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



A. Theories of Property

Property law concerns relations not only among the owners of a particular resource but between these owners and others. No property right is absolute; the rights of others limit each right that accompanies ownership of property.

Bundle of rights: How many of these rights need to be present for it to be
– Liberty to use considered “property”?
– Right to exclude
– Power to transfer How many can be taken away before it is a “taking”?
– Power to devise or bequeath
– Immunity from damage These rights are corollary to privacy rights.
– Immunity from expropriation

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

First Possession and Labor:
– Protects first in possession or occupancy Gives notice of who owns the land, rewards
– Grants control of resources to those who efficient use of land and hard work.
have mixed their labor with them
The 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 their labor. (utilitarian theory)

Positivism and Legal Realism:
– Governmental officials promulgate laws based Property is nothing but a basis of expectation,
on public policy (to protect individual rights, which can only be derived from laws. (Bentham)
promote general welfare, increase social wealth,
maximize social utility). Positivists separate law from morals. (Holmes)
– Judges rely on statutory interpretation for
applying rules as they were intended, and Realists say law is what officials will do in
– respect precedent for consistency. 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 alternatives Individual property rights increase efficiency by
– Compare cost to benefits encouraging productive activity and by granting
– Goal of maximizing the aggregate level of security of investment.
human satisfaction
Clear property rights facilitate exchange
A. Theories of Property (cont.)

Social Relations:
– Legal rights inherently involve Property rights should be defined to accommodate
relationships between people. conflicting interests of social actors.
– Examine the role property rights play (feminist legal theory, critical race theory, law and society,
in structuring social relations. critical legal studies)

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

Property as Evil:
– All property is theft / property is the source of all i

water as he likes from beneath the surface of his property without liability, even if it has the effect of withdrawing water from beneath his neighbor’s property—as long as he does not waste it.

Reasonable Use Test: Each owner must accommodate the interests of neighboring owners; alternatively, courts may have to balance the interests of the parties.

Correlative Rights Test: Each owner may withdraw a specified portion of groundwater, perhaps in proportion to what percentage of the aquifer underlies his property.

Prior Appropriation Test: The first property owner to invest in withdrawing the water obtains rights in it.

Permit System: A state or local agency regulates water uses.

c. Streams (SPLIT)

Riparian Owner: Owner of property that borders a body of water, like a stream or lake.

MAJ / Reasonable Use Test: The decisionmaker considers and balances such factors as the relative social value of each owner’s use, the extent of the harm to D, and the cost of preventing the harm relative to the benefit.

MIN / Prior Appropriation Doctrine: The first user or developer prevails over a later user.
– States adopting this rule have also established state water management systems that require water users to obtain permits from an administrative agency.

Many States (including CA): Combine the prior appropriation doctrine with the reasonable use test.