Property I Outline

Conceptions of Property

(1) Lay View ~

Property is defined as a package of unified legal rights all tied together for a common purpose to give the owner a zone of policy control with exclusion to the rest of the world.
Example: Jacques v. Steenberg Homes (1997) ~ ∆ trespassed by transporting the neighbor’s mobile home across Π’s property.

§ Court viewed any diminution of one’s control of the land as a violation or taking of the property that can be construed as a harm to the landowner.

(2) Scientific View ~

Property consists of a bundle of rights. These rights are not all directed towards one goal of encouraging owner control. The state has some discretion to give some owners some rights and some owners other rights to further certain policies.
Example:

Necessity defense to trespass.
Airspace use as an exception to the Ad Coelum Rule in Hinman v. Pacific Air-Transport (1936).

IMPORTANT TORTS IN PROPERTY ~

Prima facie case for trespass = Defendant (1) directly (2) enters (3) the plaintiff’s land.

Trespass is a strict liability tort.

Establishing a prima facie case for trespass ð nominal damages.
Establishing an intentional trespass ð punitive damages.
Establishing repeated intentional trespasses ð injunctive relief.

· Prima facie case for nuisance = A nuisance is an (1) unreasonable (2) interference with the Π’s use of the land that (3) causes the Π (4) harm.

Nuisance is a strict liability tort (as far as our class is concerned).

Interference

Ä “Any use of the land by the ∆ that conflicts with the land use by the Π.”

Unreasonable

Ä “An interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm.” (Restatement §§827-828).

Example ð Hendricks v. Stalnaker (1989) ~

Jury found that Stalnaker’s water well was a private nuisance & the trial judge ordered it abated. No money damages were awarded.
If money damages were awarded b/c Hendricks couldn’t use the land for a house (for lack of a septic system) like he originally wanted to:

= (Value of using the land as a house) – (Value of using the land for the next best purpose).

COASE THEOREM ~

(1) Coase asks different questions than those asked by lawyers.

Instead of asking who has the title or who is the trespasser, Coases asks – “What combination of control rights will make both parties better off?” [Coase is all about efficiency].

The questions asked by the lawyer are merely a starting point for the economists.

(2) As soon as the economist knows what the starting points are, the economists assume that the two parties will begin to bargain.
(3) Economists assume that the actors are profit maximizing & rational.
(4) Economists assume that the transaction costs are zero.

Therefore, the object of the law would be to assign property rights in a way the market would if transaction costs were zero.

INJUNCTIONS ~

If a court does not freely give an injunction, the Π’s only remedy will be in damages.
Ordinary Cases:

Ä General Rule – The Π is not entitled to an injunction unless the Π’s remedy at law is in adequate.
Ä Specific Rule – If the ∆ is more likely to be a repeat trespasser, then the Π is entitled to an injunction.
Ä PP Theory – Repeat, small damage awards are not adequate to stop repeat trespassers (more profitable to break the law).

Injunctions protect a right to dispose (portion of the zone of control) & keep repeat trespassers from undermining this right by deciding if it is more profitable to take on the Π’s rights (Lay Attitude).

Encroachment ð Ordinary Cases:

Ä Permanent encroachment is a permanent repeat trespass.

Normally, it doesn’t matter how expensive it will be for the ∆ to remove the encroachment.

See Pileð Mandatory injunction was so ordered by the court to remove the 1.375 inches of encroachment.

PP Theoryà Same as above.

Encroachment ð The Scientific Exception:

Ä Some courts may refuse to enter the injunction in encroachment cases if:

(1) The encroachment is “de minimus”

De Minimus:

Whether the Π is using the land or soon means to use the land.
Whether the encroachment is less than 2-3 feet.

+ (2) The ∆ encroached in good faith

Good faith:

Did the ∆ get a competent surveyor?
Any forewarning that there may be a problem, no good faith?

+ (3) It would wreak hardship on the ∆ to remove the encroachment.

Hardship:

If the encroachment is 10x more expensive than the property à Π gets injunction.
If the encroachment is 100x more expensive than the property à Π gets no injunction.
… but, this really depends on the judge.

Ä If this test is satisfied, the consequences are:

(1) ∆ pays fair market value to the Π for a slice of the land in fee, or
(2) Court conditions refusal to enter injunction on ∆’s paying Π’s price. See Golden Press.

Ä PP Theory:

It is not fair to make the ∆ remove the encroachment if it is worth a lot more than the land … as long as the doctrine does not reward the ∆ for encroaching in the first place.

CONCLUSIONð ** Enjoying a property right means having a right to a good against the world.**

Includes right to use, control, & dispose.

Original Acquisition

ACQUISITION BY CAPTURE

Is the animal wild or domesticated?

Domesticatedð Animal has a tendency to return to its domicile (dog, cat, sheep, bees, etc.)
Wildð Animal does not return to its domicile (lions, tigers, foxes, rabbits, etc.)

Ä If domesticated …

The owner of the animal’s domicile has the best claim of right to the animal.

Ä If wild … was the animal caught on private property or public property?

Private Landð Private landowner has the best claim of right to the animal.
Public Landð The capturer has the best claim of right to the animal (See Pierson Capture Rules).

Pierson v. Post (Capture Rules) –

Majority Rule:

Capture (mortally wound, kill, or confine) = Right to possession

PP Theoryð Certainty & easy to administer the law.

Minority Rule:

Constructive Capture (hot pursuit) = Right to possession

PP Theory à

Custom – Sportsmen’s custom would tell us that this is more just.
Labor – Capture rules should side with the party laboring to assemble these hunting parties.

When capture rules are insufficient –

Ghen v. Rich (1881) ~ Both parties had essentially captured the whale. Ghen killed the whale with the bomb lance &

Rich bought the whale from Ellis who found the whale on the beach.

Therefore, Ghen turned on the PP issue of CUSTOM [& LABOR].

Based on the custom of the industry, Ghen lanced the whale & therefore had 1st Priority to the whale. Ellis’ interest was in a finder’s fee, which then passed on to Rich.
“Unless [custom] is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder.”

Keeble v. Hickerngill –

Even though Keeble had not captured the ducks in question, Keeble wins because he had a business interest wrapped up in a property interest. Keeble had the right to use his land in a profitable way, free from spiteful or malicious acts.

Eads v. Brazelton –

When property has been abandoned & someone is trying to recover it, Courts have tended to require the narrow interpretation of an actual taking (constructive taking will not usually be sufficient).

Capture Doctrine requires (1) intent to take & (2) an actual taking.
Abandonment Doctrine requires (1) act with manifests (2) an intent to abandon.

Court found that Brazelton, while finding the abandoned ship 1st, did not capture the ship by merely marking the trees and placing the buoy above the sunken ship (relied on traditional capture rules).

CONCLUSIONð Stationary Resources & Fugitive Resources:

Stationary Resources – domesticated animals, gems, ore, or other items underground.

These resources are either inanimate or have a tendency to return to the land.

DOCTRINE:

Ä Owner of the land has constructive possession over these items by ratione soli (by reason of the soil).

Public Policy –

For inanimate objects ð Clear notice to owner & to all strangers.

Objection: What if the owner isn’t going to labor to extract the property?

o Counter – The simple rules create clear property rights which form a baseline for bargaining (Coase).

For animate, but returning objects–

Ä Notice: The objects are on their domicile more often than on other land.

· Ä Labor: This rule protects the labor of the shepherd, & allows us to ask who raised the animal.

Fugitive Resources – wild animals, oil, gas, & fish.

These resources move with no pattern of movement.

DOCTRINE:

Ä Start with an actual capture rule (ex. Pierson v. Post).
Ä But, consider switching to some constructive capture rule to protect LABOR:

Example: Pierson à Expands actual capture to wounding & netting.
Example: Ghen à Expands actual capture to include the custom of bomb-lancing.

Public Policy –

Actual Capture creates more notice & is easier to follow.
Constructive capture encourages risky investment at the price of clear notice to claimants & strangers.

POLICY PROBLEMS WITH THE CAPTURE RULE:

Tragedy of the Commons ~ Capture rules may lead to over-exploitation of the resource subject to capture rules.

2 Regimes –

(1) Open Access –

Open to all members of the community for them to take resources out of a pool.

May be subject to management (like in a park) or may be not (fishing in int’l waters).

(2) Common Property Regime –

Closed set of individuals all have an equal share/interest in the property and all have the equal right in governance. The property is excluded from non-members.

Overexploitation Problem with Open Access –

(1) Everyone has an incentive to take out the resource while sharing only a fraction of the harm.
(2) No one has an incentive to invest back into the resource.

Potential Solutions to the overexploitation problem–

(1) Contract ~ Assign a corporation to run the open access.

Example: A corporation could run the fishery or oil field.

If it works, it is cheaper to run than public-law regulation, … but

(a) It is difficult to get all the members to participate voluntarily.
(b) It is difficult to stop some parties from holding out for extra shares of proceeds.

(2) Public Regulation ~ Assign the government to fun the open access.

Example: Government runs the fishery or oil field.

Pro ~ Coercion can break through the hold-up problems of the contractual model.
Cons ~ Government regulation is slower (more red-tape) & outside groups may interfere to seek a share in the gains.

1 More Problemð Public reasons not to encourage the capture of a resource at all (conservationism)

CONCLUSIONðThe common law encourages private property, but there is a limit on this encouragement because it works on too micro of a level (case by case).

ACQUISITION BY DISCOVERY

Capture Rules apply to moving chattels (as discussed previously). When it comes to un-owned land, the common law equivalent is occupancy rules:

Capture Rule Ê

(1) Intent to take; (2) Actual taking (capture; 1st possession)

Occupancy Rule Ê

(1) 1st person to make an act to occupy/discover with an (2) intent to occupy/discover.

Johnson v. M’Intosh –

Ordinarily at common law, land rights are disposed of by the occupancy rule.
However, occupancy rules do not work in Johnson because of the CUSTOM of international discovery practices.

The claim of occupancy based on Indian Rights is trumped by the local law of the European Nation that discovered the land.

[Britain (original discoverer) ð lost land in war to US] > Indian Rights.

· M’Intosh’s rights to the land > Johnson rights to the land.

PRIVITY –

Concept that land rights transfer from owner to owner.
Cannot transfer more than one has in their possession.

PRIORITY –

Individual may have a right to a property better than the rest of the world.

X may have a property right to Z better than the rest of the world.
Y may have a property right to Z better than the whole world, except X.

LAND GRANT SYSTEM –