supporting the principle that possession conveys a superior right to title of personal property against everyone but the rightful owner, though modern courts are reluctant to award possession to acknowledged wrongdoers. 36. **Keys** d. **An earlier converter porperty has title against all later converters ( presumably not againt any finders)** 37. **Relativity of title** 38. **True Owner \> First Finder \> Second Finder \> First Converter \> Second Converter**\ **O\>F1\>F2\>C1\>C2** i. **Takeaways** cxxii. **Today's Takeaways**\ **1. Basic accession principles sometimes challenge "first possession" rule in deciding who owns what (Wetherbee -- good faith improver can benefit from improvements)**\ **2. Remember the related principles of ad coelum (Edwards) and fixtures (Strain) and the tests involved.**\ **3. And remember the definitions, and consequences for ownership and property boundaries, for accretions and avulsions.**\ **4. The law of finders and converters deals with subsequent possessions without the consent of the original and true owner.** 39. ** Relativity of Title: True Owner\>1st Finder\>2d Finder\>1st Converter\>2d Converte** 5. Adverse possession j. Possession of the property must be:\ 1. Actual\ 2. Exclusive\ 3. Continuous \[during statutory period of years\]\ 4. Open and Notorious\ 5. Adverse under a claim of right (hostile)\ Divide over requisite mental state of possessor\ \[6. Peaceful?\] k. Scott V Anderson tully cxxiii. Herman Scott (plaintiff) and Anderson-Tully Company (Anderson) (defendant) owned adjacent tracts of land. There was a wire fence on Scott's property that separated 20 acres of Scott's land on Anderson's side of the fence. Anderson bought its property in 1969 by quitclaim deed. The deed included those 20 acres that belonged to Scott. Anderson marked the fence with blue paint to indicate Anderson's understanding of the property line. The paint was recognized by the community as distinctively belonging to Anderson. None of the Scotts objected to the painting of the fence. After Anderson bought the property, the company maintained the 20 acres and harvested timber on the land a few times, most recently in 2010. From 1969 to 2010, no one objected to Anderson's presence on and maintenance of the 20 acres. Anderson also issued five hunting licenses on the land during this time. In 2010, Scott filed suit, seeking damages for the removed timber and to quiet title in the 20-acre tract. At trial, witnesses testified that Anderson's blue paint had been present since 1969. A witness also testified that as recently as 1993, the Scotts had harvested timber up to the fence, but never went to the other side of the fence. The trial court found that Anderson had acquired title to the 20-acre tract by adverse possession. Scott appealed. cxxiv. Does adverse possession require possession that is made under a claim of ownership; actual or hostile; open, notorious, and visible; continuous for a period of at least 10 years; exclusive; and peaceful? cxxv. Yes. Adverse possession requires possession that is (1) under a claim of ownership, (2) actual or hostile, (3) open, notorious, and visible, (4) continuous for a period of at least 10 years, (5) exclusive, and (6) peaceful. Under (1), the party claiming adverse possession must give actual notice of its possession to the actual owner. Under (2), the claimant must prove actual use of the land, and there cannot be permission for such use from the actual owner l. Carpenter v ruperto cxxvi. Virginia Carpenter (plaintiff) moved into her home in Des Moines, Iowa, in 1951. The property on which the home was situated bordered an empty lot. At first, the empty lot was partially a cornfield, and then used for storing debris. Shortly after moving in, Ms. Carpenter cleared out a portion of the adjacent lot, knowing the land belonged to another, out of concern that the lot would attract rodents. Over the years, Ms. Carpenter used the adjacent lot to plant bushes, and eventually stored a propane tank and extended her driveway onto it. In 1978, a group of investors purchased the adjacent lot (Ruperto) (defendants). Ruperto, aware that Ms. Carpenter had been using a portion of the lot, attempted to settle any dispute regarding her use of the land. This failed, and Ms. Carpenter brought an action to quiet Ruperto's title on the lot through adverse possession. The trial court determined that Ms. Carpenter did not obtain the adjacent lot through adverse possession under a claim of right, as Ms. Carpenter did not use good faith in using the adjacent lot because she knew its title belonged to someone else. Ms. Carpenter appealed and eventually petitioned for certiorari to the Supreme Court of Iowa. cxxvii. May a person acquire a plot of real property by adverse possession under a claim of right if she is aware that someone else holds title for said property? cxxviii. No. Ms. Carpenter is not entitled to the adjacent lot by way of adverse possession under claim of right due to the fact that her use of the land was not in good faith as she knew that another person held title to it. 40. **Keys** e. **Typically, "adverse under a claim of right" means claiming ownership when you're not the owner.** f. **But Iowa is an example of one of a handful of jurisdictions where good faith is also required. In these places, the AP must believe they were the rightful owner.** g. **Reflect on policy justifications for and against adverse possession, and for requiring (or not) good faith by the adverse possessor** m. Howard V Kunto cxxix. n 1932, McCall owned a house on land described erroneously in the deed, which passed to Miller and then to Kunto (defendant) in 1959. In 1960, Howard (plaintiff) discovered the error, traded deeds with Moyer, and sued to quiet title on the land occupied by Kunto. The trial court ruled against Kunto, who appealed. cxxx. The court held that seasonal use of property can constitute uninterrupted use for adverse possession and that successive owners\' occupancy times can be combined if they share privity. cxxxi. The court reasoned that using the property as a summer home was consistent with its nature and typical use, satisfying the requirement for uninterrupted possession. Additionally, the court found that the successive owners\' good-faith belief in their ownership established privity, allowing their occupancy times to be tacked together. cxxxii. The appellate court reversed the trial court\'s decision and granted title to Kunto through adverse possession. 41. **Keys** h. **The "continuity" requirement of adverse possession requires "continuity of normal usage." Normal usage can depend on the context.** i. **Adverse possessors can "tack" their time onto previous APs if they're in "privity" to them (basically just means a voluntary transfer of the property from the earlier to the later AP)** n. Songbyrd v Estate of grossman cxxxiii. In the early 1970s, musician Henry Roeland Byrd created master recordings that were transferred to Bearsville Records in New York. In 1995, Songbyrd, Inc. sued Bearsville in Louisiana state court for damages and a declaration of rights to the recordings. The case was removed to federal court, dismissed due to a time bar, appealed, and transferred to the Northern District of New York. cxxxiv. The court held that the statute of limitations for conversion begins to run at the time of conversion, not when the owner\'s demand for the property is refused. cxxxv. The court reasoned that under Sporn v. MCA Records, Inc., the statute of limitations for conversion runs at the time of conversion. Guggenheim does not apply because it is limited to cases involving a bona fide purchaser\'s possession of chattel, which Bearsville was not. cxxxvi. The court concluded that the statute of limitations began to run in 1986 when Bearsville licensed the recordings to Rounder Records, and thus the claim was time-barred by the time Songbyrd filed suit in 1995. The court granted Bearsville\'s motion to dismiss. 42. **Keys** j. **Adverse possession applies to tangible personal property** v. **The clock starts ticking once the non-owner begins openly acting like the owner, against their legal rights.** vi. ** Some states have softened this:** vii. **Once injured party should have been aware of the rights violation** viii. **These statutes of limitations are often shorter than for** **land.** o. **Take aways** cxxxvii. **Adverse possession allows a non-owner to gain ownership of an owned asset. The** **elements of adverse possession vary slightly by state, but the standard list is: (1) actual, (2) exclusive, (3) continuous for statutory period of years (continuity of normal usage), (4) open and notorious, (5) adverse/hostile under a claim of right (split over whether good faith belief in ownership is required -- majority say no** cxxxviii. **. Consider the potential justifications for adverse possession** cxxxix. **APs can "tack" their time to reach requisite number of continuous years, if they're in privity (voluntary transfer** cxl. **Adverse possession applies to tangible personal property, and the statute of limitations (and, thus, the required number of years) is often shorter than for land.** 6. Competing principles of original acquisition p. Briggs v Southwesten energy cxli. dam, Paula, Joshua, and Sarah Briggs sued Southwestern Energy Production Company for trespass and conversion, claiming that Southwestern\'s hydraulic fracturing caused gas to flow from beneath their property to Southwestern\'s property. The trial court granted summary judgment for Southwestern, the appellate court reversed, and Southwestern appealed to the Pennsylvania Supreme Court. cxlii. The court held that for purposes of trespass, hydraulic fracturing does not cause a per se physical intrusion onto adjacent property. cxliii. The court reasoned that under Pennsylvania law, trespass requires a willful or mistaken physical intrusion onto another\'s land, and the rule of capture protects extractors from trespass liability as long as there is no physical intrusion. The court noted that whether fracking causes a physical intrusion is a factual question requiring expert testimony. cxliv. The outcome was that the trial court\'s judgment was vacated, and the case was remanded to the appellate court for further proceedings to determine if there was a physical intrusion. cxlv. Justice Dougherty concurred and dissented, agreeing that the rule of capture applies to fracking but arguing that the case should have been remanded to the trial court for further factual development. cxlvi. On remand, the court of appeals held that the Briggses did not specifically allege that Southwestern drilled horizontally or expelled fracturing fluids onto their property, and reinstated the trial court\'s summary judgment in favor of Southwestern. 43. **Keys** k. **Consider which rule is better, automatically own all resources underneath the land, or don't own unless you extract?** l. **Courts disfavor trespass, when they can identify it. Otherwise, possession-based ownership that encourages productive use may be favored** q. Goddard v Wincell cxlvii. John Goddard owned a large tract of prairie land where a 66-pound meteorite fragment fell. A neighboring landowner dug up the meteorite and sold it to H.V. Winchell. Goddard sued Winchell for replevin, claiming rightful ownership. The trial court ruled in favor of Goddard, and Winchell appealed to the Iowa Supreme Court. cxlviii. The court held that the owner of land onto which a meteorite falls becomes the meteorite\'s lawful owner. cxlix. The court reasoned that under the doctrine of accretions, objects deposited onto land by natural acts become part of the land and thus the property of the landowner. The meteorite, having no prior owner and being deposited naturally, became part of Goddard\'s land and thus his property. cl. The outcome of the case was that the Iowa Supreme Court affirmed the trial court\'s judgment, ruling that the meteorite was Goddard\'s property. 44. **Keys** m. **Objects of value bestowed by nature usually stick with the land** r. Hanna v Peel cli. In 1940, Lance-Corporal Hannah found a brooch in a house owned by Major Hugh Peel. Hannah reported it to the police, who later gave it to Peel. Hannah sued for the return of the brooch or its value after Peel sold it. clii. The court held that the finder of lost chattel on another\'s property has rights to that chattel superior to the rights of the property owner. cliii. The court reasoned that the property owner did not have physical possession or control over the brooch, and the brooch was lost on the property by happenstance. The finder, Hannah, had a superior claim to the brooch. cliv. The outcome of the case was that judgment was entered for Hannah in the amount of ÂŁ66. clv. As Hannah v. Peel explains, the law generally agrees with the old adage: finders keepers. However, an important exception applies when the finder is trespassing on someone else\'s land. 45. **Keys** n. **Non-natural assets not fixed to the land are more up for grabs and subject to competing considerations besides accession.** s. **Take aways** clvi. **There are several different avenues to claim original ownership. One doesn't necessarily take precedence over another. Courts weigh various competing considerations.** clvii. **That being said, courts disfavor trespasses, even if they're efficient** clviii. **Landowners often reap the costs and benefits of what happens to their land, if the causes are "natural".** clix. **For non-natural benefits on the land, owners may need to take more acts of possession to have rights over non-trespassers.** B. Alternatives to Private Property 7. Can (and should) every asset be privatized t. Ford v Midler clx. Ford Motor Co. aired a commercial using a Bette Midler \"sound alike\" to sing one of her songs without her permission. Midler sued for misappropriation of her likeness, but the district court granted summary judgment to Ford. Midler appealed. clxi. The court held that a party may not deliberately imitate the distinctive voice of a professional singer to sell a product, as it constitutes misappropriation of the singer\'s identity. clxii. The court reasoned that a voice is as distinctive and personal as a face, and using a soundalike to exploit a singer\'s identity for financial gain without consent is a tort. The purpose of the use was to exploit Midler\'s identity, not to inform or provide cultural value. clxiii. The outcome was that the district court\'s summary judgment was reversed, and the case was remanded for trial. clxiv. On remand, a jury awarded Midler \$400,000 in damages for the appropriation of her identity by Ford and its advertising agency. 46. **Keys** o. **CA common law recognizes action for "appropriation of the attributes of one's identity," which potentially can include a unique voice.** p. **Implies perhaps a very broad ownership interest in one's personal identity.** u. White v Samsung clxv. Samsung Electronics America, Inc. ran an ad campaign featuring a robot resembling Vanna White on \"Wheel of Fortune\" without her permission. White sued for violation of the California common-law right of publicity, and the district court granted summary judgment for Samsung. White appealed to the Ninth Circuit. clxvi. The court held that the common-law right of publicity can protect a celebrity\'s identity from unauthorized commercial exploitation. clxvii. The court reasoned that a celebrity\'s identity has commercial value that the law must protect. The court found that the robot in the ad, combined with the game show setting, evoked White\'s identity, thus providing enough evidence to reinstate her claim. clxviii. The outcome was that the judgment of the district court was reversed, allowing White\'s claim to proceed. clxix. The dissent argued that the majority misinterpreted the case law and that the ad did not use White\'s identity. The dissent emphasized that the robot was a generic game show hostess and not a depiction of White herself. v. Rights over body parts clxx. Moore v regents 47. John Moore underwent treatment for leukemia at UCLA Medical Center, where Dr. David Golde recommended and performed a spleen removal. Golde used Moore's cells for research without his permission, leading to a patented cell line. Moore sued for lack of informed consent, breach of fiduciary duty, and conversion. The trial court dismissed the case, but the California Court of Appeal reversed, leading to an appeal to the California Supreme Court. 48. The court held that a physician must disclose all personal interests that may influence their professional judgment before securing a patient's informed consent, but once cells leave a patient's body, they are no longer the patient's property. 49. The court reasoned that informed consent requires disclosure of any personal interests that could influence a physician\'s judgment. However, once cells are removed, they are considered medical waste, and the patient no longer has ownership rights. Allowing conversion claims would hinder medical research. 50. The outcome was that Moore could sue for lack of informed consent but not for conversion. The case was remanded for further proceedings on the informed-consent claim. 51. Justice Broussard dissented, arguing that Moore should have a conversion claim because Golde withheld information about the commercial use of Moore's cells. Justice Mosk also dissented, asserting that individuals have property rights in their bodily tissues and that Moore should be compensated for his contribution to the cell line. 52. Moore eventually settled the case and became an advocate for patients\' rights. The case remains a leading authority on the ownership of excised cells. clxxi. What are the types 53. Full-blown property (no courts really go this far)\ Abandonment (once separated from body that part is abandoned)\ Restraint on Alienation (recognizing property in body for all purposes except selling)\ Property-Lite (e.g., property in entitlement sense; you can use in due-process sense and tort actions, but no right in right to exclude sense)\ Res Nullius/Unowned (can't be owned until it becomes patentable piece of subject matter) clxxii. Margarat Radin 54. Three concerns with market alienability q. Coercion: pressure to commodify based on, say, poverty (indentured servitude) r. Dignity of personhood: simply moral judgment of what devalues humans s. Domino: commodification of part means of whole. Sell a part, sell a person. clxxiii. Demsetz 55. Extrenality t. A side-effect (positive or negative) of a party's decision on another party that had no say in the decision 56. Theory u. Demsetz's Thesis Property rights develop to internalize externalities when the gains of internalization become larger than the costs of internalization. clxxiv. Ostrom 57. Tragedy of commons v. Famously espoused by Garrett Hardin w. When a resource is subject to open access (common ownership), each individual with access has an incentive to overuse. 58. Potential solutions x. Central authority decides who uses resources and how they're used. y.. Privatize the commons, divided into parcels (Demsetz) z.. Closed Access Commons -- communal ownership (author's preference) 59. Other solutions a. Give well-defined usage rights to a number of people, and give the right to trade them.\ Cap-and-Trade Systems\ Catch Shares 2. A central authority determines the optimal total amount the resource should be consumed. Then it divides that amount into smaller parts. It disperses the right to consume up to the limits of a single part among industry actors. Then the industry actors who posses limited use rights can sell those rights away to others. 3. E.g., the right to pollute X amount of certain pollutant, or the right to catch Y amount of a certain fish, is a tradeable commodity. w. T**akeaways** clxxv. **in some states, the right of publicity grants ownership rights over certain uses of someone's identity or image. Consider arguments for and against such a right.** clxxvi. **Moore stands for the general principle that one doesn't have property rights in one's own body** **parts. But this is a live issue.** clxxvii. **Radin's arguments against alienability: (1) coercion; (2) moral/dignity; (3) domino argument** clxxviii. **Demsetz says private property emerges when the benefits of internalization of externalities outweigh the costs.** clxxix. **The Tragedy of the Commons: Open access means resource depletion because of self-interested** **actors.** clxxx. **Recall the pros and cons of various solutions:** 60. **i. Regulation of resource by central authority**\ **ii.Privatization of resource (Demsetz)**\ **iii.Closed-access commons (Ostrom and Acheson)** b. **Recall the lobster gangs**\ **A defined community is given communal ownership over a resource, and they police its use against each other through enforcement of**\ **norms.**\ **This appears to have been extremely effective in the lobster industry**\ **When can this work?**\ ** When there are impediments to newcomer entry**\ ** When community has closely shared set of values** c. **iv.Others? Limited and commodified access rights?** clxxxi. **Understand the basic challenges of resource governance. Open access might encourage inefficient overuse of the resource; total privatization might prevent resources from getting into the hands of those who need it. 2. Be aware of some potential alternatives to pure government control and pure privatization** 8. Common law limits on privatization x. Public rights clxxxii. Are spaces so inherently public that they should be accessible to the public equally? clxxxiii. Servitude 61. A servitude is a right by which something owned by one person is subject to a specified use or enjoyment by another. 62. In this case, ownership of navigable space (usually water) is subject to a right of public navigation. 63. This public right is secured by federal law. clxxxiv. Navigation servitude 64. Navigable water d. The US has control over all navigable waterways making it so that they can be used by the public via commerce clause e. Also have control over the land under the water to protect the use of the waters 65. Navigable airspace f. Same as the water the government has control over it for public use y. Public trust doctrine clxxxv. Used to protect the use of public lands for the public use clxxxvi. Typically, under state law not federal government clxxxvii. [Illinois central railroad co. V Illinois ] 66. in 1869, the Illinois legislature granted the Illinois Central Railroad Company title to submerged lands in the Chicago harbor. The Illinois Attorney General sued the company, seeking to confirm the state\'s title and exclusive right to develop the harbor. The case was appealed to the United States Supreme Court. 67. The court held that the public-trust doctrine prevents the legislature from granting a private corporation title to submerged lands held in trust for the public. 68. The court reasoned that the state holds submerged lands in trust for the public to ensure their use for navigation, commerce, and fishing. The state cannot abdicate its trust responsibilities by transferring the property unless it improves the public interest or does not impair the public\'s interest in the remaining land and water. 69. The outcome was that the Illinois legislature\'s grant to the Illinois Central Railroad Company was void, and the state\'s repeal of the grant was valid. 70. Justice Shiras dissented, arguing that the state could not impair the contract created by the 1869 act while Illinois Central was in compliance, and there was no evidence that the company was impeding the public\'s interest. 71. Illinois Central Railroad Company v. Illinois is the seminal case on the public-trust doctrine, though some question the judicial power to restrict legislative grants of public-trust property to private parties. g. **Keys** ix. **The Public Trust Doctrine adds a layer to the Navigation Servitude. Certain lands (here beneath navigable water) the state cannot convey to private parties unless exceptions apply.** 4. **Exceptions: Grant doesn't impair the public interest, or it** **improves the public trust.** 5. **But the Court later identifies this as a matter of state law.** clxxxviii. Expansion of the public trust doctrine 72. 100 years after Illinois Central R.R., Joseph Sax saw an opportunity for conservation activists 73. Two moves: h. Cover any undeveloped space in government hands that people can enjoy (inland parks, wilderness, shoreline, etc.) i. Encourage judges to police legislatures giving away public domain against the people's will j. Problems? x. Always better for conservation?\ Antidemocratic?\ Vague scope\ Most states haven't strongly pursued the expansion z. Transformation of the public trust doctrine clxxxix. The public trust doctrine was at first used to protect the public land for the public to be able to use and enjoy it but has since been used to protect the environment cxc. [Oregon ex rel. Thorton v Hay] 74. Hay owned a beachside resort and wanted to build fences to keep the public from accessing the dry-sand area of his property. The State of Oregon sought an injunction to prevent Hay from obstructing public access. The trial court issued the injunction, and Hay appealed. 75. The court held that the State of Oregon has the authority to restrict a property owner\'s use of the dry-sand area of oceanfront real estate. 76. The court reasoned that the public\'s long-standing, uninterrupted, and peaceful use of the dry-sand area established a customary right. This custom was reasonable, obligatory, and not inconsistent with other laws or customs. 77. The outcome was that the trial court\'s injunction preventing Hay from obstructing public access to the dry-sand area was affirmed. 78. Justice Denecke concurred, disagreeing with the reliance on the doctrine of custom. He based his concurrence on the long history of public use, public belief in their right to use the beaches, property owners\' acquiescence, and the public\'s need for beach access. 79. State ex rel. Thornton v. Hay was notable for using the custom doctrine to protect public beach access, but many states did not follow Oregon\'s example in limiting private landowners\' rights to exclude the public. cxci. Three potential ways to protect the public rights 80. Prescriptive easement 81. Implied dedication 82. Custom cxcii. Blackstones 7 elements of custom 83. Usage is ancient 84. 2\. Without interference 85. 3\. Peaceful and free from dispute 86. 4\. Reasonable 87. 5\. Subject to visible boundaries 88. 6\. Obligatory on owners 89. 7\. Not contrary to other laws or customs a. Carol rose, the comedy of the commons: custom, commerce and inherently public property cxciii. Carol Rose's work on the "comedy of the commons" explores the idea of common property resources and the challenges associated with managing them. Her analysis is particularly focused on how different communities and societies handle shared resources---like air, water, or public lands---when there's no single owner. 90. 1\. \*\*Tragedy of the Commons\*\*: This is a well-known concept in which individuals acting in their self-interest overuse or deplete a shared resource, leading to its eventual degradation. Rose\'s work contrasts this with her concept of the "comedy of the commons." 91. 2\. \*\*Comedy of the Commons\*\*: While the "tragedy" implies inevitable disaster, the "comedy" suggests that managing common resources is often more complex and nuanced. Rose uses the term \"comedy\" to imply that there are ways to navigate the challenges of common property through social norms, rules, and institutions that can lead to successful and sustainable management. 92. 3\. \*\*Social Norms and Institutions\*\*: Rose emphasizes the role of social norms, cultural practices, and legal institutions in managing common resources. Effective management often relies on these factors, which can help mitigate the problems identified in the "tragedy of the commons" scenario. 93. 4\. \*\*Empirical Examples\*\*: Rose examines various case studies and historical examples to illustrate how different communities have successfully managed common resources. This includes looking at traditional practices and modern adaptations 94. 5\. \*\*Legal and Policy Implications\*\*: Her analysis also delves into how laws and policies can be designed to support the sustainable management of commons. This includes balancing individual rights with collective responsibilities. cxciv. Rose's work offers a more optimistic perspective on the management of common resources by highlighting the ways in which communities can overcome the challenges posed by shared resources through cooperation and effective governance. b. **Key takeaways** cxcv. **Recall the Tragedy of the Commons and different resource management structures to deal with it.** cxcvi. **A variety of doctrines: The Navigation Servitude, the Public Trust Doctrine, and Custom, can protect the public's right to access certain natural resources or undeveloped areas.**\ ** Navigable waters are the surest bet, though certain beach space and maybe other recreational spaces can fall under the umbrellas of the public trust and customary public rights too.**\ ** Airspace is at least in part subject to the navigability doctrine, though the bounds aren't clear.** cxcvii. **Reflect on Carol Rose's points for why open access to recreational space might generate** **desirable outcomes** 9. Privatization of water? c. Water Courses cxcviii. [Evans V Merriweather] 95. Merriweather (plaintiff) and John Evans (defendant) owned adjoining properties with a shared stream. Evans diverted all the stream water to his well during a drought, causing Merriweather\'s mill to run dry. Merriweather sued Evans and won \$150 in damages; Evans appealed. 96. The court held that an upstream riparian landowner may not divert all stream water away from a downstream riparian landowner if the diversion is for nonessential activities. 97. The court reasoned that water usage is categorized as natural (essential) or artificial (nonessential). A riparian owner can use all water for natural wants but must share water for artificial uses. Evans\'s diversion for his mill was artificial use, making it illegal. 98. The outcome was that the court affirmed the judgment in favor of Merriweather, with costs, as Evans\'s diversion of the stream was illegal under both riparian-rights theories. 99. Evans v. Merriweather is significant for distinguishing between natural and artificial water uses and was the first Illinois case to adopt riparian rights, influencing the state\'s water-use statute passed in 1983. k. Reasonable use standard was created and deemed that Evans was not reasonably using it by taking all the water for their own use l. Jury will usually decide this standard m. Natural wants are usually perceived more privileged under the reasonable standard n. Under reasonable use standard compared to English standard you don\'t have to funnel the water back just because it isn\'t natural use instead if there is plenty for the people downstream you don\'t have to replace it 100. **Keys- under the riparianism- landowners along moving water must limit use to allow reasonable use of those downstream** o. **Common approach for Eastern states** p. **Mostly a jury question, but court gives some guidance:**\ ** natural wants: drinking, household uses, cattle**\ ** artificial wants: irrigation\* and power**\ ** In drier states irrigation is consider natural**\ ** Natural wants take priority over artificial wants** cxcix. [Coffin v Left hand Ditch Co] 101. Left Hand Ditch Co. (plaintiff) diverted water from St. Vrain creek to irrigate its land, reducing water available to Coffin (defendant) downstream. Coffin destroyed part of the dam, leading Left Hand to sue for trespass and an injunction. The trial court ruled for Left Hand, and Coffin appealed. 102. The court held that the first party to put water to productive use gains enforceable property rights in the quantity of water used, even if the water is used on land in a different watershed. 103. The court reasoned that Colorado\'s arid climate and the need for irrigation make water a valuable resource. The doctrine of prior appropriation, not riparian rights, applies in Colorado to encourage productive use and land development. 104. The outcome was that Left Hand Ditch\'s property interest in the water was superior to Coffin\'s because Left Hand made productive use of the water first. The trial court\'s judgment was affirmed. 105. In Coffin v. Left Hand Ditch Co., the Colorado Supreme Court confirmed the application of the prior-appropriation doctrine for water rights in Colorado, a principle still followed by many western states. q. **Keys** xi. **Prior Appropriation Rule: First possessor of water can use up all of it, even leaving nothing downstream. But use must be beneficial/productive.** xii. **"Beneficial" is broad: agricultural, industrial, or household use okay** xiii. **Needn't be littoral landowner!** xiv. **Regulations restrict the transfer of these rights, but still highly privatized on the whole.** xv. **More common in arid western states** cc. Reasonable use doctrine: In water law, reasonable use refers to the ability of a landowner to use water from a shared source as long as their usage does not infringe on the rights of other users or cause significant harm to the resource. cci. Prior appropriation Rule: The first possess of the water can use up all of it even leaving nothing downstream but must be beneficial / productive 106. Beneficial is broad 107. Need not be a littoral landowner r. In property law, littoral rights pertain to landowners whose property borders a body of water. These rights typically include access to the water and the right to use it, subject to regulations that ensure public access and environmental protection. d. Diffuse surface water ccii. Common enemy doctrine e. Groundwater cciii. [Higday v Nickolaus ] 108. Several landowners (plaintiffs) owned farmland over a water basin used for agricultural and personal needs. The City of Columbia (defendant) planned to extract 11.5 million gallons of water daily from the basin, exceeding its recharge rate of 10.5 million gallons, for sale to city residents. The landowners sued for a judicial declaration and an injunction to prevent the extraction, but the trial court dismissed the case. The landowners appealed to the Kansas City Court of Appeals. 109. The court held that the reasonable-use doctrine prevents a landowner from extracting an unlimited amount of groundwater if the extraction: (1) is not for the beneficial enjoyment of the land and (2) diverts all water from neighboring lands. 110. The court reasoned that American courts have moved away from the English common law rule of absolute ownership of percolating water, adopting the reasonable-use doctrine instead. This doctrine allows groundwater extraction only if it benefits the land from which it is taken and does not harm neighboring landowners. The city\'s plan to transport and sell the water did not meet these criteria. s. The \"English rule\" for groundwater extraction, also known as the \"absolute ownership\" or \"rule of capture,\" allows landowners to extract as much groundwater as they wish from beneath their property without liability to neighboring landowners. 111. The court reversed the trial court\'s judgment and remanded the case for further proceedings consistent with the reasonable-use doctrine. 112. The issue in Higday v. Nickolaus was local, but the court\'s holding marked a significant shift in U.S. water law, favoring the American reasonable-use doctrine over English common law for groundwater disputes cciv. **Keys-** 113. **american Rule": Reasonable use** 114. ** Application of sic utere tuo alienum non laedas (use your property in such as way as not to injure another's) principle** 115. **Here "reasonable use" means beneficial use that does not prevent beneficial use by other surface landowners.** 116. **"Mining" past replenishment rate isn't a reasonable use, so farmers have a cause of action (don't get to remedy yet)** f. **Take aways** ccv. **Two dominant common-law forms of property rights in water:**\ ** Riparianism: upstream owners must "reasonably use" water to share with downstream users. Natural uses \> artificial uses.**\ ** Prior appropriation: first in time is first in right. The first person to use water is entitled to use it, even if there is none left for the downstream user, so long as the first user's use is "beneficial."**\ **Groundwater typically follows a somewhat similar rule to riparianism: use beneficially not to injure others' ability to do so** Part II 1. Protecting owner sovereignty a. What does it mean to have property i. Traditional conception: The exclusive right to a thing that's good against the world. ii. More prominent perspective: The "Bundle of Sticks"\ A collection of rights that can vary depending on the context and competing interests\ The most prominent "sticks" in the bundle:\ ❑The Right to Exclude\ ❑The Right to Use\ ❑The Right to Dispose b. Jacque v Steenberg iii. 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. The Jacques notified the sheriff, and Steenberg was issued a \$30 citation. The Jacques also sued Steenberg. At trial, the jury awarded the Jacques \$1 in nominal damages and \$100,000 in punitive damages. However, the circuit court set aside the award of \$100,000, and the court of appeals affirmed. The Jacques appealed iv. Can punitive damages be awarded without compensatory damages in intentional-trespass cases? v. Yes. Punitive damages may, at the discretion of the jury, be awarded if there are only nominal and no compensatory damages. The general rule in Wisconsin is that punitive damages are unavailable if unsupported by compensatory damages. Barnard v. Cohen, 165 Wis. 417, 162 N.W.2d 480 (1917). The rationale for this is simply that society's interest in deterring unlawful but unharmful conduct is not great enough to warrant punitive damages. 1. **Keys** a. **With intentional trespass to land, can have punitive damages even without true compensatory damages. (i.e., no requirement of harm)**\ **The right to exclude from private land is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Dolan v. City of Tigard, 512 U.S. 374, 384 (1994).** c. Criminal law vi. Personal property 2. Larceny 3. Robbery vii. Real property 4. Tresspass 5. Burglary d. Civil actions protecting real property viii. Must own the property to have a cause of action 6. Trespass --damages and injunctions- brought by possesor 7. Ejectment --damages, injunctions, in kind remedy- brought by title owner 8. Nuisance-used to be considered a trespass now it\'s a stopping enjoyment of property - protects right to use not right to exclude e. Civil actions against personal property ix. Trespass de bonis asportis -- forceable taking of property- could get monetary damages but not return of property x. Detinue- unlawful detaining of property- p gave d property and d won\'t give it back - returning of object or monetary damages xi. Trover- goods we converted for defendants use- monetary and return of property in appropriate cases xii. Replevin- complaint to get personal property back- had to put up bond before case xiii. Trespass to chattels- intervened with the personal property in some manner falling short of conversion f. Intel v Hamidi xiv. Intel Corporation (Intel) (plaintiff) maintains an electronic mail (email) system for its employees. Intel permits "reasonable non-business use" of the system. On six occasions over two years, Kourosh Kenneth Hamidi (defendant), a former Intel employee, sent mass email communications to up to 35,000 of Intel's current employees at a time. These communications were critical of Intel's employment practices. Hamidi provided employees the opportunity to opt out of receiving his emails if they wish. Employees receiving the emails discussed the content of the messages between themselves and their managers. The emails caused no other disruption to Intel and its computers. On several occasions, Intel asked Hamidi to cease using its equipment to transport messages. Intel brought suit against Hamidi alleging "trespass to chattels." The trial court granted Intel's motion for summary judgment and issued an injunction preventing Hamidi from sending emails to Intel employees through Intel's email system. The court of appeals affirmed, and Hamidi appealed. xv. Issue- Whether the sending of unwanted electronic communications, which causes no actual injury to personal property, is actionable as a trespass to chattels. xvi. No. Hamidi caused no actual injury to Intel's computers or email system, and thus is not liable for trespass to chattels. 9. **Keys** b. **For trespass to chattels/electronic trespass, no action unless harm occurs** c. **Consider: why treat personal or "electronic" property different than real property?** g. Berg v Wiley xvii. Rodney Wiley (defendant) leased land and a building to Phillip Berg to operate a restaurant business. The lease provided that Phillip was to make no changes to the structure of the building and to ensure that the restaurant was run in an appropriate and lawful manner. Wiley reserved the right to re-enter if the conditions of the lease were not met. Phillip then assigned his interest to his sister, Kathleen Berg (plaintiff), who opened the restaurant. In June 1973, Wiley wrote to Berg claiming that the lease had been violated because Berg's remodeling altered the structure of the building, and because the health department had noted health code violations. Wiley threatened to retake possession of the building in two weeks if certain problems were not cured. On the last day of the two-week period, Berg closed up the restaurant and hung out a "Closed for Renovations" sign. On that day, Wiley attempted to have the locks changed, but was stopped by Berg. After the restaurant closed, Berg called the police as a result of Wiley's knocking loudly on the back door demanding admittance. Also, that same evening, Wiley called the police when he witnessed Berg removing paneling from the wall, allegedly fearing destruction of the property. Although the lease term was set to expire in December 1975, Wiley changed the locks the following Monday. Berg sued Wiley for wrongful eviction, seeking damages for lost profits and other tort damages. Wiley raised a defense of abandonment and filed a counterclaim for the damages to the property. The case went to a jury, which found that the act of locking Berg out was unlawful, and that Berg neither abandoned nor surrendered the property. Wiley appealed. xviii. Is self-help an appropriate remedy for perceived violations of a lease? xix. No. Under the common law rule, a lessor may use self-help to retake possession of leased premises, but only if the means used to retake are peaceable. 10. **Keys** d. **Self-help is not lawful to remove a tenant in possession of real property when sufficient legal mechanisms exist as an alternative.** h. Williams v ford motor credit company xx. David Williams, the husband of Cathy Williams (Williams) (plaintiff), bought a car from a dealer. The car was titled in both of the Williamses' names, but only David's name was on the loan papers. The car loan was assigned to the Ford Motor Credit Company (company) (defendant). David and Williams later divorced. The divorce court granted Williams title to the car, but required David to make payments to the company. David defaulted and signed a repossession authorization. Williams was awakened at approximately 4:30 a.m. by a noise outside of her home. Williams discovered two men in the process of towing her car away. Williams stopped the tow truck by yelling. One of the men explained that he was repossessing the car for the company. Williams informed him that personal items were located inside of the car. The man retrieved the items for Williams and drove away with the car. Williams reported the car stolen to the police and then sued the company for conversion. At trial, Williams testified that the tow truck driver had remained polite and had not threatened or caused her to fear physical harm. The jury awarded Williams \$5,000 in damages on the basis that the repossession had resulted in an unlawful "breach of the peace" in violation of Arkansas Statute § 85-9-503. The statute, which codifies Article 9 of the Uniform Commercial Code, allows a secured party to repossess its property without judicial process if the repossession occurs without breach of the peace. The district court entered judgment for the company notwithstanding the verdict. Williams appealed from the judgment, asserting that the repossession had occurred unlawfully, because it was accomplished by the risk of violence. xxi. Is repossession of property lawful, meaning that it has occurred without breach of the peace, if it is accomplished without creating violence or the risk of invoking violence? xxii. Yes. Repossession of property is lawful, meaning it has occurred without breach of the peace, if it is accomplished without creating violence or the risk of violence. 11. **Keys** e. **self-help for creditor to repossess personal property for a debt is generally allowed** i. **Take aways** xxiii. **The right to exclude is foundational to property law. In some people's minds, it's what makes property property.** 12. **Many legal actions exist to safeguard the right.** 13. **For real property, simply showing a violation of your right to exclude, even without any demonstrated harm, can serve as a foundation for legal action and potentially a large damages award.** f. ** For personal property, you often have to demonstrate a separate harm.** xxiv. **Self-help is the process of owners vindicating their exclusive rights without assistance from any legal or court process. It is disfavored to remove people from real property, but sometimes allowed for personal property, such as in the repossession context.** C. Rights and Powers of Owners 2. Limits on owner sovereignty and right to exclude j. Ploof v Putnam xxv. Ploof (plaintiff) sued Putnam (def