Property – Crawford
Spring 2016 – UC Hastings
Textbook: Merrill & Smith, Property: Principles and Policies (2nd ed. 2012)
I. What is Property?
A. Conceptions of Property
1. Property Interest
Person holds property interest if he has any right which the law will protect against infringement by others
a. CA Statute 654 (1892)
The ownership of a thing (property) is the right of one or more persons to possess and use it to the exclusion of others
2. 2 Conceptions of Property: Philosophical Perspectives
a. Essentialism (Penner)
J.E. Penner, The Idea of Property in Law
i. Right “Good Against the World”
Property = Right with respect to a thing that is good against the world (tangible or intangible)
ii. In Rem vs. In Personam Rights
(1) Rights In Rem
A right that someone has in respect to a “thing” that is good against the world
Rights good against the world
(2) Rights In Personam
A right that you have with respect to a specific person (i.e. contract rights)
Rights good against specific other people
iii. Exclusion Thesis
The right to property is a right to exclude others from things which is grounded by the interest we have in the use of things
(1) Core Concept — Right to Exclude
One stick that is always in the bundle
b. Skepticism (Grey)
Tom Grey, The Disintegration of Property
i. Bundle of Rights [Sticks]
When something is “owned” or a piece of property, it’s one of those sticks
(1) Right to Exclude
The one essential stick; Subject to limits
(2) Right to Transfer
Includes right to make a gift or sell
(3) Right to Possess & Use
(4) Right to Destroy
ii. Division of Rights
Possible to split up rights; Owner can have some but not all of the rights
iii. Intangible Property
View makes less sense when applying to intangibles (e.g. financial assets)
iv. Current State
Development of capitalist market economy demands formulation of emergent system of economic entitlements in something like the bundle-of-rights form, which must lead to decline of property as a central category of legal/political thought
3. Tangible vs. Intangible Property
a. Tangible Property
Things that you can see, feel & carry around such as personal property or chattels. (cars, textbooks etc)
i. Real Property
Land, houses
b. Intangible Property
Property that you can’t physically touch, see, or carry
i. Intellectual property
Patents, copyright, trademark)
ii. Financial assets
Stocks, bonds, money, etc.
(1) Shareholders Rights
Rights to vote and receive dividends (whenever a company decides to pay a dividend, you get pro rata $)
Shareholder considered the ‘owners’ but no rights to use or exclude anyone from the property. It’s the managers/executives that maintain control but shareholder has right to vote for directors; nothing prevents them from making more shareholders so that you own less
4. Possession vs. Title
a. Possession
Person has possession of property if he has dominion and control over it
b. Title
Synonymous with “ownership”
5. Exclusion v. Governance
a. Exclusion
Delegate resource use decisions to a gatekeeper, then support that gatekeeper (trespass law)
i. Essentialism/Skepticism — Key Right
ii. Intentional Trespass (Loss of Exclusion Right)
So egregious & important that we’ll award punitive damage even no damage
b. Governance
Prescribing rules of permitted/prohibited resources usage then determine individual cases based on those rules (nuisance law)
6. Ad Coelum Rule
Principle that land ownership extends from the depths to the heavens
a. Rule Today: Entitled to Whatever Space Is Used
Some force; deeds stated in terms of land, but generally understand that one can build a basement and 3 stories (as long as consistent w/zoning regulations)
Not meant to be interpreted literally
b. Owned Airspace
Owner of land owns as much space above him as he uses, but only as he uses it; Limited to the extent the landowner makes use
c. Subterranean Space
Courts also apply Ad Coelum
B. Trespass to Land
1. Trespass = Wrongful Entry on Another’s Real Property
a. Elements to Trespass
i. Intentional Act
ii. Physically Enter the Property
iii. No Harm Necessary
b. Actionable Regardless of:
i. Intent
ii. Actual Harm (Physical or Economic)
(1) Harm = violation of right to exclude
(2) Nominal damages (at a
reted literally
(1) Rule: No trespass absent actual & substantial damage
Some force; deeds stated in terms of land, but generally understand that one can build a basement and 3 stories (as long as consistent w/zoning regulations). Entitled to as much as owner uses
(2) Subterranean Space (Below land)
still pretty strictly enforced (Edwards: can only trespass underground in very narrow cases)
(3) Owned Airspace (Above Land): Owner owns space above surface only to extent of actual use
Owner of land owns as much space above him as he uses, but only as he uses it; Limited to the extent the landowner makes use; No hard rules, all depends on extent of overflight interference with use
iv. Rule
Court held ad coelum applies to the space above you that you’re using but others can use the space you aren’t using. Only trespass if there’s actual economic damage. Don’t have the right to exclude over flights if it doesn’t interfere w/ your enjoyment (US v. Causby)
v. Actual & Substantial Damage Requirement
No trespass unless there is actual & substantial damage
in Jacque, trespass itself was the damage
vi. Dominion
Property must be capable of exclusive possession
(1) Air & ocean incapable of private ownership
You possess it while you use it, then it reverts back to public domain
4. Implicit and Just Compensation Approach
Trespass but not actionable because it’s implicit & just compensation (I fly over your land, you fly over mine)
a. Not Actionable
Trespass but not actionable because it’s implicit & just compensation
i. E.g. I fly over your land, you fly over mine
b. Problem:
Not clear historically that this is something that will benefit everyone
5. Public Property Approach
Airspace is public property like highways or cars
