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Property I
University of Oregon School of Law
Wood, Mary Christina

Outline – Property
Professor Wood
Spring 2016
PART I: Sovereign Property Rights in Land and Natural Bounty
Sovereign Property Rights
Original Property Rights – Indian Title
Aboriginal Title (aka Native Title)
Land ownership, or a claim of land ownership, by an indigenous people in a place that has been colonized.
Tribes are original sovereigns on the continent
Right of Occupancy
A right of occupancy that the federal government grants to an American Indian tribe based on the tribe's immemorial possession of the area.
Congress does not recognize tribal ownership of the land, only possession. A tribe or nation must actually, exclusively, and continuously use the property to establish that it is the ancestral home. An individual may claim Indian title by showing that the individual or his or her lineal ancestors continuously occupied a parcel of land, as individuals, before the land was closed to settlers.
Tribal property right was “right of occupancy”
Tribal property rights are less than full property rights
Not alienable to anyone other than federal government
Right of Discovery
A key premise for non-Indigenous government claims to legitimacy on and sovereignty over Indigenous lands and territories
Federal government has Right of Discovery
Indian Treaty Rights
Federal government gained native title through treaty cessions
Tribes reserved lands
Called reservations today
Pacific Northwest Tribes reserved fishing rights off the reservations at “U and A” (usual and accustomed) fishing sites
These fishing rights operate as pre-existing easements on private property
Additional Treaty Right – “Habitat Protection”
Recently, such treaty rights have conferred environmental protection for fish
Northwest tribes have asserted that their treaties guarantee them the continued existence of abundant salmon sufficient to allow treaty Indians to meet their moderate living needs from fishing
Such a right would impose an affirmative obligation to protect salmon habitat
Interpreting Indian Treaties
They are constructed as the Indians would have understood them at the time of signing, and ambiguities are construed in favor of Indians
They describe rights “reserved” by the Tribes rather than “granted” by the United States
Courts presume that Tribes continue to possess all rights to land enjoyed at the time of signing
Soveriegn Servitude
Subject to Regulation
The Public Trust Doctrine
Antecedent Right
If the state is protecting those rights, its not a taking
Oregon – dry sand beaches (doctrine of custom)
NJ – extended to certain beaches, but not all
Just – natural use doctrine
Interest Protected
Fishing, Commerce
Feri Naturae
Subject to public ownership as a whole
Trust Construct
Divided ownership of an asset
Trustee is manager
Beneficiary is the beneficial owner
Judicial Enforcement
PTD Sources of Law
Constitutional (reserved powers)
Common Law of England
Natural Law
State Constitutions
State Codes
Three Contexts of the Trust
Government transfers out of public trust
Government management of trust
Private property standards (access and management) and takings claims
The Public Trust Framework
Origin and Expression
Historically protected interests of “FNG” (fishing, navigation, commerce)
Today the public trust doctrine protects resources of “public concern”
Applied to submerged lands, water, wildlife, air, and public lands
Expands over time to encompass new interests
Government is trustee of natural assets
Trustee is legislature
Present and future citizens are beneficiaries of natural assets
Assets (the “Res” or “Corpus”)
Assets are resources of “special character” in which “the whole public is interested”
Has been applied to streambeds, water, groundwater, air, wildlife, wetlands, parklands
Government has a firm fiduciary obligation to protect natural assets
The trust purposes and interests
Fiduciary Duty of Care
Alienation (conveyance of title)
Protection of Assets
Recovering Natural Resource Damages
Enforceability (the court’s role vis-a vis the legislature
Judicial veto or check
PART II: Private Property Rights in Land
Reliance, Possession, Use, and Title, as basis for property rights in land
Relativity of Title
Adverse Possession
Actual possession
Open and notorious (some include “visible”)
Continuous (taking and tolling)
Adverse or Hostile (without permission)
Note: Adverse possessor’s state of mind:
Objective Test (Majority)
Good Faith Test
Bad Faith Test
Constructive Possession
Where a person in adverse possession actually possesses only a portion of the property under color of title, she is deemed to “c

ncident to the ownership of that other tract.
Things to Know:
To distinguish appurtenant from in gross easements, courts ask:
Would the easement be useful apart from ownership of the adjoining land?
If so, likely in gross
Presumption in some states favoring appurtenant easements
Can’t sever the easement from the land (owner can’t take the easement with her when she sells)
Can’t “unreasonably burden” servient estate
Ingress v. Egress
The act of entering
The right or ability to enter; access
The act of going out or leaving
The right or ability to leave; a way of exit
Right to Lateral Support
A landowner’s right to have the land supported by adjacent land and by the underlying earth
Maintenance/Improvement of Easements
As a general rule, the owner of an easement may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created.
The owner may not, however, by such action, cause an undue burden upon the servient estate, nor an unwarranted interference with the independent rights of others who have a similar right of use.
Exclusive Easement
An easement that the holder has the sole right to use
The scope of easements
Reasonably calculated
Phone line easements can support cable easements
Cannot put an unreasonable burden on the servient estate
Terminating Easements
In class review
Marketable title acts
Implied Easements
Prescriptive Easements
An easement created from an open, adverse, and continuous use over a statutory period
Created through adverse and open use of the land continuously until the expiration of the statute of limitations for the trespass. Jurisdictions vary on the kind of adversity and exclusivity required
Burden of Proof
Clear and convincing OR preponderance of the evidence
Differs between states