Professor Kurtz Property I Fall 2015
1. Acquisition of Property Rights
a. What is Property
i. “That is property to which the following label can be attached: to the World: keep off, unless you have my permission, which I may grant or withhold.” Signed: Private Citizen; Endorsed: The State
ii. Professor Friedman’s definition: something is property if 1. It is scarce and 2. If the legal system identifies it as such by permitting it to be exchanged on the market.
iii. In the U.S. there is no such thing as un-owned land
iv. Property owners are entitled to proverbial bundle of rights in their property
1. Alienate, devise, descend, possession, mortgage
b. Rights by Capture:
i. Rule of Capture: Wild animals are the property of no one unless they are reduced to possession (occupation). Mere pursuit is not enough
1. Pierson v. Post: Post was hunting a fox on unoccupied land. After putting much time into his endeavor, Pierson came and intercepted the fox. Pierson won because you do not have property rights in animals until you have actual occupation of the animal
a. Dissent (Livingston) within a reasonable likelihood of capturing animal —> property rights. Let jury decide what reasonable is.
2. Poppov v. Hayashi : Fly ball by Bonds almost caught by Poppov, but scramble knocked it out. Hayashi got it when he was knocked down in the scramble. Poppov sued for possession. When more than one party has a valid claim to a single piece of property, the court will recognize an undivided interest in the property in proportion to the strength of the claim. Both men intended to possess the ball at the time they were in physical contact with it. In order to carry out the ruling the ball must be sold and proceeds split between the two.
ii. Mortal Wounding: a pursuer who mortally wounds a wild animal and continues to purse might also acquire a property right in the animal as against one who actually kills the animal
iii. Netting of Animals: A pursuer who secures wild animals in a net also acquires a property right. However, Courts differ on the questions of whether it matters if escape is possible or not.
iv. Captured/Escaped Animal: A captured wild animal that escapes and returns to its natural habitat is no longer the property of its prior possessor. But if a subsequent possessor knows, or should have known of the prior possessor’s claim, the prior possessory may have a superior claim
c. Fugitive Minerals: Minerals that are under the land of various owners
i. Rule used to be that you had a right to however much you could get; no matter whose land you shared the deposit with. So you would pump as much as you could as fast as you could to make sure you got your fair share
ii. Now industry is highly regulated
iii. Fugitive Minerals: Minerals that are under the land of
Notes on the Occupation Theory of Property
L. Becker, Property Rights: Philosophic Foundations 24-25 (1977)
A Priori Restrictions on First Occupancy claims
First occupancy obviously cannot justify title to property unless 1)the object is unowned; and 2) occupation is in some relevant sense actual as opposed to intentional or declaratory; and 3) the concept of actual occupation defines with reasonable clarity how much one can occupy and 4) the occupier claims no more than a share as defined by (3).
for 3 and 4 one must be able to specify how much an occupier occupies in order to make sense of the notion of occupation to begin with and once specified they define the maximum an occupier could ever rightfully claim merely on the basis of occupation
Richard A. Epstein, Possession as the Root of Title, 13 GA. L. Rev. 1221-22, 1238-43 (1979)
Ex. man finds shell, puts it in pocket. Second man comes along beats up first man and takes shell. First man sues second, but the second man says the first never really owned it.
Ex2. Same first man fines shell but now the state comes in and claims it belongs to the common fund, takes the shell and gives him nothing
Scenarios can occur in thousands of ways—> importance of property rights
The system property rights in things are defined not against the thing, but over the thing and against the rest of the world;
Property rights normally entail (roughly) exclusive possession and use of one thing in question and the right to transfer it voluntarily
Contours of right important are not
· What principles decide which individuals have ownership rights (whatever they precisely entail) over what things
· Possession it the Root of Title
· Some system of property rights is necessary
o Two possible systems to be used
· 1. First possession systems (including the analogous rules for water, oil, and gas) require a minimal sort of state
· 2. systems that create original common ownership in all the citizens of the jurisdiction. requires much more extensive public control
§ question of owning personal talents?
o Objection to bother (most common): Neither theory is powerful enough to bind non-consenting individuals.
· Hume: it is not possible to move from a non-ethical premise to an ethical conclusion without there being a logical gap
§ Too overbearing
§ Destroys all possible solutions without addressing the need of one
§ “Where rules are respected there is no need at great expense to reshuffle entitlements amongst different individuals, even in the absence of any clear principle that dictates how that reshuffling should take place”
· It’s the way its always been done
Fugitive Minerals and the Rule of Capture: An Economic Note on Market Failure and the Common Law of Property Rights
fugitive minerals are natural resources that do not stay in one place
Historically have been governed by the rule of capture
Issue, anyone thinking they have property rights in fugitive minerals pumps them out at high rates causing a flood in the market
No long left to the rule of capture.
Regulated by state and federal agencies who control the amount of production and make sure that all owners of mineral rights over a particular pool obtain their pro rata (in proportion) share
many markets today for property rights are legislatively regulated because someone with political authority has decided that a particular market is subject to market failure, so the common law system of allocating property rights will not work.
Note of The labor Theory of Property
J.Locke, Second treatise of Government, §27, in two treatises of Government 305-06 (P. Laslett Rev. Ed. 1970) (1st Ed. London 1690)
· Every man can claim property to his own body
· Labor extends from his body which the man has property rights in his own body
· “The labor of his body and the work of his hands we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it is he hath mixed his lab
00. Favorite sued to have the piece returned to them. The court held that the fact that Miller was a trespasser and that the property found was imbedded in the earth is sufficient to defeat any claim to the property which Miller might otherwise have as a finder. Rationale: we should never reward a wrongdoer.
vii. Private land open to public: If a finder finds something on private lands open to the public, the finder may prevail against the owner of the land.
viii. Private land not open to public: Finders claims to found property will not prevail against the owner of the land where the goods were found if the finder was an invitee but the land was not generally open to the public.
ix. Employee: If the finer is an employee of the landowner, then any goods found by the employee, as an agent of the landowner, are found on behalf of the the employer-landowner.
x. Statutory Reform: Many States have enacted statutes that eliminate the distinctions made by the courts between lost, mislaid, and abandoned property. Theses statutes generally award the property to the possessor.
e. Acquisition of Property Rights by Creation
i. For right of publicity claim you must prove
1. ∆’s use of π’s identity
2. The appropriation of π’s likeness to ∆’s advantage, commercial or otherwise.
3. Lack of Consent
4. Resulting injury
ii. White v. Samsung Electronics: Samsung had ads with a robot that looked like White, in front of a game board that looked like wheel of fortune. If a celebrity’s identity is commercially exploited there has been an invasion of his right of publicity whether or not his “name or likeness” is used. Because White has alleged facts showing that Samsung had appropriated her identity, the district court erred by rejecting on summary judgment, White’s common law right of publicity claim.
iii. Alaron, Concurring in Part, Dissenting in Part: It is patently clear to anyone viewing the commercial that White was not being depicted. No reasonable juror could confuse a metal robot with a blond wig, glamorous clothing are not characteristics unique to the current hostess of Wheel of Fortune. The ad was not meant to depict White, it was meant to depict a robot, playing the role of White
iv. Denial of Appeal for hearing case en banc dissent (Kleinfeld: Whole joke was that the game show hostess was a robot, not a real person. The panel is giving white an exclusive right not in what she looks like or who she is but in what she does for a living. It impoverishes the public domain to the detriment of future creators and the public at large.