Outline

PROPERTY 1
1. CHAPTER 1: THE CONCEPT OF PROPERTY
Why recognize property?
A. Five theories justifying property rights
1.

Protect first possession (first come first serve)

2.

Encourage labor (take time to catch now, earn prop. rights)

3.

Utilitarian (maximize societal happiness)

4.

Civic Republican Theory (ensure democracy/ prop. protect vote)

5.

Personhood Theory (facilitate personal development)

B. Rule of Capture: wild animal is owned by first to acquire occupancy

1.

Occupancy:
1. Manifests an unequivocal intention of appropriating the
animal to his individual use
2. Has deprived him of his natural liberty
3. Has brought him within his certain control
a. Pierson v. Post

C. What is property?
1.

Right to Transfer
1. General Rule: can alienate ones rights but may be restricted
on public policy grounds
a. Johnson v. MIntosh
i.
ii.

Had rights of possession but did not have right to

transfer title
Issue? Who has superior title (usually government)

b. Moore v. Rehents of the University of California

i.
ii.

Relied on conversion
Utilitarian- betterment of society
1. Would have chilled medical research if found liable

2.

Right to Exclude
1. General rule: the holder of title to a tract of land may
prevent anyone else from entering upon it
2. Trespass:
a. Intentionally entering land in the possession of another or
causing a thing or third person to do so

i.

Jacque v. Steenberg Homes, Inc.

1. When nominal damages apply to trespass, punitive
damages may apply
2. Every trespass infringes right to exclude

3. Privilege
a. Consent
b. Necessity
i.

State v. Shack
1. Right to exclude must give way to fundamental rights
(rights of the migrant workers for health and legal
counsel)

3.

Right to Use
1. General rule: landowner has the absolute right to use his
property in any way he wished as long as he does not harm
the rights of others
2. Exceptions
a. Nuisance
i.

Spite fence:
1. Rule: No property owner has the right to erect and
maintain an otherwise usesless structure for the sole
purpose of injuring his neighbor
a. Sundowner Inc. v. King
i.

ii.

Was spite fence

Private Nuisance:
1. Rule: (1) intentional (2) non-trespassory, (3)
unreasonable and (4) substantial interference with (5)
the use and enjoyment of the plaintiffs land
a. Prah v. Maretti
i.

Not allowed to build

b. Zoning and other governmental laws and ordinances

4.

Right to Destroy
1. Death restricts your rights
a. Eyerman v. Mercantile Trust Co.
i.

Was not allowed to destroy house because she was

dead no benefi t gained and society would suff er

2. CHAPTER 3: OWNING PERSONAL PROPERTY

A. Rule of Capture: Same rule as stated above
2

(i) Exceptions
1. Tame or Domesticated Animals (if it has the habit of return)
2. Constructive Possession
a. Right to exclude will trump rule of capture
i.

Ex: A say she was first to capture kitten, B says

it was on her land, B has constructive
possession

3. Doctrine of Ration de Soila If wild animal is on your soil, you

obtain ownership
4. Trade Exception
B. Finders
1.

Purpose: to get lost (mislaid) item as close to its original owner

2.

Rule of Find:
1. The finder has superior title of the lost possession to the
whole world except to the rightful owner
a. Lost property
i.

Rule: fi nder of lost property has superior rights to

everyone but original owner and previous fi nders
1. First finder v second finder
a. First finder has superior right to everyone except
true owner, including second finder
2. You cannot sell more than you have

b. Mislaid property
i.

Rule: Belongs to the place where it was found

1. Policy: which one is more likely to get back to its
rightful owner?
a. Ex: McAvoy case where wallet found in barbershop,
finder did not have claim because it was mislaid by
shop owners customer
2. Why have mislaid? Didnt want to overrule rule of find

C. Adverse Possession of Chattels

D. Gifts
1.

Gift Rule:
1. Immediate transfer of property rights from the donor to the
donee without any payment or other consideration
a. Inter viovs gift:
i.

1.) Donative intent: the donor must intend to make

an immediate transfer of property interest

ii.

iii.

2) Delivery: the property must be delivered to the

donee, so that the donor parts with dominion and
control
3.) Acceptance: the donee must accept the property
usually assumed if it is a valuable item
1. Manual Delivery is required unless it is impractical or
impossible
a. Symbolic Delivery: physically transfers to the
donee an object that represents or symbolizes
gifted item (Gruen, = letters)
b. Constructive Delivery: transfer to the donee an
object that provides access to the gifted item (key)