Property I Outline
Part I: Access to Property (focus on real NOT personal property)
1. Prpy. Rights b/w Sovereigns & Forced Seizure Prpy. from Native Americans
· Govt. determines how property is owned & what property is
· Frameworks of Property Law:
o Derives from a “social impact” that finds its forms in a mandate of the sovereign
§ Not inalienable, it is a social compact—whatever sovereign decides
§ In our society, our sovereign is from the people, so it is a circular sovereign (govt.)
o The govt. determines the property interests that will be protected
§ No property is worth anything unless government backs it up with enforcement
§ No abstract property, it is inalienable
§ Inalienable Right: Government can take it away so long as there is a proper hearing
· Property is, along with marriage, right to have sex
o Two levels of property rights: Inter-sovereign and INTRA-sovereign (individual interests)
§ Rights that sovereigns have between themselves (inter)
· Boundary disputes between Canada and US
· Property agreements between the Native American nations and US government
§ INTRA (sovereign and yourself)
o Sovereigns hold title to public property and resources that benefit the commons; the sovereign may also regulate to protect the commons
§ Before land was stolen from federal government and owned by private individuals….
o each individual possesses two sets of property rights
§ Two sets that we possess:
· 1) private (those that are yours)
o Right to own home
· 2) shared (those that are shared) The Commons
o Right to use a public park
o Rights as a member of the public
o With ownership you require responsibilities
§ Property Law is a combo of rights and responsibilities
o Property Law is encumbered by limits imposed by nature
§ i.e. environmental law impacts ownership
· Las Vegas wants to expand well into desert, could be impossible to get ground water supply, so they don’t get built
§ It is naturally incumbent
· Takings Clause: government can’t take private property for public use with out just compensation (following due process clause) [part of Bill of Rights, is 5th Amendment, in it, this clause]
· Law of Conquest: Displacing populations that already exist; “Contracts w/nations” huge misnomer
o TreatiesàReservations: reserving sovereign rights to fish and hunt in off-tribal territory (observation of right of self substance)
§ Native American lands are considered sovereign nations, they are federal owned, not considered part of the state they are located in
· Rights retained: Occupancy in many cases, not ownership
§ Ownership was stripped from tribes of land
· Two Ways U.S. Got deeds: 1) conquest and 2) purchase from the tribes
§ Proper Chain of title: derives from first deed
2. Indvl. Ppty. Rights to Natr’l Bounty; Wild Animals; Oil & Gas; Water
· Real Property: all is NOT fungible (real property is unique)
o Even though two pieces of land might be worth the same, they are not considered the same, they are not fungible, they are unique
o Personal property can in some instances be fungible
· Wild Animal Case: Pierson Fox Hunt [APPLICATION: Certainty Doctrine]
o Exception: this is NOT a real property case this is a PERSONAL property Case
o Fox hunt: about the chase, not to shoot right away
o D given fox because he captured it, even though came in at end
§ If Court did give to P reasons would be:
· Reasonable expectation-his argument is based on reasonability standard
o Fairness standard in light of labor he put in AND custom and tradition of fox hunting
§ Overriding reason why court favored Pierson:
· Certainty-no moral right that Pierson has over Post
o Not mere possession
o Possession is a proxy for certainty
o We know who made the kill, we don’t know ex post facto, what was the contributory factor for that kill (i.e. was it a tired fox)
o Dissent: Hunter should be given fox for time and effort put into trying to get it
o Take Home who gets fox: Who killed the fox-better answer than who possesses it
o Schools of Thought:
§ Tompkins (pro- Pierson/Interloper): ancient writers demand possession; distinguish contrary cases
· Damnum Absque Injuria (freedom of action)
o Consequence of majority opinion, allows Pierson freedom to act
· Administrability
o clear Rule Promotes Certainty
· Economics
o Encourage COMPETITION; reward captors
· Rights
o freedom of action
· Custom
o law is independent of Custom
· Morality
o Lack of Courtesy Does Not Establish legal Wrong
§ Livingston (pro-Post/Hunter): ancient writers ambiguous; that was then, this is now
· Sic Utere Tuo Ut Alienum Non Laedas (Security of expectation)
o Reasoning of the dissent
· Administrability
o flexible standard does JUSTICE
· Economics
o Protect Investment; reward hunters
· Rights
o Security of Expectation
· Custom
o Law should defer to Custom
· Morality
o Pierson acted wrongly
· Natural Resource Case: Eliff Fox Hunt [APPLICATION: natural resources]
o Facts: negligence of a neighbor causes your natural resource to deplete
o Outcome: Petitioner wins; R acted negligently by wasting resources
§ Oil & Gas part of soil and part of ownership that comes with ownership of land
· Types of Water/Overview:
o Percolating Groundwater
o Diffuse Surface Water: pond, lake, marsh, river, stream creek
o Riparian: stream/river
o Littoral: sea/ocean
o Not unlimited, it is abundant resource
o States regulate them all sorts of ways
· Groundwater:
o Free Use or Absolute Ownership Doctrine
§ You can take as much as you want from the water features
o Reasonable Use: Can take as much as reasonable, it is objective, not subjective, what is objectively reasonable
o Correlative Rights:
§ Apply to ground water
§ Apportion of a percentage of groundwater depending on who owns land above (this is contrary to Eliff Rule)
o Prior Appropriation: Less popular now
§ First come first serve
o Policies &Schema that best serves each policy:
§ 1) Reasonable expectations: reasonable use, prior appropriation, correlative rights
§ 2) labor/investment: prior appropriation
§ 3) social utility (maximize resources): reasonable use
§ 4) Certainty: everything but reasonable
§ 5) Possession: everything but reasonable
· Riparian Water (Flowing water w/natural course):
o Natural Flow
§ Entitled to water so long as you do not divert its natural course
o Reasonable Use (Natural v. artificial)
§ Allows a certain amount of diversion
· Artificial: not following natural flow
o Prior Appropriation
§ First come, first serve
o Hybrid (CA)
§ Combo of all
o Further subdivision: navigable versus non-navigable
§ Navigable riparian: rivers, the state owns the land beneath the river
· BUT the federal government has a navigational easement over all land
o So state can’t prevent navigation, but it is not federal land, it is still owned by the state
§ Non-Navigable: US has navigational easement also
· BUT it is much more heavily regulated
· It can be privately owned (land underneath it can be privately/state owned)
· But its use, particularly its filling is heavily regulated by the CWA (clean water ACT)
3. Relativity of Title & Finding Prpy.
· Relativity of Title:
· Possession/occupancy; Ownership title
· Key: there is a third party
o Someone transferred possession to someone else and someone else comes in claiming it is theirs
o You can only have what you have (“ what’s yours” doesn’t mean possession, it
t makes sure he doesn’t sell it
§ Liquidated damages clause of a value much higher than value of actual jewel
4. Trespass; Pub. Pol. Limits on Right to Exclude; Right of Access to Pub. Prpy.
· Right to Exclude Doctrine:
o Very center of a property right
§ The right to exclude is closely related to the individual’s interest in privacy
o With every right that you have with respect to retaining property you garner an equivalent or greater responsibility with it and the question is to WHOM you OWE those responsibilities
o Every property right is someone else’s responsibility (not to interfere) and every responsibility is someone else’s property right
o In commercial settings, public policy may outweigh the right to exclude
§ Public policy: allowing limiting right of exclusion
§ The right to exclude isn’t based on protecting an individual’s privacy interest, it may be to protect commercial reputation
§ Weighed against 1st amendment expression (1st amendment of people looking to…)
§ Weighed against Const’l or statutory anti-discrimination interests
o Private Property Opened to Public: i.e. Restaurant, Department store/shops
· Trespass:
o The intentional unprivileged intrusion on property possessed by another
§ Exceptions: consent of own, public policy necessity
o Protects the private individual’s right of privacy AND the right to exclude others
o Commercial enterprise: right to privacy falls away virtually completely & public policy issues are greater (trespass modified here)
o Statutory and common law
o Remedies: nominal damages (for mere entry), compensatory damages (for harm: ruin bed of petunias), declaratory judgment (this is private property not allowed back on it), injunctive relief
· Right to Exclude Case: Uston Case [card counter-public enterprise]
o Facts: card counter and casino excluded him because of that
o Uston: says he has a right of reasonable access
o Resorts: absolute right of owners to exclude
o Ruling: the more private property opened to public use, the more it must accommodate users (cites Shack)
o Doesn’t threaten security or disrupt functioning
o ****But 9th Circuit: casinos can keep card counters out
· Right to Exclude Case: State v. Shack Case [migrant workers on land—access to them; public policy emphasis]
o Facts: this is a prosecution case: Tedasco is upset with Harris and Shack want access to migrant workers; owner willing to give access on own terms (supervised in owner’s office); there was trespass by D here—met the elements of T
o Supremacy Clause: essentially says, in the field in which federal government has an expressive mandate, the mandate comes from the constitution itself or where it has occupied the field, state and local governments are not allowed to have laws that are contrary to the federal laws; federal laws can be statutory, judicial, any kind of federal law (used as a Defense w/1st Amendment)
o Court intervention: Paternalistic reason-law essentially saying you can not protect yourselves so we will do it for you
