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Property I
Elon University School of Law
Rivers James, Faith

Introduction
· Bentham:
o Utilitarianism
o Without law there would be no property.
o Property is law.
o Who holds on to something doesn’t tell us who owns it necessarily.
o The law is 9/10 of property.
o Property is a set of expectations on how we are going to relate to each other.
· Ex. If you kill a deer people respect that it is yours.
· Radin:
o The attachment of a person to a thing shows how much that property means to them.
o Personhood Theory: Things that the value to you is much higher than it is to someone else. You would not sell it.
· Hardin:
o The tragedy of the commons.
o If there are no rules stopping you from taking what you want, men will gorge themselves, therefore, we run out of common space.
o We tend to use the land more than our fair share.
o We must regulate people in order to keep our common ground clean and open. Ex. Clean air and water.
o A freedom in a common brings ruin to all
· Need to limit what is available to all
· Demsetz:
o The need to internalize externalities leads to the development of private property rights.
o EXTERNALITIES
· Locke:
o The property that you first have is yours and inherently belongs to you.
o Labor Theory: Your body is your property and anything that comes from your labor becomes yours.
o The world is a common area in the beginning. By adding your labor to the common you earn the property right. Your labor does not have to be personal labor but that your money covers.
o There is a limit that every one person should take for themselves. A man should not take more than he will use or can labor.
· But, if you collect more than you can use and sell or trade it in commerce it is not spoiled.
· Man evolved from trading in stuff to now trading with money.
o Locke views native people on lands did not have right to own their land because they did not necessarily improve or labor the land.
· You must improve your land in order to claim it as yours.
· Applications:
o Heir’s Property
o Common Bikes

Capture/Discovery
· “Ownership:” Sticks in Bundle of Rights
o Use
o Possess
o Exclude
o Transfer

· Johnson v. M’Intosh
· Rule of Law: The discovery of the Indian-occupied lands of this nation vested absolute title in the discoverers, and rendered the Indian inhabitants themselves incapable of transferring absolute title to others.
· Rule of discovery:
· If you find it first the property is yours
· First in time, First in right
· Gives you Absolute Title
§ Exception: Right of Occupancy
· Right of Occupancy
· The right to occupy and possess the land.
· No legal ownership.
· No right to transfer
· No right to exclude other people
· To rid the right of occupancy:
· Conquest
· Purchase
· Bi-lateral Monopoly:
o You can only sell your property to one other person.
· You can charge what you want.
· People are not going to pay much for your property if you can only sell it to one person.

· Pierson v. Post
· Rule of Law: Occupancy of beast ferae natural is the actual corporal possession of the animal. Therefore, the act of pursuing the fox gave Post no legal right to the fox
· Rule of capture: Possession in wild animals may not be cliamed by mere pursuit.
· Possession Requires:
· Deprive of liberty
· Trapping
· Snaring
· Mortally wound
· Intent
· Certain Control

· Exceptions to Rule of Capture:
§ Role of Custom
§ Ratione Soli
· If a wild animal is on your property it is yours.
§ Interference with trade.
§ Animus Revertendi
· If an animal is domesticated it is mine.
§ Escaped wild animals (native?)
· If an animal is outside of it’s native area it is not wild.
· Constructive Possession:
· Owners are entitled to the wild animals of their property even though they haven’t technically captured it.
· Allows Ratione Soli to abide with the Rule of Capture.

· Ghen v. Rich
· Rule of Law: When all that is practicable in order to secure a wild animal is done, it becomes the property of the se

in the land it belongs to the owners of the land due to sublateral rights.

McAvoy v. Medina: Misplaced goods (items intentionally placed by the owner where they were found and then forgotten or left there) are deemed to be in the bailment of the owner of the property on which they are found for the true owner.

· How do you know if property is lost?
o Intent: Property the owner accidentally and involuntarily loses;
o Location: Lost property is usually determined by the location where the property is found.
· Property is considered lost if it is found in a location where no rational person would have deliberately left it.
o Finder has superior title to all others; except true owner and 4 exceptions.
· How do you know if property is mislaid?
o Intent: Property the owner intentionally placed in a location and thereafter forgot to remove.
o Location: Property is considered mislaid if it is found in a location that suggest the owner will come back for it.
o Owner of the premises had superior title to all others.
· How do you know if property is abandoned Property:
o Intent: Property the owner voluntarily relinquished with no intent to retain.
o Location: It is property left in a place and under circumstances that indicate that the owner voluntarily gave up both possession and title.
o First person with intent to possess coupled with control of the personal property is the new owner.

Acquisition by Adverse Possession:

· Adverse Possession:
o Allows you to get land that you do not have a deed for or a bad deed for.
o Can allow for a prescriptive easement: