Property Outline
I. General Info
a. Property is a system of sets of rights and obligations that concern the relations of people with respect to value resources
b. System of rights and obligations
i. Comprised of bundle of rights
1. are severable, not absolute, and never operate in isolation (must consider externalities)
2. Can transfer certain rights to others
1. Borrower’s rights would be different from owner’s rights
c. Concern relations of people
i. bundle of rights means nothing if others are not obligated to respect them
d. Valued Resources
i. can be tangible personal property, real property like land or intangible property
II. Acquiring Property Rights
a. Historically, rights of property transferred to first person to own it
b. Two Theories on Sources of Property Rights
i. Positive Law Theory
1. Rights are creation of the state
2. Rights exist because state creates and distributes them
3. Ex. Constitution with its enumerated powers
ii. Natural Law Theory
1. People have inherent rights that precede the state
1. We come to state with our rights already in existence and intact
2. Source could be from creator or could be philosophical
2. Government exists to enforce and preserve our rights
3. Ex. Declaration of Independence with its inalienable rights
iii. American System is likely a combination of the two
c. What entitles us to claim a property right?
i. Possession (first in time)
1. Our view of fairness wouldn’t really allow this when other people occupy but that’s what happened in Johnson
2. Also subject to manipulation since anyone could claim to be there first
3. This also might not be efficient since could require a lot of research if possession happened years back
ii. Locke’s view
1. Ownership evidenced or earned by our labor
2. Problem: How much labor required in order to claim the land
1. Difficult to regulate and administer
iii. Utilitarianism: most efficient distribution
iv. Distributive Justice
1. distributive that maximizes fairness or equality
d. Ways to Acquire Property Rights of Un-owned things
i. Acquisition by Possession
1. Requires more than physical occupation as seen in Johnson
1. In Johnson, Indian tribes were ruled to not have propert
son who owned marked harpoon would go claim it
2. Actual possession impractical here
iii. Court will look at social good of activity and whether there will be waste
1. Neighbor firing gun to scare away ducks from elaborate duck decoy pond was interference with trade (Keeble)
2. doesn’t require malice but the neighbor’s conduct was not a benefit to society
a. In Pierson, someone ended up with the fox but here no one ended up with the ducks
iv. Constructive Possession: sometimes land owner has constructive possession of all animals on his property
1. Landowner would have possession over someone that came onto his land and actually possessed the animal
a. In some jurisdictions, owner would be allowed to trespass on trespasser’s land to reclaim animal contained there
b. Law does NOT encourage trespassing
if wild animal gets away, it is wild again and can be possessed by next first possessor
