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Law Outlines Property Outlines

Origins Of Property Rights Outline

Updated Origins Of Property Rights Notes

Property Outlines


Approximately 41 pages

1L Property Outline keyed to Dukeminier casebook...

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Power flows from the barrel of a gun; property rights are enforced by the courts of the conquerors. Sovereigns can do anything they want, including kicking people off their land.

1. Johnson v. M’Intosh: 1763 treaty reserves land “for the use of the Indians.” Piankeshaw and another tribe sold their land to Johnson; subsequently, the U.S. sold the same land to M’Intosh after Virginia conveyed all its rights to the U.S.

  • Indians had right to occupy land, but no possessory rights, so they had no rights to convey, purported conveyance is void. Europeans have absolute title subject only to Indian right of occupancy.

  • Suggests that they did not use the land as intensively as it could have been used (hunter-gatherers, not agriculturalists)didn’t deserve the right to exclude

    • Important concept for law and development later in course (not most efficient use)

  • Had the court come out the other way, all land titles throughout the West would’ve been called into question—role in protecting (could also see as destroying) property rights

  • Usually conquest gives the conquered the right to assimilate, but the Indians were savages and couldn’t assimilate were driven out by sword.

2. Oneida v Oneida Indian NationDoctrine of Laches

  • Oneida tribe sued Oneida County NY for rent on land they sold to it 175 years previously, after Congress made it illegal to buy from Indians w/out federal approval.

  • Court allows claims for rent to proceed. Supreme Court says it’s not clear that equitable doctrine of laches is even available in a case like this, but District Court said it wasn’t, and they didn’t appeal it, so neither appellate nor supreme court looks at the question.

  • Court relies on idea that fed’l government was supposed to paternalistically protect NA’s land

  • Importance of lawyering: had they sued for ownership of title, they never would’ve won, so they were pragmatic and sued for 2 years rent on 820 of 300,000 acres. Also, ownership would have meant injunctive relief of ejectment (equity). By suing in equity, they would have opened themselves up to laches defense.

  • Stevens Dissent—Laches: There’s no evidence of fraud or deceit here. Indians slept on their rights. Where there’s no statute of limitations, court should have imposed equitable doctrine of laches to bar claim.

    • Nothing so retards the growth and prosperity of a country as insecurity of titles to real estate.

    • Court thinks its undoing great injustice, but it brings another by forcing taxpayers of the county to pay for something predecessors did 200 years ago

3. Mabo v Queensland

  • Recognizes Indian Title, aboriginal right to occupy land on Murray Islands, as a burden on the absolute title of the British and the chain of title flowing from annexation.

  • Unlke in Johnson, aboriginals’ use of land was similar to the white people’s use

  • Court rejects doctrine of terra nullius as racist, recognized that the Murray Islanders had civilized society--Australian high court held that it was not bound by English common law if being bound required it to ignore fundamental justice. That said, the court qualifies this by noting that it will not rule based on justice if doing so could destroy "the skeleton principle that gives shape to law and consistency" -- that is, the court will recognize indigenous rights but only up until such rights (or such recognition of rights) threaten the real interests of the sovereign legal system.

  • Requirements for Indian title:

    • Claimants and their ancestors were members of an organized society

    • Organized society occupied the specific territory over which they assert aboriginal title

    • Occupation was to exclusion of organized societies and was an established fact at the time sovereignty was asserted by Europeans

    • Rights are not assignable outside of the group

    • Rights extinguished when the group dissolves


  1. Natural Law

  • P’s would argue from natural law perspective, no one has right to deny N.A.’s the right to sell their land (though the infrastructure of the state also wouldn’t enforce it)

  • M’Intosh would also argue that the Indians weren’t using the land intensively enough to deserve to exclude others (they don’t own more than they use)

  1. Positive Law—the land belongs to those to whom the law says it belongs

  • In Johnson, does the King have the right to deprive N.A’s of ownership rights, or can only Parliament do that?

  • M’Intosh argues that if they claim chain of title under Indian law, title is void, since Indians don’t recognize ownership in land.


  1. Discovery—For Europeans, discovering unchartered land, unknown to other Christians gave them ownership to the exclusion of other Christians;

  • Meaningful only to whose within the same frame of reference and realm of sovereignty—others (e.g., Native Amers) have no reason to recognize the claims

  • Once discovered, the discoverer must perfect, or consummate, discovery, by settling in and making an effective occupation

  1. Principle of First in Time:

  2. Conquest—Virginia took possession of the title in M’Intosh’s chain by defeating the



    1. Ejectment (Johnson): requires plaintiff to show a superior claim, not necessarily ownership—

      1. An adverse possessor may eject another adverse possessor or trespasser even before he has ownership. All that is required to win at trial is that the plaintiff’s has a superior claim relative to the defendant, this is usually so if the P was there first and the D has no title.

    2. Trespass—interference with possession where there is damage, or interference with P’s use of his property.

    3. Trespass on the Case—Unintentional but negligent interference with possessory right, or intentional infringement of non-possessory rights.

    4. Conversion—the wrongful exercise of dominion over the personal property of another. There must be actual interference with the P’s dominion. Act must be intentional, though D need not know that its P’s property.

    5. Laches—an equitable defense....

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