Property Outline
Blais
I. The Basis of Property Rights
a. Creating Property Rights
i. By “Discovery”
1. Can something be property and if so, was it actually your property in the first place?
2. Property law is defined at the state level
3. Property overlaps with several other classes. We have to determine if the dispute is over property and who the property belongs to before we can make any other decision.
4. Johnson v. M’Intosh
a. Johnson received land from Piankeshaw Indians-plaintiff, M’Intosh received same land from United States-defendant, Johnson says his chain of title owned land first and seeks ejectment of M’Intosh who says that the Indians did not have a right to sell the land and the chain of title was invalid
b. Right to occupy/possess for Indians limited by government right through conquest/forced purchase
c. Indians believed they were first in time so they owned the land, but US believe that according to Eurocentric view, they discovered the land first so it is theirs
i. The Indians were physically present first, but that does not count as possessing the land because the Indians did not develop and use the land (i.e. for farming) – plus Rule of Discovery gave exclusive rights to the European nations
ii. Europeans agree that the right of conquest allows for discovery and they are Christians and Indians were heathens thus they cannot morally own the land
d. Marshall makes positive arguments (outcome-based arguments) stating that if these older European rules are not followed then chaos would ensue
i. Also makes normative arguments (what would be best) that state that rules were decided by sovereignty and therefore cannot be questioned. This is the rule of property as we know it and it is not for us to question. Property is purely a function of laws
e. The courts must continue to instill institutional confidence as far as property is concerned
i. Institutional competence – court is not good at making this kind of decision
ii. Institutional legitimacy – this is not the role of courts in our society
f. Separation of rights within the idea of ownership
i. right to sell to US/not Murray
ii. right to occupy/possess
1. limited by government right of conquest/forced purchase
g. first in time/first in time discovery
i. different “acts” count as first in time
5. Main Property Themes
a. Chain of title – the rights you have are only as good as the person you got title from
b. Relativity of title – I have different rights depending on who my opposition is. My rights depend on who is challenging those rights. (i.e. McIntosh had a superior claim over Johnson, but Johnson would have a superior claim over the Indians who sold him the land)
c. Possession as a legal conclusion; not observable fact – What acts justify the reward of a property right?
d. Severability of title – Property is a bundle of rights. Which sticks in the bundle does this person possess?
e. Differing assessment of different “possessory” facts – Courts value certain possessory-type acts more than others. (cultivation, etc.)
f. Sources of property rights – The king, the courts, legislative acts, etc.
ii. By Capture
1. Wild Animals
a. Pierson v. Post
i. trespass on the case- injury to person or property without direct application of
compared to constructive possession
f. Ghen v. Rich “Whale Case”
i. A custom in some hunting trades may dictate a different result for rule of capture. Custom provides certainty – harpoon markings serve as notice.
1. American whalers custom was to award whale to ship that first killed it, even though whale sank and was discovered several days later by another whaler
a. Custom advanced killing of whales by allowing killer ship to continue to hunt for other whales without waiting for 1st whale to rise
b. Whale hunting will reduce if this custom is not allowed (consequential argument)
g. Keeble v. Hickeringill
i. If a person is in process of entrapping animals, competitor who wants to capture animals can interfere with other person’s activity and try to capture animals, but a person who does not want to capture the animal cannot interfere maliciously
ii. Keeble puts decoys on pond to attract ducks; Hickeringill shoots off guns to scare ducks away; Hickeringill liable for damages
1. Interfering with owner’s livelihood
iii. Hickeringill is maliciously interfering with Keeble’s trade
iv. Courts want business of capturing ducks to keep on trucking (Societal and economical benefit)
