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Property I
Temple University School of Law
Sinden, Amy

Property, Sinden, Spring 2012

Exam Tips

-go through each type of notice even though only need to show one type
-when you see problem, think, is it easement or covenant (major to determine whether runs w/ land), then, do you have to ask question about whether benefit/burden runs w/ the land? Who is enforcing servitude against whom? If subsequent, then must ask if runs w/ land
-must go through all elements for burdened & benefited sides separately b/c burden can run & benefit not & vice versa
-when takings claim, if arg. to be made that 100% taking, use Scalia test & then make args. re: nuisance exception, otherwise apply Penn Central test

I. INTRODUCTION
A. Property
1. deals with special issues that arise when dealing w/ real property even though contracts & torts cases cover same issue
2. fundamental to how our society is structured/ordered—might be determinative of political & social issues
3. real property=land, things attached to land
4. personal property=everything else
B. Bundle of sticks (when all 3, has property rights to that thing, rights can be distributed)
1. Right to use/possess
2. Right to exclude
3. Right to transfer
C. Two opposing views of property
1. Positivist view
a. property is what the law says it is
2. Natural Law
b. concept of property comes first before you have law or government

I. THE RIGHT TO EXCLUDE OTHERS: TRESPASS
A. Public Policy Limitations on the Right to Exclude
-right to exclude not absolute (might have to allow ppl to talk to migrant farm workers, might have to persuade court you can keep out of casino)
1. State v. Shack CB 12-16
(omit Note 4 and Problem 2)
a.       Ds entered land to aid migrant workers, owner asked to leave, Ds refused, charged w trespassing
b.      Rule: Ownership of real property does not include the right to bar access to governmental services available to migrant workers
c.       “one should so use his property as not to injure the rights of others”
d.      Trespass=unprivileged intentional intrusion on property possessed by another
e.       Court focused on state law issues, not federal issues—might prefer to rule based on state law b/c if on state law, no court can change it, if on federal law, Supreme Court can change it/can appeal decision
f.        Holding does not rest on federal statutes but trying to interpret NJ’s common law by bringing issues of public policy to light by looking to federal interpretations/approaches to inform/justify decision
g.       Court is balancing interests of parties & based on statutes & government task report decides that interests of workers outweigh interests of farmer
h.      Argue by analogy to landlord/tenant but rejects it strictly b/c it would distort the situation & force it into a conventional category—balancing competing needs of parties
i.         Court explicitly rejecting formalism
i.   putting in categories to determine outcome of case—seems more objective but critics say it hides identification of social goals
j.         Instrumentalism
i.      What is social goal that needs to be achieved by resolution of this case?
ii.    Choose rule/outcome that best promotes social goal
k. Social goal is protecting poor migrant workers, promote goal by ruling against farm owner

B. Right of Reasonable Access to Property Open to the Public
1. Uston v. Resorts International Hotels, Inc.    CB 16-23
a. Facts: Uston has card counting strategy that increases his odds of winning at blackjack; Resort has excluded him from playing because of his strategy; Uston contends that there is no common law or statutory right to exclude him because of his blackjack strategy
b. Rule: A person has a right of reasonable access to property open to the public as long as the person does not threaten the security of the premises and its occupants and his actions do not disrupt the regular and essential operations of the premises
c. right to exclude often called most important stick in bundle but not absolute right
d. casino did not have right to exclude Uston
e. Uston should argue should have had same result as Shack-right to exclude not absolute
f. Shack involved fundamental rights of workers, here no fundamental rights
g. in Shack farmer wasn’t suffering by allowing men onto property but here casino is suffering economic harm by allowing Uston on property
h. casino would state Shack holding is narrow & only applies when involving disadvantaged class of ppl—there right to exclude does not bar ppl providing governmental services
i. casino wants to read Shack narrowly & Uston wants to read it broadly
j. casino would state that Schmid different b/c Uston had no constitutional right to be there
k. when property open to public, can’t exclude unreasonably
j. reasoning very sparse—before reasonable right of access applied only to common carriers—right of reasonable access withdrawn after Civil War amendments & Civil Rights Act of 1864 passed b/c they have to treat ppl equally anyway so get rid of previous rule—Civil Rights Act of 1964 is statute that adds to principles of common law

III. ORIGINAL ALLOCATION, CREATION, AND ACQUISITION OF PROPERTY
RIGHTS
A.      How Do You Get Property?
-buy it
-force
-first possessor (Locke)
-labor (Locke)
-communal
-equal shares
-first person to build/develop
-lottery
-assignment by age/other criteria
B. Values Underlying Idea of Property
1. discovery/conquest (Johnson)
2. labor (Locke)
3. first possession (Johnson, Locke)
4. reliance (Johnson)-once someone has come to rely on particular state of affairs,
should have property rights
5. need (oil & gas)
C. Conquest
1. Property Rights Derived from Competing Sovereigns
a. Johnson v. M’Intosh CB 97-109
i.  Facts: Johnson inherited a tract of land from his father, who bought the land from the Piankeshaw Indians. M’Intosh was later granted title from the United States government. Johnson and M’Intosh filed an action for ejectment.
ii. Rule: [European] discoverer gets title, (including right to transfer), subject to the Indian right of occupancy which the discoverer has the exclusive right to extinguish either by purchase or conquest (discoverer has sole poser to extinguish right of occupancy)
iii. idea of Indians’ land conflicts with idea of first possessor
property rights but somewhat fits with labor theory b/c Indians weren’t cultivating land—labor in the form of hunting doesn’t count
iv. discovery gave exclusive right to extinguish the Indian title of occupancy (no right to transfer) either by purchase or conquest
v. Indians=rightful occupants of soil, with a legal & just claim to retain possession of it (p. 104)
vi. Indians had title & gave to US in treaties so US had title from Indians (argument in the alternative)
vii. not clear what Indian right to occupancy amounts to—does not specify in opinion—says it never was contended that it amounted to nothing
viii. Marshall takes a positivist view—against natural law—this is how it is, the law of the land—this is what the law says is necessary—property rights should rest on reliance on living on & cultivating the land
ix. Marshall takes self-conscious positivist view so inserts ideas of natural law b/c knows these ideas exist here—b/c he’s Sup. Ct. judge, must follow what US law says
x. positive law (what gov./sovereign says law is (divorces from morality)-tends to lean towards utilitarian approach) vs. natural law (morality, law before gov.)
xi. Marshall acknowledges posi

l oil & gas brought to surface regardless of where oil & gas originated
v. absolute ownership: oil underneath each person’s land is theirs even though common pool w/ neighbor (problems of enforcement to know from whose land oil came)
vi. combines both rules—each neighbor has correlative right & if they act reasonably, will get approx. what they would get if absolute ownership—replaced old rule of capture w/ absolute ownership & reasonableness caveat
vii. rule of capture says only get possession when you take it out of the ground (like fox)
viii. start w/ absolute ownership, if you create well on your property & capture w/ reasonableness, property right shifts, if you do capture unreasonably, property right doesn’t shift & belongs to original owner
ix. Problem (p. 164)
(a)  P: would argue for absolute ownership b/c D could capture more b/c more wells; rule of capture would be bad b/c wouldn’t give incentive to explore b/c would wait for neighbor & exploit exploration
(b)  D: would benefit society if company that can extract cheaper would make prices cheaper & better for society—wouldn’t necessarily dis-incentivize ppl to explore/extract (labor creates value & better for society)
x. utilitarian arguments—can be seen as subset of positivism (thinking about consequences & effect on society as a whole & creating the right incentives that will have consequences that are good for society)
xii. natural law—right & moral & just thing to do (should reward labor b/c labor is a virtue; unfair for D to come & exploit P’s exploration)

3. Water. CB 164-167
a. Evans v. Merriweather
ii. Rule: (rule for Eastern part of US)
iii. groundwater—absolute ownership & rule of capture
iv. riparian=adjacent to a body of water
v. usufructory=use
vi. natural flow doctrine: natural water should be allowed to flow & ppl may use water as long as it does not injure another landowner on whose land the water flows
vii. court rejects natural flow doctrine (old rule left over from agrarian society) & replaces w/ reasonable use doctrine (emblematic of industrial revolution—doctrine of riparian rights)
viii. may use water as long as it’s reasonable use—natural use (quench thirst, household purposes, water for cattle); artificial use (everything else)—when dispute, usually about artificial uses balancing competing social uses & benefits
ix. both P & D use water for artificial use
x. as long as for natural uses, OK to use all water in stream—if for artificial use, not OK
xi. both have right to use water & must be jury question to determine how to divide
xii. rejects natural flow doctrine—hint of labor theory
xiii. riparian rights doctrine—anyone who has property along water has right to use it
xiv. assumption of reasonable use is allocating water to everyone & will be enough water for everyone
xv. might use principle of need to describe property rights in this case
xvi. need drives basis for property rights
xvii. general plan or scheme restrictions may only apply to certain well-defined similarly situated lots for implied reciprocal negative easements to apply to lots