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Property I
University of Illinois School of Law
Freyfogle, Eric T.

I. Property Ownership Theories

a. First Occupancy

i. First in time offers a quick, clear, inexpensive method to resolving competing claims to property

b. Labor-Desert Theory

i. People are entitled to the property produced by their labor (Locke)

c. Utilitarianism Theory

i. Dominant theory underlying American property law

ii. Private property exists in order to maximize overall happiness of all citizen; property rights are allocated & defined in the manner that best promotes the general welfare of society

d. Utilitarianism – Law & Economics Theory

i. Property exists in order to maximize the overall wealth of society

e. Civic Republican Theory

i. Ownership of private property is necessary for democratic self-government

f. Personhood Theory

i. Property is essential to the full development of the individual

ii. Property is a basic human right

g. Social Utility Theory

i. Well designed system can promote use of property collectively

II. Causes of Action

a. Trespass (chattels) – money damages for loss of use or damage to the item; distinguish trespass to chattels (personal property) from trespass to land

b. Replevin – action for property recovery

c. Trover and conversion – lost & found; bring this action if you want to get the full value of the property; amounts to a forced sale of the item

III. Wildlife Law

a. Rule of capture

i. Animals are ferea naturae – no one owns them

ii. Under common law capture rule, wild animals are obtained only through physical possession

iii. First in time – first person to capture or kill a wild animal acquires title to it

1. Must exercise dominion & control over animal to own it

iv. Pierson v. Post – mere pursuit is not enough

1. Majority opinion

a. Formal approach – applying precedents to case without considering policy

b. Pursuit alone vests no right in property nor does wounding; the animal must actually be taken

2. Dissenting opinion

a. Functionalist/instrumentalist approach – thinks about law as a human created tool to achieve some goal & is willing to evaluate it based on how successful it is

b. Property in animals ferae naturae may be acquired without bodily touch, provided the pursuer be within reach or have a reasonable prospect of taking; pursuer should have an intention of converting to his own use

v. Mortal wounding is enough to make a hunt your property – but what counts as mortal wounding? (Liesner v. Wanie)

1. The instant a wild animal is brought under control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it

a. In Liesner, an original hunter mortally wounded a wolf, escape being improbable if not impossible, but another hunter came along and shot the wolf dead. The court held that the wolf belonged to the original hunter.

2. The one who wounds/kills the animal owns it

a. Ghen v. Rich – he who killed whale, owns it

i. Custom may help define capture

vi. Rule of capture does not apply to trespassing on another’s land

b. Animals in possession are your property

i. However, mere ownership of an animal’s habitat does not confer property rights in the animal

1. The presence of the muskrats in a navigable stream covering privately owned lands does not entitle a trespasser to take them, but if a muskrat should leave a licensed area, he becomes fera naturae, and is legitimate prey for a neighboring trapper (Munninghoff)

ii. To acquire a property right in animals, the pursuer must bring them into his power & control, & so maintain his control as to show that he doesn’t intend to abandon them again to the world at large (State v. Shaw)

1. Fish in a tank or net or any enclosed place which is private property, where they may be taken at any time by the pleasure of the owner, belong to those who netted them

2. Animals caught in a net or trap are constructively possessed by whoever set the trap

3. Bees which swarm upon a tree are not private property until actual hived (Gillet v. Mason)

iii. If animal escapes, it is no longer your property

iv. You can’t own something that is per se contraband or that you do not have legal right to own

1. Bilida v. McCleod – woman rescued a raccoon but didn’t have permit to keep it

c. Landowners not responsible for what wild animals do on the land

d. Cruelty to animal

i. A person who knowingly or intentionally tortures, beats or mutilates a vertebrate animal resulting in serious injury or death to the animal or kills a vertebrate animal without the authority of the owner (Boushehry v. State)

IV. Rights Incidental to Land Ownership

a. Right to lateral support

i. Lusardi v

ppropriation doctrine for Western states where water is scarce

a. Water belongs initially to the state, but one can acquire the right to divert & use it whether or not he is a riparian owner

b. Water right requires one to physically divert the water from the river and that the water be for beneficial use.

i. Relation back doctrine – relate back final act to the date you started working; treat diversion and application for beneficial use back to the original work (Ophir Silver Mining v. Carpenter)

1. Reasonable diligence requirement

c. If there is a decrease in stream flow, priority is accorded in terms of time of appropriation

d. Appropriating water must be consistent with local public interest

i. Includes the proposed appropriation’s benefit to the applicant, its economic effect, its effect of loss of alternative uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation, its harm to others, its effect upon access to navigable or public waters, and the intent & ability of the applicant to complete the appropriation (Shokal v. Dunn)

3. Navigable waterways are open to public use

a. Includes travel, swimming, bathing, fishing, hunting

b. Cannot exclude others from using the area (Marincovich v. Tarabochia)

4. States owns all land under tidewater

ii. Groundwater (water pumped or drawn from wells)

1. Similar doctrine to riparian use rights

2. Under the rule of reasonable use, an overlying owner cannot withdraw percolating water and transport it for sale or other use away from the land from which it was taken if the result was to impair the supply of the adjoining landowners to their injury. The fundamental measure of the overlying owner’s right to use groundwater was whether it was for purposes incident to the beneficial enjoyment of the land from which it was taken. (Higday v. Nickolaus)

iii. Surface waters (rainfall, seepage)