Chapter I: What is Property
A. Two Conceptions of Property
a. Trespass to Land
i. Bundle of Sticks v. Right to Exlude
1. Bundle of Sticks
a. Hinman v. Pacific Air Transport (9)
i. Social Utility defeats Ad Coelum
ii. Have right to exclude from the airspace that you can use
1. Only trespass if it prevents owner’s use
2. Right to Exclude:
a. Jacque v. Steenberg Homes, Inc. (1)
i. Society’s Interest v. Landowner’s Interest in excluding toher from private land
ii. Intentional trespass
iii. Deterrence: General v. Specific
B. The Trespass/Nuisance Divide
a. Nuisance
i. Hendricks v. Stalnaker (23)
1. Wanted septic system but couldn’t b/c might contaminate drinking well
2. Nuisance: is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort
3. Interference with fee simple must be intentional and unreasonable and harm > value (septic more risk than well)
b. Exclusion and Governance
i. Exclusion: owner acts as manager or gatekeeper
ii. Governance: Prescribes rules about permitted and prohibited uses w/o regard to other attributes of the resource
c. The Coase Theorem
i. Societal allocations of rights are irrelevant to societal efficient, even in the presence of externalities as long as the cost of negotiating reallocations are nominal
ii. Rancher v. Farmer
1. Legislature should let parties determine maximized utility (No Transaction Costs)
2. Encourage dispute resolution among parties
3. Farmer may end up paying rancher to protect crops
iii. Find ways to avoid high transaction costs
d. Resolving Property Disputes by Contract
i. Possibilities
1. Mediate or negotiate arrangements
2. Find Coasean Bargains bf transaction costs are too high
C. Property and Equity
a. Repeated Trespass
i. Baker v. Howard County Hunt (42)
1. P wants D off land as it endangers his fee simple
2. P seeks Injunction
a. Where it appears D manifests intent to continue unlawful acts, saves from multiple prosecutions
b. Judicial Efficiency: saves from many suits
3. Problem with Equity (cover difference from damages)
a. Law would not afford adequate relief
b. When not adequate remedy in equity, can use injunction
ii. Permanent Injunction
1. P must show (1) an irreparable injury; (2) remedies at law (monetary damages) are inadequate to compensate for injury; (3) that, on the balance of hardships between P and D, a remedy is warranted; (4) public interest not jeopardized by injunction
b. Building Encroachments
i. Pile v. Pedrick (50)
1. Unintentional Encroaching Wall (1 3/8 inches)
2. Injunction to tear down wall because no right in law or equity to occupy land that does not belong to you
ii. Golden Pres, Inc. v. Rylands (51)
1. “de minimis” – small or minor infraction
2. Continuing Trespass: Injunction (Standard)
a. Where D’s encroachment is unintentional and slight, P’s use not affected and damage small and compensable, while the costs of removal is so great as to cause grave hardship, mandatory injunction may be denied and P relegated to compensation in damages
3. Balancing Judicial Efficiency
a. If not using the land in question, why have a violation (Hinman)
iii. Property Rules and Liability Rules
1. Ebay v. MercExchange (56)
a. Four Part Test
Person who reduces animal to a possession is the rightful owner
3. Judicial Economy à Easier to determine owner
ii. Ghen v. Rich (88)
1. Rule of Capture v. Rule of Capture +
a. + = adds custom to equation or catching and making use to find rightful possession
2. Distinguish from Post à time b/w kill & capture
3. Actual v. Rightful Possession
a. Nature of thing will inform what actual possession is
b. Possession in Fact (Actual)
c. Possession in Law (Customs)
4. Usage (+): Usages is important to Rule of Capture
5. Race to Resources (Tragedy of Commons/Anticommon)
iii. Keeble v. Hickeringill (92)
1. No one owns ducks before they are in the pond
2. Change to Rule of Capture
a. More emphasis on effort to capture
3. Malice – disturbance to “right to the ducks”
4. Sued for disturbance (can’t quantify ducks)
5. Actual & Rightful may not always be hand in hand
b. Open Access and the Commons
i. Commons
1. Too much access no ability to exclude
2. Deplete Resources to 0
ii. Anti-Commons
1. Too many have the right to exclude
iii. Zones of Market-Based Solutions
1. Group Access
2. Private Property
3. Group Exclusion
c. Other Applications of First Possession
i. Eads v. Brazelton (102)
1. Buoy and markings on shore were not enough to show possession as EADS positioned ship over site
2. Need detention of the property
3. Positioning boat over was the only way to warn intruders of obligation
ii. Views towards Abandoned Property
