i. In the 5th Amendment of the Constitution, Takings Clause
a. The rights and relationships that exist between persons and the state with respect to valued resources, often but not only land and material objects.
b. Felix Cohen, FN page 46: Concerns relationships among people with respect to things, “such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.
a. Physical control over an item with the possibility or (and?) intent of excluding others OR the conclusion of a judge (constructive possession).
3. Bundle of Rights
iii. Exclude/include others
i. Dispose: sale, gift, devise
iii. Enjoy the fruits
i. To destroy
ii. To waste
i. Protected or have immunity from others
4. Temporal Delineation
a. Ex: water
b. Temporary property right to possess something at a specific time.
5. Fungible Good
a. Water, Grain (all parts of whole are exactly the same)
b. Amount, time, and circumstances are important
iii. Non – Purchase ways to acquire property (purchase = contracts)
1. Discovery – territorial (real estate)
2. Capture – (ex: shooting game), Fera Naturae
4. Adverse Possession
5. Find – usually no ownership and no possession
iv. The Circle
v. Questions for the Circle
1. What is the social context of the situation?
2. What is the sequence of events?
3. What are the available processes and procedures?
4. How will the decision shape future social relations?
5. What are the loci of power and control?
vi. Party A, Party B, Party C, and the State all have
b. First Possession
i. Acquisition by Discovery
1. Discovery or conquest?
a. The sighting or finding of hitherto unknown or uncharted territory.
ii. Acquisition by Capture
1. Pierson v. Post (1805) page 17 – Plaintiff Post’s dogs were chasing a fox, and Defendant Pierson shot the fox while Post was in pursuit. Who does the fox belong to? Pierson. Court rules that you don’t have it until you ‘mortally wound’ ‘trap’ or remove ‘natural liberty’ of an animal. (Barbeyrac).
2. Ghen v. Rich (1881) page 23 – Court rule is that whoever kills whale is entitled to the spoils, custom based ruling but congruent to Pierson.
3. Keeble v. Hickeringill (1707) page 27 – Inaccurate facts. Court rules that the malicious intervening (guns) with the decoy pond disrupts trade, economic based decision. Could legally build another decoy pond – competition.
a. Fera Naturae
i. Cannot be owned.
ii. If captured, once they escape they are wild again.
iii. Look at context
1. Is animal native to land? (squirrel), then Fera.
2. Is animal foreign? (lion), not Fera.
b. Animus revertendi
i. Returning animals. Wild, but they are trained to return/obey. Not quite pet, not quite Fera. Seen as more pet.
d. Rationae Soli – The common law right to take wild animals found on one’s own land. Right to animals on your property.
i. Relativity of Title
1. If T steals wild boar from O’s property, and then F steals boar from T, T is more entitled. If O is involved, O is most entitled. (O must get police)
5. Oil and Gas – Fugitive Resources – Roaming resource (page 33)
a. Look at the nature of the resource (Gas? Liquid?)
b. Union Gas – There is such a thing as taking too much of a fugitive resource.
c. Ratione Soli
er Jacques’ property. J awarded $100,000 because of right to exclude.
ii. State v. Shack (1971) page 88 – Farmer houses his migrant workers on his property, they need care, farmer tries to prevent people from coming to help workers. It is ratione soli, but these are people.
1. Limitation on right to exclude
c. Subsequent Possession
i. Acquisition by Find
1. Armory v. Delamirie (1722) page 96 – Boy finds jewel, gets it appraised. Appraiser keeps it, says he has a right to it. Boy has more of a right to it, because he is a finder, most right to it absent the rightful owner. Damages for not giving it back: highest possible cost of a jewel like it.
a. General Rule: the right is to the finder against the entire world except the true owner.
2. Hannah v. Peel (1945) page 99 – Guy owns house but does not live in it, soldiers use it during war, one of them finds a brooch on the top of a window. Guy didn’t know it was there. Who owns the brooch? Guy who owns house or soldier who found it? Lot of case law discussion, decides to follow Bridges v. Hawkesworth, it’s the soldier’s. *important that he had never lived in the house.
a. Context in which it was found important
ii. Public or private place?
3. McAvoy v. Medina (1866) page 105 – Plaintiff finds wallet on table at barber. Barber can’t find rightful owner. Who owns wallet? Because it was not dropped (Bridges) and left on the table ‘voluntarily’, then it belongs to the Barber.
a. Must have to try and say it is theirs, and try to gain possession, must have strong attitude and create own personal dominion over the property.
i. Goes to employer (maid to hotel)
c. Get abandoned property
i. Owner has given up all rights, voluntarily parted with it.