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Property I
University of Toledo School of Law
Chapman, Douglas K.

I.                   PROPERTY LAW: 3 general rights
a.       Right to Use / Possess
b.       Right to Transfer
c.       Right to Exclude
a.       Public Policy-Limitations on the Right to Exclude.
                                                               i.      State v. Shack Ds entered upon private property against order of the owner to aid migrants employed and housed there.
1.        Rule: Real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another.
2.       Sic utere tuo ut alienum non laedas=Use your property in such a way as not to harm others. (Rights are relative and there must be an accommodation when they meet.
3.       Ct uses instrumental reasoning as opposed to making a constit. argument b/c interests of migrants more expansively served. (2 step balancing approach:)
a.       ID relevant social goal.
b.       Which rule will best promote that goal?
4.       Ct explicitly rejects formalism as deciding upon a conventional category and then forcing the present subject into it.
5.       Ct held that not only could the migrants receive the state officials, but also guest (reasonably)—sees as fund. right to privacy which can’t be abridged by simple property rights.
                                                             ii.      Notes on Trespass:
1.        Trespass=an unprivileged intrusion on property possessed by another.
a.       Trespass is privileged if (1) the entry is done with the consent of the owner (2) the entry is justified by the necessity to prevent a more serious harm to person or property (3) entry is encouraged by public policy.
b.       Possible damages for trespass incl. damages, injunction, declaratory judgment.
b.       Rights of Reasonable Access to Property Open to the Public
                                                               i.      Uston v. Resorts Intl. Hotel, Inc. (1982) Because P was well known for his ability to count cards, he was excluded from D’s casino.
1.        Rule: Owners of property open to the public do not have the right to unreasonably exclude particular members of the public.
a.       Majority rule disregards the right of reasonable access applied in the above case. Instead it grants to proprietors of amusement places an absolute right to arbitrarily eject or exclude any person consistent with state and federal civil rights laws.
b.       right to exclude/reasonable access theory
c.       The more private property is devoted to public use the more it must accommodate the rights which inhere in indiv. members of the publid.
a.       Conquest
                                                               i.      Property Rights Derived from Competing Sovereigns Johnson v. M’Intosh   P claimed title to a parcel of land through a grant from Native Americans, while D claimed the land based on a grant from the newly formed US govt.
1.        Rule: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy.
2.       Marshall ct claims to be applying a kinder rule than that of conquest b/c it is admitting the existence of an Indian right to occupy the land. However, the Ct then states that right to possession is only valid so long as the Indians were peaceful inhabitants, thereby immediately negating their rights. Moreover, since abs. title cannot exist at the same time in different governments over the same land, the Ct reasons that it would be inconsistent to vest abs. title in the Indians as a distinct nation and country.
3.       Marshall seems to looking at positive law and says not for courts of the conqueror to question the orig. justice/validity of the title taken by conquest.
b.       How do Property Rights get distributed in the First place?
                                                               i.      John Locke acorn analogy:
1.        Idea of labor gets mixed in with idea of first possession
2.       “For tis Labour indeed that puts the difference of value on every thing.”
3.       9/10; 99/100
4.       Labor is a virtue
5.       “natural rights” view of land, can be contrasted with positivist view of land which says just apply the law and don’t worry about justice or morality.
                                                             ii.      Philosophy of Law
1.        naturalism-Something that came about before man, from god etc., inherent in the nature of things
2.       positivism-the law is what it is, not for the judge to decide what is right/wrong
3.       utilitarianism—emerging concept in Pierson v. Post dissent by Livingston-greatest good for greatest number, tends to look at consequences of the rule for society as a whole;
4.       formalism: stick with rigid categories, precedents
a.       attacks against:
                                                                                                                                       i.      relying on something decided 100 years ago in a different context
                                                                                                                                     ii.      the law should change with the times
5.       instrumentalism: Id a goal; choose program to best meet the goal
a.       attacks against:
                                                                                                                                       i.      judges need to make value choices, is this really a good idea?
                                                                                                                                     ii.      unpredicatable
                                                           iii.      Current Indian Land Claims
1.        One of the major reasons for adopting the Constit. was to settle Indian affairs power disputes between the feds and the states.
2.       1790 Trade and Intercourse Act prohibited non-Indians settling in Indian country w/o consent of the US govt., and to sales of tribal lands to anyone but US. (This Act has been amended but stays in effect today.
a.       Oneida Indian land claims against NY that prior transfers of title invalid. 
                                                                                                                                       i.      Dissenters argue barred by laches
                                                            iv.      Homestead Acts and Land Grants; Squatter and Freed Slaves
c.       Labor, Investment, and Possession
1.        possession=physical possession + intent to control or exclude
                                                             ii.      Wild Animals
1.        Pierson v. Post – Post found a fox upon certain wild, uninhabited, unpossessed wasteland. He and his dogs began hunting and pursuing the fox. Knowing that the fox was being hunted by Post, and within Post’s view, Pierson killed the fox and carried it off.
a.       Rule: Property in wild animals

r nat. but not sufficient for each proprietor, then must be reasonable. Reasonable to be decided by jury—here def. not since upstream used all.
e.       Reasonable use theory is majority—“East Coast Rule”—leads to more litigation—water not as big an issue on the E. Coast
3.       Coffin v. Left Hand Ditch Co.-P claimed owner of water by prior appropriation (diversion), Ds claim water based on natural flow; Ps bust D’s dam—want reasonable use from Merriweather.
a.       Ct holds for Ps under prior appropriation (“first in time first in right”) West Coast rule where climate more arid.
                                                                                                                                       i.      Climate does not support usage of both proprietors.
                                                                                                                                     ii.      Right to water acquired by priority of appropriation thereof, not dependent on locus of its application to the beneficial use designed.
                                                                                                                                   iii.      Ps argue that deed does not make mention of the prior appropriation but court dismisses.
                                                                                                                                    iv.      Ct thinks it makes sense to give priority to first people who may have diverted to more fertile ground.
                                                                                                                                      v.      Beneficial purpose limitation on common law rule of 1st appropriation—“use it or lose it.”
4.       Policy Arguments:
a.       Prior Appropriation:
                                                                                                                                       i.      Utilitarian approach-encourages, work and development;
                                                                                                                                     ii.      Natural/Locke-1st possessor, possession through labor
                                                                                                                                   iii.      Water valuable out West, need to provide reliance for agriculture
b.       Reasonable Use:
                                                                                                                                       i.      Less arguments over water is the East so ok to do on case by case basis
                                                              v.      News:
1.        International News Service v. Associated Press P (AP) sued to enjoin D (INS) from publg. as its own news stories obtained from early editions of P’s publications.