ORIGINS OF PROPERTY RIGHTS—ACQUISITION (Johnson v. M’Intosh)
all property cases determine relative ownership of land
Legal Positivism–Property comes from the State—Johnson v. M’Intosh
national property rights are good because states can settle dispute
—holding meets our “settled expectations”—stability of title
“discovery gave exclusive title to those who made it. . . against all other European govts”
Indians not party to this custom.
chain of title must begin with the state
doctrine of conquest “where this incorporation is practicable, humanity demands, and a wise
policy requires:
that the rights of the conquered to property should remain unimpaired”
but Indians have only “rightful occupancy”
Methods of Property Allocation:
First-in-time and Occupancy—First what? answer often comes from social norms
Grotious and Puffendorf.
Market/Auction
Communism—state decides
social welfare
Competition-merit-based/non merit-based differentiation (LSAT scores v. height)
lottery
voting
consensus
might makes right—anarchy?
labor theory—John Locke
property=power to keep other’s out—rooted in state’s power over people—CLS—Cohen & Klein
criteria—maximize choice, efficiency, legitimacy
minimize disputes—set expectations, (maintain “settled expectations”) keep the peace
also, and separately, fairness—culture-dependant (dope)
Rule of Capture and Fair Play—Acquiring Un-owned Resources (Pierson, Ghen, Keeble, Popov)
Is Pursuit or Capture the standard for establishing ownership of previously un-owned resources.
first-in-time—what amounts to occupancy?
quieting title—which is better, starting the hunt, making the kill, or finding the carcass
customs—matter?
and whose customs? “should have been submitted to the arbitration of sportsmen”
whalers in Ghen v. Rich
structuring incentives to serve public interest
keep in mind capital outlay of hunter
also, do we want more hunting or not?
Capture is the traditional standard (Pierson v. Post)
pursuit, according to Livingston’s dissent, may be more Lockean for foxes
Entitled to frighten away prey? for recreational hunting, maybe so.
for business, no (Keeble v. Hickeringville)
Land-owner or hunter?
land-owner—want to discourage trespassing, allow people to attract game on their land
Geese—govt can win suit against farmer for confiscated corpses of dead geese.
Farmer can’t win damages to her cornfield.
courts sympathetic to pro-competitive uses of property
benefit consu
pal/landowner gets title.
sensible balance like Japanese lost-and-found—turn in to state, get it back if owner doesn’t claim
Native American artifacts—property rights not relinquished w/burial—Charier v. Bell
belong to tribe as a whole when
culturally, religiously, or historically significant
lineal descendants of the dead not identified
Adverse Possession (Van Valkenburg v. Lutz, Manillo v. Gorski, Howard v. Kunto, Warsaw v. Chicago Metallic Ceilings)
Purposes—quiet title (Henry Ballentine), put land to productive use
bad if its your land.
Common law elements:
Open (and notorious)—enclosure or improvement Marengo Cave p.141
Continuous (for statutory period)
Exclusive—Ewing v. Burnet—p.140 Adverse possessor let some people dig gravel and sued others for trespass
Actual entry—using land like the owner would
Non-permissive (hostile, adverse, claim of right, claim-of title)
1. objective—state of mind irrelevant. Point that true owner didn’t stop it—England, Ct.
