What is property? Bundle of sticks = bundle of rights: legally protected interests held together by competing and conflicting policy goals
Rights originate in various ways: conquest, discovery, creation, K, family origins…
Key rights/concepts: exclude/include, possess, transfer/dispose, use and enjoy
*Can’t sell own body parts à Can’t interfere w/Public Policy Aquisution by DiscoveryIn Johnson v. M’Intosh 1823 the U.S. Supreme Court cofronted rival claims of ownership for land in Ill. Johnson bought land from the native americans. Mc’Intosh aquired title from the fed gov. after Johnson bought it from the native americans. Court held Native Americans only had aboriginal title , a right of occupancy that could be cut off by the U.S. Eurocentric approach and also the idea that the US derived this right by conquest of the Piankeshaw. Property rights are defined by the society at which they are at issue.
“Locke’s Labor Theory”: once you take something and add your own work to it to change it, it is yoursDiscovery: Capture
· wild animals may be one of the few things that are unowned and susceptible to capture
· bases for hunting: encourage competition and ensures the beneficial use of resources & eliminate nuisances, the overpopulation of animals
· actual possession- the usual method of aquiring a property right in a wild anima is actually to possess it – dead or alive
· Pierson v. Post 1805 -dead fox. Post chased a fox on common unowned land- a wild beach and before Post had wounded or captured the fox, pierson intervened, killing and taking the fox although he knew of Post’s pursuit. The court declared Post did not own the fox until he had actual possession of it. Mere pursuit was not enough. The result was defended on the ground that it would promote certainty and peace and get people to kill foxes (a public nuisense). Livingston dissented on two grounds. 1) it is better to adopt the custon of sportsmen to determine ownership. 2) reasonabe likelihood of capture should equal ownership cuz more likelihood of killing foxes (public policy debate) should it depend on actaul possession, mortal wounding (near certainty of capture) or hot pursuit w/ reasonable liklihood of capture.
*If π alleges wrongful dispossession, he might sue D via the following forms of action:
-Replevin: action for recouping what has been taken by another
-Trespass on Case: indirect interference w/property
-Trespass: π alleges that ∆ directly interfered w/property
-Trover: π alleges that ∆ has “found” your property, but sues for damages instead of return of property
Custum
· When should customary rules pertaining to aquisition of ownership establish the legal doctine.
· Custom is recognized if:
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· -Dealing w/a specialized industry that is somewhat small
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· -The custom is pervasive, i.e. affects the entire industry
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· -The custom is necessary to preserve the industry
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· -The custom is undisputed in the community
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· Policy: Customs are applied to encourage continuing with the industry
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· Custumary rules often arise to maximize the well-being of the group creating the custum, to ensure that individuals do not grab benefits for themselves that impose net losses on the group as a whole. Individuals conform to customary rules out of self iterest.
· Ghen v. Rich – Mass. bay whaling community of the nineteenth century whalers used “bomb lances” to kill fin back whales. Each lance was distinctly marked to denote a particular whaler. The carcassess sank at first, but after a few days they would wash ashore. Once they were word would be passed to the person whose lance it was and he would collect his whale, and pay a smal fee to the finder. in Ghen v. Rich. the finder of the whale, Ellis, defied custon and sold it to Rich. The Court held that custom determined ownership because the nature of the fin back whale indusrty was such that animas could only be killed w/out aquiring immediate possession. policy reasons behind it otherwise no one would hunt them and therefore society would be deprived of the blubber. also look in book at the whole small sommunity, defined custom ect.
Policy
· courts want to 1) reward productivity and foster efficency 2) create simple easily enforceable rules. 3) create rules that are consisten with societal habits and customs and 4) produce fairness in terms of prevailing cultural expectations of fairness. sometimes these principles all point to a single resolution sometimes they point different directions.
· Keeble v. Hickeringill early 19th century england landowners created elaborate decoy ponds that were designed to trap large quantities of ducks and other waterfoul to be killed and consumed as food. Keeble maintained such a pond. Hickeringill his neighboor frightened the ducks away by discharging a shotgun nearby. cout held hickeringill’s conduct was actionable because he was maliciously interfereing w/ Keeble’s lawful activity. The court distinguished this case from fair competition ie a teacher cold lure student s from one school to anoth by offering better teching but it would be unlawful to frighten them away. because one improves society (better schools, duck for food) while the other doesn’t.
Relative Title Escapees and domesticate Animals
· When the wild animal escapes it is unowned. It belongs to the next first possessor. Domesticated animals aren’t wild so they continue to belong to their prior master when they wander off. A wild animal becomes domesticated when, as a matter of fact, it demonstrates a propensity to return “home”. (animus revertendi)
CAPTURE OF NATURAL RESOURCES
Common Resources: groundwater, oil and gas, solid minerals
General Rule: the first person to “capture” the resources, owns the resources – possession of the land is not necessarily possession of the resources
English Rule: whoever first captured the resource was the owner – no regard for neighbors
American Rule: a “finder” has a right to reasonable use only
-In West, some groundwater and surface waters are allocated according to “first in time” a/k/a “prior appropriation” : The person who first captures (appropriates) water and puts it to reasonable and beneficial use has a righ
e you click a box stating an understanding of what you’re doing ~ don’t market yoursel
Property Rights in your body
· Moore v. Regents University of California. Moore’s cancerous spleen was removed and w/out his consent or knowledge a valuable, pateted cell line was developed using moore’s unique “hairy leukemia” cells. no ownership b/c he had never expected to reatin possession of the spleen. courts reasoning for refusing to extend conversion to the to the human waste tissue from surgury was that it would chill medcal research. , the moral issues hould be left to the legislature to solve. possession coflict from b/w moores right of first possession to his body parts and scientists right to the unique cell developed from Moores voluntarily discarded Spleen. this case purports the view that body parts ought not to be for sale.
4. The right to exclude:the right of posession is usually concieved as containing a collorary right: the right to exclude others from posession. does the owner of land have an absolute right to xclude others?
· Jackue v. Steenberg Homes, Inc. 1997. Wisconsin Supreme Court upheld a landowners right to bar an unwarted trespasser from moving a mobile home across Jacques land declaring that a person has the right to “exclusice enjoyment” of their land
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· State v. Shack – New Jersey Supreme Court held that a landowner had no right to exclude a poverty agency worker and a legal services lawyer from from Tedesco’s farm, where they sought to visit a migrant worker wh0 is an employee and tenant of tedesco. Tedesco’s right to exclude ended where the tenant workers need for reasonable access by visitors began. rights are relative.
Finders Keepers
· A property owner continues to own their property even after it is lost or mislaid. But lost prop often ends up in the finders pocket. The finders claim to the property depends on who the rival claimant is and whether the property was lost, mislaid or abandoned. policy objectives in finders law 1) restore property to the true owner 2) reward honest finders, deliver the reasonable expectations of land owners, discourage trespassers and other wrongdoers and encourage the productive use of found property.
Abondoned Property -general rule: abandoned property is property to which the true owner has voluntarily given up any claim of ownership. Generally, a finder of abandoned property aquires title but this rule is not invariable. Trespassers are not likely to be rewarded with the fruits of their wrongful behvior , and owners of land where
