PROPERTY I
FALL 2004
I. An Introduction to Some Fundamentals
· How do we order relationships among people regarding things?
· Central Questions regard: Acquisition, estates and future interests, easements and covenants
· In any rule making situation, there will be winners and losers, so it’s critical that ‘meta-rules’ be perceived as fair. If the process seems fair then it increases social stability.
· “First-possession” and “possession” are important principles in property
· First possession is not the same as winner take all. It is usually tempered by some rules that limit the amount that one can claim.
· Pros of first possession
o Facilitate certainty (efficient exchange)
o Reduces conflict that lead to wasted resources
o Rewards early bird
o No relocation (or reallocation) costs
o Hard to prove that anything else would be better, and some social disruption would occur with the introduction of other approaches
· Cons of first possession
o Punishes late arrivers (even those with good excuses)
o Might take away incentive for those bound to finish 2nd but would otherwise produce something of value
o Sometimes quick work is not a good thing
o Locks in earlier (perhaps unfair) distribution patterns
o Arbitrary (could use might-makes-right, most qualified, neediest, etc for distribution. Could use lottery system or auction for the land.)
A. Chapter One: First Possession: Acquisition of Property by First Discovery, Capture, and Creation
1. Acquisition by Discovery
a) Johnson v. M’Intosh
· Facts – two parties claimed title to land parcel, one based on US title, one based on older Indian title
· Rule: Discovery = title. System is based on this fundamental. Indians still have right of occupancy, but b/c of resistance to assimilation, gov’t has right to move them. “However extravagant the pretension…if the principle has been asserted in the first instance, and afterwards sustained; …it becomes the law of the land”
b) Discovery of Caves
· The rights to caves are generally determined by the legal maxim that a landowner owns the earth below his surface, rather than by the rule of capture. Each surface owner is entitled to share profits from people visiting the portion of a cave under his property.
2. Acquisition by Capture
a) General Rule: Whoever is prior in
als that develop a habit of returning to the captor’s property continue to belong to the captor as they roam at large
· Escaped wild animals
o In these cases, the original captor loses possession unless a second captor has notice that the animal has escaped from someone with prior possession (e.g., an elephant found in the Pennsylvania woods).
· Limitations
o Congress has enacted laws to protect endangered species, and a state can regulate its natural resources under its police powers
f) Notes, Questions, and Problems: The Rule of Capture and Other “Fugitive” Resources
· Rights to Oil and Gas
(1) Applying the rule of capture to oil and gas permits a landowner to extract (“capture”) all the oil and gas from a well bottomed under her land even if it drains from a neighbor’s land. However, the “capture” must be non-negligent.
Limitations—States have enacted statutes regulating the extraction of oil and gas deposits
