Intro
A. ownership gives a bundle of rights
1. entitled to use it (open-ended property use) and
2. the right to exclude others.
3. right to transfer to someone else
a. inheritance
b. gifts (normally compulsory)
B. What can one use the property for?
1. for anything one likes, as long as it doesn’t violate the law.
C. Link between Freedom and property:
1. Property ownership carries obligations with it. So in some sense having property limits freedom
2. freedom is defined within the bounds of ones property
a. so in some sense imparts freedom.
3. link between freedom, democracy and property. Without private property, no freedom?
4. Property also about individualism and expression of personality.
D. How show ownership?
1. possession is a presumption of ownership
2. tracing the history of where they got it. (ie: a receipt)
a. how does a store show ownership- purchase order.
E. Where does ownership start? Problems with this concept:
1. in many post-cold war countries, Russians were placed on the land in the ‘40’s. At what point do you say that the Russians own the land or that it reverts back to the original land owners
2. the problem in Israel
3. someone always been screwed if go far enough back.
F. How is Property Protected? Usually covered in other courses
1. police- criminal law covers this
2. civil remedies- tort law concerns this. Intertwined with property law
3. self-help remedies
4. can get an order for the specific recovery of that thing.
I. First Possession: Acquisition by Discovery, Capture, and Creation
A. Discovery
1. Johnson v. M’Intosh
a. Facts
(1) argument over a land purchase from Indians
(2) Can P get land from Indians?
b. Court:
(1) Don’t have power to transfer
(2) discovery gave title vis a vis other European nations
(a) why? the accepted practice among the nations
(3) opinion doesn’t explain which particular land or how much
(4) discovery doesn’t give powers of government, but only gives the title of the land.
(a) accepted norms as shown by titles and charters, etc.
(5) if Marshall doesn’t confirm that discovery gives title, will disrupt the entire creation of the country.
(6) Indians have a right to occupancy- “rightful occupants”
(a) title is with Americans, but Injuns are rightful occupants and have a legal claim to the land
(b) US has ultimate ownership
(7) Acquisition of title means that Injuns can’t transfer title to someone else. But can transfer to the US. “very peculiar”
(8) Indians lose right by purchase or conquest or by leaving the place
(9) Law has to accept the status quo even if status quo isn’t necessarily just
(10)1924- Indians became citizens of US
c. Notes and Questions
(1) there are unoccupied territories where claims exist
(2) the whole opinion is based on a game of let’s pretend that the country was discovered by Europeans.
(3) first in time idea is trumped in this case. The first in time is used to rationalize property rights.
2. First in Time
a. in some way, it’s screwing the inefficient.
b. not clear if American property law turns on who was first in time….
c. Epstein:
(1) universal principle is original possession
(2) Simpson doesn’t buy this
d. Lots of objects come into existence at particular times (ie: a shirt or a hamburger) and first possession does come into use there
3. Labor Theory and John Locke
a. Labor as a reward and kind of a justification for property rights
b. if add to the value, it becomes yours
c. the manure case
(1) decided that first person had added labor to create the pile and so therefore had taken possession of it.
4. If someone is in possession of something must have some sort of relationship to it and an intention to exclude others from it.
5. Property and Power- property confers power. lack of property makes you powerless.
6. Freedom and property are connected- if no property, in some sense less free.
a. if no one owns anything, than can’t really be free.
B. Capture:
1. Pierson v. Post
a. Facts
(1) dude is chasing a fox with his hounds on public land
(2) D sees the chase and shoots the fox and takes it off
(3) P sues for trespass on the case
(a) trespass is for direct physical interference with property
(b) trespass on the case is indirect interference with property or action
i) could look at case as an interference with the act of hunting.
ii) If did this would be able to avoid the issue of who owns the fox.
(c) Court treats it as a trespass case. Looks at who owns the fox.
b. Court
(1) treats the fox as owned by nobody or owned by the public.
(2) foxes are ferae naturae
(3) mere pursuit is not enough to take possession.
(4) legal reasoning based on traditional sources of authority and public policy reasons.
(5) public policy:
(a) simple and clear rule
(b) will reduce quarrels
c. Dissent
(1) above rule isn’t fair; if reasonably certain going to catch, it is his
(2) economic incentive- should actually reward the person who made the effort and preparations to get the fox
(3) problem with this is that it is a less clear rule
d. Rule of Capture is a Bad One if want to conserve an animal
(1) could ban all capture of animals
(2) could issue permits for their capture
(3) could auction permits
(4) if whales were owned and only the owner had the choice of killing them, wouldn’t have a problem of their
hat it is much cheaper to do this. If had to trace everything back to its source, would cost tons to litigate
d. Inclination to Return
(1) if have a creature, although not penned in, has an intention to return, that establishes a legal title.
(2) called animus revertie
(3) doctrine encourages people to raise animals
(4) reduces costs of domesticating animals
e. Does the government own wild animals?
(1) no
(2) government can regulate, but doesn’t own them
(3) the outcome of cases usually depends on the concept trying to achieve, and the law is manipulated to achieve that goal.
C. Rule of Capture
1. Rules developed re: animals have come to applied to re: fugitive resources (water, oil, etc.)
2. Examples:
a. gas pool below two plots of property
b. What happens if A starts draining the pool? Does B have a remedy against A? B is screwed as long as A confines activity to his own property. B can also drill in response.
(1) bad for conservation
(2) parties can also contract about it.
(a) in real life, hard to do, because usually more than 2 people.
i) have the problem of free-riding if leave it to private contractual market
ii) have the problem of holding out- making conditions that make it difficult to form a contract among everyone.
(3) can have government regulation about it
c. suppose B’s well starts on her land but angles down such that it bottoms underneath land owned by A
(1) trespassing if well is angled into A’s property
d. If A reinject gas oil into the well?
(1) does A retain ownership of the oil?
(2) according to Hammond case, no. B can pump it up
i) Can B charge money for the storage?
ii) no, because it’s no longer A’s property.
(3) problems: discourages use of underground storage.
3. Water Rights
a. Ground water
(1) underground
(2) like foxes, own it when you pump it out
(3) suppose have a well on A’s land and on B’s land and A pumps water to deplete the aquifer only to be malicious
(4) another theory is that can only extract what is reasonable. Not permissible to pump the water into the sea just out of spite.
b. Surface Water
(1) done by prior appropriation in West
