Select Page

Property I
University of Kansas School of Law
Yuille, Lua Kamal



FALL 2014

I. Definitions and Justifications (What is Property?)

A. Practical Definitions

· Legal positivism – property exists only to the extent that the government recognizes it

· Property – a set of rights about a thing against the world (in rem) – more about legal relationships with respect to valued resources than ownership in “things” (thingness)

· The Antelope – 1825 – Supreme Court – Justice Marshall – every nation has the right to have its own laws (law of nations) – possession on board of a vessel was evidence of property – Portugal not given any slaves back, Spain received some back

· Handout #2

B. Justifying and Explaining Property

· Property is justified when one is better off than if there was no ownership

1) First possession (protect first possession)

o Practical approach to how unowned things become property

o Who had it first? First come, first serve

o Very important in 19th century early U.S. – Moving west – unowned land – manifest destiny

o Less relevant today because almost every tangible thing is already owned by someone

o Scholars say it is an inadequate approach – 1st possession describes how property rights arose, but not why it makes sense in society

2) Labor Theory (to encourage labor)

o John Locke – when a person mixed his own labor (owned) with natural resources (unowned) he acquires property rights – assumed unlimited supply of natural resources

o Labor adds value to unowned property

o 1700s – Locke preached natural rights – “God originally gave the earth to humankind collectively as property in common”

o Again, not entirely relevant in today’s world – more important in early U.S. where the west was unowned – *does remain relevant for IP, copyrights, and patents

3) Utilitarianism – Utility (maximize societal happiness)

o Jeremy Bentham – property is a means to an end

o Best promotes the welfare of ALL citizens – provides security to citizens as well

o Law and economics variant – affects modern property law – allocates wealth

o 3 basic features for optimal level of production in utility theory: universality, exclusivity, and transferability

4) Democracy (to ensure/facilitate democracy)

o Civic republican theory – property facilitates democracy

o Owning land could enable one to exercise independent political judgment – vital for true democracy (Thomas Jefferson’s views)

o In early U.S., owning land was a prerequisite for being able to vote

o Owning property provides economic security necessary to make political decisions that serve the common good of all

o Owning property implies a measure of independence from government power – “Personal security and personal independence from the government are guaranteed in a system in which rights of ownership are protected through public institutions.” (Cardozo)

o No private property = citizens being dependent on the good will of government officials (Cardozo again)

o Again, less prominent in today’s society but more relevant than first 2 theories (in part because today most people earn economic security from wages earned at a job as opposed to farming their own land)

5) Personhood (to facilitate personal development)

o Necessary for an individual’s personal development (Georg Hegel) – each person has a close emotional connection to certain tangible things, which virtually become part of one’s self

o An individual needs some control over resources in the external environment to achieve proper self-development – necessary assurances of control take the form of property rights

6) Consent theory

o First seen in The Antelope

o “As the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful”

o The fact that the rule has been around for a long time indicates that the rules was “produced by general consent”

7) Stability theory

o The concept that property rights should be consistent and predictable

o Property exists so that individuals may plan and have security

o Benefit is clear: stability promotes investment

o Under this theory we should question whether stability and its benefits is a sufficient reason to keep an existing rule

II. Acquisition (How Does One Acquire Property?)

A. First Possession

1. Discovery (a.k.a. Conquest)

· Johnson v. M’Intosh (1823) – U.S. Sup. Ct. – Chief Justice Marshall

o When U.S. declared independence from GB, the U.S. gov’t inherited British right of pre-emption over native American lands

o Native Americans did not have a concept of individual property rights

o Native Americans do not have title of land on which they live, they only have possession

o U.S. has exclusive title to land because of the discovery and conquest of America by Europeans (so much for first possession?)

o Legal Result: the only native American conveyances of land which can create valid title are sales of land to the federal government

· Discovery doctrine – a.k.a conquest

2. Labor and Investment

a. Creation

· International News Service v. Associated Press (INS v. AP) – U.S. Sup. Ct. – 1954

o Facts are not property, they are public right

o But facts can be converted into quasi-property with addition of something (like labor, investment, etc. – Labor Theory)

o Court created quasi-property in this case as well as a new tort (misappropriation)

o Granting exclusive rights to information does not promote a market economy – competition depends upon imitation

o NBA v. Motorola – 1997 – Holding narrowed the ruling in INS v. AP

o NFL v. Delaware – 1977 – Rule in INS v. AP is narrowed here too

b. Capture

· Pierson v. Post (The Fox!) – 1805

o Mere pursuit of an object is not enough, capture is required for possession

o Implication: private property is a good idea

o Case of first impression – no binding sources of law – which means this case was crucial in the formation of property law

o A leading example of the first possession theory (“rule of capture”)

· Popov v. Hayashi – 2002

o Possession has a degree of ambiguity – circumstances can change the outcome

o Where an actor undertakes significant, but incomplete, steps to gain possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property

o Popov caught ball, mobbed by crowd, Hayashi ended up with ball (but did nothing illegal unlike the crowd)

o Court ruled for the ball to be sold and profits divided equally between the 2

· Unowned things governed by the rule of capture (Possession)

3. Being

· Moore v. Regents of the Univ. of Cal. – 1991

o There is no property in cells/body parts once they have been taken out of the body

B. Subsequent Possession

1. Purchase

2. Government Grant

· Hom

ual possession: claimant must physically use the land in the same manner that a reasonable owner would given its character, location, and nature

o Exclusive possession: claimant’s possession cannot be shared with the owner or with the public in general

o Open and notorious possession: claimant’s possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim

o Adverse and hostile possession: either claimant must believe in good faith that he owns the land OR claimant must intend to take title from the owner (bad faith) – however, in most states the claimant’s state of mind is irrelevant (possession cannot be authorized by true owner)

o Continuous possession: claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land

o For the statutory period: varies by jurisdiction, but ranges from 5 to 40 years. Most common periods are 10, 15, and 20 years

· Adverse possession has 2 causes of action: ejectment (brought by true owner) and quiet title

· Main alternatives to the elements of adverse possession are???

· There is no such thing as adverse possession against the government

· A successful adverse possession suit gets the claimant exactly that the prior owner had (title, rights, etc.)

· Cases – 4 of them – not briefed, but have read – relevant or are elements enough???

III. Using Property (What are the Benefits and Limits of Ownership?)

A. Basic Rights (transfer, exclude, use, destroy, etc.)

· Most important in the “bundle of sticks” are:

o Right to transfer

o Right to exclude

o Right to use

o Right to destroy

· Extensive list: possess, use, exclude, manage, income, alienation, consume, waste, destroy, modify, security, transmissibility, absence of term, and residuary character

· 4 key implications to the “bundle of sticks” approach:

o Rights are defined by the government

o Rights are not absolute

o Rights can be divided

o Rights evolve as law changes

B. Limitations Based on Competing Rights or Public Policy

1. Trespass

· State v. Shack – NJ (1971)

o Government officials barred by landowner from seeing migrant workers on land

o Property interest does not extend to the right to exclude individuals providing government service

o Man’s right in real property is not absolute. Necessity, private or public, may justify entry upon the lands of another

o Property rights serve human values. They are recognized to that end, and are limited by it. – personhood theory

o Real property does not allow dominion over the destiny of persons

o Also reflects classic utilitarian theory

2. Public Accommodations

· Civil Rights Act – Title II