This website provides updated
information about the course and assignments. It also contains links to the
handouts and materials used in the course, as well as links to sites on the
web. Feel free to contact me if you have
Please note: All materials on this web site are protected by copyright and intended for use only by students enrolled in Property II at California Western School of Law. Students enrolled in the class may copy these materials to their own computers. However, these materials may not be transferred to others or posted on publicly accessible web sites.
Materials for the Course: We will be using two resources:
(1) Ehrlich, Assignments & Supplement; Free Download via Dropbox. I will email instructions. If you want a hard copy, you can order a printed copy through RedShelf for approximately $8.
(2) Dukeminier, Property (8th ed).
Password for Documents: There is a password for most documents on this website. It will be announced in class and emailed to you. Some web browsers (such as Safari & some versions of Internet Explorer) will not open password protected PDF files. To open the files, download them to your computer and use Adobe Acrobat or a PDF-compatible browser.
Past Assignments: As the semester moves forward, you can find earlier assignments by clicking here: Past Assignments.
Current Assignments: Below are the day-to-day assignments for the course. They are updated often so – hit the “Refresh” button on your browser to assure you are viewing the most recent updates. Many browsers will use a cached version of the website & may not reveal the most recent updates unless you hit the refresh button. All of the Assignments for the course are on-line via this link: Assignments for the entire Semester.
1. Tuesday, September 6
a. The first Property class will meet on Tuesday, September 1st
i. Section 3 meets at 8:00-9:25 am in Room LH2 (1st floor).
ii. Section 2 meets at 3:55-5:20 in Room LH2 (1st floor).
b. Read Pages 1-5 of the Supplement. Consider carefully the questions posed at pages 4-5 of the Supplement. You can access this material by clicking here.
2. Thursday, September 8:
a. Prepare a summary of Tuesday’s class. Be prepared to read your summary in class on Thursday. The summary should contain an organized presentation of the rules, elements and policies discussed in class on Tuesday.
b. Read and brief the case of Johnson v. M'Intosh at Pages 3-10 in Dukeminier and notes 1, 2, 3 & 7 following the case.
i. What rule(s) of law did the court apply to determine that the attempted transfers by the Piankeshaw Indians to Johnson in 1773 and 1775 were invalid?
ii. Why did the Supreme Court follow the pre-constitutional, Colonial rules about land conveyances by Indians? Could the Court have chosen not to follow the Colonial rules?
c. Pierson v. Post at pages 18-23 and notes 1-5 following the case.
i. What is the legal rule (and its elements) for when a person gains title to property in unowned animals that are free in nature on public land?
ii. Do you agree with the judge in the dissenting opinion? What test does the dissenting judge propose for when a person gains title to wild animals like foxes?
3. Tuesday, September 13:
a. Read Ghen v. Rich at pages 26-28 and notes 1-3 following the case. Why did Ghen get title to the whale? Did he fulfill the elements of Title by Occupancy?
i. Identify three policy reasons to explain why the court in Ghen found the whaler to be in “constructive possession” of the whale.
b. Consider the following hypothetical: Megan Rich is a multi-billionaire treasure hunter. She has built a ship at a cost of $100 million and installed state-of-the-art technology capable of finding any treasure buried in the ocean bottom. At the moment, Megan is pursuing a Spanish sunken ship full of treasure off the coast of San Diego. When should Megan be held to be in possession of the sunken treasure and, therefore, obtain title by occupancy? Possible scenarios:
(1) Launches the ship from San Diego harbor?
(2) Finds the Spanish vessel and positions her ship over it?
(3) Sends a sub down to retrieve the treasure?
(4) Actually retrieves some gold treasure?
c. Keeble v. Hickeringill at pages 30-33 and notes 1, 2, 3 & 5 following the case. Do problem 1 on page 33 and read notes 1 and 2 on pages 37-39.
(1) If Lodowick Post used Keeble v. Hickeringill as authority, would he succeed in an action to recover damages against Pierson?
(2) Should mortal wounding of a fox be enough to satisfy the possession element of Title by Occupancy?
(3) Should we apply the rule of “Title by Occupancy” to water, oil and other “fugitive” resources?
4. Thursday, September 15:
a. Summarize, in writing, the rules and dicta from Pierson v. Post, Ghen v. Rich & Keeble v. Hickeringill concerning “possession” of an object by a finder sufficient to satisfy the possession element of “title by occupancy.” Bring a print copy of your summary to class.
b. Read Deer Hunting in CA
c. Why did we study Title by Occupancy? Read this
d. Pages 4-5 of the Supplement.
e. Dukeminier pages 40-50 and notes 3, 4 and 5 at pages 52-53.
f. Board of Regents of State Colleges, et. al. v. Roth, at pages 6‑12 of the Supplement and the notes following the case.
i. What are the meanings of these Quotes?
(1) “Liberty and property are broad and majestic terms. They are among the great constitutional concepts… purposely left to gather meaning from experience… They relate to the whole domain of social and economic fact and the statesmen who founded this nation knew too well that only a stagnant society remains unchanged.”
(2) “It is the purpose of the ancient institution of property to protect expectations upon which people rely.”
(3) “Property is a man-made institution which creates and maintains certain relations between people”
(4) “The basic problem of property is nothing more or less than determining the relationship of the individual to the community in regards to the use and exploitation of resources.”
g. Read and brief the case State v. Shack and notes at pages 106-110. The case concerns trespass in New Jersey. In New Jersey, the statutory definition of crime of “Trespass” is: “The [non-consensual] [entry or intrusion] onto the [real] [property] of [another].” The N.J. Supreme Court found that the defendants, Tijeras & Shack, were not guilty of trespass. Which element of the crime of trespass was not satisfied by the prosecution?
5. Tuesday, September 17:
i. Pages 4-5 of the Supplement.
ii. Dukeminier pages 40-50 and notes 3, 4 and 5 at pages 52-53.
i. Listen to the following radio excerpt: Fashion Design Piracy – September 13, 2010 (click on the “►” button to play the excerpt THEN SLIDE THE BAR TO MINUTE 17:05)
c. New Forms of Property: Factors Etc., Inc. v. Pro Arts, Inc. at pages 13-18 of the Supplement. Consider the following questions:
(1) Can a newspaper print a photograph of Elvis or Tiger Woods?
(2) Can I take a photograph if I see him in a diner & sell that photograph for $100,000 to the National Enquirer?
(3) Can I duplicate that photograph and sell copies for $5 apiece?
(4) Can I imitate Elvis?
(5) Would the following be misappropriations?
(a) News specials? Documentaries on NBC with copious video clips and pictures of Elvis? Would it matter if it’s on HBO as a pay-per-view item?
(b) A movie at commercial theaters on the life of Elvis, showing 60 minutes of Elvis clips?
(c) A movie using an actor to play Elvis?
(d) A glossy book with 100 photos of Elvis, selling for $75 on the 25th anniversary of his death?
(6) Can modern-day artists make a living dressing up like Elvis and performing at weddings?
(7) Can a modern-day rock musician use the deep drawl style of Elvis and imitate Elvis’ sway on stage, but singing his/her own music?
6. Thursday, September 19:
a. Adverse Possession:
i. Read the introductory materials at page 19 of the Supplement and pages 144-150 of Dukeminier.
ii. Krona v. Brett at pages 20-24 the Supplement.
(1) Was the trial judge making a sensible decision evicting Krona from the 3’ strip and giving the land to Brett? What policies would be served by such a decision?
(2) Was the appellate court making a sensible decision when it reversed the trial judge and let Krona keep the 3’ strip? What policies would be served by such a decision?
iii. Notes 2-3 in Dukeminier at pages 159-162 and the notes and problems at pages 162-163.
Take a look at the California statutes dealing with Adverse Possession: California Adverse Possession Statutes. What are the elements (and sub-elements if applicable) that a possessor must satisfy to gain title by adverse possession in California?
v. Read Mannillo v. Gorski at pages 164-169 and the notes following the case.
(1) Can you reconcile the “open & notorious” requirement in Krona and Mannillo? Do these two courts interpret the elements of open & notorious consistently?
The court focuses on the element of “adverse & hostile”. Be prepared to discuss the “mistake doctrine”, the “Maine Doctrine” and the rejection of the “Maine Doctrine.”
There is a password for some documents on this website. It will be announced in class and emailed to you.
2. California Codes. This link connects you to the official site of the State of California and allows you to search any of the California Codes. For instance, to find out about tenant security deposits, click “Civil Code” and insert “tenant security deposit” in the search block.
If you have a question that you would like answered, e-mail Prof. Ehrlich at: email@example.com. Your name will not be posted, just the question & answer. We have powerful & enthusiastic junk email filters. If you send me email from an outside account (not your law school email account) make sure you put the word “Property” in the Subject line.
The following links will take you to a compilation of questions posed by prior students, and answers posted by Prof. Ehrlich:
E-mail: firstname.lastname@example.org – Please
put the word “Property” in the Subject line.
Office: Room 313, Administration Building (225 Cedar St.)
I’m often available, please knock.