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Property I
Temple University School of Law
Hollis, Duncan B.

roperty Outline 2009

a.      What is Property?
i.      Property is not an inherent aspect of the thing itself. It is a legal creation
1.       Real Property (i.e. land, home) v. Personal Property (i.e. laptop, watch)
b.      How Do Individuals Relate to Property?
i.      Property is not about rights, it about regulating relationships and interactions with other people in respect to that thing
ii.      In resolving property disputes, it is necessary to balance competing interests and determine which interests should be prioritized.
c.       What are the Rights Associated with Property Ownership
i.      Bundle of Rights:
1.       Right to possess
2.       Right to exclude
3.       Right to transfer
ii.      There is no absolute right or freedom to use property
1.       Infringement of other’s property rights
2.       How property use interferes with society’s rights and interests
d.      What Role Does the Government Play in Establishing Property Rights?
i.      Regulation of the Right to Exclude with Respect to “Private” Property
1.       One of the most important rights of a property owner is the right to exclude others from one’s property
2.       The right to exclude can be waived or enforced; however, there are limitations to this right including entering a property:
3.       Trespass – unprivileged intentional intrusion on land possessed by another
a.        Remedies:
i.      Damages (always)
1.       Nominal
2.       Compensatory
3.       Punitive
ii.      Injunction (ejectment or eviction)
iii.      Declaratory judgment
b.       Exceptions:
i.      Necessity
ii.      Public policy
iii.      Consent
4.       State v. Shack (pg. 103-108)
a.        Property rights are not absolute. Requires a balancing of interests. Under State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers. 
i.      Title to real property cannot include dominion over the destiny of the persons the owner permits to come upon the premises.
ii.      “The needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity.”
1.       Court’s purpose was NOT to open the employer’s premises to the general public if in fact the employer himself has not done so
a.        It is reasonable for the owner to require identification and a statement of purpose of visitors before allowing access
i.      Should the court always seek a ruling to benefit those with fewer rights?
b.       Judge rejects categorical reasoning, putting things in a box, formalism –about balancing, “We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” The quest is for a fair adjustment of the competing needs of the parties in the light of the realities of the relationship between them.
i.      Weintraub used an instrumental approach in Shack, which included:
1.       Balancing interests involved
2.       Deciding which interests, purpose should be forwarded
3.       Crafting a rule based on this determination (judicial activism)
ii.      When a judge claims categorization, look closely to see if this isn’t a cover. Could the judge in this case been categorical and come to the same conclusion? 
1.       Any decision the court makes will effect the power struggle between these parties, all decisions are a form of activism – including acts of omission
5.       Desnick v. American Broadcasting Companies, Inc. (pg. 108-116)
a.        The ABC program showed how plaintiffs were suggesting cataract surgeries to elderly people who were covered under Medicare, even though many of these people didn’t even require these surgeries.” 
i.      To enter upon another’s land without consent is trespass.”
ii.      False consent does not constitute consent
1.       Consent to entry is influenced by privilege in some cases and it is necessary to focus on the effect of the fraud
a.        Example – Food critic v. false meter man
iii.      Scope of consent is exceeded
1.       It is often held that consent to an entry is legal even though the entrant has intentions that if revealed to the owner would make the owner revoke this consent
iv.      Consent is not an issue when the property is public (i.e. shopping mall)
v.      Posner
1.       ABC didn’t invade ownership interests
a.        Problem when looking at it from bird watching hypo
2.       It is about the openness to the public
a.        No consent debate if this reasoning is utilized
3.       Compares ABC to those who prevent housing discrimination
a.        This is a broad extension to Shack regarding public policies and the right to exclude
i.      Example – Food Lion, Inc. v. Capital Cities/ABC, Inc. where journalists
ii.      Regulation of the Right to Exclude with Respect to Property Open to the Public v. Regulation of the Right of Reasonable Access
1.       Majority Rule – Businesses which are open to the public have a right to unreasonable exclusion, but not in violation of the Civil Rights Act
a.        Exception – Common law rule imposes a duty on innkeepers and common carriers to serve public without discrimination unless they have a good reason not to provide services to a particular individual
i.      Innkeepers and common carriers were more likely to be monopolies than other businesses
ii.      Business provided necessities whose denial would place individuals in risk from the elements and bandits
iii.      Innkeepers and common carriers hold themselves out as ready to serve the public and public relies on this representation
1.       The more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property
2.       Minority Rule – Property owners who open property to public use have no right to unreasonable access
3.       Uston v. Restort International Hotel (pg. 116-122)
a.        Card counter – Court follows minority rule and holds that citizens must be protected against unreasonable exclusions and property owners cannot use arbitrary or discriminatory methods to exclude.
i.      Property owner can exclude those who “disrupt the regular and essential operations of the premises “ or threaten the security of the premises and its occupants
1.       Common law roots still allow absolute right to exclusion in places of amusement (Madden v. Queens – racetrack)
a.        Uston lost similar case in Nevada where the court upheld right of casino to exclude, arguing relation between the two was not one of innkeeper and patron, but rather owner and prospective gambler
4.       Public Accommodation Statute
a.        Civil Rights Act, Title II – Prohibition Against Discrimination or Segregation in Places of Public Accommodation
i.      Equal Access – “without discrimination on the ground of race, color, religion or national origin
1.       Public accommodations
a.        Inn, hotel, motel, etc.
b.       Restaurant, cafeteria, etc.
c.        Motion picture house, theater, concert hall, etc.
d.       Private establishments – “shall not apply” … except in some circumstances
b.       §2000a-6. Assertion of Rights Based on Other Federal or State Laws and Pursuit of Remedies for Enforcement of Such Rights
i.      No state can assert any right based on any other Federal or State law not inconsistent with this subchapter
1.       NOTE – Discrimination based on gender is not covered under this statute, but may be able to find state public accommodations laws which would provide such rights
a.      Claiming Property Rights by Discovery and Conquest
i.      Positive v. Natural Law
1.       Positive Law – Notion that the law is what has been written down or what has come before and already been consented to
a.        What is wrong with law being a function of consent or agreement?
i.      Problem of who consents
ii.      Problem of minority rights
iii.      Problem of consent to what
iv.      Problem of consent to bad things
2.       Natural Law – The idea that the law must do what’s right and that it’s origin should come from an outside source like religion, philosophy or morality
a.        Criticism of natural law is it puts too much power in judge to decide what the law is
b.       Problems arise when the positive law doesn’t reflect the natural law principles
ii.      The Island of the Palmas Case (BB)
1.       3 rules for resolving island territorial disputes were decided, according to positive law:
a.        Firstly, title based on contiguity has no standing in international law.
i.      The a

                                                              i.      Promotes competition and technology
ii.      Benefits Lockean Labor Theory
iii.      Criticism – Tragedy of the Commons
3.       Did not uphold rule by Supreme Court of Louisiana which says – “an adjoining owner is without right of action for gas wasted from the common pool by his neighbor, because in that state only qualified ownership of oil and gas is recognized, no absolute ownership of minerals in place exists, and the unqualified rule is that under the law of capture the minerals belong exclusively to the one that produces them.” This reasoning was based on the inability to determine the amounts of the substances, which technology has resolved.
4.       The reasoning behind this decision is a combination/hybrid of absolute title and the rule of capture/reasonable use (capture plus productive use, discourage waste)
vi.      The New Property of the 19th Century (pg. 89)
1.       The emergence of an oil and gas industry in the early nineteenth century thrust upon the courts the need to develop a theory of property in oil and gas law.
2.       The earliest cases had little trouble finding property in oil and gas, perhaps because of the tangible nature of these minerals
a.        Hail v. Reed (1854) – The court rejected the defendant’s argument that oil and gas were analogous to wild animals, which become property of the first person’s to possess them. The court compared oil and gas to a spring which arises on one’s land and held that the owner where the well was located was the exclusive owner of the oil within the well.
3.       Absolute rights to the property of oil and gas were met with opposition by multiple parties who all claimed possession of the same resources.
a.        Funk v. Haldeman (1866) – Example of absolute rights. The plaintiff paid the defendant for the right to prospect for oil, once oil was discovered the defendants sank their own wells. The court also referred to the rights to oil as similar to the property rights of a stream. Found the plaintiff right only to such oil as he possessed – he could drill in the portion of the farm he had a right to prospect. This did not solve the problem as to how the defendant’s drilling might interfere or impede the plaintiff from his investment.
4.       Following the Funk case, the courts began to establish a form of limited property rights. In order to do so, the courts reverted back to the theory that oil and gas were analogous to wild animals.
a.        Westmoreland v. Dewitt (1889) – Court found oil and gas were mineral ferae naturae because they were not fixed to a particular piece of land. If land owner acquired possession of the minerals he would have title to them. Every landowner was entitled to tap any oil or gas pool he had access to, regardless of whether others had already tapped it.
i.      This quickly became the majority rule in the United States; however, the right to use the minerals was still absolute.
5.       The right to usufruct was the next property element to be revised. Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. The mineral ferae naturae gave many people access to the same pool, but failed to limit the methods of extracting the minerals. Encouraged landowners to exhaust pool as quickly as possible – produced waste.
a.        Manufacturer’s Gas & Oil v. Indiana Natural Gas and Oil (1900) – Plaintiff owned land over a pool of gas destroyed pool by saltwater. Court found landowner had no right to induce unnatural flow in his own well or to take any action which might damage the common reservoir. Had to be reasonable. 
i.      The rule stated that whether the owner of such property was entitled to mine the materials in a particular way depended on what was reasonable under the circumstances, a matter for the court to decide based on the policy of preventing waste or other considerations.
6.       Underground water diffused through soil is called groundwater. The withdrawal by one owner may have the effect of drawing off water underlying a neighbor’s property, which may interfere with the ability of other to make like use of the water.
a.        Acton v. Blundell (1843) – Defendants excavated on their property to extract coal which drained groundwater the neighboring property used to run their mill. The court adopted the rule of free use or absolute ownership which stated that each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability, even if it has the effect of withdrawing water from underneath’s his neighbor’s property.