Property Beck Spring 2016
First Possession of Property
A. CAPTURE
Rule: Property in wild animals is acquired by occupancy, with actual wounding/killing, and ability to capture
: Fox pursuit case
JUSTINIAN: pursuit alone does not vest property rights
PUFFENDORF: occupancy is the actual, corporal possession of them
BARBEYRAC: pursuer can acquire without bodily touch provided they be within reach/have a “reasonable prospect” of taking, with intent to convert it for his own use
LOCKE’S LABOR THEORY: A person can acquire property right in something by “mixing” his labor (which he owns as a natural right) with what he doesn’t own, producing something that is his
RATIONE SOLI RULE: landowner is considered as being in (constructive) possession of a resource that is on/in their land even if they do not have physical possession of it
: duck hunting case; rival school and man frustrating horse to market hypos
Interference is not allowed
ABANDONED PROPERTY RULE: first person who comes in possession becomes the new owner
: Ruth’s baseball case, where P caught ball, but because of crowd, D picked it up off the ground
RULE: Where an actor undertakes significant but incomplete steps to achieve possession of piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest
Pre-possessory interest CAN NOT establish full right to property
ASCENSION: A applies labor to something owned by B.
If A adds labor only, final product goes to B, unless A’s labor transforms the original items into something fundamentally different or greatly increases the value
If A adds labor + materials, product will go to whoever the owner of the principal material is.
INCREASE: A’s horse goes to B’s land, lives there, and A+B’s horses have a baby.
Offspring belongs to the mother/owner of original stock.
COMMON LAW PROBLEMS: if a person can only own something when they have possession…
FUGITIVE RESOURCES
OIL & GAS
products not considered ‘owned’ by anyone until reduced to physical possession
Any surface owner whose land lies above reservoir can pump products so long as the drilling remains within the ‘imaginary’ column of space projected down from boundaries of his land
PROBLEM? Race to pump (modern day tragedy of the commons)
SURFACE WATER
RIPARIANISM: Each owner has right to use water, subject to rights of other riparians
PRIOR APPROPRIATION: person who first gets it and puts it to a reasonable and beneficial use has to right superior to later appropriators
GROUND WATER
American rule of reasonable use: rule of capture + penalties for unreasonable use
Qs TO REMEMBER: when should custom factor in?
B. DISCOVERY
RULE: sighting or finding of unknown/uncharted territory
CONQUEST RULE: taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
: US-granted party v. Indian-granted party over title of lands
RULE: Discovery gives an exclusive right to extinguish title, through purchase or conquer
C. EXCLUSION
: to have a fully effective power to transfer property that includes the right to include (permit use) and exclude (deny use)
LIMITATIONS:
Private necessity (lost in the woods, uses cabin for shelter)
Public necessity (fire at your house has to be stopped by firefighters to save other house)
: After told they were not allowed, D moved mobile home through P’s land.
RULE: A person’s right to exclusive enjoyment of his own property for any purpose does not invade the rights of another person is supported by the legal system
State v. Shack: Assertion of right that lawyers/doctors-D had right to see migrant workers because they had business with them
RULE: Ownership of real property does not bar access to governmental services available to those renting/leasing those on the land.
RULE: Title to real property does not extend to those on the land as well.
RULE: Tenants are allowed to receive visitors as longa s there is no behavior hurtful to others and not depriving owner’s rights to the property.
WHY IS IT IMPORTANT? Because what is the point (or value) of land if you don’t have the right to stop others from using it
BECK HYPO HYPO:
Individual that offers “consumer counseling” wants to invoke this opinion when they are prosecuted for criminal trespassing
Aid from federal/state groups or charitable groups cannot be denied by farmer in favor of his individual property rights.
Could they come on the property to take children away from child care services? Probably
Could they come on the property to use farmer's facilities to take care of children?
Analogy: lawyer and health care professional here are using the property to offer their services.
Counter: Child care services use the homes that the farmer is providing, vs lawyer/health care professional giving skills/advice that aren't dependent on use of the home
Could they bring a mobile home to the property to house children?
Probably not, because you can't injure the individual's use (interference) of their property.
Could state put police officers on property to offer protection of workers? 1) May already be privileged to go on there, but 2) if the statute provides as such
What if they were 24/7 workers?
Could migrant workers invite friends over? YES, if “behavior [is not] hurtful to others”
Extended to press workers as well
Could migrant workers have a family member come and stay with them? “Resident” statute is interfering too much with farmer's right to use property.
What if they were college students?
How are they different? Farm workers are politically powerless, aren't aware of all of their rights, need the extra help from these services
College students may be better educated, so they would likely already have knowledge of or access to these services.
D. TRAGEDY OF COMMONS & ECONOMIC THEORIES
Limited v open access commons
Limited: commons limited to members of small group with members of equal privilege to use of resource
Open: no single individ
s will be worth more in the long run.
Is it worth it to leave them there? Theoretically, the community would profit later.
Will X stop mining the diamonds? Likely no, because he has an economic incentive to mine them anyways, because Y will continue to mine them.
Suppose community creates property rights. X, Y, Z and all members of the community own 1 ton of diamonds.
What will X do with his ton: sell or keep them? If he knows they will be valuable later, he won't sell them or feel compelled to sell them.
X bears the economic consequences of selling the diamonds now vs. later.
Suppose A owns land adjacent to corner of diamond field. A doesn't want them to mine the land near A's land, because it will reduce the value of his land.
How does he convince them to not mine the diamonds?
Assuming that A doesn't buy the land, A could pay X not to mine it — offer more than $10 or so X could get from company wanting diamonds.
This doesn't solve the problem though– there are 99 other people that could mine it.
A likely won't be able to make a deal with all 100 people — high transactional costs to secure the deal.
Holdout — any one person can refuse to sell out to A, and will argue to be paid more, and the deal is not solidified until all agree.
If property rights are established, and G now owns the land adjacent to A, A can pay off G only.
Transactional costs of deal are reduced.
Only one holdout exists now, easier to convince.
If G chooses to mine the diamonds, G must weigh the value of the diamonds vs. A's offer of payment.
Suppose A wants to reroute a stream, and doing so would flood the corner of diamond land stopping the mining of diamonds.
Would community offer A payment to stop rerouting?
E. INTELLECTUAL PROPERTY/CREATION
If you create something, then that something is yours to exploit because of your investment in it
IP rights create incentives for inventors, etc. to produce goods that would otherwise not be produced.
IP law transforms public goods into goods that are excludable but non-rivalrous
Creates another problem: stifle competition and harm consumers by creating monopolies over information
Right to information that can be
NON EXCLUDABLE: once a resource has been created, people cannot be prevented from gaining access to it even though they have not paid for it
NON RIVALROUS: resource may be used by one person without preventing simultaneous use by others
