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Property I
University of Toledo School of Law
Kennedy, Bruce M.

Property is rights among people that concern things…bundle of rights
(1) the right to use (enjoy)
 (2) Usefruct – Right to own the fruits created by the property
 (3) the right to exclude
(4) the right to transfer (gift, sale, devise, descent)
Blackstone – dominion over things
Bentham – expectation of deriving certain advantages…strengthens law and is strengthened by law
Locke – mixing labor confers a right to own
Legal Positivism
Property rights arise only through government
Johnson v. M’Intosh (1823), the Supreme Court stressed that in Native American had no title, only custody
Occupation Theory- First in time, first in right (only with equal entities)
Natural Law Theory
Rights from fundamental justice, independent of government.
Utilitarian – private ownership maximizes social welfare
Lawsuit of replevin (to obtain return of goods)…trover (for $ worth of goods)
Acquisition by Capture
Defining “Capture:” Pierson v. Post (1805)…Blackstone (dominion)
Release or Escape After Capture
Ownership rights end when a wild animal escapes or is released into the wild, unless tamed, then captor has ownership
Opposing Policy of Capture Rule…Ghen v. Rich (1881)…Locke
Whoever puts forth “investment” of pursuing should be rewarded
Damage compensation
(fair market value of oil – process cost) + interest
Not out of pocket expenses
Impeding, not competing, with another…Keeble
Damages given for disturbance…none for loss of fowl
Prop rights internalize externalities when gai

8), CheneyBros. v. Doris Silk (1930)
Moore v. Regents (1990)
Creation…what is it?
Accession…Roman doctrine
Requires complete transformation
Court reluctant to call something property that may have implications (cells) or non-physical (like news, designs)
Is it really “created”
Who put the work in?
Can get patent or copyright (protect expression)
Reluctant to call it property when case law is inconclusive
Is there a NEED to call it property?
Weigh the implications
Competition vs. Monopoly
Court favors competition over monopoly
Court WILL protect time investment
Allow reasonable returns for business cycle
Right to Include/ Exclude
Jacque v. Steenberg Homes (1997), State v. Shack (1971)
Right to exclude others from land is essential stick in bundle
Court will find a way (punitive damages?) to protect this stick even when there is no real “damage”
This right is limited by competing legal values
Personal liberty is valued more than right to exclude
Government is sovereign…has original title
Acquisition by Find
True Owner…has paramount title
Finder…posessory title
Third party…custody
Court decides ONLY what title is best between the two parties in court (relative)
Possession requires
(1) an intent to control the property; and
(2) an act of control.