Property Outline SpringWord下载.docx

1、e. Lockes theory of labor property rights are established when an individual labors and improves something which he can then claim to be his own.2. Why are some things recognized as property and not others?a. Moralityi. Example: cant sell babiesb. Economicsi. There is a pressure to recognize propert

2、y rights when something is at stake. When something is inconsequential it isnt worth the cost for the benefit of establishing a property right. （i.e. movie ticket v. season tickets to Browns）. Cost benefit analysis.3. Uses/purposes of property rightsa. Encourage investmentb. Increase wealthc. A mean

3、s of solving conflict between resource holdersd. Personal boundariese. Solves “tragedy of the commons” negative effects fall on future generations so overconsumption becomes a problemf. Internalizing externalities （makes you contemplate how your property affects others）g. Keeps the peace （economic e

4、fficiency dont have to spend free time defending your property）B. First Possession: Acquisition by Discovery1. Johnson v. MIntosha. Facts - P claimed title under purchase and conveyance from Indians. D claimed title under a later grant from the U.S.b. Holding D had a valid property right because Ind

5、ians lacked sovereignty and had a mere right to occupancy as opposed to first possessors. Discovery gave U.S. exclusive right to extinguish Indian title of occupancy by purchase or conquestc. U.S. was the sole buyer of land, which dramatically decreased costs.d. Recognizing Indian possession and rig

6、ht to transfer could nullify prior purchases of property from U.S. government.2. First in time theory the notion that being there first justifies ownership rights. Have to be first possessors, not mere occupants. Legitimates first grabbing.a. Positives of theory - This theory leads to security and t

7、heoretically it is a concrete rule. Also, it gives people an incentive to acquire land and to invest in it.b. Negatives of theory In order to have a claim you have to do certain things to the land. The fact that you have to do so much could result in a detriment to nature.3. Labor Theory Combines fi

8、rst occupancy into his theory of labor of property when someone takes something it is labor and thereby he makes it his owna. When you remove something out of nature and mix it with labor and effort and join it with something that is yours then it becomes your possession.b. Indians didnt put in an a

9、dequate amount of labor to protect their interest in the land since they only “used” it.c. If you dont have this rule, people wont go through the trouble to labor. It would decrease production.d. Haslem v. Lockwood P raked manure that had accumulated in the street, intending to carry it away the nex

10、t day. D found it and hauled it off in his cart. Court held for P who claimed title as the first occupant because he “had changed its original condition and greatly enhanced its value by his labor.”C. First Possession: Acquisition by Capture1. Pierson v. Post （fox hunting case）a. P was pursuing a fo

11、x when D, knowing P was pursing it, shot the fox and carried it offb. Holding - Mere pursuit gave P no legal right to the fox since occupancy of wild animals is recognized by corporal possession.c. Dissent Reasonable prospect of capture test - People should have a right to animals that they have a r

12、easonable expectation of capturing. Also, it was custom of hunters to give ownership to those in pursuit. This test is more ambiguous.2. Ferae Naturae （wild animals） a. Rule - property is acquired by occupancy via corporal possession only.b. Traps/cages Old rule - have to render escape impossible. N

13、ow just use reasonable means to prevent escapec. Exception a wild beast that is mortally wounded or greatly maimed cant be intercepted by another while still in pursuit.3. Ghen v. Rich （whale hunting case）a. Whalers sued to recover value of whale they had killed and tagged which was found by D and w

14、ho auctioned it off. b. Proper title belonged to the whalers because they followed the practice of the industry and tagged the wait and in doing so they did all that was practicable in order to secure it. If D won then it would violated Lockes theory of labor.4. Custom a. Courts sometimes use custom

15、 within an industry or sport to determine who is the rightful owneri. Custom must be prevalent and proven to be a customii. Rationale provides hunters with an incentive. If custom wasnt abided by, nobody would hunt because the property could be taken away or lost.5. Keeble v. Hickeringill （duck case

16、）a. P owned a pond for the recreational hunting of ducks. D repeatedly drove away ducks.b. Holding although P didnt have actual possession of the ducks, D is still liable for the interference with Ps occupation, profession or livelihood.i. It matters that it was Ps occupation.ii. If D had setup anot

17、her decoy pond to compete with P, it would be legitimate6. Instrumental Goals - Animals/Fugitive Resourcesa. Constructive Possession （Ratione soli） Conventional view that an owner of land has constructive possession of all wild animal on it.b. Doctrine of Animus Revertendi An animal that has a habit

18、 of returning is still in possession of original owner when it wanders off. （Note animal must be domesticated）i. This rule is an efficient use of resources because people can buy less landii. If a domesticated animal is wandering and it is not yours, you suppose it belongs to someone else.7. Oil and

19、 Gas can conceptualize it as a wild animal because it is mobilea. Oil or gas under both A and Bs land. A has no recovery against B if B also drills because he hasnt capture it （this is consistent with Pierson v. Post）i. The problem with this is that A could be forced to preemptively drill for oil an

20、d it could lead to the over exploitation of resources.ii. Unitization all owners of oil and gas under multiple parties property are supposed to act as if they were one unit.iii. Union Oil suggests that A could get an injunction against excessive drilling, but most courts follow the Pierson rule.b. I

21、f A drills down and it bottoms under Bs property, B could recover on theory of trespass. Generally, property rights extend below the land.8. Watera. Rule in the East By having first possession of the parcel of land by the river, you have riparian rights to use the river. There is no real requirement

22、 that you capture the water.b. Rule in the West prior appropriation the first person who captures the water and buts it to reasonable and beneficial use has a right superior to later appropriators.9. Externalitiesa. Definition When X makes a decision about how to use resources without taking full ac

23、count of the effects of his decisions on other persons. Can be a cost or a benefit.b. Common ownership common ownership increases externalities while private ownership decreases them.i. Trees 100 members of a tribe with 1,000 trees. One person who cuts down a tree gets all of the benefit while the n

24、egative effects fall almost totally on other.ii. Factory A factory pollutes. It costs neighbors $1,000 but the polluter can fix the problem for $500. The factory wont spend the $ because the cost falls on others.iii. Positive externality problems Tribe member could decide to plant seedlings but he m

25、ay not undertake the cost because the benefit would fall on future generations.c. Private property can be a solution to externalities because if the individual owns land, he will efficiently use his resources because it affects his bottom line.d. Bargaining parties will bargain to an efficient outco

26、me （i.e. offer to pay to stop negative externalities）. Once there is an offer to stop a negative externality, it is no longer an externality because the bargain makes them take into account the affect on the other.i. Cost of bargaining free-riding, sometime hard to determine the source of the proble

27、m, transaction costsii. Coase theorem if you dont have transaction costs that are a proble, then it doesnt matter what the rule is because people will find the most efficient outcome. However, the private solution may not work when transaction costs are high so laws come in to solve the problem.e. T

28、ragedy of the anti-commons too many people have a say （i.e. multiple ownership） which leads to under consumption and under production.D. First Possession: Acquisition by Creation1. Property in ones own ideas/expression （International News Service v. Associated Press）a. D engaged in systematic practi

29、ce of taking the news stories from bulletin boards and early editions of Ps newspapers and selling them as its own. P sues to enjoin D.b. Holding - AP has a quasi property right vis a vis a competitor but not the public at large. Applies when the news if valuable because it is fresh and novel. c. Qu

30、asi property is used in order to ensure that parties have an incentive to invest in the creation of a news story.2. Property in ones person （Moore v. Regents of the University of CA）a. P sought treatment for leukemia. D took blood and tissue samples from P. D didnt tell P his cells had a great scien

31、tific and commercial value.b. P sued based on conversion （wrongful exercise of ownership rights over the property of another）c. Holding P had no property right because he didnt expect to retain his cells and the doctors changed and added value to them. 3. The Right to Include and Excludea. There isnt an absolute property right in t