I. Original Acquisition A. 1st Possession- 1st to actually possess an unclaimed thing 1. Wild Animals a. Pierson v.

Post: Pursuit does not grant right. Must be some sort of corporal possession b. Ghen v. Rich: custom and usage in the whaling industry determines that he who kills the fish is the possessor of the fish c. Open Access as opposed to common property i. Tragedy of the Commons- unrestricted privilege ii. Anti-Commons- excessive regulation 2. Abandoned Land a. property is considered abandoned when owner manifests intention t o relinquish all future claims of possession or ownership b. Eads v. Brazelton: Possession of abandoned property requires the actual taking of the property with the intent to reduce it to possession. Posse ssion means moving towards use, consumption or other exploitation of the resourc e B. Discovery- unique right to possess an unclaimed thing 1. Johnson v. M Intosh, US SC (1823): Discovery gave title to the governme nt by whose subjects, or by whose authority, it was made, against all other Euro pean governments, which title might be consummated by possession. The right to take the land, even when the land is in previous possession by Native Americans, is a right granted by the crown and established here. C. Creation 1. International News Service v. Associated Press, US SC (1918): Under p roperty law, there is a property right in news which is collected for the purpos e of being published which is then copied and sent out to another news outlet. a. Lockean theory- news becomes property by the labor of gathering a nd writing put into it. 2. Midler v. Ford Motor Co. (1988): If a person s voice is unique to them, and another tries to use it for commericial purposes, it is actionable. Bette Midler had a right of publicity in her identity (voice.) 3. Trenton Industries v. A.E. Peterson Manufacturing Co.: individual pro fited off design of another. Action for unjust enrichment. Inventions are prot ected, improvements are not. D. Principle of Accession- ownership of some unclaimed or uncontested resour ce assigned to the owner of some other resources that has a particularly promine nt relationship to the unclaimed or contested resource 1. Increase- offspring of animal belongs to the mother animal s owner 2. As opposed to the doctrine of accesssion which is more narrow (1 person atake s possession of an object and transforms it) a. Wetherbee v. Green: If the labor put into transforming it is signifigant and it becomes a completely new object, then the title passes to the improver 3. Ad Coelum- for whoever owns the soil, it is theirs up to Heaven and down to H ell. a. limit: it can t detriment neighbor 4. Accretion 5. Fixtures: a thing which although originally a movable chattel, is by reason o f annexation to, or association in use with the land, is regarded as part of the land. E. Adverse Possession 1. Elements a. Actual

i. possession depends on dominion and control b. Exclusive c. Open and Notorious d. Continuous (for amount called for in statute) e. Adverse (or hostile) under a claim of right i. 3 interpretations of this requirement A. AP subjectively (but mistakenly) believes he is entitled to property B. Maine Rule- AP subjectively beleives he is not entitled t o property (aka bad faith)- this is a very small minority C. Connecticut Rule- the subjective state of mind is irrelev ant, all that matters is that he doesnt have the TO s permission to use the proper ty- most jurisdictions d. *some states require color of title, others do not. 2. Purposes of Adverse Possession a. reliance interest b. to discourage TO s from sleeping on their rights (to prevent waste) c. reduces transaction costs of determining title to the assets that last a long time 3. Burden of Proof is on the AP and can be met by preponderance of the e vidence or clear and convincing evidence F. Sequential Possession Issues 1. Armory v. Delamirie: Chimney sweep found a diamond ring. A finder of chat tel doesn t acquire an absolute property right, however he does have title superio r to everyone except the rightful owner. 2. Clark v. Maloney: Logs floating down river, ? finds them and ties them up . Although the finder doesn t acquire an absolute property right in the object, b ut it is superior to all but the true owner. G. Competing Original Acquisition Principles 1. Captured wild animals belong to the owner of land where they were capture d 2. When meteorites hit earth they become part of soil, and belong to owner o f soil 3. Hannah v. Peel: finder of lost property has superior title against the ow ner of the land on which the lost property was found (lost brooch found by someo ne other than landowner) II. Values Subject to Ownership A. Personhood- general consensus today that people are not subject to person hood 1. Newman v. Sathyavaglswaran: Parents of deceased children have a const itutionally protected property interest in possessing the bodies of their deceas ed children that may not be impaired by the state without due process of the law . 2. Moore v. Regents of the University of California: Once cell s leave the patients body, they are no longer that patient's property (thus can t uphold a ch arge of conversion.) 3. Hecht v. Superior Court: is sperm property? the court used another ca se, Davis v. Davis, which held that pre-embryo is not property, nor a person, bu t a separate entity that deserves respect. The settlement in this case (between girlfriend and boyfriend) to divide the sperm is invalid because sperm is not s ubject to property rights

4. United States v. Corrow: native american grave sites declassified as property due to incalculable historical value B. Public Rights- Are there things that are too public to be subject to indi vidual/private property rights? 1. Navegable Waters- Based in the commerce clause of the US Constitution . The longest historical claim as inherently public 2. Navegable Airspace- Base in commerce clause. As opposed to ad coelum. It is a public right but can t injure others 3. Public Trust Doctrine- only applicable to states, not to the feds a. Illinois Central Railroad Co. v. Illinois (1892): Submerged water s are held in trust by the states. Legislatures cannot alienate (permanently se ll) lands held in trust. But they can temporarily lease them for the public goo d, but the state must still have the responsibility for its good use. This is t he public trust doctrine. There are 2 major justifications for this doctrine: i. state always has the right via eminent domain ii. state must act in public interest pursuant to state police p ower b. Lake Michigan Federation v. United States Army Corps of Engineers : the Public Trust Doctrine, as established in the Illinois Central Railroad cas e, can be defined as follows: i. dominion and sovereignty of submerged lands belongs to state ii. title to those lands held in trust for the people of the sta te iii. state can no more abdicate that land than it can its polic e pwr iv. a ct has never upheld a grant of governmental land to a priv ate party where its primary purpose was to benefit a private interest v. the public purpose advanced by a grant must be direct c. State ex rel. Thornton v. Hay: Oregon sought to enjoin the ?, who owned beach front property, from building a fence on areas of the beach which w ere dry sand areas. The ? should be enjoined from constructing fences on beach wh ere it is customary (so regular that it becomes quasi law) for the public to use that land. Custom can be determined based on 7 elements: i. that usage be ancient ii. that the usage be w/o interruption iii. that the usage be peaceful and free from dispute iv. that the usage be reasonable v. that the usage be subject to visible boundaries vi. that the usage be obligatory (that the individual landowners cannot decide whether to allow the public to use the land) vii. that the usage not be contrary to other laws or customs C. Water 1. In the eastern states, water law is all about reasonableness (see Eva ns) in the western states it is all about economics (see Coffin.) 2. Evans v. Merriweather: A person with a stream running through their l and may use all of the water (without reserving any for ppl downstream) it is fo r a matter of life such as home or livestock, but if it is for manufacturing, th e stream must have enough water left in it for downstream proprietors. Riparian Proprietorship. 3. Coffin v. Left Hand Ditch Co.: The right to water is established by p riority of appropriation of the water, and not by riparian proprietorship. Beca use rainfall is scarce in the west, riparian proprietorship is not applicable. T he doctrine of prior appropriation allows an earlier uses of water the right to the water before allowing later uses a right to the water. More like first in ti me, first in right. III. Owner Sovereignty and Limits A. Protecting the Right to Exclude 1. Criminal Remedies a. larceny- taking of the personal prop of another w/o legal authori

ty 2. Civil Actions a. Civil Actions to Protect Real Property i. trespass protects exclusive possession - damages or injuncti on ii. ejectment- protects title - damages or injunction iii. nuisance- protects use and enjoyment- damages or injunction b. Civil Actions to Protect Personal Property i. conversion- converted to own useA. damages or injunction to return ii. replevin- return property iii. trespass to chattels- asportation of personal property and defendant is actually injured or interefered with property (though not quite co nversion) (now used for hacking 3. Berg v. Wiley: the only lawful means to disposses a tenant who has no t abandoned nor voluntarily surrendered but who claims possession adverse to the landlord s claim of breach of a written lease is to resort to the judicial proces s 4. some jdx still allow self help, as long as it is peaceable- Williams v. Ford Motor Credit Company B. Exceptions to the Right to Exclude 1. Necessity a. Ploof v. Putnam: necessity due to a storm and inability to contro l movememnts will justify entry or interference with land which would otherwise be trespass 2. Custom b. McConico v. Singleton: usage can make law. In this case, it was common practice to hunt in a certain part of the land, that was, it turns out, p rivately owned. It has never been disputed thus a trespass claim could not stan d. 3. Public Accommodation Laws- Innkeepers and common carriers a. duty to serve anyone who requests service, provided available b. must charge reasonable prices c. Uston v. Resorts International Hotel, Inc.: casino wanted to enjo in card counter from entering premises. court held that a person has a right of reasonable access to property open to the public as long as he doesn't threaten security, which a card counter does not. 4. Anti-Discrimination Laws a. Shelley v. Kraemer US SCt (1948): judicial enforcement of a racia l covenant to block sale of a home is a state action and violates the equal prot ection clause of the 14th Amendment. b. Attorney General v. Desilets (1994): housing discrimination for u nmarried couples by apartment owner. the court says this is not as important of an area as is race discrimination- no state interest. c. 3 purposes of laws that prohibit housing discrimination i. increase housing opportunities for protected classes ii. eliminate personal harm or indignity for protected classes iii. eliminate a social message of inferiority or subordination C. Other powers of the Sovereign Owner 1. License a. a license is not a contract. it is revocable (unless it purveys an interest) b. Marone v. Washington Jockey Club of DC: tickets do not create a r ight in rem, rather they create a license. so even if you have a ticket, you can be found guilty of trespass. c. Hurst v. Picture Theatres Limited: a license (ticket to movie the ater) coupled with an interest/grant (right to see a movie) is not revocable. 2. Bailments- bailor temporarily transfers property to bailee.

a. physical xchange, dominion and control- delivery and acceptance of res b. intent c. Allen v. Hyatt Regency- Nashville Hotel: a bailment is created when an owner parks vehicle in garage with expectation of safe keeping, where there is limited access and where a person has to present a ticket upon exit. d. Bailee s duty of care i. if bailment for the sole benefit of bailor, only slight dilig ence on part of bailee (will only answer for gross negligence) ii. if bailment for the sole benefit of bailee, diligence on par t of bailee (answers for even slight negligence) iv. if reciprocally beneficial, ordinary diligence for bailee (a nswers for ordinary negligence.) e. Cowen v. Pressprich (1922): a firm that acquires temporary custody of a bond by mistkae creates an involuntary bailment of which it is the bailee. The Baile e will be subject to strict liability for misdelivery 3. Abandon and Destroy a. Pocono Springs Civic Association, Inc. v. Mackenzie: real propert y cannot be abandoned 4. Sale/Gift a. Gift Inter Vivos i. intent ii. without consideration iii. delivery of res iv. acceptance of res b. Gift Causa Mortis i. intent ii. must be a gift of personal property iii. made while donor is under apprehension of imminent death iv. res must be delivered at time of the gift and must be accepted during lifeti me. it must be actual and unequivocal, per Foster v. Reiss. v. donor must die of the cause that he was facing when gift was made IV. Waste- Unreasonable action or actions that decreases value, or a change of t he status quo. A. Affirmative waste- type of misfesance. Life tenant takes some affirmativ e action on the property that is unreasonable and causes excess damage to the re visionary or remainder interest. 1. Ameliorative Waste- a type of affirmative act by the life tenant that significantly changes the property but results in an increase, rather than a di minution, in its market value. B. Permissive Waste- a type of nonfeasance. Life tenant fails to take some action with regard to the property and the failure is unreasonable and causes ex cess damage to revisionary or remainder interests. V. Nuisance- Unreasonable interference with the use and enjoyment of anothers la nd- non trespassory invasion. A. Elements: 1. Interference with the plaintiff s use and enjoyment of her land- substa ntial and unreasonable (balancing factors)

2. Defendant s conduct was intentional and unreasonable OR negligent, want on, reckless, or unusually hazardous. 3. Defendant s conduct must cause interference with land, comfort, health, or peace of mind 4. Plaintiff must have an interest (tenant, adverse possessor, fee owner , life tenant) in the land that is injured B. Restatement, Torts Balancing Factors: 1. Gravity of Harm Factors a. the extent of the harm involved b. the character of the harm involved c. the social value that the law attaches to the type of use or enjo yment invaded d. the suitability of the particular use or enjoyment invaded to the character of the locality e. the burden on the person of avoiding the harm 2. Utility of Conduct Factors a. the social value that the law attaches to the primary purpose of the conduct b. the suitability of the conduct to the character of the locality i. St. Helen s Smelting Company v. Tipping: a trade is not to be c onsidered suitable to a locality if it creates substantial injury to land of oth ers, despite the fact that the locality is a manufacturing area c. the impracticability of preventing or avoiding the invasion C. Tresspass or Nuisance 1. Definitions a. Trespass: non-consensual entry onto the land of another b. Nuisance: unreasonable interference w/ use & enjoyment of ones la nd 2. To identify a. b. c. d. which is implicated, consider the following factors: Defendants action is on plaintiff s land or off plaintiff s land? harm to plaintiff s land is direct or indirect tangible or intangible invasion plaintiff is deprived of possession or use and enjoyment?

3. Adamds v. Cleavland-Cliffs Iron Company: Recovery for trespass to land is ava ilable only upon proof of an authorized direct or immediate intrusion of a physi cal, tangible object. Where a plaintiff is menaced by an intangible thing (in t his case vibrations, airborne particulates and noise) the possessory interest im plicated is that of use and enjoyment of land, not exclusion, and the plaintiff should seek remedy through the nuisance doctrine. D. Nuisance Per Se1. as opposed to other per se doctrines, you dont committ it by simply violating a statute and causing a nuisances, rather, it is proved by: a. activity was a nuisance at all times, under any circumstances, and in any loc ation b. a violation of law together with additional evidence of nuisance and is decla red as such by the legislature. 2. As opposed to nuisance per accidens E. Remedy for Nuisance 1. Injunction: where there is a nuisance and plaintiff has been substantiall y harmed

a. only deny injunction if there is a public interest 2. Damages: Money to pay for injury. Can be permanent damages to pay for past , present and future damages as an alternative to an injunction (as in the Boome r v. Atlantic Cement Co. where the nuisance was from a cement factory causing bo omer to be disturbed by dirt, smoke and vibration) F. Defenses to Nuisance 1. Coming to the Nuisance 2. Assumption of Risk 3. Contributory Nuisance VI. Zoning- Zoning as an action under the police power, must promote the genera l welare and cannot be motivated by other considerations such as minimizing the local property tax rate VII. Takings A. 5th Amendment Takings Clause: nor shall private property be taken for publ ic use without just compensation. The Supreme Court has held that the federal go vernment and each state has the power of eminent domain the power to take private property for "public use". The Takings Clause, the last clause of the Fifth Amen dment, limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provi sion of the Fifth Amendment did not originally apply directly to the states, but since Chicago, B. & Q. Railroad Co. v. Chicago (1897), federal courts have held that the Fourteenth Amendment extended the effects of that provision to the sta tes. 1. be taken : Taking can be direct or Regulatory (Penn Coal v. Mahon was th e case that extended takings beyond direct takings to regulatory takings) a. Regulatory: Per Se Rules i. Permanent Dispossession A. Loretto- the size of the seizure doesn t matter ii. Regulation must not deny owner of all economically viable us e of his land unless the regulation abates activities which are nuisance B. Lucas v. South Carolina Coastal Council b. When a regulation isn t per se, apply the Penn Central Transportaio n Co. v. City of New York factors: i.The nature/character of the government regulation A. physical invasion or not ii. The reasonable expectations of the property owner iii.The economic impact of the regulation on the property 2. for public use : No governmental seizure of private property may occur e ven if just compensation is paid unless it is for a public use. Public heath, s afety, general welfare, and morals. Kelo v. City of New London, Connecticut 3. just compensation - fair market value (reasonable expectations) 4 approa ches for determining the fair market value: a. looking at recent market transactions of the property and adjusti ng for market changes b. examining recent market transactions of nearby parcels d. est. rental property and capitalizing it to reach a purchase pric e e. determining replacement cost of land and improvements taken and a djusting down to reflect depreciation 4. Regulations of noxious use is not a taking, because it is within the police p ower of the state (per Penn Coal v. Mahon) a. the public interest outweighs the property interests of an indivi dual, and the state may use its police power to preserve the public interest eve n if that means property must be destroyed. As in the case of Miller v. Schoene

in which the court ordered a cedar farm who produced for decorative furniture a nd who s trees were infected and injuring nearby food crops to have his cedars des troyed. VIII. Form of Ownership IIX. Entity Property: Possessory Rights A. Leases IX. Title Records and the Transfer of Property A. Proving Ownership B. Recording Acts C. The Limits of Title Searches X. Servitudes XI. Government Forbearance