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


Property Law: “Most broadly and concisely, property is the legal sense refers to the rights of people in or over certain objects or things.”


Relational: you own things in relation to someone else
Bundle of sticks metaphor: property rights are a bundle of sticks; you can give some to others while maintaining the rest for yourself
Purposes of Property: division into public/private spheres

1.] Privacy
2.] Common Good: level of organization
3.] Encourages Productivity: if you receive fruits of labor you are encouraged to work
4.] Enhances Productivity: if you know your house is safe, you can leave to work
5.] Stability
6.] Maintains existing social order
7.] Helps allocate scarce resources
8.] Promotes individual development

Property: 2

Property = bundle of rights (modern view)

Right to acquire
Right to use
Right to dispose (alientate)
Right to exclude

“the right to exclude others” is “one of the most essential sticks in the bundle of rights commonly characterized as property” Kaiser Aetna v. U.S., (1979)

Example: Justice Panelli in Moore: to recognize property = enforce right to exclude

Property = dominion (traditional view)

“The unrestricted right of using, enjoying, and disposing of a thing.” – Roman Law

“Sole and despotic dominion”

Example: Justice Marshall in Johnson: title = exclusive right to transfer

California Court of Appeals in Moore p.71-72 “The court then considered the meaning of property and concluded that the essential element is dominion, or rights of use, control, and disposition.

The Tragedy of the Commons

Definition: economic problem in which every individual tries to reap the greatest benefit from a given resource. As the demand for the resource overwhelms the supply, every individual who consumes an additional unit directly harms others who can no longer enjoy the benefits.

What does cutter get?

1 tree + 1/10 of 99 trees

What does everyone else get?

1/10 of 99 trees

Enter trader: each tree worth $2

What does cutter get?

Gain to cutter: $2, Loss to cutter: 1/10 of $2 = 20 cents, Net gain to cutter (after expenses): $1.80

What does everyone else get?

Gain to tribe: 0, Loss to tribe: $1.80, Loss to tribe member: 20 cents each!


Property Rights internalize costs:

Profit maximization (efficiency)
Reduces transaction costs when negotiating

Externalities: Positive or Negative effect on private property use.


1.] Regulation
2.] Common Law Nuisance
3.] Share profit/expense

Property: Causes of Action

Quiet Title (Ejectment)

Factual Predicate: plaintiff claims prior title or possession of land that defendant currently possesses
Remedy: title goes to lawful owner (loser is ejected from land)
Example: Johnson v. M’Intosh


Factual Predicate: defendant (“accessioner”) added property to property already owned by plaintiff
Remedy: depends –

1.] If accessioner substantially increased the value of the (combined) property: accession gets the property
2.] If there was no added value or added value was minimal: original owner gets the property


Factual Predicate: defendant inflicts injury to plaintiff’s possession of real property
Remedy: Damages –

1.] actual injury
2.] nominal damages if no substantial harm
3.] sometimes: punitive damages

Example: Jacque v. Steenberg Homes


Factual Predicate: defendant takes possession of personal property without consent of plaintiff
Remedy: return of property or payment of value
Example: Moore v. Regents


Factual Predicate: common law action for money damages resulting from the defendant’s conversion of his own use of a chattel owned or possessed by the plaintiff


plaintiff waives his right to obtain the return of the chattel and insists that the defendant be subjected to a forced purchase of the chattel from him

Example: Armory v. Delamirie


Factual Predicate: common law action for return of the goods not damages resulting from the defendant’s conversion of his own use of a chattel owned or possessed by the plaintiff


Defendant obtains return of goods, not damages

Law Vs. Equity


Money Damages
Trial by jury


Injunctions, writs, or decrees (directions to act)
Judge is fact finder
Only available if no adequate remedy at law



LABOR THEORY of Property: Unowned thing + Labor = Property

1.] Limits to amount one can mingle w/ labor; however, one can combine a lot
2.] Limit of wasting: cannot combine everything and then let it go to waste -> God would get mad

A person takes what his family labors for
Justification for disparity in property ownership:

1.] people have incentiv

ince they did not work it

the sighting or finding of hitherto unknown or uncharted territory, frequently accompanied by a landing and the symbolic taking of possesion

3.] Acquisition by Conquest: British came in and conquered Indians – defeated nation incorporated/assimilated into conquering nation

taking of possession of enemy territory through force followed by formal annexation of the defeated territory by the conqueror

First in Time:

Pros: 1.] Likely the historical basis 2.] Reduces conflict 3.] Efficient
Cons: 1.] Hard to define 2.] Arbitrary in application 3.] Unjust in application

Conqueror determines the rights of the captured

First possession is governing principle of Property Law


Pursuit alone does not give title:

Pierson v. Post (1805): Π pursued fox w/ dogs and hounds on command. Δ prevented Π from catching fox by killing and carrying it off. Issue: Is pursuit enough? Rule: One must at (1) least mortally wound, (2) encompass and secure with nets and toils, or (3) intercept animal to deprive them of their natural liberty before it can be considered under one’s occupancy. (Constructive possession) First in time means [actual] possession, or intent & ability to possess [constructive possession], not to follow.

Puffendorf: Bodily possession = occupancy
Barbeyrac: Pursuit + mortal wounding is enough; ambiguous (“as long as you’re likely to get the fox, it’s your fox”)
Tompkins: Less than physical possession is sometimes enough
Blackstone: One must “seize upon” ferae naturae; ambiguous like Barbeyrac
Policy argument: Certainty; less fights w/ ruling – best from certainty and piece of order argument
DISSENT: Matter should be left to sportsmen to decide. Perspective that law is an instrument for promoting social good – law should be whatever maximizes foxkilling. Better from perspective of incentive to kill foxes. Rule: Property in animals may be acquired without bodily touch or mancupation, provided the pursuer be within reach, or have a reasonable prospect of taking.