Property I
Professor Vincent DiLorenzo
Spring 2010
What is property?
a bundle of rights
right to possess
right to use
right to the fruits and profits
right to alienate – transfer rights
right to destroy
property rights result in responsibility
the property owner has these rights – rights are exclusive
in order for something to be considered property, it does not need to possess all 5 of the rights listed above
causes of action for property
TRESPASS
interference with the exclusive right to property
TROVER
conversion
same as trespass, except the interference is more significant
forced sale
damages in full market value of property
REPLEVIN
action to recover possession
WILD ANIMALS
general rule regarding wild animals as property
intention—appropriating animal for individual use
courts do not want to impose property rights on anyone without their consent
public policy
rights create obligations
voluntary status—you must consent to it because rights have duties or rights to others
possession—deprive natural liberty and bring him within certain control (by mortal wounding)
public policy
certainty—objective evidence
preserve peace/minimize litigation
(pursuit is not a form of possession)
ratione soli—by reason of ownership of the soil
gives exclusive right to hunt and fish for animals on the property
but property owner does not own wild animals simply because they are on their land
policy
to discourage trespass on private property
What is a wild animal?
one with natural liberty
species wide determination
Does the general public typically expect this type of animal has no owner in this locale?
in its natural habitat
Can you lose rights to wild animals?
o yes, you can lose your rights—only qualified right to wild animals
o qualified right is lost when animal regains its natural liberty
§ to be free from artificial restraint
§ to return to its natural habitat
§ public policy
· to encourage capture, but with notice and general expectation or prior rights that the animal is wild
· the best way to encourage capture would be to recognize a qualified interest
o UNLESS animal has animum revertendi
§ the habit of returning
§ public policy
· taming
· if animal is tamed—in sense of animum revertendi—then you don’t lose the rights of the animal
· overrides reasonable public expectation
NATURAL RESOURCES
WATER
embraced the rule of capture
when you capture water, it has the possibility of injuring other people
added reasonable use doctrine
if the capture of water harmed neighbors, it was considered unreasonable and hence unlawful
NATURAL GAS AND OIL
capture rule (certain jurisdictions)
you do not own the oil simply because its below your land
you must capture it first
but no one else can come on your land and drill – trespass
ownership in place – qualified rights (certain jurisdictions)
if you own the soil, you also own all the oil and natural gas temporarily below the soil
· DOMAIN NAMES
· SOLAR POWER
ecause it is generally expected that you can bring home something you find there
when is property owner a quasi-bailee? – constructive possession
policy – to maximize the likelihood of property being returned to its rightful owner
majority opinion
mislaid property
doesn’t matter if its public or private property
either way, the property owner is a quasi-bailee
lost property
private place – owner is quasi-bailee
public place – finder is rightful owner over all else but true owner
Does employee find for employer?
employee finds for employer when article is found in the course of their employment
course of employment means an understanding
in these circumstances is there an understanding between an employee and their employer that what they find in these circumstances they find for their employer
can be specified in employment contract – explicit understanding
implicit understanding – based on the nature of the job, the general expectation of the employee in these circumstances is that they cannot retain the property and must turn it over to the employer
finder’s rights and trespass
policy
the law wants to discourage trespass, and does not want to allow someone who has violated the law to assert legal rights
