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

Jeremy Sheff for Property I law Fall 2017

Part 1: Foundations:

Chapter 1: Ownership

Three Issues:

Ownership: What rights does a property owner have?
Subject Matter: What things can an owner have these rights over?
Allocation: Who gets rights over which things?

“…that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Sir William blackstone

The right to exclude:

PRESUMPTIVE RULE: The R2E will generally be enforced against purely commercial interests

àJacque v. Steenberg Homes: In order to deliver a mobile home, SteenBerg Homes went across the Jacque’s property without permission

Punitive damages are appropriate in intentional trespass cases even if there are no actual damages.
The purpose of the punitive damage in this case is deterrence. Landowners have an interest in protecting his or her land from trespass
A landowner’s right to exclude another is a fundamental property right. Society must have faith the court will uphold that right and will punish and deter those who commit an intentional trespass.
If landowners are only allowed compensation for trespass actions that have compensatory damages it makes that right a hollow one
Here, Steenberg was unequivocally told no, and still continued on the land. That disregard for the Jacque’s rights amounts to that egregious conduct.

1. EXCEPTION TO RULE: However, the R2E will erode when emergency situations give rise to necessity. EX. Ambulance

2. EXCEPTION TO RULE: A property owner’s right to exclude will further erode when they: (1) open their private property to the general public; or (2) invite certain guests on to their property

Marsh v. Alabama – When a Jehovah’s witness went into a company owned town, but acted like a normal town, to hand out pamphlets, the town tried to kick her out. She claimed that it was her right to free speech and this was a town open to the public. The court said that the more an owner opens his/her property to the public, the more their rights become limited by statutes and constitutional rights of those who use it.

State v. Shack – When lawyers came to give migrant workers legal advice, the owner refused to let them speak to the workers alone. The court said that the scope of an owner’s rights is limited and cannot intentionally bar people on their property from accessing government services that they are entitled to. Title to real property does not include control over the destiny of people the owner permits to come onto his premises.

A person’s right to his real property is not absolute. Private or public necessity may justify entering onto his land. There is no need for a farmer to deny his worker the change to receive aid from government services or charity groups, so representatives from those groups may enter the land and see the worker in his living place.
the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens.

The Civil Rights Act of 1964 attempted to determine the right to exclude in a statue, because property is a radical institution since it gives power to determine use to individuals. Public accommodations shall have equal access, as well as establishments affecting interstate commerce (inns, hotels, restaurants, retail establishments, movie theaters, venues). However, this statue does not apply to private establishments or clubs, except to the extent of aforementioned facilities.

Policy rationales for enforcing property:

Right to exclude diminished as other rights are invaded or hurt
Don’t want people to take matters into there own hands
Paying for security à opportunity cost to use money for other means

PRESUMPTIVE RULE: The Bundle of Rights

(1) The right to exclusion (exclusionary)

(2) The right to possession (possessory)

(3) The right to use (usufructuary)

(4) The right to alienate (alienation)

à The power to make a gratuitous transfer, a gift… donations

à The power to transfer in exchange for value, or to sell

à The power to dispose of after death testamentary

EXCEPTION TO RULE: However, these rights can be limited in the name of public policy

à Eyerman v. Mercantile Trust Co. (1975) When a testator wants to fulfil Mrs. Johnston’s will by knocking down a house in order to have money for her estate, the public came together to say that it is better for the public to leave house there. The court said that while Mrs. Johnston has the legal right to have her house razed during her lifetime, she didn’t have a right to do it after her death. (where a testator’s will to have her property destroyed was denied because of its wastefulness, harm to neighboring property values and apparent lack of purpose)

A landowner’s attempt to compel his successor to do something against public policy, is deemed void.
destroying a property for no reason other than it was in someone’s will is against public policy. It decreases the value to the beneficiaries and the property values.

à Hinman v. Pacific Air Transport (1936) (where a property owner’s R2E air space above him supported by ad coelom doctrine was denied because of impracticability. Not only did he not derive usufructuary benefit from the air above his land, but the sky, like the sea, is incapable of exclusive possession. Upholding his R2E would force airlines to negotiate thousands of deals for cross-continental flights, and public policy dictates support of this infant industry.)

Ad coelum principle: “Earth to Heavens” ownership of property

Rule eliminated due to policy concerns; Redefining property rights (no air rights, no possession of air) ….Not up to infinity…..Needs of the many outweigh here
The rule was never meant to be taken literally, and the interpretation of the rule advocated by Hinman would result in absurd consequences. Holding that Pacific’s overflights constitute trespass would allow every landowner to prevent airplanes from flying above his or her land. Such a rule would be unenforceable

Two concepts that help us understand property… What is property? Consider two alternative formulation

ts, governments can create property ex nihilo from public property. The medallions were property because they were valuable, and not valuable because they were property)

Elements of Conversion:

Plaintiff’s ownership or right to possession of property;
Wrongful disposition of property right without consent of the owner
There are damages resulting from the conversion

Three Part Test for Determining if Something is Property

Is there an interest capable of precise definition?
Is it capable of exclusive possession or control?
Did the owner establish a legitimate claim to exclusivity?

Chapter 3: Allocation:

Three Questions for Allocation:

1) Who owns what?

2) How do things come to be owned?

3) What justifies the allocation of one potential owner over another?

How do people gain property rights? acquisition by discovery, capture, creation , adverse possession acquisition by gift

Initial Allocation of Chattels

PRESUMPTIVE RULE: Whoever is the first to possess a chattel becomes the owner

à Pierson v. Post (1805) (holding that while the Π Post was in pursuit of the fox, Δ Pierson was the first to possess it, and therefore it owner. Establishes the primary rule of first in time, first in right. The first to deprive the wild animal of its liberty either by killing it or trapping it gets the right to the animal. (NOTE: This is a highly administrable rule).


If Post owned the land ratiaone soli (title of occupancy, landowner is in constructive possession of wild animals therein). But…
Possession: two elements.Both must be present; true ownership is not necessary for possession.

Object must be lost or abandoned
Intent to hold something
Physical holding – Control is key

Why is this the Primary Rule?

As opposed to granting possession to pursuit, this rule is much easier to administer. Furthermore, Judge Thompkins argued that this rule incentivized the killing of foxes, considered varmints at the time. However, Judge Livingston dissented, arguing this policy would disincentivize fox hunters from pursuing their game, increasing the number of foxes.

à POINT: Lawyers and judges use unfounded economic arguments to craft rules and laws to achieve desired outcomes. Here, we want dead foxes! Although both judges are without empirical support, they use logical reasoning to support their conclusions.