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Property I
Rutgers University, Newark School of Law
Hernandez, Tonya K.

Hernandez Outline comments – in studying for the exam
·        Go over the practice problems.
·        The problems on the board are the ones to focus on – but also touch on the hypos brought by the students. (1) Try to follow
1          Preface
·        Property laws gives owners rights by putting duties on non-owners.
·        Property rights are relational – rights and responsibilities outside of property.
·        Property rights are not absolute – owners have obligations as well.
·        Owners have a bundle of entitlements mostly: privilege to use the property and the right to exclude others, the power to transfer title and immunity from having the property taken or damaged without consent.
·        Some rules promote fairness and other efficiency.
·        Priviledge to use is limited to ensure that their property does not cause such unreasonable negative externalities.
·        Owners are not allowed to impose conditions that violate public policy or that could unduly infringe on the liberty interests of future owners.
·        Many laws to try and keep the bundle of rights in the control of the owner.
2          Competing Claims to Original Acquisition of Property (Access to Property and Competing Claims to Original Acquisition)
2.1         Conquest (Derived from competing sovereigns)
·        Example of taking a book: what protects his right from owner his book?
o       Why does the law protect him – the principle of him having possession? The law wants to encourage people to be productive – encouraging productivity, respecting moral authority. Not always, sometimes the law says it is more “productive” to honor the claims of those who have current possession (adverse possession). Doesn’t always balance the scales for the lawful purchaser.
o       à he can say he was the first possessor. The firsts in time to have possession of the casebook.
o       Possession becomes salient for pragmatic purposes – claiming that a shirt someone is wearing is stolen. Is enough that the you own the shirt now. Possession as a legal indicator.
o       Roman maxums of:
§         First in time
§         Possession (indicator how to adjudicate competing claims)
o       The law (the state) will be the last to adjudicate ownership. The threat of the state enforcing claims dissuades me. Property can not exist without a state enforcer.
o       Property about the regulations of relationships about an item and the powers of individuals amongst themselves.
2.1.1        Johnson v. MIntosh 21 US 534 (1823)
·        By the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a Grant from the US
·        The right of soil was previously obtained by purchase or conquest.
·        The first sale was by the Indians (good deal) and for reasonable compensation
·        The only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.
·        The british proclamation could not impact the Indians since they were not British subjects and bound by the authority of the British government.
·        Also, could not be divested of the property interests.
·        Have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians.
·        The power now possessed by the government of the US to grant lands, has never been questioned. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments.
·        Where this incorporation is practicable, humanity demand, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.
·        The tribes ceded the land – had been at war with the US and had an unquestionable right to annum any grant they had made to American citizens (second sale).
·        NOTE: the people change their allegiance; their relation to their ancient sovereign dissolved; but their relations to each other, and their rights of property remain undisturbed.
·        =========== class notes =============
·        First in time is a relational property. But is not a concept used to resolve this issue.
·        Here we are looking at what proceeds purchase. 
·        Here we are looking at people who are making claims that proceed the purchase of the item itself.
·        The text about not having possession in the case is to dismiss the notion of adverse possession. (Never physical possessors of the land itself).
·        The 1-24 was like the chain of title in the new home purchase. à make sure the chain of title is clean

’t want to improve the lands (leave it as it is) affronts labor. The investment to be put into developing the item is an indicator of a foundational principle of where it makes sense to accord the absolute title. How much labor to benefit all society.
·        Property Rights (Sticks in the bundle of rights)
o       Right to use the property how deem appropriate (liberty to use)
o       Right to exclude (decision on not letting others come onto the property)
o       Power to transfer (give it away, sell it)
o       Power to leave it to someone else when you day (power to devise)
o       Right not to have the property damaged
o       Right not to have the property taken against your will.
·        What is the relevance of this case today?
o       Possession doesn’t necessarily give you full blown title.
o       Lasting contribution? Understanding and upholding property law… any lasting value? Relevant for validating the power of the state and salient for giving us security because it is the justification for which all land title is based in the United States.
2.1.2        Forced Seizures of property from American Indian nations
2.1.2.1       Tee-Hit-Tom Indians v. US 348 US 272 (1955)
·        Alaskan Indians for taking lumber from their property
·        Under original Indian title or Indian right of occupancy.
·        Tee-hits different from US Indians since they had concept of ownership.
o       Testimony suggested that this was no the case and that there was tribal ownership in the areas in question.
·        Found nothing in Congress statutes suggesting that Congress recognized property interests.
·        Rule of conquest over ownership.
·        No case in this court has ever held that taking of Indian title or use by Congress required compensation (though done at the good hearted nature of the people to compensate the Indians).
·        Claimed Russia allowed them ownership – disputed that Russia took what it wanted.
·        No compensation required.