Property, Seaman, Spring 2016
Introduction to Property
Prof. Chris Seaman
Jan. 13, 2016
What is Property?
The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership <the institution of private property is protected from undue governmental interference>.
Any external thing over which the rights of possession, use, and enjoyment are exercised <the airport is city property>.
Black’s Law Dictionary (9th ed. 2009)
What is Property?
To the world:
Keep off X unless you have my permission, which I may grant or withhold.
Signed: Private citizen Endorsed: The state
Prof. Felix Cohen, Dialogue on Private Property (1954)
Theories of Property
1. First Possession
2. Encourage Labor (Locke)
3. Utilitarian/Maximize Happiness (Bentham) 4. Civic Republican Theory
5. Personhood (Hegel, Radin)
Acquisition of Property
Prof. Chris Seaman Property
Jan. 14, 2016
“Possession is nine-tenths of the law.” – Unknown (derived from 1600s Scottish expression)
Pierson v. Post (N.Y. 1805)
Popov v. Hayashi (Cal. Super. Ct. 2002)
Possession
• Intent to possess+
• (Some degree of) physical control over the object
“Gray’s Rule”
• Full control required for possession.
(“The central tenant of Gray’s Rule is that the actor must retain control of the ball after incidental contact with people and things.”)
Pre-Possessory Interest
• Exists when person (1) takes significant but incomplete steps to achieve possession and (2) the person is interrupted by unlawful acts of others.
Court’s Solution
• Equitable Division
Barry Bonds 73rd Home Run Ball
Final Sale Price: $450,000 (Todd McFarlane)
Baseball Possession Hypothetical #1
• P attempts to catch the ball, but runs into a foul pole while in the process of securing it. P drops the ball on the ground.
• D, a bystander, picks up the ball and claims possession.
Baseball Possession Hypothetical #2
• Same as #1, but this time D accidentally pushes P into the foul pole while also trying to catch the ball, causing P to drop the ball.
• D then picks up the ball and claims possession.
Baseball Possession Hypothetical #3
• Same as #2, except that when P attempts to catch the ball, D intentionally shoves P out of the way. The ball drops to the ground.
• D picks up the ball and claims possession.
Baseball Possession Hypothetical #4
• Same as #3, but after P is intentionally shoved by D, the ball falls into the lap of a third party, T, who was too busy eating peanuts and crackerjack to notice the home run.
“Tragedy of the Commons”
Theory:
Shared rights to a natural resource, without limitations as to its capture or use, will lead to over-exploitation and eventual depletion of that resources.
Examples?
Tragedy of the Commons
• Cod fishing
“At a grim daylong session here, a deeply divided New England Fishery Management Council voted to recommend reductions of 77 percent from last year’s catch for each of the next three years for cod in the Gulf of Maine.
We are headed, slowly, seeming inexorably, to oblivion,” said John Bullard, the regional administrator of the National Oceanic and Atmospheric Administration and a member of the council, as he explained his support for the catch limits. ”
Officials Back Deep Cuts in Atlantic Cod Harvest to Save Industry, New York Times (Jan. 30, 2013).
The Right to Exclude
Property Prof. Chris Seaman Jan. 15, 2016
Property as a Bundle of Rights
• Right to Exclude Others (Exclusivity) • Right to Use (Exploitation)
• Right to Transfer (Alienability)
• Right to Destroy
The Right to Exclude
“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.”
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982).
Trespass:
Violation of the Right to Exclude
Trespass:
Violation of the Right to Exclude
“Every unwarranted entry on another’s soil entitles a trespass . . . For every man’s land is in the eyes of the law, [e]nclosed and apart from his neighbors.”
Wm. Blackstone, 3 Commentaries on the Laws of England 209-210 (1768)
Restatement (2d) of Torts § 158
“One is subject to liability for trespass, irrespective of whether he thereby causes any harm to any legally protected interest of another, if he intentionally . . . enters land in possession of the other, or causes a thing or a third person
aldwell, ID)
Desert Inn (Caldwell, ID)
Spite House
Skinny House, 44 Hull Street, North End, Boston MA
Spite House
Alameda (CA) Spite House
Sundowner, Inc. v. King (Idaho 1973) Rule:
“We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor.”
(Emphases added)
Private Nuisance: Elements
• Intentional
• Non-trespassory
• Unreasonable
• Substantial interference with use and enjoyment of plaintiff’s land
Restatement (Second) of Torts § 826(a)
Prah v. Maretti (Wis. 1982)
1979 Energy Crisis
Price of Solar Power Over Time
Solar Shade Control Act (CA)
• Limits ability of HOA and local gov’t to restrict solar installations
• Creates legal right to solar easement
“Aesthetic Nuisance”?
48 Ohio St. L.J. 141 (1987)
“Coming to the Nuisance”
“If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue.”
Blackstone at 402-403 (1766).
“Coming to the Nuisance”
• Traditional: Completedefensetonuisance claim for offending conduct
• Modern: Notacompletedefense,but considered in determining whether plaintiff’s conduct is “unreasonable”
Note: Some states have adopted “Right to Farm” statutes that codify “coming to the nuisance” as defense for land used for agricultural purposes.
“Aesthetic Nuisance”?
48 Ohio St. L.J. 141 (1987)
“Most courts are unwilling to impose nuisance liability based only on aesthetic concerns.”
Sprankling, Understanding Property Law (3d ed.)
