PROPERTY OUTLINE
PROFESSOR COLLETT, SPRING 2015
UNIVERSITY OF ST. THOMAS (MN), SCHOOL OF LAW
RECOGNITION AND ALLOCATION OF PROPERTY RIGHTS
I. THEORIES OF EFFICIENT ALLOCATION
A. Colorado v. New Mexico (1982): equitable apportionment balances the benefits and the burdens; efficient use gives superior title to first in time. [waterway between states was being depleted by upstream user]
B. Demsetz, Toward a Theory of Property Rights
C. Ostrom, Governing the Commons
II. LABOR THEORY
A. John Locke, Second Treatise on Govt (1690):
i. God gave the world to all man in common to be used for the best advantage of life and convenience; this requires that land is appropriated from the common for beneficial use
ii. Every man has an exclusive property in his own person and the fruits of his labor; whatever a man removes out of the state of nature and joins with his labor is thereby his property; this fusion of labor with property occurs at the first instance of labor (i.e., gathering the acorns) and does not require the consent of the common under whom the property was previously held (justification for taking land from NAs)
iii. Acquisition is not without limits; one may only fix a property in so much as he is able to use for advantage before it spoils and beyond that is not his and belongs to those who can use it for advantage.
B. Haslem v. Lockwood (1871): the first party to occupy abandoned property and improve it with his labor has the legal right to that property [π shoveled manure to side of road and left overnight before collecting, Δ came and carted manure away]
III. ACQUISITION (FIRST IN TIME)
A. Acquisition by Discovery/ Conquest
Johnson v. M’Intosh (1823): Title given to first “civilized” occupiers of land based on “first in time” principle; discovery vests title; justified by Locke (nomadic Indians didn’t blend labor with land) and English tradition; right of occupancy is granted to conquered people, but not right of title to dispose of land [conflict between two people with title to land, one from govt land grant the other purchased from Indians; held, Indians did not have title and therefore could not covey it]
B. Acquisition by Capture: You must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title. Pierson v. Post (1805) [one hunter was pursuing the fox when another hunter shot it; hunter who shot the fox had possession]
i. “mortal wound” approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective “manifest intention” to seize the animal (i.e., not just for the enjoyment of the chase)
ii. “socially useful enterprise”—majority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain from labor of first person)
iii. Other reasoning: keeps the peace, decreases litigation (the end of the hunt is an objective measure whereas the beginning is subjective), clear and easy to administer
C. Title to a wild animal is acquired by constructive possession in accordance with custom. Ghen v. Rich (1881) [the whaler who lanced the whale vested best title over the person who found the whale on the beach where custom dictated that whalers marked their spears to indicate ownership]
i. Custom recognized as basis for property right when: (1) its application is limited to those working in the industry (2) custom is recognized by whole industry (3) requires of the first taker the only possible act of appropriation (4) necessary to survival of industry (5) and works well in practice
ii. Custom is bad when: (1) formulated for the benefit of the industry but not society as a whole (2) may be dangerous to those employed in the industry (3) wasteful of a resource (i.e., the whales that floated out to sea and weren’t recovered)
POST-INDUSTRIAL PROPERTY
I. THE CORPORATE FORM
United States v. East Carroll Correctional Systems (1998): Shareholders in the corporation want their property interest protected in the assets of the corporation; held, property of the corporation does not belong to shareholders, only interest in the stock.
A. Bromine’s Hypothesis—explains as an economic matter why we don’t see stockholders as directly owning property of company; aggregate the capital to promote productivity which is done more quickly when the people who offer the capital aren’t seen as having a direct stake in the assets
B. Manning, “The Shareholder’s Appraisal Remedy” (1962):
II. PROPERTY IN INFORMATION
Nash v. CBS (1990): Television series used Nash’s ideas about John Dillinger surviving and living into old age; Nash sued for copyright violation, Held, copyright does not give protection to an idea, only the expression of the idea. Nash’s ideas were grounded in historical fact which cannot be the subject of copyright. Copyrights are violated where the expressions used were so qualitatively important that the original author’s market would be diminished by the appropriation.
i. Copyright does not give protection to a process, only the form in which the process is communicated. Baker v. Selden (1879): Methods of art or science are the common property of the world and an author may express or explain them in his own way; where the form is the essence (designs or illustrations) the material itself can be properly copyrighted, but not the explanation of the art. [bookkeeping methods in a book were reproduced]
ii. Software commands are uncopyrightable “methods of operation.” Lotus v. Borland (1994):
B. Property from the Commons: there is no tragedy of the commons in intellectual property because everyone can use information without damaging the use of another (non-rivalrous & non-excludable without legally created rights). Baird, Common Law IP and the Legacy of INS v AP (1983) So how do we justify property in information?
i. To get the value of the labor—INS v. Associated Press (1918): although the news is common property, the news put out by AP is blended with their labor and is sold as a good for money (creates quasi-property); the test is not the right of INS against the public but as against AP as their competitor in the sale of the good.
ii. To encourage people to create—
1. Cheney Bros. v. Doris Silk Corp. (1930): “In the absence of some recognized right at common law or under statut
NTARY TRANSFER
A. Law of Finders—object is to return as many lost items to their rightful owner
i. LOST PROPERTY— finder of lost property has greater rights to the found property than the whole world except the rightful owner, a prior rightful possessor, or a person holding for such person.
1. Armory v. Delamirie (KB 1722) [chimney sweep found a piece of jewelry and brought it to a goldsmith who refused to return it; action in trover for value of stone; court held for sweep as having right against all but rightful owner]
2. Hannah v. Peel (KB 1945): lost items on top of the land are not connected to the land; a landowner must possess the land in order to possess the items connected to the land; finder has superior to title to all except the true owner of the broach.
a. Bridges v. Hawksworth: found money on the floor of the store; the store owner was never in possession and the lost item was not connected to the land, so the finder has title
b. Staffordshire Water v. Sharman: lost rings were connected to the land (in the pool) and the pool cleaner was acting as the agent; lost items in agent relationship go to employer
c. Elwes v. Briggs: things that are under the land are connected to the land and are possessed by the landowner (constructive possession of things under the land)
ii. MISLAID PROPERTY— property the true owner intentionally placed and left with the intention of returning for belongs to the owner of the premises. McAvoy v. Medina (1866): the property owner has title superior to all except true owner; holding in bailment for true owner. [mislaid wallet in barber shop]
iii. ABANDONED PROPERTY— property the true owner intentionally and voluntarily relinquished with intent to no longer own and without transferring ownership to another person belongs to the finder
1. Benjamin v. Lidner Aviation (1995): money found in the wing of an airplane was mislaid because it was too much money to have been abandoned; goes to the owner of the airplace
2. In re Seizure of $80,000 (2000): money found in gas tank was abandoned because the car was impounded from drug dealers; money goes to owner of car because mechanics who found it were agents
iv. TREASURE TROVE— currency intentionally concealed with indications that it has been so long concealed that the true owner is dead; belongs to the finder
B. Adverse Possession—theory articles
i. Policy: (1) punish people who fail to use/ supervise their land (2) reward those who make most efficient use of land
ii. Standard: possession that is actual, open, notorious, exclusive, adverse or hostile (some courts), continuous, under a claim of right, for the statutory period
