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Property I
Southern Illinois University School of Law
Holte, Ryan T.

Property I Holte Fall 2013


What is Property? – Right to possession, exclusive use, right to dispose or transfer

Can be Physical or intangible

Property is not absolute. Property is socially contingent à its definition will vary from culture to culture and, within cultures over time (an example is slavery)

· Tenures- many ways in which property may be possessed or held

· Personal Property- something that is moveable that is property. Can be tangible (touchable) or intangible (cant be touched or seen but have value)

· Real property- land and the improvements on it

· Fixture- personality that has been permanently attached to real property

A. Property is relative, it describes the relationship between

people with respect to things, not the relationship between

persons and things.

B. Theory: The principle theoretical explanations of property are

Labor Theory, Utilitarianism, Economic Efficiency, and Custom.


1. Labor theory: John Locke is the originator of the idea that by

mixing your labor with something unowned (e.g., catching a wild fish), you own the resulting mixture of labor and object.

Though the earth and all inferior creatures are common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labors of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with and joined to it something that is his own. And thereby makes it his property. It being by him removed from the common sate nature placed it in, has by labor something annexed to it, that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough and as good left in common for others. (Locke)

Haslem v. Lockwood- P raked into heaps on manure that had accumulated into public streets, intending to carry it away the next day. Before he could do so defendant hauled them off. Court held for P in that the manure had been abandoned and first finder has title since he greatly enhanced its value by labor has right to leave it for a reasonable amount of time to procure the means to take it away.

2. Utilitarianism: David Hume and Jeremy Bentham argued that

property was utilitarian, we protect others’ possessions as property b/c we desire the same protection for our possessions. Implicate root of property in the theory of possession.

3. Economic efficiency: (Tragedy of the commons)

Property is economically efficient. If everything was unowned, or owned communally, under conditions of scarcity people will unduly deplete the resource b/c the individual gain from depletion is greater than the individual cost. Yet from societies prospective, the aggregate gains from depletion is greater than the individual cost. To an individual, these additional costs are external. Property helps to internalize these costs so that the individuals make economically efficient judgments.

4. Custom: Property has customary root. People engaged in a

common activity (e.g., Whaling) often develops customs that govern their relationships between themselves and toward their objects of acquisition or husbandry. Some customs acquire force of law.

5. Doctrine: Property may be broken up into constituent

elements: The right to use, the right to exclusive possession, and the right to dispose or transfer. These elements are important to what constitutes property, but it’s not possible to say, for ex. That the combination of any two makes property

Two meanings of possession: Possession of an object implies its ownership. “Possession” has a dual quality. It can mean the “Physical act” of possession (falling down drunk at a dinner party you take possession of the floor), and it can mean the “Legal conclusion”(the host of the dinner party is in possession of his home when he tosses you out) that someone is in possession of an object.

A. Of “unowned” things: Discovery, capture, and creation: these are

several methods to acquire unowned things.

I. Acquisition by Discovery

I. Johnson V. M’Intosh

Rule: Title is established by the first person to possess the now legally claimed land.

The Rules and regulations of land from longstanding European law give a claim to the land to the first to discover or conquer the land being that the person discovering the land was European. Indian title cannot be held in U.S. Courts.

Ø Indians only held an aboriginal title- the right of occupancy could be cut off at any time by the United States, as the successor to the European discovers of the land.

Cause of action: Ejectment (claim dispute)

· The Power to originally grant lands is with the U.S. government and the rule of who preceded it. Absolute ownership nullifies all other claims.

· Some Indians prided themselves with no marking land and moving lightly throughout it living with the creatures as a family, rather than strangers who only visited to conquer the objects of nature. Contrasts with doctrine of first possession that: gives the earth and its creatures over to those who mark them clearly as to transform them, so that no one else will mistake them for un-subdued nature.

· Although some European nations respected the Indians rights as occupants they still asserted the ultimate dominion to be in themselves (Europeans)

· English monarch gave commission to the right of discovery of countries “Then unknown to Christian people”

Ø Conquered should not be wantonly oppressed and their condition shall remain as eligible as is compatible with the objects of conquest. Usually they are incorporated with the victorious nation and become subject’s or citizens of the govern

to all Centurions. Centurions recognize a captured fish as property but not the free-swimming fish in the lake. The Centurions don’t know it, but there are about 1,000 fish in the lake. (Each Centurion thus has a theoretical 1/100 interest in the free-swimming fish, or 10 fish.) If Same, a Centurion, catches one fish, he has acquired a property right to one fish and continues to have the inchoate, theoretical interest of a 1/100 share in 999 fish. Sam’s loss of a theoretical common interest (from 10.0 to 9.99) is more than offset by his acquisition of property in one whole fish, which he can eat. Most of the cost of losing one fish from the lake is borne by others, not Sam. The cost is external to Sam. So long as the subsistence needs of the Centurions and the reproduction rate of the fish remain in balance, there is no need to create a property right to the free-swimming fish, despite the external costs associated with fishing.

But now imagine that Alyssa Haaker, a fashionista, with affection for fine trout, arrives. She offers $5 per fish, a fabulous sum eagerly desired by the Centurions. Each Centurion now has the incentive to catch as many fish as possible, for the costs of the loss will be borne mostly by other Centurions. If Centurions are skillful fisherman, the trout will soon be extinct. This does not do the Centurions any good. In the pursuit of self-interest, the common interest of everyone is destroyed because nobody is bearing that cost. To see why, imagine that the real value of each fish is $20. Although a Centurion loses 20 cents every time he catches a fish (1/100 of $20), he earns $5, for a net increase to his wealth of $4.80. But Centurion society as a whole is poorer by $15 (loss of $20 true value less $5 received).

Even if Centurions see the problem, nobody will quit fishing because there is no assurance that others will cease as well. Centurions probably can’t simply agree to stop, because it is probably too difficult to obtain unanimity. Unanimity takes time, and some people will hold out in the hopes of freeloading from others’ forbearance from fishing.

Now suppose the Centurions divide the fish into 100 units of ownership of 10 fish each. A Centurion who captures and sells one of his own fish will reap the benefit of Clark’s $5 but will also suffer the full lose of the $20 true value of the fish. More importantly, by not fishing, the individual Centurion keeps the full value of the fish, rather than seeing it disappear into his competitor’s nets.