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Property I
University of Oregon School of Law
Priest, Eric Ronald

PROPERTY OUTLINE—U of O—Prof. Priest—Spring 2013

1. Property Outline

a. What is property?

1. Property is the rights among people concerning things

2. Bundle of Sticks

b. Theories of Property

1. Legal Positivism

1. Property exists only to the right of the government allows/recognizes them

2. Society/government prescribes rules by which property may be acquired or preserved

2. Natural Law Theory

1. The idea that certain rights naturally exist as a matter of fundamental justice regardless of government action – has little impact on modern property law

c. Different types of Property

1. Real Property – House, land

2. Personal Property – clothes, items of ownership (your shit)

3. Intangible – ideas, intellect

d. 5 Theories

1. First Possession – “first come, first serve”

1. How property rights began, has less relevance today because everyone pretty much owns everything

2. Utilitarian/Happiness

1. Jeremy Bentham – we recognize property in order to maximize overall happiness of society

2. Takes into account the rights and needs of society. Means to an ends.

3. Property exists to ensure that owners use resources in an efficient manner – in a manner which maximizes economic value defined as a person’s willingness to pay

a. Happiness = Money = use of property efficiently

4. C owns nut tree not solely in order to benefit C, but because recognizing C’s title will promote the welfare of all members of society

a. C’s ownership is protected, C is able to use the nut tree in a manner that best serves the common good

3. Democracy

1. Under democratic approach D’s ownership of nut tree and the surrounding land because this provides D with the economic security necessary to make political decisions that serve the common good.


b. Without giving people property rights, there wouldn’t be democracy

c. Civic republican theory less prominent today because most citizens obtain economic security from wages earned at a job, not from farming land.

i. Still scholars suggest that giving each person a “stake in society’ through property ownership will provide political and social benefits to all.

4. Labor

1. When a person mixed his own labor (which he owned) with natural resources (which were unowned), he acquired property rights in the mixture

2. E.g. : B picks all the nuts off tree, puts them in a bag, and takes them home to eat. Under the labor theory, the nuts are now B’s property because she acquired them through her labor

a. Once labor was mixed in, value arose and the thing became private property

3. One potential application may be in the realm of newly-created property, such as copyrights and patents

a. E.g. Moore v. Regents of California

5. Personhood

1. Property is necessary for an individual’s personal development – under this view, each person has a close emotional connection to certain tangible things, which virtually become part of one’s self – such as family photos, love letters, or perhaps a home.

2. Things around us are how we define ourselves.

3. E.g. Suppose E’s family has owned nut tree for four generations; as a child, E literally grew up under the tree. Thus, E venerates the tree as almost an extension of herself. Under personhood theory, E’s right in the tree should merit special protection.

e. In order for economy to reach full potential of production, there are 3 features which its system of property rights must have

1. universality, exclusivity and transferability

1. Universality – Cows in India are sacred, cannot be used as a resource, thus there economy is smaller as a result

2. Exclusivity – owners unlikely to develop land if unable to exclude others from use and enjoyment of property; e.g. why grow and harvest land if others can simply take it without being excluded

3. Transferability – property must be transferable for optimal economy so individuals are not permanently stuck there based on exclusive ownership.


1. Four key implications of the rights approach

1. Property rights are defined by government – same thing as legal positivism, e.g. B holds property rights in his farm only if and to the extent that they are recognized by the government

2. Property rights are not absolute – property rights are relative, not absolute.

3. Property rights can be divided – property rights concerning a thing may be split among multiple holders, such that it may be difficult to identify a single owner

4. Property rights evolve as law changes

2. Destroy

3. Exclude

1. Landowners right to exclude is implemented through the tort doctrine of trespass

2. One of the most essential sticks in the freaking bundle

3. Existence of the doctrine of trespass creates stick of exclusion

a. An entry made under a privilege is not a trespass, the most common privilege is consent

b. Privilege may also arise from necessity – e.g. police officer may enter A’s land in hot pursuit of a fleeing thief

4. Jacque v. Steenberg Homes, Inc.

a. Even if you don’t cause any damage you will still be liable for punitive damages for trespass

b. Individuals AND societies best interest.

c. Less likely for self-help remedy


a. Right to exclude is not absolute – you can’t bar migrant workers from receiving government aid, necessity may justify entry upon the lands of another

b. Why? Property rights serve human values

6. Property rights are neither static nor absolute. The balance struck is always tentative subject to constant re-evaluation in light of current needs and norms

4. Possession

5. Use

1. Traditionally, landowner had the absolute right to use his property in any way he wished – as long as he did not harm the rights of others

a. Law Doctrine of Nuisance – the principle limitation on owner’s right to use

i. Common law doctrine of nuisance is the traditional method used to resolve land use conflicts

ii. 1) Intentional, 2) Nontrespassory, 3.)Unreasonable, and 4) Substantial interference with, 5) The Use and enjoyment of P’s land

iii. Most difficult question is whether the conduct is unreasonable, unreasonable if the gravity HARM v. UTILITY

1. Prah v. Maretti:

a. Solor panels up up: neighbor cannot build blocking it even within the zoning ordinance

b. Relief based on private nuisance. Protect sunlight.

c. Flexible and fact intensive analysis

2. Sundowner v. King: traditional spite fence

a. Not allowed to build a fence with the sole purpose of annoying his neighbor.

b. No man has a legal right to make a malicious use of his property.

6. Transfer

open and Notorious: cleaning up the brush, getting firewood

4. exclusive: held land for himself and not another. Told K it was his land

5. Continuous over a stat. period: Doesn’t mean every day

7. Fulkerson v. Van Buren (using the church)

1. Court rule needed subjective bad faith approach, Van Buren acted in good faith

a. Dissent said that claim of ownership under mistake will still be adverse, doesn’t have to be based on ill will or enmity.

8. Tioga Coal v. Supermarkets

a. Appellate court ruled in favor of OBJECTIVE rule, claiming that they didn’t care who Tioga coal was directing their adversity toward, the city or the supermarkets…it doesn’t matter, courts presumed element of hostility was implied.

9. Tacking = Must have a reasonable connection

10. Howard v. Kunto

1. 2 elements of tacking

a. Purchaser may tack the adverse use of its predecessor in interest to that of his own where the land is intended to be included in the deed between them, but was mistakenly omitted

b. Must show privity in tacking case à connection or relationship between successive occupants that distinguishes them from being mere trespassers or wrongdoers

i. When dealing with the actual and continuous element, always need to look at nature and condition of the land , in this case it was a summer home and it was used in the same nature and condition as other residents.

c. Color of title – refers to a claim to title which appears valid but may be legally defective (pg. 114-115)

d. Privity hypotheticals

i. A occupies O’s land for 6 years, A then tells his friened B “you can be here if you want, but I’m leaving” B occupies the land for 5 more years – No privity

ii. C occupies O’s land for 2 years. C then tries to convey the land to her sister E, but the deed C uses for this purpose is invalid. E occupies the land for 9 more years – yes privity

11. Where time period can be stopped, if true owner, desisee is disabled can stop the clock on statute of limitations

1. Minority

2. Imprisonment

3. Legal Insanity

4. Away on Military Service

5. Resides Out of State

a. Once the disability is removed the desisee has a set time to protect interest in the land

b. OR, the time is interrupted when desisee is under a disability and resumes once cured

3. Vertical Dimension Ownership

a. Use to be to the heavens, but changes with the airplane.

b. U.S. v. Causby – airspace

1. A landowner owns as much of the space above the ground as he can occupy or use In connection with the land. Invasions of that space will amount to taking (or a trespass) where they directly and immediately interfere with the owner’s enjoyment and use of the land