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Property I
St. Johns University School of Law
Sheff, Jeremy N.

Jeremy Sheff
Spring 2013

Conversion – Action for the tort of using another’s property as one’s own – True owner or rightful possessor can recover the property
Trover – Action for monetary compensation for conversion of personal property – Forced sale
Replevin – Action to recover the asset itself (plus damages for injury to asset)
I.            UNIT 1: RIGHTS OF OWNERS
·         Right to Inhabit
·         Right to Use
·         Right to include
·         Right to Alienate (transfer)
·         Right to Destroy (limiting depending on the object)
·         The Right to Exclude
a)      Every person has the right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person
b)     Society has an interest in punishing and deterring intentional trespassers to protect the integrity of the legal system and to protect the rights of individual landowners (Jacque v. Steenberg Homes) – Company could have used an alternate road.  Despite no injury having occurred, the court felt the need to make the price to trespass higher than the price for crossing the road.  It might always be less costly for somebody to ignore right to exclude and break the rule and this is bad policy, so Court made it more costly to promote the following of rules
i.            Public Policy – Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner.  Preserve the integrity of the legal system.  Right to exclude would have no meaning unless protected and a nominal amount does not constitute state protection (punitive damages allowed)
1.      Justifications for these Rights:
a)      Utilitarian/Efficiency – Best results for the most people
b)      Consequentialism – Incentives, results, competition
c)      Moral Rights – Labor and investment creates some right
2.      Qualifications on the Right to Exclude
a)      Man’s property right is not absolute – There is an obligation to exercise your rights in such a way that it does not interfere or infringe upon the rights of others – “necessity, private or public, may justify entry upon the lands of another
i.            State v. Shack – Tedesco refused to allow government volunteers to come on property to assist migrant workers
ii.            The ownership of real property does not include the right to bar access to governmental services available to migrant workers – There is a legal right or interest on the other side that is important enough to be limited
iii.            You can’t exercise your right to exclude in a way that will hinder the well being of others; Purpose of property rights is to serve human values and is limited by other human values – Therefore, title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises – Cannot exclude a civil servant if the civil servant is entering the property to further the will of another
iv.            Rights of Property Owners – Not stable, varies depending on circumstances and policies we as a society want to promote – Limitations can be civil rights, discrimination, eviction, etc.
v.            We want to use property rights to construct the world to be the way we want it to be
b)      The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it
i.            Marsh v. Alabama – Company owned town for private use only by employees but resembled a public place (different than inside a home, this resembles a public place and has public features)
ii.            There are more fundamental rights, such as the right to freedom of speech and religion granted by the Constitution, that supersede a property owner’s right to exclude
iii.             The interests of everyone in a free society could be fundamentally threatened by an unrestricted right to exclude by not allowing the witness to give religious information – The effect will be on the greater society (more company towns, or private malls who could do whatever they want)
iv.            Public Policy argument – The right to exclude has limits and other things that we find important define those limits (Constitutionally granted rights for example) – Cannot exclude if doing so will violate constitutional rights of another
c)      The very essence and origin of the legal right of property is dominion over it – property must have been reclaimed from the general mass of the earth, and it must be capable by its nature of exclusive possession
i.            Hinman v. Pacific Air – Claimed Ad Coelum, I own all the airspace above my land and the plane is trespassing on my land – The air like the sea is by its nature incapable of private ownership except in so far as one may actually use it – Cannot exclude if doing so will interfere with the progress of technology or society
ii.            One may not exclude use of the air above his property if he is incapable of reasonably using that space (rejection of that doctrine – The social consequences of making the right to exclude prevail would be undesirable, no airplanes (Public Policy) – π wouldn’t use land for productive use, but someone else can (airplane)
iii.            The benefit society receives from air travel outweighs our rights to exclude BUT, in comparison to Jacques, the benefit we have to drive through someone’s property does not outweigh our right to exclude
II.            UNIT 2: First Possession: Acquisition of Property by Discovery, Capture, and Creation
*Possession is a creation of the government and thus its laws are dictated by the government. 
**First Possession Rule – A thing capable of ownership but not then owned belongs to the person who acquires actual or constructive dominion or control over it and has to intend to assert ownership over it
Possession is the controlling or holding of chattel possessed with or without a claim of ownership. 
2 Elements:
1) An intention to control the object on the part of the possessor,
2) Actual controlling or holding of the property
A.    ACQUISITION BY DISCOVERY (Johnson v. M’Intosh)
1.      The sighting or findings of unknown or unchartered territory; it is frequently accompanied by a landing and the symbolic taking of possession – FIRST IN TIME THEORY
a)      Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest
b)     The facts – Two claimants to the same land based on two different sources of title.  1 was from the native inhabitants (Indians) and 1 from a later grant from the US government
c)      Absolute property rights cannot be shared by two different entities – Indians only had occupancy rights
i.            Precedent – Wanted to get rid of Indians
ii.            Superiority – White people didn’t want to undermine institutions already in place – RELIANCE
iii.            Idea that recognizing the Indian’s right to land would open floodgates to endless litigations once all government grants of title were From US
iv.            Moral Rights Theory of Property – Locke – A person gains a moral claim to land if they invest both time and labor into that land so since Natives did not cultivate their land and it remained a wilderness, they did not have a moral claim to that land
2.      Popov v. Hayashi – Who had 1st possession of the baseball? (Competing Principles) – The principle of first to demonstrate possession (Hayashi, Pierson) and the principle to pursue without unlawful interference (Keeble, Pierson)
a)      Ball went into stands, hit top of Popov Glove, gets engulfed/trampled in crowd, ball free, and Hayashi picks up the ball.  Popov claims conversion (the wrongful exercise of control over another’s property) – WHO HAD POSSESSION? According to MLB, a ball hit into the stands is abandoned
b)     Popov argues that intent to catch the ball therefore he owned the ball when Hayashi got the ball.  Hayashi argues that stopp

e externalities – More light for people, less whales for everyone else
ii.            Tragedy of the Commons – Common resource with a finite value – Long run it can’t sustain itself because you will run out of resource for everyone else
iii.            Solution: Internalize the externality – Make them feel it will be costly for them – Cap amount of resource that can be used, tax it, permits, and take it out of the “common”
iv.            Rule did not do that here though
e)      Consider: If the custom affects only a small group of people it might be an argument to defer to it – But this wasn’t the case here – Everyone who uses whale oil was affected here not a small group, so not persuasive in this case
2)      Keeble v. Hickeringill – Cannot illegally interfere with possession of another (The right to pursue property without unlawful interference)
a)      Π  runs decoy pond to trap ducks, and Δ shoots gun to scare off the ducks – π’s business effected and brings claim for value of the ducks insinuating π believes he “possessed” the ducks
b)     Court rules for π but not because of possession, rather, due to trespass and interference by Δ
c)      “Where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action in all cases lies”
i.            Ordinary competition in free territory is fine; can’t illegally interfere
3)      Constructive Possession: (Legal Fiction) Animals caught in a trap or net belong to the one who sets the trap or net – by setting such a trap, one is said to constructively possess those animals snared
a)      Ratione Soli – Conventional view that an owner of land has possession – Constructive possession – of wild animals on the owners land – Landowner has constructive possession of resources on their land (we do this to deter trespassers by taking away their incentives, and make landowners more secure)
b)     Not actual possession but a type of possession treated as actual possession
4)      Trespass: A landowner is not regarded as the owner of all wild animals found on his property BUT a trespasser who kills game on another’s land forfeits her title in favor of the landowner – Public policy (don’t want to incentivize trespass)
5)      Mere Pursuit: Does not constitute the exercise of dominion and control sufficient to give the hunter property right in the animal (except when mortally wounded – Ghen)
4.      Developing Rules to 1st Possession – How do we determine the right?
Idea of Certainty – Need rules to be dependable
a)      Administerability – Understandable rule, easy to apply, doesn’t involve a lot of resources, will help mitigate future disputes by making them predictable
i.            If rule is clear, and resolution of dispute clear, less chance of fight
b)      Ideas of Fairness – Who has the right? Who deserved? Customs?
c)      Efficiency – How can we ensure productive use of resources? Keep within the commerce? How can we influence behavior going forward
i.            We don’t want people to waste resources to keep fighting – What extra measures would someone take in order to meet such a rule – Fence?