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Property I
Temple University School of Law
Sinden, Amy


Spring 2013

Prof. Amy Sinden

Temple Law


A. “3 Sticks in the Property Bundle” – Remember that all property interests do not have to be held by one person (i.e. landlord owns it and has the right to transfer, but tenant has the right to possess/use and exclude)

1. Right to use or possess

2. Right to exclude others from use or possession

3. Right to transfer

B. Tensions within the Property System

1. Right to exclude v. Right of access

2. Privilege to use v. Security from harm

3. Power to transfer v. Powers of ownership

4. Immunity from loss v. Power to acquire


A. First in Time

1. The first occupancy theory reflects the familiar concept of first in time: the first person to take occupancy or possession of something owns it. The first-in-time principle is the basic rule for determining the respective priority of competing title claims to real property All other things being equal, it offers a quick, clear, and inexpensive method to resolve competing claims to property rights and thereby avoid conflict.

B. Conquest

1. Johnson v. M’Intosh (US 1823)[Conquest: Property Rights Derived from Competing Sovereigns] [Marshall]

a. FACTS: Johnson (π) claimed title to a parcel of land through ha grant from Native Americans, while M’Intosh (∆) claimed the same parcel based on a grant from the newly formed US gov’t. Johnson had the title first

b. ISSUE AND HOLDING: Does the act of discovery give the discovering sovereign the power to extinguish the native title of occupancy? Yes

c. U.S. government inherited its title to the land from England’s discovery of the land. Indians had aboriginal title – the right to occupy the land but not title to the land, “mere occupancy.” This case sets precedent that U.S. government has the only right to convey land (and this ability was retroactive in that all land “possessed” by Indians was taken). This precedent is important because it legitimized the power of the U.S., and it established a standard for organization of land.

d. Strict legal positivism: The Court’s decision could not rely merely on “principles of abstract justice” or on Native American law, but rather must rest upon the principles “which our own government has adopted in the particular case, and given us as the rule for our decision.”

C. John Locke and Labor-Desert Theory

1. To the worker goes the land sort of thing. Acorn analogy – if I bend down and pick the acorn up, it belongs to me. If I improve land, then it belongs to me. Traces of the labor theory linger in American property law, often intermixed with first occupancy law (i.e. accession, adverse possession, good faith improver doctrine)

D. Utilitarianism

1. Traditionally, utilitarianism views property as a means to an end. Private property exists to maximize the overall happiness or utility of all citizens. Accordingly, property rights are allocated and defined in the manner that best promotes the general welfare of society. It is a positivistic theory (in contrast with naturalistic) in that Property and law are born together and die together. Before law was made there was no property; take away law and property ceases. In crafting property law, the role of the legislator was to do “what is essential to the happiness of society; when he disturbs it, he always produces a proportionate sum of evil.”

2. From a law and economics perspective, private property exists in order to maximize the overall wealth of society. Scholars like Posner define property as rights to the exclusive use of valuable resources. The law enforces property rights in order to motivate individuals to utilize efficiently. An efficient allocation of resources is one which value – defined as an individual’s willingness to pay – in maximized. The key to efficient allocation is a truly free marked in goods and services. Accordingly, the principal role of property law is to foster voluntary commercial transactions among private parties.

E. Styles of Legal Argument

1. Formalism

a. Thinks in terms of categories. Looks for an appropriate category (i.e. trespass) for a case, look at previous cases, and see if it fits.

2. Instrumentalism

a. Two step process

(1) Identify social goal (public policy). What overarching goal are we trying to achieve by the resolution of a case? (Shack: Protection of migrant workers)

(2) Choose rule that promotes that social goal

3. Pierson v Post (below) symbolizes the struggle between formalism and instrumentalism. The majority opinion reflects the older, formalistic approach to judging; the judge mechanically derives the appropriate rule from existing authorities, however remote. The dissent represents the then-emerging view of the American judiciary that the law should serve as an instrument of social change. The dissent’s insistence that law must “change with the times” still resonates today.

F. Competing Schools of Thought: From where does property arise?

1. Legal positivism

a. Property is a construct. It is whatever society says it is, so without law there is no property

b. Utilitarianism is positivistic. Bentham wrote: “Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.”

c. Johnson v. M’Intosh

2. Natural Law

a. In contrast to legal positivism, natural law theory posits that rights arise in nature as a matter of fundamental justice, independent of government.

b. Locke: Labor is a god-given virtue. Therefore, he who puts in the labor (improving the land, etc) deserves to own the land. Locke’s main theory was that Labor plus 1st Possession = Ownership (i.e. Bending over to pick up an acorn makes it yours.)

c. Declaration of Independence was the high watermark for natural law (inalienable rights, etc), but the Constitution brought it down to positivism

III. The Right to Exclude Others: Trespass

A. Trespass: Unprivileged intentional intrusion on property possessed by another. It must be a voluntary act. The intrusion occurs the moment the non-owner enters the property.

B. A trespass is privileged and not wrongful if:

1. the entry is done with the consent of the owner;

2. the entry is justified by the necessity to prevent a more serious harm to persons or property;

3. the entry is otherwise encouraged by public policy (i.e. Shack)

C. Civil vs Criminal Trespass

1. Civil trespass is a violation of a property owner’s right to maintain exclusive control over his property. This is a civil law, meaning the property owner must sue the trespasser in order to recover

2. Criminal trespass is when a person, knowing he or she is not entitled to do so, enters any place where notice of trespass is given by direct communication, signage, or fencing. Subject to police action.

D. State v Shack (NJ 1971) [Public Policy Limitations on the Right to Exclude]

1. FACTS: ∆s were nonprofit workers who intended to enter Tedesco’s farm in order to provide counsel to a migrant worker who lived on the farm. ∆s insisted that they had a right to see the worker in privacy, but Tedesco wouldn’t allow it. Tedesdco filed trespass complaint accordance with statute (“any person who trespasses on any lands…after being forbidden so to trespass by the owner…is a disorderly person and shall be punished by a fine…) and ∆s were convicted.

2. ISSUE AND HOLDING: Does an owner’s rights in his land justify his refusal to allow individuals to come onto the land and give aid in private to the owner’s employees who are housed on the land? No.

3. Real property rights are not absolute – “necessity, private or public, may justify

eralty to the oil and gas in place beneath his land,”

b. Rule of Capture: Once an individual takes control of a natural resource by capturing it in some way on his land, that individual takes title to and owns that resource absolutely.

(1) For example, a landowner who extracts or “captures” groundwater, oil, or gas from a well that bottoms within the subsurface of his land acquires absolute ownership of the substance, even if it is drained from the subsurface of another’s land.The landowner that captures the substance owes no duty of care to other landowners

(2) Rule of capture rewards success, not mere effort

(3) In addition, the rule creates a clear, “bright line” standard for determining ownership which provides several benefits. Possession provides notice to the world of the owner’s rights. Consider the example of property rights in a wild duck. Under the capture rule, it is simple to determine who has possession of — and thus owns — the duck. Accordingly, the rule tends to avoid disagreement and thus prevent quarrels which may erupt into violence.

B. Water Rights

1. Two separate doctrines, usually based on statute. The difference between the two is fundamental: the riparian system is based on the location of land, while the prior appropriation system is based on first use of water.

a. Riparian Doctrine:

(1) Primarily used in the water-rich Eastern States. Allocates water rights to the owners of property adjoining the water course.

(2) How much water can riparian owners take?

(a) The vast majority of jurisdictions use the reasonable use rule: Each person with land abutting a water course may take from it any reasonable use, an in times of scarcity, a riparian landowner cannot use the water to benefit his non-riparian lands. Whether a particular use is deemed reasonable hinges on a number of factors, including the economic and social value of the use, the purpose of the use, its suitability to the area, the harm caused to other users, the practicality of avoiding the harm, and so forth; domestic uses receive special priority. For example, presumably A may reasonably use water from the Green River to irrigate crops on his land.3 On the other hand, A cannot divert most of the river’s flow to create a lake where he can practice water skiing. If a party is upstream, using all the water is only ok if its necessary for one party’s survival (i.e. drinking water, watering livestock), but not artificial (used to promote wealth). While the reasonable use standard facilitates the productive use of land — unlike the “natural flow” rule discussed below — it is unpredictable in result and expensive to administer.

(b) A minority of jurisdictions still use the natural flow rule. Under this view, the riparian owner may: (1) take an unlimited amount of water for “natural” uses (e.g., drinking, bathing, washing); and (2) take water for “artificial” uses (e.g., irrigation, mining) so long as the natural flow of the watercourse is not substantially diminished in either quantity or quality. As a practical matter, the natural flow rule tends to restrict new uses, and thus impedes development.