10/12/2010 12:44:00 AM
I. WHAT IS PROPERTY?
TWO VIEWS OF PROPERTY (PAGE 1)
Bundle of Rights: bundle of rights, liberties, privileges, and immunities vested in the
“owner” which varies according to context and policy choices
Right to Exclude: right to a thing good against the world
CONCEPTIONS OF PROPERTY – PHILOSOPHICAL PERSPECTIVES (PAGE 15)
Essentialists: seek single true definition of property as a legal concept
i.e. Blackstone, Jacques
Skeptics: property is a bundle of rights that one can add to or subtract from without limit,
meaningless until spelled out by legal system
J.E. PENNER, THE IDEA OF PROPERTY IN LAW (1997) (PAGE 16)
Essentialist view
Property rights are in rem rather than in personam (transactions b/w LO and a specific other
do not change the duties of everyone else not to interfere with the property)
Exclusion thesis: the right to property is a right to exclude others from things, which is
grounded by the interest we have in the use of things
TOM GREY, THE DISINTEGRATION OF PROPERTY (PAGE 20)
Skeptical view – property as “shadowy” and contingent bundle of rights (a la Hinman)
TRESPASS V. NUISANCE
TRESPASS TO LAND: Any intentional intrusion that deprives another of possession of land, even
if only temporarily
CASE 1: JACQUE V. STEENBERG HOMES (WISC. 1997) (PAGE 1)
Facts: Steenberg (D) delivered mobile home by dragging it across Jacques (P) property
where P explicitly refused permission to do this; jury finds for P, awarding $1 in nominal
damages and $100,000 in punitive damages; court upholds punitive damage award
Issue: May punitive damages be issued where nominal damages (no actual damages) are
awarded for intentional trespass to land?
Holding: Upholds punitive damage award - even if there is no measurable harm, any
interference with the RtE to be sufficient harm needing to be punished
Generally, Barnard rule - compensatory damage requirement – if P
cannot show actual harm, has but a nominal interest, society has
little interest in having the unlawful, but otherwise harmless, conduct
deterred; therefore, punitive damages are inappropriate
Here, finding that individuals and society have significant interest in
deterring intentional trespass to land, worthy of judicial protection, to deter
resort to self-help
 fundamental importance of absolute Right to Exclude
autonomy conception of property (over morality or efficiency)
“minimum irreducibility of ownership” (J.W. Harris)
Locke’s labor theory of property
thus, no inquiry into LO’s reasons for exclusion
HINMAN V. PACIFIC AIR TRANSPORT (COA 9TH CIR. 1936) (PAGE 9)
Facts: P seeking injunction and damages for planes flying over property
Issue: Does LO have right to airspace above property?
Holding: Dominion over land is necessary to rely on property rights; here, no dominion, so
no injunction granted
Rejects ad coelum (presumption of ownership from center of the earth below to the high
skies above LO’s property) as legal fiction
Dominion requires that LO be in possession of land before being able to claim trespass
Transaction costs of absolute Right to Exclude would negatively impact air travel industry
(policy motivation)
No actionable trespass, but could have nuisance claim if lost use or enjoyment of land
 right to exclude not absolute
Rather, property as a collection of rights, and the question whether this includes the
right to exclude airplane overflights depends on consideration of competing social interests,
not any a priori conception of what ownership entails
THE TRESPASS/NUISANCE DIVIDE
Trespass is said to protect the interest in possession of land, while nuisance is said to
protect the use and enjoyment of land
NUISANCE:
Interference with use/enjoyment of land caused by some activity on neighboring land
A civil wrong always dependent on actual harm someone suffers
HENDRICKS V. STALNAKER (WV 1989) (PAGE 23)
Issue: whether Stalnaker’s well near property line was a nuisance since it prohibited the
installation of a Hendricks’ septic system
Holding: water well not an unreasonable use of land, and therefore not a private
nuisance, so Stalnaker not liable for its effects
Nuisance = intentional + unreasonable
Reasonableness determined by a balancing of competing LO’s interests – either use (well or
septic system) burdens adjacent property, with septic system being slightly more
burdensome, so balance of interests at least equal or slightly favoring water well, so not
unreasonable use of land
Also, water well was there first, doctrine of coming to the nuisance
BoR property conception as LO rights here are fact-specific
 private nuisance is utilitarian assessment of LO interests
EXCLUSION AND GOVERNANCE (PAGE 29)
Trespass and nuisance as two different strategies for resolving disputes about how scarce
resources are used
Exclusion: decisions about resource use delegated to O who acts as manager/gatekeeper
of resource
likely to be favored when resource has multiple potential uses and it’s desirable to give O
discretion to choose which use is most valuable
Judicial system to backstop authority of O
e.g. Jacques
Governance: focus on particular use of resource, prescribes particular rules about
permitted and prohibited uses without considering all possible uses
used when particular use of property of heightened significance, because strongly favored or
disfavored
judicial system determine how property will be used
e.g. Hendricks
THE COASE THEOREM (PAGE 30)
In a world with zero transaction costs, the initial allocation of entitlement does not matter
because the same outcome will be realized
Theory assumes (a) people are rational utility maximizers, and (b) people are even able to
estimate their preferences and the value
BUT, real world always has positive transaction costs, so the initial placement matters a
great deal because parties will not always bargain
Think doctor/confectioner – causation is necessarily reciprocal, so the only way to overcome
this is to have the institutional feature account for and minimize transactional costs
Reciprocal harm – need to find solution that voids the more serious harm, which is not clear
unless we know the parties’ subjective valuation of their rights and sacrifices
ex: Jacque – ex ante Jacques should have consented and charged anything less than what it
cost Steenberg to take private road, but they didn’t perhaps because their valuation was
more than Steenberg willing to pay or maybe there was bad blood b/w them that hindered
bargaining  extremely important where law places the entitlement
COASEAN BARGAINS (resolving property disputes by contract)
Impeded by high transaction costs:
1. Assembly problems – trying to assemble property rights from a large number of owners
in order to undertake some project (e.g. Hinman plane comp would have to identify and get
permission from every LO; e.g. a holdout)
2. Bilateral monopoly – situations where owner of property needs something that can be
provided by only one other person; each party has nowhere else to seek an equivalent
transaction (e.g. Jacque, Hinman); increases likelihood of strategic bargaining and risk of
bad blood preventing cooperation
 identify potential assembly problems and bilateral monopoly problems before becoming
trapped in situation the preclude any kind of Coasean bargaining
PROPERTY AND EQUITY (PAGE 40)
Equity developed to overcome common law rigidity; focus on remedies; injunctions and
specific performance granted in equity
REPEATED TRESPASSES
BAKER V. HOWARD COUNTY HUNT (COA MD, 1936) (PAGE 42)
Issue: Can an equitable injunction be awarded for trespassing that was not continuous but
repeated?
Holding: Injunctive relief possible when multiple trespasses occur as part of a single course
of action even if not continuous
Exceptions to general rule that equity will not enjoin a mere trespass:
(a) inadequate remedy at law (CL award of damages will not suffice)
(b) injury is irreparable
(c) to prevent repetition of similar actions/multiplicity of suits
Court here influenced by quantifiability of the damages (rabbit experiments, varied use
and enjoyment of the land, etc., cannot be measured in monetary terms) and numerosity
of actions (no injunction would mean need to sue and quantify harm every time hounds
crossed onto Bakers property)
Law of dogs – ordinarily dogowners not liable, but if reason to believe harm will occur based
on dog’s prior behavior or reasonable sense, duty imposed on dogowner
Equity’s clean hands maxim – P will not get relief in quality if they have done something
inequitable (like Baker shooting the dogs)
Four requirements of equity: (pg 56)
(1) irreparable injury
(2) remedies available at law are inadequate compensation
(3) consider the balance of convenience or relative hardships btwn P and D
(4) public interest not disserved by permanent injunction
BUILDING ENCROACHMENTS (PAGE 50)
PILE V. PEDRICK (PA, 1895) (PAGE 50)
Facts: Ds unintentionally built foundation 1 3/8 inches onto P’s property relying on district
surveyor; D offered to make it a party wall (on middle of property line, owned by both
parties) but P refused
Issue: Ds have no right to occupy land that does not belong to them, so must now remedy
trespass in one of two ways – (1) declare a permanent trespass and compensate with
damages, or (2) injunction compelling D to remove offending stones. P asked for Option 2,
but b/c P refused D permission to come onto P’s land to remove stones, Option 2 would
mean D would have to tear whole building down.
Holding: Court abided by owner’s request, although reluctant.
 absolute framework of RtE, no question of legitimacy of refusal of permission, ultimate
protection of LO autonomy (like Jacques)
Started as unintentional trespass, but once the true facts were revealed it became
intentional. Intentional trespass is forbidden REGARDLESS of reasonableness of exclusion
or lack of actual harm. Can be equity because it’s “continuously repeated intentional
trespass) and falls in exceptions to the equity rule (remedy at law “not fully adequate.”)
note: C&M Rule 1 (Property Rule, Entitlement w/ P); Ps granted absolute property right to
consent or not, or set their own price in bargaining
GOLDEN PRESS, INC. V. RYLANDS (CO, 1951) (PAGE 51)
Facts: D built 2-3.5 inches onto P’s property below ground, which would only interfere with
P’s u/e of land if P wanted to construct a basement; P sought injunction requiring D’s
building torn down
Issue: Does a finding of encroachment compel a mandatory injunction?
Holding: Mandatory injunction properly denied given a cost-benefit weighing of the
particular circumstances
Where encroachment deliberate, willful, and intentional, mandatory injunction ordinarily
follows, but where encroachment in good faith and unintentional, circumstances weighed
When encroachment unintentional and slight, P’s u unaffected and damage small and fairly
compensable, while cost of removal so great as to cause grave hardship or be
unconscionable, mandatory injunction may properly be denied and P relegated to
compensation in damages
Balance of conveniences (relative hardships)  bundle of rights conception of property
Unlike Hinman, here in equity case so court can be explicit about weighing of rights
But court is careful not to say this was intentional trespass, because in intentional trespass
you can’t balance variables (see Pile)
Doctrine of laches – if you sleep on your rights, it is weighed against you
note: C&M Rule 2 (Liability Rule, Entitlement w/ D); P has entitlement but compensated by
compensatory damages to the extent of their injuries (no injunction)
CALABRESI & MELAMED, PROPERTY RULES, LIABILITY RULES, AND INALIENABILITY (PAGE 57)
Legal system must decide whom to entitle, and simultaneously make second order decisions
as to how entitlement is protected and whether an individual is allowed to sell or trade the
entitlement
Property rule – entitlement vests with original holder and cannot be taken away without
owner’s voluntary consent
Least amount of state intervention, courts unconcerned with quantifying value
Property rights strongly associated with property rule protection, while contract rights and
rights protected by tort law more closely associated with liability rule protection
Liability rule – someone can destroy the initial entitlement if willing to pay an objectively
determined value for it
Forced sale, no consent; state determines initial entitlement and its value
Court have choice along two dimensions – 1) who gets entitlement, P or D?, 2) protect
entitlement with property or liability rule? – and should make determinations based on
efficiency and distributive justice:
Assignment of
Entitlement/Mode of
Protection
Plaintiff
Defendant
Property Rule
(injunctive relief)
Liability Rule
(damages)
rule 1 – (Pile) – P has all
bargaining power,
chooses whether or not
to consent to give up
entitlement
rule 2 – (Golden Press) –
D can take P’s
entitlement w/o P’s
consent, upon payment
of court-determined
damage price
rule 4 – P can obtain
right to exclude and force
D to give up entitlement
by paying compensatory
price
rule 3 – (Hinman) – D
has entitlement and P
can take it only by
getting D’s consent
Today, property rule = injunctive relief, liability rule = damages
Coase - when transaction costs low, consensual exchange of entitlement a realistic
possibility, so use property rule protections; when transaction costs are high, efficiency
concerns favor liability rules
Ex Ante (before)/Ex Post (after) Problem (page 62) – in deciding btwn property and liability
rules, it matters whether analyzing situation as it exists before the conflict over resources or
after the conflict
ex post analysis focuses on fairness and situational concerns, while ex ante analysis
consider incentives for future conduct
RESTITUTION – MISTAKEN IMPROVER (PAGE 67)
Action for restitution: (1) enrichment of D; (2) at the expense of P; (3) under circumstances
that are unjust
Restitution reflects preference for owner autonomy (i.e. Jacque, Baker) and “property rule”
protection
PRODUCERS LUMBER & SUPPLY CO V. OLNEY BUILDING CO. (COA TX, 1960) (PAGE 68)
Facts: Producers owned land; Olney began building a home on the land, acting in good
faith believing that they owned the lot; came to light that Producers actually owned the
land; negotiations attempted for under one week; then Olney went onto property and took
extreme measures to demolish the building (“went to town”)
Issue: What remedy is available where D acts in good faith to build and improve upon P’s
land?
Holding: Damages awarded to Producers for value of dwelling built and removed/destroyed
by Olney, compensatory damages for restoring land to condition before construction and
removal, and punitive damages for malicious removal (court valuing fairness/autonomy over
efficiency)
Options for relief: (1) Olney may remove the bldg and pay for associated damages; (2)
Producers can pay for enhance value and keep the bldg; (3) Olney can pay value of land
before they build on it; (4) court can auction off land
Though perhaps owed value of dwelling constructed had Olney waited for court finding that
constructed in good faith, Olney cannot now recover for enhancement to land b/c unclean
hands
Here, bilateral monopoly and remedies available under law seems to suggest liability
protection with high transaction costs
Entitlement a good faith improver may have under equity is strongly conditional on other
factors  bundle of rights conception
II. ORIGINAL ACQUISITION
A. First Possession
CASE 1: Pierson v. Post, 1805, p. 81, First Possession/Wild Animals
Facts: D was walking on beach (unclaimed), D saw P foxhunting, in active pursuit, D killed
the fox before P
Rule: “Possession” of wild animals occurs when the pursuer manifests an unequivocal
intention of appropriating the animal to his individual use, has deprived him of his natural
liberty and brought him within certain control (actual physical possession not necessaryconstructive possession)
Holding: P did not act directly upon the fox, did not establish possession (pursuit does not =
possession)
D's behavior was rude, but not actionable
Dissent: Defers to customs of sportsmen over philosophers, regulation of the sport
Balgi's Commentary:
This case is all about notice. Pursuit signals to the rest of the world that there is a vested
interest in the fox
Pursuit may be subjective notice, dominion (killing the fox) is objective
Information costs: how does rest of world determine possession and then stay away?
Death/actual possession of the fox is the least ambiguous for the public at large, so there
are the lowest info. costs
Even the dissent's theory turns on notice...large dogs = notice
Focus on possession because of right to exclude theory:
Need to be careful in determining possession because if possession = ownership = right to
exclude, this becomes critical when dealing with scarce resource.
Inefficient to let people exclude when they don’t even have possession.
May be situations where possession doesn’t mean right to exclude. (commons). But want
to avoid tragedy of the commons.
CASE 2: Ghen v. Rich, 1881, p. 88, First Possession/Custom
Facts: Whale hunters in a whaling community kill with bomb lances. Whales sink to bottom
but float to surface in 1-3 days. P shot whale in question, found 3 days later by someone on
beach
Finder sold whale at auction to D (finder potentially an outsider to the community)
Custom: when found, give back to hunter. Lances make a “mark” on whale
Rule: When whale killed and left with marks of appropriation, its the property of captors,
even if displaced and found by another party
With wild animals, possession must be firmly established, but once established,
possession is complete
Holding/Reasoning: D needs to give whale back to P.
Unless possession (upon killing whale) is maintained, the industry would cease. No one
would pursue whales if they could be taken at random after possession
Close knit groups establish norms (custom) to maximize wealth
Balgi's Commentary:
Element of notice is present here, and problematic because while the bomb-lance is
intended to give notice, it may not be effective notice for members outside of the
community who aren't privy to customs
Here, outsiders will be held subject to customs necessary to community's survival
Concern that the property right established through custom can't really be in rem
Tests for reasonability of custom:
1. Used for long period of time (“in memorial antiquity”, i.e. shouldn't be able to say when
custom started)
2. Integral to the industry (Similar to chefs, comedians, magicians)
CASE 3: Keeble v. Hickeringill 1707, p. 93, First Possession/Trespass
Facts: P owned land containing decoy pond frequented by ducks. P invested in decoys,
supplies for taking of waterfowl. D fired gun three times (on D's own land) and drove away
ducks permanently. Action is for trespass on the case, not actual trespass.
Rule: Where a violent or malicious act is done to a man's occupation, profession, or way of
getting a livelihood, there is a cause of action
Holding: P cannot recover for the ducks, because he did not have possession of the ducks,
because they were not “counted”.
Balgi's Commentary:
This is not a case about possession, only deals with hinderance on his use for
employment purposes (included as a contrast)
Pierson v. Post cites to Keeble for the principle of ratione soli, but Keeble was NOT about
ratione soli (might have affected outcome of P v. P)
First Possession in Sum
Motivations that give rise to ownership interests out of possession:
1. Notice
2. Skill and labor (this is problematic per Locke, because in P v. P, both exerted skill and
labor. First labor? Most labor? Most efficient, socially beneficial labor? Nonetheless
important, but not only factor)
3. Efficiency – most efficient to use the custom that generates incentive for development of
industry (long established usage).
4. Courts discuss element of Control/dominion, but why? Does it relate to skill and labor, or
notice?
The Commons
When no one holds right to exclude, creates open access/commons
Very loose bundle of rights, creates little incentive for improvement, resource management
Supply problems:
1. Open access problematic when resource in high demand
2. Can't exclude so can't get maximum price
3. Depletion and deinvestment of resource
Demand problems:
1. Perverse timing (race to be first) and excessive withdrawal of resources
2. Depletion, lowering economic useability to zero
External effects:
1. Ignoring +/- effects of actions on others, because not compensated or punished. This
creates externalities that affect other users of the commons, at zero opportunity cost to the
offending party
2. Not accountable, so inefficient
Solutions:
1. Exclusive contracts (semi-exclusive invites new, unregulated competitors)
2. State control
Solutions to the commons really just transition it away from being a commons
Anticommons:
When too many have the right to exclude
No one is able to use a resource if too many permissions required, high transaction costs
Tragedy comes from overuse of right to exclude (in commons comes from inability to
exclude)
Semicommons:
When a resource is subject to private exclusion in some cases, to open access in others
Theoretically an incentive to favor part of resource and trash other part
B. Discovery, Novelty
CASE 1: Johnson v. M'Intosh p. 110, Discovery
Facts: Lands occupied by Illinois and Piankeshaw “from time memorial.” Pianekeshaw sold
land to Johnson. 1795- tribes entered into agreement (treaty, not consensual) w/ US,
granted land and ceded land. Some of ceded land was “owned” by Johnson family. US sold
to D M'Intosh. Who owns land?
Rule: Discovery gives exclusive title to those who make it
Holding: Through ju-jitsu, says Indians don’t have power to sell land, so M’Intosh wins.
European nations assumed free title to lands they "discovered" through dominion; Native
Americans on those lands retained the right of occupancy (like tenants in an apartment
building), but had never really been considered "owners" of the land.
Balgi's Commentary:
Marshall's Moves (really means to justify ends)
Discovery of land (by England) was passed down when US became sovereign
Discovery gave exclusive right to title and sovereignty and the power to extinguish the title
of the original inhabitants.

NA's rights not extinguished, but limited by sovereignty – can’t
transfer title.
Ordinarily upon conquest, inhabitants of the conquered territory mingle with conquering
nation and acquire their rights. Because Indians couldn’t live under sovereignty (didn’t
understand property, etc., were fierce savages), conquest by force justified.
So, US’s might conquered Indian’s rights. Gives the US right to dole out Indian land.
This case doesn't have utility as a precedent, because really saying that discovery gives
right to sovereignty, gives right to might, which gives right to ownership
Unclear conception of property, except that discovery does not give right to ownership in
and of itself)
Modern day examples of “discovery”:
CASE 2: North Pole Discovery: Russia is attempting to stake claim on North Pole by
increasing naval presence, putting flags down to claim land
Put down flag = asserting property interest or sovereignty claim?
Effective occupation- doesn't necessarily indicate property
CASE 3: Sealand: Can a private company establish sovereignty?
1967 Principality of Sealand (6 miles off coast of Great Britain). Someone goes there,
occupies abandoned land and claims sovereignty
Says abandonment of property = abandonment of sovereignty.
1968 English courts said that they had no jurisdiction over Sealand. Concept of the micronation...Sealand is the first to be validated
C. Novelty
CASE 1: Trenton Industries v. A.E. Peterson Manufacturing Co. p. 154, Novelty
Facts: P developed a pivot attached to underside of high chair seat (more efficient folding,
storing, packing). P shared idea with D with idea that he would be paid royalties. D
declined to pay, produced and marketed chair with improvement. D claimed that idea was
public domain b/c he had seen similar mechanism in church chairs
Rule: Patent granted if item is truly novel/inventive, not if it merely constitutes an
improvement within the ability of a reasonably skilled person.
Holding: Patent invalid, because product of mechanical skill not invention. But, court allows
damages to P under theory of unjust enrichment, because D used P's device for his financial
gain he must honor the quasi-contract in equity irrespective of whether patent valid
Balgi's Commentary:
Patent law, most well developed form of IP law. Statutory law, not common law
3 requirements: novelty, utility, non-obviousness
Granting too many patents restricts public access to improvements
This creates disincentive to invent, progress past the patented device
Patents create a right in rem
D. Creation
In general, creation deals with property in information (IP). IP is different because:
Reproduction costs are close to zero
Non-rival good: Use of property by one person doesn't diminish others' right to use/enjoy
Non-rival goods present problems of excludability
This gives rise to legally enforced excludability
So, reason for protection is providing incentive to make more of resource, not to ensure
efficient allocation
CASE 1: International News Service v. Associated Press p. 135, Quasi-Property
Facts: Competing US news services. INS would take AP information from bulletin boards on
East coast and distribute on West coast.
News not capable of copyright because of large volume (fact expression dichotomy...only
expression protected under copyright law, the information is not)
Rule: Quasi-property: relaxation of the in rem dynamic of property, right will apply only
between newspapers in direct competition, operating like a property right, but limited to a
specific class of persons (in personam)
Dissent (Holmes): News cannot be considered property. But this IS “unfair competition” or
fraud.
Dissent (Brandeis): News cannot be considered property (quasi or otherwise). Can't stop
this without restricting of public access to information. Public was not consulted in definition
of this right, and public’s interests are violated. Dangerous to use in personam
categorization, dangerous to create property rights through common law.
Brandeis does not think that labor alone yields property interest (not Lockean).
If deciding Ghen v. Rich, Brandeis would want more universal application, worried about
common law/custom-based determination of property rights (how ever hard you try to limit
to case in question, property always applies in rem)
Balgi's Commentary:
Theory supporting quasi-property is investment of skill and labor
Lockean justification in part
Also an incentive dimension...wants to preserve benefit reaped from gathering news (a
true property interest would operate against the public at large, impede free speech)
Limited right to exclude, not transferrable
Difference between property right connected to something (right to exclude) versus
property rights arising from circumstances (bundle of rights)
Rights to exclude (like in Ghen v. Rich) arise immediately
Here, this is circumstantial. There would be no property right in the news but for INS'
improper acquisition (not a true right to exclude, like trade secrets). Penner.
No longer valid precedent
CASE 2: Midler v. Ford Motor Company p. 147, Right of Publicity
Facts: Ford produced commercials, and one was to feature Midler singing. Midler contacted
to sing, refused and sound-alike hired. Rights to song had been purchased, so no copyright
infringement. Midler objected to use of voice, alleged violation of publicity rights
Rule: Injury can result from “an appropriation of the attributes of one's identity”
Holding: Midler does have a right of publicity, because impersonating her voice is pirating
her identity (and we have a right to protect our identities)
In dictum, say that a voice is as distinctive and personal as a face
The fact that the voice in the commercial so closely approximated Midler's means that they
sought to invoke her identity (convince customers this was her), Midler's voice was of
particular value to them
Balgi's Commentary:
Tangible, b/c property right is not contextual. Right doesn't arise only out of conflict (AP)
Make a contextual argument by focusing on their free-ride on her value-based asset
The court uses an autonomy approach, but it is a property interest in one's self, NOT
Lockean
Hegel's theory of property is a personality theory of property
Self v. external manifestation of self
We want to inject ourselves into material world
Internal will manifesting selves in extrinsic things leads to property based in identity
On this basis, we should all have right to property in our I.D...
Here, Midler had mixed identity right with Lockean work to perfect, make voice known and
identifiable
E. ACCESSION
Principle of Accession
The theoretical background behind accession as compared with the doctrine of
possession used in the law as discussed in Wetherbee below
How unclaimed or contested property is assigned to the owner of some other resource that
has a particularly prominent relationship to the unclaimed/contested property
Theory of Increase
Offspring of domestic animals belongs to the owner of the mother of the animal
Hume, A Treatise of Human Nature
If a small object is strongly related to a great object, the owner of the great object has a
property interest in the small object
Sugden, The Economics of Rights, Co-operation and Welfare
Oil and gas reserves were discovered under the North Sea. Oil was not spread evenly.
Problem 1: who has the right to exploit them
Problem 2: how to divide the resource
Solution: Allocate resources based on country with the closest coastline
Relation to accession: The oil resource is the “small” object related to the “great” object of
the landmass. The closer that relation, the more of the resource was awarded to that
country
CASE 1: Wetherbee v. Green | Page 166 | Doctrine of Accession
Facts:
Δ Wetherbee made black ash barrel-loops from π Green’s lumber.
Δ was in good faith, he had gotten confused which lumber he was supposed to take
π suing for replevin to recover for the barrel-loops valued at $850
The lumber in its raw form was only worth $25
Rule of Accession:
Assuming Δ is good faith: If the timber was changed by a substantial change in identity
then remedy of the π was an action to recover damages for the unintentional trespass
A substantial change in identity is based on a substantial change in value
Unclear if change is about significant value or relative value
Problem with relative value: allows someone to see there’s a depreciative value in
something, come in, trespass, and then claim it as his.
Not clear Locke would accept this conception. Locke is concerned with stability of
ownership, so he didn’t consider things that were already owned.
Is temporal priority rendered meaningless by accession? Need for security in ownership.
Reliance interest: What if person who originally owned timber had planned with new
technique to line trees with gold increasing their value significantly.
Coasean – more efficient this way, because you can pay original owner back $25 and he can
buy more timber
Compare to Golden Press, where there was also emphasis on no waste and efficiency. One
difference is land vs. chattel
But once you start talking about efficiency and relative value, lose concept of owner.
Distinction between land v. chattel
Trespass to chattel says unless wrongful deprivation of property or physical damage to
chattel, you do not have a cause of action and the law does not grant owner an action for
nominal damages. Jacques would never let that happen.

Preference to land: Efficiency, information cost, personal being
injected more into land, etc.
Rule of Accession in Wetherbee applies to chattels only. Otherwise, will need to be
qualified.
CASE 2: Edwards v. Sims | Page 175 | Ad Coelum
Facts: P Edwards discovered a cave underneath his property (called it Great Onyx Cave).
The entrance to the cave is on his land. Adjacent landowner (F.P. Lee) sued π because the
cave was partially under his land. π is suing Δ Sims, the judge in the original case to enjoin
his order ordering a survey of the cave to determine what part of the cave is under Lee’s
property
Ad Coelum Rule
“To whomsoever the soil belongs, he owns also to the sky and to the depths”
Relation to accession: Start with the land, and move to the “inferior/related things” air
above and ground below
Holding: Court was not in error ordering the survey. Court bases its decision on Ad Coelum,
that Lee owns the cave which is under his land.
Is this decision based more on the strange procedural nature of the case, suing the judge
Ad Coelum is useful tool when combined with something else, like Locke-labor.
F. Fixtures
Something which, although originally a movable chattel, is by reason of its annexation to, or
association in use with land, regarded as part of the land.
CASE 1: Strain v. Green | Page 188 | Fixtures
Facts
When Δ was leaving house, they took parts of the house with them: Hot water tank, electric
heater, lights, mirrors, blinds, fireplace screen, tool house, chicken wire
Take Home Rule
To be a fixture, the object must satisfy all three:
(1) Actual annexation to the realty or something appurtenant thereto
(2) Application to the use or purpose to which that part of the realty with which it is
connected is appropriate
(3) The intention of the party making the annexation to make a permanent accession to the
freehold
Whether the party is an owner or a renter can make a big difference.
It is generally assumed owners are intending to make permanent changes whereas renters
are assumed to make temporary ones.
This is based on objective intent
You can overcome assumption of objective intent if you have proof of subjective intent
It has to be somehow expressed/documented/not secret. But doesn’t this really just
become objective intent?
Ambiguities
How does part 1 of the test (actual fixation) help in understanding whether it’s a fixture or
not. Especially because in today’s world: most fixtures can be physically removed
Is there really a distinction between de jure and de facto “attachment”?
Maybe implied contact theory or misrepresentation theory would have been much better
The 3 part test is still the dominant test for fixtures, but there isn’t a clear underlying logic
G. ADVERSE POSSESSION
Four factor test:
1) Actual and Uninterrupted
Lessee of Ewing v Burnett: Actual is based on the nature of the property. You don’t expect
someone to be growing crops on a gravel pit
Howard v. Kunto: Continuous is based on the nature of the property, using a summer home
only in the summer is continuous
2) Exclusive
A claim of exclusive possession is established when the adverse possessor exercises rights
over the property that show such possession to be to the exclusion of the original owner
(Ewing v. Burnett). When the adverse possessor exercises the right to exclude, by
commencing trespassory actions or the like, the requirement is often held to be satisfied
(Ewing v. Burnett).
3) Open and Notorious
This is an element of notice. Ambiguous if this is based on everyone or the owner.
Lessee of Ewing v. Burnett focuses on notice to the world.
Chaplin v. Sanders: “open and notorious” is for the benefit or true owner, so if true owner
knows, that is enough.
Standard: you don’t need to go into the standard of “constructive notice” based on world at
large if the true owner knows
4) Hostile or adverse
While some courts have historically looked to intent and good faith to determine this issue
(Ewing), others have focused on looking to the nature and character of possession during
the statutory period (Chaplin). Under this test, it isn’t the intent at the time of entry that
matters, but rather the character of use during the possession. In Chaplin, the court also
pointed out that when an adverse possessor seeks permission from the original owner to
occupy the property, the element is not deemed satisfied.
Chaplain v. Sanders: ACTIONS ARE PARAMOUNT
to be an “ouster,” good faith/bad faith intent is irrelevant, only that the entry is “adverse:”
acting in a way which contradicts the interest of the true owner (specifically overrules
Howard v. Kunto)
Lessee of Ewing v. Burnet: INTENTIONS ARE PARAMOUNT
Intention fixes the character of the entry at the time of entry
You have to have intended to possess it AND thought that it was yours
This is very ambiguous though, they change their mind at the end of the opinion about the
good faith/bad faith issue
CASE 1: Lessee of Ewing v. Burnet | Page 194
Facts: Both parties think they have deed to the property. Court ends up applying five factor
test.
Ambiguities
How the court applies the test in this case:
Some requirements court decides are pretty easy
2) Exclusive: Has given permission to some, and not others
3) Open/Notorious: He declared ownership to other people. Witnesses believed he owned it
(3: Notorious)

Is this about notice to true owner?

Not clear if the true owner as just another member of public or is
person additional leeway that he/she did not know about ownership
4) Continuous: court basically says this is obvious
More difficult requirements
1) Actual Possession:

“ouster:” under claim or color of right/title

“trespass:” otherwise

There was no way to cultivate it, so that’s not important
5) Adverse (they change their mind at the end from what they say at the beginning)

Intention is paramount. If you enter thinking it wasn’t yours you
can’t claim adverse possession

Does the adverse possessor have to know someone else was the
owner? Or is it enough to think that adverse possessor is not the
owner

Starts by saying requirement of good faith

**But in 2nd to last sentence: whether the adverse possessor knew
that the property actually belonged to Williams, it does not matter
CASE 2: Howard v. Kunto | Page 194
Facts: Howard had title to Moyers’ land / Moyers had title to Kunto’s land. Howard and
Moyers switch titles, and Howard sues Kunto
Holding: Court upholds Adverse Possession claim
Take home
Like Ewing, nature/purpose of land is primary question
Since house is by its nature a summer occupancy, it’s still continuous even if it’s only used
in the summer
“Privity” now to be based on a “reasonable connection”
In previous cases, the titles to the land overlapped in some way, in this case, they were on
an entirely a different plot of land
Privity, traditionally to not allow successive trespasses from gaining title, now no longer
used.
This allows initial entry onto the land to count as beginning of SOL even if it’s sold later

A enters adversely, sells to B, sells to C. C can uphold an adverse
possession based on A’s entry. C can tack the SOL onto A’s entry
Quiet title is an in personam action that operates in rem
CASE 3: Chaplin v. Sanders | Not in textbook
Facts: π Chaplin and Δ Sanders are neighbors, predecessors to Δ on the “western parcel”
had encroached on the land of the predecessors to π “eastern parcel” which was discovered
after a survey
by the time the western parcel was sold to Δ, he had no knowledge of the encroachment
Take Home
“Open and notorious” is for the benefit or true owner, so if true owner knows, that is
enough
Good faith/bad faith intention is not an aspect of the adverse requirement
All that matters is that the possession is “hostile:” that it’s against the interest of the TO
Permission to occupy land given by true owner is enough to negate hostility requirement
CASE 4: Songbyrd, Inc. v. Estate of Grossman | Page 214
Facts:
P New Orleans Musician Professor Longhair Byrd made several recordings in the early
1970s. Tapes came into the possession of Bearsville, located in Woodstock, NY. π has
made several requests to Δ to return tapes (unclear if Δ ever really responded). In 1986,
Bearsville licensed certain of π’s recordings out which were used by record companies.
Note: This is an action for replevin for the physical tapes, not a copyright action for what’s
on the tapes
Two possible cases could control:
Sporn v MCA Records - shortest
Statute of limitations begins to at time of conversion (when property is taken).
Doesn’t matter if  didn’t get notice of the conversion
Guggenheim v Lubell - longest
Statute of limitations starts when true owner makes demand for return of chattel and
person in possession refuses
Court chooses to go with Sporn.
Conversion occurred when Bearsville began licensing the tapes and therefore SOL has
runout
Take home
Sporn test creates an interesting problem: if Bearsville sells the tapes to someone else, then
Guggenheim would apply and Songbyrd could sue the new owner as soon as he makes a
request that’s refused
Definition of Conversion: “The tort of conversion is established when the one who owns and
has a right of possession of personal property proves that the property is in the
unauthorized possession of another who has acted to exclude the rights of the owner” Key
Bank v Grossi. “A party acts to exclude the rights of another by exercising dominion and
control over the property that is inconsistent with the interests of the true owner” Shaw v
Rolex Watch
Ambiguities
Limited bundle of rights - Not exactly adverse possession because they can’t sell it to
anyone else or π can use Guggenheim rule to ask for it back from a purchaser. They can
only license it out. Don’t have property in rem rights.
Land v chattel – adverse possession for chattel seems way easier to fulfill.
Don’t care about what kind of chattel
Don’t care about notice
Don’t care about good faith/bad faith
H. SEQUENTIAL POSSESSION
Relativity of Title
Rightful possession is relative to the two parties and not based on “absolute lawfulness”
Jus Tertii: In a bilateral dispute, neither party can claim absent third party’s rights
No clear answer as to clear benefits of this

Substantive: Protection of peaceful possession, “Endless series of
unlawful seizures”

Procedural: availability of direct testimony, putting rights of third
party would present potential difficulties of proof.

Information cost: do we really want people who find property to go
through cost of finding original owner

“No property among thieves” would discourage theft

Easiest way for TO to find the property
Quick summary of the three cases
Armory: Finder v Converter:
A finder has a better title than everyone else except original owner
No issue of temporal priority because finder doesn’t come after converter
Clark: Finder v Finder
Introduces temporal priority
Anderson: Converter v. Converter
Temporal priority between two thieves
Doesn’t need to be absolutely lawful, only needs to be lawful against the other party
CASE 1: Armory v Delamirie | Page 220
Facts:
Chimney sweep’s “boy” found jewel. Delivered it to apprentice at Δ’s shop to know what it
was.
Apprentice took out stones and returned without the stones. Action for trover (replevin)
Take home
Finder of jewel has right against all the world except original owner. But Finder is not
Converter.
CASE 2: Clark v Maloney | Page 222
Facts:
Action of trover for value of ten white pine logs. π found logs floating in Delaware bay after
flood (freshet). Logs were moored to ropes in the mouth of a creek. Afterwards found in
possession of Δ who refused to give them up alleging they had found them adrift floating in
creek
Take home
Δ argues that they have just as much of a right as π because they both found them in same
way
Court disagrees. First finder has right against all the world except original owner, therefore
verdict for π
Why should 1st finder have right over 2nd?
Efficiency based on stability: Certainty that you can invest time/energy/resources in the
property
Counter-argument: Efficiency based on use: whoever has the property is in the most
efficient position to use it.
CASE 3: Anderson v Gouldberg | Page 224
Facts: P trespassed on land and converted 93 logs. D then took logs from P (also
conversion). P looking to recover possession of 93 pine logs marked (replevin) or value
thereof (trover) against Δ Gouldberg
Holding: Logs were not from Δ’s property, therefore π has a right against all the world
except TO. If this rule weren’t the case, there would be endless series of unlawful seizures
and reprisals once property passed out of possession of original owner
Does this mean that Good Samaritan shouldn’t chase down stolen purse from a third party?
(I personally think this is stupid, this would only be if he tried to then claim the purse for
himself, not give it back to the original owner who would have the rightful claim)
Is court’s reasoning that there would otherwise be and endless series of thefts valid?
Does it incentivize theft knowing you can get a property right
Note: Another case involving logs comes to opposite conclusion (Russell v Hill in casenotes)
I. COMPETING CLAIMS OF FIRST POSSESSION
In Sequential Possession, the question is how you decide ownership interest in true owner’s
absence.
In Competing Claims, the question is how you decide ownership interest when there is no
true owner.
(both parties want to be true owner)
CASE 1: Fisher v. Steward | Page 227 [Discoverer/Possessor, Landowner by
Accession/ad coelum]
Facts: π found a swarm of bees on Δ’s property, marked the tree and claimed ownership by
discovery.
Holding: The fact that π trespassed on Δ’s property means that π can’t claim any rights.
Different from Pierson b/c there, fox was hunted on wild land.
Analyze X in terms of custom (how do we decide reasonableness?); in terms of notice (but
court doesn’t think notice is important); in terms of effort (but tomato juice in ocean – is
that effort?)
Balgy in class explained that the law for bees is very complicated
CASE 2: Goddard v Winchell | Page 229 [Discoverer/Possessor; Landowner by Ad
coelum or Fixture]
Facts: P Goddard’s tenant let someone go onto land and dig up an “aerolite” that fell on
land (meteorite), who sold it to Winchell. P claims it is owned by him because he owns the
land.
Reasoning: Analyze problem through:
Occupancy (Blackstone):It goes to first finder, but object must be movable and
unclaimed/abandoned
Court decides that its not movable so occupancy doesn’t apply

Back to old problem: how do you decide if it’s fixed?
Unclaimed/abandoned

Based solely on character of property [this is different from
adverse property, where we debated whether or not abandonment
has to do with intent].
Accretion: gains and losses of accretion will flow naturally to property owner. No logic
behind it. A windfall – matter of luck. If your property gets enhanced or damaged, you
have to live with that. So in this case, owner benefits, regardless of whether or not it was
embedded in soil. Looks a lot more like ratione soli, “by reason of the soil.”
Problem: How does this sit with doctrine of attachment. Shows attachment is more legal
definition than a factual one
Court ultimately uses this basis
Finder: There is a TO but we don’t know who it is. So, sequential possession is transposed
to determining original ownership. The fact that possession is used as a proxy when you
don’t have an original owner (but know it exists) is occasionally used by courts to determine
who original owner should be. Logic: possession is 9/10s of ownership. Possession allows
someone to generate an expectation. In situations where ownership is problematic, and
since we don’t really know who is the TO, let’s go with the legal fiction that possession is
nine-tenths of the law, because it fits with efficiency of expectations.
Trespass
Court doesn’t really talk about it, but it’s in the notes
Court can’t use this argument because the tenant let the guy on the land
Fixtures revisited: Presumption is that owner intends to enrich the land, permanently,
whereas tenant does not
III. VALUES SUBJECT TO OWNERSHIP
A. Artists’ Moral Rights and Cultural Patrimony
CASE 1: MOAKLEY V. EASTWICK | Supreme Court of MA, 1996 | p. 277
P Moakley was commissioned by pastor of First Parish Unitarian Church to create a work of
art. The church was sold to Grace Bible Church [pastor Eastwick is D], which sought to
remove the work, took down some of it, thought it was objectionable on religious grounds,
in conflict with his constitutional rights.
Procedural History: P filed for preliminary injunction; declaration of his rights; and
assessment of damages. Although judge said it was an “expression of the plaintiff’s
personality,” judgment entered in favor of D because the judge determined that Act as
applied would interfere with constitutional right to religion.
Complaint was filed under the Art Preservation Act: trying to introduce concept of droit
moral, where an artist retains certain inalienable rights with respect to his creation. It
protects:
Professional Reputation, or Right of Integrity: prohibited physical defacement of work for
lifetime of artist
Personality, or Right of Paternity: artist can claim authorship of work
For “fine art that cannot be removed from a building without substantial physical
defacement,” then the rights of Act are forfeited unless expressed in writing and signed by
owner of building prior to installation of art.
Issue: can Art Preservation Act act retroactively? NO. “Act was not intended to apply
retroactively to works created before its enactment and owned by someone other than the
artist.” Reasoning was primarily legislative history; this is a procedural wrinkle and doesn’t
really address the property issue.
Holding: Judgment modified to add a provision declaring P’s art is not subject to Art
Preservation Act protections and then affirmed. Avoids constitutional question.
Droit moral: “whereby a creative artist retains certain inalienable rights with respect to his
or her creation before and after publication, display, or sale”
Inalienable rights cannot usually be waived, but can waive in droit moral. So droit moral is
not necessarily inalienable. While droit moral refers to inalienable rights, MA law doesn’t.
Only right to paternity and right of integrity.
What is the logic is for droit moral? Goal of Act says personality of authorship and
reputation.
Personality: How does someone invest in a work of fine art? Other than deontic.

Rejects Hegel. Hegel says that your personality = full-blown
property interest. This is just “an interest that tracks personality,”
not the same.

Rejects Economic. Establishing an inalienability of personality
rights cannot be reconciled with economic terms. Coase tells us,
let the market value these things intrinsically. Most people should
be willing to sell something at a certain value. Economically, these
trades shouldn’t be precluded.
Reputation/ Gatekeeper function:

Rooted in economic terms. Artist needs to be the gatekeeper of
the investment of his reputation on his market.
Is droit moral dealing with property interests of the artist? No; they’re not inalienable [can
be transferred or waived], don’t care about right to exclude, not even vested in personality
that Hegel proposed.
We can better understand these moral rights as a restriction of use of property of the
owner. Like zoning. For original works, law is trying to secure value of original artwork by
restricting what owner can do.
What happens when this restriction on property conflicts not with a property interest
[Eastwick saying we want to use this house in a certain way], but with constitutional
element like religious freedom? Court effectively dodges this question.
CASE 2: UNITED STATES V. CORROW | US Court of Appeals, 1997 | p. 284
Facts: D Corrow purchased a Yei B’Chei, Native American masks and gods, from the Fannie
Winnie, widow of Navajo Hataali, a religious singer. He was caught by an undercover agent
trying to sell it to a purported third party buyer, James Tanner. Was charged under NAGPRA
& USC 1170 for trafficking in Native American cultural items.
Rule: An application of Rule 1170b [p. 287]. To demonstrate artifact is cultural patrimony,
prosecution would need to prove:
Had ongoing cultural importance central to Native American group.
Could not be alienated by an individual
Additionally, that this was not owned by an individual Native American.
Issue: D says the first two elements are unintelligible, uses “void for vagueness” rule –
ordinary people should be able to understand the law; also allows prosecutors to cherry
pick, or arbitrary discretion, their targets. Need fair notice. Courts say NO.
D was given notice, because he was knowledgeable about Navajo traditions and had been
spoken to about it. He also lied and said he wanted to pass to another chanter.
Holding: Court found for P.
Relationship between property and alienability. Why is there a three-fold test? Cultural
importance, alienability, and “not owned by individual NA.”
Ownability: Tells us that ownership seems to be independent of alienability. But what
does ownership mean, if ownership is a separate element beyond alienability?

Corrow’s witness: equated ownership with use and knowing of
rituals, but acknowledged some can be sold [alienable.] Corrow is
using this testimony to show he had no idea of what ownership is
by virtue of the fact that they themselves don’t even know.
Do Native Americans have a property Right in Yei B’Chei? Argument that Yei B’Chei is not
property, because Indians don’t have a sense of property, is problematic. Johnson v.
MacIntosh – Indians don’t have a conception of property, and therefore denying it doesn’t
really entail a denial of property. This is dangerous! Maybe should still be a classification of
property, just with limitations.
De jure inalienability or de facto alienability: What work is inalienability doing here? De
jure [question of law – what courts think] or de facto [of fact – what Native Americans
think, particularly with their different conception of property].
We’re mistakenly applying our conception of inalienability to the Native American’s idea of
“can’t move beyond four mountains.”
Instrumental application of inalienability in market sense – introduced for protection of asset
b/c you want to reduce the demand for it, so you limit the legal market for it. For example,
endangered species, conflict-free diamonds.
Alienability is performing an instrumental
function, in belief that minimizing demand will eliminate the exploitative problems. But
should question that – will it work? If you minimize supply by making these more rare, and
you would actually raise the value of it.
--> Here, court is concerned with instrumental purpose of inalienability and law tries to
connect it to non-instrumental purpose.
B. Public Trust
Navigable Waters [p. 308]
In English law, king controlled all navigable water and the land underneath, and “navigable”
was defined to include only tidal waters. But this ownership was qualified by jus
publicum: general public easement of free navigation; right to fish.
In American Law, navigable water was owned by federal government under the Commerce
Act, not jus publicum. States were given right to submerged land under tidal waters and
non-tidal waters were owned by adjacent private landowners.
Commerce Clause gives US’s power to regulate navigation a “dominant servitude,” which
will always subordinate state’s rights if in order to improve public navigation.
Question
remains: Can Congress itself defeat jus publicum?
Public Trust Doctrine: there are certain kinds of resources that are inherently public
property, in that they’re endowed with public interest conception. Bundle of rights that
owner has is limited by public interest. We have values that cannot be guarded sufficiently
by market [yei b’chei; harbor].
Trust in general is an invention of common law which disassociates two concepts of
property: control and use. If we want to segregate the two, one party gets control, another
party gets use of it. Trustee manages or controls the resource, gets right to exclude, for
the use of beneficiaries. So in this case, state has control, public has use.
CASE 1: ILLINOIS CENTRAL RAILROAD CO. V. ILLINOIS | SCOTUS, 1892 | p. 314
City of Chicago sold “outer” harbor rights to Illinois Central Railroad Co. who was developing
it for their own purpose as a railroad corporation and its own profit. Bill of information
[declaratory of title] in equity filed by P Illinois. Section 3 of Act of 1869: gave RR control of
harbor, restricted by the fact that they can’t impair public right of navigation, and couldn’t
pass on title to someone else. These limitations aren’t really enforceable, b/c:
Restriction on title transfer: could always lease it to someone else
Restriction on navigation: they already pre-existed Section 3.
Issue: Can City of Chicago legislature deprive the state of its ownership of the submerged
lands in Chicago harbor? NO.
State’s title is one of public trust – “so that the people can enjoy navigation of the waters,
carry on commerce, have liberty of fishing, freed from obstruction or interference of private
parties.” Parcels can be granted, but for public interest only. State controls the land but it’s
for the use of the people.
What can state NOT do during these grants? Public trust can’t be alienated. Cannot abdicate
state’s ultimate control, except if parcels are used to promote the interests of public, or can
be disposed of without substantial impairment of the public interest in the lands remaining.
If state attempts to abdicate, it’s void or revocable.
State can delegate its control to a private or municipal body in certain situations, like
improving navigation, but this will be revocable [but not void?].
Holding: Court found for P. D Railroad’s rights to harbor are revocable.
Dissent: Offers two alternatives: “wait and watch” strategy – wait til RR did something that
violated public interest; and whether public trust doctrine is a way to get around 5 th
Amendment
So, is the public trust doctrine really just a way not to compensate a la the 5 th Amendment’s
takings clause?
Public trust is ex ante – considered to be invested in public trust even before action in the
court. Takings doctrine is ex post – court is taking the property.
Public trust doctrine is problematic because it needs to be limited. Your incentives would be
different if you knew the property was held in public trust and could be revoked, without
compensation, at any time. So need to limit public trust to navigation only. But this is
actually expanding: what’s water but a public highway, what’s a public highway but the
internet.
Public trust doctrine sits somewhere uneasily with idea that property is about expectation.
Probably the reason why public trust doctrine doesn’t take off. What TYPE of resources can
fall under public trust doctrine. Nature of ownership becomes different.
Anomaly because it used to be part of federal common law pre-Erie.
CASE 2: STATE OF OREGON EX REL. THORNTON V. HAY | SC of OR, 1969 |
Landowners Hays tried to fence in dry-sand [area b/w high tide and the vegetation line]
part of their property, district court decided that public could acquire easements in private
land and enjoined them from building fence, found against Hays.
Issue: Who had title to dry sand area? PUBLIC
Holding: Court recognizes a custom, vested in the public, for use of the dry sand area.
Implied dedication: abandonment doctrine, that you can discern from action of landowners
an intent to dedicate property to the public.
Problematic b/c evidentiary problems with figuring out intent.
Prescriptive easement: doesn’t transfer title, but rather to establish a use right. Kind of like
adverse possession, in that after property is being used for a certain amount of time, you
can’t kick them out anymore.
But prescriptive easement isn’t restricted to recreational uses. Could actually be used for
hot-dog vendors. This may be why the court finds it hard to use this theory, wanted to
cabin it.
Easement in gross: right that is vested in class of individuals and doesn’t move with the
property. Easement appertinent is when the ownership is vested in ownership of another
property.
Ultimately, SC approaches it from custom because 1) Custom can be applied to a larger
region; 2) Uniqueness of the land, and the fact that custom extends historically to the
Indians. Unclear if customary right is a property right, though.
Seven Factors:
Ancient
Exercised w/o interruption
Peaceful and free from disputes
Reasonableness of custom: We discussed reasonableness in Ghen v. Rich, but unclear what
exactly it means as applied to custom.
Certainty (limitations)
Obligatory: Landowners felt compelled by custom – a practice becomes binding as law when
actors conform to that custom believing to be bound by it.
Not repugnant or inconsistent
Points of Discussion:
Suggestion that Native Americans have been using it as long as anyone can remember.
Again, dangerous to use NA only to our advantage.
Notice: Like Ploof v. Putnam, is this all about notice?
Court says use so notorious that landowners should have known when they were buying the
land.
Could court have thought that notice is really important and custom has better notice than
prescriptive easement?
Public trust doctrine can be extended beyond water bodies.
Also could argue that theory of custom also doesn’t say that you could use it for private
interests, but it’s so discretionary that it gives court leeway to find it unjustifiable.
See same strain of court making clear that it isn’t a taking.
IV. OWNER SOVEREIGNTY AND ITS LIMITS
A. Criminal and Civil Remedies
CASE 1: PEOPLE V. OLIVO | Court of Appeals of NY, 1981 |
Owner’s interest over person’s interest
Issue: May a person be convicted of larceny for shoplifting if the person is caught with
goods while inside the store?
Rule: If customer 1) exercises dominion and control wholly inconsistent with continued
rights of owner and 2) other elements of a crime [to show intent - conceal clothing, furtive
behavior] are present, a larceny has occurred.
Trend from possession to intent:
Historically, heavy emphasis on “trespassory taking” to be a larceny. So, element of
possession emphasized in order to protect breach of peace. Try to limit the situation where
interaction b/w strangers during “taking” would result in one person punching the other.
Permissive taking, know the person who has it  chance of violence is smaller.
Now, intent has become important. Focus on protection of property through owner’s
autonomy.
Larceny: taking of someone else’s property with intent to steal it. Different from conversion
b/c conversion doesn’t have intent element.
Actions of taking seem to be dependent on custom – weakness.
Furtive acts, concealing of clothing – seem to be custom. So these exercises can change
from one time to another. So do you think it’s right to predicate crime of larceny on
changing norms? For example, consuming grapes at Whole Foods – custom says that you
can do that.
CASE 2: STATE V. SHACK | Supreme Court of NJ, 1971 |
Court was protecting the interest of people versus owner’s interest in his property.
D Shack, government worker, entered private property to aid migrant farmworkers who
lived there. P is farmer who owns the property; told D that he could only meet in his office
under P’s supervision. D refused to leave, police called. D convicted of criminal trespass.
Issue: Can property ownership include right to bar access to governmental services? NO.
“Property rights serve human values; property cannot include dominion over the destiny of
persons.” Property rights are supposed to serve humans – right to autonomy, efficient use
of resources. So, title to property can’t include dominion of persons on property.
It is a balance of competing needs. Standards, not rule.
Migrant workers are disadvantaged. In this case, migrant workers don’t know where to go
to find help, so help must come to them. Communication is crucial.
Holding: Judgments reversed, D acquitted.
Standards v. Rules: To what extent is the landowner’s right to exclude weakened? Hard to
limit ex ante anything when it’s a “standards” question. From an ex ante point of view, how
do you confine that purpose without being worried that you are infringing on that person’s
rights? You can’t. Very contextual bundle of rights; depends on characteristics of entry and
the person trying to enter the property.
What does criminal law add to property debate? What is lost in the addition of criminal law
to enforce property [Rule - Jacques v. standards - Shack]? Are values of criminal system
compatible with values that we think property exist for? State v. Shack attempting to align
the two?
Maybe Shack was realist decision: court focused on outcome, not doctrinal distinctions, and
given its focus on trying to help migrants, court did what it had to, not clear if it has
precedential value.
Or, could say Shack is really about criminal law, not property. If civil, would court have
used the same rhetoric as it did? They could’ve used common law exceptions to trespass,
like necessity. Would have couched it in terms of bundle of rights.
CASE 3: INTEL CORPORATION V. HAMIDI | Supreme Court of CA, 2003 | Civil
Remedies
D Hamidi is former employer of Intel. Sent emails to Intel employees on Intel’s email
system. P sued for trespass to chattels; brought nuisance act but abandoned it; also
abandoned claim for damages and restricted it to injunctive relief.
** General rule: When owner of the chattel has been dispossessed, then trespass to
chattel can be brought without showing damage. But when not dispossessed, needs to
show injury by condition; quality; or value of owner’s interest of chattel.
Issue: Did D’s actions cause damages to Intel’s computer system, or injury in its rights to
personal property [ie proximately caused injury]? NO.
1) Traditional: Intel claimed damages in loss in employee time and productivity
Unlike loss of reputation/goodwill in spam cases, which counted as harm to the server
because it affected quantity or functionality of the chattel, the loss of productivity was harm
that didn’t actually affect the chattel itself.
2) Proposal to expand:
Epstein suggests, Server as quasi-real property, likens it to an actual place. Server space
ought to be treated analogous to trespass to land, not trespass to chattels. Then you will
have people with positive and negative externalities, transaction costs are minimal, and
Coasian means that most efficient way will prevail.
Lemley’s counter: but you would effectively now have a system where everyone is charged
for an email they sent, or have to read all the terms and conditions, and people would send
less emails  result in interference with communication, net effect is the equivalent of an
anti-commons, transaction costs so prohibitive that it results in an underutilization of
resources.
But even in this situation, still wouldn’t be trespass because emails are electromagnetic
transmissions that didn’t cause physical damage  nuisance. But nuisance claim was
abandoned because there’s no doctrine of nuisance to chattels.
Court starts talking about problems with metaphors, says we shouldn’t go down the world of
treating it like realty.
Holding: Judgment of COA reversed. Decision for D.
Brown’s Dissent:
When you have a right, there is a remedy. Section 218 doesn’t preclude grant of injunctive
relief, and so when self-help doesn’t work, you should use injunction.
Justice Moss:
“Wait and watch” rule and unpredictability – effect of uncertainty on investment decisions.
Even if risk is imminent, law doesn’t allow court to grant remedy in the first instance. So
this creates a kind of unpredictability and therefore diminishes investment in the area.
Points of Discussion:
Why not public trust? What Intel can do with its property interest has to do with the public
interest. Then, freedom to speech is the public interest. Public trust doctrine may diminish
incentives and investment decisions. Doesn’t really tell you up front what you can or cannot
do – ex post.
Cyber-trespass: E-bay vs. Bidders’ Edge, secondary market at the time called auction
aggregators, which would organize auctions by times. Discovered that Bidder’s Edge would
send little activators called “robots” or “web spiders;” Epstein thought these web spiders
were trespassing. Big problem – spiders never really went anywhere; this was premised on
a metaphor that wasn’t really true.
Chattel vs. Land: In chattel, there needs to be either dispossession or actual change in
value, condition, or quality in order to have a cause of action.
Protection of dignitary interest [moral theory that someone invests their dignity into a
resource.] Dignitary interest of landowner is much stronger. Historical conception.
Pragmatic – too many legal actions!
Immovability – you can’t pick up land and go somewhere else, whereas you can move your
chattel.
When you’re dealing with chattels, there are 2 kinds imposed: cost of monitoring inferences
on your side, and the cost of third parties. Duty cast on other people to stay away.
Information costs are continuously changing and multiplying when you move chattel. But in
case of immovable property, stagnant information cost.
Social norm of “live and let live.” Everybody owns some sort of chattel; social norm has
evolved to say we will let everyone live and let live until you violate it somehow. Paretooptimal release: everyone is better off without making anyone worse off
B. SELF-HELP
TRESPASS
SELF-HELP
LAND
PERSONAL PROPERTY
No harm required
Harm required
1) Right of possession
1) Right of possession
2) Peaceable means
2) Peaceable means
CASE 1: Berg v. Wiley
Facts:
Lessor is building owner, lessee is operates a restaurant out of the building. Wiley reserved
the right at his option to retake premises should the lessee fail to meet the conditions of the
lease. Dispute arises because of Wiley’s objection to Berg’s continued remodeling of the
restaurant without permission of Wiley and because Wiley thought Berg’s restaurant was in
violation of health safety codes. After the stipulated date, Wiley and a police officer went to
the building and changed the locks. Berg was not there.
Berg sues for lost profit and chattels resulting form the lockout
Rule: Common law rule for self-help repossession – two factors
The landlord is legally entitled to possession, such as where a tenant holds over after the
lease term or where a tenant breaches a lease contains a reentry clause
The landlord’s means of reentry are peaceable
Holding: Court says the only reason why actual violence did not erupt at the moment of
Wiley’s changing of the locks was Berg’s absence. Self-help not appropriate, must use
judicial process.
CASE 2: Williams v. Ford Motor Credit Co.
Facts: Divorced couple owns car where wife retains possession and husband makes
payments. Husband stops payments  FMMC sends tow truck to P’s house at 4 in the
morning to retake possession of the car.
Polite exchange ensues, and the tow truck takes the car.
Rule:
In taking possession, a secured party may proceed without judicial process if this can be
done without breach of the peace
Breach of peace does not occur where debtor possessor did not give his permission but did
not object.
Court notes that Williams did not raise an objection to the taking, and the repossession was
accomplished without any incident which might tend to provoke violence.
Holding:
Court rules that conversion did not take place because the repossession was peaceable
Majority’s position suggests that Williams would have had to incite violence to obtain a
judgment in her favor. The reasoning is ex-post and does not provide a helpful rule for
future cases.
Dissent note: “Facing the wrecker crew in the dead of night, Williams did everything she
could to stop them short of introducing physical force.
C. Exceptions to the Right to Exclude
1.NECESSITY
Ploof v. Putnam (VT, 1908)
Issue: plaintiff moored his ship to def’s dock during a storm; def unmoored it and plaintiff was
injured
Holding: necessity justifies entries upon land and interferences w/ personal property that would
otherwise have been trespasses
Doctrine of necessity  privilege to enter land of another without consent in order to avoid
serious harm
Can view as shift from property rule  liability rule
Owner retains entitlement, but it is no longer protected by a rule of exclusion – intruder
subject to forces of necessity can take the entitle without O’s consent, but must pay just
compensation for any damage
Necessity is a bigger exception than just a family on a ship—but not a bright-line rule, does
depend on circumstance
The unifying factor in these exceptions is a balancing test employed by the court [looking
for exigent circumstances and an interest at stake]
Threat of bodily injury not required – but doctrine does apply w/ special force to the
preservation of human life
Jacques – not necessarily exigent or urgent
CASE 2: Vincent v. Lake Erie Transp. Co. – pg 442-443
Necessity creates liability rule vested in owner
Right to exclude cannot be enforced in all instances
The intruder who is subject to the forces of necessity can take the entitlement without the
owner’s consent, but when he does so he must pay the owner just compensation.
2. Custom
CASE 1: McConico v. Singleton
Issue: plaintiff brings trespass action against def for hunting on his land
Holding: no right to exclude others who are hunting on your land
Based on custom right  right to hunt on unenclosed and uncultivated lands has never
been disputed, and has been universally exercised
Law now  if you haven’t posted on your land, people can hunt / fish there
WHY  economics of hunting have changed – more of a recreation activity, so hunters now
may be willing to pay for use of land
Take away:
Customary norms and practices can give rise to an exception to property rule.
3. Public Accomodations
CASE 1: Uston v. Resorts
Issue: casino barred plaintiff b/c of his card-counting strategy
Holding: casinos can’t prohibit based on card counting, b/c Commission didn’t recognize as
a reason. But courts also hold that Commission’s asserted decision on common law is
wrong.

Before, prevailing common law was absolute right to exclude. But here, there is
a common law “right to reasonable access” – right to not be excluded without a
valid reason. [Public accommodation]

What is the logic behind the public access rule?
* Quid pro quo theory: A business benefits from public’s presence. Once a business
chooses to open their doors to the public, it loses the right to exclude individual members of
it arbitrarily.

Wrinkle: what about non-profits?
* Economic: If a business has all of the bargaining power, there can be no fair bargaining
between the business and client, and that would encourage monopoly. [Innkeepers on
remote highways]
* Discrimination is bad
Public trust: casinos are inherently public property, so allowing public onto property is
needed. Property ownership is limited by public interest.

Can you really say that casinos are for the public good?
4. Non-Discrimination Laws
CASE 1: Shelley v. Kramer
In a St. Louis neighborhood, 30 out of 39 property owners sign restrictive covenant
agreeing not to sell or rent to non-white people. One of these houses is sold to D Shelley,
who is black. Shelley moves in, didn’t actually know about the covenant before buying. P
Kraemer, owner of other property subject to terms of restrictive covenant, sues for
enforcement of the covenant and dispossession of Shelleys – not seeking damages.
Issue: Whether the private restrictive agreement could be enforced by the courts, and
whether such enforcement would amount to state action
Holding: Granting judicial enforcement would amount to state action. Thus, covenant
cannot be enforced because it violates due rights and courts are not allowed to violate due
rights.

On its face, S v. K seems like a broad open-ended incursion into right to exclude
- courts will not enforce the right to exclude where discrimination is the basis for
exclusion. But courts have never applied it so broadly.

Balancing one constitutional right against another: right to property versus. 14 th
Amend.
Bell v. Maryland: court ducked this constitutional question.

Still allows for self-help remedies.

How do we limit/understand S v. K in the contexts of broader property
theory and the idea of an owner’s autonomy interest?
1) Shelley is a case about property rights – trying to enforce the property interest of a seller
to sell a property how he wants, and the reliance interest of the buyer.
2) Shelley is a case on permissible zoning. Law has always recognized zoning restrictions.
Can’t use contract law to get around zoning.
3) Distinction between indirect and direct property interest: Case was about a non-owner
seeking to enforce a covenant precluding a sale by independent seller to an independent
buyer. Case might have been very different if the seller himself had sought enforcement of
the covenant.
CASE 2: Attorney General v. Desilets
Issue: Unmarried couple seeks housing but is denied opportunity to lease apartment
because of Catholic building owner’s religious views
Holding: The court found that the case involved the tension between a statutory mandate
that a landlord must not discriminate against unmarried couples in renting accommodations
and the landlords' sincerely held religious beliefs that they should not facilitate what they
regard as sinful cohabitation. Logic:

Court uses Yoder Balancing Test (Substantial Burden Requirement): must
determine whether the landlord has shown that the prohibition against housing
discrimination based on marital status substantially burdens their free exercise of
religion, and, if it does, whether the Commonwealth has shown that it has a
interest sufficiently compelling to justify that burden.

Court says that state does not have an intense interest in protecting unmarried
couples from housing discrimination because it is not clear that there is a
substantial amount of housing discrimination against unmarried couples in MA.
Furthermore, court suggests that market forces are sufficient to curb the level of
housing discrimination against unmarried couples.
Variables in Discriminatory Exclusion – Hierarchical

Nature of the class that is being excluded: Constitutionally protected class
(Shelley); statutorily protected class (Desilets); “everyone else arbitrarily
excluded – gambler”

Nature of the plaintiff’s interest: private property ownership; indirect private
property interest (Shelley); public property [property itself is infused with public
interest – public trust doctrine]

Economic monopoly concerns: Public accommodations: areas in which interest
need to be understood in avoiding monopoly, given unlikelihood of a bargain
being struck between owner and user.
5. Licenses
License: A license is a waiver of the owner’s property right to exclude. In general, the term
license refers to a waiver of the exclusion that is temporary and revocable. An authorization
to use somebody else’s resources (affirmative) or a situation where a property owner grants
exceptions to his right to exclude (negative)
CASE 1: Wood v. Leadbitter – Binary classification
P bought a ticket, but got kicked out without any evidence of misconduct. Binary
classification between a mere license and a license that is coupled with a grant.
License is by nature revocable. A license coupled with a grant is not.
Grant: transfer of some kind of interest in a resource, in Leadbitter, an interest in land.
CASE 2: Marrone v. Washington Jockey Club - Binary classification
P went to race track after buying ticket for admission. D forcibly removed P using “no more
force than was necessary”
Holding: Tickets do not create a right in rem. A ticket (license) is a contract, but it doesn’t
create an interest, unless there’s also a conveyance (grant) that comes with it. Because
there’s no interest, we can’t use self-help to enforce it. But because there is a contract, so
you get damages if D breaches – but not specific performance. So, P gets money back but
not specific performance.
CASE 3: Hurst v. Picture Theatre – in Equity
Facts: man pays for ticket – theater repeatedly tries to remove him, alleging he did not pay
for ticket, and eliciting a police officer’s help in ejection as well - PO refused to help.
Theater porter physically lifts man who then walks out (“no unnecessary violence”)
Issue: Are ticket grantors justified in forcing, without reason, a patron who has bought a
ticket to leave? If he refuses to leave, can they force him? NO.
Holding: Here, a ticket is a license coupled with grant. P’s license to enjoy the show,
coupled with a grant of his right to go into the building, is irrevocable. P can get specific
performance.
Alternative interpretation: because of the merger between law and equity, and Wood was a
court of law, you don’t have to follow the binary distinctions anymore.
Or, simply that in the time of Wood you needed a seal to get a grant. Not anymore.
Penner: With issuance of a grant, right to exclude the owner [or waiver of the owner’s right
to exclude] is accompanied by the right to use and enjoy. Tickets gives conditional right to
exclude.
License is not always a contract, because a contract needs consideration. Rather, license is
simply a waivers of a right to exclude
CASE 4: Pro CD v. Zeidenberg – Licenses as contracts
ProCD compiles info from telephone directories and sells them to trade and public, at
different prices. To control the price discrimination, P uses contract: “Enclosed license limits
the use of the application program and listings to a non-commercial purpose.” D bought
consumer package but ignored the license and sold the info commercially. P sued, seeking
injunction.

Issue: Whether software buyer bound by the terms of a shrinkwrap license that was not
displayed on the outside of a software box.

Holding:
o
Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds
applicable to contracts in general. A term of their purchase.
o
D argues that 17 USC 301 prevents the enforcement of the contract because it
preempts legal or equitable rights under state law that are equivalent to the exclusive
rights granted by copyright law. 
o
Easterbrook says that this is not equivalent to copyright law because contracts are
bilateral – in personam and copyright laws are in rem.

This is a conceptual difference, not a functional difference – in terms of how
the copyright or contract will function regarding the software, they are the
same. The license splashes across the screen anytime the software is used, so
anybody who uses the product is subject to the license.
o
Price discrimination

Utopian scenario “perfect price discrimination” price it so that you get the most
anyone was willing to pay for it

In ideal world we have perfect price - seller with individual buyers - impossible
to ascertain - Coase and transaction costs

We must instead go into categories of pricing – if there was one price – the
high one – the seller would lose out on ordinary consumer

License becomes mechanism to price discriminate through self enforcement.
6. Bailments
Transfer of chattel(s) from Bailor to Bailee, extending bailor's property rights over the
chattel to the bailee for a stipulated time. Contractual (in personam) rights to transfer
property (in rem) rights.
i.
Not a complete transfer
1. Limited in purpose and time
2. Bailee has duty to return to owner
ii.
Created in 2 ways
1. Express: Contract
2. Implied: Requires delivery and custody
i.
Voluntary
1. Courts may also require acceptance (see Allen dissent and Cowen)
2. Absolutely liable in case of nondelivery
ii.
Involuntary (see Cowen v. Pressprich, below)
1. Does not require acceptance
2. Becomes voluntary if bailee exercises dominion over the chattel
iii.
If bailee breaches or exercises rights beyond the terms, his actions constitute a
conversion
CASE 1: Allen v. Hyatt Regency, 497
D operates a garage with an attendant and roving security. Customers get a ticket with a
disclaimer, relieving D of liability for loss theft. Attendant controls exit via tickets. P's car is
stolen
Rule: Court chooses to keep traditional bailment category, requiring delivery and custody.

Here, lot was enclosed, indoors, had security and an attendant controlling the
exit - this was sufficient delivery and custody --> bailment for hire. Bailment
created.
Dissent: Bailor must make delivery such that he has relinquished exclusive possession,
control and dominion over the chattel so that the bailee can exclude all others from
possession.
CASE 2: Cowen v. Pressprich, 506 – Involuntary bailment
D attempted to deliver a bond to P, but delivered wrong bond to window. D realized
mistake, but returned it to wrong person. P sues to get bond back
Issue (Holding):Was a bailment created? (Yes). If so to what extent was D liable for its
subsequent misdelivery? (Absolute liability)
Rule: If a voluntary bailment (i.e. accepted), bailee is absolutely liable for misdelivery, no
defense of due care. If involuntary, no duty to guard the chattel, BUT become responsible
as a voluntary bailee if you exercise dominion/volition

There was an involuntary bailment, but D exercised dominion by attempting to
return and thus, became absolutely liable
Dissent: Attempting to return is using volition, but not inconsistent with TO's dominion.
Majority's interpretation would make almost any action sufficient to hold you liable as a
voluntary bailee.
Note: Decision was later reversed and decided in accordance with the dissent

What is the difference between trying to give it back and calling on the phone?
None.

Realist analysis: There was really no difference between voluntary and
involuntary bailment under the majority's conception that equated volition with
dominion
CASE 3: The Winkfield, 513
i.

Facts
The Mexican and Winkfield collided; The Mexican sank, but transferred all personnel and
some cargo to the Winkfield before going down

Winkfield carrying mail; some lost

Postmasters (baileees) were not liable to Bailor
ii.

iii.

Issue (Holding)
Is the obligation to account to the bailor a prerequisite to the bailee's right to sue? (No)
Rule
Old Rule - Claridge: If bailee not liable to bailor, no action can be brought by bailee for loss
of chattels.

New Rule: A bailee can bring an action to recover the value of goods in his possession lost
due to negligence by a 3rd party
iv.

Reasoning
Court uses principle from Armory (Finder's possession is good against all but TO), and
analogizes to bailees so a bailee's title is good against all but bailor

Bailee's recovery for loss of chattel does not depend on bailee's liability to bailor; right to
sue is independent
1. Incentive to bailee to protect the asset by recovering chattel
i.
Aligns interests of bailee w/ bailor
ii.
Ct may then impose a obligation to account
2. Reduces transaction costs in cases where one bailee can "represent" multiple bailors
7. Abandonment
CASE 1: Pocono Springs v. MacKenzie, p. 518
1. Facts
1. D buys prop on P's land. No septic service - can't live there
2. D goes through great pains to establish its intent to abandon: Attempted to turn lot over to
P; to gift it over; stopped paying taxes so tax bureau could offer it for sale; notarized
statement expressing desire to abandon [gave notice to “all interested parties – in rem
nature of the property right, anyone who may come into interaction with the property];
don’t accept mail.
2. Issue (Holding): Has D abandoned their property? (No)
3. Rule: If you have perfect title, the property cannot be abandoned
4. Reasoning: D did not abandon because they still have perfect title
1. Acquired by deed and recorded in title registry
a. "Perfect" because it gives notice to everyone
2. Intent is irrelevant
5. Ambiguities
1. Why can't they abandon real property? We abandon chattels all the time
1. Dignitary interest: Can't abandon a piece of yourself
2. Possibly tied to feudal duties - Is this outdated?
3. Need for a gatekeeper?
a. Better to stick someone with a negative value asset than have a commons
i.
Hold someone responsible for negative externalities
CASE 2: Eyerman v. Mercantile Trust Co., 523
1. Facts
1. Woman dies is St Louis and wants to raze her home in a historic neighborhood
2. 40k loss to estate from razing, 10k loss in prop values to neighbors, 200k to replace
3. House designated as a landmark due to architecture/urban design
1. Set in motion after intent to raze was revealed
2. Issue (Holding)
1. Should D be able to raze house via her will? (No)
3. Rule
1. Interests of state/society can trump wishes of dead individuals
- When alive, self-interest will prevent against waste
- When dead, court needs to take public policy into consideration.
2. Dissent: follow wishes unless it violates the law. Majority is considering interests of nonparties (beneficiaries/public)
5. Ambiguities
1. 2 conceptions of public policy?
1. Policy must be determined by strict letter of the law - meaningless (Dissent)
2. Anything when it contravenes against the morals of the time - meaningless (Majority)
a. Really to act against dead hand control.
b. Efficiency considerations: why couldn’t just say public policy is against waste?
This way more power.
8. Transfer
1. Enhances autonomy, because it permits owner to shed gatekeeper responsibility and
continue acquiring property that better suits needs
2. Efficient: free transfer is fast, economical, and those with higher value on resource
end up with it (ideal Coaseian, zero transaction-cost world)
3. Owner cannot transfer property to someone on the condition that they won't
retransfer
CASE 1: Lauderbaugh v. Williams, 532
1. Facts
Lauderbaugh and husband purchased land on Lake Watagwa, parceled into lots and began
selling in 1949, entered into an agreement where future purchasers were required to be
members of the Lake Watagwa Association
1. Covenant gives restrictions for membership, for amending covenant (¾ vote)
2. Issue (Holding)
1. Is the agreement restricting alienation of property to members of the association only
legal? (NO)
3. Reasoning
1. Restrictions of alienability may be reasonable if limited, not if absolute
2. The fact that the association dictates the admission of new owners and may, at their whim,
preclude all new owners to the detriment of L is not acceptable
3. It denies L of right to alienate her land
4. It is also a perpetual agreement (court thinks this is an important factor)
CASE 2: Irons v. Smallpiece, 537
1. Facts

Father promises son two colts, never delivers, colts pass to testatrix

6 mo before death, son sees hay is really expensive

Father agrees to sell son hay and 4 days before death, father delivered hay, but didn’t
deliver colts
2. Issue (Holding)

Was there a transfer? (No)
3. Rule

Gift must be via deed/instrument or actual delivery
4. Reasoning

There is no actual delivery, so son cannot recover from testatrix

Payment for hay may have been sufficient for constructive possession
5. Ambiguities

Why is the element of delivery important?

It's not absolute; chargeability is an exception

Is it moral, evidentiary, or is it about notice?
a. Signal of transfer to world at large
b.
Requirement of effort more important
CASE 3: Foster v. Reiss, 539
1. Facts: Woman on deathbed writes letter to husband (D), giving her stuff to him and giving
instructions to give some items to kids. D goes to P's home and retrieves various
monies/valuables. D was only left $1 in the actual will
2. Issue (Holding)
1. Has there been an actual, unequivocal, and complete delivery during the lifetime of the
donor, wholly divesting him of the possession, dominion and control of the property? (No)
3. Rule
1. For a gift causa mortis, there needs to be intent and actual delivery of possession
4. Reasoning
1. Majority
i.
D executed a "taking"; P did not gift/deliver the property. No affirmative act.
a. Need a formalistic construction of delivery requirement because wills can be
overridden by DMCs
b. Need strong evidence of intent because DMCs carry a high risk of fraud
i. Actual delivery is the strongest evidence
c. May have been "constructive possession" is D owned the house, but he did not
2. Dissent
i.
Majority too formalistic
a. It would require a woman on her deathbed to hand over items that were in her
house
5. Ambiguities
2. Delivery has its roots in seisin. Shouldn't the delivery requirement fade with its impetus?
3. Court's worries about DMCs were primary motivation
i.
Easy to have enforced and will supercede a will
ii.
Must establish that the gift is the act of a rational actor
V. Forms of Ownership
A. Division by Time 545-562
1. Present Possessory Interests
1. Fee Simple - Best possible/most complete interest, unlimited duration, alienable
1. Determinable: Interest ends automatically upon the occurrence of a named
event, then reverts to grantor
2. Subject to Condition Subsequent: Interest can end upon the occurrence of a
named event (at grantor's discretion), if so it reverts to grantor
3. Subject to Executory Limitation: Interest ends automatically (usually;
regardless of conditional language) upon the occurrence of a named event,
then is conveyed to a 3rd party
2. Life estate - Interest lasts only for the life of the grantee, can alienate, but it is
alienated subject to restrictions on grantee (i.e. ends when original grantee dies)
3. Lease
4. Fee Tail: Usually a non-transferable life estate, with a future interest in the grantee's
bloodline
1. Illegal in most states; will normally be converted to a fee simple for the
immediate grantee
2. Future Interests in Retained by Grantors
1. Reversion - interest following a life estate that goes back to the grantor
2. Possibility of a reverter - interest following a fee simple determinable that goes back
to the grantor if the condition is met
3. Right of Entry (power of termination) - interest following a fee simple subject to
condition subsequent that goes back to the grantor if the condition is met
3. Future Interests in Grantees
1. Remainder - Interest following a life estate that does not revert to grantor
1. Indefeasibly vested: ID of takers is known, and there is no other contingency
before interest becomes possessory. No condition subsequent can cut the
remainder short.
2. *Contingent: Uncertainty as to the class of takers or whether the condition
precedent will occur
3. Vested subject to complete divestment: No uncertainty as to takers/conditions
precedent, but can be cut short by the occurrence of a named condition
subsequent, and will then vest in a closed class of takers.
4. *Vested subject to open/partial divestment: No uncertainty as to
takers/conditions precedent, but will then vest in an open class of takers.
2. *Executory interest - An interest in a transferee (3rd party) that cuts off a previous
interest.
1. Shifting: cuts off the interest of a grantee
2. Springing: cuts off the interest of the grantor
(* subject to RAP)
4. Vesting in interest - party may not have possession, but there is no uncertainty as to the
class of takers or conditions
CASE 1: WILLIAMS V. ESTATE OF WILLIAMS p. 563
Testator had 8 children. Named 3 in will (including P), which said they could live on farm
and the farm wasn’t to be sold in their lifetime, and that if any of them dies or marries the
interest ceases and is given to the others. None of them married.
Issue/Holding: Does P have fee simple? NO.

Court says to look at intent of testator. Clear the ownership was to terminate at marriage
or death.
Main Points of Discussion

Alienability: court traditionally frowns on restrictions to alienability. But this court says
that if testator has a reason/purpose for restricting alienability, then it’s not illegal.

Conservation of estates principle: grantors may break up their interests and transfer some
of the pieces, but pieces have to add up to what the grantor started out with.

Williams started out with fee simple, so:
o Daughters get life estate, subject to possibility of reverter [if they marry]. Also
executory interest in other two daughters’ interest [if they marry] and contingent
remainder [if they die].
o
Heirs get reversion in fee simple [if they all die] and possibility of reverter [if they
all get married.]
CASE 2: CITY OF KLAMATH FALLS V. BELL p. 568
Corporation gives land to City “so long as” it’s used as a library, then to Schallock and
Daggett and heirs. Library eventually gets torn down. Corporation had dissolved, went
back to shareholders.
Types of interests:

Court says City has a fee simple determinable. Casebook says it’s really a fee simple
subject to executory interest/limitation.

Interest of Schallock and Daggett’s heirs void “ab initio” (stillborn) because hit by RAP.
Holding: So, who holds possibility of reverter? Law says it reverts to Corporation; so,
shareholders of defunct corporation – which end up being the same people whose interest
were hit by RAP the first time around, Schallock and Daggett’s heirs.

Wrinkle: Executory interest that tries to be alienated is destroyed, whereas possibility of
reverter that tries to be alienated is determined NOT to be. Probably why Court decides to
call City’s interest fee simple determinable instead.
Main Points of Discussion

For law of estates, we should treat the corporation and its shareholders differently.

Piercing the corporate veil: Doctrine that you lift the veil to see who is hiding behind it.
Law of estates is NOT an area where you start with the default of doing that.

Common law really cares about categories and applies different consequences to those
categories. Court is trying to couch it in terms of categories that wouldn’t be invalidated
NUMERUS CLAUSUS: catalog of estates is finite and closed.
Merrill and Smith, “Optimal Standardization in the Law of Property”

Reason behind numerus clausus is usually thought to be concern with restraints on
alienation, but not true, since most people can get around it rather easily.

Suggests real reason is that numerous clausus is the result of an optimal standardization
of property rights.
o On one side, don’t want TOO MANY categories b/c of extra measurement-cost
externalities: extra investigation to see what rights they’re exactly getting
themselves into.
o
On the other side, don’t want TOO FEW categories b/c of extra frustration costs:
can’t get what they want, so they are deterred from using them.

Balance these two, and you will get a certain number of categories – numerus clausus.
CASE 1: JOHNSON V. WHITON: p. 587
Whiton tried to make a deed, in the will there is a sentence that says that he wants to give
granddaughter Sarah 1/3 of estate, rest to other heirs. He doesn’t want to give the interest
to Sarah’s mother’s side.
Issue: Does Sarah have fee simple? YES.

Old common law rule used to be that if land acquired by Sarah's father instead of her,
could only go to blood of first purchaser. Not anymore. Now, you have to look at the
named person, or Sarah, and her bloodline.

So, you can’t create a new type of ownership, so can’t do this. Note that Holmes doesn’t
explain WHY categories should be limited.
Holding: Sarah gets a fee simple.
Main Points of Discussion:

Why did Royal want to limit Sarah’s interest?

Maybe fee tail: make sure that estate goes down bloodline. This has been abolished.

Or, maybe he just wanted to make sure Sarah’s mom doesn’t get anything.

You can frame things you want within this new framework. You could give her fee simple
subject to executory interest, with condition being “if she dies intestate, then to heirs on
her father's side”
CASE 4: GARNER V. GERRISH: NY COA, 1984. [Balgy FLEW through this one.]
Issue: Is lease that lets tenant decide termination date a life tenancy or tenancy at will?
Life tenancy.

Traditional common law presumption is that will of the lessor = will of the lessee, or if
terminable at will of one, then it’s terminable at the will of the other.

So in this case, even though D tenant Gerrish’s lease says that he gets to decide when he
leaves, the old common law rule would say it could still be terminable at will of either – this
is P’s argument.
o Origins came from livery of seisin [feudal law], which has since been abandoned.
Holding: Court says that once the livery of seisin is abolished, then you don’t use it.
Especially in this case since it’s not perpetual or indefinite – the lease will die with Gerrish’s
death.

Example of a court being constrained to fit it into the categories, how the courts approach
the issue and try to straitjacket issue into one of the categories.
Personal Property Interests: p. 593
•
Not usually future interests in chattel, with the exception of trusts.
•
Rule: that says a future interest cannot be created in a “consumable chattel.”
•
Rule: cannot create easements on use of chattels that run with chattel into remote
hands
•
General concern with NOTICE – property rights are in rem, but how are dutyholders
supposed to know? In land, there are registries. In chattel, usually not.
10/12/2010 12:44:00 AM