Property Outline
Fall 2006
I. Introduction
· To say that a person has possession of personal property is to state either an observable fact or a legal conclusion or both. A person can be deemed to have possession of property as a legal conclusion even though she does not have actual possession of the property as an observable fact. In such case the person is said to have “constructive possession.”
· To say that a person has “title” to or “owns” personal property is to state a legal conclusion. A person can be deemed to have title to property as a legal conclusion even though he does not have actual possession of the property as an observed fact. Conversely, to conclude that a person is entitled to possession of personal property does not necessarily mean that the person has title to or owns the property.
· Title, as well as property rights is a relative concept. A person may have title to property as against one person (A) but not another person (B).
· If it is determined that a person is entitled to the legal possession of personal property, that person has the right to:
o Continue the possession against everyone except those people, if any, who have a better right to the property;
o Recover possession of the property if it is wrongfully taken;
o Recover damages to the property from a wrongdoer.
· To constitute possession, there must be:
o A certain amount of actual control over the property
o An intent to possess the property and exclude others.
· Possession is related to ownership BUT NOT EQUAL
II. Theories of Initial Ownership
A. Discovery, Conquest, Etc.
Theory of First in Time – “The notion that being there first somehow justifies ownership rights is a venerable and persistent one.” Currently, this theory serves well as a descriptive or explanatory theory of the origins of property. Despite its persistence, the normative case for first possession – is commonly thought to be rather weak.
Locke’s Labor Theory – We all have property; it consists of our labor. Whatever we add our labor to becomes our property. This theory draws first occupancy but gives it greater moral weight. In terms of the Native Americans, Locke felt that their occupancy did not involve an adequate amount of labor to perfect a property interest in the soil.
Johnson v. M”Intosh (1823)àAcquisition By Discovery
· FactsàThe πs bought the land in question from Native Americans and the ∆s bought the land from the U.S. government. Both claim to be the rightful owners of the land.
· Issueàwhether Native American Tribes have the power to give title to land to private individuals.
· Holdingàthe court held that the government had rightful ownership of the land, and therefore the right to sell it. Therefore, the party who bought the land from the U.S. had the
nd.
· So, basically, there were various justifications being made to trump this first in time theory – 1) Moral superiority of the Europeans over the Indians who were referred to as savages, etc. 2) The Lockean theory of labor, and the court reasoned that the Indians didn’t really add labor to the land. i.e the Europeans were going to put the land to better use than the Indians did.
· Do you think Chief Justice Marshall like what he is writing? If Marshall affirmed the rights of those who bought the land from the Indians over the US gov. he would be calling into question the US government. He would be undermining hw we got the land, etc. If he decided that way, non-native Americans may not have had claim to the land where the Indians had it first. The Indians would have had legitimate claims to the land.
· It doesn’t really matter that the Indians were there or did something with the land; the point that matter is how they engage with others outside of the land.
This case shows us that circumstances push the law in a certain direction and when the rules don’t match the circumstances, the rules can be changed.
