PART I: INTRODUCTION
WHAT IS PROPERTY?
§ 1.01 An “Unanswerable” Question? [1-2]
The term property is extraordinarily difficult to define. The ordinary person defines property as things that are owned by people. However, the law defines property as rights among people that concern things.
§ 1.02 Property and Law [2-4]
[A] Legal Positivism
The dominant view in the United States is that property rights arise only through government; this view is known as legal positivism. For example, in Johnson v. M’Intosh, 21 U.S. 543 (1823), the Supreme Court stressed that in deciding land claims based on Native American rights, it could only rely on laws adopted by the federal government, not on natural law or abstract justice.
[B] Natural Law Theory
Natural law theory, in contrast, posits that rights arise in nature as a matter of fundamental justice, independent of government. The Declaration of Independence is the high-water mark of this theory in the United States.
§ 1.03 Defining Property: What Types of “Rights” Among People? [4-7]
[A] Scope of Property Rights
Under our legal system, property rights are limited, not absolute. They exist only to the extent that they serve a socially useful justification.
[B] Property as a “Bundle of Rights”
It is common to describe property as a “bundle of rights” in relation to things. The most important rights in this metaphorical bundle are: (1) the right to exclude; (2) the right to transfer; and (3) the right to use and possess.
§ 1.04 Defining Property: Rights in What “Things”? [7-9]
Real property consists of rights in land and anything attached to the land (e.g., buildings, signs, fences, or trees). Personal property consists of rights in things other than land. There are two main types of personal property: chattels (tangible, visible personal property such as jewelry, livestock, cars, and books) and intangible personal property (invisible, intangible things such as stocks, bonds, patents, debts, and other contract rights).
JURISPRUDENTIAL FOUNDATIONS OF PROPERTY LAW
§ 2.01 Why Recognize Private Property? [11-12]
What is the justification for private property? The answer to this question is crucial because the justification for private property must necessarily affect the substance of property law. American property law is based on a subtle blend of different—and somewhat conflicting—theories.
§ 2.02 First Occupancy (aka First Possession) [12-14]
First occupancy theory reflects the familiar concept of first-in-time: the first person to take occupancy or possession of something owns it. This theory is a fundamental part of American property law today, often blended with other theories. One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.
§ 2.03 Labor-Desert T
PROPERTY RIGHTS IN WILD ANIMALS
§ 3.01 The Origin of Property Rights [23-24]
Property courses sometimes begin with the ownership of wild animals because this subject helps answer a key question: how do property rights begin? Because wild animals in nature are unowned, the rules governing their acquisition help us understand the policies that influenced American property law.
§ 3.02 The Capture Rule in General [24-28]
[A] Basic Rule
No one owns wild animals in their natural habitats. Under the common law capture rule, property rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it.
[B] Defining “Capture:” Pierson v. Post
The leading case interpreting the capture rule is Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805). Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself. When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.
[C] Release or Escape After Capture