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Property I
University of Connecticut School of Law
Utz, Stephen

I.          PROPERTY
·         The rights to land and the rules regarding these rights come from Government.
o       Theories of natural property rights
§         Moral property rights
§         Labor theory of property law
·         You have natural rights to the product of your labor, and if that product is embodied in a physical thing you have priority in that item.
§         First possession
§         Economic common property theory
·         The use of property causes effect on others. This is especially true when supplies are not plentiful. By turning land private we can use land more efficiently instead of having various possessors have competing uses.
·         Common property also has the free rider problem. They benefit from something but don’t do anything to help.
·         Although as a whole private property might be more efficient something like sidewalks need to be commonly owned because we don’t trust private citizens.
·         When is it good to change to private?
o       When something becomes economically valuable and is limited. This way avoid overconsumption
§         Psychological view – human beings need property.
o       Acquisition of land
§         Acquisition by discovery – taking possession of an unknown land usually by a symbolic act.
·         Johnson v. M’Intosh – dealt with the idea of the right of discovery. Countries had a right of discovery where only they had the right to buy land from natives.
§         Conquest – taking possession of an enemy territory by force
*when there is a revolution of some type it is unclear whether the old rights to land will be recognized. This is one of the issues in Johnson v. M’Intosh because people weren’t sure whether old English laws would be upheld.
o       Ownership
§         Values we are interested in, in possession include
·         Certainty (easily applied rule), laws that further peace, laws that satisfy expectations, efficiency, and reward investment.
§         How do you come to posses a wild animal?
·         Wild animals can be thought of as a type of communal property. But sometimes it is important to recognize one person’s control over it.
·         Deprive it of its freedom?
o       Pierson v. Post – a wild animal is not owned unless an individual had deprived it of freedom. Why? Maybe because foxes are nuisance so what to encourage anyone to kill them, it’s efficient.
o       Ghen v. Rich – Ct. gave whale to whaler and not man who found carcass. Custom dictated a whale was owned when someone fastened their line to it or when someone first harpooned it. (In addition if someone harpooned it then it was captured by another the carcass was split). Why? Custom, so certainty in outcome. Rewarded investment. Satisfy expectations.
·         Constructive possession of it if it’s on your land
o       One version of Keeble seemed to rely on this idea.
·         Does keeping an animal in a pen assert control? Do you lose title if you lose control of the animal?
·         Ct.’s have held that government doesn’t own animals although it might have an interest in regulating them (geese case)
§         Haslen v. Lockland – plaintiff had possession of manure even though he was physically away from it. After gathering it up he had possession even when away from it for a reasonable amount of time. Efficient, rewards investment.
§         What right do you have owner intangible items?
·         You can have rights now through IP (patents, ©…) however these are often limited in time.
·         INS V. AP – court calls the news quasi property. Like the Keeble case they also emphasized the interference with business. Therefore they don’t have the right against the whole world (none against the public) but only against competitors.
·         Cheney Brothers v. Dorris Silk Corp – seems to contradict INS. Here the Π’s sued when Δ copied a dress pattern. Although Π had put labor into design they had abandoned it and not used it. (Perhaps based on commons idea. Here they are depleting commons area of dress patterns but then they are not putting privatization to good use so we don’t recognize. Imposing externalities but limiting choice).
·         Chanel No. 5 – Π’s could not prevent Δ from making knockoff. This did not impose as much of an externality because was competing for different markets.
·         Nichols .v Univ. Pictures Corp. – you can’t copyright generalized ideas. These would to deplete commons.
·         Diamond v. Chakrabarty – even natural things such as micro-organisms are patentable.
·         MGM v. Grokster – encouraging others to infringe on MGM’s property rights by creating a file sharing program is illegal. A type of nuisance?
§         What rights do you have to your own Body?
·         Moore v. Regents – no possession over body tissue. He had abandoned them and since basic human code was nearly identical not unique enough.
·         There are different rights associated with property
o       The right of possession
o       The right of title
o       Johnson v. M’Intosh – dealt with the difference between these two rights. The Indian Tribe had the right of possession but not the right of title so their attempt to convey the land to plaintiffs was void. (They might have the power to repel an outsider).
o       Also the right to convey or sell
o       Two different type of basic rights
o       Claim rights – the right to enforce contracts and make others do what you want.
o       Liberty rights – a right that entitles you to do something but does not entitle you to have everyone else’s corporation.
o       Property owners have a claim right in a way. A person cannot maliciously interfere, people have a duty to respect others property and not harm it.
o       Right to use without malicious interference. (see nuisance and Keeble)
·         Is t

But protects more than the average user
·         Coming to the nuisance
o       If activity Π is complaining of occurred before he arrived no remedy at all.
§         Spur Industries Inc v. Del E. Webb. – Π came to the nuisance. Δ had run feed farm long before he arrived. If it was just him there would be no relief. However as a developer he had brought public with him who were innocent. Therefore Δ did have to move but Π had to pay all costs.
·         Remedies
o       Injunction
§         Boomer v. Atlantic Cement Co. – Ct. said injunction was to be granted despite huge cost to do so compared to minor cost of nuisance. However, also gave def.’s the option to pay the cost of permanent damages and relieve themselves of injunction.
o       Damages
·         Theories of nuisance law
o       Economic efficiency – force landowners to internalize costs they might otherwise impose on others. (although nuisance law does not internalize all costs)
o       Fairness – is an externality an unfair intrusion?
o       Calabrasi’s 4th rule – poses transaction costs on neighbors to help them come together and individual come up with best solution.
§         One problem with this is the free rider problem. In theory if something is a big enough harm people should get together to maybe buy a company’s right, but some people just kind of ride on for free.
§         Also parties might place wrong emphasis on subjective value.
IV.       RIGHTS OF POSSESION (Personal Property)
·         Who has the right to possession of an item?
o       A finder is entitled to abandoned property.
o       A finder of an item will often have a claim against all but the true owner. (if property is only lost true owner has not abandoned claim and finder is acting as a bailee).
§         Armory v. Delamirie – boy recovered from jeweler cost of stones stolen from broach boy had found. Right of possession against all but true owner.
o       When an item is found on land (and not owned by landowner) the finder will usually have the stronger claim unless the property is somehow attached.
§         Hannah v. Peel – soldier had right to broach found in house, even against owner of house. They said landowner only had stronger claim when chattel was under or attached to property.
§         South Staforshire Water – rings found in dregs of pond so went to landowner