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Property I
Temple University School of Law
Sinden, Amy

I.                     PROPERTY LAW: 3 general rights
a.       Right to Use / Possess
b.       Right to Transfer
c.       Right to Exclude
II.                   THE RIGHT TO EXCLUDE OTHERS: TRESPASS      
a.       Public Policy-Limitations on the Right to Exclude.
i.      State v. Shack Ds entered upon private property against order of the owner to aid migrants employed and housed there.
1.       Rule: Real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another.
2.       Sic utere tuo ut alienum non laedas=Use your property in such a way as not to harm others. (Rights are relative and there must be an accommodation when they meet.
3.       Ct uses instrumental reasoning as opposed to making a constit. argument b/c interests of migrants more expansively served. (2 step balancing approach:)
a.       ID relevant social goal.
b.       Which rule will best promote that goal?
4.       Ct explicitly rejects formalism as deciding upon a conventional category and then forcing the present subject into it.
5.       Ct held that not only could the migrants receive the state officials, but also guest (reasonably)—sees as fund. right to privacy which can’t be abridged by simple property rights.
ii.      Notes on Trespass:
1.       Trespass=an unprivileged intrusion on property possessed by another.
a.       Trespass is privileged 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 person or property (3) entry is encouraged by public policy.
b.       Possible damages for trespass incl. damages, injunction, declaratory judgment.
b.       Rights of Reasonable Access to Property Open to the Public
i.      Uston v. Resorts Intl. Hotel, Inc. (1982) Because P was well known for his ability to count cards, he was excluded from D’s casino.
1.       Rule: Owners of property open to the public do not have the right to unreasonably exclude particular members of the public.
a.       Majority rule disregards the right of reasonable access applied in the above case. Instead it grants to proprietors of amusement places an absolute right to arbitrarily eject or exclude any person consistent with state and federal civil rights laws.
b.       right to exclude/reasonable access theory
c.       The more private property is devoted to public use the more it must accommodate the rights which inhere in indiv. members of the publid.
III.                  COMPETING CLAIMS TO THE ORIGINAL ACQUISITION OF PROPERTY
a.       Conquest
i.      Property Rights Derived from Competing Sovereigns Johnson v. M’Intosh   P claimed title to a parcel of land through a grant from Native Americans, while D claimed the land based on a grant from the newly formed US govt.
1.       Rule: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy.
2.       Marshall ct claims to be applying a kinder rule than that of conquest b/c it is admitting the existence of an Indian right to occupy the land. However, the Ct then states that right to possession is only valid so long as the Indians were peaceful inhabitants, thereby immediately negating their rights. Moreover, since abs. title cannot exist at the same time in different governments over the same land, the Ct reasons that it would be inconsistent to vest abs. title in the Indians as a distinct nation and country.
3.       Marshall seems to looking at positive law and says not for courts of the conqueror to question the orig. justice/validity of the title taken by conquest.
b.       How do Property Rights get distributed in the First place?
i.      John Locke acorn analogy:
1.       Idea of labor gets mixed in with idea of first possession
2.       “For tis Labour indeed that puts the difference of value on every thing.”
3.       9/10; 99/100
4.       Labor is a virtue
5.       “natural rights” view of land, can be contrasted with positivist view of land which says just apply the law and don’t worry about justice or morality.
ii.      Philosophy

was being hunted by Post, and within Post’s view, Pierson killed the fox and carried it off.
a.       Rule: Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer.
i.      Majority makes more of a formalistic argument by looking to Roman precedent and conceding while not fair, will provide predictability.
ii.      Dissent instrumental/utilitarianism—more dead foxes
2.       Popov v. Hayashi-Baseball case, ct used equitable principle of division since neither could present a superior argument as against the other.
iii.      Oil and Gas
1.       Law of Capture-Ownership occurs when you actually pump the oil, can take oil from neighboring grounds w/o liability.
2.       Absolute Ownership-Each person entitled to what is underneath their ground, if someone comes along and take your oil it is theft. (Problem is will need to hire a geologist).
3.       Eliff v. Texon (Tex 1948) Law of capture does not insulate a land owner from the damages caused by the wrongful drainage of gas and distillate from beneath the land of another.
a.       Held: Rule of Capture with a reasonableness caveat, i.e. Abs. ownership w/ rule of capture. 
i.      Ownership occurs at capture so long as it is reasonably used (abs. ownership idea)
b.       Policy: