PROPERTY OUTLINE
Professor Cecil Hunt
Spring 2015
FIRST POSSESSION: ACQUISITION OF PROPERTY BY DISCOVERY, CAPTURE, AND CREATION:
ACQUISITION BY DISCOVERY
· The bundle of rights theory: within this bundle of sticks, include the right to possess, exclude, transfer and control. The essence of property is the right to control and exclude. A central authority is needed to back it up. Without the authority you can only control as much property as you can physically protect. Before the state there was not property. There was only what you could grab and defend. To have a property right means you have a right that is recognized by the state and will be enforced by the state.
· Definitions:
1. Title: The legal link between the property and the person who owns the property. The right to extinguish the title, meant that they had the absolute right to control the land.
2. Real Property: Land and anything firmly attached.
3. Personal Property: Anything that is movable; anything not real. Chattel.
4. Acquisition: a way in which property is acquired. Most common way sort is a voluntary transfer like a gift or purchase.
5. Occupation: given permission by the owner to inhabit a certain piece of land.
6. Possession: (i) intent to control; (ii) physical possession; and (iii) manifestation to control.
7. Actual Possession: physical control and dominion of property.
8. Constructive Possession: construction or dominion over a property without actual possession or custody it
9. Discovery: the sighting or finding of unchartered territory.
10. Conquest: taking the possession of enemy territory through force, followed by formal annexation of the defeated territory.
11. Chain of Title: links the transactions by which a parcel of land moves from one owner to another over time.
12. Accession: comes into play when one person adds to the property of another by labor alone.
13. Ejectment: A legal action by which a person wrongfully ejected from property seeks to recover possession, damages and costs. An action by the rightful owner against an occupier of the property who is a wrongful occupier
14. Res Nellus: an unknown thing subject that is available to be claimed. Unowned subject to be taken into possession.
15. Fee simple title: Complete Title.
The Principle of the first in time: being there first somehow justifies ownership.
The institution of private property became necessary to maintain peace (17th century Grotius)
How do two claimants stating possession because they were first to something resolve the issue? Who gets possession? There is not good answer. It is not based on logic, it is based on policy. What kind of state do we want? Policy drives rules. Logic comes from rule, but the rule comes from policy.
Policies that make the society worse off are not enforced. Those include contracts involving gambling debt contracts, prostitution contracts, etc.
Labor Theory: man is obliged to respect the claim of the first possessor because the law of nature bound all men before human conventions were thought of. Furthermore, one owns one’s own labor. If one person finds property comparatively worthless and increases the value through his own labor, he is the rightful owner of the property (as it was reasoned in Johnson that the Indians’ occupancy of the land did not involve a sufficient amount of labor to be have property interest in the soil).
· The law of Accession: When one adds to the property of the un-owned by labor alone, one owns the property. When one adds to the property of the owned by mixing oneself into it. The courts generally find and award the final product to the owner of the raw material, unless the labor significantly increases their value. The owner of the raw material however can claim restitution.
HYPOTHETICAL: Famous artist has too much to drink, is seized by the moment and draws a magnificent masterpiece on the wall. An art expert says I will pay $1 mil for it. Who gets the profit, you b/c it is your house or the artist? 1. Owner gets the million dollars b/c he owns the property and he did not consent to the artist drawing on the wall. Artist can argue implied Consent: No one stopped him and the owner watched him do it. 2. Owner gets the value of the wall, but the artist sues under Doctrine of Accession for saying that he added the value to the wall and therefore should have right to the property and the profits.
ACQUISITION BY CAPTURE
Farea Naturea: Animal that is wild by nature. The animal that flees from captivity. Mankind is the ultimate farea naturea. John Locke: In the state of nature, ever man is every other man’s potential murderer.
Domoti Naturea: Naturally tame. It tends not to resist to capture
Rationale Soli: “on account of the soil”. Refers to the conventional view that an owner of land has constructive possession of everything located on the land at the present time.
Relativity of Title: The question is not who the owner is, but who has better title to it. Those having prior possession have relatively better title then the new possessor
The things we need to know about a farea naturea animal who escapes captivity:
1. The marks of appropriation on a farea naturea animal (a tag or a mark) show ownership over that animal to whoever tries to capture it; and
2. We need to know whether it escapes to its natural habitat or not. If it not in its natural habitat (an elephant in the city) that tells someone there is a prior appropriator.
Rule of Capture:
1. One must deprive an animal of their natural liberty by (i) capture; (ii) kill; (iii) mortally wound; or (iv) trap the animal without hope for escape in order to be granted ownership. Mere pursuit does not suffice.
2. General customs should only be referred to when it is reasonable.
3. Wild animals belong to the owner of the land and are part of it, so as long as they are on it, and are subject to its control, the title of the former owner is gone.
Water: The rule of capture with the slight addition that the wasteful use of water if they harm neighbors would be unreasonable and therefore unlawful.
Oil & Gas: Use the rule of capture to determine the proper owner of the resource.
HYPOTHETICAL: A and B’s land share common boundaries. A captures a wolverine. He cages it and then waits until he sees the neighbor in his backyard, sets the cage with the door facing the neighbor (while still in his own property) and releases the wolverine. The wolverine runs and bites the neighbor. The neighbor brought suit. To the extent that the wolverine is in his natural habitat, he is not A’s property onc
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· When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal.
HYPOTHETICAL: If someone just moved to the Code and found the whale, would they be required to find the owner? Yes, because a reasonable person would not just assume that the whale was theirs because they found it. They would think that it had to have been someone else’s.
Two types of reasonableness:
1. Objective: what a similarly situated person would have done in that situation; and
2. Subjective: based on that person’s feelings or emotions. The standard is objective reasonableness.
Keeble v. Hickerlingill
Queen’s Bench, 1707
· When you have two lawfully competing property rights interfering with each other, it must be resolved with which use serves the greater public better. (The plaintiff was supplying ducks to the marketplace and makes his land usage better then the defendants). One can interfere if in a competitive nature as policy encourages competition.
HYPOTHETICAL: There are two school masters. School B gets in the way of School A’s kids as they are on the way to school just to scare them from going to school. This states a cause of action as it was done maliciously. If School B tries to divert School A’s kids to his school however, there is no cause of action. The policy goal is that children are educated which can be done at either school and competition is okay as long as the final result benefits society.
Fiduciary Duty: A legal obligation to act for the benefit of another, including subordinating one’s personal interests to that of the other person.
HYPOTHETICAL: Barber sells famous baseball players hair on Ebay . Is he allowed to? Yes because the hair is Res Nellus. It has been abandoned by the baseballs player.
Jacque v. Steenberg Homes, Inc. (Wisc. 1997)
· Steenberg Homes had to deliver a mobile home and the easiest route of delivery was across the land of the Jacque’s.
· The US Supreme Court recognized that the private landowner’s right to exclude is one of the most essential sticks in the bundle of rights.
State v. Shack (N.J. 1971)
· Defendants are governmental workers assisting migrant workers. They were entering plaintiff’s property to meet with migrant workers who were employed and housed by the plaintiff. Access to the migrant workers was restricted by the plaintiff.
· You cannot do whatever you want on your land since the grant of ownership comes from the state. Since the state grants it and protects it, they can condition the terms in which you get it.
