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Property I
University of Dayton School of Law
Durham, James Geoffrey

Property Outline:
PROPERTY: is not absolute. The definition of property varies from culture to culture. Whatever interest in a thing—whether tangible or intangible—that is protected against invasion by others by the legal system of the society. The study of the relationship between people with respect to things we call property. Courts tend to break property down into three core elements:
i)        The right to exclusive possession
ii)       The right to exclusive use
iii)     The right to dispose or transfer.
Property doctrine tries to serve four important values:
iv)     Reward productivity and foster efficiency
v)      Create simple, easily enforceable rules
vi)     Create property rules that are consistent with societal habits and customs
vii)   Produce fairness in terms of prevailing cultural expectations of fairness
First Possession: Acquisition of Property by Discovery, Capture, and Creation. (Chapter 1)
a)      Acquisition by Discovery: the sighting or finding of hitherto unknown or unchartered territory, frequently accompanied by a landing and the symbolic taking of possession. First In Time: the first person to discover property.
b)      Possession: Two elements of possession:
i)        Occupancy: The act state or condition of holding, possessing, or residing in or on something, actual possession, residency, or tenancy of a dwelling of land.
ii)       Intent:
(1)   Conquest: taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
(a)    Johnson v. M’Intosh: only the sovereign (imperialism) can extinguish native land rights. Natives can only be tenants.
c)      Acquisition by Capture
i)        Actual Possession: Wild animals are unowned and are susceptible to capture. The usual method of acquiring a property right in a wild animal is actually to possess it —dead or alive. Seizing or holding of personal property with/without claim of ownership. Exercise dominion over something.
(1)   Pierson v. Post: rival claim to ownership of dead fox. Post chasing, Pierson killing. Court finds for Pierson. Mere pursuit is not enough. First in time, Pierson got to it first.
(a)    Majority: uses authority/an established legal doctrine (Formalistic), and Dissenting uses a policy based argument (Instrumental).
ii)       Constructive Possession: a way of pretending that whatever word it modifies depicts a state of affair is that actually exists when it actually does not. We need to protect property, otherwise why would they need to improve it? Without actual possession.
(1)   Keeble v. Hickeringill: Keeble has decoy pond, Hickeringhill shoots above land, scares ducks. Constructive possession found for Keeble, interference of trade. You may not be malicious.
iii)     Ratione soli: the view that an owner of land has constructive possession, landowners are regarded as the prior possessors of any animals ferae naturae (wild animals), on their land, until animal takes off.
iv)     Title is relative: (HYPO) If T captures animal on O’s land, then the animal is stolen by T1, does T have a case. Yes, T’s title is better than T1. O’s is best. Title is good only in relation to others.
v)      Animus Revertendi: an animal has a habit of returning. Process of domestication protected by law.
vi)     Rule of Increase: the ownership of offspring follows the womb. Encourages domestication.
vii)   Externalities: exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision. They are “external.” Resources tend to be m

their own land.
iii)     Restatement 825: A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others, regardless of the degree of care of skill exercised by him to avoid such injury. The law of private nuisances rests on the concept that everyone should own their property as to not injure that of another. NEGLIGENCE doesn’t matter under the restatement.
(1)   Three views of when intentional use is unreasonable:
(a)    If the gravity of harm it inflicts outweighs its social utility.
(i)      Estancias Dallas Corp. v. Schultz. Apartment complex fan really loud. Found for Schultz because the apartment building isn’t necessary to society.
(b)   Harm inflicted is serious and the actor could compensate for this and similar harms without ceasing the activity
(i)      Boomer v. Atlantic Cement Co: cement co near neighborhood. Conditioned injunction, revoked if paid damages
(c)    Harm it inflicts exceeds some minimal threshold of discomfort that no one should be expected to endure. JOST
(i)      Nuisance can result from: Negligence, intentional actions, ultra-hazardous. These all result in substantial, unreasonable harm. FOCUS IS ON THE HARM TO THE PLAINTIFF!!
b)      Remedies (and more on Substantive Law)
i)        Four outcomes of nuisance suits. 2 use Property Rules, 2 use Liability Rules
(1)   No Nuisance, no remedy-Property
(2)   Nuisance enjoined (Morgan/Estancias)