Property Outline
Prof. Kochen Winter 2007
Dukeminier & Krier
I. BASIC ENTITLEMENTS
A. Possession = Ownership (?)
1. Why should possession give rise to property rts?
a. Prevent self-help/stealing
b. Encourage people to find things
c. If someone has it they can put it to use
2. Acquisition by Capture:
a. Pierson v. Post (1805): Π hunts fox, but Δ intrudes/takes fox at end. Π sues for trespass on the case (believes he has rt to continue pursuit)
i. Is pursuit enough for possession?
ii.Rule: Only acquire prop in wild animals by occupancy, and pursuit alone is not occupancy
A. Kill, mortally wound, or deprive fox of its natural liberty (constructive possession).
iii. Sources of law:
A. English Common Law – All states adopted common law by Reception Statutes
B. Theorists: Justinian/Roman Law
C. Statute
D. Custom (dissent)
1. Regular hunters can probably create best rule
2. Don’t want to go against the way most people already act…flies in the face of majority’s appeal to certainty.
a. Maybe hunters are already “certain” about what’s right
E. Policy args (maj and dis)
1. Maj: Pursuit rule would be too uncertain…this rule prevents excessive litigation…Is this true?
2. Dis: Reward people who kill foxes/nuisances
a. Prob: Q for legislature. Would it actually encourage hunting?
iv. Dissent believes rule should be possession occurs w/ pursuit and a reasonable prospect of capture.
v.Elements to determine possession:
A. Control.
B. Communicative element: manifest clear intent in minds of others
b. Keeble v. Hickeringill (1707): Δ shoots gun (from Δ’s own property) to scare ducks from Π’s pond. Π sues for action on the case. Π only scared ducks away, but the ducks don’t come back, so pond is useless.
i. Malicious interference…people have rt to do something constructive/productive on own property
A. Private franchise (
at are not likely to be taken by individuals (everything needs to be owned by someone)
A. Justified by need for peace/security
B. Arbitrary
b. First Possession: First person to occupy something gets it.
i. Pierson uses occupation theory, dissent uses labor theory
4. Locke Labor Theory: When you mix labor w/ X, X becomes your property
a. 2 caveats:
i. Principle of Spoilage: If you take too much and it spoils, you have taken what belongs to others
ii.Have to leave enough for others
b. Desert theory: you deserve it b/c you did the work
i. Doesn’t mesh well w/ contemporary society in which people who work hard don’t get as much as people who don’t.
c. Money needed to be invented
i. Doesn’t spoil
Not useful in itself, but ascribed value
