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Property Outline 2

Property Outline 2

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Published by keburg1
Property Outline, Law School
Property Outline, Law School

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Published by: keburg1 on Dec 05, 2009
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by Jesse Dukeminier and James E.Krier, as Covered in Professor Dagan’s Class, and as Supplemented by the Memoryof Mr. Agen, the Inspiration of Mr. Museitif, and the Interpretation of Mr. Carlisle)Chapter 1: First Possession
The Principle of First-in-TimeLabor theory (Locke)Pierson v. PostMajority: In wild animals, at least mortal wounding is required for possessionDissent: (a) the trade practices of hunters should govern (b) possession should be basedon reasonable certainty of captureGhen v. RichWhere the externalities of a decision do not affect people outside the industry, custom isan appropriate standard of property rights (parties’ expectation).Keeble v. HickeringillEven when a competitor might legitimately deprive a constructive owner of possession, amalicious interferer may not (Duck Decoy Case).First-in-Time-First-in-Right encourages exploitation of natural resources Natural Resources:Demsetz:
Toward a Theory of Property Rights
Private property rights increase efficiency by internalizing externalities:The inherent limitation on private property is transaction costs.Therefore, private property originates when the increase in efficiency exceeds thetransaction costs of instituting private property, i.e. whena) the benefits of efficiency increase (beaver example), or  b) the transaction costs decrease (barbed wire example).
Acquisition by Creation
Cheny Brothers v. Doris Silk Giving intellectual property rights does more than give a chattel to a party, because theusefulness intellectual property is not limited. Therefore, granting intellectual propertyrights diminishes the overall usefulness of a resource, and can only be done by thelegislature.
International News Services v. Associated PressHolding limited to its facts by Cheny.Moore v. Regents of the University of California
The Right to Exclude
Jacque v. Steenberg HomesThere are punitive damages for trespass, even without actual damages. State has policyin favor of enforcing right to exclude, perhaps because it increases certainty andefficiency. (Mobile Home Company Case).State v. Shack Either: The policies of the state may override individual property rights,Or: A property owner may not invite persons onto his property and deny them necessaryservices.
Chapter 2: Subsequent Possession
Armory v. DelamerieDiamond Ring Case. Finder has property right against everyone but the true owner.Baliment: A possessor, whether true or wrongful, has a right of recovery against allsubsequent possessors except the true owner. (Courts sometimes prefer an honest later  possessor to a dishonest prior possessor, however.) In baliment, the true owner has nocause of action against last possessor after the bailee has already won an action of replevin (cheapest cost avoider).
Hannah v. PeelConstructive possession of found chattels is limited to cases where the owner of the locushas actual control over the locus, as by being in actual possession. (Owner never occupied house where brooch was found.)McAvoy v. MedinaOwner of store is entitled to mislaid (as opposed to lost
) property.Treasure Trove: In U.S., money, gold, silver and sometimes other valuables buriedunderground, and money hidden above ground: generally awarded to finder.Marine salvage is generally subject to law of finders’ fee.
Adverse Possession
Adverse possession encourages (a) efficiency of land use and (b) eliminates transactioncosts associated with title.HolmesAdverse possession is reasonable because long possession makes property part of oneself,in some way.Van Valkenbergh v, LutzAdverse possession requires that the adverse possessor use the property in roughly thesame manner as a true owner (e.g., by enclosing, cultivating or improving).Elements of adverse possession:Actual entry giving exclusive possession, which isOpen and notorious, and which isAdverse and under claim of right,Continuous for the statutory periodManillo v. GorskiOverstepping the bounds of one’s property is generally not “open and notorious,” but if done and relied on in good faith, may require equitable forced transfer.
Adverse Possession of Chattels
O’Keefe v. Snyder Adverse possession of chattels has problem with respect to openness and notoriety.Adverse possession will begin when the true owner should reasonably know of theadverse possessor’s claim, by the use of measures to make theft known.
Chapter 3: Possessory Estates in Land
Magic words creating freehold estates:Fee SimpleFee TailLife Estate
To X and his heirsTo X and the heirs ofTo X for lifehis body
Fee Tail interest as construed by modern jurisdictions
To A and the heirs of his body, remainder to B
, creates:1. Life estate in A followed by a fee simple in his issue (minority)2. Fee simple in A3. Fee simple with a gift over to B if A dies without issue4. Fee Tail (in states which have not abolished it), which is subject todisentailment.

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