PROPERTY OUTLINE – FALL MIDTERM
*make arguments, then what the court should do (policy)*
FINDERS v. LANDOWNERS

General rule: finder of lost property wins against all but true owner (Armory)
o Example: Bridges - finder wins (parcel on floor of shop)
o Exception: McAvoy – landowner wins (pocket-book on table)
o Example: Hamaker – finder wins ($ in public parlor of hotel)
 Note: innkeepers liable for goods of guests
o Example: Hannah – finder wins (brooch that fell off window frame)
o Exception: South Staffordshire – finder loses (employer owns rings in mud)
o Exception: Terry – finder loses (dusty box of old $ in ceiling)

3 ways finder can lose:
(1) owner of property already in possession of the property without knowledge
(2) property found by employee/agent (but not universal – Hamaker exception,
South Staffordshire not)
(3) wrongdoer or trespasser is finder

4 categories of FOUND property (from Terry v. Lock)
(1) lost – involuntarily parted with by owner through neglect, carelessness, or
inadvertence; owner has no knowledge of its whereabouts  belongs to
(2) mislaid – intentionally put somewhere and later forgotten; location important
(intentionally left but unintentionally forgotten)
(3) abandoned – voluntarily forsaken by owner with no hope of recovery  belongs
to first occupant
(4) treasure trove – must have notion of antiquity like gold coins; owner presumed
unknown or dead usually  belongs to finder against all but true owner
TRESPASS

defintion: unprivileged, intentional intrusion on property of another (intentional
meaning voluntary, no intent to trespass required just intent to be where you are)
o *the law recognizes actual harm in every trespass ~ entry = injury even if
only nominal damages
o essence of trespass = right to exclude (not absolute though – Ploof),
protection of privacy

exceptions to trespass:
(1) consent/privilege
 Desnick – even though plaintiffs deny giving consent
 (Jacques = NO consent)
o key question in consent cases: does it violate the reason behind
trespass law? Is purpose of the law upheld?
(2) necessity
 Ploof = was necessity
(3) public policy
 Hinman = policy-based decision
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Jacques = also policy-based
Airspace, unlike land, owned based on usage – Hinman – air not owned = no trespass
How to deny a trespass charge:
---one of the 3 exceptions
---argue that disputed property not actually owned by the party
NUISANCE
Definition: substantial and unreasonable interference with the use or enjoyment of land
 A non-physical interference with use (unlike trespass, which is a physical invasion)
 NO nominal damages possible for nuisance (unlike trespass)
 Judge by balancing utilities (ex: spider silk hypo v. driving)
 Spur: nuisance law is and must be flexible
 The right to use/enjoy (as opposed to the right to exclude which is trespass)
 * “reasonable” = cost-justified
o ex: spidersilk hypo guy severely injured in use but hypersensitive so
probably cannot recover from drivers who pass by…but could pay neighbor
to preserve his right
Nuisance: Prah (solar panels), Boomer (cement co.)
NO Nuisance: Adams (dust and vibrations; trespass and nuisance claims both denied),
Fountainbleau (shadow from hotel)
General rule: substantial nuisance damage  injunction
*issue: when issuing injunction would shut down D’s operation at once; may be
more socially desirable to deny injunction on policy grounds and issue permanent
damages for a recurring nuisance (Boomer)
*Coase: nuisance really about conflicting uses; court’s ruling irrelevant because ex-post
bargaining will result in most efficient solution (unless freeloaders, holdouts, collective
action problems)
General rule: sic utere tuo -no one has a right to use his property to the injury of another
 Refined in Fountainbleau – use so as not to injure the lawful rights of another
 Fountainbleau rule: adjoining landowners have an equal right under the law to
build to the line of their respective tracts and to such a height as they desire
 Holmes says this rule applied on its own not very helpful – can’t just plug in
facts, need to know how much injury tolerable, what reasonable uses are
“coming to the nuisance” – often a defense against nuisance claim; Spur an example
*time frame is important (in Spur, feedlot only unreasonable/not cost justified after
developer came in)
LAW AND ECONOMICS
The Coase Theorem
 Externalities: may be positive or negative; can be mitigated by laws
 bargaining may not occur if high costs, collective action problems, lack of knowledge
 for the Coase Theorem to be efficient, must know property rights and have low
transaction costs
 *nuisance not about one person harming another but about conflicting uses
 problems are reciprocal; try to avoid the more serious harm
 *court’s ruling does not matter – parties will bargain after trial (ex: Eden Roc willing
to pay anything up to the damages) ~ will settle on socially optimal decision so legal
rule irrelevant
Efficiency
 Pareto – idea that two people will enter a transaction when both will be happier
because of the exchange; NO LOSERS; all Pareto also Kaldo-Hicks efficient
o Fountainbleau not pareto efficient because Eden Roc loses!
 Pareto optimal – no further exchange could make the world better of (Pareto
superior though if world better off but not best)
 Kaldo-Hicks – losers ok as long as winners win more than losers lose; world net
better where winners could (but not necessarily do) compensate the losers
Externalities
 Sometimes individual cost-benefit analysis ≠ social cost-benefit ~ in the absence of
laws, parties will transact even if very high social cost but low individual cost
 Internalize externalities by taxes equal to harm caused (traditional view of Pigou)
Property Rules and Liability Rules
Entitlement in P
Entitlement in D
Rule 1: defendant must get
Rule 3: P can only stop
Protected by Property Rule
P’s consent, must meet P’s
defendant by meeting
*think injunction
price to continue the use –
defendant’s asking price
strike a voluntary deal!
Ex: Prah loses
Ex: Prah wins
Rule 2: defendant can
Rule 4: P can force
continue conduct only if he
defendant to stop but only if
Protected by Liability Rule
pays P damages
P pays damages ~
*think damages
*Coase won’t work because
“coming to the nuisance”
transaction costs high; best for
ex: Spur
cases where D doesn’t trust P
Protected by Inalienability
Rule
ex: Boomer
Defendant cannot continue
conduct – forbidden from
getting consent
Ex: prostitution
Defendant cannot be
stopped by P
(1) If P protected by property rule and D’s conduct unreasonable, causing substantial harm to P  use Rule 1
(2) If P protected by liability rule and D’s conduct reasonable but unfair to put all the costs on P  use Rule 2
(3) If D protected by property rule, P’s harm insubstantial, OR D’s going out of business more expensive than
costs of harm to P, OR D’s conduct reasonable but damages unfair  use Rule 3
(4) If D protected by liability rule, D’s conduct unreasonable given the context but unfair to put all costs on D
 use Rule 4
*courts can test costs/externalities by assigning damages under liability rules ~ if polluter
can’t pay, shouldn’t make the pollution! (only pollute if benefits exceed costs, costs being
the externality of pollutees)
*ask who is cheapest cost avoider? (who can best balance the costs?)
POSSESSION
Definition: intent to possess + physically doing enough (depends on case)
General rule: wild animals belong to no one but nature
*ownership by occupancy/possession (Pierson: pursuit not enough, need taking)
general rule: for first possessor to be owner, must be
(1) unowned (like wild foxes), OR
(2) abandoned (like MLB baseball)
issues:
(1) who did enough?
*note: pre-possessory right to Popov based on public policy of reducing riots
(different policy in Pierson of killing foxes so no pre-possessory right to hunter)
(2) Independent efforts v. piggybacking
---Eads did not use Brazelton’s markers, found wreck w/o assistance
---INS piggybacking off AP according to court’s majority
Locke: natural right to property; property given to us by God; labor theory: mixing your
labor with property makes it yours; efficiency argument that too expensive to get all of
mankind’s consent – stopping point though is what you can use, no wasting
Bentham: concerned with security; property as a claim against others, a man-made
construction – positivist (not from God as Locke says); 4 evils of not having property
Rose: must show “it’s mine!” ~ importance of communication; must communicate to
relevant audience though; criticizes Locke’s labor theory (ex. of pouring soup into ocean);
clear rules  less conflict, more efficient use of resources
* “the common law gives preference to those who convince the world that they have caught
the fish and hold it fast”
*what counts according to Eads and Ghen is what you do to communicate notice to the
relevant audience
rule of capture: essentially a rule of first possession - “if an adjoining owner drills his own
land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes
into his well, it comes his property”
 Did not apply in Young – “nonfugitive” minerals
 Problematic in Eliff – oil well blowout


o *under this law, “no liability for reasonable and legitimate drainage from the
common pool” BUT court says this immunity should not be extended to allow
negligent wasting or destruction of the resources
rationale: because oil moves around (“fugitive”), owner is first possessor
criticism: incentivizes dangerous fast pumping
principle of relative title: remember Eads where question of whether lead was abandoned,
in Popov MLB abandoned – only dealing with who has better claim ~
o you might own something and be able to exclude some (like INS) but not others (to
brother)
ABANDONMENT
Eads definition: “thrown away” or “voluntarily forsaken” with “all reasonable hope” gone
--in Eads, physical act of leaving boat behind satisfied but issue of whether they intended to
leave it forever…testimony and fact that trees have grown over shows they did
Charrier definition: must have both intent to leave it behind forever and the specific intent
to have the first finder own it
---in Charrier, finder had both intent and physical act but specific intent of abandonment
was absent so he could not be first possessor
TRAGEDY OF THE COMMONS
- an externality problem in disguise!
The problem: individual’s decide based only on their own interests but problem that costs
spread among all users; ownership in commons is first possession (res nullius)
Hardin’s theory: tragedy of the commons occurs when:
(1) value derived from commons
(2) in appropriating that value, a person’s conduct harms the commons
(3) harm is spread over all users, but benefits all or mostly go to the appropriating
user (*externalities)
(4) user will appropriate if benefits to him outweigh costs to him w/o regard to total
costs to all users
*idea that selfish/rational behavior => social stupidity (ex: Young, Eliff)
3 ways to view the tragedy of the commons:
(1) public goods
(2) externalities
(3) prisoner’s dilemma – dominant strategy is mutual defection because of self
interest and lack of trust
Problems and Solutions:
Limited carrying capacity
(commons are destructible)
Access open to more than one person
Self-interest predominates
--expand commons, or
--limit exploitation (e.g. only 5 cows; might
work in Young but more difficult in Eliff)
--divide commons and
assign property rights ~ exclusion
*Ex: Young
--shape legal rules to encourage certainty of
enforcement ~ governance
*Ex: Eliff
Inability to cooperate
(see above box – governance)
***Commons by definition must be an area open to appropriation by at least 2 people
Young: NO commons (underlying material non-fugacious, not accessible to more than one)
Eliff: IS a commons
*note: ownership of something in the commons is first possession
*Key Reminders and BIG IDEAS:
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Fit and justification
o Of the cases that fit, chose 1 that best justifies the rule/doctrine/body of law
Precedential reasoning – distinguish cases, overturn only to change direction
Policy considerations
Principled arguments – appeals to fairness and rights
BIG IDEA #1 – Precedential Reasoning
o *attack precedents using “times change” argument (majority in Prah, dissent
in Pierson)
o argument for following precedent = reliance, stability and prediction (ex:
don’t want speed limits to change everyday)
BIG IDEA #2 – Reasoning up to principles (induction) and reasoning down to apply
(deduction)
BIG IDEA #3 – Law as an instrument of social policy (instrumentalism)
o Ex: Hinman though court does not make this explicit
BIG IDEA #4 – Law and Economics – Coase & Calabresi
BIG IDEA #5 – Property rules and liability rules
BIG IDEA #6 – rules and standards
o Ex: rule of 55 mph speed limit (little discretion, decisionmaker’s power
restircted)
o Ex: standard of “reasonable person” (case by case adjudication, power to
decisionmakers)
BIG IDEA #7 – natural law v. positivism
BIG IDEA #8 – Locke’s labor theory of property
BIG IDEA #9 – communication and possession
BIG IDEA #10 – exclusion (property-based) and governance (regulate conduct)
o Red snapper over-fishing example
BIG IDEA #11 – Tragedy of the Commons
BIG IDEA #12 – Relative Title
BIG IDEA #13 – Legal Process
FINDERS CASES:
Armory v. Delamarie – establishing general rule that finder wins against all but true owner
Bridges v. Hawkesworth – 3 arguments by defense rejected by court: (1) notes belong to D by reason
of place, in his shop, analogy to innkeeper (2) no vacancy of notes while in D’s shop so P acquired
no right and (3) D bore the responsibility, labored to find owner; precedent in Armory; finding
location makes no difference to the law!; court reasons that making all property in landowner’s lot
automatically theirs would be absurd in practice (ex. Of kicking property out on street owner did
not even know about and so could sue as true owner silly); not an exception to general rule
McAvoy v. Medina – pocketbook found on table; court said defendant shop-keeper had duty to
safeguard this lost property; different from Bridges because here found on table, not floor, so
voluntarily, not accidentally left! ~ says this case more like Lawrence where pocketbook on table
held NOT lost; held property was not lost but mislaid; policy considerations & idea that maybe lost
property less likely to be recovered than mislaid property; exception to general rule
Hamaker v. Blanchard – general rule that innkeepers liable for goods of their guests; plaintiff a
servant at hotel trying to recover $ she found and entrusted to the defendant/proprietor; issue of
whether presumption that $ belonged to guest or not – court said casually dropped, no evidence
dropped by guest, and so more like Bridges where found on floor too; court notes $ found in a
public area so presumption left by guest unwarranted but court does say if it had been found in
guest room, innkeeper would then have had higher duty; defense suggests this case special because
found by employee and so should go to employer and special because innkeeper; but follows
general rule of Armory
Hannah v. Peel - no evidence landowner had any knowledge of brooch’s existence – had never
occupied the property himself; brooch found on top of window frame ~ court deemed it “lost” (if
they had said mislaid, landowner would have won); plaintiff distinguishes from South
Staffordshire Water Co. because in that case, employee/employer relationship and attached to
land – not so here; defense tries to fit Bridges by distinguishing public v. private access, argues case
more like South Staffordshire; court says authorities uncertain on this, but holds for finder, follows
general rule because does not fit into ways finder can lose (finder not wrongdoer/trespasser,
absentee landowner
Terry v. Lock – motel renovators found dusty box behind ceiling full of old currency; court says this
property was mislaid; clear error standard of review about how $ characterized; because $ was
mislaid, landowner as gratuitous bailee with duty to use care to return to true owner; property
affirmed as mislaid
TRESPASS CASES:
Countryside Act – idea that you have recreational right to roam in designated areas; landowners
cannot prevent public from using certain designated areas of land but can appeal to Commission to
change the land’s classification
Jacques v. Steenberg Homes – awarded $1 nominal damages and $100,000 punitive at trial, affirmed
on appeal; issue that state law said no punitive w/o compensatory damages but Supreme Court
says this relief (nominal with punitive) appropriate because although no actual damage, $1 not
enough to deter the behavior; social interest here – not just individual interest of Jacques; court
says the trespass itself constitutes the actual harm; general rule that no punitive w/o compulsory
either wrong OR, as court proposes, trespass to land a special exception ~ right to exclude!
 Court’s analysis of individual rights at stake: right to exclude as core of ownership, fact that
there are nominal damages proves we can recognize harm w/o injury, problem with
allowing this behavior --- don’t want adverse possession!
 Court’s analysis of social issues here: need effective remedies to reduce need for more
violent self-help methods, society expects wrongdoers to be punished, criminal sanctions
ineffective here ~ fines not enough to deter
Ploof v. Putname – boat moored during storm, unmoored by D’s servant, boat destroyed and Ps
injured; clearly falls under necessity exception to charge of trespass
Hinman v. Pacific Air – public policy exception to trespass; Ds crossing planes over P’s airspace; says
landowner has superior right to make USE of airspace but no trespass here because airspace, unlike
land, owned only based on usage; ad coelum doctrine cannot be interpreted literally; Hinman
brings no cause of action for which relief can be granted ~ air not actually owned by him
Desnick v. American Broadcasting Co. – plaintiff eye clinic claiming trespass against ABC because
they would not have consented had they known defendant’s true intentions (e.g. secret surveillance)
but court says even though entrance gained by a kind of fraud, not illegal and NOT trespassing
because there was implied consent ~ analogous to restaurant critic but different from meter-reader
guy or business competitors posing as customers, those cases would be trespass; here, no invasion
of privacy, no embarrassingly intimate personal details broadcast, no violation of doctor-patients
privileges, no theft or disruption = no trespass ~ “the entry was not invasive in the sense of
infringing the kind of interest of the plaintiffs that the law of trespass protects”
NUISANCE:
Adams v. Cleveland-Cliffs Iron Co. – plaintiffs argue trespass (dust) and nuisance (dust, noise,
vibrations); property as a “bundle of rights” with 2 distinct categories – right to use (nuisance) and
right to exclude (trespass); nuisance traditionally judged by weighing utilities: disturbance v. social
utility; smoke and dust not traditionally thought of as tangible physical objects; dust intangible and
so this is not a proper trespass case and since dust did not substantially and unreasonably disturb,
no nuisance either (nuisance invasion must be direct and substantial); distinction between
trespass and nuisance ~ court refuses to merge them like others have, keep them separate! –
reverses trial court’s award to plaintiff; note that even if vibrations so intense as to shatter the
home’s windows, cause of action would be not in trespass but nuisance
Fountainbleau v. Forty-Five Twenty Five – 2 adjacent luxury hotels – Fountainbleau proposes an
addition that would cast a shadow on Eden Roc pool; held “no legal right to the free flow of light and
air from adjoining land”; sic utere tuo; follow unanimous holdings that reject the English doctrine
of ancient lights; complaint dismissed because NO legal right and so no cause of action
Prah v. Maretti – dispute between 2 property owners about access to light; rule in jurisdiction is no
right to sunlight; Prahs have solar panels blocked by neighbor’s house; summary judgment was
granted to defendant but now reversed, plaintiffs want injunction; de novo standard of review – TC
should not have granted summary judgment w/o getting more facts first; defendant did not violate
any laws by building his home but plaintiffs don’t care if he followed ordinances or not; HOLDINGS:
private nuisance law does apply here and plaintiff has cause of action  remanded for Prah to
show nuisance, will employ reasonable use doctrine
 3 policy considerations the court says are outdated, so should overturn precedents that say
no right to sunlight:
(1) right to use property was total freedom jealously guarded
 but now society often regulates use of land
o (2) sunlight was merely enjoyable or illuminating
 sunlight may now be a source of energy
o (3) society had interest in unrestricted development
 need for easy/rapid development no longer strong
o *idea that common law rules should adapt to changing society, wrong to say these
cases are per se unactionable (cites spite fence cases, saying though not on point,
they do show court has made an exception before) ~ private nuisance law should be
flexible, unlike in Fountainbleau
*dissent: facts clearly show nuisance claim not actionable – no malice claimed here like in
the spite fence cases; majority failed to show that the 3 policy considerations obsolete; uses
Fountainbleau ~ says this too not substantial or unreasonable! – plaintiff here just more
sensitive than the average property owner and he did nothing to prevent this from
happening…says defendant’s “obstruction” not an “invasion”
o
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Boomer v. Atlantic Cement Co. – dirt, smoke, and vibrations emitted to residents around cement
plant; when issuing injunction would shut down D’s operation at once; may be more socially
desirable to deny injunction on policy grounds and issue permanent damages for a recurring
nuisance; problem that total damage to Ps relatively small in comparison with value of D’s
operation; 2 options: grant injunction and (a) postpone it to allow cement co. time to find
technology advances eliminating nuisance or (b) *condition injunction on payment of permanent
damages to Ps ~ injunction vacated upon payment– says (a) unrealistic and (b) better because
incentivizes cement owners to research and minimize the nuisance; recurring nuisance remedy =
permanent damages when a reasonable nuisance
 *dissent: permanent damages should not be substituted for injunctions where nuisance
substantially harmed P’s property rights; says majority worsening this serious problem by
allowing the company to pay rather than stop – says their operation “hazardous to human
health” = public policy argument ~ also no public use or benefit in cement co. and so cannot
justify this decision; this is a break from precedent and bad policy, giving bad incentive!
 majority though careful to say they are trying to resolve a nuisance dispute, not solve
pollution problems or tackle the problem in their ruling – don’t want to make broad policy
Spur Industries v. Del E. Webb Development – “coming to the nuisance case” – developer having
“sales resistance” because of feedlots; distinguishes public v. private nuisance – judge based
primarily on # of people affected; court says no rigid rules in nuisance law ~ flexible; court decides
to exercise its equity power by using rule 4
2 questions:
(1) where lawful business operating becomes a nuisance (feedlots), can its
operation be enjoined by developer of a residential area? (may Spur be
enjoined?) – YES
(2) assuming nuisance enjoinable, can developer who builds in an area previously
zoned for agriculture be required to indemnify the feedlot operator who must
now move or quit because of developer’s residential area? (must Webb
indemnify?) - YES
POSSESSION CASES
Pierson v. Post – fox cases; wild animals like foxes belong to nature, belong to first possessor; 2
arguments made: one says mere pursuit not enough for possession (even wounding not enough),
must have an actual taking but another says even though mere pursuit not enough, “continued act”
of pursuit maybe enough to give exclusive right; precedent supporting a verdict for fox-killer but
troubling precedent saying bodily seizure not indispensable, so court formulates a rule:
*need intent (mental state) and actual act for possession ~ must do enough – here that
means to take away liberty and bring within control (need not be in hands though)
*also, court makes policy argument that they do not want to let mere pursuit = ownership
because that would make a “fertile sources of quarrels and litigation”
*majority wants to stick to precedent (clear rule promotes peace), dissent trying to update
to modern times (say majority’s sources too old like Justinian and Puffendorf)
 policies advanced by dissent:
(1) allow relevant community to decide (like Ghen)
(2) want as many dead foxes as possible so encourage fox hunters to continue in
their labors so more foxes killed
Ghen v. Rich – whale case; libellant claiming title under usage but defense says that’s not a valid
legal rule; issue of how much is enough to possess a whale – court decides harpooning enough
because that was doing all they could; court has two options of either following custom or creating
another rule of possession – decide to follow first iron rule because:
 affects only this industry, no harms or externalities from doing so
 even if inefficient rule, affects only a few
 cannot ask whale owners to do more
 rule has worked well before and w/o it less incentive to do this difficult work ~
helps guarantee their efforts will bring profit
Eads v. Brazelton – sunken boat case; if abandoned (as they hold it was), belongs to first possessor –
problem is that both parties claim to be first possessor…did Brazelton do enough? – finds wreck,
weighten buoy, marked trees = not enough (but putting boat over it would have been); Brazelton
had the intention but did not manifest it by physical communication
*note: even if the boat had not been abandoned, and if Brazelton had done enough, he could
have still won against the defendants under the principle of relative title because they were
not true owners
Popov v. Hayashi - Bonds homerun ball case. Popov "catches," but Hayashi winds up with it, after
"illegal" violence to Popov but not perpetrated by Hayashi. Conversion - so issue is whether Popov
possessed. Intent+phys poss. Physical possession unclear. Ct. considers Finkelman's rule
(stopping momentum) and Gray's (complete control after stop, incidental contact dislodging
vitiates possession), decides on Gray's. But Popov deprived of chance to possess because of illegal
contact - so "qualified right to possession," right to try to achieve possession unimpeded. But unfair
to Hayashi - so split.
 Court says inappropriate to apply what was enough for Ghen (harpooning) or Eads (boat
over would have been) because you can’t do these acts on a baseball so need a case-specific
rule…they chose Gray’s definition but problem of violence still so split
 3 issues: abandonment (by MLB), Gray & Finkleman, rules & standards
Charrier v. Bell – no question that he is finder…issue of abandonment and claim of unjust
enrichment; finder had intent and manucaption so did enough but still not first possessor because
not abandoned; legal concept of abandonment does not extend to burial grounds…
 options for possible owners: landowner/state, Native Americans (chain of title), the
finder/archaelogist, nobody
 court says if anything, these goods were res derilictae (had an owner before) as opposed to
res nullius (never owned, like foxes)
 court looking at the intent to relinquish here – decide this intent element lacking!
 Policy argument that allowing burial grounds to be abandonment would encourage grave
robbing
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Court also decides no unjust enrichment (P not innocent – if enrichment, it was just)
McConico v. Singleton – trespass action brought by P who warned D not to hunt on his land; court
says right to hunt on unenclosed and uncultivated lands has never been disputed, forests are
common…acknowledges rule that every non-exception entry is trespass but says in this type of
case, must prove actual injury to support a cause of action – public policy argument
Young v. Ethyl Corp. – mineral deposits being extracted by one part from under the other’s land by
force (minerals are stationary, non-fugitive; exclusion-based regime works here
Eliff v. Texon – oil well blewout, caught fire, resources wasted; rule of reason (reasonable use only,
cannot waste the commons), primarily governance-based solution because exclusion/propertybased solution cannot fully solve the problem; oil a fugitive resource - no “license to plunder”
INS v. AP – central problem that INS gaining a competitive advantage by sending news by wire that
they gathered from AP bulletin board at same time or earlier than AP – should they be allowed to do
this? = someone investing time and money, another person profiting from that – called free-riding
(making use of another’s work completely to your benefit);
o What kind of property is this if it is property? – intellectual property (claiming ownership
over the CONTENT – not physically taking notes off bulletin board, but rather what’s on it)
o PRINCIPLE OF RELATIVE TITLE: remember Eads where question of whether lead was
abandoned, in Popov MLB abandoned – only dealing with who has better claim
o maybe news property in that you can exclude it from competitors but not owned as against
public = what majority says
o News different from baseballs because as many people can have it as possible = nonrival
goods (just because someone else has a copy doesn’t diminish what you have)
o ***fundamental thing = need adequate incentive to find out and report the news – it’s about
economics – producing news is costly!!
o custom of industry to get tips and follow up on them – this practice ok, can continue
o no Lockeian labor theory even supporting INS – did not put anything in!
o ***court concerned with incentive to produce or report on the news….if you could lose all
your $ to free-riders, no incentive, no reporting = court tries to give most limited remedy so
order INS to wait a little longer before copying story
o how does court arrive at this remedy (not a copyright or something like that) so they latch
onto unfair competition doctrine – helps justify the brother v. competitor example = gives
producer of news relative title to exclude competitors for a sufficient time to reap benefits
of uncovering that news
o **court says harm is in the reverse palming-off going on – ex. of trying to sell fake Rolexes –
should not be allowed because consumers hurt and maybe Rolex too = concern for
consumer protection in typical unfair competition but here it is REVERSE PALMING OFF
where competitor ripping off
o Holmes: give them credit or wait long enough for news to be not fresh – would this be
adequate?
o BRANDEIS: says we should leave it to the legislature because they have the time and
knowledge to really figure this out- LEGAL PROCESS – focus not on trying to find right
answer but on what institution appropriate to find that answer; Brandeis says courts not
the right institution to answer this question; his theory is that courts should defer to
legislatures on certain issues – maybe courts should not decide highly contested morally
debatable issues (like Brown v. Board) – but Brandeis saying courts should decide private
disputes but where externalities/affects public interests, would require administrative
enforcement and courts not equipped for that (Boomer court an example of solving single
case but saying legislature should solve more comprehensive problems)
QUESTIONS AND ANSWERS
Q: What is an essential distinction between Hamaker and South Staffordshire?
A: South Staffordshire private/embedded, Hamaker public/unattached (wrong answer would be
employee distinction)
Q: In Hinman, state explicitly what the nuisance claim would be.
A: Idea that airplanes so loud and interfering as to disturb the use/enjoyment of the land
Q: True or false - To obtain nominal damages, a plaintiff must show at least some form of loss.
A: False - It's impossible to avoid all ambiguity here, but nominal damages are awarded for some
causes of action (like trespass to land) even in the absence of any loss. While it's possible to
construe "loss" so broadly as to include bare violation of a legal right, I don't think that's the most
reasonable construction.
Q: True or false - Even if consent is obtained by fraud, it may negate trespass.
A: True - This is Desnick. Note I used the word "may" here. Desnick does not hold that any
entrance to property obtained by lying about one's purpose is ok, only that dishonestly obtained
consent does not amount to trespass where the entry does not cause the injuries against which
trespass is designed to protect.
Q: True or false - For the Adams court, vibrations interfering with one’s property would not be
considered a nuisance unless they were so intense that they physically damaged or destroyed
structures on the plaintiff's land.
A: False - Ok, I messed this one up. I meant to say "trespass" rather than "nuisance." It doesn't
matter, though, because it's a fair question as written. If I had said "trespass," this would still be
false - see p.72 n.12. (Aside: I won't normally dig into the details of footnotes for tests or quizzes,
but this is one that I highlighted in class.) But I said "nuisance," and it just isn't true that the only
way vibrations would be considered a substantial and unreasonable interference with the use of
one's property is if they destroy it. To decide whether there's a nuisance we'd like at the
reasonableness of both uses and the impact on the plaintiff's use. While it's true that the court said
that property-destroying vibrations would likely be a nuisance, it did not suggest that this was the
*only* they could be a nuisance.
Q: The Fountainebleau hotel extension would clearly harm the Eden Roc hotel by casting a shadow
over the pool area.
The “sic utere” formulation - that one’s right to use one’s property is limited only to the extent a use
would harm others - would seem to dictate that Fountainebleau’s harmful use not be allowed.
How did the court deal with “sic utere”?
A: The court said that the principle extends only to preventing uses of one's property that harm the
*rights* of another. The court decided that the plaintiff had no legal right to receive sunlight
through the property of a neighbor.
Q:What are two externalities that arise from an individual’s decision to drive across town to visit a
friend?
Are these problematic, and if so, what’s one thing we could do to solve this problem?
A: I was looking for any of the aspects of driving that impose costs the driver does not bear. For
example pollution and congestion are marginally increased by one's driving. We generally do not
bear, individually, the cost of either. You might also observe that the risk of injury to others may
not be part of the private cost-benefit calculation that goes into driving. It's true, though, that one's
insurance premiums will increase with an accident. And it is a cost to you that by driving you risk
an increase in your premiums. This cost, though, might not reflect the true cost of the risk you
impose on others.
How to solve? Well, if we do like Pigou, we'll look for ways to internalize these externalities. This
generally means some kind of tax (whether you call it a toll, tax, surcharge, fee, etc.) or possibly
regulation. So we may choose a gas tax meant to charge an individual for the harm caused by
pollution. We might use some sort of toll system meant to charge an individual for his or her
marginal contribution to road congestion. There are plenty of other ways to answer here, so long as
you identify a cost that's not internalized and some suggestion for how we should prevent an
individual from making a distorted (ie selfishly smart but socially dumb) economic decision.
Q: Why might the Prah court have found no nuisance in the Boomer case? Make the argument.
A: Only a substantial and unreasonable interference with the plaintiff's use of his or her property
will constitute a nuisance. The Prah court held the Restatement's reasonable use doctrine should
be applied in nuisance cases. That doctrine requires the court to balance the utility of the
defendant's conduct against the harm to the plaintiff. In Boomer, the lower court determined that
the value of the cement plant far exceeded the costs to the plaintiffs. Thus, under the reasonable
use doctrine, there is (arguably) no nuisance.
Q: Does the court invoke a property rule or liability rule in Boomer?
A: Liability rule. [The Court awards permanent damages, meaning damages that will compensate
for all the harms complained of now and in the future without further liability, allowing the plant to
continue in operation.]
Q: What additional or different facts could you add to that case that might help you argue that the
court should have used the other rule? Explain.
A: There are a number of possible answers here. Two main kinds of examples would be: (1) those
in which we're certain who can most cheaply avoid the costs (and so don't worry that a transaction
between the parties will be necessary after the litigation) or (2) those in which we, for some reason,
aren't worried that transactions will be expensive (and so if we award the wrong party with the
entitlement, we're pretty sure the parties will be able to bargain around it, a la Coase).
An example of (1): There exists a scrubber that would clean the plant's emissions sufficiently to
avoid almost all of the harm to the plaintiffs. And the cost of the scrubber is obviously less than the
value of the harm to the plaintiffs. There's no uncertainty or guesswork for the court. In this case,
we'd just give an injunction to the plaintiffs (property rule protection of plaintiffs). Defendant plant
would then install the scrubber.
An example of (2): Perhaps instead of a bunch of neighbors, we have only one neighbor that is
harmed, and it's a business. Though that business still might strategically attempt to hold out for a
lot of cash, there is less danger of irrational hold-outs than there is with 300 residents. In this case,
we're more confident a transaction between the parties will fix any error we make in the initial
entitlement. (To be clear, I mean that if, for example, we say it's a nuisance and that plaintiff wins
but in fact the use is more valuable to defendant than the injuries are costly to the plaintiffs, the
parties will be able to work out a deal afterwards that will allow defendant to continue.)
Q: What additional or different facts would lead you to conclude the court should have used Rule 4
(as in Spur)? Explain.
A: One possibility is that the neighbors could be posited to have moved in after the cement
company had begun operations. This would be a "coming to the nuisance" case like Spur. Coming
to the nuisance is usually a defense to nuisance, meaning that it will give the court a reason to
decide there wasn't a nuisance at all. It didn't do that in Spur because of the many people who now
lived around the cattle operations. It had become obvious that this land was more valuable as
residential area than cattle farming land. You could make up these same facts here.
Another possibility, suggested by the Calabresi article, is that the costs to the plaintiffs of the
pollution are extremely difficult to value. Suppose the pollution is some kind of annoying dust, and
there is a great diversity of uses in a neighboring residential/office/strip mall area. It will be costly
to determine the amount of damages for each of these differently situated users. It may be cheap,
though, to figure out how much the plant would be injured if it were shut down (or forced to install
pollution control equipment). And so, on economic efficiency grounds, we might force the factory
to shut down (or install the equipment) but only if the neighbors collectively paid the (easily
calculated) cost. This would be a more realistic possibility if we further posited some sort of
homeowner association or private governance mechanism that could eliminate holdouts among the
neighbors.
Q: What legal conclusion must be reached before we decide, as in Popov, that the first possessor of
an object is its legal owner?
A: The court must first conclude that the object is "up for grabs," for example by having been
abandoned.
Q: Explain why in Charrier it is difficult to decide whether the buried artifacts had been abandoned.
A: The difficulty concerns whether the original owners of the artifacts, those who buried them,
intended to abandon the artifacts. An intent to abandon might be defined as an intent never to
recover objects left behind. If this is what we mean by intent, then the original owners abandoned
the artifacts. On the other hand, the Charrier court defined an intent to abandon as an intent that an
object left behind will be taken and owned by others. Under this definition, the original owners
almost certainly did not intend to abandon the artifacts.
Q: Suppose you are the judge in Eads but that you will order the same remedy as in Popov. Give
your argument for doing so. That is, give a very brief discussion of the rule of law applicable to the
dispute and a “HERE” section, applying that law to the facts in Eads and reaching the conclusion the
court reached in Popov.
A: This case concerns two salvage operations that each claim exclusive rights to an abandoned,
sunken ship. Usually the court would identify one or the other as having obtained first possession,
and thus ownership, of the abandoned property. However, where it would be inequitable to award
the property entirely to one party, the court should, proceeding in equity, recognize the equal
strength of the parties' claims by awarding equal rights in the disputed property.
B's claim stems from the incomplete acts he took toward possession. Possession is defined,
generally, as the intent to appropriate an object as one's own combined with an adequate physical
manifestation of that intent. What sort of physical act is required depends on the circumstances,
and in particular what acts will unambiguously alert others of the possessor's claim. In this context,
clear marking, such as placing a salvage boat over the wreck would be enough.
Here, however, B placed buoys and marked trees on the shore. The buoys broke free and the
markings were inadequate clearly to identify the wreck as the salvage operation of B. B did not do
enough to obtain possession. However, the physical act of possession is a process, not an
instantaneous occurrence, and B took substantial steps toward possession. He located and marked,
after much research and toil, the location of a wreck that had, despite its valuable cargo, not been
salvaged after nearly three decades at the bottom of the Mississippi River.
Though he did not immediately begin salvage operations, this case would not have arisen but for a
prudent delay caused by season rises in water levels. If the law required salvage in unsafe
conditions in order to guarantee the fruits of the labor and toil of discovery, loss of life and damage
to property might result. We believe that B did enough to earn the right to obtain possession - an
interest that would protect his ability to salvage without requiring him to engage in hasty and
perilous recovery operations.
On the other hand, E did nothing wrong. The facts demonstrate he found the wreck without making
use of any of B's markings. E put his boat over the wreck and did everything the law requires to
obtain title through possession.
Their claims being of equal quality and weight, E and B should be awarded equal interests in the
salvage.
Q: What are the two possible standards of review and which do you use when?
A: De Novo review (looking at anew) usually for questions of law. Clear error usually for questions
of fact (“how in the world?!” standard).
Q: Was the decision in Popov a principled one?
A: Judge said this case cried out for middle ground – instrumental approach taken. This was not
like Pierson.
Q: When should you go to court?
A: When the benefits (expected award) exceed the costs (expected litigation fees). Ask if chance of
winning multiplied by potential winnings greater than expected costs of trial and if they are, go.
Q: Why does exclusion not work in Eliff?
A: Exclusion divides the commons and assigns rights to counteract the problem that the commons
are accessible to more than one person. While in Eliff access is open to more than one person, oil is
fugitive and so it is unclear how much oil underlies each person’s property. Governance then would
be more effective because…*also public policy (don’t want people pumping too fast)
Q: Why does governance not work in Young?
A: Governance shapes legal rules to encourage certainty of their enforcement to counteract the
problem that the commons are dominated by self-interest and an inability to cooperate.
Q: How would Brandeis make a dissent in Hinman?
A: Brandeis’ legal process theory says that where a court’s holding will have externalities affecting
the public interest far beyond the particular private dispute, courts may not be the institution best
equipped to handle the problem. Brandeis would say that Hinman’s broad social implications move
the case from the realm of private dispute to a social concern that would be better addressed by the
legislature who can more effectively gather information and research as well as create mechanisms
of enforcement through administrative agencies.
Possession Policy Perspectives
(1) It is dangerous to make it too easy to claim property
(2) We want things to be used, want to calibrate a rule of law to make sure things
are used
(3)
Do not want to encourage people to do stuff as fast as possible, could
lead to waste
Res Nullius – never had an owner (whales, foxes)
Res Derlictae – things that were abandoned (baseballs)
(4) Four Types of Found Property- All Subject to superior claim of owner except abandoned.
Abandoned
Abandoned= thrown away, voluntarily left with no intent to come back.
FINDER gets it.
Cases: Eads, Charrier (kind of), Popov
Lost Property
Owner has involuntarily parted with it. Has no knowledge of whereabouts.
FINDER gets it. (Doesn’t matter if found on another’s property)
Cases: Amory, Bridges, Hamaker.
Mislaid Property
Intentionally put in a certain place and later forgotten.
LANDOWNER gets it.
Cases: Macavoy.
“Gratuitous Baillie”
Treasure Trove
Gold, silver, etc. concealed in earth, unknown owner probably dead.
FINDER gets it.