Professor Sandez
Fall 2011
Property I
Liberty University
Property Outline
Terms:
1. Legal Positivism – rights arise through government
2. Natural Law Theory – Rights arise as a matter of fundamental justice independent of gov. (God)
3. Different Theories for Enforcement of Property –
a. Labor-Desert Theory – people entitled to property produced by labor
b. First Person Occupancy – first person to occupy property owns it
c. Utilitarianism – private property designed to maximize human happiness
d. Utilitarian & Economic – private property exists to maximize wealth of society
4. Sunbursting – Applying law retroactively (law created during case should not be permitted to apply to case if original defense depended upon opposing precedent).
5. Sources of Rule –
a. Constitutional – the constitution and other written documents establishing gov.
b. Statutory – legislative act within its authority
c. Administrative – regulation issued by government authority within authority
d. Common Law – law set by precedent case law
e. Private Law – agreement between parties establishing a specific relationship
6. Promissory Estoppel – A promise made without consideration may be enforced to prevent injustice if promisor reasonably expected to rely on promise and if promisee actually relied on promise to detriment (Local 1330 United Steel Workers v. US Steel Corp)
a. Workers relied on promise of company to remain open after many public announcements that it would. Workers might have won if law existed that workers gain stake in property arising from long-term, dependent relationship (comm. prop. interest)
b. Did workers have joint interest in company, entitlement to property?
7. Equitable Jurisdiction – (Local 1330 United Steel Workers v. US Steel Corp) – estop a company by issuing injunction forcing company to remain based upon economic reliance of workers
8. Right over Body – (Moore v. Regent of Uni. Of Cal.) – Court ruled no ownership in cells after removed (ownership prior to removal but not after) and discouraged vital medical research.
a. Moore only had right to sue for failure to disclose their research and economic interest
b. Market-inalienable – some property can be given away but not sold
9. Replevin – seek to recover chattel
10. Trover – seek recovery of damage to chattel (conversion)
11. Personalty – personal property
Bundle of Rights – Exclude, Transfer, & Possess & Use
Trespass – Intentional and unprivileged entry on property owned or occupied by another (possession)
· Strict liability (good faith, knowledge, & fault irrelevant) – Mistake is not a defense
· Punitive damages may be awarded if compensatory or nominal damages awarded
· No trespass when privileged entry (i.e. construction workers with permission)
o No trespass when government worker attempt to aid migrant farmers by providing services supported by federal and state statutes (State v. Shack)
o No trespass for necessity (i.e. firefighters, police)
· Trespasser liable if causes third party or object to enter another’s property w/o consent
o If A shoots shotgun and shell lands on B’s property, A is liable
Nuisance – Any conduct interfering with use and enjoyment of land
· Microscopic particles or sound waves can interfere with enjoyment of land.
· A blasts music preventing B from sleeping, A is liable for sound waves.
· No interference of use and enjoyment if no proven damages (i.e. particles that land on owner’s property yet causes no damage is not nuisance (unless it hinders agricultural growth))
Beach Access – (Public Trust Doctrine) State government given authority over navigable waters to protect public right to use (common property open to public and cannot be privately owned)
· Clear right to use wet-sand territory where tide reaches
o Some states permit access across dry sand and where use is essential or reasonably necessary for enjoyment of the ocean.
Encroachment – Permanent or continuous trespass caused by construction of building or object that partially extends on property owned or possessed by another
· Modern law forces owner to accept damages from trespasser when good faith mistake instead of forcing the removal of entire constructed object.
· Bad Faith Improver – loses ownership of improvement without compensation
· Good Faith Improver – Either remove improvement or receive compensation for market value of improvement that enhanced possessor’s land
Trespass – Injury to Possession
· If no harm, then nominal damages awarded, possible punitive (trespass to chattel & land)
· Applies where chattel is damaged, not converted (trover not appropriate)
Ejectment – Recover possession of land (must allege either prior possession or title to land)
Jus Tertii – Neither PL nor DEF, but a third party, is the true owner and only a true owner may bring lawsuit (affirmative defense – not permitted to recover possession)
· B
pable of transferring title
§ Utilitarianism aspect – US would use to maximize social welfare of society while Natives used for living and never improved the soil because of migration
o Predecessor to Adverse Possession – US made property rights open and notorious thus giving them title.
Property Rights in Wild Animals – Nobody owns wild animals in natural habitat
· Capture Rule – first person to capture, kill, or mortally wound animal during pursuit possesses that animal (probable capture not sufficient, must be actual capture or inevitability of actual capture) (clear possession / certain control – no certain control if in pursuit for two hours)
o Custom may dictate a different result (village or town custom differs from precedent)
o If A pursues fox for two hours and B intercepts and kills, B owns fox.
o If A traps fox in trap but is absent, B may possess within reasonable time for A to acquire
o When fox escapes A or is released by A, B may pursue and own (escaped animal is nobody’s possession).
o Exotic animal that escapes is still owned because of exotic nature, others should notice.
o Captured animal with habit of returning is considered property to whom it returns.
§ Domestic animal may not be captured because of nature of the animal, thus stray cattle may not be possessed b/c it should be known that they are owned
· Wild Animals on Property – no ownership of wild animals on property except those immobile animals (i.e. shellfish)
· Customs – May prevail in certain areas (requires showing of shared set of values between litigating parties, i.e. from same territory so that both understand the custom)
o In Alaska where whale hunters spear whales and wait for them to surface on shore, A killed whale and B took the carcass the next morning, A has action against B because his actions in taking the whale countered the customs permitting A to acquire whale later
§ Possible policy decision – nobody will hunt whales if anybody may find a whale that was killed by another party (free income)
