Exclusion, "First-in-Time," and the Significance of Possession

Question 1

RIGHT TO EXCLUDE

Answer 1

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.

Question 2

EMINENT DOMAIN (AKA, The Condemnation Power)

Answer 2

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.

Question 3

THE TAKINGS CLAUSE (5th Am. and Eminent Domain)

Answer 3

“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.”

Question 4

NUISANCE

Answer 4

An action by one landowner that UNREASONABLY interferes with the use/enjoyment of neighboring land.

Question 5

NUISANCE: RESTATEMENT

Answer 5

Conduct is a nuisance if the gravity of the harm caused by the actor’s conduct outweighs the utility of that conduct.

Question 6

826: UNREASONABLENESS OF INTENTIONAL INVASION

Answer 6

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.

Question 7

UTILITY OF CONDUCT: FACTORS

Answer 7

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

Question 8

COASE THEOREM

Answer 8

Presumes claimants are reasonable wealth-maximizers

Ignores transaction costs

Carpenter Majority –> “Coasean” bargaining will produce bargains that allow high-value/high-cost.

Question 9

CAPTURE

Answer 9

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.

Question 10

ESCAPE RULE

Answer 10

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)

Question 11

FIRST-IN-TIME

Answer 11

The first person to take occupancy or possession of something owns it.

Question 12

OWNERSHIP OF LAND

Answer 12

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.

Question 13

ORIGINAL CLAIM

Answer 13

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)

Question 14

CUJUS EST SOLUM

Answer 14

“Cujus est solum, ejus est usgue ad coelum ad infernos”

To whom the soil belongs, owns the sky and to the depths.

Question 15

FUGITIVE RESOURCES (OIL, WATER, NATURAL GAS)

Answer 15

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.

Question 16

FUGITIVE RESOURCES: FRACKING

Answer 16

For fracking, capture rule still applies. Trespass may come into play if propellant or horizontal equipment goes onto another’s property.

Question 17

AIR RIGHTS: FLIGHT

Answer 17

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

Question 18

INTANGIBLE PROPERTY: IDEAS

Answer 18

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.

Question 19

CYBERSQUATTING

Answer 19

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

Question 20

CYBERSQUATTING: EXCEPTION

Answer 20

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.

Question 21

RIGHT TO PUBLICITY v. EXPRESSION

Answer 21

“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.”

Question 22

RIGHT OF PUBLICITY

Answer 22

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)

Question 23

TRANSFORMATIVE TEST

Answer 23

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.

Question 24

FOUND PROPERTY

Answer 24

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.

Question 25

ANALYZING FOUND PROPERTY: FACTORS

Answer 25

Presumed intent of original owner

Identity of the finder

Location

Question 26

KINDS OF FOUND PROPERTY

Answer 26

(apply only if a party other than the finder is involved)

Abandoned

Lost

Mislaid

Treasure Trove (never used)

Question 27

ABANDONED PROPERTY

Answer 27

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.

Question 28

LOST PROPERTY

Answer 28

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.

Question 29

MISLAID PROPERTY

Answer 29

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.

Question 30

TREASURE TROVE

Answer 30

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.

Question 31

BAILMENTS

Answer 31

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