Property Law Spring 2009
I. Property – The basics
A. Three general principles
1. Fairness
i. Fair that someone found the land and called it theirs? What if they don’t put any labor into the land, as Locke would call for before deciding ownership
2. Economic Efficiency
i. Add value to the land to assert property rights
3. Practicality of enforcement (certainty)
i. Stop sign (pull up at night and nobody is around, why stop? It is not fair or economically efficient)
ii. Tax code – huge book, but more useful and practical than the Stop sign
B. Problems — can never have both liberty and equality there is always a trade off
1. Liberty — personal freedom
2. Equality — what is equal/fair to everyone
i. Ownership: Economic — reward person who does the work (what if they have no arms?)
ii. Easy to administer —> at the end of the day we take all the fish and redistribute evenly; maybe fair, maybe economically good
iii. Negative externalities –> Free riders, people who can’t do work
C. Ownership Structures
1. Individual property rights
2. Common property
3. Government
D. What is Property
1.Socially contingent – meaning depends on the culture that defines it.
New Orleans example – public regulation, new zoning, property values, use, private property and necessity.
Bundle of sticks” concept: Possession, Occupancy, Use, Exclusion, Alienation.
2.Property Theories
Locke’s Labor Theory: when you mix labor with something unowned by anyone, you own the resulting mixture. Idea that the most productive use of land should grant ownership.
Utilitarian Theories – Hume/Benthem – accept protections because we desire them ourselves in world of scarcity.
Utility and Efficiency – externalities are internalized.
II. Acquisition by Capture
A. Actual possession – Certainty (ferae naturae) is only acquired by occupancy. (Barbeyrac — mortally wounding is sufficient)
1.Pierson v. Post: P hunting fox that was on his farm. D killed the fox on common property and carried it off. The mortal wounding of such beasts, by one not abandoning his pursuit, may with the utmost propriety, be deemed possession of him
i. Not going to level of certainty where you don’t have to kill the beast, but a mortal wound that given time will kill the beast
ii. Mortal wound (constructive possession) — (1) objective basis; and (2) subjectively manifest intention to seize the animal.
iii. Intention not enough
· Intention must manifest itself through the wound!!!
iv. Utilitarian (democratic) wants to encourage fox extermination. Rule of actual possession above, but leaves room for wounding the animal.
i. Livingston Dissent (economic efficiency)
a. Instrumental reasoning. What is best for society is to get rid of the foxes
b. Encourage hard work to go after foxes. Livingston is making a presumption —> the act of pursuing the fox is more useful than the person who ultimately shoots and kills the fox
i. Means are greater than the ends
c. If just killing was enough, people would just find better weapons (unfair??)
d. Custom – Posts hotfooted pursuit may have giv
session. Pierson was hunting on wild lands, here, Keeble was in possession of his land.
D. Fairness
a.Popov v. Hyashi: Fairness
i. Equality-both have equal claims to the ball. Both were victims
ii. Hayashi did not nothing wrong, and Popov was tortiously interfered with
iii. Both ppl having a stake in finding something get an equal
a. Also can be considered acquisition by find — First, have to determine if the property was abandoned (MLB says balls hit are abandoned). Then since there are multiple finder’s court applied the rule of equitable division (sell and divide proceeds).
E. Fugitive Resources:
1.Oil and Gas à whoever actually occupies it, owns it.
2.Water à UK – rule of capture, US – reasonable use
i. West – prior appropriation v. East – riparian rights (each landowner can use it)
3. Hammonds: A takes gas out, puts back into ground, leaks onto B’s land. Court said B is allowed to take oil because it is now “common property”
i. Overturning Hammonds – What behavior (instrumental goal) are they trying to encourage?
i. If A can’t re inject her gas there might be an incentive to overuse the gas (inefficient)
ii. BUT, couldn’t A just put the gas in a barrel to store the oil? —> inefficient use of resource, maybe liability with storing oil above ground is more dangerous than below ground
1. If we know who possesses the oil, we know who is liable if something goes wrong with the oil.
