Property Outline
I. Introduction to Property
A. Cannot have liberty and equality- it is a trade off
B. Fairness- no real meaning; different people have different views
C. Want to reward people who do work/improve things; fairness; and something easy to administer
Zonies
2 MC
II. Acquisition of Property by Capture 8 MC
– Animals, land, water, oil
1. Individual Ownership- private w/ parcels
2. Shared Ownership- common
3. Government Ownership
3 major things to consider when allocating property: (triangle)
1. Fairness
2. Economic efficiency (value)- putting something to good use
3. Practicality of enforcement
Pierson v. Post (1805); Appellate Ct of NY; reversed
– Capture rule-
– Land w/ foxes on it; Post (P) appears first w/ hunting dogs attempting to find a fox; Post finds a fox, but Pierson (D) shoots it and carries it away
– In lower court, the court ruled for Post bc he was there first (custom?)
– NYSC said pursuit was not enough; you needed to have inflicted a mortal wound or be in possession of the animal (or deprive them of their freedom); you have to continue pursuit; “actual capture” rule
– W/out possession he doesn’t have an adequate interest in the thing
– If Pierson wins, the rule put forward is certainty; however J Tompkins is citing old legal scholars bc he had nothing else to cite to (aside from local customs, which he clearly wanted to avoid); law always trumps custom, and since there was no NY law or US law, he went back to 1400 English law
– Majority- certainty is the key; reduces quarrels as to if we just used pursuit Barbeyrac view
– Dissent- (Livingston) look to sportsmen custom and not cite old law- should be heard through an arbitration by a hunting association; instrumental- economic efficiency and incentive (The goal is to get rid of foxes bc they are causing damage on farms and in turn affecting the whole country; The rule if Post wins would be the rule of getting rid of foxes; we therefore need an incentive for people to go out and hunt foxes for the goodness of society)
– This is not about Pierson or Post as a person, but instead this is more about encouraging the hard work of going after the foxes
– Triangle- fairness, economic efficiency, easy to administer
– Very distinctly different way that the 2 sides came to the opinion: formalistic reasoning (Thompkins- citing old legal scholars) vs. instrumental reasoning (figuring out the way to get the right answer as to what is most equitable
Ghen v. Rich (1881) US District Ct.- Massachusetts
– Pierson v. Post is not binding (NY ct and MA ct)
– Fed. Court- maritime law and diversity of citizenship possibly
– P killed whale w/ bomb lance and it sinks; lances are marked so they know who killed it; Ellis finds it and puts it up for auction; D buys whale
– If it was Ghen v. Ellis, it would be an easier case- Ghen would automatically win
– Ghen won bc of custom and also bc if we didn’t give it back to him, no one would work if they didn’t get the benefit of their labors; Rich should sue Ellis
– Continued pursuit as far as he could (putting lance in w/ a distinctive mark could be pursuit)
– Constructive knowledge is being imputed to you; even if you don’t have actual possession of something, it is close enough that you are presumed to have possession even if you do not
– Possession- who has; legal possession who should have
– Whale would have gone under formal logic entirely to Ghen based on the principle that he mortally wounded it and continued pursuit; there would be no incentive for anyone to pull the whale out and make the call
– Under custom- Ghen gets the whale and Ellis gets the small fee
– Custom becomes the law here; close group of people all following and adhering to that custom, it becomes reasonable to put that custom in place as law; it becomes a reasonable expectation of everything then
– Usage doesn’t always work, but is most appropriate when dealing w/ a close community and everyone knows what the custom is and adheres to it
– Some circumstances when custom should be recognized: when its application is limited to the industry and limited to those working in it; when custom is recognized by the whole industry; when the custom requires in the first taker the only act of appropriation that is possible; when the custom is necessary to the survival of the industry; when the custom works well in practice
Hypo- Ghen kills whale w/ his lance; Ellis and Jimmy sit there waiting for whales to come up; Ellis sees the whale first and says that’s my whale; Jimmy grabs the whale and brings it back to shore… who owns the whale? Ghen bc he killed it and it has his distinctive lance; under the custom, finder gets to keep the fee… who gets finder’s fee? Jimmy bc he did the work
Keeble v. Hickeringill (1707)
– Possession in fact- who technically is holding
– Legal possession- who has the stronger claim to the object; who should be holding
– D was mad he had a decoy pond first that wasn’t catching anything, so D shoots guns to scare ducks off of P’s land
– Ruled for P bc D is interfering w/ his profession and causing damages; Tortuous interference w/ business
– Analogy to schools- can open a new good school outside a bad school, but you can’t open a new school and stand outside the old one with a gun scaring students into your school
– Ratione soli principle- wild animals were considered to be in the “constructive possession” of the landowner
– Triangle- fairness, economic efficiency, easy to administer (practicality of enforcement/certainty); fairness and economic efficiency, but this is most about economic efficiency bc P’s use of the ducks was to sell them for his living, but D did not have a use for them
– Instrumentalist reasoning- what is the outcome we want to achieve and what do we have to do to get to that outcome? We used this one here.
– Formalistic- we would be starting w/ previous ruling and see if D’s actions complied w/ previous rules; start w/ the precedent
Pg. 32 FN 16- who gets to keep the fawn? Female, the rule of increase- if 2 animals produce offspring, the owner of the female animal always owns the offspring; case intended to promote certainty (easy to administer)
“Fugitive” resources- water, oil, gas, minerals, and other natural resources
Hypo: Neighbors A, B, and C
– Oil u
Externalities lowest in private property system, but you still have negative externalities; maybe killing using a gun that produces smoke that blows onto other properties, future generations
Externality means you are not taking into account the effects on others; there is no attempt to negotiate what would be the ideal solution; no incentive or need to sit down and discuss the situation
Government owned/regulated property – a lot of foxes, but no boundaries; individual owns nothing, have only what gov’t gives you. May live on the land, but gov’t still owns the foxes. Gov’t can let you kill, impose tax – higher the tax, more the killing of foxes is deterred – or, impose a quota, could sell your quota to a different hunter
– Tax for every fox killed to go to the gov’t
– Criminalize the killing of foxes
– Quota them-
Gov’t vs. gov’t regulated
Why might private property work better than quota? Gov’t not as responsive to market, even if they constantly change, can’t accurately gauge. Problems on all points of the triangle
Another kind of quota – compulsory utilization – group of owners votes to use land, allocated equally. Under gov’t ownership – gov’t could come in to collect al fox carcasses, then allocate evenly.
Common property – no regulating factor in ownership, but would have to be created by the commons (owners). Can consume whatever you want from the common property. Public property – everyone owns.
Three owners of fox farm – initial instinct is to kill as many foxes as possible – more than you would on private property because trying to get more than other owners is more important than ensuring successive generations of foxes.
Or, set up a meeting – costs – no production while meeting, while setting up other two could be hunting, have to reach an agreement – could have a holdout, free rider concerns. With three people, easy to detect holdouts/free riders, and keep system in place. Knowing you’ll get caught can induce proper behavior.
Even a private property system cannot get rid of externalities involving pollution. Pollution can spread in small amounts. Factory on common property, can spread everywhere. Even if everyone effected could pay $1 to make factory stop, won’t because of free riders. More people, more percentage of free riders would increase.
Any group that could never have the opportunity to negotiate their interests? Future generations, because they don’t exist yet. Example – deficit. Parents more concerned about leaving debt to children personally, instead of a share of the national debt. If you know your property is going to your children, and not anyone
