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Definition
| To obtain ownership of a wild animal you must have occupancy or constructive possession of the animal. To create constructive possession you must have netted (make escape impossible) or have mortally wounded and still be in hot pursuit of the animal. |
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Definition
| The same as Pierson but adds that giving up hot pursuit relinquishes constructive possession, which relinquishes property rights. |
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Definition
| The rigid rule of first possession gives way to whaler’s custom: the whalers have adopted a cost and market efficient custom that extends the period of property rights. (Custom is applicable when: the custom has been used for a long time; it applies to a limited amount of people; and the custom is recognized by the whole industry; the custom furthers the industries productivity.) |
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Definition
| Keeble’s property right in the ducks develops upon Hickeringill’s malicious act of scaring the ducks away. One may not hinder another’s livelihood. |
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Definition
| Attaining a property interest requires more than simply claiming it. An actor must also take due diligence toward attaining the resource. (We know that the facts above are insufficient for due diligence.) The court has pushed the rule of first possession further to the right. |
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Term
| Newman v. Sathyavaglswaran |
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Definition
| Parents have a property right in their decedent’s corneal tissue. People have certain limited property rights to their organs. They have the right to exclude but do not have the right to sell or transfer. |
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Term
| Midler v. Ford Motor Company |
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Definition
| When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. |
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Definition
| Artists can gain limited property rights to their work but these rights are subject to other market considerations. |
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Definition
| Limited property rights vest in cultural artifacts. |
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Term
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Definition
| Reasonable Use: an upstream user may use as much water as he can for natural wants (drinking, household use, water for livestock). An upstream user may not use water for artificial use (irrigation, power) if it interferes with a downstream user’s natural wants. An upstream user may use all of the water for natural wants even if it means the downstream user can use none for artificial wants. It is not clear what happens when upstream and downstream user compete for natural wants v. natural wants and artificial wants v. artificial wants—THIS IS PROBABLY THE EXAM AREA. The rights of reasonable use are not transferable. |
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Term
| Coffin v. Left Hand Ditch Company |
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Definition
| Right of first appropriation: in absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has a prior right to the extent of the appropriation. The right lasts only as long as the user is using the water beneficially. There is no general duty to downstream users. The first appropriator can divert the water from the watercourse. The rights of a first appropriator are transferable. |
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Term
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Definition
| You can use groundwater freely if your use is incident to the land. But if your use is not incident to the land, it may be unreasonable. The farmers have a right to the water. It is similar to Reasonable Use in that the city cannot take the water off the property if the taking interferes with another’s beneficial use on the land. |
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Term
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Definition
| The American rules are that: (1) nobody can obstruct a navigable waterway; (2) the state owns land under tidal waters; (3) state law controls whether states or adjacent riparian water owners own the land under water navigable in fact. |
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Term
| Illinois Central Railroad Co. v. Illinois |
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Definition
| The state has no power to transfer land in the public trust unless it: (1) improves the public interest; or (2) doesn’t impair the public interest; (3) and the grant is necessarily revocable and the state can resume ownership at any time. |
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Term
| State of Oregon ex rel. Thornton v. Hay |
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Definition
| The State gives the public a property right for the dry sand beach and holds that the landowner cannot erect fences or other barriers that interfere with the public’s enjoyment of the area. |
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Term
| Tribune Co. v. Oak Leaves Broadcasting Station, Inc. |
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Definition
| The court reaches its decision under its equitable powers because there is no precedent or legislation to support its decision. |
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Term
| People for the Ethical Treatment of Animals v. Doughney |
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Definition
To prove trademark infringement, the plaintiff must: (1) posses a mark; (2) the Defendant has to have used the mark; (3) The defendant’s use of the mark has to have been used in commerce; (4) the mark has to have been used in connection with the sale of goods or services; (5) the defendant has to have used the mark in a manner likely to confuse consumers.
To be a parody: a parody must convey two simultaneous and contradictory messages: that it is the original but also that it is not the original and is instead a parody.
To prove an Anticybersquatting Consumer Protection Act case, the plaintiff must show: (1) that the defendant had a bad faith intent to profit from using the domain name; and (2) the domain name is identical or confusingly similar to, or dilutive of, the distinctive and famous mark. |
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Term
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Definition
Copyright protects a work: the expression of an idea but not the idea itself. The protection begins as soon as the work is set down in a tangible medium. The subject of the copyright has to be original. Ordinarily, copyright protection lasts for 70 years after the death of the author / creator.
Copyright permits fair use. A copyright holder has no rights to control what the owner of a book does after they have obtained it. However, it gives the copyright holder the right to exclude people from making new copies of the copyrighted work. |
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Term
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Definition
| The CTEA is constitutional. |
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Term
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Definition
Trademarks grant protection against the use of a mark or similar marks when such a use would be confusing to consumers and others. But the protection is not absolute and the protection ends when the mark becomes generic. See PETA v. Doughney.
Nongeneric but descriptive marks must acquire secondary meaning—an association in the minds of consumers between the mark and the product. Fanciful marks (Exxon and Kodak) and arbitrary marks (Apple) need only be used in commerce. Suggestive marks (Jaguar) also do not require a showing of secondary meaning. |
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Term
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Definition
| Patents last for twenty years and cannot be renewed. |
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Term
| Trenton Industries v. A.E. Peterson Manufacturing |
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Definition
To earn a patent, an item must be: process, machine, manufacture, or a composition of matter. It must be useful, novel, and nonobvious to a person of ordinary skill in the art. The threshold for nonobviousness is some amount of creativity.
Patent infringement claims begin only after the patent is issued. There was no patent and, thus, there is no infringement. The court adopts a subjective test for novelty.
The court holds that there is unjust enrichment because Peterson’s agreement to inspect the chair created an implied contract. The court adopts a test asking whether the design was novel to Peterson and concludes that it was. |
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Term
| International News Service v. Associated Press |
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Definition
| A news organization can have a property interest in news as against its competitor in business. The right lasts as long as is necessary to prevent the competitor from reaping the fruits of the original rights holder’s labor. (The court treats the case almost as a tort by granting an in personam right rather than an in rem right.) |
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Term
| Jacque v. Steenberg Homes |
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Definition
| A party cannot intentionally trespass on another’s land without sufficiently good reason. Such an intentional trespass creates harm by violating the owner’s entitlement—the right to exclude—and this will justify punitive damages. |
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Term
| Hinman v. Pacific Air Transport |
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Definition
| The court holds that there is no intentional trespass when there is no harm. It also suggests that an owner can only exclude planes passing through to the extent he is using the land—an echo of right of first of possession. Finally, if trespass in airspace interferes with actual use of the land, then it is actionable. |
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Term
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Definition
| In a world with no transaction costs, bargains will always occur and the most valuable use of a resource will always win out. It does not matter where a legal right is assigned—the most valuable use will still win. On the other hand, in our real world of transaction costs, the most valuable use of a resource does not always win out. And, the enforcement of a legal right will always injure someone. |
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Term
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Definition
| The two modes of protecting legal encroachment are property rule and liability rule. When transaction costs are low, property rules may make more sense because consensual exchange of entitlements is a realistic possibility. When transaction costs are high, liability rules may make more sense because the difficulty and expense of completing a deal may prevent people from bargaining and we might not end up with the most socially useful activity. |
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Term
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Definition
| An encroachment, once discovered is like an intentional trespass. There are no excuses of reasonableness to a case of intentional trespass. This is Rule 1 and like Jacque. |
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Term
| Golden Press, Inc v. Ryland |
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Definition
| A court of equity is not always bound to issue an injunction. If the encroachment is done in bad faith, the court will issue an injunction. If the encroachment is done in good faith, then the court will balance the equities. If the balance of equities greatly favors the defendant, then the plaintiff may be limited to an award of damages equal to the fair market value of the land taken. This is Rule 2 and like Hinman. |
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Term
| Producers Lumber & Supply Co. v. Olney Building Co. |
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Definition
The Texas Law on good faith improvement has three steps:
(1) If improvement can be removed without injury, court will allow the improver to remove it.
(2) If the improvement can’t be removed:
(a) The court has to figure out the cost of the land and the improvement and allocate the value of each.
(b) The true owner of the land has the option of buying the improvement from the improver; or
(c) The improver can buy the land at the price of the land before the improvement
(3) The court can sell the land to the highest bidder and divide the proceeds in accordance with the allocation of value it reaches in step two. |
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Term
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Definition
| Necessity and an inability to control movements inaugurated in the proper exercise of a strict right will justify entries upon land and interferences with personal property that would otherwise have been trespass. The doctrine applies with special force to the preservation of human life / rights. Under Vincent, someone damaging property under necessity may still be required to pay damages. |
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Term
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Definition
| A hunter may hunt on unenclosed and unimproved land even when the owner refuses this right—it is a mandatory license model. |
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Term
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Definition
| Representatives of [social service] agencies and organizations may enter upon the premises to seek out a migrant worker at his living quarters. The migrant worker must be allowed to receive visitors of his own choice, so long as there is no behavior hurtful to others. Finally, members of the press may not be denied reasonable access to workers who do not object to seeing them. |
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Term
| Ulston v. Resorts International Hotel |
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Definition
| By opening its doors to the public, the Casino cannot exclude people unless they threaten the safety or the operations/functioning of the Casino. |
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Term
| The Principle of Accession |
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Definition
| The principle of accession refers to a family of doctrines and under each the ownership of some unclaimed or contested resource is assigned to the owner of some other resource that has a particularly prominent relationship to the unclaimed or contested resource. |
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Term
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Definition
| The general rule of increase is that in the absence of an agreement to the contrary, the offspring or increase of tame or domestic animals belongs to the owner of the dam or mother. |
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Term
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Definition
| Even though the calf was conceived and birthed on another’s land, the calf belongs to the owner of the mother. |
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Term
| The Doctrine of Accession |
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Definition
| Which property right is more preeminent: the original object or the labor expended by the improver in transforming the original object. If the labor is insignificant, then title stays with the original owner of the object. If the labor is prominent and the original object insignificant, then title passes to the improver—and the improver pays the original owner damages equal to the value of the original object. |
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Term
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Definition
(1) Mental state of the improver: the improver must have good faith. A bad faith transformation is dispositive and will prevent the transformer from gaining title.
(2) Degree of transformation: This is not dispositive, but the court will consider it. Blackstone suggests that complete transformation is necessary. Cooley suggests that complete transformation isn’t necessary—using the example of an organ, which is not completely transformed but should nonetheless belong to the transformer.
(3) Relative value from original owner and improver: the improver must contribute a minimum value to the resource—the general rule of thumb is that the improver must contribute at least half the value. |
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Term
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Definition
| The court determines that the changes are closest to accretion because they could not be discerned by the naked eye. The boundary line between the states changes under accretion. In the year where the river changed course with avulsion, the change could be discerned with the naked eye and the boundary line did not change. |
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Term
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Definition
| The majority adopts the Title Theory, which states that he owns to the heavens owns to the depths. The majority holds that Lee would own any piece of the cave that was under his land. The dissent adopts the Possession Theory, which states that a surface owner only owns subsurface lands that he has used. |
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Term
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Definition
| A fixture is defined as “a thing which, although originally a movable chattel, is by reason of its annexation to, or association in use with land, regarded as part of the land.” Generally, an owner’s improvements to a freehold are considered fixtures belonging to the land while a lessee’s improvements to the leased property are considered personal property. |
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Term
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Definition
The court establishes two tests:
(1) Would the item in question typically be included in a home being sold at this price?
(a) If they would, then they are fixtures. If not, then they are not fixtures.
(2) Are the items bolted to the wall?
(a) If the objects are bolted the wall, they are fixtures. If you can lift the item off, it is not a fixture. |
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Term
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Definition
| Owners generally have the right to abandon their property. But broader social welfare concerns sometimes prevent an owner from abandoning property. |
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Term
| Pocono Springs Civic Association, Inc. v. Mackenzie |
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Definition
| In Pennsylvania, an owner cannot abandon property to which he has perfect title. The property can only be sold or transferred. |
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Term
| Eyerman v. Mercantile Trust Co. |
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Definition
| Homes cannot be destroyed for no good purpose. Benefit to a dead person is not a good purpose when it causes injury to the world with no other offsetting benefits. |
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Term
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Definition
| An absolute restraint on alienation is invalid. A restraint on alienation must be reasonable. This restraint is not reasonable because: (1) there are no standards for membership; (2) the limitations on membership are very broad; (3) The restraints are of infinite duration. Taken together, the restraint is not reasonable. |
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Term
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Definition
| When a party makes a temporary transfer of possession or custody of property to another. It is the mirror image of abandonment. Here, a party is parting with possession to a specific person with the intention of retaking possession. |
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Term
| Allen v. Hyatt Regency—Nashville Hotel |
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Definition
When you give keys to a parking attendant, you have created a bailment. The court determines that there is a bailment, even though facts cut in both ways.
The facts favoring a bailment are: there is a garage attendant; the exit is controlled by an attendant; you get a receipt for leaving your car; you have to pay to leave; the hotel pays a security guard. The facts favoring a license are: the ticket is not associated with the car; the guest keeps his keys; the gate is not always attended; a driver can obtain a ticket without driving in; the owners select their own parking spaces. |
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Term
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Definition
Dispute: Finder v. Converter
The first finder has a right to the found object good against all the world except the true owner. |
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Term
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Definition
Dispute: Finder One v. Finder Two
(1) The first in time finder has the property right. (2) Once a party has established a property right in some thing, then he has a stronger likelihood of judicial protection than does any subsequent possessor except the true owner. (3) A finder has rights against all the world except the true owner or the prior possessor. |
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Term
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Definition
Dispute: Converter One v. Converter Two
The court extends the rule of prior possessors to the conversion context. The first in time converter has rights against the later converter. |
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Term
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Definition
| Steward is in the position of a trespasser and, thus, Steward gets the bees and the honey. The court applies Rationi Soli: the owner of the land owns the things on the land. In the US, this principle applies mainly to bees. |
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Term
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Definition
| The meteorite belongs to the owner because it was in the land (buried three feet) and immovable (weighing sixty pounds or so). |
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Term
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Definition
| The first finder of a thing has a good title to it against all but the true owner, even though the thing is found on the property of another. Three exceptions are when: (1) the property is in or attached to the owner’s land; (2) the finder is the servant or agent—in which case the found item belongs to his employer; (3) he gets possession only through trespass or other act of wrongdoing. |
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Term
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Definition
(1) Actual possession: you need to possess the property in the place of the owner.
(2) Exclusive: you need to possess the property to the exclusion of everybody.
(3) Open and notorious: you need to possess the property in a way that everyone can see, which puts the world on notice of your use.
(4) Continuous: this varies with context—but usage must be continuous according to the customary usage of the particular property.
(5) Adverse under claim of right: you cannot have the owner’s permission; you don’t have a lease, a license, or anything that would entitle you to possession.
a. Three categories of adversity: good faith (mistaken belief you are entitled to the land); bad faith (you know you are not entitled to the land); state of mind is irrelevant (the dominant view).
b. Adverse under color of title: more demanding than claim of right—you must have some document that purports to give you possession; and the document must be mistaken. |
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Term
| Lessee of Ewing v. Burnet |
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Definition
| The court uses the doctrine of ouster, which is very similar to adverse possession. Burnet had actual possession—he used the land; he was in exclusive possession—the other owner was not present; his possession was open and notorious—he paid taxes and enforced his property right; his possession was continuous—it was unbroken; and he had adverse possession under color of title—he had an incorrect deed). |
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Term
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Definition
| In Iowa, title in adverse possession is only available when the adverse possessor enters in good faith. So, although Carpenter meets all the other requirements of adverse possession, her bad faith is fatal to her claim and she loses the case. |
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Term
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Definition
| First, continuity is determined by looking at usage of property of like nature and condition. Thus, summer occupancy of a summer home does not destroy continuity of possession. Second, adverse possessors may tack their period of possession with the old owner’s period of possession if they are in privity with the previous owner. Privity requires a voluntary conveyance. |
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Term
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Definition
| Everything granted must add up to fee simple absolute. A grantor cannot destroy parts of the ownership in the temporal dimension. Ultimately, the entire property must be granted in fee simple |
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