Dukemenier, 7th ed.
Acquisition by discovery
First in time: first come first served
Johnson V MIntosh 1823
· Issue: do the natives have the power to give, and private individuals to receive, a title that can be sustained in the courts of this country? Have the American states adopted the principle of the right of the discoverer to appropriate the lands occupied by natives?
· Holding: “the indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but deemed incapable of transferring the absolute title to others.”
Theories of Property:
· Labor theory and John Locke: “whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.” [Problem: almost no one makes something entirely on their own] · Law of ascension: when one person adds to the property of another, by labor alone. (A using B’s trees to make boxes.) A would win under labor theory, but generally B would win unless A significantly increases the value of it, and did not act willfully. IF there is a combo of labor and new product (A paints with his own oils on D’s canvas) the winner will be the owner of the principle material.
Locke argues that the Indians occupancy of their aboriginal lands did not involve an adequate amount of labor to perfect a property interest in the soil.
· Occupation theory: first in time, first in right. [there is no more unoccupied land] · Contract theory: private property reflects a social contract between an individual and society. Respect my property I’ll respect yours.
· Natural Rights: dictated by natural law
· Social Utility Theory: maximize the most satisfaction, promote max fulfillment of human needs. Most good for most people
Haslem v Lockwood
· Plaintiff raked up manure in the road to use as fertilizer but didn’t have a way to bring it home. He went home to get a wheelbarrow, came back to see someone else had taken it. Who has the right to it?
· Explanation: When the manure first leaves the horse, it is property of the owner of the horse, but it is abandoned property. we can infer the owners intent from the surrounding circumstances, after the physical act of abandonment, a reasonable amount of time had passed since the owner left it. therefore the manure is no longer property, it is merely a thing with no property rights vested in it. it becomes property again when the plaintiff changed the maure from its original condition and greatly enhanced its value by his own labor, he asserted dominion of it, therefore he has rights to the pile. he abandoned it, but is granted a greater amount of “reasonable time” since he greatened the value of it.
Acquisition by Capture
Pierson v Post 1805
· Post was hunting for fox on empty open public land with his dogs. He found one and gave chase, but then Pierson saw it and killed it and carried it off.
· Did post have a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away?”
· The fox is an animal ferae naturae, therefore property is acquired by occupancy only.
· Puffendorf defines occupancy of beasts to be the actual corporal possession of them, except if you have mortally wounded them while giving chase.
· Holding: Piersons act was productive of no injury or damage for which a legal remedy can be applied.
· Livingston Dissent: “property in animals ferae naturae may be acquired without bodily tough or manucaption, provided the pursuer be within reach, or have a reasonable prospect of taking, what he has thus discovered with an intention of converting to his own use” Allow sportsmen to determine this in the field.
Rule of Capture still applies to fishing and oil/gas. Leads to a race to consumption, over exploitation.
The Tragedy of the Commons
· There is a communal pasture owned by a society of 100 members with equal access. Person X asked, should I cut down one more tree, he looks at the benefits and costs: he gets +1 tree, and cost is only 1/100th. Every individual has an incentive to chop down one more tree.
· Commons as Breadbasket: when we take goods out of nature
· Commons as cesspool: when we put bad stuff into it: pollution etc
· Howard Demsetz: the most efficient solution to the tragedy of the commons is private property
Concept and Role of Property Rights
· The main function of property rights is the internalization of beneficial and harmful effects (reducing externalities – costs and actions not considered in a given action because they fall on others)
· property right
nferred that he placed it there intentionally (mislaid)
· as a matter of policy it is better for the court to put this object in the hands of the barber because it is more likely to be returned to the owner
Law of Finders 3 goals
· protect the rights of owners, want found objects to make it back to them
· honor the legit expectations of all parties (finders, shop owners)
· reward honesty (especially that of a finder who discloses his find)
What is a finder?
· a finder is one who takes possession of lost/unclaimed prop with intent to take control, they can be:
o lawful occupants/invitees to premises (greatest rights of all finders)
o employees of the locust where find occurs, or commercial visitor (generally the land owner will win)
o trespasser (usually gets no rights unless the trespass is trivial)
· the more private the place is, the greater chance of the landowner getting the object
· Treasure Trove rules:
o generally has to be gold/silver/currency and intentionally concealed by some unknown owner of distant past
o in england it goes to the king
o in US we treat it like lost property, but usually give it to the owner of the land (embedded in the soil, part of land owners property. it was intentionally placed there, so it could be mislaid property
B. Adverse Possession
· A transfer of property rights that is affected by a statute of limitations: after a passage of time someone else can acquire the rights.
· extinguishes aging claims: the true owner can longer sue to eject you. as time passes it gets harder to adjudicate old claims.
· sleeping owner theory: punishes owners who stake no interest in their land
· the earning theory: we should reward those people who put land to a higher and more productive use.
· promotes pubilc peace and quiets title.