part of “public trust/domain” held by Congress

• 
  2. State of OR ex re. Thornton – Public Trust & Breach fronts - CUSTOM
  
  • 
    Issue: Who owns dry-beach area? Public trust or beach home private owners?
    
  • 
    Facts- Private landowner fences off dry sand area – (Implication – beachfront properties , hotels, won’t be able to guarantee exclusive right to “private” beach to their patrons)
    
    • 
      Spectrum-
      
      • 
        Vegetation area immediately next to property = clearly private
        
      • 
        Wet sand area where water touches = clearly public
        
      • 
        What is status of in between dry sand area?
        
      • 
        *Longstanding custom in Oregon for dry sand area to be public rec. area
        

• 
  Rule & Analysis - What constitutes valid governing custom?
  
  • 
    1. Ancient – “have been used so long ‘that the memory…runs not to the contrary”
    
    • 
      Here, this custom has been in place for a long time.
      
  • 
    2. Excercised w/o interruption
    
    • 
      Here, pub. use of dry sand area has never been interrupted by private landowners before
      
  • 
    3. Use must be peaceable and free from dispute - Here, Yes
    
  • 
    4. Reasonableness – public has always made us of land in way approp. to the land & the uses of the community
    
    • 
      Here, when inapprop. uses have been detected, municipal officers have intervened to preserve order
      
  • 
    5. Visible boundaries
    
    • 
      Here, character of the land has clear boundary – dry sand area relative to wet sand & veg. areas
      
  • 
    6. Custom must be obligatory
    
    • 
      Here, dry sand area has been used, as of right, uniformly w/ similarly situated land elsewhere;
      
    • 
      Public’s use has never been questioned by an owner as long as public remains on dry sand area/ did not trespass toward vegetation line (clearly private property)
      
  • 
    7. Custom must not be repugnant, or inconsistent, w/ other customs or w/ other law
    
• 
  Concl – dry sand area between vegetation & wet sand area belongs to public domain pursuant to local custom. (public wins prescriptive easement – like A.P.; gives public right to use this sand area)
  
  • 
    *Reflects broader trend in favor of public-access beaches.
    

• 
  (Rose) Critics of Public Trust Doctrine- Waterfront cases- waterfront has become a commons in which no one has incentive to purchase property/invest in land; tragedy of the commons deterioration, waste of open-access resource
  

• 
  (Rose) Rationale for Public Trust Doctrine:
  
  • 
    , rec. activities = social glue , not just for people on the beach, but for society at large
    
  • 
    Public trusts accrue positive social externalities
    

• 
  Alt. Rationales for Public Trust Doctrine
  
  • 
    1. Theory of plenteous goods- doctrine governs things (like waterfronts) that are so plentiful that it would be too inefficient to create system of resource management
    
  • 
    2. There’s market failure when there are large number of parties involved b/c private collective action is not possible.
    

2. 
   Owner Sovereignty and Its Limits
   
   1. 
      Criminal Remedies
      

• 
  1. People v. Olivio (3 cases)
  
  • 
    Issue: Can someone be charged w/ larceny if they are apprehended w/o leaving the store?
    
  • 
    Concl: Yes. Thief’s mere depriving owner of possession of the goods (w/o taking good away) is enough to count as theft. Merely acting w/ respect ot property in way that’s inconsistent w/ owner’s property ownership rights supports larceny conviction.
    
  • 
    Rule : central component of larceny is actor’s intent to violate owner’s property rights.
    
    • 
      (However, larceny isn’t all intent- D must move object- even if it’s just a few steps- to commit larceny (“asportation” required.”)
      

• 
  2. State v. Shack
  
  • 
    Facts:
    
    • 
      Tedesco owns farm, hires seasonal migrant workers who stay in “camp” on his property
      
    • 
      2 migrant aid workers (working for partially public funded org.(, incl. Shack, come on T’s property to visit (1 dr., 1 atty.)
      
    • 
      T confronts aid workers, doesn’t let them visit workers outside of his presence;
      
    • 
      Shack doesn’t comply, is arrested/charged w/ trespass
      
  • 
    Held: owner’s right to exclude does NOT incl. right to exclude the (quasi-public) migrant workers
    
  • 
    Principles:
    
    • 
      Property ownership/right to exclude NOT ABSOLUTE. Ct. takes standard approach to property, as opp. to black-letter rules.
      
    • 
      Ct. weighs human needs of migrant workers against T’s property rights to exclude; ultimately migrants’ rights win out.
      
    • 
      Owners must use property “so as not to harm another’s”
      
    • 
      Property law doesn’t just exist to protect owners’ right to exclude/sovereignty, but also serves human ends
      

2. 
   Civil Remedies
   

• 
  1. Civil Remedies for Protection of Personal vs. Real Property- overview:
  
  • 
    A. Personal property protection remedies:
    
    • 
      Replevin – spec. performance
      
    • 
      conversion – dam’s
      
    • 
      TTC -dam’s
      
  • 
    B. Real property protection remedies:
    
    • 
      Trespass (protects possession)
      
      • 
        Dam’s
        
      • 
        injunction
        
    • 
      Nuisance (protects interest in use & enjoyment of land)
      

• 
  2. Intel Corp. v Hamidi
  
  • 
    Issue –
    
    • 
      Can intel get injunction against former disgruntled employee (to stop sending critical e-mails of the co.)?
      
    • 
      Does Intel’s alleged econ. harm of emails distracting employees count as “harm in fact” required for TTC? (No harm to co. servers alleged.)
      
  • 
    Concl- No. Intel not entitled to injunction.
    
  • 
    Rule: Injunction for TTC requires P to have harm in fact
    
  • 
    Facts
    
    • 
      Hamidi = former Intel employee who criticized Intel employment practices via Intel’s e-mail system
      
    • 
      Hamidi’s communications to individ. Intel employees caused no phys. damage nor functional disruption to co. computers; did not deprive Intel of use/enjoyment of its computers;
      
    • 
      Message contents merely caused “discussion among employees and managers”
      
  • 
    Analysis
    
    • 
      No injury-in-fact b/c no actual damage to co. computer system
      
    • 
      No security breach by Hamidi.
      
    • 
      Alleged econ. dam’s of distracted employees insufficient to satisfy TTC element of harm-in-fact.
      
  • 
    Policy: Bright-line harm-in-fact element of injunction for TTC is efficient
    
  • 
    Scholarship: Maj. echoes Lemley: pro-open-access of e-property
    
    • 
      impractical to treat Internet, e-resources like servers like real property (as dissent wants)
      
    • 
      Trans. costs too high to get permission to use multiple, innumerable servers or to use 1 server properly
      
    • 
      Positive network externalities of internet; we want it to be open, free
      

• 
  Intel Dissent: Pro-Parcelization /Owners Right to Exclude for E-Property
  
  • 
    Analysis
    
    • 
      Intel’s Server = “Intel’s castle-“ like real property; should be treated like that
      
    • 
      Intel had right to enjoy a server free from disgruntled employee’s interference / to block employee’s unwanted messages
      
    • 
      Although gen. rule = injunction relief requires harm in fact, Exception to rule where injunctive relief is appropriate: repetitive trespasses
      
  • 
    Concl- Ct. should have granted intel injunction.
    
  • 
    Reflects Epstein scholarly school-
    
    • 
      Pro-exclusion & parcelization of e-property
      
    • 
      web = like phys. space (419)
      
    • 
      Server = business investment which is socially, economically useful
      
    • 
      To encourage such investments, law must examine servers as one would real property & offer same property protections
      

3. 
   Self Help
   

• 
  Self-Help Principles:
  
  • 
    EFFICIENCY
    
  • 
    Person in possession of property generally can use reasonable force to prevent or terminate TTL or TTC.  self-help w/o resorting to judic. system
    
  • 
    Controversy: use of self-help to recover property once owner has lost possession.
    

• 
  1. Berg v. Wiley
  
  • 
    Issue: Was LL’s act of self-help of repossessing his restaurant property from lessee/changing locks after tenant bviolated lease valid?
    
  • 
    Concl: No. Wiley’s entry was unlawful.
    
  • 
    Rule: Forcible entry and detainer statute (FED) – allows LLs expedite repo. Of their property from breaching tenant thru special expedited judic. proced (efficiency). LL must show:
    
    • 
      (a) right of possession; AND
      
    • 
      (b) his means of reentry were peaceable.
      
    • 
      state statute (maj. rule) - self-help is never available for LL to dispossess tenant who’s [1] in possession AND [2] has not abandoned or surrendered premises
      
  • 
    Analysis:
    
    • 
      Wiley’s self-help measures of locking Berg out w/ police officer present circumvented FED expedited judicial procedure
      
    • 
      Jury correctly found that Tenant/Berg was in possession of the restaurant, NOT LL/Wiley
      
    • 
      Thus, Wiley’s self-help repo. of the property thru lockout of Tenant/Berg was wrongful
      

• 
  Facts: (Berg = tenant; Wiley = LL)
  
  • 
    Lease specified that tenant would make no changes to restaurant property w/o prior written permission from LL/Wiley
    
  • 
    Berg breaches lease by remodeling restaurant/operating restaurant in state of disrepair & in violation of health codes
    
  • 
    (Berg goes away- unclear whether Health Dept. shut down restaurant or if she abandoned)
    
  • 
    Wiley came in Berg’s absence & tried to change the locks (w/ cop present); she caught him, objected, & he left, leaving locks unchanged
    
  • 
    Later Wiley comes back surreptitiously, hiding outside restaurant, fearing further destruction of his restaurant building;
    
  • 
    Berg calls sheriff; Wiley called police
    
    • 
      Fact that both T & L called officers = T & L trying to avoid escalation into violence
      
  • 
    Later Wiley successfully changed restaurant locks w/ officer present then eventually re-lets the property to someone else.
    

• 
  2. Williams v. Ford Motor Credit Co.
  
  • 
    Issue: Was repo. of car valid self-help?
    
  • 
    Concl: Yes.
    
  • 
    Facts:
    
    • 
      Husband bought car – it was in wife’s name also
      
    • 
      Couple divorced- husband remained responsible for payments, but wife retained possession of car
      
    • 
      Husband defaulted
      
    • 
      Repo. Men came & took car away at 4am
      
    • 
      Wife stopped them from going away w/ car before getting personal property out of the car, but didn’t stop them from taking car/object
      
  • 
    Rule- UCC Statute entitled Ford Motor Crdit co. to
    
    • 
      [1] “take possession of the collateral…..
      
    • 
      [2] w/o judicial process
      
    • 
      [3] if this can be done w/o breach of the peace”
      
    • 
      Policy rationales:
      
      • 
        Judicial economy
        
      • 
        **Avoids uncertainty among secured parties - encourages lenders to make loans, b/c they know that in event of default, they have legal, est. way to repossess the collateral
        
  • 
    Analysis -No breach of the peace here – wife raised no objection to the repo. men that would escalate into violence
    

• 
  Williams Dissent
  
  • 
    Concl – Invalid self-help under circumsts.
    
  • 
    Analysis
    
    • 
      Wife did not object b/c she was in very vulnerable position. She was 1 single woman (presumably multiple repo. man), early at 4am. She did everything she could to object given this (requesting to get her personal stuff out of the car.)
      
    • 
      Maj.’s reasoning incentivizes violence- Had wife breached the peace by objecting, then ct. would have held in her favor – this incentivizes breaches of the peace that ct. should be trying to discourage
      
    • 
      Jury could reasonably have found that there WAS breach of the peace indicating wrongful self-help measures by Ford Credit Co. repo. People
      

4. 
   Necessity - Exception to Right to Exclude
   

• 
  Facts: D = owner of dock, P = sailor
  
  • 
    Storm; P moors ship on D’s dock to avoid risking his life
    
  • 
    D’s employee unmoors P’s boat from dock
    
  • 
    P injured & boat damaged
    
• 
  Principle: Ct. weighs P’s private necessity to trespass during storm, danger to his life by mooring his boat to D’s dock vs. D’s right to exclude people from his dock/private property
  
• 
  Concl – right to exclude not absolute
  
  • 
    P’s private necessity to trespass considering danger to his life trumps D’s right to exclude;
    
  • 
    Owners recourse after the fact: D could negotiate later with P for payment for service use of his private dock…or sue for damages
    

5. 
   Custom- Exception to Right to Exclude
   

• 
  Issue: Does hunting in these customary circumsts. trump owner’s right to exclude?
  
• 
  Facts: P instructed D not to hunt on his Unenclosed forested/ UNimproved land; D hunted anyway
  
• 
  Concl: Yes. Custom allows hunting under these circumsts.
  
• 
  Analysis
  
  • 
    Focuses on custom of allowing hunting on these lands
    
  • 
    “No harm, no foul” –
    
  • 
    Landowner can overcome custom by posting sign clearly indicating NO TRESPASSERS (if its permitted by local statute)
    
• 
  **See also:
  
  • 
    Whaling case (first possession) - supra
    
  • 
    Beach/wet sand area case - supra
    

6. 
   Public Accommodations Laws; Anti-discrim. laws - Exception to Right to Exclude
   

• 
  Background: Title II of Civil Rights Act of ’64 – defines “public accommodations” expansively
  
  • 
    Inns, hotels, motels- unless 5 or fewer rooms & Owner lives on premises
    
  • 
    Restaurant, caferias, or lunch counters
    
  • 
    Any motion picture house, concert hall, stadium…..or other place of exhib. Or entertainment
    
  • 
    DOES NOT incl.
    
    • 
      private clubs not open to pub.
      
    • 
      “common carriers” – today that would mean public transport. –Not incl. here b/c this falls under Congress’ interstate comm.. reg. power
      
    • 
      retail establishments
      
  • 
    (have passed own similar pub.c accommodation laws.)
    

• 
  1. Uston v. Resorts Int’l
  
  • 
    Issue: Does casino have right to exclude card counter, even if it’s unauthorized by state statute?
    
  • 
    Concl: No, since it’s unauthorized by statute.
    
    • 
      Balancing/Public Policy: [1] Owners’ right to exclude is substantially ltd. by a competing C.L. [2] right of reasonable access to pub. places
      
    • 
      Shows trend of expansive def. of “public accommdation” for anti-discrim. laws (usually doesn’t incl. entertainment venues)
      
  • 
    Facts
    
    • 
      Uston = card counter in Atlantic City
      
    • 
      Resorts consulted w/ Commission chairman that said no statute or reg. barred Resorts from excluding card counters from Casino  Resorts kicked him out
      
  • 
    Rule: Casino Control Act (NJ state statute) gives Casino Control Commission (CCC) authority to set rules for casino games – but it did not prohibit card counting
    
  • 
    Analysis
    

• 
  Subtext: Casino = public accommodation
  
• 
  Since CCC alone authorized to exclude casino patrons, and statute had no rule excluding card counters, then hotel exceeded its right to exclude Uston just for “successfully playing the game under the existing rules”
  
• 
  Distinguishes card counting from “disorderly” conduct that threatens security –( under those situations, public accom. Would have right to exclude, but that’s not case here )
  

• 
  Other jds. have held opposite from Uston Ct. – Brooks, 7^th Cir.
  
  • 
    Held: horse tracks COULD discrim. against “self-proclaimed expert handicappers”
    
  • 
    Reasoning: businesses will only discrim. if it is in their business interests- Thus, entertainment venues’ market interests of not alienating segments of public will discourage discrim.
    

• 
  2. Shelley­- Anti-discrimination Laws (1948)
  
  • 
    Issue: Can courts enforce private agreements (restrictive covenants) aimed to prevent blacks & other minorities from owning private property in a neighborhood?
    
  • 
    Concl: No. (Although 14^th Amd. (EP Cl.) does NOT directly bar private discrim.) court-enforcement of a private agreement that’s discriminatory is state action  Thus ct.-enforcement of restrictive covenant unconstitutional.
    
  • 
    Facts
    
    • 
      Shellys (African-Americans) purchased land from Fitzgerald
      
    • 
      Fitzgerald was in community that has restrictive cov.
      
    • 
      Other property owners sue Shellys , seeking relief that court prevent Shelleys from taking possession of property; that court divests Shelley of title pursuant to restrictive covenant
      
  • 
    Crticism- Hole in SC arg: ct. seems to say self-help enforcement of racial restrictive covenant IS constituional,( b/c it’s not “state action,” ) while only judicial enforcement is unconstitutional (which IS state action)
    

• 
  3. Fair Housing Act (1968): illegalized unilateral action refusing to sell a house on the basis of race (and other categories) – making both judicial AND private enforcement illegal
  
  • 
    (a) discriminatory, false rep. of availability - You can’t say you have apt. for rent, then if Hispanic calls, you say No, then if white calls, you say No
    
  • 
    (b) you can’t incl. terms & conditions that would exclude protected classes of people – Ex. you can’t have term that you don’t want to rent to people w/ children
    
  • 
    (c) – No discrim. in advertising
    
  • 
    (e) – No block busting – developers spreading rumors that minorities would move into neighborhood; whites would fear dec. market values & sell below market value to get out; developers would make subst. profits
    
  • 
    Exceptions:
    
    • 
      Sale/rental of single-fam. home by owner himself– not thru real-estate agent/business
      
    • 
      Mrs. Murphy exception- when LL lives in building w/ no more than 4 units & is renting them out
      
    • 
      **Sometimes ct. won’t enforce discriminatory, restrictive covenants as matter of pub. policy, even if it doesn’t fall under FHA.
      
• 
  4. Attorney General v. Desilets
  
  • 
    Issue: If LL has willingly rented to single, married, and divorced persons, but refused to rent to unmarried cohabitants (“fornicators”) on religious grounds, is LL discriminating unlawfully based on marital status?
    
  • 
    Concl: SC sympathetic w/ Ps. On remand, trial ct. will have to balance these 2 factor:
    
    • 
      (1)Burden on similarly situated Ds in renting to people who violate their alleged religious beliefs;
      
    • 
      (2) State’s interest in promoting policy of statute: ensuring fair housing access for rental units for unmarried people. (even though it doesn’t explicitly incl. unmarried cohabitants)
      
  • 
    Facts
    
    • 
      Ds = Roman Catholic renters; Ps , represented thru AG, = unmarried couple that wanted to cohabit, rent unit from Ds
      
    • 
      Ds have rented to married couples before
      
    • 
      Ps are claiming discrimination
      
    • 
      Ds claiming they are not discriminating against “unmarried” people based on their unmarried status, but rather because their conduct of fornicating
      
  • 
    Analysis
    
    • 
      Ct. rejects Ds’ arg. b/c the only reason Ds are not renting to Ps is b/c they are unmarried/it violates Ds’ Catholic beliefs
      
    • 
      “The controlling & discriminating difference between (unmarried & married couples) is the marital status of the 2 couples (implicit: married couples, like unmarried couples, have sex )
      
    • 
      Mass. Statute aims to prevent rental discrim. based on marital status  Unclear if “marital status” statute lang. covers discrim. against unmarried cohabitants
      
• 
  AG Dissent: Ds’ interest in free exercise of sincerely held religious beliefs definitely outweighs state interest in promoting statute’s policy goals
  
• 
  Commentary – purpose of statutes that prohib. discrim. in private housing markets:
  
  • 
    1. Increase housing opportunities/access for people in protected classes (esp. racial minorities)
    
  • 
    2. Eliminate personal harm/indignity suffered by members of protected groups when they’re rejected by LL/seller on grounds of their member of marginalized group
    
  • 
    3. Eliminate social message of inferiority/subordination sent out to larger community when LLs/ sellers discriminate based on persons’ membership in protected groups
    

1. 
   Licenses - Powers of sovereign owners as “gatekeeper”
   

• 
  Principles
  
  • 
    Owner’s power to waive his own right to exclude;
    
  • 
    Disting.licensees and trespassers- Licensees are NOT trespassers, but may BECOME trespassers if they exceed scope of license
    
• 
  Paradigm cases: Can entertainment venues- theaters & racetracks- (which are NOT public accommodations) – exclude their patrons/ticket holders thru ejectment?
  
  • 
    3 approachs: A-C below. Morrone, Hurst, approach C.
    
  • 
    trend: treating licenses given for consideration like a K, and to determine/enforce the K terms to resolve the dispute
    

• 
  1. Morrone v. Wash. Jockey Club of DC - Approach A to licenses in entertainment venues
  
  • 
    Issue: Can racetrack exclude ticket-holding patron by ejectment?
    
  • 
    Principles: Yes.
    
    • 
      tickets to entertainment venues are licenses, which are always revocable (NOT property rights in rem)
      
    • 
      Thus, only remedy for ticket purchaser is breach of K claim for damages…NOT specific performance by self-help
      
  • 
    Facts: Horse racing track kicked P out after he’d bought ticket
    

• 
  2. Hurst v. Picture Theaters – Approach B to licenses in entertainment venues
  
  • 
    Issue: Can movie house exclude ticket-holding patron by ejectment?
    
  • 
    Principle: licenses are irrevocable (opp. view of Morrone ct )
    
  • 
    Facts;P bought ticket at movie house, then theater porter & policeman ejected him
    

• 
  3. Approach C to licenses in entertainment venues:
  
  • 
    Ticket creates (a) license AND (b) grant to see the entertainment
    
  • 
    This combo. not revocable w/o good cause.
    

• 
  4. ProCD, Inc. v. Zeidenberg - software “shrinkwrap” licenses
  
  • 
    Issue: must phonebook software buyer obey co.’s shrinkwrap licenses (incl. in package w/ software ?
    
  • 
    Principle: Yes.
    
    • 
      Shrinkwrap terms are treated like ordinary Ks. Thus, they ARE enforceable against consumer UNLESS their terms are objectionable on K law grounds (ex. unconscionability)
      
    • 
      Shrinkwrap terms & conditions Ks are NOT equivalent to exclusive in rem rights that can be preempted by copyright law
      

1. 
   Bailments - Powers of sovereign owners as “gatekeeper”
   

• 
  Principles:
  
  • 
    Power of owner temporarily transfer custody/possession (as “bailor”) to another (“bailee) for specific purpose while retaining ownership;
    
  • 
    Bailor transfers some ownership rights to bailee, incl. right to exclude others from the thing
    
  • 
    After bailment’s spec. purpose completed, it’s understood that bailee will return property back to owner.
    
  • 
    Owner-bailor free to resume possession at any time (UNLIKE lease – fixed time term)
    
  • 
    In personam relationship- often arise by K (implied or express)
    
  • 
    Ex. leaving clothes at dry-cleaner
    

• 
  Bailee’s duty of care for chattel injury/loss/theft– (Allen)
  
  • 
    Approach 1- for whose benefit was bailment?
    
    • 
      A. When bailment for sole benefit of bailor, then law requires only slight diligence on part of bailee, and makes him answerable only for gross neglect
      
    • 
      B When bailment for sole benefit of bailee (ex. bailor paid bailee), then law requires great diligence on part of the bailee, and makes him responsible for slight neglect
      
    • 
      C. When bailment for benefit of BOTH parties, law requires ordinary diligence on part of bailee, and makes him responsible for ordinary neglect
      
  • 
    Approach 2- Universal standard of “reasonableness” taking into account full circumsts., incl. (incl. for whose benefit bailment is )  [fact-specific]
    
    • 
      Did bailor pay bailee?
      
    • 
      Was bailment for benefit of bailee?
      

• 
  Bailor’s duty of care for misdelivery of bailed thing to 3d party  strict liability (Cowen)
  
  • 
    Both voluntary bailees AND involuntary bailees (finders) are strictly liable for misdelivery
    
  • 
    Policy:
    
    • 
      Disincentivizes bailee’s misdelivery to 3d parties
      
    • 
      Bailee in much better position to track down 3d party
      
    • 
      Disincentivizes collusion between bailee & 3d party to interfere w/ bailor’s property
      

• 
  1. Allen v. Hyatt Regency – bailments & theft
  
  • 
    Issue:
    
    • 
      A. Is relationship between garage quasi-public/private patron and garage operator a bailment-for-hire?
      
    • 
      Who assumes risk of car theft?
      
  • 
    Concl - Yes. Garage operator/Bailee must assume the risk of car theft
    
  • 
    Facts
    
    • 
      P locked car; car still got stolen from D/Hyatt garage
      
    • 
      Garage details: enclosed; only 1 entrance exit; open to public, where attendant/cashier sat (ct. assumes some security role)
      
    • 
      patrons took ticket w/ time stamp, which says that Hyatt assumes no responsibility for theft; (ct. negates for policy reasons)
      
    • 
      Some periodic security
      
  • 
    Rule – “bailment for hire by implication” (subtext – there’bailment is primarily for benefit of bailee here b/c bailor paid to park in the garage)
    
  • 
    Analysis
    
    • 
      A. Bailment? Yes. (see key facts above)
      
    • 
      B. Who assumes risk of car theft? Garage operator – Policy:
      
      • 
        Distributive justice: Garage operators (commercial entities) better equipped than garage patrons (consumers) to absorb risk of car theft
        
      • 
        Ct. gives little weight to disclaimer on the ticket
        
      • 
        Bailee in best position to track down stolen property, as last person who had custody of it
        

• 
  2. Cowen v. Presspich – bailments & misdelivery to 3d party (strict liability for bailee)
  
  • 
    Issue: Is Presspich’s status toward bond bailee, involuntary bailee, or stranger?
    
  • 
    Held: Presspich = stranger/finder/involuntary bailee relative to bond; thus, only has duty of ordinary care toward the bond.
    
  • 
    Facts: Presspitch worker gives P/Cowen’s bond to a 3d party he mistakenly believe is P/Cowen’s messenger, who cashes bond (Cowen  Presspitch for misdelivery)
    
  • 
    Rule– disting. between involuntary & voluntary bailees
    
    • 
      Voluntary-
      
      • 
        accepts bailee responsibilities (usually though K relationship)
        
      • 
        Has duty to deliver bailed article to the right person; Misdelivery to 3d party = strict liability
        
    • 
      Involuntary – has no duty of care to guard for the property at issue…UNLESS he exercises dominion over the thing, in which case he becomes voluntary bailee  owes duty of reasonable care over the thing; misdelivery to 3d party = strict liability
      
  • 
    Analysis –
    
    • 
      Here, Presspich rep. was involuntary bailee b/c he had no K-agreement w/ the bailor, even though he did assume possession of owner’s property (bond);
      
    • 
      Presspich only held bond for 15 secs., realized it was the wrong 1, then pushed it back through mail slot. That does not constitute “dominion” that would turn him into voluntary bailee.
      

• 
  3. The Winkfield - Can bailee recover for dam’s of bailor’s thing in bailee’s possession caused by 3d parties? (Yes)
  
  • 
    Issue – Can bailees recover damages from negligent 3d parties for dam’s to the bailed thing in their possession?
    
  • 
    Concl- Yes. Winkfield-wrongdoing 3d party is liable to Post/master (The Mexican), bailee, for damage caused to bailors’ (letter-senders’) property
    
  • 
    Facts – Collision between 2 ships- the Winkfield and Postmaster’s vessel Mexican
    

• 
  Principles
  
  • 
    Bailee’s (Mexican’s) possession = proxy for ownership as to 3d parties (Winkfield)
    
  • 
    Bailor’s (letter writers’) transfer of possession to bailee (Mexican) confers upon bailee rights to bring actions grounded in possession of the property against 3d parite.s
    
  • 
    In action against a stranger (here, Winkfield) for loss of goods caused by (stranger’s) negl, the bailee in possession (the Mexican) can recover value of the goods
    
  • 
    “Wrongdoer (Winkfield) who is not defending the title of the bailor is quite unconcerned w/ what the rights are between the bailor (letter senders) and bailee (Mexican), and must treat the possessor (Mexican/bailee) as the owner of the goods for all purposes, quite irrespective of the rights and obligations as between him and the bailor”
    

9. 
   Abandonment & Destruction - Powers of sovereign owners as “gatekeeper”
   

• 
  Abandonment Principles
  
  • 
    A. To count as abandonment of personal property, owner needs:
    
    • 
      (1) intent to disclaim possession ownership (w/ no intent of resuming it); AND
      
    • 
      (2) To perform some act manifesting that intent (to put world on notice)
      
  • 
    B. Full abandonment of land/real property usually not an option. (Pocono Springs Civic Ass’n, Inc.)
    
    • 
      Policy : avoiding negative externalities to society of abandoned land; Even if property had negative values to owner, it may have positive values to society that could’ve been optimized w/ transfer (sale to someone else)
      

• 
  Destruction of Property Principles
  
  • 
    A. Destruction of Personal property- (most common)- generally, a person is free to destroy his own property, even if it is wasteful destruction of positive-value asset (ex. Rolex)
    
  • 
    B. Destruction of Real Property (Eyerman)
    

• 
  Issue: Should ct. enforce P’s wishes in will to have her lavish home in nice neighborhood destroyed?
  
• 
  Concl- No.
  
• 
  Facts: P directed in her will to have her lavish home in nice neighborhood destroyed (made no commercial sense – subtext- to stick it to her relatives)
  

• 
  Analysis-
  
• 
  Focus on societal waste of complying w/ woman’s wishes - empty lot would be substantially less value than house
  
• 
  Destroying home  destroying beauty of historic. neighborhood  negative externality on whole community
  
• 
  Criticisms of this outcome – cts. shouldn’t interfere with owners’ freedom to destroy their property, even if it’s wasteful; there’s socially beneficial value in people knowing their wishes will be fulfilled after they die.
  

1. 
   Transfer (a.k.a. alienation) - Powers of sovereign owners as “gatekeeper”
   

• 
  Transfer Principles
  
  • 
    Owner’s right to eliminate his ownership, while creating ownership rights in another (“designating new gatekeeper”)
    
  • 
    Law promotes free alienability (exception: personhood issues- see above) as policy matter-
    
    • 
      Cts.. strike down total restraints on alienation (ex. “I sale painting to you on condition that you never sell it” void )
      
    • 
      Cts. more nuanced on partial restraints on alienation – they’re invalid only if they’re unreasonable.
      

• 
  1. Transfer by sale-
  
  • 
    Governed by laws of K
    
  • 
    Lauderbaugh
    
    • 
      Issue- Is retraint on transferring lake shore property reasonable?
      
    • 
      Facts- Homeonwers’ assoc. agreement = restraint restricting alienation of lake shore property ONLY to Assoc. members
      
    • 
      Rule: Partial restraints on alienation only invalid if “unreasonable”
      
      • 
        A. TO what extent does transfer limit restrain potential transferees? (Ct. wants to encourage restraint that is least limiting on the segment of market that can be buyers)
        
      • 
        B. How many substitutes are there for the transferee?
        
    • 
      Concl – No. Restraint on transfer invalid.
      

• 
  2. Transfer by gift
  
  • 
    Valid gift requires:
    
    • 
      (1) Owner’s donative intent; AND
      
    • 
      (2) delivery; AND
      
      • 
        *Must be unequivocal.
        
      • 
         clearly signals to world that transfer has occurred)
        
    • 
      (3) Acceptance
      

• 
  Irons v. Smallpiece
  
  • 
    Issue: Valid transfer by gift of horses from father to son?
    
  • 
    Concl: No b/c no delivery.
    
  • 
    Analysis:
    
    • 
      5 months pre-death, father promised son verbally he’d give gift of colts to his son (subtext: donative intent)
      
    • 
      Father also agreed to furnish hay to son to feed colts (it was expensive)
      
    • 
      Father never delivered colts to the son (but did deliver hay)
      

• 
  3. Transfer by will
  
  • 
    A. Will Principles –
    
    • 
      Formalities: Attestation by 2 witnesses; SoF
      
    • 
      If person dies intestate (w/o will), kicks in intestacy statutes (“default will” that tries to guess decedent’s wishes)
      
      • 
        designate decedent’s heirs (usually spouse, children, then remaining relatives).
        
      • 
        If there are no heirs and no will, property escheats to the state.
        

• 
  B. Gifts causa mortis (in contemplation of death):
  
  • 
    sub. for wills
    
  • 
    If (alleged) giver recovers, then gift rescinded & goes back to owner.
    
  • 
    Require unequivocal, actual delivery during donor’s lifetime (like other gifts) to be considered valid transfers
    
  • 
    Purpose of strict delivery requirement:
    
    • 
      1. Evidentiary – to prove giver’s intent to transfer property
      
    • 
      2. possession = strong proxy for ownership
      

2. 
   Forms of Ownership
   
   1. 
      Divisions by Time
      

• 
  Principles:
  
  • 
    Estates: property right that measures person’s interest in land in terms of duration, in terms of Present possessory estates (and Future possessory interest (interest that does not take possession until happening of future event)
    

• 
  1. Fee simple absolute (FSA):
  
  • 
    Has no natural end- unlimited duration
    
  • 
    Ex. O grants Blackacre “to Marge and her heirs” or “to Marge in fee simple,” or “to Marge.”
    
  • 
    Future interests: NONE
    

• 
  2. Life estate (LE):
  
  • 
    Comes to natural end with the death of a named person (usual holder of the estate)
    
  • 
    Alienable by gift or sale , but NOT by will
    
  • 
    Ex. O grants blackacre “to Marge for life, and then to Lisa.”
    
    • 
      Marge has life estate – ends upon her death.
      
    • 
      M’s interest followed by L’s remainder in fee simple
      
  • 
    Future interests
    
    • 
      a. “”O grants blackacre to M for life.”
      
      • 
        Future interest: reversion in O/grantor
        
    • 
      b. “O grants B to M for life, then to N.”
      
      • 
        Future interest: remainder in fee simple in N.
        
    • 
      c. O grants blackacre “to A for life, then to B for life, then to C”
      
      • 
        Future interests: B has remainder in life estate; C has remainder in fee simple
        
    • 
      d “O grants B to M for life, then to her adult children.”
      
      • 
        Future interest: contingent remainder (**subject to RAP) in adult children
        
    • 
      e. “O grants blackacre to M for life, then to N if [x Condition] occurs.”
      
      • 
        Future interest: contingent remainder (**subject to RAP) in N
        
      • 
        Contingent remainder can be in FSD, FSSEL, FSSCS – look for key lang.
        
    • 
      f. “O grants B to M for life, then to N, but if C occurs, then to K. “
      
      • 
        Future interest: remainder in N
        
    • 
      g. “O grants B to M for life, then to her children. [N is only child at time of grant]
      
      • 
        Future interest: remainder in N (**subject to RAP)
        

• 
  3. Defeasible fees: like fee simple, except they kick in future interests upon happening of a named contingency,
  
  • 
    a. Fee simple determinable (FSD):
    
    • 
      Ends automatically upon occurrence of named event, in which grant or grantor’s successor takes property (if event never happens, then FSD is like fee simple absolute)
      
    • 
      Future interest: (automatic) Possibility of reverter (in grantor)
      
    • 
      Ex. “O grants blackacree “to Springfield Law as long as it is used for instruction in law, [then to O].”
      
      • 
        Springfield law has FSD
        
      • 
        O has poss. of reverter. [whether he’s mentioned or not.]
        
    • 
      Key FSD “lang. of duration”: as long as, while, during, until, so long as
      

• 
  b. Fee Simple Subject to Condition Subsequent (FSSCS)
  
  • 
    Continues indefinitely except that upon happening of named condition
    
  • 
    Future Interest: right of reentry in grantor (non-automatic) - self-help or lawsuit
    
  • 
    Ex. O grants blackacre to Springfield Law, but if it is not used for legal instruction, then O has the right to reenter and take the premises.”
    
    • 
      S. Law has FSSCS
      
    • 
      O (grantor) has right of reentry
      
  • 
    Key FSSCS lang.: but if, condition that, provided that, provided however, if
    

• 
  c. Fee Simple Subject to Executory Limitation (FSSEL)
  
  • 
    Defeasible fee followed by interest reserved to 3d party (as opp. to grantor)
    
  • 
    Present possess. interest automatically ends by happening of named event
    
  • 
    Key FSSEL lang: same as EITHER FSD OR FSSCS.:
    
  • 
    Future interest: (automatic) executory interest in 3d party (in both ex. – Springfield Animal Hosp.)
    
  • 
    Ex 1- O grants blackacre “to Springfield Law as long as it is used for instruction in the law, then to the Springfield Animal Hospital.”
    
  • 
    Ex 2- O grants to Springfield Law, but if it is not used for instruction in the law, then to Springfield Animal Hospital.”
    

1. 
   Numerus Clausus
   

• 
  Cts. presume there is a fixed menu of property rights; parties cannot customize/create new ones like in K law
  
• 
  This system leads to optimal standardization (Merill)
  
  • 
    There’s larger # of (anonymous) actors in system of property rights than in system of K law
    
  • 
    Since we don’t know who these actors are, cts. concerned about ease of alienating (transferring) alienability
    
  • 
    1 party’s creation of a new property right (ex. time share in watch) increases info./trans. costs for prospective K partners and successors  this will make idiosyncratic right less valuable to potential buyers, and thus, they will pay less for such rights. (restrains alienability of property)
    
  • 
    Thus, allowing even 1 person in market for certain property to create idiosyncratic property right, means the info. processing costs of all persons who have existing OR potential interests in this type of property go up  external cost on other market participants
    
• 
  Prevents fragmentation, which restricts transfer of property in free market
  
• 
  Ex 1. Johnson v. Whiton-
  
  • 
    Royal’s will: After decease of all my children, I bequeath to Sarah and her heirs on her father’s side 1/3 part of all my estate…”
    
  • 
    Held: qualified fee simple title to Sarah (“on her father’s side”) invalid b/c it creates a new kind of inheritance beyond fixed menu of estates
    
• 
  Ex 2 Garner – Can lessor grant tenant lease “for life?”
  
  • 
    Maj. rule: construe interest as fitting in the closest of the estate system categories  life estate OR tenancy at will
    

* = SUBJECT TO RAP

1. 
   Conflicts Over Time
   

• 
  1. Waste Doctrine –
  
  • 
    When 2+ persons hold interests in single pieces of property, potential for conflict-
    
  • 
    Ex. Holder of present possessory interest of life estate favors current consumption/investments producing quick return; whereas holders of future interest of remainders will prefer long-term conservation of the asset
    
  • 
    Brokaw –
    
    • 
      Facts
      
      • 
        George had life estate in NY mansion overlooking Central Park, followed by contingent remainder in George’s daughter, subject contingent remainder in 3 of testator’s other children
        
      • 
        Testor’s son wanted to raze private mansion to build more profitable apt. building
        
      • 
        Future interest holders (George’s siblings) object to this plan;
        
    • 
      Held: George can’t raze the property against wishes of future interest holders (who object)
      
    • 
      Principle
      
      • 
        Present interest holder must turn over property to future interest holder(s) in substantially the same condition as he/she received it.
        
      • 
        Present interest holder must use resource reasonably during time of his interest. [STANDARD – NOT BRIGHT-LINE RULE.]
        
      • 
        Life estate (or ANY PRESENT POSSESSORY INTEREST) entitles interest holder to use of the interest , but NOT dominion (meaning he can’t “change the inheritance or the thing”). 
        
    • 
      App -Doesn’t matter that George intended to demolish home to create something objectively good- more profitable apts. He can’t demolish apt. b/c that would substantially change the property interest at expense of future interest holders’ interests.
      

• 
  2. Valuation of Interests:Time value of money – Money today is worth more than money in the future because of inflation. Ex. If you have remainder worth $100K 3 years from now, then it’s worth less in year 1
  

• 
  3. Restraints on Alienation
  
  • 
    Cts. hostile to such restraints because central part of owner sovereignty = right to transfer/against public policy
    
  • 
    If grant/conveyance has cl. limiting interest-holder’s right to alienate, ct. will strike (ex. “to A in fee simple, as long as A has no power to alienate” will be read by cts. as “to A in fee simple”)
    

• 
  4. RULE AGAINST PERPETUITIES
  
  • 
    Policy: invalidates interests that gives too much remote control to the “dead hand” of grantors who are long gone (/ avoiding aristocratic concentration of large interests within families by breaking those interests up)
    
  • 
    THE RULE: “No [future] interest is good unless it must vest…not later than 21 yrs. after some life in being at the creation of the interest.”
    
• 
  Step 1- does RAP even apply to this future interest?
  
  • 
    Future interests subject to RAP:
    
    • 
      A. Contingent remainders (both those based on condition that must be satisfied before vesting (ex. “passing the bar”) AND those based on identity of the remainder-persons (ex. gift to “children” who may not be born yet )
      
    • 
      B. Executory interests
      
    • 
      C. Vested remainders subject to open
      
      • 
        Ex. : O grants ‘to A for life, then to B if he passes the bar.”
        

• 
  A has life estate.
  
• 
  B has the contingent remainder.Once B has passed the bar, remainder becomes vested remainder (b/c it’s no longer uncertain whether B will satisfy condition).
  
• 
  Future interests immune from RAP: (vested interests upon their creation)
  
  • 
    A. Reversions in the grantor (express OR implied)
    
  • 
    B. Right of reentry in grantor
    
  • 
    C. Poss. of reverter
    

• 
  Step 2- determine life in being (a.k.a. measuring life)
  
  • 
    Person alive at time of granting/the interest’s creation who affects vesting of future interest. (doesn’t have to be named in instrument; can be more than 1; just need 1 that satisfies RAP for interest to be valid); cannot be an institution/corp.; must be an individual.
    
    • 
       If there’s no measuring life, future interest is invalid.
      
    • 
       Hint that there’s NO MEASURING LIFE: if condition is in the passive voice/there’s no person who affects vesting Ex. 1 “to A, but if weed is inhaled on the premises, then to B.” B’s E.L. has no measuring life b/c A’s actions do not affect vesting. No measuring life invalid)
      
    • 
      Ex. 2- “To City, so long as it is used as a library, then to S and his heirs.”
      
  • 
    RAP period: Point when measuring life dies, + 21 yrs. – That is RAP period. If there are multiple measuring lives (ex. several children), then RAP period is point when last child dies + 21 years.
    

• 
  Step 3: Will conditions of future interests (in which RAP applies) and/or identities of future interest holders become certain (vest) within RAP period?
  
  • 
    If no – invalid; that interest struck out
    
  • 
    If yes- valid
    
• 
  Step 4 – If RAP invalidates the future interest (struck out) – what are remaining present & future interests?
  

• 
  Savings clause: used to avoid RAP problems/specifies backup plan
  

4. 
   Conflicts Between Co-Owners (“Co-tenants”):
   

• 
  Principles- commonalities of ALL co-tenancies (tenancy in common and joint tenancies)
  
  • 
    Arrangements of property shared among multiple parties at 1 given time.
    
  • 
    Diff. shares of interest OK: Co-tenants (either JTs or TiCs) can own diff. fractional share of proceeds from the asset. (ex. A owns 50%, B owns 10%, C owns 40%  OK)
    

• 
  Restriction on exclusion of fellow co-tenants: Co-tenants CANNOT exclude each other, OR use or possess whole/portion of property exclusively. All co-tenants have equal and undivided right to the whole property.
  
• 
  Ouster:1 cotenant must necessarily exclude other cotenant from the property for ct. to find 1 cotenant has ousted the other. Not enough for 1 co-tenant to just exclusively use the commonly held property. (Gilmore)
  
  • 
    Ex. Gilmor - Held- Uncle DID oust niece, entitling her to damages, by completely overgrazing their co-owned land, despite her efforts to negotiate/ask him to stop (subtext: Coasian bargain). Thus, uncle necessarily excluded her from property by effectively preventing her from pursuing grazing.
    
• 
  Sales of interests: BOTH sets of tenants can unilaterally sell interest to 3d party
  
• 
  Remedies for disputes:
  
  Directory: outlines -> Property
  outlines -> Adil Khan Contracts Midterm outline- waldron
  outlines -> Remedies for breach of promise (1) The Interests Protected
  outlines -> Basic Process for Assessing Damages: 97 Select  interest that deserves vindication 97 a. Restitution 97
  outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1
  outlines -> Cases and Materials on Contracts
  outlines -> College of Science and Health
  outlines -> Evidence outline
  outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11
  Property -> Property Outline – Professor Kieff Property Law Theory
  
  
  
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