PROPERTY
THE CONCEPT OF PROPERTY AND ITS PARAMETERS
I. WHAT IS “PROPERTY”? – Rights and duties among people that concern things.
A. An “Unanswerable” Question?
1. Public defines property as things; lawyers view property as rights.
2. Law defines property as rights among people that concern things.
B. Property and Law – TWO MAJOR THEORY
1. MAJORITY VIEW: Legal Positivism – The view that rights, including property rights, arise only through gment.
2. HISTORICAL VIEW: Natural law theory – Rights arise in nature as a matter of fundamental justice, independent of gment. The Dec of Independence was the high water mark of natural law theory in the US.
C. Defining Property: What Types of “Rights” Among People?
1. Scope of Property Rights – Not absolute; must serve a socially-acceptable justification
a. The view that property rights are absolute–that an owner can do anything he wants w/ his property–is fundamentally incorrect.
b. Property rights are limited in our system. They exist only to the extent that they serve a socially-acceptable justification.
2. Property as a Bundle of Sticks
a. Traditionally label the sticks according to the nature of the right involved. The most important sticks in the bundle are:
(1) the right to exclude
E.g., a trespasser; but not absolute, cannot exclude PD; running for a bear, you have a right to escape
(2) the right to transfer
Cannot transfer to avoid creditor’s liens; cannot refuse to sell to another based on race.
(3) the right to possess and use.
b. Other rights:
(1) use/lease
(2) mineral/air
(3) own
(4) access
(5) view, air & light
(6) subsurface
(7) development – could put conservation easement on land so property cannot be subdivided.
(8) water
(9) mortgage
(10) profits (timber, game, fish)
D. Bundle of Sticks Metaphor
1. Traced to 1888 book on eminant doman
2. Common to describe property as a “bundle of rights” after First Restatement of property in 1936
3. Only 4 cases prior to 1940
4. prevalent since
5. Rights in the bundle can be divided by time and person
E. Defining Property: Rights in What “Things”?
1. Real property – rights in land and anything attached to land
2. Personal property – rights in things other than land
a. Chattel
b. Intangible personal property
c. Exception:
(1) wild animals
(2) most human body parts
II. TRESPASS
A. The Right to Exclude
1. SC explained the right to exclude is “one of the most essential sticks in the bundle of sticks that are commonly characterized as property.”
2. The law protects a landowner’s rights to exclusive possession in order to maximize the efficient use of land.
3. Exceptions to the right to exclude include:
a. Not allowed to keep out gmental officials
b. Can’t bar the police if in hot pursuit
c. If someone is running from a bear, they’re allowed to trespass in order to escape
d. Medical emergencies
e. Firefighter
f. Gment surveyors on your property (in certain states)
HYPO: go to mall to get signature on petition; would mall be able to preclude you from doing so? No. b/c a public place. Same scenario, could you go into a private property and do the same? Yes.
HYPO: Mall was deemed a public place–even though privately owned. Even w/ right to exclude, even if private property, it may take on aspect of public.
HYPO: NBC reporters come into Food Lion, apply, take secret filming. Can Food Lion proceed w/ action for trespass? Yes. Jury said trespass and fraud. $1 nominal each. Punitives: $5.5 million
Appeals court: reversed in part. No trespass to initial entry, but there was a trespass b/c of filming. Fraud reversed, so award was $2.
B. What Is a Trespass?
HYPO: A and B are golfing. A pushes B onto private property. A is guilty of trespass; B is not.
HYPO: I own property; neighbor built shed over property line. This is an encroachment. Same result as common law–take down or pay damages; you have choice. Encroachments
C. Trespass and Rights of Migrant Farmworkers
State v. Shack
TOPIC: Right to exclude/trespass
PROCEDURAL FACTS: Ds entered private property owned by Tedesco to aid migrant farmworkers employed and housed there. Owners demanded Ds to leave; they refused, and were charged w/ criminal trespass. Ds were convicted and appealed from Municipal Court and in the County Court. “Before us, no one seeks to sustain these convictions.” Tedesco did not respond to the appeal and the prosecutor “expressly disclaimed any position as to whether the statute reached the activity of these Ds.”
EVIDENTIARY FACTS Tedesco employs migrant workers for his farm. Tejeras is a field worker for SCOPE, to provide for health services to migrant workers. Coming to remove sutures. Shack is a staff attorney w/ CRLS, which gives legal advice and rep to migrant workers. Differences already existed amongst these parties. Tejeras and Shack arranged to go to the farm together to conduct business. At the farm, Tedesco offered to bring the workers to his office where they could be interviewed in his presence; Shack/Tejeras refused. Tedesco called a state trooper and executed a formal complaint of trespass. The constitutionality of the trespass statute is challenged on appeal.
ISSUE: Whether the camp operator’s rights in his lands may stand b/t the migrant workers and those who would aid him.
HOLDING/RULE OF LAW: Under state law the ownership of real property does not include the right to bar access to gmtal services available to migrant workers; hence, there is no trespass w/i the meaning of the statute.
The migrant worker must be allowed to receive visitors of his own choice so long as there is no behavior hurtful to others.
RATIONALE Title to property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law. A man’s right in his real property is not absolute. It has long been true that necessity, private or public, may justify entry upon the lands of another. There is now an embodiment of stewardship. Farmer is entitled to pursue his farming activities w/o inter
control over his cells before removal.)
A: Court was unwilling to characterize the removed cell’s as Moore’s property for two main reasons:
1. It concluded that a CA § governing the disposition of human body parts following scientific use drastically preempted the patient’s control over removed cells.
2. Striking a utilitarian theme, the court reasoned that recognizing conversion liability would harm society by discouraging vital medical research.
C: Use of excised cells in human research did not constitute conversion.
B. Reflections on Moore
–It is not clear how Moore lost title to the body parts he owned before surgery
–How did the physicians gain title to Moore’s parts?
–What if a thief had stolen them from the lab? Could he have been prosecuted?
Much of the difficulty arises from the court’s reluctance to concede that property rights can exist in human cells.
P. 59
If the cells are property, then how did Moore lose ownership?
Why didn’t Moore lose his rights by abandoning his cells? This finding is not available b/c Moore did not plead facts establishing abandonment, so it could not be addressed on appeal.
The court may have reached the same result by conceding that Moore owned the cells, but he did not have the right to sell them or profit from their commercial use. Just as body organs cannot be sold for transplantation purposes, many other forms of property are “market-inalienable.” They can be given away, but for reasons of public policy, they cannot be sold.
C. Should Human Organs Be Sold? P. 59
Argument in favor: It maximizes social utility. Sick get the organ; donor is compensated.
Personhood theory would object to organ sales as incompatible w/ human dignity. Human organs cannot be seen as mere property, but must be seen as legally unique.
P. 60
Sales of body organs would be consistent w/ libertarian theory: All persons have complete decision-making authority over parts of their bodies, w/o any need for societal paternalism inherent in the current ban.
Utilitarian theorists argue that:
–the social cost of organ sales may outweigh any benefit.
–a market approach would exacerbate the division b/t rich and poor
Rich could buy organs; the poor, who need the money, would supply them presenting concerns of human exploitation
–social burden caused by unregulated organ sales
