Introduction
What is property?
The law defines property as rights among people that concern things.
In other words, property consists of a package of legally-recognized rights held by one person in relationship to others with respect to some thing or other object.
Property arises where one can have his/her right to land or chattels respected and enforced by a court of law.
Property as a “Bundle of Rights”
Right to exclude;
May exclude others from the use or occupancy of the particular “thing.”
May prevent neighbors from trespassing;
May prevent others from eating fruits off your tree, etc.
Right to exclude is not absolute.
Police may enter in pursuit of criminals;
Cannot prevent medical or legal personnel to employees on property (State v. Shack)
Right to transfer; and
O may sell his rights to a buyer, donate them to a charity, or devise them to his family upon his death.
However, the law imposes various restrictions on this right.
Some property cannot be sold at all (e.g., human organs)
Some property cannot be devised (e.g., life estate)
Right to possess and use.
Virtually all land in the United States is subject to statutes, ordinances, and other laws that substantially restrict its use.
Zoning restrictions, HOA covenants, etc.
Property and Law:
Legal Positivism:
Foundation of property rights in the United States.
Property rights exist only if and to the extent they are recognized by our legal system.
For example, inJohnson v. M’Intosh, the Supreme Court stressed that in deciding land claims based on Native American rights, it could only rely on laws adopted by the federal government, not on natural law or abstract justice.
Natural Law Theory:
Rights arise in nature as a matter of fundamental justice, independent of government.
Locke argued that the role of government was to enforce natural law, not to invent new law.
Why Recognize Private Property?
(1) First Occupancy (First Possession)
The first person to take occupancy or possession of something owns it.
This theory is a fundamental part of American property law today, often blended with other theories, particularly utilitarianism and the labor theory.
Critique: This theory is counterproductive because it encourages the waste of natural resources.
Consider hunting. If property rights in wild animals are allocated to the first successful hunter, then long-term conservation is impossible. Because no hunter can control the conduct of other hunters, each hunter has an incentive to protect his or her individual self-interest by killing as many animals as quickly as possible.
One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.
(2) Labor Theory
John Locke (Natural law theorist)
Theory: People are entitled to the property that is produced by their labor.
Every man has an exclusive property in his own person and the fruits of his labor.
Whatever a man removes out of the state of nature and joins with his labor is thereby his property.
This fusion of labor with property occurs at the first instance of labor (i.e., gathering the acorns) and does not require the consent of the common under whom the property was previously held.
Assumes a world in a state of nature, without private property ownership and requires that land is appropriated from the common for beneficial use.
Attempts to explain how unowned natural resources (e.g., wild nuts, game, or unoccupied land) are transferred into private property owned by one person.
The theory proceeds in four basic steps:
(1) Every person owns his body; (2) thus, each person owns the labor that his body performs; (3) so, when a person labors to change something in nature for his benefit, he “mixes” his labor with the thing; and (4) by this mixing process, he thereby acquires rights in the thing.
Acquisition is not without limits; one may only fix a property in so much as he is able to use for advantage before it spoils and beyond that is not his and belongs to those who can use it for advantage.
Attempts to prevent over-consumption.
(3) Utilitarianism: Traditional Theory
Private property exists to maximize the overall happiness or “utility” of all citizens.
Accordingly, property rights are allocated and defined in the manner that best promotes the general welfare of society.
This is the dominant theory underlying American property law.
When applying the Utilitarian Theory (T, a trespasser v. O, the owner)… the decision depends on what T’s ultimate objective was in increasing the wealth of society.
(4) Utilitarianism: Law and Economics Approach
Private property exists to maximize the overall wealth of society.
The law and economics approach incorporates economic principles into utilitarian theory.
This view essentially assumes that human happiness can be measured in dollars.
Critique: One major concern is the assumption that social value can be appropriately measured only by examining one’s willingness to pay.
N
mals’ habitat does not confer property rights in the animal.
Evaluation of the Capture Rule:
Today the capture rule is condemned by legal scholars because it encourages the destruction of wild animals.
Regulation by Government:
Modern game laws and other government restrictions have substantially eroded, though not erased, the capture rule. States routinely regulate hunting and fishing within their borders to protect wild animals.
When hunting is permitted, government regulations are usually consistent with the “capture rule.”
Pierson v. Post, 3 Cai. R. 175 (1805)
*The leading case for interpreting the capture rule.
Court adopted the actual capture standard.
Facts: Post, on a patch of “unpossesed” land, found and pursued a fox. Pierson, fully aware that Post was chasing the fox, killed it himself to prevent Post from catching it. Post sued Pierson for damages against his possession of the fox. Post argued that he had ownership of the fox as chasing it was sufficient to establish possession.
Issue: What acts amount to occupancy, applied to acquiring rights to wild animals?
Whether Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away?
Rule: A hunter who actually kills or captures a wild animal, and immediately takes possession of it, acquires title.
Court’s decision follows John Locke’s labor theory: he who exerts energy should reap benefits.
Holding: However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, his act was productive of no injury or damage for which a legal remedy can be applied.
Dissent: Proposed a “reasonableness test.” When a hunter has been chasing a wild animal, and has a reasonable prospect of taking the animal, then it should belong to the hunter and not another “occupant” who captures/takes it by chance.
Follows John Locke’s labor theory: he who exerts energy should reap benefits.
