Property outline, 1 of 3
CITE PROFUSELY! MAKE HER LAUGH!
Initial Acquisition
• Conquest: Johnson v M’Intosh – Discovery rule gave sovereign
exclusive right to extinguish original Indian title of occupancy
• Capture/Prior Appropriation: Pierson v Post – Capture rule/Free Use
(groundwater)/MIN Prior Appropriation (streams); Popov v Hayashi
(complete possession v pre-possessory interest yields split the baby);
Acton v Blundell (coal excavation notwithstanding neighboring drainage)
○But see Elliff v Texon Drilling – capture w/ negligence exception
○But see Armstrong v Francis Corp – MAJ reasonable use test
(nuisance)
○But see Correlative rights (e.g., % of aquifer under property)
• Lost Property: Charrier v Bell – burial artifacts ≠ abandoned. Tunica
were not unjustly enriched.
○Lost – accidentally misplaced. OO > finder > anyone else
○Mislaid – intentionally left but forgotten. OO > owner of premises >
finder > anyone else
○Abandoned – deliberately relinquished. Finder > anyone else
○BFP cannot prevail over OO if bought from thief (unless thief deals in
that merchandise)
○Trespassing finders generate court SPLIT
• Labor & Investment: INS v AP; news as quasi-property as against
competitors but not as against general public. Also see Pierson dissent.
○But see Cheney v Doris Silk Co. (imitation of silk pattern allowed to
protect against monopoly and ensure free competition).
○But see NBA v Motorola (NBA ha exclusive copyright to broadcast
game scores but can’t preclude others from distributing the info
afterward; no misappropriation found).
○eBay v Bidder’s Edge (eBay granted injunction for D’s electronic
trespass that crashed/overwhelmed eBay’s computer system).
• Body Parts & Genetic Material: Moore v Regents ((i) no property
interest in cell tissue; (ii) no conversion be/c cell line nonnaturally
occurring and product of human ingenuity though (iii) breach of fiduciary
duty granted)
○ Kidneys For Sale:
 Pro:
• Could regulate it and protect donors
• Make now black market above ground and regulated. (Same
issues w/ abortion problems, dodgey drs ect)
• Sale is no more risky than donation
• Would increase life for others, decrease costs of procedures bc
more kidneys would be available
• Would give more money to donor and less to drs. etc. benefiting
from black market
• Better for patient to have healthy kidney from live donor than
cadaver donor
 Con:
• Economic coercion – low income people might risk donation bc
need money
• Risky –greater environmental and social risks to low income
donors - increased risk of mortality w/ one kidney
• Might hinder socially beneficial research
• Instill property rights in other organs, hearts, lungs, people might • Constitutional Limits on Right to Exclude (1 st
claim property rts to dead ones organs
• Morality argument - undermines value of human life.
• Just because happening already doesn’t mean law should
condone.
• Titmuss – gift superior, reaffirms shared relationship of
humanity.
• Relativity of Title: Tapscott v Lessee of Cobbs (prior peaceable
possessor title > subsequent possessor w/o claim to title; P needed to show
has title, not that there are defects in D’s claim of title).
• Encroaching Structures:
○ Structure that decreases land value (SPLIT):
 MAJ relative hardship only grants injunction if encroachment was
innocent, harm was minimal, interference w/ true owner’s property
interest is small, costs of removal are substantial.
 MIN grant absolute injunction.
○ Structure increases land value:
 Sommerville v Jacobs (good faith improver entitled to recover value
of improvements or alternatively purchase the land less the value of
the improvements).
 Bad faith improver cannot recover.
• Adverse Possession: as quiet title or trespass defense. MAJ requires 1
6 st
(Nome 2000) proven by clear & convincing evidence (Brown v Gobble);
MIN by preponderance:
○Actual possession – average owner standard; if scope is limited rather
than general, prescriptive easement may be more appropriate
○Open & notorious – enough to put reasonable owner on notice; actual
notice not required
○Exclusive – cannot be shared w/ true owner but occasional entry might
not defeat AP claim. 2 APs can become tenants in common
○Continuous – consistent w/ that type of property
 Nome 2000 (seasonal use OK)
 Brown v Gobble (tacking if there’s privity)
○Adverse & hostile – nonpermissive as to AP’s state of mind:
 MAJ objective test
 Subjective tests:
• Claim of right (alleged by AP)
○ MAJ hostility=acting like true owner)
○MIN claim of right would be defeated if AP (i) knew or (ii)
even if did not know the boundary but never intended to AP
that property anyway
• Very MIN Good faith test – exact opposite of intent to oust
owner; requires good faith occupation so only innocent AP win.
○For statutory period. Tolled for disability or absence from state.
○#7 – color of title – in some states, AP may obtain title to entire parcel
of land if purchased property pursuant to a deed that mistakenly (not
fraudulently) described borders. Romero v Garcia (technicalities do
not render deed void which accurately described property granted)
○ #8 – paid property taxes on land
The Right to Exclude
• Common Law Public Policy Limits: Right to exclude is not absolute.
The more an owner has opened up her property to the public, the more
likely it is courts will find public rights access.
○MAJ – absolute right to exclude by proprietors of places open to the
public if consistent w/ law. State v Shack – No trespass;
farmer/employer property rights do not include right to bar access to
governmental services for migrant workers, and thus entry did not
constitute a trespass per NJ statute. Desnick v ABC – No trespass;
office operations were not disrupted but were open to public and access
was reasonable. Intel Corp v Hamidi (no trespass for ex-employee
flooding email)
 But see eBay v Bidder’s Edge (above); Food Lion (trespass found
when ABC used false resumes to get supermarket jobs then
trespassed into meatpacking? Area)
○MIN – reasonable access. Uston v Resorts Intl. (card counter thrown
out of casino deemed unreasonable exclusion).
• Statutory Limits on Right to Exclude (Public Accommodation laws):
○Civil Rights Act of 1866: regulates race discrimination only; applies to
private & public.
○Civil Rights Act of 1964, Title II: places of public accommodation
can’t discriminate on race, color, religion, national origin (not sex)
○State Statutes may extend coverage to individuals beyond that granted
by federal law. Dale v BSA (NJ; “Place” of public accommodation
extends to membership organizations like BSA, which can’t exclude
based on sexual orientation); also see Jaycees v McClure (MN).
 But see Jaycees v Mass Comm Against Discrimination (“place” does
not apply to membership organizations); BSA v Dale (SCOTUS
reversed on grounds that federal freedom of association trumps
public accommodation exclusion prohibition).
 Where place of public accommodation & private club share
symbiotic relationship, private club may become subject to public
accommodation limits on right to exclude (Frank v Ivy Club).
protects speaker, 5th
protects proprietor & 14th; Free Speech Rights on Private Property):
○More 1 st
freedom of speech: Marsh v Alabama (company town); Logan
Valley (shopping center labor protestors picketing OK; formally
overruled by Hudgens);
○More 5 th
no deprivation of property: Lloyd v Tanner (WA; private mall
can prohibit speech unrelated to operations); Hudgens v NLRB; (no
free speech on private property).
• State Constitutional Limits on Right to Exclude: may provide more
rights than federal
○MAJ: no free speech in privately owned shopping centers. United
Food and Commercial Workers Union v Crystal Mall Assoc (CT;
property does not become public if open to public and union cannot
distribute literature to patrons about rights of mall’s employees).
○MIN: reasonable restrictions allowed. NJ Coalition v JMB Realty (NJ
free speech more expansive than Fed; mall cannot prohibit leafleting);
Pruneyard (CA); State v Schmid (Princeton can’t kick out student
protestors)
• Right to use v Right to exclude
○Coase – externalities internalized but does this account for
noneconomic txn costs?
Nuisance
• Unreasonable activity (Page County v Honeywell – Honeywell’s
computers emitting radiation messed up appliance store’s TV reception
and court deems Honeywell liable for harm since P and his use of TV not
hypersensitive but reasonable)
• That causes substantial harm
○Flooding & diffuse surface water. Armstrong v Francis (instead of (i)
common enemy/absolute freedom/no liability or (ii) natural flow/civil
law/strict liability, court adopted intermediate reasonable use test for
damage down from flooding).
○Subjacent support & subsidence. Friendswood v Smith-Southwest
(adopts old C/L absolute ownership rule w/ negligence exception as in
Elliff w/r/t building more wells, NOT w/r/t withdrawing water without
liability. Maj only holds future negligent withdrawals liable whereas
Dissent would hold past ones liable also.)
○Light and air.
 Ancient lights gave landowner negative prescriptive easement (not
in US)
 MAJ absolute ownership to develop w/o liability for interference w/
neighbors light & air enjoyment. (Fontainebleau v 4525 – rejection
of nuisance doctrine, no easement for light & air)
• But see Prah v Maretti (private nuisance law applied to light so
Prah able to enjoin Maretti for blocking solar panels’ sunlight)
Nonpossessory interests; rights to use another’s land
(easements, covenants, equitable servitudes)
○Equitable servitudes – right/obligation that runs w/ land
 Remedy for breach = injunction (See covenants)
○Easements – type of equitable servitude where permission is intended
to be permanent/irrevocable. Can be bought & sold.
 Affirmative (like a license but distinct in that license is just a
privilege rather than an interest in land) or negative (confined to
light, air, subjacent & lateral support, flow of artificial stream)
 Appurtenant (2 tracts) or in gross. Appurtenant presumed.
 Creating easements:
• Express grant or reservation: must be in writing. O can’t
reserve easement in 3rd party when selling land to B.
○ In gross
 Exclusive  apportionable (Henley v Continental Cablevision
– easement does not exclude TV wires; interpreted broadly for
public policy benefits as well)
 Not exclusive (grantor can still use)  not apportionable
○Appurtenant (presumed) (Green v Lupo – reasonable limits
on motorcycle activity imposed to avoid greater burden on
servient estate than originally contemplated in easement grant)
 BURDEN runs w/ servient estate if –
• Writing
• Grantor’s (servient) intent (express/implied)
○ Must not exceed scope
• Future owner’s notice (actual, constructive, inquiry)
 BENEFIT runs w/ benefited estate if –
• Grantor’s intent (express/implied) (Cox v Glenbrook –
presumed appurtenant so subdivisible; road improvements
permitted to extent consistent w/ covenant but not widening
be/c wasn’t w/in grantor’s intent)
• Implication:
○Easement by estoppel: revocable license becomes irrevocable
be/c of reliance. Holbrooke v Taylor (Taylors relied on
license to improve only access road to house).
 Permission
 Reliance
○Constructive trust: (as a remedy) created by operation of
law to avoid unjust enrichment where party was wrongfully
(mistake/fraud/breach) deprived of some right. Rase v Castle
Mountain Ranch (new owner of cabins around lake tries to
evict tenants but constructive trust protects them). NON-
permanent (as opposed to EE)
 Permission
 Reasonable reliance/investment
 Equity considerations
○Easement from prior use: Granite Properties Limited v
Manns (easement to driveway for trucks to turnaround upheld
based on reasonable necessity & permitted prior use)
 Previous common ownership
 Visible use before conveyance
• Put owner on notice
• Continuous & permanent
 Reasonable necessity
• Sliding scale – more notice, less necessity
○Easement by necessity: Finn v Williams (landlocked parcel)
 Previous common ownership
 Absolute/strict necessity
• Prescription: (Community Feed Store – P uses part of
neighbor’s land to turn truck around); no exclusivity needed as w/
AP.
○Actual use (as opposed to possession per AP)
○ Open & notorious
○Continuous (but see Zuni tribe)
○ Hostile
○ For S/P
 Terminating easements:
• Agreement in writing/contract/release
• Merger (of servient & dominant estate)
 Property outline, 2 of 3
• Abandonment ○ Subject to open – may be divided among persons born after
• AP/prescription conveyance. MAJ: close class @ termination of LE.  Eviction - Vasquez v Glassboro Service Assoc (migrant farm worker
• Frustration of purpose ≠ tenant & contract evidenced little bargaining power w/

• Changed conditions generally do NOT apply to easements (but ○Subject to divestment – may be destroyed by an event that unconscionable terms. Could not be evicted w/o reasonable notice).

see El Di – covenants)
• Estoppel
• Marketable title acts
○License – revocable at will so generally not classified as servitudes
though they really are a kind of servitude. Cannot be freely revoked
unless:
 Coupled w/ an interest
 Transferable (as with theater tix)
 Easement by estoppel
○Rules (to promote marketability):
 Constructive trust
○Covenants – kind of equitable servitude BUT remedy for breach =
damages. As opposed to easements (traditionally affirmative),
covenants & servitudes act like negative easements.
 BURDEN runs w/ servient estate if –
• To get injunction (equitable servitude):
○ Writing
○ Intent for burden to run (express/implied if T&C)
○Notice
Actual

 Constructive (recorded)
Inquiry (obvious from reasonable inspection)

○ Touch & concern both servient & dominant estate
 Affects land use & enjoyment OR market value
○***vertical privity not required
• To get damages (real covenant) also need:
○Privity of estate (Whittinsville Plaza v Kotseas)
 Horizontal
• Instantaneous – grantor/grantee; landlord/tenant; easement
promisor/promissee
• Mutual – lessor/lessee (simultaneous interest in parcel)
 Vertical, if applicable; (none in Whittinsville be/c lease so can
only get injunction); *** does not exist if covenant is in a
lease or LE
 BENEFIT runs w/ dominant estate if –
• To get injunction (equitable servitude):
○ Possession of land
○ Intent for benefit to run
• To get damages (real covenant) also need:
○ Privity of estate (vertical, if applicable)
 Public policy considerations:
• Davidson Bros. v Katz (court supplants T&C w/ reasonableness
to see if restrictive covenant not to open supermarket OK)
• Blevins v Berry-Lawrence County Assoc. for Retarded Citizens
(ambiguous restrictive covenant interpreted narrowly not to apply
to commercial use & building structure)
 Terminating covenants/Avoiding enforcement:
• Changed conditions (El Di v Town of Bethany Beach – restaurant
started in Christian beach community and wants liquor license
against covenant)
• Relative or undue hardship; public benefit (Blakeley v Gorin)
•
•
Acquiescence
Abandonment,
• Unclean hands
• Estoppel
• Laches (unexcused delay in enforcing covenant)
occurs after the conveyance in which case might shift to
another grantee or back to grantor.
• Contingent (MAJ: NOT destructable; if condition does not occur
by end of LE, property reverts to FSSEL and if it later occurs,
remainder springs from reversion holder to contingent remainder
holder)
○ Condition precedent – remainder will vest only if condition
happens
○ Unascertained person – remainder will go to a person who
cannot be ascertained at time of conveyance
 DOWT – exists as rule of construction only. Can’t create remainder
in grantor’s heirs after a LE; effectively a LE w/ reversion in grantor
and her heirs. “O to A for life, remainder to O’s heirs” interpreted as
“O to A for life, reversion in O”. Modern result yields future
interest to heirs.
 Shelley’s Case – abolished. Can’t create remainder in LE holder’s
heirs; effectively FSA is grantee/LE holder. “O to A for life,
remainder in A’s heirs” interpreted as “O to A in FSA”. Modern
result yields LE w/ contingent remainder.
 Fee tail – keep in family. Careful drafting can avoid (“To A and the
heirs of his body”)
 Presumption Against Forfeiture: in case of ambiguity, courts prefer
grantor gave away whatever interests he had. Preference order:
• FSA
• FS w/ precatory (wishful) language (Wood v Board of County
Commissioners – property conveyed to VA hospital but county
wanted to sell it and relocate so heirs wanted remainder. Court
deemed deed ambiguous in that no clear language indicating FSD
or FSSCS so interpreted a FS w/ precatory language)
• FS w/ covenant
• FSSCS (Cathedral of Incarnation v Garden City Co. – land sold
to church w/ restrictions but went bankrupt so court ordered it
sold and grantor brought re-entry to reclaim land but interest was
not assignable at conveyance)
• FSD or FSSEL
• LE (Edwards v Bradley – Grandma deemed to have left mom w/
LE and remainders in children so forfeiture interpretation was
valid since intent was to prevent creditors from clawing assets)
 Trusts & Cy Pres: if purpose becomes impracticable or otherwise
violative of a rule (e.g., RAP)
 No New Estates (Johnson v Whiton – land to go to children on
father’s side when grantee dies but instead given FSA)
 No Unreasonable Restraints on Alienation: forfeiture or promissory • Basic fairness & justice (Armstrong v US)
• Ad hoc test (Penn Central v NYC – air rights deprivation ≠ taking)
> disabling. Total restraints uniformly repugnant to fee (Northwest
Real Estate v Serio – real estate co. right of first refusal upheld
because needed to make up its investment so “high class
neighborhood” intent OK and not in contravention of public interest)
• Void if against public policy (Riste v Washington Bible Camp –
use restriction violates anti-discrimination statute)
• Some are void only if unreasonable (Horse Pond Fish & Game v
Cormier - Charity to charity exception to promote charitable
giving)
 RAP: interest must vest w/in 21 years of a life-in-being at its
creation.
• Applies to:
○ Executory interest
○ Contingent remainder – condition precedent
○ Contingent remainder – unascertained person
 Implied Warranty of Habitability – Javins v First National Realty
Corp
Common Ownership – each has an undivided interest to possess
whole. Both TIC & JT free to transfer interest w/o co-owner consent.
• Tenants in Common (TIC) – presumed if ambiguous since less restrictive.
○ No right of survivorship: upon TIC death, interest passes to heirs or
devisees
○Death of TIC/lessor does not terminate lease
○Olivas v Olivas (no constructive ouster so no rent owed)
○Carr v Deking (cotenant may lease his own interest w/o other TIC
consent; lessee becomes TIC with other owners for lease duration)
○Kresha v Kresha (Mom can’t dissolve lease be/c acquires interest
subject to existing lease)
 But see Tehnet (lease died w/ death of lessor)
• Joint Tenants (JT) –
○ 4 unities (time, title, interest, possession)
○Right of survivorship: upon JT death, interest transferred to remaining
JTs in = shares
 Possibilities:
• Lease survives death of JT (Kresha – divorce, not death)
• Lease dies w/ death of JT (Tehnet)
○Severance: if JT transfers interest, new tenant is a TIC not a JT.
 Possibilities:
• Lease severs JT (Alexander v Boyer)
• Lease does NOT sever JT (Tehnet v Boswell - lease does not
sever JT but death of lessor severs lease)
• Tenancy by Entirety: MIN – JT only avail to married couples; can’t
transfer interest w/o spousal consent
Takings: 5th & 14th Amend. prevent (i) taking (ii) for public use (iii) w/o
just comp)
• “Public use” replaced w/ “public purpose” to allow Pfizer to open to shop
(Kelo v City of New London)
○Hawaii Housing – regulating land oligopoly to correct real estate
market classic police power not requiring comp.)
○Poletown v Detroit – eminent domain used to build GM plant
 Overruled by Wayne County v Hathcock (economic development
inadequate to fulfill “public purpose”)
○ Character of government action
 More likely a taking:
• Forced permanent physical invasion of property (Loretto – NY
law requiring landlords to allow cable box installation taking be/c
permanent physical occupation; Causby – airspace servitude a
taking be/c too low to ground frightening chicken; Nollan –
taking found when regulatory commission required beachfront
owner to grant public easement as a condition for being able to
expand house)
• Extraction of a benefit for the good of the community or a forced
transfer of property rights from A to B (Babbitt – affirms Hodel;
Hodel – total abolition of descent & devise rights a taking)
 More likely to be held to be a legitimate application of police power
not requiring compensation

• Terms of covenant – merger? Release? ○ Vested remainder subject to open

• Regulation of property use in a manner that achieves an average
• Prescription • Does NOT apply to all future interests in grantor and vested reciprocity of advantage (Euclid – zoning law, which reduced the
• Public policy violation remainders in 3 party:
rd value of previously industrial land by 75% denial ≠ taking)
• Marketable Title Acts
Possessory interests, present & future (freehold – fees
○ Reversion
• A limitation on property use designed to protect the community
○Possibility of reverter from harm or to respond to negative externalities (Keystone)
or life estates – & nonfreehold – estates for years,
periodic estates, estates at will, tenancies at sufferance)
○ Right of entry • A choice between incompatible property interests (Miller v
○ Vested remainder absolute Schoene – cedar trees; Keystone – mining preclusion a taking)
○FSA (no future interest). “to A”; “to A and her heirs”; “to A in fee ○ Vested remainder subject to divestment
• Fertile octogenarian: “O to A for life, then to A’s children for ○But see Department of Agriculture and Consumer Services v
simple” life, then to A’s grandchildren” Mid-Florida Growers (state had to pay to destroy orange trees)
○Defeasible (revocable) fees: present interest terminates upon specified • Unborn widow: “O to A for life, then to A’s widow for life, then
to A’s surviving descendants” ○But see Pennsylvania Coal v Mahon (Keystone w/ opposite
event triggering future interest: (MAJ: transferable)
 In grantor or her heirs – ○Rules (to Promote Social Welfare, Equality & Liberty): result – statute preventing coal co. from mining not a taking
be/c protected common welfare – surface support)
• FSD w/ possibility of reverter. “so long as”; “while”; “during”;  Racially restrictive covenants: Shelley v Kramer (state courts’ • Heart of Atlanta Motel v US (requiring hotel to accept patrons
“until”; “unless” enforcing covenant to stop 2 willing parties from contracting regardless of race ≠ taking)
• FSSCS w/ right of re-entry/power of termination. “provided constituted state action and violated = protection of 14th Amend)
 Judicial Takings – still unanswered. Stop the Beach Renourishment,
that”; “on condition that”; “but if” • But see Evans v Abney (GA state court decision to dissolve Inc. v. Florida Department of Environmental Protection (currently
 In 3 Party –
rd discriminatory trust did not constitute state action; GA had to
give park back to heirs be/c discriminatory covenant in will could
before SCOTUS question is whether Florida's Supreme Court
violated the US Constitution when it ruled that the state did not have
• FSSEL w/ executory interest (might be shifting or springing). not be enforced or reconciled via cy pres) to pay compensation to beachfront landowners adjacent to a beach
“until (or unless)… then to”; “but if… then to”; “so long as…
then to”
 Restraints on Marriage: Lewis v Searles (Marriage restraint not held restoration project)
○ Economic impact
void as against public policy because of support exception)  More likely a taking:
○Life estates (lifelong lease). “for life”; “for life… then to” • But see Shapira v Union National Bank (restraint on religion on • Regulation denies the owner any economically viable use of the
 In grantor – reversion. spouse held enforceable be/c no guaranteed right to inheritance) land (Lucas – no beachside SC building statute a taking unless
 In 3 party – remainder
rd ○ Leaseholds (term of years, periodic tenancy, tenancy at will – no
longer allowed, tenancy at sufferance)
state can justify it using background nuisance principles)
• Vested • Regulation destroys almost all the value of the property in a
○ Absolute – not subject to change manner unjustified by a sufficient public interest

 More likely to be held to be a legitimate application of police power
not requiring compensation
• Regulation leaves the owner with an economically viable use of
the land or a “reasonable return on the owner’s investment”
(Keystone, Penn Central)
• Diminution in value, even if great, is justified by a sufficiently
strong public interest in protecting the public from harm
(Keystone; Andrus v Allard – statute prohibiting sale of eagle
feathers not a taking)
○ Interference w/ reasonable investment-backed expectations
 More likely a taking:
• It interferes with vested rights, such as investments based on
reasonable reliance on prior regulatory approvals or laws unless
those regulations can be justified as preventing a nuisance or
other harm caused by the property use (Kaiser Aetna – gov’t
wanted to open marina to public – upheld right to exclude as core
property right; Pumpelly v Green Bay – statute authorizing canal
co. to build a dam and flood P’s land was per se taking)
• It interferes with an existing present use of the property
 More likely to be held to be a legitimate application of police power
not requiring compensation
• It imposes an opportunity loss – preventing the owner from
realizing the benefits of a contemplated future use (Penn Central)
• The change in the law is one that could or should have been
anticipated such that the owner’s reliance on the continuation of
prior law was unreasonable
• The regulation of a contractual relationship rather than a forced
transfer of property interests from one person to another (Yee –
reaffirmed Block; Block v Hirsh – anti-eviction law permitting
tenants to remain was not a taking)
• Per se (categorical) takings (SEE ALSO p. 23 – physical invasion V
Property outline, 3 of 3
○ Rights-based analysis
 Davis v. Davis (embryos are somewhere in between people and
property but that parents nevertheless have an interest in the ova so
have joint-control over their disposition)
• But see J.B. v M.B. (mother’s parental right not to procreate
trumped father’s competing parental right to procreate); Kass v
Kass (expressing it differently, woman would always have
control of the pre-embryos in a divorce proceeding on ground
that once they were fertilized, husband had no right to force wife
to stop pregnancy!)
○ Contract based cases
 A.Z. v B.Z. (contract granting ultimate control of fertilized ova to
wife unenforceable because it violated public policy against forcing
a person to become a parent against his/her will.)
• Human Remains
○Wana the Bear v Community Construction, Inc. (remains were
disinterred and Indians asking for property to be recognized as a
cemetery to preserve them, but relief not granted because the land was
no longer a graveyard due to interrupted use once it was turned over to
the city. Partly overturned by CA statute expressly protecting
American Indian burial sites.) See also People v Van Horn (upholding
constitutionality of said statute and requiring an archeologist to return
objects).
Food for Thought
• Bundle of rights:
○ Liberty to use
○ Right to exclude
○ Power to transfer
○ Power to devise or bequeath
○ Immunity from damage
○ Immunity from expropriation
• Theories:
○ Native American – sharing & communal

abolition of core property right V total taking) ○First possession & labor
○Permanent physical invasions of property (Loretto) ○ Utilitarianism, social welfare & efficiency

 But see Pruneyard (though a physical invasion, not a taking be/c
negligible economic impact and temporary invasion)
○Regulations that “completely deprive an owner of all economically
viable use of her property [unless] background principles of nuisance
and property law independently restrict the owner’s intended use of the
property.” (Lucas)
 But see Palazzolo (permits denied to build on waterfront RI
property); Tahoe-Sierra Preservation Council v Tahoe Regional
Planning Agency (temporary moratorium still a taking though only
triggered w/ 100% deprivation)
○Complete abolition of a “core” property right (Hodel v Irving; Babbitt v
Youpee)
 But see Andrus v Allard
• Spectrum of Physical Invasions (Regulation   Taking)
○No taking: non-physical; temporary; limited; invitee/tenant; doesn’t
interfere w/ use or economic value (certain  less so)
 Pruneyard (CA Supreme Court held speech protected in malls)
○Positivism (non-moral; law is what it is) and legal realism (pragmatic) -
“Property and law are born together and die together” (Betham);
Realists say law is what officials will do in resolving disputes.
(Llewellyn)
○ Justice & fairness
 Rights theories - as defined by justice, community values, historical
traditions, the nature of human beings (natural rights), equal
protection of all members of society (social
cohesion/welfare/cooperation, Kant), individual autonomy and
human needs (human flourishing)
○Social relations - feminist legal theory, critical race theory, law and
society, critical legal studies)
○ Absolute - Blackstone, “that sole and despotic dominion which one
man claims and exercises over the things of the world, in total
exclusion of the right of any other individual in the universe”
○Evil - All property is theft / property is the source of all inequality.
(Rouseaux)
○Labor & investment theory: Locke; Hegel (property rights develop
individual autonomy); Margaret Jane Radin (to be a person, one needs
individual control over external resources)

 Yee (mobile home residency law ≠ taking) ○Satisfying human needs or ensuring distributive justice: Nancy Fraser;
Frank Michelman
 Block v Hirsh (protected tenancy for life ≠ taking)
 [LL-T cases generally not takings]
○Taking: physical invasion; permanent; complete/total; intruder/3 rd

party; interferes w/ use and/or economic value (certain  less so)

 Loretto
 Nollan (beach access easement)
 Kaiser-Aetna (private lagoon)
 Seawall (antiwarehousing law forcing owners to rent rooms to
strangers was a taking per NY Supreme Court)
Intellectual Property
• Copyright Act, 17 USC §101 grants owners of “original works of
authorship” that are fixed in a “tangible medium of expression” exclusive
rights to copy, distribute, perform or display
○Feist Publications v Rural Telephone Service (alphabetical fact
arrangement not original)
• Contributory infringement – Sony Corp v Universal (not infringing be/c
mostly used for time-shifting)
○But see MGM v Groekster (Court adopts inducement rule)
• Patents in People – Diamond v Chakrabarty (non-naturally human-
manufactured occurring oil-eating bacteria held to be patentable)
Property in People
• Slavery
○Dred Scott v Sanford – Slaves ≠ citizens entitled to constitutional
protection. MO Compromise held unconstitutional.
○State v Mann – shooting slave ≠ battery
• Surrogacy
○Baby M (surrogacy K void as against public policy)
 But see Johnson v Calvert (genetic mother wins over gestational
mother; looks to K)
• Frozen Embryos