Property Outline

Tussey_Property_Spring_2010

General Property Concepts:

Law creates rights as to things between people. It is really a concept of relationship between people as to things.

Rights in property only exist if the law recognizes and enforces them.

Things that can be property:

Doesn’t have to have monetary value (love letters, photos, etc.)

Doesn’t have to be scarce to be property (cars, clothes, etc).

Real Property= oldest, about power

Land or/ land fixtures on land, attached to land

Surface rights + possible mineral rights

Personal Property:

-Tangible (chattels) moveable, not attached, touchable

-Intangible- invisible, not touchable, stocks, bonds, debts, licenses, copyrights.

Rights Associated w/ Owning Property: (Inherently Limited, not absolute)

Right to exclude others

Right to Tranfer by selling, willing, etc. (alienability)

Right to Posses and use it

Social Concerns:

Free alienability

Stability of Titles

Productive Use (adverse possession)

Others eg: habitable housing, fair dealing quiet enjoyment

Justification for Private Ownership

First Possession or Occupancy, Labor Theory, Utilitarianism, Personhood, Civil Republicanism.

1. First Possession: Acquisition of Property By Discovery, Capture, and Creation

1. Acquisition by Discovery

Discovery -Entails “the sighting or ‘finding’ or unknown or uncharted territory”

-It is frequently accompanied by a landing and a symbolic taking of possession.

-It gives rise to an incomplete title that must be perfected by settling in and making an effective occupation.

Conquest: is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.

First In Time: the notion that being there first somehow justifies ownership is a venerable and persistent one.

This was basically the institution of property, an agreement between men legalizing what each had already grabbed, w/o any right to do so, and granting, for the future, a formal right of ownership to the FIRST GRABBER. (arguments for this are weak).

Labor Theory: John Locke

Each person has exclusive right to and ownership of his body. So any labor he produces w/ his body and anything produced thereof becomes attached to his body giving him a right over it.

Property and Power- property confers and rests upon power, when gov. recognizes and enforces one person’s property right, it simultaneously denies prop rights to others.

2. Acquisition by Capture

Pierson v. Post (encourages peace and fairness)

Post out w/ hounds hunting a fox on public land, and Pierson sees fox and Post and shoots and kills fox.

Post tries say that he owned fox due to pursuit and first sight or discovery.

Court disagrees and says no property just from pursuit, must actually capture or at least have wounded the fox.

Keeble v. Hickeringhill (duck pond, other guy scaring them away so he could get them).

Court held that no right to interfere in this way w/ trade and livelihood by violence or malice but okay by other means like just lure them away.

Wild Animals= “fugitive nature” wander from place to place, same with fugitive resources (oil and gas) general rule that not owned until captured, and that while on the possessor or captors land are their property, but once they leave the land the captor looses possessory rights, unless can show animal has the habit of returning to possessor. (aminum revertendi)

Capture here means to mortally wound or kill or trap so as to bring w/in certain control of the hunter (not necessarily absolute control).

Reinjection of Oil once Captured-

Reinjection doesn’t give rise to liability for the use & occupation of parts of a reservoir underlying land of neighbors, even though the ownership of the reinjected minerals remains intact.

Water (not use regulation instead of capture)-

Groundwater-

American Rule= reasonable use, where rule of capture but wasteful use and harmful use is unlawful.

Surface Water-

Eastern States use Riparian rights rule where each land owner along a water source has right to use water, subject to rights of other riparians. (encourages development of uneconomical “bowling alley” parcels of land near the source, rations poorly when water level low).

Western States use Prior Appropriation or “first in time”. The person who first appropriates (captures) water and puts is to REASONABLE and Beneficial use has a right to superior later appropriator. (encourages premature development and excessive diversion)

3. Acquisition by Creation

Property in One’s Person (key to Locke’s theory of property: “every man has property in his own person”

Can we really say, without qualification, that you have property in yourself?

Ex. case Moore v. Regents (researcher doctor takes rare tissues and makes crazy money from them. Moore tries sue for conversion.

Court says lack property rights in your body or its tissues and so can’t assert conversion because it is a property based claim.

Right to Exclude: Trespass & Conversion

Exceptions: Human Rights Trump Property rights.

2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift

1. Acquisition by Find

“Finders keepers, losers weepers”

General rule = items that are lost become property of finder as to world except the rightful owner

Finder – person who first finds & takes possession of something presumed to be lost or mislaid by the owner.

-Must have the intent to control the object and must amount to an act of control

Armory v. Delamire Rule-

Title of finder of lost property is good against all but the true owner or a prior possessor ( is a relative relationship)

Difference between:

Lost: finder entitled to possession against all but true owner (kid finds jewel in chimney)

Misplaced: finder not rights to mislaid property (McAvoy v. Medina= Misplaced Pocketbook cause on counter not floor so not lost and finder can’t keep it shopkeeper keeps it cause in best position to get back to true owner)

Abandoned: finder entitled to keep abandoned property,...

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