Course Overview:
(1) Ownership of Property
(1) Discovery
(2) Capture: two or more people competing to own something
(3) Creation: who owns ideas? (Intellectual Property)
Who owns human organs?
(4) Finders: who owns? (vs. original owner)
(5) First possession: someone is not there for years, and another comes
(6) Gifts: giving someone something, and changing one’s mind
(2) Estates**
(1) Possessory Estates: owned right now
(2) Future Estates:
(3) Concurrent Estates:
(4) Policy Interests: how much control should people have when they give
property to someone else? (Eg. control by the dead over the living)
(3) Landlord & Tennants
(1) Can a landlord select tenants? (when discrimination?)
(2) Sublease?
(3) Duties and remedies?
(4) Land Transactions: how do you sell a piece of property?
(1) Mortgage
(2) Recording system: public system binding property to owner
(5) Land Use Control
(1) Nuisance: judge-made law for dealing with incompatible users
(2) Servitudes: private agreements between neighbors
: Easements to cross property to public road
: Covenants – agreements b/w neighbors requiring one to perform something on their property for the other
(3) Zoning: when judge law and private arrangements do not work to resolve
incompatible users
(6) Eminent Domain & Regulatory Takings**
(1) How can the government take property, and what are the limits on it?
Administrative Notes:
– Blackboard: everything is there.
– Attendance: same as usual.
– Office hours: WEDNESDAY 1-2PM or by email. Talk about anything: class, lawschool, future career, anything.
– NO TARDINESS. If you expect to be late, LET HER KNOW.
– She calls on people. She believes it engages people. People think about the questions if they anticipate being called upon.
– UNPREPAREDNESS: leave a note on the podium before class. UNACCEPTABLE: being called on when unprepared.
– Leave notecards for first few weeks.
– Exam: Open book, part essay part MC
– Testing BOTH on black letter, and application of law to facts.
State-based law à You must know BOTH majority and minority rule.
**PRACTICE**
– KNOW POLICY – be able to argue from both sides.
Book Study: Most often, NOTES are most important part. Case may be an anomaly, etc.
I. Becoming a Property Owner through First Possession
A. Discovery
1) Discovery rules and related principles
2) Justifications for discovery rules
Johnson v. M’Intosh
– Stats: SC 1823
– Facts: Johnson got the land through a land grant from the US government, M’Intosh got the land from purchases by the Indians directly. M’Intosh sues for ejectment from the land.
– Issue: Should the US courts recognize the power of native Americans to buy/sell land?
– Holding: NO. Private citizens could not purchase lands directly from Native Americans. The United States government had acquired fee title to the land based on the longstanding practices of European colonization (British DISCOVERERS), and therefore Native Americans both did not own the land, and could only sell their right of occupancy to the U.S. government, who had title.
Purpose of the Case:
– Shows anglo-saxon roots of propertly law
– Property laws are NOT absolute, but react to historical and social context. [KB1]
o Discovery: gives title; discovery occurred by the white man.
§ England had title because it discovered the land before other Europeans (4, Π4)
§ Rule: Ownership goes to first European discoverer.
o Occupancy Theory: First in time = first in right (11 n3)
§ under this principle, the Native Americans should have ownership
§ limited by the fact that only European ownership is recognized
o Labor Theory: He who invests work in an object such that it is changed invokes ownership. Under this principle, the first farmer should have the ownership; it is IMPOSSIBLE for native Americans to have ownership under this theory.
o Right of Occupancy: At the moment of discovery, Justice Marshall gives the NA’s the right to occupy and use the land, but not to dispose of it as they please.
§ right of occupancy, right of physical possession
§ Modern example: leases
§ RULE: Discoverer, as owner of title, has the right to EXTINGUISH the right of occupancy:
· (1) by purchasing it from the natives
· (2) by conquest – driving them out.
o Major Theme: Ownership is not ONE THING, but a “bundle of rights”
Eg. Justice Marshall divides right of title and right of occupancy
RULE OF LAW: Conquest generally respects private ownership.
Exception: “Uncompatibility” à Private ownership will not be respected.
Here, uncivilized nature & incompatibility of natives prevents application of usual law
à “I
Certainty = majority rule
ii. Fairness = minority rule
c. Custom as Alternative to Rule of Capture – Ghen
i. Whaling: Custom prevails because traditional law of capture is impossible
B) Private Property – Ratione Soli
a. The owner of the property has complete rights to free-roaming resources on his property
i. eg. a wild animal killed on private property by a trespasser belongs to the property owner
II: Application to Resources
A) Oil and Gas
B) Ground Water
C) Surface Water
III Modifications to Rule of Capture
A) Political Impediments
Pierson v. Post:
– Facts: Post had dogs and was chasing a fox on public land[KB3] . Pierson came and caught the fox before Post could finish the chase.
– Issue: When one party pursues a fox, and another party, without investing similar effort, comes and catches it, which party has established possession?
– RULE OF LAW:
o Pre-Pierson Rule:
§ In order to have property/possession of a wild animal on public property, there must be OCCUPANCY.
· Occupancy (possession) in Hunting = (1) killing, or (2) mortally wounding
§ MERE PURSUIT of a wild animal on the commons –Xà occupancy.
o Pierson Majority Rule: There must be a CERTAIN basis for determining ownership of wild animals, which can be found in the concept of “certain control.”[KB4]
o Pierson Minority Rule: Occupancy/Ownership should be conferred by pursuit of a wild animal with: [KB5]
(1) reasonable prospect of capture
(2) INTENT to own the wild animal.
– [KB1]Title: legal right of ownership.
o You own the land
o You have the right to convey it to someone else
– Chain of title: series of transactions by which property moves from one person to another (10 fn2)
[KB2]Major Principle:
[KB3]Commons – unpossessed land.
[KB4]Pierson’s Majority Rule: Mere pursuit is insufficient for ownership through capture à Requires “certain control.
[KB5]Pierson’s dissent rule: Can
