Property I Outline

Theories/Conceptions of Property
 
First possession/occupancy: Property rights acquired through first possession or occupancy
–          “Possession is 9/10 of the law”; “First in time, first in right”
–          Traditionally property rihts were acquired from first possession or occupancy
 
Labor: People create property through the fruits of their labor. Make things or increase value of things so they should be entitled to their investment. Court wants to reward hard work.
–          John Locke’s Theory: Goal is to make sure that the “fruits of labor” are not taken from people
–         Ex: Haslem v. Lockwood: Π gathered manure into piles and the next day Δ took them away. Π owned the manure b/c he put it into piles put his labor into it. Wasn’t abandoned
 
Legal realism/positivism: Identifies law with commands or rules which are promulgated by the government. (ex: land grants, where legislature lays down law and it is applied.)
–          Identify property witht eh commands of the law
–          Ideals or moral principals such as justice, fairness, democracy, wisdom, efficiency, etc. are irrelevant
–          Law, and therefore property, is a matter of what has been decided by those in authority (i.e. the government)
–         Ex: M’Intosh v. Johnson: if the right didn’t come from the government there was not right.
 
4.      NATURAL LAW: Property rights arise in nature as a matter of fundamental justice, independent of government action
–          Role of the government is to enforce natural law, not to invent new law
–          “Unalienable Rights of Life, Liberty and the pursuit of happiness” were endowed upon humans “by their creator”
–          Governments exist merely to “secure these rights”
 
Social relations: Power and critical theory: Different ways to analyze the law. Rules of court aren’t meeting the needs of certain groups.
–          Focuses on how power relations between social groups shape access to property
–          Ex: Feminist Legal Theory, Critical Race Theory, Law and Society
 
Utilitarianism: Basically compares costs and benefits based on goal of maximizing level of human satisfaction. We want to benefit the largest amount of people possible.
–          Moral worth of an action is solely determined by its contribution to happiness or pleasure as summed among all persons
–          Compares costs and benefits based on the goal of maximizing the level of human satisfaction and hence social utility
 
Economic efficiency: Measures costs and benefits based on what people are willing to pay for entitlement/property right or resource; economic analysis of law
–          Measure costs and benefits based on economic efficiency
–          Different from utilitarianism because it focuses on what is economically efficient rather than what is emotionally efficient or preferable
–          Doesn’t compensate individuals for personal/sentimental value of property only economic value
–          Flaw: Those with more money will end up with property rights because they have the money to pay for them
Two Approaches for Economic Efficiency Theory:
1)      Traditional Externalities Analysis: Courts must force actors to internalize their costs so they aren’t imposed on other people. See moral faults in costs they force on others. 
2)      Coase Theorem: No transaction costs and no matter what happens parties will bargain so courts should award the entitlement or right to the party who would pay most to purchase it. That will achieve the goal of efficiency. 
 
8.      JUSTICE AND FAIRNESS: There are certain individual rights that cannot be sacrificed for the good of the community and trump all other interests including general social policy.
–          Includes rights such as human dignity, community ties, privacy, rights not to suffer invidious discrimination, right to contract
 
BUNDLE OF RIGHTS”: Metaphor used to define property rights. These rights include:
1)      Right to exclude
2)      Liberty to use and enjoy
3)      Power to transfer
4)      Power to leave to your descendants
5)      Right to be free from damage
6)      Right to be free from expropriation
 
Acquisition of Property
 
By Discovery, Conquest/Purchase, Government Grant
 
Discovery:  Relates to how you acquire the property. Discovering nation assumes free title to lands that they “discover.” Gave the European gov’ts the right to acquire the property and “stake their turf”
–          Once they’ve “staked their turf” its up to the gov’ts to get title through “conquest or purchase”
 
Conquest or Purchase: Also relates to how you acquire the property. Discovery gave European gov’ts the right to get title to the land from Native Americans by “conquest or purchase”
–          Title to much of the U.S. land was acquired from Indians through treaties
 
Use/Occupancy:  Indians were relegated to this category of property rights (until a European gov’t attempted to get title to the land through conquest or purchase)
–          “Use” primarily involved making use of the “fruits of the land”
–          Gov’t retained the ability to terminate this use/occupancy
–          Includes the right to “use and enjoy” – Similar to a lease or renting property
–          This remaining “stick” is a property right of the Native Americans
 
Johnson v. M’Intosh
§         P claims ownership of land because it was received directly from the Native Americans. D claims ownership because he received the land from the gov’t who took over the land when they conquered the Indian tribe living on it.
§         Since Indians were not recognized as being “first possessors,” the D was entitled to the land because he received the land directly from the gov’t which had “first possession” of the land
§         Rule: The right to land based on first possession can be extinguished when the person does not have the legal authority to possess. Native Americans were not entitled to grant the land since they did not recognize the rule of first possession.
§         Indians don’t have right to sell the land but they have an occupancy right.
§         Occupancy is actually a legal right. Occupancy rights can be squashed by conquest.
§         Example of positivism: Courts would only recognize the rules that the U.S. Gov’t created
 
Tee-Hit-Ton v. United States
§         Indians had “use/occupancy” rights of land. They sued gov’t after lumber was taken from their land without compensation (under “Takings” Clause)
–          Argue that if the gov’t wanted to take this lumber then they should use “conquest or purchase” as stipulated in Johnson v. M’INtosh
§         Issue: Are “use/occupancy” rights considered property rights protected by 5th Amend.?
§         Holding: No. “Use/occupancy” rights are not considered property rights. Indians did not have property rights; they merely had a protected status
§         Rule: Definition of “Occupancy” = Use and enjoy any resource on the land. But does not include the right to transfer or sell that land.
§         Says that gov’t can extinguish occupancy right without paying for it (inconsistent with M’Intosh)
–          Since the gov’t never recognized the Indians as having title to the land, the cout decided there was no right to compensation under the Takings Clause
§         Has been overruled by U.S. v. Souix. Now, when the U.S. is ending the property rights of a Native group the U.S. does have to buy it from them.
 
By Capture
§         General Rule: Actual possession of a contested resource (wild animals; oil) often creates a presumption of a right to possess which may be rebutted only by evidence of a superior claim
 
Wild Animals: You must have killed or mortally wounded the wild animal to get ownership. Mere pursuit is not enough to establish property right.
–          Pretty much a rejection of the “labor theory”
–          Must have capture, or pursuit with mortal wounding/trapping
–          Pierson v. Post: Where P was chasing fox and D popped out of nowhere, shot the fox, and took it away. P argued it was his property because he was the one chasing it. Court disagreed and said that mere pursuit was not sufficient to establish property right.
–          Dissent said that anything greater than mere pursuit is enough to establish property rights (i.e. pursuit + reasonable prospect of capture would be sufficient under Pierson dissent)
 
§         If fox was shot by D on P’s property who would win the fox?
–          Post would win because we want to discourage trespassing; “My land, my fox”
 
Oil: Owner of attractive land acquires title to gas which he produces from wells on his land even though part of his reservoir is beneath adjoining land
 
Eliff v. Texon Drilling Co.
– Large oil reservoir sat beneath the land of both neighboring parties. D incorrectly pumped oil on his land, causing the well to blow out (i.e. it was basically drained). P sues D.
o