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Property I
University of Oregon School of Law
Osofsky, Hari M.

I. PRIVATE AND PUBLIC PROPERTY RIGHTS IN LAND AND NATURAL BOUNTY

A. Framework of US property
a. Sovereign is the source of legal property rights
i. The sovereign government determines the property interests to be protected
ii. Property law derives from a social compact which finds its form in the mandate of the sovereign
iii. US is a state of triple sovereignty – federal, state and tribal governments
b. Function of Sovereign
i. Hold title to public property and resources which benefit the commons, and regulate to protect the commons.
c. Inter/Intra [jes1] – property interests operate on 2 levels: inter-sovereign allocation, and individual interests.
i. Inter-sovereign arrangements – agreements between sovereign entities
ii. Intra-sovereign arrangements – individual interests
d. Property Law is Encumbered by the Laws of Nature
i. Natural limitations (water, etc.) are put on the ability to expand or develop, but the laws of nature are fairly easily overruled by the laws of human beings.
B. Freedom of Action v. Security of Expectation
a. Sis utere tuoutalienum non laedas – use your property so not to harm the interests of others (limiting principle)
b. Damnum absque injuria – injury without legal redress (liberty favorant
C. Rights and Responsibilities
a. Rights – “Bundle of Sticks”
i. Ownership consists of a number of different rights, a bundle.
ii. Ownership Rights
1. The right to possess the object.
2. The right to use it
3. The right to exclude others from possessing or using it.
4. The right to transfer it – including the right to make a gift and the right to sell.
b. Responsibilities
i. Private owner.
ii. Member of the public.
D. Sources of Rights
a. Common Law – PTD
b. Constitution – 5th Amendment (no takings)
c. Treaties – Federal Indian Law
d. Statutes – zoning regulations
e. Private Ks – residential covenants
E. Visions of Property
a. Cohen
i. Known as a legal realist
ii. Deconstructs the idea of private property and eventually concludes that there are no bright lines in the arena of property law – no clear cut line between public and private
b. Blackstone
i. Very individualistic proponent of private property rights – highly influential in US property law
c. Deuteronomy
i. Christian writings are far closer to communism, would have counter implications to Blackstone for American culture.
d. Locke
i. Theory: the materials of the world are unowned, but when people combine their labor with the unowned materials, then we create private property.
ii. Lockean labor: “blood, sweat and tears”
iii. Proportionality of Locke’s theory leaves something to be desired (if you dump your can of tomato juice in the ocean, you don’t then own the ocean)
F. Competing Models of Property
a. Feudal – no individual property ownership

Laches don’t apply against PTD.
ii. PTD is based upon a theory of trust – property held by state as trustee for beneficiary (citizens of state)
iii. There is no taking under the 5th amendment because the property owner never “owned” it in the first place.
iv. PTD lies dormant – it does not extinguish with the passage of time
B. Where Does PTD Apply?
a. Traditionally protects:
i. Air
ii. Water: fishing, navigation and commerce (land under navigable waters)
iii. Sea and Title Shores
b. However, PTD is flexible and fluid – it can be expanded over time to meet the changing needs of society.
c. PTD has been expanded to include:
i. Recreation, or environmental concerns?
ii. Areas above dry land beach?
iii. Nonnavigable waters?
C. Arguments For PTD
a. Fundamental need to preserve for particular public uses
b. Private ownership would result in undue exploitation of the resource
c. Private ownership would result in unfair access to the resource by certain areas of the population being excluded
Tradition and precedent.

[jes1]Figure this out

[jes2]look for simple definition