Property Outline

Monday, August 22, 2011

8:17 PM

Property is composed of a multiplicity of rights (Doctrine of

Property):
1. Usus: Use the property
2. Fructus: Capitalize on the fruits of the property
1. Usufruct: Give someone else the rights to use the property
1. Abusus: Sell or do away with the property
1. Exclude: Exclude others from the rights to enjoy the property

Property rights are not absolute,

"Limited by an exist in conjunction with the rights of others"

I. Theories Underlying Property Claims

I. First in time/Fist in Right

Presumptive conclusion of right
Unscrupulous Discovery
Most wealth is multiplicity of effort
Not best interest as a whole

I. Labor Theory (Locke):

Use of labor over something un-owned = you own the
resulting mixture of labor & object (ie: catching a fish)
someone will always have a competitive advantage

a. Utilitarianism "Theory of Possession"(Hume &

Bentham):
Greatest good for the greatest number
Protect others' interests in property because we want
our interests protected too

a. Economic Efficiency:
Property is economically efficient
Under conditions of scarcity people will unduly deplete
the resource, b/c the individual gain is greater than
individual cost
Aggregate gains from depletion are much less than the
cost (External)
I. First Possession: Acquisition of Property
by...
Possession: obtaining physical control and intent to claim an interest
Pre-possessory interest: Not mature ownership. Not possession. Right to
take possession without unlawful interference

Possession of an object implies ownership

Dual quality:
Physical act of possession
Legal conclusion that someone is in possession of an object

Entitlements: Belief of an absolute right to a benefit, society's recognition of

an interest

Discovery
Johnson v. McIntosh, Antelope
"Discovery gave title to the government
by whose subjects, or by whose authority, it was made, against all
other European governments, which
title might be consummated by possession"

Derivative Title
Acquired right
Derived from another
ie: Johnson v. McIntosh - US derived title of land from British
crown
Same rights as the person before you had with the same title.

Law of Nations
Recognizes a fundamental right to property
Natural Rights:
Life, liberty, pursuit of happiness
"Every man has a natural right to the fruits of his own
labor, is generally admitted, and that no other person
can rightfully deprive him of those fruits"
Deprivation of natural rights:
a. War
b. Enslavement

If you discover a rare shell on an un-owned beach, you are

simultaneously its discoverer and first possessor.
 If you discover a rare shell on an owned beach, you are the discoverer
but not possessor

Capture
Pierson v. Post, Ghen v. Rich, Keeble v. Hickeringill, Notes on Externalities

The thing:
What is the thing?
fox as ferae naturae
The place:
Where is the place?
constructive possession matter
The custom:
Changes in relationship of thing and place
what hunters would have done /what whalers do in Ghen v.
Rich.
Redefines property - ie: Popov Hayashi
The propriety:
What is proper?
cases have a lot to say about propriety of individual behavior
the way we order ourselves in society, our interactions with one
another

Un-owned property that is captured becomes the property of the person

effecting the capture.
Un-owned thing must be actually possessed for it to become property.
May sometimes be decided by custom, especially when those customs
embody sound public policies.
First possession NOT first pursuit

Creation
Locke's labor theory - "people obtain rights because they did something
and other did not"

1. Property in One's Ideas and Expressions

International News v. AP, Cheney Bros. v. Doris Silk, Smith v. Chanel
Intellectual Property
Copyrights
Expressive works
1. Protection expression of ideas in books, articles, music, artistic
works, etc.
2. Protection begins as soon as work is set in tangible medium
3. Ordinarily lasts 70 years after death of author or creator
Patents
 4.Granted for novel, useful, and nonobvious processes or
products
5. Expires 20 years after date of issue
Trademarks
6. Words and symbols indicating the source of a product or
service
7. Owners are protected against use of similar marks by others
when such use would result in confusion

1. Property in One's Person

Moore v. Regents of UCLA, Jacque v. Steenberg Homes, State v.
Shack
Right to:
Include
Exclude
Keep others from possession or use of your property
Not absolute
In a case of social necessity, owner may be required to
tolerate some unwanted incursions ie: Shack
Government may take property (eminent domain)
Destroy
You may destroy your own property
May be limits in cases of social necessity

Claims against Property

A. Conversion
Conversion: Someone claims entitlement over someone else's actual entitlement, ex
one's right to property ie: a dying horse

A. Trespass to Chattels
Trespass to Exists where personal property has been damaged or where the defen
Chattels interfered with the plaintiff's use of the property. Dispossession is not a
to chattels

I. Relief
Nominal No damage

Compensato Compensation for damages done

ry
Punitive Lesson

Consequenti Arise out of the consequence of a harm ie: damaged

al apple orchard