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Property outlinE PROFUSELY! MAKE HER LAUGH!

tial Acquisition Conquest: Johnson v MIntosh Discovery rule gave sovereignexclusive 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 Bel l burial artifacts abandoned. Tunicawere 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 againstcompetitors but not as against general public. Also see Pierson dissent.

But see Cheney v Doris Silk Co. (imitation of silk pattern allowed toprotect against monopoly and ensure free competition).

But see NBA v Motorola (NBA ha exclusive copyright to broadcast

game scores but cant preclude others from distributing the infoafterward; no misappropriation found).

eBay v Bidders Edge (eBay granted injunction for Ds electronic

trespass that crashed/overwhelmed eBays computer system).

Body Parts & Genetic Material: Moore v Regents ((i) no propertyinterest in cell tissue; (ii) no conversion be/c cell line nonnaturallyoccurring and product of human ingenuity though (iii) breach of fiduciaryduty 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

claim property rts to dead ones organs Morality argument - undermines value of human life. Just because happening already doesnt mean law should

condone. Titmuss gift superior, reaffirms shared relationship of

humanity.

Relativity of Title: Tapscott v Lessee of Cobbs (prior peaceablepossessor title > subsequent possessor w/o claim to title; P needed to showhas title, not that there are defects in Ds claim of title).

Encroaching Structures: Structure that decreases land value (SPLIT):

MAJ relative hardship only grants injunction if encroachment wasinnocent, harm was minimal, interference w/ true owners propertyinterest is small, costs of removal are substantial.MIN grant absolute injunction.

Structure increases land value:

Sommerville v Jacobs (good faith improver entitled to recover valueof 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 st 6(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; actualnotice 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 theres privity)

Adverse & hostile nonpermissive as to APs state of mind:

MAJ objective testSubjective 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 APthat property anyway

Very MIN Good faith test exact opposite of intent to oustowner; 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 (notfraudulently) described borders. Romero v Garcia (technicalities donot 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 morelikely 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 togovernmental services for migrant workers, and thus entry did notconstitute a trespass per NJ statute. Desnick v ABC No trespass;

office operations were not disrupted but were open to public and accesswas reasonable. Intel Corp v Hamidi (no trespass for ex-employeeflooding email)

But see eBay v Bidders Edge (above); Food Lion (trespass foundwhen ABC used false resumes to get supermarket jobs thentrespassed 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

cant 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 accommodationextends to membership organizations like BSA, which cant excludebased on sexual orientation); also see Jaycees v McClure (MN).

But see Jaycees v Mass Comm Against Discrimination (place doesnot apply to membership organizations); BSA v Dale (SCOTUSreversed on grounds that federal freedom of association trumpspublic accommodation exclusion prohibition).

Where place of public accommodation & private club sharesymbiotic relationship, private club may become subject to publicaccommodation limits on right to exclude (Frank v Ivy Club).

Constitutional Limits on Right to Exclude (1 st protects speaker, 5 th

protects proprietor & 14 th; 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; formallyoverruled by Hudgens);

More 5 th no deprivation of property: Lloyd v Tanner (WA; private mall

can prohibit speech unrelated to operations); Hudgens v NLRB ; (nofree speech on private property).

State Constitutional Limits on Right to Exclude : may provide morerights than federal

MAJ: no free speech in privately owned shopping centers. UnitedFood and Commercial Workers Union v Crystal Mall Assoc (CT;property does not become public if open to public and union cannotdistribute literature to patrons about rights of malls 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 cant kick out studentprotestors)

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 Honeywells

computers emitting radiation messed up appliance stores TV receptionand court deems Honeywell liable for harm since P and his use of TV nothypersensitive 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 usedamage down from flooding).

Subjacent support & subsidence . Friendswood v Smith-Southwe

(adopts old C/L absolute ownership rule w/ negligence exception as inElliff w/r/t building more wells, NOT w/r/t withdrawing water withouliability. Maj only holds future negligent withdrawals liable whereasDissent would hold past ones liable also.)

Light and air .

Ancient lights gave landowner negative prescriptive easement (noin US)

MAJ absolute ownership to develop w/o liability for interference neighbors light & air enjoyment. (Fontainebleau v 4525 rejectioof nuisance doctrine, no easement for light & air) But see Prah v Maretti (private nuisance law applied to light

Prah able to enjoin Maretti for blocking solar panels sunlight)Nonpossessory interests; rights to use anothers 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 intend

to be permanent/irrevocable. Can be bought & sold.

Affirmative (like a license but distinct in that license is just aprivilege rather than an interest in land) or negative (confinelight, 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 canreserve easement in 3 rd party when selling land to B. In gross

Exclusive apportionable (Henley v Continental Cablev easement does not exclude TV wires; interpreted broadlypublic policy benefits as well)

Not exclusive (grantor can still use) not apportionab

Appurtenant (presumed) (Green v Lupo reasonabl

on motorcycle activity imposed to avoid greater burden onservient estate than originally contemplated in easement gra

BURDEN runs w/ servient estate if Writing Grantors (servient) intent (express/implied)

Must not exceed scope Future owners notice (actual, constructive, inquiry)BENEFIT runs w/ benefited estate if Grantors intent (express/implied) (Cox v Glenbrook

presumed appurtenant so subdivisible; road improvemepermitted to extent consistent w/ covenant but not widenbe/c wasnt w/in grantors intent)

Implication:

Easement by estoppel : revocable license becomes irrev

be/c of reliance. Holbrooke v Taylor (Taylors relied onlicense to improve only access road to house).PermissionReliance

Constructive trust : (as a remedy) created by operation

law to avoid unjust enrichment where party was wrongfully(mistake/fraud/breach) deprived of some right. RaseMountain Ranch (new owner of cabins around lake tries toevict tenants but constructive trust protects them). NON-permanent (as opposed to EE)PermissionReasonable reliance/investmentEquity considerations

Easement from prior use : Granite Properties Limited Manns (easement to driveway for trucks to turnaround uphbased on reasonable necessity & permitted prior use)Previous common ownershipVisible use before conveyance Put owner on notice Continuous & permanentReasonable necessity Sliding scale more notice, less necessity

Easement by necessity : Finn v Williams (landlocked p

Previous common ownershipAbsolute/strict necessity

Prescription: (Community Feed Store P uses part of neighbors land to turn truck around); no exclusivity needed asAP.

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)

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Property outlin Abandonment AP/prescription Frustration of purpose Changed conditions generally do NOT apply to easements ( but

see El Di covenants) Estoppel Marketable title acts

License revocable at will so generally not classified as servitudesthough they really are a kind of servitude. Cannot be freely revokedunless:

Coupled w/ an interest

Transferable (as with theater tix)

Easement by estoppelConstructive 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

ActualConstructive (recorded)Inquiry (obvious from reasonable inspection)

Touch & concern both servient & dominant estateAffects 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 canonly get injunction); *** does not exist if covenant is in alease 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 applyto commercial use & building structure)

Terminating covenants/Avoiding enforcement:

Changed conditions (El Di v Town of Bethany Beach restaurantstarted in Christian beach community and wants liquor licenseagainst covenant)

Relative or undue hardship; public benefit (Blakeley v Gorin ) Acquiescence Abandonment, Unclean hands Estoppel Laches (unexcused delay in enforcing covenant)

Terms of covenant merger? Release? Prescription Public policy violation Marketable Title Acts

Possessory interests, present & future (freehold feesor life estates & nonfreehold estates for years,periodic estates, estates at will, tenancies at sufferance)

FSA (no future interest). to A; to A and her heirs; to A in fee

simple Defeasible (revocable) fees : present interest terminates upon specified

event triggering future interest: (MAJ: transferable)In grantor or her heirs FSD w/ possibility of reverter. so long as; while; during;

until; unless FSSCS w/ right of re-entry/power of termination. provided

that; on condition that; but if

In 3 rd Party

FSSEL w/ executory interest (might be shifting or springing ).until (or unless) then to; but if then to; so long asthen to

Life estates (lifelong lease). for life; for life then to

In grantor reversion.

In 3 rd party remainder Vested

Absolute not subject to change

Subject to open may be divided among persons born after conveyance. MAJ: close class @ termination of LE.

Subject to divestment may be destroyed by an event thatoccurs after the conveyance in which case might shift toanother 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

Rules (to promote marketability):

DOWT exists as rule of construction only. Cant create remainder in grantors heirs after a LE; effectively a LE w/ reversion in grantor and her heirs. O to A for life, remainder to Os heirs interpreted asO to A for life, reversion in O. Modern result yields futureinterest to heirs.

Shelleys Case abolished. Cant create remainder in LE holdersheirs; effectively FSA is grantee/LE holder. O to A for life,remainder in As heirs interpreted as O to A in FSA. Modernresult yields LE w/ contingent remainder.

Fee tail keep in family. Careful drafting can avoid (To A and theheirs 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 countywanted to sell it and relocate so heirs wanted remainder. Courtdeemed deed ambiguous in that no clear language indicating FSDor 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 itsold and grantor brought re-entry to reclaim land but interest wasnot 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 wasvalid since intent was to prevent creditors from clawing assets)

Trusts & Cy Pres : if purpose becomes impracticable or otherwiseviolative of a rule (e.g., RAP)

No New Estates (Johnson v Whiton land to go to children onfathers side when grantee dies but instead given FSA)

No Unreasonable Restraints on Alienation: forfeiture or promissory> disabling. Total restraints uniformly repugnant to fee (NorthwestReal Estate v Serio real estate co. right of first refusal upheldbecause needed to make up its investment so high classneighborhood 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 charitablegiving)

RAP : interest must vest w/in 21 years of a life-in-being at itscreation. Applies to:

Executory interest Contingent remainder condition precedent Contingent remainder unascertained person Vested remainder subject to open

Does NOT apply to all future interests in grantor and vestedremainders in 3 rd party: Reversion

Possibility of reverter Right of entry Vested remainder absolute Vested remainder subject to divestment

Fertile octogenarian: O to A for life, then to As children for

life, then to As grandchildren Unborn widow: O to A for life, then to As widow for life, then

to As surviving descendants

Rules (to Promote Social Welfare, Equality & Liberty):

Racially restrictive covenants: Shelley v Kramer (state courtsenforcing covenant to stop 2 willing parties from contractingconstituted state action and violated = protection of 14 th Amend) But see Evans v Abney (GA state court decision to dissolve

discriminatory trust did not constitute state action; GA had togive park back to heirs be/c discriminatory covenant in will couldnot be enforced or reconciled via cy pres )

Restraints on Marriage: Lewis v Searles (Marriage restraint not heldvoid as against public policy because of support exception) But see Shapira v Union National Bank (restraint on religion on

spouse held enforceable be/c no guaranteed right to inheritance) Leaseholds (term of years, periodic tenancy, tenancy at will no

longer allowed, tenancy at sufferance)

Eviction - Vasquez v Glassboro Service Assoc (migrant farm wor tenant & contract evidenced little bargaining power w/unconscionable terms. Could not be evicted w/o reasonable notic

Implied Warranty of Habitability Javins v First Nationa lCorp

Common Ownership each has an undivided interest to posseswhole. Both TIC & JT free to transfer interest w/o co-owner consent. Tenants in Common (TIC) presumed if ambiguous since less restrictiv

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 cant 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 remaininJTs 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 doessever JT but death of lessor severs lease)

Tenancy by Entirety: MIN JT only avail to married couples; canttransfer interest w/o spousal consent

Takings : 5th & 14 th Amend. prevent (i) taking (ii) for public use (iii) wjust 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 developinadequate to fulfill public purpose)

Basic fairness & justice (Armstrong v US)

Ad hoc test (Penn Central v NYC air rights deprivation taking) Character of government action

More likely a taking: Forced permanent physical invasion of property (Loretto

law requiring landlords to allow cable box installation taking bpermanent physical occupation; Causby airspace servitude ataking be/c too low to ground frightening chicken; Nollan taking found when regulatory commission required beachfrontowner to grant public easement as a condition for being able toexpand house)

Extraction of a benefit for the good of the community or a ftransfer of property rights from A to B (Babbitt affirmHodel total abolition of descent & devise rights a taking)

More likely to be held to be a legitimate application of police pownot requiring compensation Regulation of property use in a manner that achieves an

reciprocity of advantage (Euclid zoning law, which reducvalue of previously industrial land by 75% denial taking)

A limitation on property use designed to protect the commfrom harm or to respond to negative externalities (Keystone)

A choice between incompatible property interests (Miller vSchoene cedar trees; Keystone mining preclusion a taking)

But see Department of Agriculture and Consumer Services

Mid-Florida Growers (state had to pay to destroy orange tr But see Pennsylvania Coal v Mahon (Keystone w/ opposit

result statute preventing coal co. from mining not a takingbe/c protected common welfare surface support)

Heart of Atlanta Motel v US (requiring hotel to accept patrregardless of race taking)

Judicial Takings still unanswered. Stop the Beach RenouInc. v. Florida Department of Environmental Protection (currentlybefore SCOTUS question is whether Florida's Supreme Courtviolated the US Constitution when it ruled that the state did not hato pay compensation to beachfront landowners adjacent to a beachrestoration project)

Economic impactMore likely a taking: Regulation denies the owner any economically viable use of th

land (Lucas no beachside SC building statute a taking unlessstate can justify it using background nuisance principles)

Regulation destroys almost all the value of the property in amanner unjustified by a sufficient public interest

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Property outlinMore 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 owners investment(Keystone, Penn Central)

Diminution in value, even if great, is justified by a sufficientlystrong public interest in protecting the public from harm(Keystone; Andrus v Allard statute prohibiting sale of eaglefeathers not a taking)

Interference w/ reasonable investment-backed expectations

More likely a taking:

It interferes with vested rights , such as investments based onreasonable reliance on prior regulatory approvals or laws unlessthose regulations can be justified as preventing a nuisance or other harm caused by the property use (Kaiser Aetna govtwanted to open marina to public upheld right to exclude as coreproperty right; Pumpelly v Green Bay statute authorizing canalco. to build a dam and flood Ps land was per se taking)

It interferes with an existing present use of the propertyMore 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 owners reliance on the continuation of prior law was unreasonable

The regulation of a contractual relationship rather than a forcedtransfer of property interests from one person to another (Yee reaffirmed Block; Block v Hirsh anti-eviction law permittingtenants to remain was not a taking)

Per se (categorical) takings (SEE ALSO p. 23 physical invasion Vabolition of core property right V total taking)

Permanent physical invasions of property (Loretto)

But see Pruneyard (though a physical invasion, not a taking be/cnegligible economic impact and temporary invasion)

Regulations that completely deprive an owner of all economically

viable use of her property [unless] background principles of nuisanceand property law independently restrict the owners intended use of theproperty. (Lucas)

But see Palazzolo (permits denied to build on waterfront RIproperty); Tahoe-Sierra Preservation Council v Tahoe RegionalPlanning Agency (temporary moratorium still a taking though onlytriggered 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; doesnt

interfere w/ use or economic value (certain less so)

Pruneyard (CA Supreme Court held speech protected in malls)

Yee (mobile home residency law taking)

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 tostrangers was a taking per NY Supreme Court)

Intellectual PropertyCopyright Act, 17 USC 101 grants owners of original works of authorship that are fixed in a tangible medium of expression exclusiverights 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/cmostly 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 PeopleSlavery

Dred Scott v Sanford Slaves citizens entitled to constitutional

protection. MO Compromise held unconstitutional.

State v Mann shooting slave batterySurrogacy

Baby M (surrogacy K void as against public policy)

But see Johnson v Calvert (genetic mother wins over gestationalmother; looks to K)

Frozen Embryos

Rights-based analysis

Davis v. Davis (embryos are somewhere in between people andproperty but that parents nevertheless have an interest in the ova sohave joint-control over their disposition) But see J.B. v M.B. (mothers parental right not to procreate

trumped fathers competing parental right to procreate); Kass v Kass (expressing it differently, woman would always havecontrol of the pre-embryos in a divorce proceeding on groundthat once they were fertilized, husband had no right to force wifeto stop pregnancy!)

Contract based cases

A.Z. v B.Z. (contract granting ultimate control of fertilized ova towife unenforceable because it violated public policy against forcinga person to become a parent against his/her will.)

Human Remains

Wana the Bear v Community Construction, Inc. (remains weredisinterred and Indians asking for property to be recognized as acemetery to preserve them, but relief not granted because the land wasno longer a graveyard due to interrupted use once it was turned over tothe city. Partly overturned by CA statute expressly protectingAmerican Indian burial sites.) See also People v Van Horn (upholdingconstitutionality of said statute and requiring an archeologist to returnobjects).

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

First possession & labor Utilitarianism, social welfare & efficiency

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 & fairnessRights theories - as defined by justice, community values, historicaltraditions, the nature of human beings (natural rights), equalprotection of all members of society (socialcohesion/welfare/cooperation, Kant), individual autonomy andhuman 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 totalexclusion 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) Satisfying human needs or ensuring distributive justice: Nancy Fraser;

Frank Michelman