Select Page

Property (Land Finance)
University of Pennsylvania School of Law
Balganesh, Shyamkrishna

Property_Law508_Fall2010(Balganesh).doc

Property Outline
What is Property
Two Views of Property
Right to Exclude:
Property is defined by the primary right of exclusion. It is a right of “mine against the world”
Jaques Steenberg calls it “The most essential right in the bundle of sticks
Is there a limit to the Jaques v. Steenberg action. à With trespass there is a “presumption of
Bundle of Rights
An amorphous bundle of powers and abilities invested on the owner. No single right is put on a pdestal but rather it consists of various rights.
Appropriate when something is removed from bundle.
Jacque v. Steenberg Homes
Intentional trespass across field with minimal damage results in the awarding of nominal and punitive damages. Punitive damages awarded as a punishment to the defendant for the purpose of making an example”
Harm not the result of damage to land but the loss of the individual right to exclude.
Policy motivation in preventing society’s interest in intentional trespass to land. Interested in decreasing the incidence of self help and violence.
Compare with Hinman where Trespass was not considered b/c
Penner, Right to Exclude
In Rem rights are negative rights that are concerned with “excluding others from things which is grounded in by the interest we have in the use of things.”à Use justifies the right.
Grey, Disintegration of Property:
Discourse on property has fragmented. We could do without the term “property” altogether. Bundle of Rights Approach.
Trespass v. Nuissance
Trespass:
Trespass action only available to those in POSESSION OF THE LAND, Restatement 2d of Torts §158(a).
Ad coelum
Everything below and above the land is owned. [legal fiction] Hinman v. Pacific Air Transport
Modifies the legal fiction to mean “that merely means that no one can acquire a right to the space above him that will limit him in whatever use he can make of it as a part of his enjoyment of the land.”
Policy Issues: Holdout and anti-common concerns
Stark comparison to mineral rights cases.
Does request for enjoinment matter here? Normally enjoining requires at least nominal damages, however here trespass [plain flying over land] is a “lawful act unless it is done under circumstances which will cause injury to appelant’s possession.”
Nuissance:
Requires moving closer to the bundle of rights conception.
Private: Substantial and unreasonable interference with the private use and enjoyment of another’s land. Restatement 2d of Torts §822 “One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the ivasion is either: a)intentional and unreasonable or b) unintentional and otherwise actionable under the rules controlling liability for negligence or for abnormally dangerous conditions or activities.”
Any determination for liability must consider and examination of the “private use and enjoyment of the land seeking protection and the nature of the interference.”
Public:
Hendricks v. Stalnaker
Stalnaker Drills well argues that it is not an unreasonable use of the land.
General Rule: Reasonableness and Interference with Enjoyment.
Unreasonable if Gravity of Harm> Utility of Conduct. (Restatement 2d of Torts §826)
Gravity of Harm Factors (Rest. 2d Torts §827): a)extent of harm; b) character of harm; c) social value that law attaches to use invaded; d) suitability of use to locality; e) burden on the person harmed of avoiding the harm.
Utility of Conduct (Rest. 2d Torts §828): a) social value attached to conduct; b)suitability of the conduct to locality; c) impracticability of preventing invasion.
When the balance is even, the existing interest gets priority. (Invading interest or perception of invading interest with Septic System).
Coase consideration:
the initial distribution doesn’t matter the parties will bargain to an optimal outcome.
The balance being equal it was easier for the parties to bargain around the initial consideration.
Coase Theory
Sturgess v. Bridgeman: Confectioner and Dentist the nuisance of vibrations.
If transaction costs are zerto, regardless of the initial distribution of property rights, both parties will negotiate until they reach a mutually beneficial outcome.
Zero transaction costs don’t exist.
Repeated Trespass; Building Encroachment
Equity:
Arises out of a concern with common law rigidity. Governed by the court of the Excheq

ion of Notice; the gun was a clearer outward sign.
Reasoning of the court: One must have constructive possession which is consistent with mortal wound and being within reach.
Dissent: Raises policy consideration of encouraging hunting. Contrasted with custom of arbitration of sportmen as a better remedy. CUSTOM inferior to NOTICE.
Ghen v. Rich
Possession reverts to the first taker.
Bomb Lances given distinctive markings and custom of first taker is standard throughout Cape Cod.
Usage deemed reasonable and requires that “first taker engage the only act of appropriation that is possible in the nature of the case.” Policy Consideration: continuing industry. UTILITARIAN CONSIDERATION
Narowness of rule contributes to applicability. Its an exception and so its notice function does not need to apply to too many.
Keeble v. Hickeringill
Man makes living off of property with Decoy Duck. Neighbor shoots to scare away ducks (nuisance).
Liability for interference with use and enjoyment.
Malicious interference with the use and enjoyment of property
Policy solution of no value creation.
Injuria sin Damno and Damno sin Injuria.
Since Damage unquatifiable, ownership of property not certain.
Open Access:
People add costs to others without realizing it.
Home Run Baseballs:
Equity ruling b/c both parites had an interest in the ball it was to be sold and the proceeds divided.
In reality, this is largely a function of the property in question.
The ball was readily fungible.
Discovery
Johnston v. McIntosh:
Political Context of the Case matters
Discovery gives exclusive Title to those who make it.
Basic Rule: Absolute title cannot exist at the same time in different persons.
Sovereignty: Not subject to a set of rules.
Mining Laws and Federal Land Grants: