1) Property Rights and Theories
a) What is Property
i) The best definition of property is a description
(1) Property is a bundle of right
(2) Each stick in the bundle is a different right
(i) Right to exclude
(ii) Right to sell (alienable)
(iii) Right to give away (devisable)
ii) Real Property
(1) Land together with all the property on it that cannot be moved, together with any attached rights
b) Exclusion: Essence of private property is the right to exclude others and compel them to serve the owner. State stands behind the owner’s assertions of their property rights, and society allows the owner to act in certain ways. (Felix Cohen=Right to Exclude)
i) Free Transferability: the right to transfer property lies within the discretion of the owner
ii) Someone must get consent before they can use someone’s property: Jacque v. Steinberg Homes, 1997
(1) Holding: Homeowner’s rights to exclude others from his land is the most essential characteristic of property and property rights mean nothing unless they are protected by the state.
(2) Policy Reasons:
(a) Society has interest in punishing and deterring intentional trespassers
iii) State v. Shack, 1971
(1) Holding: Right to real property is not absolute; do not injure others while exercising property rights, title to real property cannot include dominion over the destiny of people the owner permits to come on the premises.
(2) Policy Reasons: occupants on land have needs that must be protected
c) Property as a source of sovereign power: can make others do what you want if they use your property, compels service and obedience
i) Revenue producing property owners given the power to tax the future social product and thus have political sovereignty
d) Occupation Theory: the assumed right of the original discoverer and occupant to dispose of that which became his.
e) Labor Theory: everyone is entitled to the full produce of his labor
i) Property should be distributed with regards to the productive needs of the community
ii) Need for encouraging enterprise
iii) John Locke’s Labor Theory:
(1) All things are made by men and since each man has the sole right to what he made, each man owns his own labor
(2) Locke believes private property predates society
(a) ownership comes with the development and work put into the land
(b) does not just value the past labor, but takes into account the future use of the land
(c) law acts as an efficient resource allocater
iv) Accession Law: one person adds to the property of another alone and then owns that property because of the labor added, or at least owns the labor.
v) Labor theory of Property
(1) Abercrombie v. American Eagle, 1998
(a) Abercrombie put the labor and work into designing its image while AE based its stores on that and was unjustly enriched store layout and image
(b) AE argued competition and imitation
(c) AE prevailed
(i) To prevent AE would be to give Abercrombie and unfair edge and to create a monopoly
f) Economic Theory: Greater productivity under individual ownership
First in time prevails
(2) Discovery of America:
(3) Title by Conquest:
ii) Johnson v. McIntosh: Native American Right to Occupancy, 1823(Principle of first in time/first in right)
(1) Holding: Court found that even though the Indians were first possessors they did not have ultimate title. Indians only had right to occupancy, which means they can only transfer title to the US govt, so any other transfers they had made were invalid.
(2) Reasons: No Indian title because only one party can have absolute title and Indians seen as savages, Labor theory requires that a man cultivate and improve on his land to own it. Additionally, Native Americans not regarded as having prior possession because they just roamed, but did have a right to occupancy.
(a) Limited power of judicial branch
(b) Cultural justification
(c) Maintenance of political status quo
(i) Normally conquered nation gets to get property and be incorporated into conquering people, but the Indians were savages and had to be dealt with differently.
(3) Policy Reasons:
(a) US needed to be able to control the lands within its borders,
(b) Needed sovereignty over the Indians but also had a duty to protect the possessory claims of the Indians.
