Property I Outline

PROPERTY

BOUDREAUX

SPRING 2012

i. Concept of property

3 broad types of property:

· Real property – land and buildings on land

· Private property – books, bank account

· Intellectual property – created by human mind, imagination – songs, product trademark – intangible property

Why do we have a legal system of private property?

· Property is a human invention, not the result of divine gift or natural light.

· Legal positivism – property exists only to the extent that it is recognized by the Gov.

· Natural Law theory – the idea that certain rights naturally exist as a matter of fundamental justice regardless of gov. action – has little impact on modern property law

5 Theories of property:

1. Protect first possession

· First come first serve – the first person to take occupancy or possession of smth owns it.

· Drawback – while it helps to explain how property rights evolve, it does not adequately justify the existence of private property

2. Encourage labor: Labor (owned) + Natural resources (un-owned) = property (rights in the mixture); Labor added value and thus it became PRIVATE PROPERTY: where everything is virtually already owned the encouragement of labor is not as strong of a theory as it previously was, however in the realm of copyrights and patents the theory can be asserted.

3. Maximize societal happiness (Utilitarian) – Pierson v. Post – encourage killing or capture of wild animals for the benefit of society.

· Allocating recourses promotes the general welfare of society

· Three principles govern property rights:

· Universality: all valuable, scarce resources must be owned by someone

· Transferability: can sell, rent, lease property.

· Exclusivity: excluding others from using the property

4. Ensure democracy (Civic Republican Theory): giving people a stake in society – sense of pride through property ownership

5. Facilitate personal development (Personhood theory):

· Property is necessary for an individual personal development

· Each person has a close emotional connection to certain tangible things

CAPTURE LAW

First in time rule:

· First person to take possession of a thing owns it

· Implements important social policies relating to rewarding labor, protecting investment in resources, encouraging people to bargain with each other rather than fight

Capture of wild animals:

· Basic Rule – no one owns wild animals in their natural habitats. Under CL capture rule, property rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it

· Wild animals, fish

· Water, minerals, oil – gives incentive to produce oil and gas

· Custom and Practice Industry possession: recognize possession even before absolute dominion and control is achieved. These cases require the actor to be actively and ably engaged in efforts to establish complete control. Such efforts must be significant and they must be reas. calculated to result in unequivocal dominion and control at some point in the near future.

· I.e. hunting and fishing cases recognize a mortally wounded animal may run for a distance before falling; whalers acquire possession by landing a harpoon, not by subduing the animal.

Pierson v Post p. 8

· Facts: Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself.

· Issue: did Post’s pursuit of the fox create a right of property to the fox? (Post’s argument)

· Holding: A fox is a piece of un-owned property, and a property claim to such an animal is acquired only through occupancy. Pursuit alone vests no property right.

· A case of first impression – situation where a ct has considerably more latitude to reach an appropriate decision – no precedent

· Reasoning: Majority (Tompkins): Justinian, Blackstone, Puffendorf

· Precedent (not case here)

· Simple rule, Straight forward rule – easy to administer

· Fair rule

· Rationale of first possession

· Society’s object is to capture foxes. To foster competition, resulting in more wild animals being captured, society does not reward pursuer, only the captor. It is assumed that this brings more persons into pursuit, resulting in more capture

· Easy rule to administer – pursuit is hard to define and can take many forms.

· Holmes – the life of the law has not be logic, it has been experience

· Law is flexible

· More complex, but more fair bc of certain facts involved

· Dissent (Livingston)

· Arbitration of sportsmen

· Should rely on experience (similar to Holmes)

· Wants to encourage the killing of foxes

· Encourage good behavior (rationale)

Hypo p. 14-15

1. Post shoots at a deer from a location 200 feet away; the shot grazes the deer’s ear and temporary stunts it. Pierson immediate snatches the deer and puts it in a large sack. Post arrives on the scene minute later, while the deer is still stunned.

Post partially captured it, not physically took it, but close.

2. Motivated by environmental concerns, Post nets a wild rabbit, paints “property of post” on it and then allows it to run free. Pierson shoots and kills the rabbit.

Post abandoned ownership.

3. Post’s dogs chase a fox into a shallow cave. But before Post can get to the cave, Pierson shoots the fox and mortally wounds it, Post arrives at the cave 2 minutes later.

Pierson – capture rule

4. Post’s cow strays onto un-owned land. Pierson finds the cow, places a rope around its neck, and leads it back to his own farm. Two days later, Post discovers the cow on Pierson’s farm

Post – domesticated animal

Release or escape after capture – in general, ownership rights end when a wild animal escapes or is released into the wild. However, if a captured wild animal is tames such that it has the habit of returning from the wild to its captor, it is still owned by the captor.

Rights of landowner – owner of land has no rights in wild animals on her land. However, bc an owner may bar hunters and others from trespassing on her land, this gives the landowner exclusive opportunity to capture wild animal on the land.

Lost property: finder holds it in trust for the benefit of the true owner, as a bailee. But finder has rights superior to those of everyone except the true owner.

Potential disadvantages of capture rule:

· Capture rule encourages the destruction of wild animals.

· Environmental law – devastates natural ecosystems.

· “Commons” – areas that no one owns, everybody gets to use it. Everyone wants to collect as much commons as they can. “Tragedy of the commons”. Examples: animals, forest, fishing, water, and air. Abuse of resource – over-exploiting. In hunting – gets over-intensive – no interest in investing in increasing or maintaining the stock of game

2 basic solutions: change the way you think – educate people not to exploit resources (but can’t educate everybody); make them no longer commons – legal restrictions on the amount of catch and privatize the land (make it prv property). Prv property rewards your labor. Su