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Property I
Rutgers University, Newark School of Law
Deutsch, Stuart L.

Property – Professor Deutsch – Fall 2010

Introduction to Some Fundamentals of Property

I. Right to Include / Right to Exclude – license to come on property is generally revocable at will

a. Property owner’s right to exclude is not absolute

b. more property owner opens property to the public- more likely that courts will find public rights of access

c. Trespass- an intentional intrusion on the land of other; doesn’t require a physical act but it normally is a physical act.

i. occurs the moment the trespasser enters the property

ii. intent requirement is met if there is a voluntary act

iii. EXCEPTIONS: Factors limiting an owner’s right to exclude

1. Emergency/urgency of situation

2. If it injures another’s rights

3. Anti-discrimination laws (as a general matter, these laws do not apply to private organizations)

4. Landlord/tenant relationship – gives tenants certain rights as well

5. Easement by necessity

6. Consent of the owner

7. Justified by necessity (ex: to save someone’s life)

8. Public policy

d. Liability rule – you have to pay a landowner in order to get the permission to pass their land.

Reference Cases

e. Jacque v. Steenberg Homes Inc – Private landowners have the right to exclude others from their land because every person is entitled to exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.

i. (trailer driving over property, damages against driver)

f. State V. Shack – Owners of land can’t exclude government workers from providing services to migrant workers on owners land


ii. Federal constitution is not maximum but minimum amount of rights- NJ supreme court decides to use state law (which entitles more full set of rights than Constitution)

iii. You have title to property but not dominion over individuals who are on your property

iv. Farmer could set reasonable rules- can’t allow all solicitors or peddlers (limited to medical or legal or necessities)

II. Acquisition by Discovery

a. Discovery of America

i. Johnson v. McIntosh – Native Americans were mere occupants; they had possession and use of land, however they did not have title over the land.

1. Native Americans could not sell the land to private parties, except to the US, only because they did not have title to the land.

2. Title to lands of the United States were obtained from the British Crown, which came from first-in-time possession. Christians > Non-Christians

3. Law of accession: if you add value to land, you own it

III. Acquisition by Capture – a person who first captures otherwise unowned resources is entitled to the resources – “first in time wins”

a. Capture of Wild Animals – If wild animals are captured, usually they belong to the captor… but capture is required; chasing an animals is not enough; escaped wild animals are deemed to return to the wild.

i. Pierson v. Post – ownership of the animal (fox) vests in the hunter that killed and captured the animal on public land; not the one who chased it.

b. Oil & Gas-

· Absolute ownership- you own the surface and all the minerals beneath; anyone else who owns a part of the land has the right to it too though.

· law of capture (First-in-time)- One who extracts and possesses minerals from a common pool becomes owner with no violation of neighbor’s rights if the capture has a legal right to the land where the possession occurred

· Capture must remove minerals in a responsible (non-negligent) manner, duty of care

· If minerals are wasted from negligent extractions


 GROUNDWATER rights (approaches to solving disputes):

1. Absolute ownership: No imposition on water use (even if use harms neighbor)

2. Reasonable use test: Takes into account neighbor’s needs when extracting water

3. Correlative / Proportional rights test: Owner gets specific amount of water based on the size of the land above

4. Prior appropriation test: First extractor takes all that he needs

5. Government ownership: Government can set regulations basically, does not control areas with water unless it’s federal lands.


 Riparian rights- property owners that border streams and lakes

 Reasonable use test (majority)

o decisionmaker considers and balances factors such as relative social value of each owner’s use, extent of harm to D, and the cost of preventing the harm relative to the benefit

o may mean comparing relative utility of the competing uses and choosing most valuable one to society or apportioning the use so that all riparian owners have the right to some portion of the water

 Prior Application test (minority)

o 1st user or developer prevails over a later user

o allows prior owners to prevail against later users whose riparian activity harms their interests in access to water

 Combination of both (Prior application + statutes against waste)

· Problem of externalities – overconsumption, reduced pressure – it can affect the enjoyment of the same benefit

d. Industry claim – While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, may dictate a different result

i. Ghen v. Rich – the man who killed the whale is the owner of the whale, even if someone else spots and salvages the dead whale.

1. This rule is crucial to the functioning of the whaling industry in Massachusetts; the industry is successful and has grown around this tradition.

e. Interference by Non-competitor – person competing in also trapping animals can interfere and try to capture the animal, BUT a person who does not want to capture the animal cannot interfere

i. Keeble v. Hickeringill – when one acts to capture wild animals on his own land and another acts to disturb said activity, the second individual is liable to first

1. Facts: plaintiff used decoy pond to capture ducks, defendant fired shotgun to maliciously scare ducks away

f. Capture of Items from Major League Sports – when a person takes clear, significant steps to achieve possession of an object but is unable to complete the process due to an interruption by other persons/actors, the person gains a legally cognizable pre-possessory interest in the object or property

i. Popov v. Hayashi – It takes signifi

ll line acquired original ownership in the line

V. Acquisition by Find – one’s title over found property is dependent on the circumstances of which the property was found.

Abandoned – owner no longer wanted the object

· The finder will get it. Sometimes, the finder might be the employer of the finder.

Lost – owner unintentionally and involuntarily parts with the objects possession and does not know where it is

o In general, if something is lost, the finder will get it UNLESS the finder is someone like an employee and that employer has clear control of the premises…

Mislaid – owner voluntarily put the object in a certain place but then overlooks or forgets where the property is

o If the original property owner is not found, the owner of the place in which the item was found may have a superior title.

Treasure Trove – coins or currency concealed for so long that the owner is probably dead or undiscoverable – belongs to finder against all but true owner

o Interest may be in (in some or most scenarios) : 1) true owner, or 2) the finder, or 3) the owner of the property on which the item was found (the locus in quo)

o True Owner – has a relatively better claim than anyone else in the world… except:

o Abandoned – If the owner abandoned, he would no longer have a claim.

o Finder (i.e., person who takes control of item with intent to keep it for himself if left unclaimed by true owner)

o Is the property “lost” or “mislaid”? If lost, the finder has a better title than anyone except the true owner and a prior possessor. If mislaid, the owner of the place in which the item was found may have a superior title.

§ Armory v. Delamirie – (chimney sweep found jewel, brought to jeweler who kept jewel, deemed lost) – finder (sweep) had rights superior to jeweler

o Is the finder an agent of the owner of the locus in quo? If the finder is an agent, property may belong to the principal based on the principal-agent relationship. This may depend on whether the item is found in a public location or one closed to the public

o Did the finder trespass to obtain the item? If he did, he cannot acquire a property interest, and if he loses the property and someone else finds it, the other person has a better claim (does not apply if someone else trespasses and steals the item?

o Is the finder on the property for a limited purpose? If so, finder may need to relinquish found property to the owner of the locus in quo.