Property

Class 1-3
The nature of property rights
• Political arguments about property rights vs. legally valid claims under today’s property rights system
• Natural law vs. legal positivism
• Almost all property interests are governed by state law
• The major exception is intellectual property, which is largely the creature of federal law (though not exclusively)
• There is no coherent, overarching concept to property law. The genius of the property law system is that it is
contextual, considering at least…
• historically, the “status” of the individual. Today, we would say “priority”
• the persons involved (married, relatives, etc.)
• the thing at issue (real property vs. a chattel)
• the way a property is used (residential vs. commercial property)
• contractual arrangements of parties (assignment vs. sublease)
• social values (racially restrictive covenants)
• Property rules can be thought of as “default rules,” creating legal winners and losers
in disputes about things. Compare tort law, which creates “liability rules,” and
contract law, which allows you to “create your own adventure.”
 Theories of Capture A Beginner’s Road Map to Property 2023
property Estates and Future
First Interests – Mid-
possession / Term!
labor / utility / Landlord -
Finders Tenant
personhood Nonfreehold estates Leaseholds
Term of years / Possession /
periodic / at will / at eviction
Basic sticks in Gifts
Adverse sufferance
the bundle: Inter vivos
use / exclude/
Possession / Fair Housing
/ causa
transfer/ Boundary by Concurrent ownership Disability and
mortis
destroy Agreement Tenancy in common / discrimination
joint tenancy / partition Leasehold
/ rights and duties Marital
property assignment /
Community sublease
property
Copyrights Takings Land Use
Per se / Planning Searching
Regulatory / title
Categorical / Abandonment of
Exactions Marketable leasehold
Nuisance title to real
Trademarks property
Eminent 4 theories Real estate
Domain contracts Constructive
Common
eviction /
Restrictive Recording acts Implied
law
covenants Race / Notice / warranty of
intellectual
property horizontal & vertical Race-Notice / habitability
Easements BFPs Transferring
privity / touch and
Express / implied, real property
concern / notice / Mortgages
prior existing use / Warranty /
Patents Statute of Frauds / / Deeds of
necessity / quitclaim
intent Trust /
prescriptive / deeds
estoppel/ negative Foreclosure
How modern courts primarily think about
property rights (the “bundle of sticks”)
• “Rights among people concerning things…”
• Note: This is about the nature of legal relationships between:
• A person (or corporation) and a government
• Two persons, where the right is defined by the government
• Note also: There can be relationships between individuals about
property that are not rights based that can be very important
• Custom
• Informal governance (how do neighbors resolve disputes?)
Bundle of sticks metaphor
Theories of property law
Theories of Property
• Note that all of these could be politically conservative or liberal; they are
theoretical approaches to property institutions
• Labor – John Locke
• Personhood – Georg Hegel
• First possession – [Law of the Sandbox]
• Utilitarianism – Jeremy Bentham; John Stuart Mill
• “Bundle of sticks” or legal relationships – Wesley Newcomb Hohfeld
• Civic republicanism – Thomas Jefferson (not highly influential now)
A way to approach property rights

• “Rights among people concerning things…”

• Note: This is about the nature of legal relationships between:
• A person (or corporation) and a government (e.g., permitting)
• Multiple persons, where the right is defined by the government (e.g.,
community property)
• Note also: There can be relationships between individuals about property
that are not rights based that can be very important
• Custom
• Informal governance (how do neighbors resolve disputes?)
Most common rights in the bundle…
Rule of capture

• Applies to wild animals (ferrae naturae)

• Applied by legal metaphor to the exploration of many natural resources
Pierson v. Post
Pursuit vs. occupancy in a case of first
possession (9-10)

• “That is to say, that actual bodily seizure is not indispensable to acquire right to, or
possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts,
by one not abandoning his pursuit, may, with the utmost propriety, be deemed
possession of him; since, thereby, 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 his certain control. So also, encompassing and securing such animals
with nets and toils, or otherwise intercepting them in such a manner as to deprive them
of their natural liberty, and render escape impossible, may justly be deemed to give
possession of them to those persons who, by their industry and labour, have used such
means of apprehending them. … The case now under consideration is one of mere
pursuit, and presents no circumstances or acts which can bring it within the definition of
occupancy.”
 Perfecting a property interest in a ferrae naturae
Nets and toils:
Render escape impossible
“deprive of natural liberty” (Majority) Killing animal
“Mere pursuit” (Post) without any pursuit
Mortal wounding of beasts
Within reach and (Pierson)
By one not abandoning pursuit
reasonable prospect (Dissent)

Pursuit Occupancy
(kill it, capture it)
Pierson v. Post

• What is the public role here of the court?

• Allocation of rights (Pierson v. Post precedent and application)
• Enforcement (the judge)
• Mediation and arbitration (Popov v. Hayashi – judge-ordered auction)
• What lurks in the background about property rights here?
• Was this truly first possession? First possession by what kind of people?
• What are the rights to govern beyond allocation and enforcement?
• Regulation (in most instances, referred to as the “police power”)
• How other people’s property rights effect our own property rights (e.g., nuisance law)
• Whether society itself can have property rights (e.g., public trust doctrine)
Extending the legal metaphor of ferrae
naturae

• Whales: possession at the time attached to a boat, when harpooned, or

when killed?
• Consider Melville’s description of a “fast fish” and a “loose fish” in Moby-
Dick
• Oil and gas: conflicting early cases on whether acquisition at the time
resource is removed to the surface, or the well is productive
• Query: what if gas is brought to surface, then re-injected into the earth
and it escapes under a neighbor’s property?
Popov v. Hayashi
• https://www.youtube.com/watch?v=rXpCKv6L1_8
 Gray’s Rule
Momentum of ball /
Hit = abandoned Momentum of fan ceases

Fly balls Loose balls

Complete control = Possessed pick up + secure = possessed

Incidental contact not

intended for other person =
Not possessed

What about intentional

“unlawful acts” contact?
Popov v. Hayashi

• “Prior to the time the ball was hit, it was possessed and owned by Major League Baseball.
At the time it was hit it became intentionally abandoned property. The first person who
came in possession of the ball became its new owner. … The focus of the analysis in this
case is not on the thoughts or intent of the actor. Mr. Popov has clearly evidenced an intent
to possess the baseball and has communicated that intent to the world. The question is
whether he did enough to reduce the ball to his exclusive dominion and control.”
• “Mr. Popov argues that . . . a person seeking to establish possession must show unequivocal
dominion and control, a standard rejected by several leading cases. [court cites to Pierson v.
Post]”
Popov v. Hayashi - holding

• “Consistent with this principle, the court adopts the following rule. Where
an actor undertakes significant but incomplete steps to achieve possession
of a piece of abandoned personal property and the effort is interrupted by
the unlawful acts of others, the actor has a legally cognizable pre-possessory
interest in the property. That pre-possessory interest constitutes a qualified
right to possession which can support a cause of action for conversion.”
Implications of the rule of capture

• If we extrapolate the rule of capture Pierson v. Post to all resources, what

problems might arise?
• Coase Theorem: initial allocation of a resource is irrelevant to economic
efficiency—in the absence of transaction costs—because the affected
parties will reach an efficient allocation through bargaining.
• Tragedy of the Commons: “Each man is locked into a system that
compels him to increase his herd without limit—in a world that is
limited. Ruin is the destination toward which all men rush, each pursuing
his own best interest in a society that believes in the freedom of the
commons.”
• Elinor Ostrom: informal governance of common pool resources
Property in a Person’s Likeness and Body
• Conundrum
• As the White case illustrates, a person can have a property interest in their
“likeness” that is commodified
• As the Moore case illustrates, a person is usually deemed to not have a
property interest in one’s body, at least for sale
• Note: a major name / image / likeness case, NCAA v. Alston, was
before the U.S. Supreme Court in 2021, which held that the NCAA
violated antitrust laws in limiting the NIL property interests of its
student athletes. We are not reading the case because it is primarily
decided on antitrust statutory interpretation grounds rather than a
property law theory.
Common law right of publicity
(from Eastwood, 16)
• The D’s use of the P’s identity
• The appropriation of P’s name or likeness to D’s advantage,
commercially or otherwise
• Lack of consent
• Resulting injury
White v. Samsung Electronics:
Some key questions
• Where does the property at issue here come from?
• How is the creation of that property best justified?
• Labor theory
• Personhood theory
• Utilitarian theory
• Does society lose something by allocating the property interest here?
• If so, how do we define the public interest?
• How is the public interest protected?
Moore v. Board of Regents – basic facts
• Moore had leukemia.
• Physicians at the UCLA Medical Center removed his spleen, blood, and other
bodily substances in order to treat the disease, and continued to treat him for
six years.
• The defendants were aware that Moore’s cells had substantial value, but did
not inform Moore of this fact.
• Without Moore’s knowledge, the defendants used his cells to create a cell line,
obtained a patent for it, and entered into agreements to exploit the cell line.
• Moore sued on a number of theories, including lack of informed consent,
breach of fiduciary duty, and conversion.
• Here the California Supreme Court reverses on the conversion claim.
Elements of the conversion claim
• In order to prevail on his conversion claim, Moore must prove that:
• (1) the cells were personal property;
• (2) he owned or possessed them after they were removed from his
body; and
• (3) the defendants wrongfully interfered with his ownership or
possession.
Use and transfer of a body part
• Does Moore own his body’s cells?
• Can Moore sell his…
• Blood?
• Kidney?
• Spleen?
• Has Moore abandoned his body’s cells?
• Abandonment is an “intentional relinquishment of a known right”
General Interest…
• The Immortal Life of Henrietta Lacks (both a book and a movie)
• Cells taken from an African-American woman in 1951 at Johns Hopkins Medical
Center that had a tendency to endlessly reproduce, which became the basis of
the HeLa strain of cells used in almost all medical laboratories around the world
• Statute of limitations barred a suit like Moore’s, but some descendants are
seeking monetary damages and guardianship of the cells on behalf of the cells
themselves
• The Henrietta Lacks Enhancing Cancer Research Act (2021) requires the federal
government to publish a report on government-funded cancer research trials,
including the amount of participation by underrepresented populations and
describing the barriers to participation
Most common rights in the bundle…
The right to transfer
• Key idea: this individual “stick in the bundle” can be broad or narrow.
• One word commonly used to refer to this right is a property’s
“alienability”
• For instance, most tax credits are not alienable; however, certain tax credits
to incentivize development, such as the Low Income Housing Tax Credit, are
alienable.
Basic facts of Johnson v. M’Intosh
• Plaintiffs (Johnson) obtained title to large tracts of land (in Illinois and
Indiana) through conveyances from Native American tribes in 1773
and 1775.
• Defendant M’Intosh obtained title to part of that land through a
subsequent conveyance from the United States.
• Plaintiffs sue to eject M’Intosh from the property.
• M’Intosh prevails at the trial court level, and the case comes before
the Supreme Court.
• Question before the court (29): “whether [the plaintiffs’ title] can be
recognised in the Courts of the United States?”
Claims of discovery
on lands that became Idaho

From Colson, Idaho’s Constitution

Botiller v. Dominguez
Considerations on Johnson v. M’Intosh
• How does Marshall distinguish the use interest of the Native
Americans from their possession interest (occupancy) from their
transfer interests in the same property?
• What rights do the tribes have, and the federal government have, in
the same piece of land? How was it created by the rule of discovery.
• To whom can the tribes sell their land?
• Who makes that determination about transferability of tribal land?
• “title to lands” depends “entirely on the law of the nation in which they lie”
• But wait…don’t we normally adjudicate land title claims by first-in-
time rules?
Perfecting a Mexican land title
•The U.S. Supreme Court laid out the requirements of perfect title in U.S. V. Knight’s Adm’r, 66 U.S. 227, 245-
46 (1861):
• When complete, an [expediente, perfecting title under the Mexican legal system in force prior to
the Treaty of Guadalupe], usually consists of the petition, with the diseño annexed; a marginal
decree, approving the petition; the order of reference to the proper officer, for information; the
report of that officer, in conformity to the order, the decree of concession, and the copy or a
duplicate of the grant. These several papers-that is, the petition, with the diseño annexed, the
order of reference, the informé, the decree of concession, and the copy of the grant, appended
together in the order mentioned-constitute a complete [expediente], within the meaning of the
Mexican law.
Problems with disenos
• The U.S. Supreme Court recognized that the procedures under which the land had been
originally granted left the claims necessarily vague, contradictory and ripe for fraud. The
grants, [called expedientes], were free gifts of the Spanish crown or the Mexican
government, usually with no money exchanged, and with little effort made to furnish
the petitioner with unambiguous proof of title. Lands were rarely surveyed, or were
surveyed using a method that could not yield an accurate, replicable result. By tradition,
two men on horseback would take a lariat that was fifty varas in length (about 137.5
feet). One man would begin at a stated landmark—the old oak tree at the edge of the
dry creek, the big red rock at the top of the third hill—and drive in a stake. The second
horseman would ride until the lariat was drawn tight, and drive in another stake. The
procedure would then be repeated. If the lariat was drawn through wet grass, it might
be stretched and lengthened, or on a hot day, dried and contracted. As a result, no two
surveys of the same area ever matched, and descriptions of the land were frequently so
vague that it was not clear what should be measured in the first place.
Example of a diseno