PROPERTY LAW OUTLINE

I. Rights: In personam (in the person) v. in rem (in the thing)

A. Contract right = In personam shift to in rem

1. Ex.: Passing $1 from A to B to C to vis a vis K rights that are negotiable / transferable. Right to get someone elses $1 whats the price?

a) Price determined by value of the right to be paid OR how likely is it that promise will be fulfilled AND by cost of getting the promi123

b) se honored ($1 v. 90c v. 40c)

c) Clear terms, confidence that right will be enforced, and

d) The more that right can be transferred, the more it is viewed as property. (3d pty. receivers of cash obtained any kind of way has full right to cash)

2. Jacque v. Steenberg Homes: About: TRESPASS. RIGHT TO EXCLUDE and CT. ENFORCEMENT TO PROTECT PROP. RIGHTS as oppose to preserve value (b/c difficult to show / prove loss in value elim. this reqm) AND If trespass not volitional, should there be punitive dmg. [Is it about intent or actual dmg.?] Possibly about ppl respecting others prop. rights and rt. to preserve prop. rt. no matter what. OR about shunting behavior and encouraging ppl to transact (sometimes its a cost, sometimes a benefit)

Ct.: encourages autonomy and for parties to transact. Dont have to show actual harm

Damages: ct. award nominal and punitive dmg. b/c intentional trespass; doesnt award compensatory b/c no actual dmg.

a) Ex.: transfer to u something thats valuable to u but not so much to me.

Ps seeking $ pmt. for trespass on property and peace of mind (enforcing right to keep prop. free from trespass) and to be made whole for loss, and autonomy (respect to indiv. prop. rt.) to do what they want w/ prop., and have protection by threat for future trespassing and rt. to have domain over own prop. and punitive dmg. (to punish adversary).

Damages: Nominal (in name only) dmg. ordered. Ct.: OK to have punitive w/o compensatory b/c Also, need to be intentional tort to have punitive w/o compensatory dmg. b/c intentional trespass (volitional act) is behavior that can be altered w/ penalization.

b) Making it not attractive to violate prop. rt.

3. Hinman v. Pacific Air Transport: About: Reasoning: in theory, u have prop. rt. that goes all the way but cant enforce if not using it (not using air space when trespasser flies over.)-difft ppl have difft though simultaneously legitimate values.Epsteins view: everyone better off by being able to use space (a prop. rt.) but were all getting compensatedCt.: No rt. to excl., to notify owner of flight of their airspace is too much of hassle. More broad view than prop. approach. If P had proved subst. harm, mightve been awarded dmg. Better ability to obtain injunction if can show youre using airspace.

CALABRESI-MELAMED MODEL

-only going to allow dmg. for obj. diminution in value and proof of it

B. Property rule enforcing entitlement w/ right to excl. and liab. dmg.

C. Liability Rule enforcement entitlement w/ obtaining dmg. for actual harm only

1. Jacobs-Young: House built. Per K, must use redding pipe. House built w/ ther type of pipe. P complains to ct. Reasoning: Ct. says must tear wall down to replace pipe and re-plaster wall. Ct.: awards diminution in valuable only AND wants proof of loss in value / obj. decrease; NOT specific perf.

II. Law of Nuisance - interference w/ use, enjoyment of land v. Invasions of Land law of trespassA. Nuisance: anything that annoys, disturb free use of own prop. or renders its ordinary use uncomfortable.

Anything that interferes w/ rights of citizen in person, prop, enojoyment or comfort. Condition = nuisance when enjoyment of prop. clearly materially lessened and phys. comfort of person in homes is materially interfered. -Public Nuisance: Effects gen. public of some ppl. TEST: Determ. by un/reasonableness of it in relation to partic. place (e.g.: septic water might contaminate well water)-Private Nuisance: substantial and material interference w/ priv. use & enjoyment of ones land. Conduct thats (1) intentional, (2) unreasonable, (3) neglig., (4) reckless, or (5) results in abnormally dang. condit. in a place. TEST: exmin. Of priv. use, enjoyment seeking protec. and nature of interf.1. Shifted from harm caused to reasonableness of prop. use2. Hendricks v. Stalnaker: P sued D for nuisance b/c refused permit for septic tank due to Ds water

well. Question: Was Ds act of installing well shortly b4 P sought permit for septic tank, intentional or unreas.?

-Trespass doesnt require interference t be unreas. but nuisance does.-If D had options in placing well, then parties causing pblm for ea other. Reciprocity of

nuisances.-D knew P wanted to install septic tank and beat him to punch.

a) Unreasonable: when actor knows that conduct causes subst. or unreas. nterf. R. 825 b) Unreas. determ. by balancing owner interest. When harm outweighs social value of activity.Holding: b/c water well not unreasonable use of land, D not responsible for effect on Ps prop.Notes: timing v. commun. standards. Reasonable act in terms of neighborliness. Allocated entitlement: winner is whos 1st

I. Coase theorem if transx costs low enough (or 0 transx cost world), society will get most effic. num. of wells and septic tanks in most effic. spots. But, not always the case.

a. Pay attention to high transx costs in 1st instance, in case u make wrong decision, might get most effic. use thru bargaining.

b. Reciprocityc. Will be fairness impact (picking winners and losers) but no position on fairness

II. In a race to common prize, ppl will be so desperate to win, will make decisions that is helpful to winning, but overall unhelpful.

a. Problem: overinvesting; misinvest (doping)i. Solution: create rules against undesired behavior; or equal distrib. of win

III. Exclusion v. Governance

a. Will enforce rule w/ entitlement and excl. regime i. Exclusion: Govt will assign and enforce. To shunt ppl in negotiation w/ 1 another, must use excl.

Rule. ii. Governance: To ctrl. actions that govt want and dont want, establ. rules to govern behavior.

b. Why negotiation might not be successful:i. A pty may not be willing to negotiate. Its not always ineffic. for outcome to be no, I wont negotiate.

Not always about more $. 1. Winner / losers: fairness concern2. Entitlement may not move to most effic. use due to fairness and transx concerns.3. Enforcement rule: pty. might be using complicated strategy to get to yes This makes for

ineffic. transx cost. Irrational behavior makes for too costly transx costs = barg. breakdown. Will not result in most effic. trade.

4. Incentive / coordination pblm: everybody on 1 side must agreed w/ other other side.IV. Baker v. Howard Cty. Hunt: landowner is upset b/c hunt club hunts on the land; intrusion, noise, trampling,

physical harm to Ps, excrement from dogs. Intentional act. Ds offer to pay for intrusion but Ps seek equitable remedy injunction. Owner shot dogs for attacking chickens.

i. Liability rule treatment transfer entitlement by allowing invasion and transfer diminution in value when transx costs high.

1. Ct.: ct. doesnt apply Calabresi liab. rule treatment b/c Ps seeking remedy thats prop. in nature /equitable remedy = INJUNCTION, not tradit. dmg. remedy (prop. remedy). Gives injunctionOpen to injunction b/c keep paying for intrusion each time is wasteful for society same answer but investing multiple times for it; overwhelming to ct. dkt to litigating for trespass over and over.Outrage constraint: rule against shooting dogs will only work to deter most outrageous settings, and enforcement mechanism only work in very xtreme settings.

2. NO INJUNCTION: everyone becomes repeat trespasser, so cant apply Coasean theory to transfer entitlement (Ill pay u not to hunt) b/c hunters might not follow K law, unfairness, coordination and transx cost pblm (other ppl might start hunt club just to get $ from owners to keep from hunting)

*If parties unlikely to reach agreem. B4 ct, unlikely to reach 1 afterward. B/C Emotional reasons for anti-settlement:

o More we take position, the more we think its correct: benefit = focuses thinking, cost = focuses thinking

o Presence of negative emotion breeds more negative emotiono Parties want to be heard and insist on their day in ct.

Rational reasons for anti-settlement:o Once decisions made, ct. = 3d pty thats entered negotiationo Look at how j/m proof deft. iscan you enforce j/m against them? If its hard to collect on j/m, Pl will

sometimes accept less than j/mo Once rule is announced by ct., issue has already been decidedo Verified info xfer system (Coase): Most info x-chng. happens in ct. b/c of enforcem. mechanism

behind rules** Most times, lawyers will look at value of xaction cost (that can be imposed on other pty.) VS. Coseans value of asset/s itself

V. BUILDING ENCROACHMENTSa. *If transx costs = high parties might adhere to prop. rules in encroachment cases even where its

already happened and injunction wont be modifiedAdverse possession: **No one washes a rental car: ppl unlikely to invest in assets if it was assumed that owner doesnt have title / entitlement to the asset. Ex ante / b4 hand, in real time, incentives for society to be goods custodians of assets chng. dramatically if a person cant have title to it even it asset would go to higher, better use. Also, real owner will not use.

**Residual claimant: knows she will get the asset, so more likely to invest in it.b. Pile v. Pedrick: P is upset b/c D built bldg. and it encroached on Ps prop. line, due to mistaken survey.

Builders offered to chisel wall back but would have to trespass to do this. P rejected offer. Leaving 1 option: tear down wall = tear down bldg.

i. Ct.: bldg. will have to be torn down. Very expensive. (Ps possibly trying to chrg. $ to drop suit)ii. Notes: even innocent encroachment can be viewed to be intentional, if, once discovered, it is

allowed to persist / to be built upon1. Argument: property is property. Stepping over line. Injunction!2. Argument: staying once discovered is intentional, so injunction (possib. punitive dmg. like in

Steenberg Homes)c. Golden Press v. Rylands: 2 encroachment. No injunction. P knew of encroachment but didnt object.

Intention of brining suit later, not about protecting prop. rights (having prop. respected). Looking for other value, i.e. respect, $.

i. Society would incur less waste if P spoke up sooner and make joint decision and determ. what investment to make. BUT, we want encourage a little peace, and respect to one another b4 jumping to sue right away.

ii. SHOULD INJUNCTION BE GRANTED?1. Ct. concerned whether trespass was in good faith. If in bad faith, no balancing of equities.

Bad faith enough to trigger prop. rule enforcement. INJUNCTION granted.If D acted in good faith OR w/ intent (to stay after discovering encroachment, then weigh equities. Ask: 1) was trespass small deny injunc., 2) did it have signif. impact on prop. owner grant injunc., 3) is it costly to move it (hardship measure), 4) is P actually motivated by recog. - that after fact - to get a lot of value. Is she trying to extract more value than what trespass costs her deny injunction.

I. Restitution

1. K common law: barg. For benefits, harms2. Tort common law: non-barg. For harms3. Restitution (prop. based body of law): f/ Non-barg. For benefits

i. Rest. Principles come from equity law (unjust enrichment)

ii. Elements for rest. (must involve 2 parties): Enrichmt. Of deft. @ expense of pl. Under unjust circum.

A. Mistaken Improver (Pile v. Pedrick; Golden Press v. Rylands concern w/ bldg. encroachments harming encr. upon pty. V. balancing equities) Restit. appr. adopted.1. When encroacher constr. on land belonging to another conferring benefit on true owner b/c fixture attaches to

3d pty. land 2. Producers Lumber & Supply v. Olney Bldg.:

-Action brought by Prod. Lumber (landowner) against Olney for demolishing bldg. constructed by Olney (bldr) as mistaken improvement (but in g/f) on Ps land.-Posture: Appl. by P b/c j/m for only $600, not $5900.**Bldg. enhanced value of land by $5000 but jury found to restore land to condit. prior to const. would cost = $600-act of planting trees: someone thought they owned the prop.-Bkgr: Land bought by P mgr. from D w/ intention to build home for mgr. & wife. Orts planned on putting bldg. on Lot 8 and told by D secy-treasurer land hadnt been sold. After const. of bldg. was almost done, D learned that lot had been sold to Ps mgr. (Montgomery) and Ps mgr. learned constr. had been done on his lot. Const. against mgrs wishes and plans for land w/ wife. -D tried to reach settlement w/ P to no avail. Then broke off negot. and sent crew to Lot 8 to demolish bldg. -Ct. found he acted maliciously.-Rule: when one erects bldg. on 3d pty. land w/o 3d pty. knowl / consent, bldg. becomes fixture of land and builder has no remedy.-Rule: only where one makes improvements w/ good faith belief he owns land that he has remedy of seeking equitable relief. (Luker v. Luker)-Equity Options When Evid. Shows Act Done in Good Faith (cash things out):

a. 3 sales options and 1 removal actiondepends on facts1. Ct. may order bldg. to be removed if it can be w/o signif. injury to it / land. 2. If improvement cant be removed: ct. can determ. Value b4 and after improvement and allow improver to recover difference. 3. If owner doesnt pay diff. in value post improvement, improver can pay value of land b4 improvements and become owner of land, improvements. Rzeppa v. Seymour

^If improver cannot pay for land (b4 improvement) and owner cant pay for improvements, it will be sold to highest bidder w/ sale prices divided b/w improve and owner accordingly. OR, ct. can give improver j/m for amt. of improvement and place lien on lot to secure paym.

3. Going onto land and demolishing improvements w/o knowl / consent of landowner is NOT an option and can be made to pay landowner for such waste.

-J/M: No self-help D must pay P value of dwelling. D cannot make claim in equity for reimb. For amt. of enhanced value of lot. He acted w/ knowl. of whom the lot belonged to and has come into ct. w/ unclean hands. He was not due val$300ue of dwelling from P w/o ct. order showing he constr. it in good faith. Ps failure to settle claim on Ds terms do not render Ps hands as unclean.-J/m amended to allow P recover $5 k and $300 in exemp. Dmg. In addit. To $600.g/f improver to b/f destroyed: due to him exercising self-help, 4 equity options no longer available.-Dissent: self-help = ok; should not recover compens. dmg. for removal of house, only for dmg. suffered to its lot (make whole theory) Pty. making improvements in good faith can recover in defense of suit for removing improvement. Long v. Cude. And, D in action for trespass to try title can recoup on equitable grounds, independent of the statutes

Agrees to punitive dmg. b/c it still underrewards.Improver does not lost equitable rights by removing the improvementsIf improver had to tear down dwelling in order to remover, he can do so subj. to paying for any dmg. to lot. Bottom line: he destroyed prop. that owner and P would not be entitled to such prop. until they paid D the value of the improvements, which they did not offer to do at any time. No auth. That disting. moving improvement intact from tearing it down for removal, so long as land isnt damaged. No one should be made richer to dmg. and wrong of another.Notes: Pile approach: u build on my land, I own it and if you destr. What I own, you owe me for destroying it, law of trespass would be appliedinjunction issued ordering encroacher to tear it down OR declaring that bldg. belongs to lot owner as fixture of it. Latter = windfall, but better from social welfare view. Either way, encroacher is penalized for destortyeing useful facts and circumventing legal system. Sometimes, irrational behavior such as destroying own things = rational strategy.Isnt $5 k j/m too punitive? Could cause over-deterrence no one exercises elf-help but runs to ct. Ex ante punitive deterrence is necessary, but $5 k?

B. Good faith improver : adopting restit. Princ, ct. can exercise 1 of 3 options:1. let landowner keep improvement and pay encroacher its value= equitable restit. Award2. xfer lot to encroacher for paym. of fair market value (motivated by consid. Of unjust enrichment)3. sell to 3d pty. and apportion proceeds b/w owner and encroacher (restit. Princ. And unjust enrichm.)4. Contrast w/ Goodpress case where very small encr. and didnt marginalize owners prop. rights; here, intrusion is

signif. (bldg.)

C. Origins of Restitution unjust enrichm. due to receiving un bargained for benefits. Based on princip. That someone who loses prop. due to mistake, is entitled to value of prop. (b/c transfer is unjust); reflects owner autonomy (Jacques, Baker). Rooted in unjust enrichm. Theory.

D. Criticisms of Unjust Enrichment theory : rests solely on principles of morality, not bona fide legal foundation. Does not embody unitary principles, but based on set of circumstances giving rise to a right called restitution. Gives judges too much discretion in creating remedies.

Change game for other side if game for you doesnt work:1. impose costs on your opponent2. signal that you will not engage in rational play

Game theoryTransx costsSetting up entitlementsCH. 2 - Original AcquisitionI. What is meant by possession change depending on context. Poss. appears to be based on ctrl. or whats perceived as

ctrl.; diff. b/w effective / productive ctrl.What creates social value? What creates waste? Society must have view on whether having more foxes is better to determ. wat type of possession must be had?

II. First Possession A. Pierson v. Post

Litigation cost seems to be more valuable than cash value of fox. Case is valuable le to society b/c it creates rule. Positive externalities almost always result from any act.

Perhaps more important to win that what is won.1. Bkgr.: spotting, chasing, closing in on fox. 2. Rule: must be certain ctrl. and depriv. Of liberty of animal to take possession w/ intent not to abandon.

i. RULE Could be shifted down scale (i.e. killing, not just mortally wounding) one who goes further has possession b/c its larger investment (labor theory further down scale = more work)

ii. Whats easiest to enforce: on whole soil the fox is = who owns itiii. No competing owner doesnt mean possession yields ownership. If its possessor v. no oneshould

go to possessor. BUT, this doesnt apply to ocean water. iv. Possession and ctrl. could reflect what commun. expects or signaling to commun. What to expect

(capturing / actual ctrl. = owner)3. Dissent: closing (After mortally wounding & no intent to abandon) in gives one title to possess animal4. Holding: wounding = enough to get ownership b/c no contest about what occurred after wounding, same person

did killing.i. Argument: mortal wounding seems enough b/c other side only got as far as closing in.

II. First Possession B. Ghen v. Rich ( its custom SO its the rule)

1. Premise: social value kill whales. Harpooning whale = kill whale. Harpoon belonging to spec. co. owns whale.2. Bkgr: instead of sending word to town, finder auctions whale off. Libelant suing for value of whale (its oil).3. Est. Rule: mortal wounding w/o intent to abandon. So, owner = libellant (harpooned it).4. Rule: custom becomes the rule, so long as certain conditions met (i.e. custom has to be followed by members of

trade, and followed for considerable amt. of time, and must not be contrary to broader maritime law, and ltd. To small # of ppl it impacts.i. Applied by ct. b/c ct. concerned about protecting investment. Ownership should follow investment and labor

into acquiring prop. reward investment (Pierson v. Post)ii. Cost of applic. to 1 grp. of ppl .: protects est. leaders of norm commun. and not competitors, outsiders (those

not consid. Part of grp.)iii. Custom only governs until appropriation est. Once appropriated, ordinary rules of prop. apply. iv. What about intent to abandon? Can argue that leaving whale to float around and possible not show up =

equivalent to intent to abandon.C. Keeble v. Hickeringill

1. Action on the case (for interference), not for trespass even though interfering w/ anothers chance to get ducks by gunfire, unlike in Pierson v. Posti. NO TRESPASS- Not on prop. when firing gun and scaring off ducks.ii. NO POSSESSION - No capture or mortal wounding involved. P only set up trap (honeypot) to attract ducks.

2. Rule: interfering w/ neighbors livelihood - hold D liable. No one benefited from act of interfering, competition.i. Difference b/w good [fair] competition (generates more goods, services, choice for society) and

bad [unfair] [good evid. To make something more productive] competition (yields negative sum game net decr. overall value [duck meat availability] for all actors involved).

Fewer net ducks can be caught by any hunter.3. Can also be characterized as bad for society b/c net duck capture = decr. Shoot 1 = scare away money.4. Litigation cost seems to be more valuable than cash value of fox. Case is valuable le to society b/c it creates

rule. Positive externalities

9/13/10 innovation.hoover.org > classroom > student support > I. First Possession

1. Keeble (hunting case) - ct. recognizes some interest / right (not prop.) to ones livelihood / joba. Take away : types of competitive (good, bad) behavior. Shooing away ducks = bad for society = bad compet.

i. Good make society better offii. Bad make society worse off; scaring students away from law school (like scaring away ducks) makes

society worse off.VS

2. Pierson v. Post racing for foxes is good compet.a. Carrington case via theft, scaring ducks away from neighbor, but purpose: to capture ducks yourself =

good compet.B. First Possession has Costs as well as benefits (Eggerson)

1. Open Access: construed as open to all (e.g. air, water). BUT, Growth (greenery) in a community - Not neces. open access to non-communal members but not to any human being that comes along, or open to outsiders for low-intensity use.a. Pblm: w/ regime where theres 1st poss. Rights w/ some form of open access/ commons.

i. Supply side issue: underinvestment, overuse no one is investing in protecting resource, only in extracting

a. e.g. using resource b4 able to maximize it; outlaw elephant hunting in sub-Saharan Africa) ii. Demand side issue: 1. overinvestment, 2. overconsumption (waste resources)

a. E.g. fishing cases = overinvestment regime (bigger = faster boats; winner take all / huge investment to being 1st, in items to extract resources). If limit season, exacerbate pblm (racing against 1 another and the season)

iii. totally depleting resource iv. hording more than neces. creates barrier to entry

2. Commons: common among grp that owns prop, but not to non-ownersa. Medieval Britain has real estate (can be used for crops OR grazing cattle). Cant excl. cattle from crop

grounds, but can benefit from cattle manure.i. Prop. soln to cattle pblm: arrange prop. rights to reconcile mixed use: treat land as common when

grazing season (dont fence off)so cattle will randomly distrib. Costs and benefits. BUT,During growing season, treat land as subj. to priv. ownership. Split up pieces of prop. small enough so distrib. of manure is random.

-Ltd. Trans. Costs can be helpful. (Smith)imitations to soln: dividing prop. results in some parts of land being abused / destroyed while that which is priv. owned will be preserved.

3. Anticommons: transaction costs b/c so many entitlements and must transact w/ so many ppl so much, over everything (Heller)

a. Too many ppl able to say no/ veto a use yields too little useb. Empty kiosks used to sell in post-communist Russia instead of getting C/O to use storefront. B/c so many

permissions needed to use storefront, investment not worth benefit.c. IP: purp. is getting more stuff faster but is it prop. or just getting priv. monopoly

i. Are patents really about getting more inventions? Perhaps IP is about putting inventions to use.a. Pblm. Is coordination among stakeholders b/c it is needed by complem. Users of asset to

put it to use. Prop. rights and rt. To excl. can help users coord. w/ each other. If that works, it brings new bsns model to markets, which is anti-monopoly.

ii. Pblm w/ prop. rights in IP: too many transaction costs if backing IP w/ prop. rights yields holdouts (extract too much, breakdowns) by IP owners and holdups (stop things from getting done).Prop. rights in IP (touchstone of patentability is novelty and genes are nothing new but isol. Versions of certain genes that co. use to make commercial products): kills wheels of commerce RIM settled for 100x what initially offered to them BUT settles for less than 50% of what its worth**the more diverse the players, the more the # of players; same with resources. The more diversity, the less transaction cost there are. Question isnt about patent failures but failure in market for academic x-chng (w/o patents or w/ patents). More patents = more diversity. More patents = more trading partners. Seller of srvc. makes transaction costs for user very affordable.Prop. owners bear enormous cost and radically under enforce prop. rights b/c transaction costs of enforcement are extraordinary. Hellers anticommonms pblm: dead wrong not about how many ppl can say no to request for permission to use. It is about owner, nature of permission, and nature of underlying asset that matters. Bureaucrat and prosp. user cannot negotiate over use unless prop. asset is involved. If is an asset involved, bribe or pmt. becomes enforceable K! Pblm. Is not of prop, but of something else. Pblm. Of rent dissipation / race toward common prize (depletion / waste of resource)

Leverage buyout: buy co. using leverage (their own stock). Ask for loan (to buy stock and secure prop, rt. In asset w/ loan) to buy out co. stock and give stock and time of getting loan. Type of buyout hard to do.

Biotech Ex.: someone invented bacteria that eats oil. Can things related to light, living things be patented (acquire prop. rights). S. Ct. said its patentable. Result: massive incr. in small, med. Biotech companies and incr. in new drugs & devices commercialized. WE HAVE PROP. RIGHTS = MASSIVE INCR. IN COMMERCIALIZAITON, COMPET.

Software Ex.: 1972 Benson 1994 Alappat: no new patents. Google became huge compet. To Microsoft after 1994. Patents dont cause monopolies.

4. Benefits of First Possession a. able to solve pblm. x due to infuse of investment, resources BUT,

What about all the other needs, pblm. That need investmentsb. Gives bright line to est. ownership (but see Pierson v. Post (was chasing, catching or in-b/w clear)c. Easy to ID (once issue of 1st poss. Has been resolved thru litigation)d. Lockean Labor Theory benefit (I went and I got)

C. Eads v. Brazelton: salvage case; sunken boat. Brazelton researches, finds, locates, puts marks and floats buoy on tree, then leaves. Eads comes along and actually begins salvage.

1. Brazelton says it is his prop and asks for dmg. and injunction to restrict Eads from continuing salvage.2. Issue: is finding, marking and having salvage fitted out enough for Brazelton to have 1st poss. Of prop.?3. Holding: no, prop. is not Brazeltons b/c (like Pierson v. Post: looking for foxes, announces he sees one and closing

in) he abandoned the salvage/lead vis a vis wasting resource and not allowing another to take adv. of it, even though he had provided notice and proved effort.

4. Rule: it is not enough to simply find, mark your prop.; actual deployment of resource is needed. Ct. doesnt care about type of use employed, so long as resources is not in non-use / abandoned/ waster (rule of exclusion)

5. Rationale: Eads found no ones property; no one owned ita. Asset short of total abandonment : prop. is in salvage status and salvor can recover it and get minority share

value of asset (whale case didnt need permis. to locate harpooned whale and turn in registry for reward)6. Bottom line: ct. terested in protecting hard work that will go to good end

D. Home Run Baseballs: who caught the baseball? While catch is occurring, crown is jostling, knocking ball to ground and another snags it (claims possession)

1. Popov v. Hayashiwho caught and claimed poss. Of the baseball?a. Ct.: by taking these steps, you get right to take next step/s which is chance at getting the ball, not prop. rt. to

baseball. Not saying you get ball once you touch it. If after you dont catch it / have it, you dont have right to it.i. In this case, Pls shot to close glove on ball was not unfettered, interfered and Pl. had pre-possessory

interest. BUTii. Df. Was not 1 of mob that interfered w/ Pl. pre-possessory interest; he was not part of some 3d pty. that

viol. Pls interest.b. Interests involved: preserving peace (like in Pierson v. Post); promoting investment in attaining asset,

exercising due diligence9/14/10I. Overuse and underinvestment: popular solution = prop. rights

A. Benefits: less use, less race to the finish pblms.B. Problems: how to allocate tradable IPQs.

1. Advantage of 1st possession all have shot at being 1st BUT comes into play after someone already was 1st.a. Fairness point : monopoly lock-in, social inequality lock-in, need some sense of legitimacy so no

democratic buy in (enforcement pblm) (Liecap)b. Locking in quotas [in the race] (how many you got is how many you will continue to get) may be easy but

maybe not fair (sharp edged) b/c you pick winners and losers easy but maybe not fair [b/c race has already been run].i. Benefit on effic. side IS cost on fair sideii. Impact on socioeconomic classes: ppl who are socially powerful remain b/c now also economically

powerful and vice a versa. iii. Fundamentally anticompetitive: grp w/ most lobsters continues to get most lobsters and now have cartel

on the common pooled resourceII. Benefit of Allocating Prop. Rights: private rents vs. social rents (thats mere rent-seeking (only helps yourself and no one

else))A. Rent Dissipation: when seeking private rent dissipates social rent / benefit (engaged in merely rent seeking

behavior)

1. E.g. race for common price. Each one spends 9 to get 10, so social benefit was dissipated by each indivs rent-seeking

a. Solution: coordinating w/ one another, all chip in, and share returns ALL to ensure that benefit exceeds expense

B. Land Granting Prop. Rights (Anderson, Hill): seemed fair b/c each got same amt. as other and administratively, socially simple.

1. Cost of this process: rent dissipation b/c allocating prop. rights in fix bundles on avg. more rent dissipation pblm. than in alternative (of staking out land claim and getting it) when govt makes things available results in overspending to get totalProviding what each wants will result in difft land staking (person who will own asset must do the work to find and gain the asset YIELDS less rent dissipation)

a. residual claimant person that has claim on whatevers lefti. states that allow residual claimant to claim have less rent dissip. pblms.ii. Patent resolves this pblm.

a. Concern w/ prop. right: impacts others. Big issue = holdup pblm.C. DONT ISSUE PATENTS ON PREEEXISTING ITEMS TO PREVENT ASSET SPECIFICITY PBLM. AND OPPORTUNISM PBLM.

III. **Johnson v. MIntosh (regulates reg. rights b/w Native Am. tribes and everyone else)a. Federal ct. has excl. j/d over all Native rights.

A. Facts : Two teams and each have claim to land. 1. Ps Chain of title: P claims to have claim form someone who purch. from Ill. tribe sale 2. Ds chain of title: claims to have bought land from US Govt who seized it from tribe.

No idea how much investment ea. Side had made or which plans to put land to better use.B. Key principle (nemo dot princ.) to Decision : you cannot give what you do not have. Means cant sell to #2

what youve already sold to #1. Sale to #2 is putative and defective sale. Accord to this, Johnson shouldve won b/c he bought it 1st from Indian tribe.

1. Nontransferable entitlement (core feature of prop, not always benefit): Right of occupancy cant be transferred except thru govt cant sell the asset or trade it out, BUT benefit is that it cant be transferred against occupants will, or coerced to transf. entitlement.

C. Ct. Outcome : traces further back than 1773 and 1795 sales. Colonies ceded to US Govt these tracts of land granted from Crown. States that what tribes got was right of occupancy, not ownership. Colonies got land (unknown asset) by 1st possession (discovering it). But, inhabitants lived on same land b4 the discovery.

1. Justice claims that natives possession was not proper b/c they didnt anchor, mark off to show ownership over & werent using land.

2. Sovereign discovery rule [of European law]: right to be sovereign over it but operated to leave intact relationship on ground. Though King discovered land, occupancy right of occupants remained.

D. Confirmed that federal bureaucracy determines occupancy rights, not states or individuals.**If awarded formal prop rights by Native Americans, repercussions to all non-native Americans is they would not own their land!CREATION

INS v. Assoc. Press1. Hx: to beat mainstream AP, be flashy (use sensationalism in aspects of news). A lot of compet. And techniques to

beat one another out. Has bad reputational effects. 2. Ct.: INS was wrong and there was no prop. right b/c it is un-copyrightable and publicized in public domain. One put

in labor and cost and other misapprop. labor.a. No prop. rule: Cant excl. Everyone from replicating published materials.b. Relationship b/w parties: behavior is misapprop. (tort theory (governing relationship b/w the thing), not prop.

based (governing relationship b/w spec. parties).i. Cant apply prop. law b/c of precedential effect: if a news copies anothers news, it is viol. Of

prop. right BUT still unfairness involveda. If you didnt sow the oats, shouldnt be able to reap the crops

ii. Isnt essence of competition doing the same thing better than opponent? a. Benefits of competition: It producers into market, yields more choices, drives prices down. But, some

forms of competing NOT OKallowing quick copying is stealing big chunk of value of being 1st to report news (time element is source of unfairness).

c. View Employed by ct.: If Bs productivity is interfering with A achieving something productive, this is a pblm Applying to Pierson v. Post: person who locates did most wok but person who shot it claims it (1st possession).

Lockean: Which pty. is deserving of maint. Prop. rights / claiming 1st possession? Must have theory of whats good and bad.

3. Take away: if not sure what decision to make and decision will have big precedential effect, dont do it! Let legisl, exec. Branch make new laws.

II. Midler v. Ford Motor Co. (right of publicity case)A. Facts: said no to singing in commercial, but co. used sound-alike sounding just like Midler in commercial.B. Court Holding: ppl will hear commercial, and think it is Midler. They unlawfully approp. her ID.

1. Ps voice so uniquely tied to P that if confusing her voice will lead to confusing who she is.2. Labor view debate involved in terms of prop.: YOU OWN YOU VS. WE OWN YOU : didnt sow.dont get to reap.

Building singing talent /celebrity is her own labor. a. Theory of dessert debate: Who did more work and deserves more (chases fox or catches fox) : P maint.

Asset, made unique. Special VS celebrity is chosen by public (and their investment)3. Prop. v. 1 st Am. argument : Rights, violation of rights, and countervailing rights: were making you famous so it is

our prop.; 1st. Am. interest b/c someone has social currency, society has rt. to dicuss / use you. Procedural Posture: P appealed a judgment of US District Court granting summary judgment in favor of D in Ps action for

appropriation of her distinctive voice for use in an advertisement.Facts: D advertised cars with a series of tv commercials. Different popular songs of the 70s were used, and the agency tried

to get the original singers to sing them. Where it failed to get the original singer, the agency used sound-alikes. D requested that P sing the song, and P refused. D hired a sound alike, instructing her to imitate P to the best of her ability. After the commercial aired, P and the sound alike were told by numerous people that it sounded exactly like P. Ps name and likeness were not used in the commercial, and D had obtained permission from the copyright holder to use the song. District Court said there was no legal principle preventing imitation of Ps voice and granted summary judgment in favor of D. P appealed. Appellate court held that Ps unique and recognizable voice was a part of her identity, and thus protected from appropriation.

Claims of the Parties: P pursued a common law claim against D for using her distinctive voice in an advertisement, which she had not authorized.

Issues and Resolutions: Is a voice a distinctive and personal feature of a person, which a person has the right to control from appropriation without his or her permission? > Yes.

Rationale: P did not seek damages for use of the song, which would have been pre-empted by copyright law. A voice is uncopyrightable, yet is a unique feature that distinguishes a person, especially a singer, just as a face or a name. For a person whose voice is widely known, it is unlawful to imitate that persons voice to sell a product if the person has not authorized it.

Rules: A popular singers voice is part of her identity and may not be imitated without her consent.Case Integration: A voice is a part of a persons identity, and thus controllable against unauthorized use by that persons

right of publicity.2) Disruption and disturbance to the artist if their voice is imitated without permission could be grave, and thus should fall

closer to the side of personal property in the spectrum.4) The recognition of Midlers voice in connection with her song was the motivation behind the commercial and the

merchandise sales. D did not have the right to use Ps voice, since it is the distinctive feature of the artist and is protected against unauthorized use to sell products.

7) A voice cannot be copyrighted. The use of a similar sounding voice, but a different song could be the same thing, because the issue was not the song, but the voice singing it.

9/20/01I. NOVELTY (IP Law)

A. Requires creation of something new1. In copyright, you must originate creative expression (it came from you.not neces. you were the first) and

have independent originationa. If A came up w/ orig. 50000 word poem and B came up w/ identical one each of A & B would own copyright.

VS In patent law, you must be new and non-obvious over prior art.b. To infringe someone else patent, it doesnt matter where you get info to infringe; only whether you do whats

claimed VS in copyright law (liability if copying)B. Trenton Industries suit for infringement (prop. like rt.) and quasi-K for unjust enrichment (use of patent w/o

compensation) (K like or prop. like rt.)1. Claim is one, long sentence in order to make subj. matter as clear as possible.

a. *Mitigate rent dissipation thru self claiming. In patent system, should be less ; dissipation if allowing patent requester to self claim.*

2. Ct.: didnt explain what the key inventive element of novelty is. It is isnt required to identify outer bounds but only inner core THEREFORE patent is invalid. (what is the claim (figure out what it means) and inner and outer boundaries)

a. If it captures prior art invalid, if it doesnt not invalid.

b. Novelty rule : If patent gives clear boundary on what infringe and what doesnt, it incentives people to innovate, not just making modifications b/c mods doesnt add anything new, and would hold ppl up who have investments and keep them from putting prop. to good use.i. Courts concerned about ppl creating a monopoly over any little improvement over

preexisting property; and prevention of downstream innovation.ii. Dont want patents prevention what ppl are doing and what ppl are about to do; will

foreclose investments and user confidence.iii. Non-obvious reqm: big factor in whether patent was legitimate in 1st place

c. Novelty standard: what is new t deft. isnt necessarily whats new to the world. Some circuits require that it be new info to everyone, some just require to show that it is new to deft. (took it from pl.)

3. Can argue under K theory: express K (black and white K), implied in fact (it was understood that it is how it worked); implied in law K (it is not fair that B should conger benefit to A and not be compensated for the benefit).

4. Deft claim / info based argument: he came across novelty while in church. Not only how to assemble a high chair BUT ALSO that its advantageous how to assemble high chair that way. -Value of info is not whether someone knows the info, but who knows it and in what way

5. Misapprop. J/d: must be new OR must be new from pl. to def.a. Suppose its in j/d thats focused on what is new to deft From the time of use until time patent was issued

(public issue from PTO), info becomes public to all. Damages will be ltd. to determin. Whether def. misapprop. Someone trade secret remedy should be ltd. only to pt. where I benefited. The extent to which I benefit is extent to where I got from illegit. source or develop it myself. When would this info have been knowable to deft.i. Best deft. argument: but for my infringement, I would have made the zillion dollars on prop. anyway.

b. J/d that wont allow misapprop. COAs (wont let employer restrict free movement of labor): garden leaf j/d.: i will pay you (in the garden) but dont you dare come into the office; in order ot lock down body from competing against you.

II. ACCESSIONA. CONCEPT OF GIVING PROP. TO OWNER OF MOST PROMINENT ITEM, which is attached to less prom. thingB. Doctrines: accession doctrins; ad coleum rule; accretion doctrine; corp. opp. doctrine (accession doctrine): if

yo find valuable opp. for bsns in course of working for them, you owe it ot bsns, not yourself); a. Ownership of bigger item extends to smaller item.b. Increase reasoning (Accession): own the mother, then you own cat.

i. Benefits: Protect the asset by keeping them together. Asset will only be worth something if its kept around the mom.

Confusion and ACCESSION govern the acquisition of, or loss of title to, personal property by virtue of its being blended with, altered by, improved by, or commingled with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful owners, but the property retains its original characteristics. Any fungible (interchangeable) goods can be the subject of confusion.

In accession, the personal property of one owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate identity. Accession can make the personal property of one owner become a substantially more valuable chattel as a result of the work of another person. This transformation occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture.

Subject to the doctrine of accession, personal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personalty (personal property) but which has become attached to, and associated with, the land and is, therefore, considered a part of the real property.

A. Weatherbee v. Green1. Facts: D. is the owner of land upon which stood a tree that P. cut down and fashioned into several expensive

wooden hoops. P. cut down the tree in good faith on the mistaken belief that he had received permission from a person authorized to grant it. D., however, did not authorize the taking of the tree and so replevied the hoops, which were hundreds of times more valuable due to the labor than the trees before they were cut. P. sued to get the hoops back, but trial court found for D., and refused testimony that would establish the value of the hoops being much greater than the trees.

2. Issue: If a person, acting in good faith, takes the property of another and transforms it into something immensely more valuable, does he obtain good title to the resultant product even though it was made with the materials belonging to the owner?

3. Holding: Yes. When a person, acting in good faith, takes the property of another and adds substantial value to it, he obtains good title to the improved object, but nevertheless is liable to the original owner for the value of the original materials.

4. Reasoning: The court reasoned that the policy of the rule is to afford proper compensation for loss to the original owner, without unduly penalizing the possessor, and without conferring a giant windfall on the original owner.

5. Value added / degree of transformation: inflection pt. in the curve. Anything less than 50% of value = bad case for accession. If amt. contrib. exceeds 50, better candidate of accession.5 you are, the

a. Multi factor test: some A some B or A and B or A or B. the more over 50 perce you aree, the better chance you have to trigger factor C. i. How much do you have to change it to make it something else. Court says: as long as there is some

transformation, it would be a cnadiate for accession treatment. 6. Necessity problem: no longer possible to separate theraw material from final product. Hard to pull apart relative

values. Also, it is no logner it but has become soething else. There is now a something else which is not just the it.a. Bond b/w owner and improver (tree and barrel). So it easy to sepate oenr of tree from barrel.

7. Gf /bf point: how much bf is required to take imprver out of accession analysis. If you have some bf, do you fial to gf factor so you lose accession

B. Edwards v. Sims: 1. Majority: send surveyor to determ. whether part of cave is on pls prop. b/c if you own land and everything below

and aboveeverthing is figured out unless some conflicting title is found.2. Dissent: more concerned w/ who is doing what w/ the asset (possession doctrine). Who is making better use of

the asset (like in Eads and airplane overflight case: who is making use of /possessing space and who is interfering w/ possession)

a. If there was diamonds under neighbors land, and ct. said whomever digs it up 1st then gets it (possession theory). Encouraging race to dig under other ppls land

b. acts: owns land that is directly above a sub-terrainian cave. is a judge who ordered the cave entered to determine the facts of another case (Edwards v. Lee), as to whether the cave travels under Lee's land as well, and therefore would be trespassing on Lee's property while exploiting the cave. seeks a writ of prohibition to prevent from enforcing his order.

Issue(s): Is the proceeding erroneously within its jurisdiction in entering and enforcing the order directing the survey of the cave under 's land in order to resolve the issues in Edwards v. Lee?Holding(s): A court of equity has the transcendent power to invade the property of a private citizen for the purpose of ascertaining the facts of a separate matter before the court.Reasoning: The right to enjoyment and possession of property is limited in so far as the state has a right to infringe upon those rights when it believes that those rights are being used to the detriment of other private citizens. Court cited a similar decision involving the determination of trespass in a sub-terrainian mine.Dissent(s): You only have rights to underground property which you can exploit, and since the cave opening was on Edward's land, there was no way that Sims could exploit the cave, and so he should have no rights. This is based on the social utility theory.

9/21/10

Two effects of rational behavior and self-interest monopoly: higher price and lower quantity than what would perfectly competitive market yield

o Fairness concern: Concern is over quantity effect due to gains from trade (when deal is done, each pty. is better off)

Sell side better off: producer surplus Buy side better off: consumer surplus

o Effic. pblm / concerns w/ monopolies: way in which society is better off from trades that take place has effect that each person is better off less than should be in competitive market. Its not about price pt, but quantity effect.

Efficiency hit is not about transfer. It is about creating of dead weight loss (combo of producer and consumer surpluses)

In monopoly setting, part b (prev. own by consumer) is switched to be own by producer and monopolist gets B from customer. Customer is better off by less than would have been while monopolist is better off more than would have been.

Fairness pblm effect If seller can engage in price discrimination (chrg. diff't ppl difft prices based on willingness and ability to pay). C

and E does not get lost but converted over to producer. o In perfect price discrim, producer will perfectly recover dead weight loss as producer surplus.o Do price discr. thru power of price and monitoring and K enforcement (e.g. - sale of tickets for leisure

passengers v. business passengers (will pay more) Encouraged if able to provide more quantity to consumers yields to monopoly

In accessions doctrine cases, owner of raw material gets cashed out value of material but not for value they couldve received for wood (something more than raw value) b/c:

o Its hard to figure out how much more value they couldve gotten had they employed materials for some other purpose.

o Alternative soln: replenish supply of wood (to build it into monumental art) or cash equivalent to buy wood.III. ACCRETION

A. Nebraska v. Iowa1. Boundary b/w states is in middle of channel, werver it happens to be.

i. Parts of river chng. rapidly and parts chng. slowly2. Rule [to decide who gets property]: common law of prop. disputes---

i. Doctrine of increase, accretion and accession are all accession approachesii. accretion: gradual shift of land from one place to another.

Legal outcome / determin. Of boundary = middle of river. As river slowly shifts, so does boundary. Benefits of accretion rule: easy to administer to determine boundary; utilitarian effect: as boundary slowly shifts, both sides still have access to river and use the land they own w/o having to cross river; / go further down riverbank. If boundary is same access to river distrib. To same parties as b4.

Use accretion approach (remain same) but have sudden shift situation: results in giant winner and giant loser b/c large chunks of land becomes part of anothers territory and cause disruption.

BUT, w/ small shifts: shift will not be all in 1 direction.iii. Avulsion: sharp creation of new channel suddenly.

Results in loss of big chunk of land results in outcome that old channel was perm. boundary. Monitoring is occurring. Benefit is big chunk of land boundary is determin. RATIO of cost over benefit is more profitable in avulsion, than in accretion setting. (worth counting big stuff, not small stuff.)

B. FIXTURES (accession doctrine): 1. If one buys house and theres laptop computer is in it will be treated as pers. prop. (doesnt transfer w/ sale),

but fixtures stay w/ house.2. Strain v. Green--

i. Issue : whether items sellers removed were fixtures or pers. prop.ii. Ct. determines : whether it was a fixture is determined by:

if item is connected to house and cant be removed w/ causing dmg. to house could K to get result difft than what ct. decided. Ct. rule only applies if deal is silent on what is being transf. w/ sale default rule (high degree of confidence needed) VS mandatory rule ( default rules: if parties are silent..it resolves situation. Good b/c this type of rule gives an answer when parties havent given one for themselves.

1. Gap filling default rule: pick one most would pick for themselves as it is structured in a way to give outcome most would want. Its not mandatory, but utilized when deal is silent on certain issue.a. Reason to use partic. type of default rule: Reduces transx cost

2. Info forcing rule: rule encourage parties to speak up if outcome is not what party wants.can figure out easily what party does / doesnt wanta. E.g. you will only get such and such (Dmg.) unless you speak up (Hadley: if you dont

deliver, I will lose.) Mandatory rules (must or you may not): makes sure something does or does not happen. Good if we are confident that what were requiring or prohibiting is correct outcome.

3. Law of fixtures: seen as gap filing (b/ it is what most ppl want) OR info forcing (the more you want, the more you have to ask and inspect)i. Application: Ask what reasonable buyer and reasonable seller expect. Use some obj. std: Look at custom,

subj. intent of parties and obj. indicia of their intent (look at experts who see ppl like them in lots of settings)C. IS ACCESSION ANOTHER VERSION OF 1ST POSSESSION? 1st to get ctrl of one thing by having ctrl over some

other thing. But not 1st possession b/c you werent 1st person who had itCan you defeat the owner of record even though he has a valid deed to that property?

III. Adverse Possession Difficult to resolve when dealing w/ intangible prop. (cks, stock certs, interest)A. Lessee of Ewing v. Burnett

a. Majority Rule for Adverse Possessionb. Facts: Man sells land twice, one owner possesses the land adversely and takes sues other owner to clear

title. P had older title; D lived across the street, paid taxes on lot, brought actions against trespassers, gave rights to dig gravel; P stated that someday he wanted to reclaim lot

c. Rules: i. Elements of Adverse Possession, must possess for SOL period, possession that is:

1. Actual: actually possession and asserting dominion over the land 2. Exclusive: excludes the true owner 3. Open and Notorious: giving notice to outside world and obvious you are claiming

possession

4. Continuous: consistent occupation throughout statute of limitations5. Adverse: under a claim of right (i.e. no permission from owner)

ii. Unnecessary Elements 1. No need for fence, building or other improvement 2. Residence is unnecessary 3. Use it for occupational purposes or cultivation

d. App/Holding: Since D actually, exclusively (TO didnt visit land), Open and notorious (public acts of ownership suffice: all the people in the area thought it was his), continuous for the whole stat of lims) and adverse under a claim of right since he wasnt technically the TO, so D now becomes TO.

i. Ct. wants to state that df. didnt know he was APing. If he did know he was APing (intent / mental state eval.), should rule take this factor into acct.

ii. AP trumps recording act. If AP can make out her case, she will win, unlike situation w/ recording act (where GF buyer is better off and BF buyer may be worse off)

e. Conclusion: Df. owns land. Knows he owns b/c ct. ordered it. 2nd buyer would want to see not only title doc, but ct. j/m stating he owns it.

Adverse possession is a method of defeating the owner of record when claim of title or recording is not an issue. It resolves competing claims by an old concept of possession rather than notice of title.

f. If TO gives permission / license to use it it is NOT APg. If someone is possibly adversely possessing my stuff, give them permission to use it (cuts off AP

claim by making it non-adverse), given permission and lmt by adding revocable to permission or bring claim for trespass.

A. Ct. favors goof gatekeepers / custodians, who will coordinate use of land.i. If person is infirm, like in Lessee of Ewing, he is incapable of regulating land use, person is cut slack

in being good gatekeeper.B. Labor Locke theory: whoever slept on rights doesnt deserve it (even if TO); and who pursues the land gets is.C. Personhood: if youre snoozing on it, you are not invested or connected to it and SHOULD NOT get it.D. Utilitarian argument: when df. gets land, everyone only has to deal w/ df. (Cuts off dealing w/ others) = transx cost

saving deviceE. Recording acts designed to deal w/ seller selling same thing to more than 1 indiv. If buyer purch. in GF, will have

good chance of owning it. But, may be worse off if you know its hota. Important consideration to 1st possession, and GF purchasers OR BF purchaser (have notice of BF claim)

F. Carpenter v. Ruperto - corn field-- had knowl. land wasnt hers when expanded her lawn (intent factor matters)

a. Maine Rule- BF and knowl. reqd: must adversely possess w/ intention of displacing owner of title.i. - problem is that it awards bad faith

ii. blends hostility requirementiii. being there by mistake is not sufficientiv. cant have good faith

b. if you know its not yours you cannot get itc. APer invests in it even though she knows it is not hers. If she had engaged in high intensity use, ct. would

maybe not have called her out if she had put it to amazing use. i. Motive sways decision b/c theres no evid. of high value use.

d. Ct. is not clear on what is BF and if she engaged in it.

G. Howard v. Kuntoa. Facts: Several owners of property in a summer resort destination discovered that the land they occupied did

not match their deeds (see diagram). Howard owned the deed to the property occupied by Moyer and Moyer held the deed to the property owned by Kunto. Howard and Moyer traded deeds giving Moyer the correct deed and Howard the deed to the land occupied by Kunto.-Howard brought suit to quiet title and to assert his ownership of the real estate occupied by Kunto. Kunto contended that although he had been in possession of the land less than one year, he and his successors had been living on the property for longer than the 10 year statutory period and he therefore acquired the land through adverse possession by tacking.

The trial court entered judgment for Howard, holding that the actual transfer of possession is insufficient to establish privity when the deed does not describe any of the land occupied. Kunto appealed.

b. Issuesi. Is tacking of possession by subsequent occupants permitted if the land is occupied under a mistake

of fact?ii. May a party prevail on a claim of adverse possession if physical use of the property was limited to

summer occupancyc. Rule: tacking where (piece together cumulative time) in privityd. Holding and Rule

i. Yes. Tacking of possession by subsequent occupants is permitted if the land is occupied under a mistake of fact provided the occupants are in privity.

ii. Yes. A party may prevail on a claim of adverse possession if physical use of the property was limited to summer occupancy.

e. Rationale: A purchaser of land may tack the adverse use of his predecessor in interest when the land was intended to be included in the deed between them but was mistakenly omitted from the description. The requirement of privity is merely judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of a wrongdoer or trespasser.-In this case, successive purchasers received record title to land under the mistaken belief that they were acquiring the adjacent tract. There is a substantial difference between a squatter or trespasser and a good faith purchaser who, along with several neighbors and as the result of an inaccurate survey, mistakenly occupies the property adjacent to that described in his deed.

f. Public Policy: Early certainty as to the location of land ownership is beneficial. The technical requirements of privity should not be used to upset the long period of occupancy of a good faith purchaser who received an erroneous deed description. In this case there is sufficient privity to allow tacking.

g. Continuity of Possession: The requisite possession to maintain a claim for adverse possession requires such possession and dominion as ordinarily marks the conduct of owners in general in holding, managing and caring for property of like nature and condition. This property is a summer vacation home and there was continuous possession even though the property was used only in the summer months.

Judgment reversed.

h. Notes on Policy Matter: Disorganize, serial invation of prop. wont raise AP problems if users arent in privity. Only ongoing presence will create pblm. if coordinated privity b/w person A occupying and King w/ B also occupying. Taking is OK so long as pty. is in privity.

**Is lack of continuity of possession fatal to AP claim? 3d parties [interests] are only going to be there p/t also. Lens thru which we analyze continuity of use is vacation, p/t users. 3d parties are less likely to be connecting to it out of season.

H. Songbyrd v. Estate of Grossman****a. Timing issue: Adverse poss. begins at pt. of conversion. So, pl. doesnt know that rights were infringed until

later. Getting window open at earlier time incr. chance that it will be shut by time of lawsuit. Outcome = AP.b. Converter knows but P doesnt know that AP has started. Open and notorious is occurring in non-explicit

circumstance. c. P cant bring action on copyright but on tapes on which songs were recorded..

i. Statute doesnt allow.(look this up)ii. Copyright law says no protection. Cannot achieve thru state law where fed. law has preempted

protection. Cant lawsuit like this even be brought?d. Dont know what their state of mind was when they sold to someone else. GD (didnt know he asked for it /

made a call) /BF??i. Jarvis v. Gillespie

Replevin: for personal property

Ejectment: for real property. Recording is crucial: an owner needs to record ownerhisp with a county office, otherwise will run into problems. In the deed system, sometimes ownership... Policy:

1. Adverse Possession is a penalty exacted on existing owner for not monitoring land and failing to use it. detrimental reliance of adverse possessor2. non penalty: designed to reward people who are utilizing land that may not otherwise be developed.

The adverse possessor is not an owner of record but can claim possession subject to the following conditions: 1. Has a statute of limitations past?

a. if the statute has not run, the owner can evict you and you will not have a claim for adverse possessionb. the length of the statute of limitations varies by statec. If within the statute of limitations, remedies of the owner include eviction and ability to sue for rentd. shorter statute of limitations if acting under color of title ( a good faith belief that you have title to the property)

PLUS2. ENCROACH- Exclusive, Notorious, Claim of Right, Actual Possession, Continuous, Hostile a. Exclusive: 1. Use must not be shared with the owner or other adverse possessors b. Notorious and Open 1. Must be clear and unequivocal so the owner is on notice 2. If its a minor encroachment, owner must have actual knowledge

- Manillo v. Gorski- the concrete steps that went onto anothers property just a little c. Is your possession by claim of right?

1. Iowa Rule- Good faith and without knowledge of infringement: if possessor knows he has no title, cant adverse possess.3. New Rule (Connecticut) - Manillo v. Gorski, Peters

- Parties intention is irrelevant- avoids mens rea inquiry, focuses on open and notorious - Did possessor act reasonably?

d. Do you have actual possession? 1. Land must be used for its typical purpose 2. Usually a jury issue 3. Jarvis v. Gillespie e. Is the use of the land continuous? 1. Usually a jury issue 2. Jarvis v. Gillespie

3. Okay if use is fragmented or occasional so long as that is consistent with the lands typical use. f. Is the possession of the land hostile? 1. you cant adversely possess if use of the land was permitted by the owner 2. Jarvis, Peters 3. This excludes tenants from adversely possessing If a person cant get title through adverse possession, do you have recourse to the innocent improver doctrine?- get cost of the improvements from the owner (equity remedy)- get the owner to sell the land minus the value of the improvements Can someone adversely possess personal property?Guggenheim-Statute of limitations options: 1. at time if theft from original owner 2. at the time of the purchase from the thief to the original owner 3. at the time that the original owner discovers the loss 4. at the time that the old owner demands it back and the new owner refuses - the court in Guggenheim decides this option - didnt want NY to be a haven for stolen art

- places risk of investigating title on the new owner who is the least cost avoider- makes adverse possession difficult

A. Role of good faith: Carpenter v. Ruperto (minority rule of explicit good faith requirement) 1. Facts: Adverse possessor knowingly extended yard into neighbors cornfield, uses it as her own for 20+yrs.

Marginally improves it, (bad faith, always knew it wasnt hers and sues to take possession via Quiet title action (declaration by ct. of who owns what)

2. Rules:

a. Minority Rule: few states require GF in Adverse Possessors to gain title. Most states dont care about good faith or bad faith. (some even require bad faith)

b. Objective facts usually much more compelling than subjective intent for adverse possession c. When knowledge of lack of title is accompanied by knowledge of no basis for claiming an interest in the

property, a good faith claim of right cannot be established. However courts sometimes look more favorably on good faith actors in close cases.

3. App/Holding: Woman fulfills all elements of adverse possession, but her state (IA) requires Good Faith in adverse possessors so she is denied.

9/27/10

CONVERSION V. REPLEVIN

Conversion action accrues when thing is taken VS replevin: accrues when action is filed. To get around SOL, brought replevin COAs (stolen art cases)

1. Demand for conversion: dmg. or replevin (give it back)

2. Replevin

SEQUENTIAL POSSESSION

1. Armory v. Delamirie chimney sweep (action for conversion)

a. Facts: chimney sweep (F) find jewel and takes to jeweler for appraisal; apprentice at jewelry stores takes jewelry (C). Is the 1st guy really a F? Is apprentice really a C or simply following bosss direction.

i. Dont know relationship of parties

b. Ct Holding: decides to make jewelry store pay high value (dont want to underprice the thing b/c this incentivizes theft)

c. F1 v. C1: Rule: 1st F has highest title except for TO. In F v. C, F wins.

i. Policy benefit: conversion = (bad imposing will on others). Acting conversively against F is unfair.

ii. If interest is protecting interest of TO :

1. obj. should be given to finder b/c this incr. chance TO will get prop. back; look at those who mightve been in house

2. obj. should be given to C b/c TO likely to find jewelry in jewelry store

iii. Ct. doesnt ask questions re: TO b/c F (non-coerced 1st possessor) will have rights against all but TO.

2. Clark v. Maloney P find logs in DE bay and ties up. D claims he find them later but P claims it belonged to him.

a. Both are Finders (F1 and F2). Applying Armory rule: both can make identical Finders argument; would both win. Need another rule.

b. Rule: F1 tied them up and didnt abandon logs. F1 had initall possession so has right over anyone else except TO. First finder has higher title than all subseq. finders.

i. Both are non-coercers. Became 1st F by taking possession 1st, so should get ownership. Fairness

ii. If ct. were to simply split value among all finders, everyone would claim to be a finderAlso, what would you do w/ thing itself. How would you get value of it? Also, TO would be on notice that F1 found it and would claim it.

iii. 1st Possessors send signal to rest of world as gatekeepers AND manage the resource b/c they have interest in it.

3. Anderson v. Gouldberg case of converters (C1 v. C2); P sues for conversion of logs (cut down in my area)

i. Why is ct. picking a winner out of two bad litigants (c1 and c2)? Racing to be last. At the end, I come and take the prop.

ii. Analogous to illegal Ks: ct. still picks a winner

b. Facts: P claims to have cut logs in area 1 and hails to area 2. Not clear he had right to cut logs from area 1. D claims logs were taken from his area. Neither was TO of land.

c. Holding: C1 gets to keep prop. b/c he had possession and gets relative title. TOs claim trumps anyone elses title.

4. Fisher v. Stewart P finds swarm of bees in tree o n Ds land. D cuts it down off his own land and takes honey.

a. Ct.: b/c trees (and hone in it) are part of property, prop. owner has better title to tree and owns honey accession.

b. Notes: P discoverer could not get honey w/ trespassing.

c. Ad colum is main rule; ratione soli (applied to movable obj. -wild animals) in England.

i. Land sizes in US are rather uniform, small. But in England, # of estates which are pretty big. That is why they applies ratione soli rule - if you own land, you get foxes that run onto it. Better chance that some animals will run onto your land will allow private hunting b/c it will be on your land for enough time to catch it.

ii. Attachment of obj. of value to specific location: 1. Honey is separate from bees; where it is made is where it stays. 2. Asset requires investment to be used well. (Difft from foxes and deer)

d. Note: Ghen v. Gee: whaling case where local custom was consid. by ct. Here, ct. isnt concerned w/ local custom; only w/ who owned land and tree and honey in tree.

5. Goddard v. Winchell:

a. Facts: Hoagland see it on Goddards land who arent there. Tenant lets them enter land and take it. Goddard claims it is his b/c he owned the land and due to:

i. accession he owns whats on it OR

ii. per racione soli (it moves around and ended here) or

iii. ad coleum (mineral under the ground) or

iv. its fixture (affixed to land)

b. Hoagland gets it if argued as:

i. 1st possession (Pierson v. Post hunting, narrowing it, shooting, killing, grabbing fox)

ii. Discovery (1st poss.)

c. Goddard wins so ct. chooses assession or assession like doctrine.

i. Benefits of this outcome: must dmg. Goddards prop. to remove meteorite from ground. Adv. of rule to give it to Goddard: other pty. wont likely reimburse value of dmg. done to land in course of removal to landowner. **Protecting value of largest asset to which one is acceding smaller asset. It is important that meteorite is buried in the land. Benefits contingent on facts

d. Labor theory: Whomever puts effort into real prop. and coverts to pers. prop. to be used should get prop.

Object found in Priv. Home

6. Hannah v. Peel

a. Facts: D family gets house but never take possession / move in. Army sequesters house during war. While stationed there, P finds broach above window sill. Trusn it into police, who return it to owner of prop. Owner sells anf Peel (F) sues for valur.

i. Either C or F.

b. Not a fixture

c. U.S. cases: disting. b/w mislaid and lost prop. (want to tilt law in favor of landowner)

d. South Staffordshire case: found prop. goes for master

e. Rule: Objects found inside private home are usually awarded to owner of the home. f. Owner is not in possession: Hannah v. Peel: Exception to private home rule b/c owner was not in

possession. If owner of house has not moved into house, it has been held that owner of house is not in constructive possession of articles therein of which he is unaware. (Soldier found brooch in house owned by but requisitioned by the military. reports finding, but wants the brooch.)

g. Policy Considerations: i. Return of Goods to the True Owner

ii. How best to do this in Hannah? By giving the brooch to the LIQ, because the T.O. will retrace his steps.

iii. Carrying out the expectations of the parties iv. Preventing trespass v. Upholding public order

h. Finder is on premises for a limited purpose: i. Rule: If the finder is on the premises for a limited purpose, it may be said that the owner gave

permission to enter only for the limited purpose, under the direction of the owner, and the owner is entitled to objects found.

7. South Staffordshire Water Co. v. Sharman: ( was employed by the to clean out a pool of water on their land and he found two rings embedded in the mud on the land. sued for the rings).

8. I. Object Found in Public Place: 9. a. Rule: Lost property goes to the finder rather than the owner of the premises. Bridges v. Hawkesworth (from

Hannah, where patron finds purse and gives to owner of premises who advertises for the T.O., who never comes. Patron sues owner for purse and wins.) Public v. Private distinction: here public place, in Hannah private house.

10. b. Rule: Mislaid property goes to the owner of the premises. TAKING BODY PARTS

1. Moore v. Regents of Univ. of Calia. Parties: PL is patient who is seeking relief; DF's are doctors and to regents of University.b. COA/remedy sought: P seeks damages for notably conversion of his cells.c. Doesnt seem like loppy duty of care pblm or I hurt you duty of loyalty pblm.

i. Informed consent violation: has oblig. to discl. what his cell will be used for incl. any financial benefit

d. Procedural Hx: Court of appeal finding - PL did sustain a proper cause of action.e. Facts: PL was treated by DF's, who notified him he had life-threatening leukemia, and that he'd need his

spleen removed. Upon doing this, DF's did tell PL they would use his tissue for cell research, but they didn't tell him how much the tissue research would reap for Df's, or even that they were commercially interested in it. Hundreds of thousands of dollars had been paid to people under such circumstances in 80s; potential from PL's cell line products is expected to run into the billions of dollars.

f. Issue(s): Under prop. law, does PL state a COA against his physician and other DF's for using his cells in potentially lucrative medical research w/o permission?

g. Holding: "The complaint states a cause of action for breach of physician's discl. obligs, but not for conversion...."

h. Court's Rationale/Reasoning: Breach of physician fiduciary duty are slam dunk. i. As to conversion, COA under PL's would stretch fabric of tort law under theory of conversion. Ct. believes

there is no COA under this theory. For conversion, PL needed to est. there was an actual interference w/ his ownership right or to his right of possession. Since PL did not expect to retain possession of his cells, in order for this COA to fly he would have needed to prove that he had at very least an ownership interest in them. However, CA statutory law limits continuing interest in cell tissue once donated, and the research was University's, not PL's.

j. Personal likeness is one thing, but there is no conversion COA on this basis in property law, as there are not in tort law either (Prosser cited). Additionally, research here is for part of cell structure which is in every

human being, and is exact same in all human beings. Further, if every pt. had continuing interest in their cellular property, doors to potential litigation could be opened wide, due to certain level of impracticability to PL's argument. Also, CA Health law says nothing of the continuing interest one may have in their cell tissue.

k. Note: Balancing test of policy outweighs the other side of extending the tort. Human research could be hindered significantly.

l. Rule: To est. a conversion, P must establish actual interference w/ his ownership or rt of possession. Where P neither has title to property alleged to have been converted, nor possession thereof, he cannot maintain COA for conversion.

m. Analysis: The court uses three principles:1. An adult has right to control his own body.2. Consent is only effective if it is informed consent.3. The doctor must tell you ab. everything that is material to your decision to give consent.

n. Fundamental pblm in Moore: Transf of ownership but should say you cannot transf ownership, either K, $ or by gift. Perhaps P is a monopolist by restricting downstream use (Say for someone who needs the hairy cells to survive.) Solution: To enf. ons prop right w/ liability rule. Entitles you to is $ if someone takes it but not to restrict use.

-Taking something for public use v. compensation ** a Dr., in getting your informed consent, must tell you about all of his interests that may affect his j/m, or else he may be liable for performing medical procedures w/o informed consent.**There is a competing interest in withholding information if giving information would make patient make a bad choice. However, ct feels this applies only in cases where doctor is acting solely in patients best interests. Ct finds this is not case here.Think about: you get some form of interest / prop. right in body parts due process - govt cant take it w/o compensation. Property lite: doenst give right to excl.**Adverse possession and accession: ours when connected to us or assoc. w/ us but after it is removed; has pt. abandoned property rt. in body part. What kind of abandonment is it?**Can you transf. it? Do you need to have certain type of procedure and/or legal doc.?LIABILITY RULE I own the barrel stave and I will pay you for the wood9/28/10

United States v. Corrowa. Inquiry notice oblig. to act some questions to make GF sale

b. N/A statute makes it a cost to the owner of cultural paternity and benefit to society at lrg.

i. E.g. elephant tribe in sub-saharan Africa which allows shooting allows diverse herds and ppl protect them. Where shooting is prohibited, theres no protection for them / abuse. In this case, prop. rights helps.

B. ANTI-COMMODIFICATION AND INALIENABILITY RULES

A. the idea that you could have asset and entitlement (not to be misrepresented) and law doesnt allow you to separate yourself from the rt.i. Sample Rule you may not sell entitlement but can give away and vice versa. (types of inalienability)ii. market inalienability cannot sell VS inalienability cannot sell or give (e.g. something w/ prop. interest (b/c cant take w/o due process) but inalienable = medical license)

a. Sell but cant give away gives ppl confid. there's reality a. E.g. in Moore case: fraudulent transf. / sham or fraud trans.: useful to give away stuff to

others w/ relationships rt. b4 claiming bankruptcy. But if pay for it, the value is in bankruptcy case

b. Yields Recording point, invest and gatekeeper pt, keep track of who has value ptb. Cant sell (better for society to outlaw certain markets) dont want ppl selling their name / organs

a. Radin: empirically it is better if ppl are not allowed to market certain pers. items (infected blood argument)

i. Anti-mercantile argument: Cost of personal transx. (co-modification) extraordinary compared to benefits. Creation of hierarchy so can avoid negotiating everything.

B. Have prop. to further personhood interest. i. prop. will get things used well (economic utilitarian reason) as well as personhood reason (free choice; protect against doing something wed usu. find suspect or distasteful) (organ selling, slavery, prostitution)

a. fetishism TO things about ID (personhood things theory) IS more important compared TO fungible things (mere value things) TO prop. thats so important, it is non-marketable prod.ii. if prop Is wrong way to go, need bureaucratic direction**something could be fungible prop. in hands of manufacturer and personhood prop. in hand of consumer

C. Demsetz Paper: see prop. rights emergency in 1st nation tribes when benefits of recognizing prop. rights exceed costs. Overuse (Tragedy of commons) and underuse (underinvestment in genetically diverse flock/herd) of prop. When demand for an item becomes great, benefits will exist to protect them.

i. Property rights internalize externalities. Costs of prop. rigts (cost of trade) are not trivial. So, you dont see prop. right emergence in other N/A tribes b/c it was impossible to fence off buffalo.

ii. Paper doesnt discuss how one acquires prop. thru poli. Process. And, how it achieves internalization effect see 2001 piece.

a. 2001 piece: dont pay attention to internalizing externalities (we have positive externalities free garden w/o prop. mechanism needed to supp. it.)

b. Coordination: can be passive (Everyone shows up at grand ctrl at 12 pm) and active (boss runs co.)a. If you not in that community, youre not getting coordinated. Wouldnt exist if everyone was in

the norm.b. Property does this: I am custodian of asset and want to know how to best use this asset (you $

have, me $ wantlets deal). Allows ppl to coord. Conversation about assets. Coordination is less than ctrl. w/ former you dont decide what happens to asset, w/ latter one who decides is one who has most barg. power

10/4 2nd half

I. Cts. stepping in to stop paying off partic. constituents

i. Govt actors to some extent act in own self interest (trying to make their jobs more effectivenot really corruption)

1. Judges act in own self interest and public pays price for that. If thats the case, why should courts be check against other branches of govt

II. Priv. prop. proponents believe there should be public prop. disagreement over rt. mix

ENFORCEMENT: RIGHT TO EXCLUDE

a. Private landowners often under enforce prop. rights: right to enforce doesnt = enforcementb. Criminalization of prop. usu. tied to person (more protecting prop. owner than prop. itself)

i. Pblm : spend too much resources to enforce crim. law where theres no physical, personal risk (Enron, Madoff, insider trading, wire fraud)

1. Only weakly protect prop. crimes like trespass b/c we are confident it is already protected thru civil remedies, self help

c. Belive that prop. is about notice to everyone: is benefit of in rem rights. In favor of using crim. system.III. Olovo, Gasparik

a. In all cases, person had yet to actually take anything away from store. So, is it a crime?b. Holding: yes, see p. 398, note 6: ct. discusses about movement of actual obj. intent alone is not enough to

be chrg. w/ larceny. Also require actor to touch / move obj. i. What about movement of obj. signals that effect?

Crim. answer: It involves not only intent but also asserting ctrl. over obj. (mens rea + actus reus). It incr. our confidence in intent evid. b/c given option to chng their mind.Prop. answer: Indiv. carrying obj. = signaling / notice to everyone some possession, ctrl.

NECESSITY DOCTRINEIV. State v. Shak: prop. owners, fee simple, strong prop. rt., no complications about title.

Involves actual trespass on real prop.a. Ct.: aid worker acting pursuant to fed. statute.

i. Allowing non-profit aid workers protections of fed. officers too much.ii. Ct. puts in confl. human and prop. rights. In confl. b/c of position of rt. to excl. against strong distrib.

distance in wealth(disparity in wealth driving opinion). Its the right to excl. away from things that someone actually needs.

1. Why is the prop. soln to pblm. that landowner loses his rights? Effect is destabilizing. b. Holding: rt. to excl. was not enforced in this case. Either Categ. balancing: aid worker (or broader) trying to

give aid to migrant worker living on farmers land, then worker cant be excl., OR Ad hoc balancing: in ct. wisdom it is worth it, then no right to excl.

i. Benefit of ad hoc balancing: adjusts to changing circumstances, but pblm is its at whim of ct., no bright line boundaries as to owners prop. rights.

ii. Benefits of category balancing: gives notice: the more you force ct. to announce category, the more theres notice to everyone else the types of times where right to excl. wont be enforced.

c. Penalty one pays isnt enough to deter trespass. One benefit of defining it as trespass helps set bargaining around it: allows landowner to facilitate self-help (planning, bargaining)

d. Ct. couldve used other legal roots to get to the outcome: PERMISSION. But, ct. wanted to say this is a property exception (categorical or ad hoc balancing).

i. rights of other indivs. incl. accepting visitors as long as it doesnt interf. w/ rights of prop. owners.V. Intel

a. No enforcement of rt. to excl. What are the benefits and costs to this approach?

b. This is trespass to pers. prop. Is it harmful? Ct. says: no harm to Intel. Therefore, no trespass to chattel, even though they need more bandwidth, etc to handle traffic.

i. If Intel lost productivity time b/c employees reading the emails, is it nuisance to chattel? Should a statute be passed prohibiting nuisance to computer chattels?

c. What does rt. to excl. mean here? If ct. only gives prop. owner injunction (dont trespass to chattel) as relief and no huge damages, then concern of exclusion goes away.

i. There no trespass chattel here b/c matter of using system is not viol. of co. rules. For it to be person, emails have to be extension of actor. Not enough of phys. invasion, no harm.

1. Enfoce corp. speech privacy strong10/5/10

SELF HELP

I. Byrd v. Wiley

a. Facts : DF takes assignment from brother, and on 5-1-71 opened Family Affair Restaurant. b. 6-73 & 7-73: DF claims PL is in violation of lease for making changes to building structure w/o permission, by

the unsanitary conditions of kitchen.c. 6-29-73: Dated letter from DF ordering PL to repair 8 items and comply w/ Minnesota Dept. of Health, or DF

would retake premises on 7-13-73, as lease provides (eviction). PL continued to operator restaurant w/o making repairs. PL, DF had sevl petty squabbles

d. 7-13-73: At close of bsns, PL put sign in window "Closed for Remodeling". Earlier that day DF attempted to change locks and was ordered away by PL.

e. 7-16-73: DF enters premises w/o PL's knowledge and change locks at advice of attorney. PL returns and is unable to enter and as result bring lawsuit.

f. 8-1-73: DF re-lets to another tenant - originally party to suit - but dismissed at close of PL's case.g. Issue: Under MN property law, was the LL entitled to self help, i.e., could he retake premises w/o judicial

process, or was LL wrong in locking out PL?i. Society has to finance to administer process of eviction. Arguing in favor of self-help b/c 10 day

process doesnt work, ct. may forbid b/c you have to use resources legisl. has provided for.h. Holding: Yes, under new rule, DF shouldve sought judicial help in barring PL from premises. Should not be

embracing lawlessness rather than self=help when there isnt alternative process in place.i. Reasoning: CL rule: LL