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Property I
University of Connecticut School of Law
Utz, Stephen

Property Exam Outline- 1st Semester
Why do we have property rights? Tragedy of the commons. With no individual property rights people used up land without regard to what others wanted because it did not affect them. There was also no need to renew land for future generations under this model.
Modern example of tragedy of commons- air and water pollution
Tragedy of the Anti-Commons- when several people have individual rights to the same property (it can be difficulty for all parties to reach an agreement and may lead to under consumption; or not good use of land)
Acquisition of Property by Discovery
A. Johnson v. M’Intosh (1823) Indians conveyed land to Johnson; this same land was later conveyed to M’Intosh. Court holds that Marshall wins because Indians did not have the power to convey this land to Johnson originally. Marshall says the U.S. government through “discovery, maintained an exclusive right to extinguish the Indian title of occupancy.”
Note: What survives M’Intosh is that all land from England was now conveyed to the U.S. government after the revolution. Prior titles did not matter! “After a conquest, all the pre-conquest owners have is the right of possession subject to the conqueror’s will.” Or put another way, “conquest converts all private land titles into licenses from the government.”
-Ex: If Canada conquered America tomorrow, we would all become “licensees vulnerable to being thrown off the land by the Canadians.”
Original Possession theory- First in time, first in right.
Locke’s Labor theory- every man owns his own labor. When he puts labor into land and cultivates/improves the land, he gains ownership. We see this applied in Haslem v. Lockwood, where Haslem rakes horse manure and leaves, planning on returning the following day to cart it away. Lockwood came and took it. Court finds for Haslem because he was 1st and created value where there was none. Therefore, he much be given a reasonable amount of time to collect the manure.
Wesley Hohfeld- 3 types of Rights-
1. claim rights (most property rights are claim rights). Right of land owner to keep trespassers off the land is a claim right.
2. liberty rights (Keeble case);
3. powers
Harold Demsetz, Externalities- when X makes a decision about how to use resources without taking into account the impact it might have, or the costs and benefits, because these effects fall no others.  
Acquisition of Property by Capture-
B. Pierson v. Post (1805)- Post was hunting foxes and his dogs flushed out the fox. Pierson intercepted the fox, shot it, and claimed ownership; while Post was in hot pursuit. Court finds for Pierson because “Post had not reduced the fox to his possession or occupancy.” (It is 1st possession h

on of items into privately owned, economically useful bits. “Cultivation!”)
Keeble v. Hickeringhill (1707- England case)
-duck/decoy pond case. D fired guns to disturb the duck’s attracted to the P’s decoy pond. P sued on theory of “constructive possession” (when animal is on your property; possession is when you physically control the animal) and court found for P.
-Case hinges on “tortious interference with trade.” The ducks were also on P’s land and this is known as “rationale soli” (gives owner of land possession)- constructive possession is granted if ducks on your land; but not if they wander away.
Note: how much does it matter that Keeble was engaged in a trade, and not a sport?
-Or is Keeble too “solicitous of commerce?”
Problems p. 36
2. If an animal has a habit of returning to a possessor, it is no longer up for grabs under the ferae naturae doctrine. This is hard on the hunter because the animal may not give notice of its habit of return!
3. The owner of the mother animal, if the animals are domesticated or tame, owns the offspring.
Oil, Gas and Groundwater