Blackman Property I Outline Fall 2014
I. ACQUIRING PROPERTY = There are several ways by which the law recognizes the existence of a property right.
A. Discovery = is the theory that a person who discovers unclaimed, unconquered, or undeveloped land/property has the best title to that land/property.
1. Theory is mostly associated with the Johnson v. Macintosh decision that affirmed the legal foundation of European colonial discoveries and settlement of lands already inhabited and possessed by indigenous peoples.
B. Lockean Labor Theory = the theory that the law should reward the person that invests their blood, sweat, and toil in a piece of property by giving that person property rights in that piece of chattel or land.
1. Keeble (duck case) = P invested time, effort, and money into building a decoy pond on his property, so the law grants p ownership over the ducks that live on the pond even though he has not physically captured the ducks yet.
a. Economic perspective = the law will incent the pursuit of socially beneficial activities by finding an ownership right in the property that one has worked to acquire
b. Wrongful, uncompetive interference with business is unlawful b/c it provides no public benefit.
C. Capture of unowned property = A person may gain property rights over property that is still in a state of nature, such as wild animals and fugitive resources like O&G if they can “capture” the property and take it out of its state of nature.
1. Basic Capture = Property rights are gained through “physical possession,“ i.e. controlling or killing a wild animal
a. Majority Decision in Pierson = one acquires rights to a wild animal in the public space by physically capturing or killing it; mere pursuit is not enough.
b. Dissent in Pierson = applies Lockean theory, positing that one should gain rights to a wild animal by pursuing it such that capture is reasonably imminent.
2. Role of Custom = According to the Ghen v. Rich decision, the local custom of acquisition by mortally wounding a whale with a distinguishable “mark of appropriation” is enough to establish a property interest, b/c such a custom affords a reasonable incentive to those who engage in the socially beneficial economic pursuit of whaling.
3. Ratione Soli = the owner of land has constructive ownership over animals on his land, even without physical possession.
D. Ownership of O&G = the law applies the rule of capture
1. Ratione Soli = the oil below someone’s land is owned by the owner of the land
2. Rule of capture = If you drill a well on your property, you are entitled to own all the oil that you can pump out of that well, regardless of whether or not that oil came from a common reserve.
a. May one drink someone else’s milkshake? = yes, as long as your equipment is on your own property, you may drink from a common reserve.
E. Rights to H20 = One may have different rights to water depending on the property regime in place in the area.
1. Easter States (Riparian Rights) = Abundant water supply led to the creation of the Riparian system, by which multiple property owners were granted property interests in water sources.
2. Western States (first-in-time rule) = the first person to capture a stream of water—to put it to reasonably good use—had rights superior to those who later used the water supply.
F. Acquisition by Creation = According to Locke, one holds a property interest in the “stuff” they create through their own physical or intellectual efforts.
1. INS v. AP and rights to intangible property = Sup. Ct. held that b/c AP invested resources in obtaining “news” that it thus held a quasi property right in that news for as long as it retained a commercial value.
a. The dissent restated
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B. Right to Use / Possess = right of an owner to use his land in any way he wishes, as long as the use was not a nuisance and it did not conflict with another person’s interest in that land.
1. Macintosh Case = Indians had right to possess the land even if they could not exclude the Americansàthe right to use is effectively useless if you cannot also exclude others.
C. Right to Include = If one is able to use their land meaningfully, they need to be able to allow others to use it as well.
D. Right to Transfer = From an economic perspective, the right to be able to sell land or property that one no longer wants or needs is essential, b/c without the right to transfer then property is merely a burden and not a positive asset.
E. Trespass = B/c the right to exclude is one of the most important sticks in the bundle, the state will prosecute as criminals those who violate that private right which serves a public good.
1. Absolute Right = According to Steenberg Homes, Inc., a trespasser is liable even if his entry causes no actual damageàthe right to exclude is effectively absolute.
2. Right to exclude must be balanced against other public policies = Under the State v. Shack decision, it was asserted that property rights serve human values and that these rights are recognized to the extent that they serve those ends and are limited by them.
a. One may not prevent others from receiving medical treatment or legal services by means of the right to exclude.
b. The right to exclude does not include the right to ban government service workers from one’s property.
