Prop Outline

Conversion taking property of another; the difference between crime and tort is the remedy- - the market value of thing taken at time of conversion Rule Against Perpetuities: The common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created. The purpose of the rule was to limit the time that title to property could be suspended out of commerce because there was no owner who had title to the property and who could sell it or exercise other aspects of ownership. If the terms of the contract or gift exceeded the time limits of the rule, the gift or transaction was void. The true form of the Rule against Perpetuities is believed to be this: no interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest. Another scholar who spent a substantial part of an academic lifetime attempting to bring order and add sense to the rule [against perpetuities], W. Barton Leach, described the rule as a technicality-ridden legal nightmare and a dangerous instrumentality in the hands of most members of the bar. The Rule Against Perpetuities is a rule against remoteness of vesting. A contingent future interest is invalid under the orthodox rule if, at the time of the creation of the interest, the circumstances are such that the contingency may go unresolved for too long a time. The Rule is not concerned with the duration of interests, that is, the length of time that they endure. It is not a rule against suspension of the power of alienation, nor a rule against restraints on alienation. It is not a rule that directly limits the duration of trusts.... The orthodox rule is satisfied if all contingent future interests are so created that they must vest, if they vest at all, within the perpetuities period. The common law Rule Against Perpetuities (modified by statute in some states) provides that no interest is valid unless it must vest within 21 years after lives in being when the interest was created. The rule is something of a misnomer. It does not limit the duration of a condition in a bequest, but rather limits the testator's power to earmark gifts for remote descendants.

Trespass on the Case: At common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence. This action was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business torts. - - Often shortened to case. The technical name of an action, instituted for the recovery of damages caused by an injury unaccompanied with force, or where the damages sustained are only consequential. An action brought to recover damages from a person whose actions have resulted indirectly in injury or loss; "a person struck by a log as it was thrown onto a road could maintain trespass against the thrower but one who was hurt by stumbling over it could maintain an action on the case"

CAPTURE
Pierson v. Post (Acquisition by capture) Pay attention to remedies, with Pierson its damages. Action on case: Trespass on the case > damages Pierson is rightful owner, not because of mere pursuit of fox, but b/c he didnt infringe on foxes natural liberty. Constructive Possession - Control or dominion over a property without actual possession or custody of it. Possession by operation of law of an entirety by virtue of corporeal possession of a part. When a possessor holds title to a property and physically possesses part of it, the law will deem the possessor to hold constructive possession of the rest of the property described in the title; possession in law. Cf. actual possession. II. The Rule of Capture A. General rule: One acquires property rights in a wild animal [or something sufficiently analogous to a wild animal] if one captures, traps, or mortally wounds the animal (principle of first-in-time respected) (Pierson v. Post) Dissent: pursuit with reasonable expectation of capture confers property rights. Ghen v. Rich (Acquisition by capture) A property interest in a wild animal arises only from complete and appropriate possession. This is distinguished from Pierson b/c court doesnt seem worried that this ruling will cause more disputes. Also, the court is worried about whaling industry. Ghen is vague on how one identifies who killed the wild animal. Arguments of Pierson with respect to Ghen: In Pierson, the rule was the mere pursuit (w/o having to mortally wound) that made person a possessor of a wild animal. However, mortal wounding, with continual pursuit, may give ownershipthe court doesnt really address completely b/c it doesnt have to in this caseno one mortally wounded the animal. So, he doesnt specify that person isnt owner b/c he didnt mortally wound animal, just that in this case, mere pursuit is sufficient. Deprivation of Natural Liberty: Continued pursuit must be distinguished in context of wild animals; whalers were still pursuing whale, they did everything they could to capture itthey cant go to bottom of ocean so they wait for it to resurface, which is pursuit.

Once property interest is established, it is ownership: If property interest is not complete, then ownership is up for grabs. Ex: If someone walks to your table and takes your coffee mug from you and walks away, there is completed property interest. But if someone stops person from taking mug, but they still tried, there is not a claim b/c action was not completed. CLASS HYPO: One land owner shoots duck (once up in the air) and the other land owner who is his neighbor, is also shooting duck (thats flying in the air)Which one has prop rights? Keeble v Hickeringill: (Acquisition by Capture) Ratione Soli: Constructive possession over land Theme Unfair Competition, Mailicous interference of real estate Damages measured in lost profits, on specific value of lost ducks. Unlawful interference with Keeble able to run business Owners of land have constructive possession over all wild animals on their property, which generally voids the rights of capturers who trespass and capture game. Those who make their livelihood off of hunting are generally protected from the unfair hindrance of other though not from fair competition.

INS v. AP: Theme Wrongful Competition. Specifically, that INS deprives AP of the profits/benefits of its investment. (Unfair) application of who owns the news in general public, instead of between (p) and (d) who are competitors in business INS is tied to Cheney case in that both argue protection of business v. prominence of litigation overload. INS case decided during WWI, court felt strongly about news at time, but also, didnt want everyone coming to court to argue about who owned news first. This case takes news more seriously than it does silk scarves (Cheney). This cases decision is limited to the specific facts of this case. Rule: Anytime a business uses a skill labor and money to produce something of value, acquires exclusive rights to profit of investment. If not profiting from telling news, the you havent created unfair business advantage. There is no copyright in facts and developed the common law doctrine of misappropriation through the tort of unfair competition. In the case, the court struggled to distinguish between interference with business practices versus interference with intellectual property rights. Pitney held that the information found in the AP news was not copyrightable as "the information respecting current events contained in the literary production is not the creation of a writer but is a

report of matters that ordinarily are publici juris; it is the history of the day." Instead, Pitney approached the issue from the perspective of unfair competition. He found that there was a quasi-property right in the news as it is "stock in trade to be gathered at the cost of enterprise, organization, skill, labor and money, and to be distributed and sold to those who will pay money for it". Given the "economic value" of the news, a company can have limited proprietary interest in it against a competitor (but not the public) who would attempt to take advantage of the information. Cheney v. Doris Silk: Common law protection for designs

This case is also limited to its facts; doesnt use precedent of other cases and fully distinguishes case from everything else wrongful Its similar to INS v. AP, in that, they both are businesses that use skill, labor, time, money White v. Samsung: Right of publicity (right to control the use of ones own name, pic or likeness to prevent another from using it for commercial benefit with ones consent/Right of privacy

Theme: Right to profit from someones persona/property rights in IP law White sues alleging Samsun infringed her right of publicity by appropriating her identity White is famous and therefore she is commercially valuable. She might feel that Samsung is insinuating she is robot-like or can be easily replaced with a robot; Samsung misappropriated her identity and did so for profit, and caused her harm. (Copyright laws has a parody exception) (Problems w/overprotection: Uncertainty with length of timeunlikely to pursue creations for fear of litigation) Holding in this case states that its not a 1st amend. right of Samsung b/c the ad is for commercial purposes i.e. money. The moment you create property rights, you create uncertainty. The commercial was for profit, something like SNL parody is for profitable entertainment. (Right to personality is a state law. Moore v. Regents of Univ. of Cal: Property rights in body parts. Issue: Can he claim proprietary interest in his own cells after they were removed from his body? Ruled that Moore had no right to any share of the profits realized from the commercialization of anything developed from his discarded body parts.

Moores claim basically comes down to his desire to know the pencuniary value, however, there is no market value for Moores cells. Since doctors have to get consent to use cells for research/consent for interest, Moores cells may be valuable.

ADVERSE POSSESSION (AP):

Policy Implications: AP: Reward for labor (they ve been more productive, actively using the land). To punish inactivity/nonuse, or not checking on their property
Adverse possession: Way that a possessor can acquire a better right than everyone else, including the original owner Two elements of adverse possession: Statute of limitations: once the statute of limitations has passed, the possessor becomes the true owner of the property: the law allows the tacking of successive possessors to make up the full period so long as there is private of estate between the claimants -- there must be some privity (can be parole transfer);Transfer of the true owner's inteerst doesn't interrupt the running of the statute Possession: Actual within an appropriate degree of physical control given the nature of the property itself of the type that an owner would normally make of this property (E.g. if a person would normally live on a property in the summer it is actual possession), constructive possession (assumption that if someone has the entire lot, they can possess the whole) -- If Person has entered under "color of title" (document purporting to transfer ownership of the land (but the deed or title is defective)) this can be constructive possession. Note: In some jurisdictions adverse possessors may be required to pay taxes on the property Actual possession a. Real, physical possession of the land or some part of it. b. Making use of the land as (1) the true owner would, or (2) comports with the normal use of the land as recognized by the community. Open & notorious possession a. Visible/Known to the public b. Put the owner on notice (though he need not actually know) that someone is occupying his land under claim of right (constructive notice). Exclusive possession - possessor shows that no one has interfered with the claim, especially the true owner. Continuous and uninterrupted possession - Look at the character or kind of the land to determine what is required for continuous uninterrupted possession. Elements of Adverse Possession:

1. Actual entry giving exclusive possession (if going for full ownership, must have typical, normal activity as well) 2. Open and Notorious use (mistake v. intentionally) 3. Adverse and under a claim of right (as opposed to with consent from the true owner) 4. Continuous under statutory period Protect land by: 1. Survey 2. Title Insurance, or 3. Fence O.C.H.E.A.N. Open Continuous Hostile Exclusive Actual Notorious Claim of Right/Claim of Title- The possessors actions must look like they are claims of ownership of someone elses land and under a claim of right, meaning the AP is occupying the land without the permission of the owner. The person is claiming adversity, saying I have rights, its mine now! Color of Title- Written document intended to give ownership but for some reason it doesnt. Having a color of title helps tremendously for someone trying to AP land. Supports Title Clearing Function and Expectation of What Bought. NOTE: First argue and push policy, then push color of title. Three Views: 1. State of mind is not relevant. Actions count more than words. (Majority View) 2. Good faith claim. Potential APer must have a good faith belief that he has title, no AP for squatters 3. Aggressive trespasser Mannillo v. Gorski- When the encroachment of an adjoining owner is of a small area, and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for certain disclosure, the encroachment is NOT open and notorious. In such case, the statute of limitations will not run against owner unless owner has actual knowledge of the encroachment. Howard v. Kunto1. Prior to statute of limitations, APer has rights like a possessor, which she can transfer to another, called tacking. [But, to tack, there must be privity of estate between the 2 possessors. Where the transfer is not voluntary, no privity. Privity is required because title by AP is viewed as something to be gained by meritorious conduct, and an involuntary transfer is not regarded as meritorious.] 2. Use of a summer home only during the summer for statutory period is continuous use.