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Property I
University of California, Hastings School of Law
Rao, Radhika D.

Spring 2009 / Prof. Rao

A. Theories of Property

“Property rights serve human values. They are recognized to that end, and are limited by it.” C.J. Weintraub, NJ SC 1971

Bundle of Rights: Core tensions:
· Right to use – Right to exclude v. Right of access
· Right to exclude – Privilege to use v. Security from harm
· Power to transfer title – Power to transfer v. Powers of ownership
· Immunity from taking – Immunity from loss v. Power to acquire
· Immunity from damage

Native American concepts of property:
– Land is regarded as spiritual (not possible to “own” land)
– Sharing & distribution rather than exclusivity & individual accumulation

First possession & labor:
– Protects first in possession or occupancy Gives efficient notice of who owns the
– Grants control of resources to those who land; rewards efficient use of land & hard
have mixed their labor with them work.

Person who does the work deserves or is
entitled to its benefits (rights theory).

People are unlikely to invest in long-term projects if they know others may seize the
Products of the labor (utilitarian theory).

Positivism & Legal Realism:
– Governmental officials promulgate law Property is nothing but a basis of
based on public policy (to protect individual expectation, which can only be derived
rights, promote general welfare, increase from laws. (Bentham)
social wealth, maximize social utility).
– Judges rely on statutory interpretation for Positivists separate law from morals.
applying rules as they were intended, and (Holmes)
respect precedent for consistency.
Realists say law is what officials will do in resolving disputes. (Llewellyn)

Rights Theory:
– Certain individual interests are so important from a moral point of view that they deserve legal protection and override more general considerations of public policy.
– These rights are defined by justice, community values, historical traditions, the nature of human beings (natural rights), equal protection of all members of society (social K, Kant), individual
autonomy, and human needs (human flourishing).
– Property pre-dates the government’s granting of it.
– Focus on the consequences of alternative
– Compare cost to benefits
– Goal of maximizing the aggregate level of human satisfaction
– Individual property rights increase efficiency by encouraging productive activity and by granting security of investment

Social Relations:
– Legal rights inherently involved relationships b/n people
– Examine the role property rights play in structuring social relations
– Property rights should be defined to accommodate conflicting interests of social actors (feminist legal theory, critical race theory, law & society, CLS)

Absolute Theory:
– Property is an absolute, individualistic concept. (Blackstone: “that sole & despotic dominion which one man claims & exercises over the things of the world, in total exclusion of the right of any other individual in the universe”)
– Basic right: “Life, liberty, & property”

Property as Evil:
– All property is theft / property is the source of all inequality. (Rousseau)

B. Conquest & Government Distribution of Law

Johnson v. M’Intosh:
· Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase of by conquest.
· Conquest gives a title which the courts of the conqueror cannot deny.
· Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed in capable of transferring absolute title to others.

Indian Title of Occupancy: Indian nations has a property right to the lands they occupied, which gave each Indian nation full power to use its property and to exercise sovereign powers within its borders, but not the capability to transfer absolute title of it to others. Ultimate “fee title” to tribal lands rested with the US Gov’t., which held those lands in trust for the relevant Indian nation, subject to the nation’s title of occupancy.

Homestead Acts / Land Grants
· US Gov’t. sold or gave away huge tracts of land. The ideal was country of free citizens, small-holders living on their own bits of land. A great deal was given away to colleges and railroads.
· “Homestead Principle” of giving land free to the landless poor was the weakest of Gov’t.’s land distribution policies
· Gov’t. continues to sell land for cash, and the best land was “snapped up” by speculators

C. Capture and Prior Appropriation

Capture Rule: Title to property is acquired only though successful occupancy (capture, possession, finding, or control), not ineffective labor at attempting to capture.
· Pure capture rule applied to animals ferae naturae (Pierson v. Post): Mortal wounding couple with continued pursuit establishes a property right

1. Resources

a. Oil & Gas

Capture Rule with Negligence Exception: Landowners have absolute title to the oil & gas beneath their land. Further, landowners may appropriate the oil and gas that flowed from adjacent lands without the consent of the owner of

the homeowner
– If the object is found in a place open to the public, some courts grant ownership to the finder
and others to the landowner. Some court distinguish b/n lost & mislaid property, awarding lost property to the finder (perhaps to reward her) and mislaid property to the owner of the premises (perhaps b/c the true owner may remember where she mislaid the object and come back to claim it)

-Embedded in soil: Property found embedded in soil is ordinarily awarded to the landowner (with possible exception for treasure trove)

Finders statutes: Many states have legislation concerning lost property. These laws usually get rid of the distinction b/n lost, mislaid, and abandoned property. They require the finder to report the find to the police and generally award the property to the finder if it is not claimed after a reasonable period.

Native American artifacts:
– Abandonment does not apply to burial goods
– Relinquishment of possession normally serves some spiritual, moral, or religious purpose of the decedent / owner, but is not intended as a means of relinquishing ownership to a stranger. Charrier v. Bell
-Native American Graves Protection and Repatriation Act of 1990: Provides that Indian cultural objects found on tribal or federal lands belong to the tribe having the strongest connection to them; does not apply to objects found on private property

Policies for Awarding Ownership to Prior Possessor:
– Promotes peace (anti-theft) & security (of ownership claim)
– Keeps property close to original owner
– Ease of proving ownership (mere possession)
– Promotes security of ownership claim
– promotes efficient use of lost objects
E. Labor & Investment

· Rule of Quasi Property: AP does have a property right in the news it gathered, but it is a limited property right that extends only against competitors in the news business. The relationship b/n the parties is significant; an owner may be protected against a competitor but not against a non-competitor (emphasizes the relativity of title in the news business)
– The fact that a product of the mind may cost money and labor to produce