Property I Outline

Property Outline – Spring 2014 Prof. Lastowka

Property & Economics

I. Utilitarian theory of property “a primary function of property rights is to promote the efficient use of resources”

II. Externalities

a. They exist whenever some person, say X, makes a decision about how to use resources without taking full account of the effects of the decision. X ignores some of the effects—costs or benefits that result from his decision—because they fall on others. Externalities do not necessarily lead to inefficient resource use, but transaction costs are high (investigation, lawyer fees)

b. FreeRider – X makes a land use decision that benefits, to some degree, all of his neighbors. These neighbors have no incentive to make a contribution to a group payment to X because they assume others will contribute, thus they “free ride” The freerider claims to be one of the unaffected or slightly affected, contributing a very small amount to satisfy the debt.

I. Ways to Acquire Property

a. You can gain a property interest by sales – someone sells you a house you now have ownership

b. Gift – acquire a property by gift

c. Creation – intellectual property – a song or new invention

d. Finding a thing

e. Adverse possession – kind of like stealing (but you cant steal chattels and acquire legal right), where new possessor sues to obtain title in their own name

II. Bundle of Rights (sticks) – refers to rights or relationships among people with respect to things, material or otherwise

a. Right to possess

b. Right to use

c. Right to exclude

d. Right to transfer

PERSONAL PROPERTY

CH. 1 First Possession: Acquisition of Property

I. Acquisition by Discovery

a. Principle of First Time – being the first justifies ownership “who is first in point of time is strongest in right” WEAK (native americans)

b. John Locke’s Labor Theory – merely discovering land is not sufficient, requires one to add value to the land via labor

i. Ex: abandoned property (manure in the street) belongs to the first person who changes its condition and greatly enhances its value via labor (racking manure into piles for removal)

II. Acquisition by Capture [taking something out of the “commons” and making it your property]

a. Usufruct – interest that exists while you are using it as long as you do not alter or impair its substance – a claim to space under a tree while you are occupying it

b. Pierson v. Post – who owns the fox?? MAJORITY- Pursuit is NOT enough, “first to kill and capture” superior rule of law. Sufficient to inflict mortal wound followed by continued pursuit (as soon as you end pursuit, you end your right to that animal). Pierson was only able to show mere pursuit thus he never acquired property interest in the animal DISSENT- When there is no wound inflicted, need reasonable prospect of taking what he discovered with intention of making it his property—It was nearly certain Pierson would have captured the fox

i. General rule – once you establish a property right you continue to have it unless you lose it

ii. This is a case about taking something that is not property and making it into property – and we do that by capture

iii. If you marked the wild animal it would probably still be your property

iv. If you had an exotic wild animal and release it in its non natural habitat then you probably still retain the right to it

c. Ghen v. Rich – shot whale discovered and auctioned, killer demands reimbursement, who owns the whale?? MAJORITY- ct determines right to property by looking at custom and usage within an industry used to determine ownership. Customary for Ghen to use harpoon specifically marked to kill whale, whale floats up, who ever finds it notifies killer and receives finders fee

d. Keeble v. Hickeringill – fires gun to frighten (not capture) neighbor’s ducks, does this interfere with his ability to use his land for pleasure and profit?? MAJORITY- party can recover against another for interfering with his ability to use his land for pleasure and profit. Neighbor maliciously interfered (shot gun) with neighbor’s profession (capturing ducks). If hickeringill set up decoys on his own property to capture ducks, no interference as he has same liberty to use his land as keeble.

i. What if Pierson court’s were aware of Keeble, outcome different?? One could argue that Post interfered with Pierson’s capture (stronger argument if he was involved in a trade and not merely sport)

ii. Doctrine of Abuse of Right – provides that an owner abuses her property right when she exercises that right with the subjective intent of harming someone

iii. Ratione Soli – when a wild animal is on your land you have constructive possession of it and a claim against a trespasser on your land

e. Constructive Possession – legal possession of an object, even if it was not in person’s direct physical control [to infer actual possession] Must have:

i. Knowledge of object

ii. Ability to control said object

1. Ex: trespasser that captures wild animal on land of another might still have no rights to the animal, even though the landowner never had actual physical possession or control and even if the trespasser does

2. Ex: pulled over by cop, person in back seat hiding bottle under their jacket, you as the driver have constructive possession

f. Actual Possession – direct occupancy, use, or control of real property

i. Ex: pulled over by cop with a beer in your hand, actual possession of alcohol

III. Acquisition by Creation

a. First in Time- if you are the first to create something, then that something is yours to exploit

b. John Locke’s Labor Theory- underlying idea of property creation derived from Locke, who reasoned that you own the fruits of your labor

i. Consequence of having a “property in your own person”

c. Property in One’s Person [can you truly say you have property in yourself? Can you sell part of yourself (ex:tissue) for profit or a broader question, can you sell your entire being? Can you regard parts of people as chattel or does that undermine the abolition of slavery?]

d. Conversion

i. Moore v. Regents of Univ. of CA – Who shares in the proceeds of commercialized human tissue?? Moore sought treatment, drs removed tissue w/out consent during visits that was worth money. Moore sued for conversion (wrongful exercise of ownership rights over the personal property of another). MAJORITY- Ct refuses to extend theory of conversation to human tissue (applies duty to obtain informed consent as C/A) as a policy concern(fear of hindering research), better suited for legislature to make decision, & do not need tort of conversion to protect patient’s rights (physicians’ disclosure obligations requires patient’s consent to use cells)

1. Dominion (right of use, control, & disposition of the property) “right of dominion over one’s own body, and the interests one has therein”

a. Example’s where ct recognizes right of dominion over one’s own body

i. Search & seizure

ii. Consent to medical procedures

iii. Rights to dead bodies

e. Right To INCLUDE (permit) and EXCLUDE (deny)

i. Intentional Trespass “right to exclude”

1. Jacque v. Steenberg Homes, Inc- Steenberg Homes needed to deliver a mobile home. Easiest route across Jacque’s property. Jacque denied access. Steenberg crossed property w/out permission. Jacque sued for intentional trespass. Can a ruling of nominal damages support an award for punitive damages in an intentional trespass action? MAJORITY- Yes. In certain instances, the actual harm is not the damage done to the land, which may be minimal, but in the loss of the individual’s right to exclude others from his or her property. A private landowner has the right to exclude other from his land. This right however has no practical meaning if the State will not enforce it, thus allow punative.

2. State v. Shack- Property Rights Serve Human Values gov’t workers entered upon Tedesco’s private property to aid migrant farm workers employed & housed there. He asked them to leave, they refused. He sued for trespassing. Do ownership rights in real property include the right to bar migrant laborers working on the property from access to governmental services? MAJORITY- No, ct held that Tedesco’s property interest did not extend to the right to exclude individuals providing access to governmental services for the benefit of migrant farm laborers and therefore there was no trespass. Title to real property does not include dominion over the destiny of persons the owner permits to come onto that property. Their well-being must remain the paramount concern of a system of law. A man’s right in his real property is not absolute. Necessity, private or public, may justify entry upon the lands of another.

ii. Limits on Right to Exclude

1. Reliance Interest in Property- wide variet