Property I Outline

University of Florida: Danaya Wright Property Spring 2013
 
 
 
I.  Acquisition of Property Rights
A.                   Fundamentals
1.       What Is Property? (1) rights among people (2) that concern things
a)       Property exists to the extent that the law recognizes it
b)       Property rights are not absolute
c)       Bundle of Rights in relation to things
(1)        Right to Exclude: right to exclude others from the use or occupancy of the particular “thing”
(2)        Right to Transfer: right to transfer the holder’s property rights to others
(3)        Right to Possess and Use: traditionally the right to use in any way as long as (a) use was not a nuisance and (b) no other person held an interest in the land; today use is subject to statutes, ordinances, and other laws that restrict use
(4)        Right to Destroy: law is reluctant to interfere with owner’s freedom to abuse/destroy property, but trend toward limiting this right
d)       Real Property: land and permanent, immovable structures built on land
e)       Personal Property: everything that isn’t real property, including both tangible property [chattel] and intangible property [stocks/bonds] 2.       How Is It First Acquired? the first person to take possession of a thing owns it–> “first possession” can include discovery [White Americans] and capture [for fugitive resources, mix pursuit with physical possession] 3.   How Do Judges Decide?
a)       Precedent
b)       Custom
c)       Experience and Political Reality
d)       Public Policy
e)       Judicial Deference
B.                   Property Theories
1.       First Occupancy Theory: the first person to take occupancy or possession of something owns it; offers a quick and clear method to resolve competing claims to property. It is counterproductive because it encourages the waste of natural resources
2.       Locke’s Labor Theory: because you own your own labor, when you mix that labor with something unowned by anyone, you own the resulting mixture
3.       Utilitarian Theory: we accept legal protection for other’s property because we desire the same protection for our own. In a world of scarcity it is important to protect what one possesses
4.       Utility and Efficiency: externalities, costs that are produced by an activity but not borne by the person reaping the benefits are internalized, borne by their maker. Few people would undertake costly activities unless they can be assured they will keep the benefit of their actions
5.       Tragedy of the Commons: if we all shared freely, externalities would destroy us we’d over consume, so we need limits with property rights and mutual coercion (law)
6.       Jeremy Bentham “Right to Destroy”: no property is natural, property is all created by law. Right to destroy = type of exclusion. There may be limitations on this right if there is a vital interest to society to not destroy, but this is very limited
a)     REAL LIFE LIMITATIONS ON RIGHT TO EXCLUDE (FOR PUBLIC POLICY)
(1)        Eg: Civil rights limitations on landlords evicting tenants, law of adverse possession, doctrine granting public rights of access to private beaches, legislation protecting homeowners who’ve defaulted on mortgage payments
(2)        Reliance interest: landlord might be limited to exclude another if they properly relied
C.                   First Possession
1.       Acquisition By Discovery/Conquest: discovery of land vest absolute title in the discoverer
a)       “Discovery” Doctrine: discovery gave title to the government over all other European Countries…gives an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest”
b)       Right of Occupancy/Aboriginal Title: [not recognized as having title or ownership] a quasi-property right to continue to occupy and posses the land in the same manner subject to the control of the sovereign Congress; Congress has a trust/fiduciary obligation to protect the land occupied by the Native Americans
c)       Lessons Learned: (1)”possession” is an elastic word, its meaning culturally determined; (2) property rights are unimportant in the absence of enforcement
Case
Facts
Rule
Notes
Johnson v. M’Intosh
M'Intosh (D) acquired title to land under grant from the US; Johnson (P) acquired title to the same land by purchase from the Painkeshaw Indians
•Discovery
‣Act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy
•Conquest= taking land by force
‣Conquest gives title to the conqueror
‣LABOR THEORY: when man mixes his labor with land he owns the land
 
Tee-Hit-Ton Indians v. United States
the Tee-Hit-Ton Indians (P) claimed that the US government's contract to sell Alaskan timber constituted a taking of their property
•Mere Possession
‣Does not constitute ownership for purposes of the 5th Amendment
Indian Occupancy did not amount to a property right–> land could be taken by US without just compensation
United States v. Sioux Nation of Indians
treaty recognizing Indian ownership in reservation land is violated when white settlers invade; new treaty is signed which took the Indian land
•Allotment
‣Does not constitute a taking of tribal property because it was a mere change in the form of investment from communal to individual ownership
•Eminent Domain
‣“Congressional power over tribal lands does not extend so far as to enable the Government to give the tribal land to others, or appropriate them to its own purposes, without rendering just compensation”
•Just  Compensation= when US takes private property, it has a constitutional obligation to pay the fair market value for the property taken
•“Good Faith Effort”: where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking
 
2.Acquisition By Capture
a)       Capture Rule: common law rule that property rights of fugitive resources [capable of moving] are obtained only through physical possession
(1)        Occupancy: physical possession
(2)        Actual Capture Standard [Wild Animals]: hunter who actually kills or captures a wild animal and takes possession of it acquires title; mortally wounding of animal by one not abandoning his pursuit may constitute capture
(a)     Rationale for Actual Capture Standard
i)         Competition: rewards success, not mere effort–> encourages the killing/capture of wild animals for the benefit of society [Social Utility] ii)       Ease of Administration: promotes certainty [bright line standard for determining ownership] and efficient administration
(b)     Criticism of Actual Capture Standard
i)         Interference: authorizes interference by one person with the activity of another
ii)       Conservation: encourages the destruction of wild animals; each person has an incentive to protect his self interest by killing animals as fast as possible
(c)      Exceptions to General Rule of Actual Capture Standard for Wild Animals
i)         Constructive Possession: landowners have a form of constructive possession of wild animals on their land
ii)       Animus Revertendi: captured [or tamed] wild animal that have the habit of returning to their captor are unavailable for capture by others [also, exotic nature of animals puts others on notice that they are someone’s property
(3)        Sometimes Custom/Public Policy > First Possession [to protect industries and the community] (a)       Custom Advantages
i)         Doesn’t upset settled expectations
ii)       Easier to enforce since community has an agreement
(b)       Custom Disadvantages
i)         Who’s custom? Who should be bound?–> uncertainty
ii)       Minority being placed over majority sometimes
iii)      Can create waste
(4)        Rule of Capture [Oil and Gas]: landowner can extract [“capture”] all the oil and gas from a well bottomed under the landowner’s land even though the oil and gas may be drained from neighboring land; does not protect an owner who negligent destroys common resources
(5)        Rights in Water: rule of capture is applied to rights in water in certain contexts, much depends on the source of the water
(a)        Groundwater: water contained in soil, gravel, sand, or rock beneath the earth
i)         Free Use/Absolute Ownership: [rule of capture] each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability, even if it has the effect of withdrawing water from underneath his neighbor's property [followed by a minority of states where water is more plentiful] ii)       Reasonable Use: owners of land overlying an aquifer may withdraw water only if they put the water to a reasonable use on their overlying tracts [reasonableness is determined by considering the interests of the surface owner making the use, the interests of any surface owners harmed by the use, and the interests of society as a whole] iii)      Correlative Rights: allow each owner to withdraw an equitable [“fair and just”] portion of the groundwater
iv)     Prior Appropriation: allocates rights according tot he point in time when property owners begin withdrawing the water
(b)        Stream Water: water that flows in defined channels [rivers, lakes, and other watercourses] i)         Riparian System: allocates water rights to owners of land bordering on a surface water source
(1)         Reasonable Use Doctrine: a riparian owner may take water for all reasonable uses that do not unreasonably interfere with the uses of other riparian owners [considers: economic and social value of the use; purpose of the use; suitability to the area; harm caused to other users; practicality of avoiding the harm]–> unpredictable and expensive to administer
(2)         Natural Flow Rule: a riparian owner may (1) take an unlimited amount of water for “natural” uses [drinking/bathing/washing]; and (2) take water for “artificial” uses [irrigation/mining] so long as the natural flow of the watercourse is not substantially diminished in either quantity or quality–> restricts new uses and impedes development
ii)      Prior Appropriation System: [rule of capture] allocates water rights based on parties putting water to beneficial use [irrigation, industrial uses, drinking water, and in stream flows] these jurisdictions allocate water according to the principle of temporary priority= “first in time, first in right”–> easily administered but encourages wasteful consumption
(c)         Surface Water: water from flooding, rain, snow melt, springs, or seepage that flows across land surface or gathers in temporary ponds/puddles
i)         Common Enemy Rule: surface owners may take any nonmalicious steps necessary to remove water/keep it from entering their land without any liability for resulting harm to others [privileges free use of land over interests in security] ii)       Natural Flow/Civl Law Rule: owner cannot interfere with the natural drainage of diffused water [privileges interests in security and amounts to strict liability]