Property I Outline (East)
I. An Introduction to Some Fundamentals
Property is an institution for allocating resources and distributing wealth (from preface).
A. First Possession
The concept of first possession is a subset of a legal rule: First in Time.
Locke’s Labor Theory: Every man has a property in his own person. The labor of his body and the work of his hands are properly his.
Law of accession (p. 14) — One person adds to the property of another by labor alone–Courts will generally award the final product to the owner of the raw material unless the efforts of the person who contributed the labor have sufficiently increased the value and the person has not acted willfully as a trespasser.
1. Acquisition by Discovery
Who was “first in time” in America—Indians or Europeans?
To discover something, it must be undiscovered (unoccupied) to begin with. True discovery is like the rule “First in Time.” The ruling in the case, though, is that the Indians were not in “possession” of the land–they were just occupiers. The reasoning the court uses is that the settlers used the land more extensively.
Why?? Convenient way to avoid chaos.
2. Acquisition by Capture
By owning land, the owner has constructive possession of the wild animals upon it (ratione soli).
“Constructive” possession is somewhat a “fictional” possession, but courts are willing to use the term and establish constructive possession in order to discourage trespass.
Why do we want to discourage trespass? To maintain peace and order.
“jus tertii” defense: “The rights of a third party”; ‘T’ trespasses on ‘O’s land and captures a wild animal. Per above, ‘O’ has the superior title. ‘T1’ trespasses on ‘T’s land and captures the same animal. ‘T1’ claims ‘T’ has no title and can’t take the animal back. This is the “jus tertii” defense, and would not be valid. We want to discourage ‘T1’ against trespassing, too.
Relativity of Title: Title is a relative matter. Property deals with the relationship of persons to each other with respect to the property. Thus, property is relative–when asking if someone has a property right, we must ask: “against who?”
Animus revertendi: The general rule for wild animals is that the first to “capture” (i.e., re
n it.
A. Property in One’s Ideas and Expressions
· The news itself is in the public jurisdiction and you cannot have a property right in it. The manner in which the news is written can be copyrighted and confer an interest, however.
· The common law only protects your rights to tangible chattel of your own making—others are free to copy (unless copyright or patent law is used).
B. Property in One’s Person
No property right in your own bodily tissue or cells (you can gift an organ but not sell it). Reasons: (1) Immoral, (2) Importance of medical research, (3) Patients protected by informed consent, (4) Properly a legislative matter.
Bundle of Rights–The concept of property refers to a “bundle of rights” that includes the rights that may be exercised with respect to the object (principally, the right to possess, the right to use, the right to exclude others, the right to
