ORIGINAL TITLE TO PERSONAL AND REAL PROPERTY ASSIGNMENT #1 - LAND - Primacy - First in time, first in right - Externalities - negative effects on third parties due to transactions between two other parties - Commodification - converting anything people are willing to sell/buy into a “property” - Main premise of private property: exclusivity and transferability - Maximizes incentive to buy and allows obtainability by the person who values it most - Limitations on land owner’s freedoms: taxation, nuisances, zoning, eminent domain - Socio-political considerations - altering and refining social and political relationships - Using government/state power to protect interest minimizes personal spending on security Johnson v. McIntosh - Supp #1 - FITFIR only applies when “root of title” is from a valid source - an accepted government - Culturally contingent nature of legal concept - Indians not deemed to be in possession - “Progress” was reason for expansion, takeover improves society, efficiency of land use ASSIGNMENT #2 - TANGIBLE PERSONAL PROPERTY - Actual Possession - physically possessing the object (ex. Holding dead fox) - Constructive Possession - legal fiction (ex. Mortally wounded fox still on ground) I. Wild Animals (ferae naturae) - includes minerals A. Pierson v. Post - Ownership defined by two part “capture rule”: 1. Depriving of its natural liberty (kill, mortally wound, or trap) 2. Intent to appropriate B. Ownership ends when animal escapes, is released, OR chase is abandoned, EXCEPT: 1. Tamed animal that has habit of returning is still owned 2. Animal is not in its natural environment (ex. Tiger on Franklin St) C. Positive aspects: 1. Provides bright-line test - avoids confusion in courts 2. Promotes efficient hunting of “noxious” beasts - must kill to possess 3. Rewarding labor - mixing labor of killing the beast grants ownership D. Negative aspects 1. Overcapitalization - hunters buying better guns, better dogs - too costly 2. Overexploitation - killing everything in sight to gain possession 3. Discouraging activity - hunters won’t hunt if someone can sneak in and kill 4. Not rewarding labor - person doing all the hunting losing at end - atypical E. Landowner’s rights 1. Landowner has no rights to wild animal on his land, HOWEVER 2. Trespassing laws grants exclusive right to capture on own land - post notice II. Fugitive Resources - Oil, Gas, Water A. Minerals (oil/gas) treated mainly as ferae naturae (wild) - not owned until extracted 1. Hammonds - no trespass if gas in natural state under property b/c no possession B. Water 1. Western states - “prior appropriation” - FITFIR if reasonable/beneficial use 2. Eastern states - “riparian rights” - owning land by water gives right to water III. Common law forms of action A. Trespass - money for D’s direct interference with P’s actual poss of land/chattels B. Trespass on the case - money for D’s indirect inter. due to D wrongful act C. Trover - recover the monetary value of an object wrongfully taken – effectively sold D. Replevin - recover the possession of chattels wrongfully taken E. Ejectment - recover the possession of real property wrongfully taken F. Conversion - action against someone treating your property as their own - Differences between conversion and trespass to chattels: - Conversion damages equal value of the chattel - Trespass to chattels damages equal harm caused to plaintiff - Trespass to chattels must interfere with P’s actual possession IV. Other Notes - Must consider application of customs (ex. 300 tons of mussels is not “recreational”) - Granting trover is comparable to selling property - D gets ownership that P had before ASSIGNMENT #3 - Finders, Bailments, and Accessions I. Finders A. Four categories of “found” property: 1. Abandoned - owner intends to lose ownership - must act to show this 2. Lost - unintentionally parts with property and doesn’t know where 3. Mislaid - mistakenly places and fails/forgets to reclaim 4. Treasure Trove - Gold, silver, etc intentionally placed in secret location in past B. Rights of Finder - title is relative to the parties 1. Finder of lost property gains right to possession, UNLESS: - Property acquired illegally typically not retained by finder - If in soil or on private property goes to landowner (not if treasure trove) - Sometimes not true if landowner was unaware or not occupying 2. Finder of abandoned property becomes owner even over TO 3. Finder of mislaid typically awarded to location found - Helps TO locate the mislaid property easier 4. Finder of treasure trove typically given to finder if not trespassing 5. Statutes often dissolve differences between lost, mislaid, and abandoned - Public place finder has ownership if they report and TO doesn’t claim - Sometimes TO must give a reward to finder 6. Intangible property escheats to state if not claimed w/in certain time (dividend) 7. Shipwrecks governed by federal statute and law of salvage – Finders handout 8. Native American artifacts are typically awarded to the tribe C. Additional Notes 1. Claim based on relativity of title - who of parties has greater possession 2. Jus tertii - rights of third party - no defense for a claim of possession - D saying P has no possession because TO does it meaningless II. Bailments - Bailment is delivery of possession of personal property to another w/out title transfer - Public accommodations typically strictly liable for loss/theft (ex. Hotel, comm carrier) - Gratuitous bailees taking care for free held to very low standard (ex. Finder of goods) - Statutes limit liability of innkeepers requiring guest notice or maximum liability - General principle is reasonableness as bailment is typically contractual III. Accession and Fixtures - Law of Accessions - Converting property and adding signif value or changing property - Physical ID Rule - physical properties fundamentally changed (ex. Wine from grapes) - Relative Value Rule - who contributed most to value and what is fair - Only valid if good faith conversion - bad faith conversion usually denies accession - If transferring title to good faith converter, original owner entitled to damage for loss - Fixtures - Personal property becoming fixed to real property treated as real property - Ex. Light fixtures when selling house, crops still connected to land CREATION OF NEW PROPERTY RIGHTS ASSIGNMENT #4 - Intangible Personal Property/Natural Resources Alliance Against IFQs v. Brown - Supp #7 - Creating fishing permits for rights to fish off Alaskan waters - Creation of a property interest by administrative body - granted power by legis - Property interest basic characteristics: Right to (1) possess (2) use (3) exclude (4) transfer - If no regulation: - Incentive to capture as much as possible - will deplete population - Lower population leads to higher demand and price - more fisherman, more boats - Incentive to purchase best equipment possible - overcapitalization Property = Bundle of Sticks - Metaphor that property is an aggregate of various rights in the thing - Owner may “unbundle” these parts and distribute to others - A thing may be owned by more than one person - each co-owner thus having limited rights - Property is not itself physical - derives from government’s ability/commitment to protect it - Property is a legal construct - relations among persons with regard to something of value ASSIGNMENT #5 - Ideas and Persona Joyce v. General Motors - pg. 95 - Based on traditional common law rule of ideas - Ideas are free and not protected until doing what society deems necessary to gain as property - Reasoning: to encourage competition, commerce, avoid monopoly, low cost options - If a patent, copyright, or trademark is given by authoritative figure (congress) idea protected - Intellectual Property - tension between encouraging innovation and promoting competition - Copyrights protect the particular manner an idea is expressed - not the idea itself - Trademarks are used to identify the source of a particular product - incentive for quality I. Right of Privacy A. Intrusion upon one’s seclusion or solitude B. Public disclosure of embarrassing private facts C. Publicity which places one in a false light D. Appropriation of one’s name or likeness - Right of Publicity II. Right of Publicity A. Statutory example (California) 1. Knowingly 2. Name or likeness - context not taken into account (photo, signature, voice) 3. In any manner or purpose 4. Purposes of advertising/selling 5. No prior consent 6. Injury ($$) B. Common law example (California) 1. Identity - context (Bette Midler sound alike voice) 2. To another’s advantage 3. No prior consent 4. Injury C. Policy Consideration for creating 1. Time invested in identity - unfair for others to profit on your work D. Defenses 1. Lanham Act - no likelihood of confusion 2. 1st Amendment/Parody - not if used as “commercial speech” 3. Right of privacy denied once you become a public figure - public interest Smith v. Doss - Handout (Cross and Vail) - No privacy where: public character, dissemination of news/events, public interest/benefit Carson v. Portable Toilets - Handout (Cross and Vail) - Phrase “Here’s Johnny” used to market another company’s product without consent - Likelihood of confusion only if public believes brand is approved by owner (Carson) - Based on - strength of brand, related goods, intent, marketing, possible expansion, etc. - Identity may be exploited even without name or picture - common law right of publicity - Motschenbacher v. RJR - picture of distinctive race car violation of driver’s ROPub - Ali v. Playgirl