Property I – Williams – Fall 2014
Property Definedà What is property?
Property = bundle of sticks (4) – key concepts that “property is a bundle of discrete rights associated with a thing.”
o Right to exclude others from property
o Right to transfer property (e.g. alienability = sell, trade)
o General Ruleà Any owner may freely transfer or alienate any of her property to anyone at any time
o Right to possess/occupy / use
o Right to destroy
Nat’l lawà certain right exist naturally as a matter of fundamental justice regardless of gov’t action (alternate theory)à Quickly abandoned after nation founded in favor of positivism
Positivism
****Premised on individual rightsà Implications
o Trumps natural law (as per Justice Marshall in Johnson v. McIntosh)
o Rights among people concerning things
o Legally enforceable rights to do things with the property
o Recognized by courts and others à defined by government in which lands lie
o Property rights are not absolute
o Relative à “Some rights in the bundle conflict with other rights in the bundle; the property rights of one person might impinge on, and interfere with, both the property and personal rights of others. Absolute property rights are self-defeating”
§ Ex. company’s right to pollute their property conflict with adjacent land owner’s right to enjoy their property
o Often conflict – property right of one can and often does impinge on/interfere with property and personal rights of others
o Can be divided and split among multiple holders and may be difficult to ID a single owner
o Multiple owners, subletting, etc.
§ Can also be divided over time à Ex. Life estates, time-shares, etc.
o Evolve as law changes despite core value that stability of title is important – property right should be certain and predictable
o Stable title is important policyà concept that property rights should be certain and predictable
o But as times change property right may evolve
§ Ex. once assumed titleholder owned air space above property, now thanks to airplanes that right has evolved.
o Property law is dynamic process – rules not static; technology, economics, social conditions change through time
o Rights come with duties or obligations àCan argue about what precisely they are, but can’t argue that there are obligations
Case
o Title to lands especially depends entirely on the law of the nation in which they lie (Marshall in Johnson v McIntosh. [1823, tribal case: in deciding land claims based on Native American Rights, could only rely on laws adopted by fed gov’t, not natural law or abstract justice]
o Law regulates WHAT property can be transferred
o Some rights can’t be transferred (e.g. military pension) while some can be given but not sold
o Law regulates HOW property can be transferred to avoid fraud, uncertainty or other problems
o States and at common law
Policy – why protect rights?
o Policy in favor of property rights
o Encourage creation (inventing something) and development (building on land) because the property rights to the new stuff are protected
o Respecting the rule of law
o Order in society
o Stable systemsà Ex. the passing of property to others etc. (well regulated by gov’t and society
o Right to excludeàPersonal enjoyment – furthers the right to use and enjoy, privacy, safety, fruits of labor
o Right to transfer their land
o Encourage the highest economic use of the land;
o Right to use Economics
Discovery Doctrine:
o Doctrine of Discovery
o Gave title to the government by whose subjects, or by whose authority, it was made, against all other European Governments, which title might be consummated by possession. (invented in Europe)
o TWO ELEMENTS:
o FIRST to discover
o FIRST to possess the land
o Land Ordinance Act of 1785à surveying public domain lands
o 1862 Homestead Actà claim by possession
o 160 acres per individual à had to cultivate for 3-5 years to receive patent
Principles of Doctrine of Discovery: Implications for Tribes
o Property rights exist only to the extent recognized by the gov’t so positivism trumps natural law
o Title to lands, especially is and must be admitted to depend entirely on the law of the nation in which they lie
o Justice Marshall acknowledged the existence of “natural law” describing it as “principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations.”
o Doctrine of Discovery regulated claims between European Nations to avoid conflicting settlements and consequent war with each other [but it affected Tribes differently!!]
o Under the Doctrine, the “discovering” nation has superior title over the claims of aboriginal occupants
o Discovering nation has “the sole right of acquiring the soil from natives…with which no[other] Europeans could interfere
o Rights of original inhabitants were IMPAIRED BY NOT ENTIRELY DISREGARDED
o Rightful occupants, with a legal and just claim to retain possession of it
o AND use it at their own discretion
o BUT Rights to complete sovereignty as independent sovereigns diminished
o CAN’T transferà held in trust
o **Only the US gov’t had the right to extinguish Indian title of occupancyà Trust
o Marshall Trilogy: 3 bedrock principles that address real property Tribes vs. Feds vs. States
o YES, can extinguish the Indian title of occupancy if
o By conquest – move them out / kill
o Negotiate and buy it
o Can only sell land to US gov’t
Johnson v. McIntosh:
Cherokee Nation v. Georgia, 1831
**Worcester v. Georgia
1790 NON-INTERCOURSE ACT 25 U.S.C. 177: [limiting Indian right to transfer land]
o No purchase, grant, lease, title, or other conveyance of lands, from Tribe is valid unless made by treaty or convention entered into pursuant to the Constitution. Tribe cannot sell land or lease land to state without approval of federal governmentà need BIA approval
o “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution.”
o Under this act, tribes can’t sell except to US gov’t [not even MT] b
own common use, subject only to the rights since surrendered by the constitution to the general government.”à “States land title was conferred not by congress but by the constitution itself” PPL citing Oregon ex.rel State Land Bd. V Covallis Sand& Gravel Co.
o Navigable: any river that is either actually, or susceptible to be used for commerce, trade, travel for good chunk of time/season. Go segment by segment. à Navigability of Sate riverbed title are governed by federal law PPL v MT citing US v Utah à Navigability determined at time of statehood
o De minimus exception: segments are not specific. If river nav and short section that isn’t, river could be deemed navigable.
o Portage: If need to portage, NOT de minimus = not navigable. In MT: owner of land must pay fee for creating portage trail. MCA 23-2-311(3)(e).
Public Trust Doctrine [state common law created by Judicial decisions] =
· Provides that states hold title to navigable waterways in trust for the public benefit =a restriction on the government’s ability to convey to private parties the lands that are subject to the public trust. Thus MT can NOT give/sell Title to streambeds of navigable waters!!
o Limited to Navigable waters only
o Public Trust Doctrine trumps any other water rightsà because public’s use trumps appropriation uses
o Public trust doctrine must balance appropriation systemsà work together à Through use of regulation
o Gets touchy when private ownership of water bumps against public trust doctrine
o Trust: A form of property ownership pursuant to which the trustee owns “legal title” but must administer the property for the benefit of another person (the beneficiary).
o Trustee: A fiduciary and has a duty to act for the “beneficiary’s” best interest.
o As trustee of the public trust, the state has a duty “to protect the people’s common heritages of streams, lakes, marshlands and tidelands, surrendering the right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.”
o Ancient, but is a matter of state lawà places a restriction on what the state can do with the land/waterà must hold in trust for public (fishing, recreation, etc. wreaks havoc with some issues of private stream ownership esp. with MT stream access policies. Illinois Central cited in PPL
o Doctrine now flexible and scope encompasses ecological and environmental purposes. Traditional use of navigation, commerce and fisheries does not limit the public interest. (Balance public need (e.g. need for wildlife or drinking water, etc., private water rights, and public trust need doctrine) Audubon
