PROPERTY I & II 1999-2000
Professor Krier
Introduction to Fundamentals
real property- land
personal property- property other than land
Acquisition by Discovery-
acquisition by conquest-
occupancy theory and the principle of first in time-
labor theory and John Locke
– the labor of one’s body and the work of one’s hands are one’s own; whatsoever one removes out of the state that nature has provided and mixed his labor with, thereby makes it his property. the notion that being there first somehow justifies ownership rights the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
Acquisition by Capture
Pierson v. Post
FACTS
HOLDING
DISSENT
: (Livingston) a new rule should be adopted: that property in wild animals may be acquired without bodily touch, provided a pursuer be in reach or have a reasonable prospect of taking the animals.: Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer. The mortal wounding of an animal or the trapping or intercepting of animals so as to deprive them of their natural liberty will constitute occupancy. Here, however, Post only sows pursuit.
a. Justinian Code- a collection of imperial constitutions drawn up by a commission of ten persons appointed by Justinian and published in AD 529 which replaced all prior law.
Ghen v. Rich
FACTS
HOLDING
Keeble v. Hickeringill
FACTS
HOLDING
NOTES
(1) capture or control, in conjunction with being first in time, guides legal analysis of the ownership of wild animals. The present case represents somewhat of a departure from these rules, yet is still viewed as a natural and logical extension of them.
ratione soli-
Interference with capture-
37 states have enacted legislation outlawing hunter harassment on state-owned landrefers to the conventional view that an owner of land has possession, constructive possession, of wild animals on the owner’s land; landowners are regarded as prior possessors of any animals ferae naturae on their land until the animals take off.
Rule of Capture and Wild Animals-
Rule of Capture and Other Fugitive Resources (resources that wander from place to place)-
a. Ground water: In some states (western) water is allocated according to the rule of prior appropriation (the first to put it to good use). In other states (eastern) water is allocated according to various riparian rights.
Demsetz’s Theory of Property Rights-
Externalities
not simply an effect of one person’s activity on another person; rather, it is an effect that the first person is not forced to take into account.
Do not necessarily lead to inefficient resource use, but do encourage it
Reciprocal; they arise from interactions or conflicts among people in the use of resources
– a function of transaction costs; encourage the misuse of resources. Exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision.
the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities
property rights develop to internalize externalities when the gains of internalization become larger than the cost of internalization
courts sometimes liken these to wild animals and determine their cases according to rule of capture. They belong to the owner of the land and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another’s control, the title of the former owner is gone. a trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the land owner never had actual possession or control and even tough the trespasser does. The court might say that the landowner had constructive possession of the animal. :: Damages may be recovered for the intentional frightening of wild game off another’s land. Although no title to the game existed, Keeble was using this land in a lawful manner. Thus, Hickeringill interfered with this lawful use and must pay damages.: Keeble contended Hickeringill scared ducks away from his pond resulting in damage.: when all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal. While local trade usages should not set aside maritime law, the custom can be enforced when it is embraced by the entire industry and has been concurred for a long rime by everyone engaged in the trade. This particular trade usage was necessary to the survival of the whaling industry, for no one would engage in whaling if he could not be guaranteed the fruits of his labors. : Rich purchased a whale at an auction from a man who found it on the beach washed up. The whale had been killed at sea by the crew of Ghen’s whaling sip which left Ghen’s identifying bomb-lance in the animal.
Acquisition by Creation-
Cheney Brothers v. Doris Silk Corporation
FACTS
HOLDING
NOTES
probably the latest developing area of property law, intellectual property has become a hot topic in the information age. There has been considerable development in the field since this decision.
The idea is to grant a limited monopoly: a monopoly in order to encourage productive incentives, but a limited one in order to promote competition
International News Service v. Associated Press-
Smith v. Chanel-
Can imitate b/c no patent
Moore v. Regents of the University of California
FACTS
HOLDING
Jacque v. Steenberg Homes
Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to self help remedies
State v. Shack
FACTS
HOLDING
NOTES
generally the right to exclusive possession is considered the oldest and most widely recognized right of private property in land. This case, though, illustrates the central limitation on the right to possession or use of private property, i.e. it may not be used to harm others. Here, the exclusion of Tejeras and Shack was invalid b/c it would harm a very disadvantaged segment of society.
The Right to Exclude
several limitations
legal rules limiting the right to exclude can all be justified by the reliance interest in property
: : Real property rights are not absolute, and necessity, private or public, may justify entry upon the lands of another.: Tejeras and Shack entered upon private property, against the orders of the owner of that property, to aid migrant workers employed and housed there.: a person whose tissue is used for profitable research and development without his knowledge may not maintain a conversion act
, under a claim of right, and for the statutory period. These requirements are variously expressed in the statutes and the cases.
The sort of entry and exclusive possession that will ripen into title by adverse possession is use of the property in the manner that an average true owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as a person exercising exclusive dominion.
Distinguish the adverse possessor’s absence from the property, on the one hand, and abandonment on the other. If the adverse possessor abandons the propre – leaves with no intention of returning – before the statute has run, the statute stops, a new entry is required, and the whole process must begin anew. Distinguish also interruption by the true owner before the statute has run – say by bringing a successful ejectment action against the adverse possessor, or by re-entering the property.
State of mind of the adverse possessor is approached in three different ways: (1) it is irrelevant (2) the required state of mind is that he thought he owned it (3) the required state of mind is he knew he didn’t own it, but intended to take it.
:: title to a parcel may vest in an adverse possessor who occupies the parcel under claim of right, protects the parcel by an enclosure, improves or cultivates the parcel, and maintains that state of affairs for the statutory period: Beginning around 1920, Lutz traveled across a triangular tract to reach his home on a nearby parcel and also built a shed and kept a garden on the tract, but in 1947 P purchased the tract at a tax sale, and when P demanded that Lutz vacate the land, Lutz obtained a judgment that granted him a right of way by prescription over the tract and then in a judicial proceeding established title to the tract by adverse possession.
– the theory upon which adverse possession rests is that the adverse possessor may acquire title at such time as an action in ejectment by the record owner would be barred by the statute of limitations.
When a property interest is protected by a property rule, the interest cannot be taken from its owner without the owner’s consent; all transfers are voluntary. When a property interest is protected by a liability rule, the interest can be taken without the owners consent but only upon payment of judicially determined damages; transfers are forced. Ordinarily adverse possession doctrine protects (1) the owner’s interest with a property rule before the statute of limitations has run, then (2) the adverse possessor’s interest with a property rule after the statute has run.
: Armory found a jewel which he took to Delamirie, a goldsmith, for appraisal, but Delamirie’s apprentice removed the stones which Delamirie refused to return.
