Exclusion, "First-in-Time," and the Significance of Possession Flashcards
RIGHT TO EXCLUDE
Owners will feel more secure if their right to exclude is clear and intact.
Can’t be unchecked lest unwarranted harm be perpetuated against individuals within the property.
Subject to judicial determination whether the person has the right to exclude.
EMINENT DOMAIN (AKA, The Condemnation Power)
Where the government acquires property for a public purpose.
Allows the government to override the owner and take the property, justly compensating the owner at market price.
THE TAKINGS CLAUSE (5th Am. and Eminent Domain)
“No person shall be deprive of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”
NUISANCE
An action by one landowner that UNREASONABLY interferes with the use/enjoyment of neighboring land.
NUISANCE: RESTATEMENT
Conduct is a nuisance if the gravity of the harm caused by the actor’s conduct outweighs the utility of that conduct.
826: UNREASONABLENESS OF INTENTIONAL INVASION
An intentional invasion of another’s interest in the use and enjoyment of the land is unreasonable if:
The gravity of the harm outweighs the utility of the actor’s conduct, or
The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.
UTILITY OF CONDUCT: FACTORS
To establish the utility of the conduct, the court considers the following:
The social value the law attaches to the primary purpose of the conduct
The suitability of the conduct to the character of the locality
The impracticability of preventing or avoiding the invasion
COASE THEOREM
Presumes claimants are reasonable wealth-maximizers
Ignores transaction costs
Carpenter Majority –> “Coasean” bargaining will produce bargains that allow high-value/high-cost.
CAPTURE
Property rights in wild birds, fish, and other animals are obtained only through physical possession.
The first person to capture (exercising dominion and control) or kill a wild animal acquires title to it.
ESCAPE RULE
If a previously captured wild animal “escapes,” its owner loses ownership (i.e., the animal becomes unowned again and subject to the rule of capture again)
After escape, the prior capturer’s claim in no longer recognizable (and others would have no reason to have appreciated a prior claim)
FIRST-IN-TIME
The first person to take occupancy or possession of something owns it.
OWNERSHIP OF LAND
Under American law, ownership of land is based on establishing a “chain” of title transfers back to the original title claim recognized by the government.
ORIGINAL CLAIM
Evidenced by either:
A “patent” deed (from the U.S. or one of its states) or
A prior grant from the relevant European government (or an owner that could trace its title)
CUJUS EST SOLUM
“Cujus est solum, ejus est usgue ad coelum ad infernos”
To whom the soil belongs, owns the sky and to the depths.
FUGITIVE RESOURCES (OIL, WATER, NATURAL GAS)
All are migratory resources (i.e., they move).
The Capture Rule applies. To have ownership, one must extract it first.
The well can’t be on some else’s property.
FUGITIVE RESOURCES: FRACKING
For fracking, capture rule still applies. Trespass may come into play if propellant or horizontal equipment goes onto another’s property.
AIR RIGHTS: FLIGHT
Flights that are within minimum safe altitude for flight have the right to travel through airspace.
This right is limited when flying below the minimum safe altitude and it can violate possessory rights of property.
Case: U.S. v. Crosby
INTANGIBLE PROPERTY: IDEAS
Ideas themselves are not subject to individual ownership or control.
An idea that isn’t patented (trademarked) or copyrighted is not protected, unless it is acquired and used under such circumstances that the law will imply a contractual or fiduciary relationship between the parties.
CYBERSQUATTING
Under ACPA, a person alleged to be a cybersquatter is liable to the owner of the protected mark if the person:
Has a bad faith intent to profit from the mark; and
registers, traffics in, or uses a domain name that
(1) in the case of a distinctive mark, is identical or confusingly similar to that mark
(2) in the case of a famous mark, identical or confusingly similar to dilute that mark
CYBERSQUATTING: EXCEPTION
There is a safe harbor exception available for a defendant who believe on reasonable grounds that the use of the domain name was fair use or otherwise lawful.
RIGHT TO PUBLICITY v. EXPRESSION
“When an artist is faced with the right of publicity challenge to his or her work, he or she may raise an affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.”
RIGHT OF PUBLICITY
As recognized under common law, the property right in one’s identity.
Violated if:
D uses P’s name, image, or likeness to D’s commercial advantage, and
P didn’t consent to use, and
P suffers an injury as a result (essentially, the right is of significant value only to celebrities with substantial endorsement vale)
TRANSFORMATIVE TEST
The key question in reconciling 1st amendment values and the right of publicity is “is the work transformative in nature?”
If this a literal depiction or imitation of a celebrity with significant added expression, RIGHT OF PUBLICITY PREVAILS.
If this has “transformed” celebrity’s likeness so as to become primarily the artist’s own expression, THE 1ST AMMENDMENT PREVAILS.
FOUND PROPERTY
The finder of an object, though he does not acquire absolute property rights, can keep a found object from anyone BUT the rightful owner.
Finder is a bailee of the found property.
ANALYZING FOUND PROPERTY: FACTORS
Presumed intent of original owner
Identity of the finder
Location
KINDS OF FOUND PROPERTY
(apply only if a party other than the finder is involved)
Abandoned
Lost
Mislaid
Treasure Trove (never used)
ABANDONED PROPERTY
Property is abandoned when the owner no longer wants it
Shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title, and interest in the property.
When found, it belongs to the finder of the property against all others, including the former owner.
LOST PROPERTY
Property is lost when the owner unintentionally and involuntarily parts with their possession and does not know where it is.
Stolen property found by someone who did not participate in the theft is lost property.
The finder has rights against all others but the true owner.
MISLAID PROPERTY
Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is.
Differs from lost property in that the owner voluntarily and intentionally places mislaid property in the location where it’s eventually found by another.
The finder of mislaid property acquires no rights to the property.
The right of possession of mislaid property belongs to the owner of the premises upon which the property is found (locus owner), against all persons other the true owner.
TREASURE TROVE
Consists of coins or currency concealed by the owner.
Includes an element of antiquity.
The property must:
(1) Be hidden or concealed
(2) For such a length of time that the owner is
(3) Probably dead or undiscoverable
Belongs to the finder against all but the true owner.
BAILMENTS
A rightful possession of an object by one who is not the true owner of the item.
Requires:
Deliver without transfer of ownership
Implied or express acceptance
An implied or express agreement that the goods be returned
