Property § 3
Prof. Cooper
Fall 2009
I. Introduction to Property
Defining Property
– Legal construct that we have put together to govern our relations.
– Rights among people that concern things.
– Before law, had no property. W/out laws, wouldn’t have any property.
– Interest in a thing (tangible or intangible) that is protected by law from the invasion of others
– Rights and obligations of people in relation to things and objects
State v. Shack, 1971 p. 88:
– Facts: Π denies entrance to Δs (gov’t workers trying to assist migrant workers employed by Π)
– Rule: Individual and societal interests come before a property owner’s right to exclude others from property. Title to real property doesn’t include dominion over the destiny of someone the owner allows on the premises (right to real property not absolute).
Bundle of Rights
– Right to Include/Exclude
o State v. Shack – An owner does not have the absolute right to exclude access to his land
o Rights among people that concern things
– Right to Possess and Use
o Zoning restrictions
o Covenants
– Right to Transfer
o FHA
– Right to Destroy
– Right not to be Excluded
II. Chapter 1: Acquisition by Discovery, Capture, and Creation
A. Discovery
Johnson v. M’Intosh, 1823 p. 3:
– Facts: Johnson received his land from Indians and M’Intosh received the same land from US Gov’t.
– First in Time Rule: first to get there has rights to property
o International Rule of Discovery: regardless of the Indians, the Europeans who found the land first got possession
o Pros:
§ Stability in judicial decisions
§ Safety – people don’t have to patrol their property lines
§ Encourage improvement of land
§ Encourages expansion
o Cons:
§ Promotes land grabbing
§ Morally questionable
– Lockean Theory
o When someone labors to change/alter property form its natural state, result is exclusive possession by the laborer.
o Societal benefit – improvement of the land creates its highest economic value.
– Settled Expectations
o Marshall made his decision based on the expectations of the settlers
§ Better to make a wrong decision based on what settlers thought was right
§ Otherwise, would have chaos
o Virginia Statute: retroactively taking land from Indian deeds and giving it to Gov’t deeds
– Rule: Rights in property arise through gov’t recognition rather than abstract justice or natural law.
B. Capture
Custom and Capture: Property law looks to promote efficient capture of wild animals. The court may or may not follow custom to achieve this policy.
Pierson v. Post 1805 p. 17:
– Post was chasing a fox on uninhabited land w/ his dogs when Pierson intercepted the fox and killed it. Post (Π) sued Pierson (Δ) claiming he had already laid claim by virtue of his pursuit.
– Majority Capture Rule: Pursuit is not enough to claim possession, must take away the animals natural freedom
o Policy: Certainty. Wasn’t certain that Post would have otherwise killed it.
o Trying to encourage the killing of “beasts”
o Necessary Elements:
§ Manifest intention of appropriating animal for individual use,
§ Deprive animal of natural liberty, and
§ Brought animal w/in certain control
– Minority Rule: possession occurs in pursuit, when the pursuer
ght is actionable by law.
– Found for Keeble b/c the policy of the court was to keep ducks on the table
o An example of Instrumental Reasoning
o Court disregards first in time rights
Popov v. Hayashi: Popov and Hayashi were at gamer Barry Bonds hit his record breaking home run. Popov’s glove stopped trajectory, but he was thrown to the ground and lost control, or the chance at obtaining absolute control. Hayashi picked up the ball and stuck in his pocket.
– Court applies first in time principle and then completely disregards it
– Mr. Popov has not established by a preponderance of the evidence that he would have retained control of the ball after all momentum ceased and after any incidental contact w/ people or objects
– Mr. Popov has the right to complete his journey to possession w/out the attack of the mob
– The court has adopted both principles to find a joint decision
– Rule: Where one undertakes significant but incomplete steps to achieve possession of abandoned personal property and that effort is interrupted by the unlawful acts of others, the original actor has a legally cognizable pre-possessory interest in the property. This interest constitutes a qualified right to possession which can support a COA for conversion.
– Note – Capture rule could be applied to water and natural gas
