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Property I
Villanova University School of Law
Aagaard, Todd S.

Conceptions of Property:
A. Two conceptions of propertyà(1) a right to a thing good against the world (Inherent Right), (2) a collection of rights with content that varies according to context and policy choices (Collection of Rights)—THEMES TO KEEP IN MIND FOR THIS OUTLINE:
a. Traditional or modified rulesà courts will do both depending on the circumstances
i. EX / Jacqueàmore of a modification of precedent by showing that the exception to the Barnard rule is already contained within the precedent and thus finds trespass
ii. EX / Hinmanàapplies Ad Coelum rule and modifies it slightly but finds no trespass
b. Sacrosanct v. “Stick” of Propertyàright of ownership is tied to use and enjoyment of land
i. EX / Jacqueàno objective legal basis for P to deny entrance to land, yet, still get big punitive damages—willingness of court to punish by only a showing that P did not consent to D coming onto land
ii. EX / Hinmanàdifferent means of trespass—more needed than non-consent

c. Sacrosanct: Essentialistsàseek to uncover single true definition of property as legal concept—two theories:
i. J.E. Penneràrights in rem encompass rights in personam—we are under one duty to the plurality of property holders however property is distributed—property rights include two levels of complexity:
1. Simplistic = exclusive sovereign control over some “external thing”
2. Complex = “full ownership” = more elements than simple sovereign control
ii. Exclusion Theoryàthe right to property is a right to exclude others from things which is grounded by the interest we have in the use of things—exclusion is the practical means by which that interest is produced, and changes understanding of property
1. EX / Jacquesàcourt would have agreed because court justified Pdamages as a way of vindicating Jacques’ right to exclude others from their land
2. EX / Hinmanàcourt would not agree because it was more concerned with the “bundle” analogy—question of whether bundle included the right to exclude over-flights depended on considerations of competing social interests, not a priori conception of ownership
3. EX / IP and patents/copyrights
iii. Larissa KatzàExclusivity Theoryàownership, like sovereignty, is an exclusive position that does not depend for its exclusivity on the right to exclude others from the object of the right—owners are in a special position to set the agenda for a resource
1. Broader than Exclusion Theory
2. Boundary approachàdominion is not the absolute but insisting that ownership is essentially constituted by the exclusion of others from the object owned
3. EX / Jacquesàagrees with this view as the owners were setting the boundary to what they had authority over
4. EX / Hinmanàcould agree—policy reason as an exception to the theory

d. Skepticsàpointless to try for single conception of property—property is just a word that means nothing more than the context we give to it:
i. “Bundle of rights” viewàone can add or subtract from the bundle more or less without limit, and still talk about the bundle as property
ii. Tom Greyà because notion of ownership is null and most property in modern capitalistic economy is intangible, essentialism fails
1. “Bundle-of-rights” Rationaleà Property rights can no longer be characterized as “rights of ownership” or “rights in things”—and there is no answer for this but that property is a set of discontinued usages
2. Fragmentation of propertyàcase for “disintegration” of essentialism rests on dealing with issues apart from core of individual ownership in things
3. EX / Hinmanàaccurate explanation—dispute is whether property in land does or does not include (e.g. as one of the sticks in the bundle) the right to block overflights—by adding or subtracting this stick is how we determine what property means
4. EX / Jacquesàprobably not

e. Anti-Skeptic: Abraham et alàVALUE THEORYà property is a mechanism for defending stable ownership which protects subjective value—property as a field creates utility not provided by other fields like K, which is a departure from traditional skeptic viewpoints to show that there is actually some level of coherence as a discrete legal field, un-predicated upon other fields (abolition of the bundle of rights view)
i. Central feature of propertyàa device for capturing and retaining certain kinds of value
1. Value theory = essentialism + skeptics
2. Rationaleàcannot explain property institution entirely but since property has value the bundle of sticks cannot be wholly correct
ii. EX / Jacquesàmight agree with the court and P because property right as a mechanism for defending stable ownership of subjective value in the eyes of the Jacques—there was no damage done, but property value is presumed to be affected by merely traversing because trespass does not diminishes the value to the Jacques
iii. EX / Hinmanàmight disagree with the court and D because since property right defends stable ownership, and since flyovers might affect the value of the property to the P, then there might be an intrusion or trespass on that value

Trespass, Nuisance, Equity, and Policy:
A. Trespass:
a. Intentional trespass (SL)àany intentional intrusion that deprives another of possession of land, even if only temporarily, is considered a trespass
i. No need to show harm for liabilityà undesirable to require harmful acts from persons who would not otherwise undertake them, simply in order to resolve their respective rights to land
ii. Consent negates trespass
iii. Rationaleà right to exclude must be enforced because it is an important right—to avoid potential violence and protect privacy rights

b. P-damages in Trespassàwhen nominal damages awarded for intentional trespass to land, P-damages may, in the discretion of the jury, be awarded—but viewed through individual and society’s interests (Jacque)
i. Individual interestsàactual harm done to the land—loss of individual right to exclude others from the land—nominal compensatory damage
ii. Society interestsàdeterrence—integrity of legal system—ensuring equal protection of property owners
1. EX / $30 forfeiture and $1 nominal damages unlikely to restrain D from similar conduct in the future—if deterrence and property interests are paramount to society then need exception to “no Pdamages” rule

c. Ad Coelum Doctrine: A Collection of Rights that Varies with Policy
i. Generallyàowner of the surface is entitled to dig below the surface and to build above the surface—absent zoning restriction or covenant restricting the height of buildings, the rule means that the owner of the surface can construct a building as tall as engineering prowess will allow—must be property reclaimed from the mass of earth and capable of exclusive possession—e.g. must make use of it
ii. Exceptionsà(1) surface owner has not claimed dominion over airspace, (2) overflights are trespass only if they create harm to surface owner, (3) every surface owner has implicitly granted a license to every other person to fly over, (4) reclassify airspace as public domain (Causby)
iii. Ad Coelum Testàany use of airspace by others which is injurious to land, or which constitutes an actual interference with possession is a trespass—must show deprivation or infringement of use/enjoyment (Hinman)

B. Nuisance:
a. GenerallyàExposes questions about the nature of property rights which are very different from the law of trespass—especially in Jacque
b. Nuisanceà interference of use and enjoyment of real property—the term “nuisance” is restricted to ongoing interferences with another’s right to use and enjoy real property—does not require proof that D acted for the purpose of interfering with someone else’s property rights—merely that he did indeed interfere
i. Private Nuisanceàsubstantial and unreasonable interference with the private use and enjoyment of another’s land—must be
1. Intentional and unreasonable,
a. Conduct is malicious or indecent
b. Interference is intentional when the actor knows or should have reason to know that the conduct is causing a substantial and unreasonable interference
c. ‘Balance of Harms” Testàreasonableness—balancing individual homeowner’s interests—(generally, thoughàan interference is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause t


E. Restitution:
a. Generallyàdeals with non-bargained-for benefits—restitution to recover property transferred—idea set in equity—courts may find a way to provide relief in situations involving persons who have unintentionally transferred property or value to another
i. Ties to “Unjust Enrichment”àthe D, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money—not fair to enrich oneself at the expense of another (Dissent’s view in Producers)
1. Criticismà(1) not enough legal foundation, (2) does not embody unitary principle, rather, reflects circumstances giving right to restitution
ii. Elementsà(1) “enrichment” of the D (“windfall”), (2) at the expense of the P, and (3) under circumstances that are “unjust.”

b. Mistaken Improver:
i. Issueàlook for legal rule that tries to save the best value of the land—e.g. not treated solely as “trespass” because there has been an “improvement” with intrinsic value
ii. Mistaken Improver Majority Rule (ex-ante)àif a D makes improvements on P’s land without P’s knowledge and consent, improvements may belong to P—D is without remedy (Producers majority)
1. Exceptionàwhere a D makes improvements on P’s land, through good faith belief to belong to D, D may have a remedy—MUST HAVE CLEAN HANDS—if no clean hands, P gets improvement—if D does have clean hands…
2. Remedyà P must prove good faith and ask for equitable relief


Can improvement be removed without damage to P’s land?



Courts find market value of land before and after improvement

D can remove improvement

P can pay D for improvement

D can pay P for value of land before improvement

Neither can pay

Court auctions if off and splits $ equitably

D gets improvement with lien on land

Remedy Flowchart

Improver does not own mistaken improvement, but rather may have a right to restitution

Mistaken Improver Minority Rule (ex post)àa person who has in good faith improved land of another may obtain relief either in a suit in trespass to try title or in defense of a suit for removing the i