Really Good Prop Outline

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<ul><li><p>8/7/2019 Really Good Prop Outline</p><p> 1/60</p><p>Property Synthesis</p><p>1 | P a g e </p><p>PROPERTY: WHAT IS PROPERTY?</p><p>WHAT IS PROPERTY?General Rule:Property rights serve human values. They are recognized to that end, and are limited by it(i.e. the law has to work for us in a practical sense</p><p>to reflect the things that we care about)</p><p>y Because property rights are relational, among people not people and things,they are not absolute.y Property rights, as abundle of divisible entitlements, include the right to: (1) exclude, (2) transfer, (3) occupy, (4) destroyy Property rights can beheld in a variety of forms granting the right to possess, use and enjoy different aspects of a determinate thingy Legal obligations to others are incurred with the assertion of property rights.y Property rights are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or</p><p>property interests of others.</p><p>WHAT IS PROPERTY?:Tensions in Property Law</p><p>Rule: property entitlements are limited in a manner which ensures that the exercise of a property right is compatible with the property and personal</p><p>rights of others</p><p>1. Exclude v. Access: y Property owner has a right to exclude however non-owners retain a right to access property under exceptional circumstances2. Privilege to Use v.</p><p>Security of Harm:</p><p>y Property use may make others vulnerable to the effects of that use however people within proximity to the property have aright to be free from certain harms</p><p>y Economic theories of property law seek the most efficient solution to these competing interests3. Power to Transfer v.</p><p>Power of Ownership:</p><p>y Right to devise or convey property to person of your choosing may be limited by contractual agreements4. Immunity from Loss v.</p><p>Power to Acquire:</p><p>y Right to not have property taken is balanced against the governments power to take your property for federal usage. Noproperty owner is guaranteed to be immunized from the depreciation in value on their property, in general.</p><p>WHAT IS PROPERTY?: Recurring Themes</p><p>Social Context Matters in defining property rights</p><p>Alienability Dilemma The ability to transfer; tension between promoting alienability through:</p><p>(a) the consolidation of rights in owners and</p><p>(b) promoting alienability by allowing owners to disaggregate their rights into unique bundles constructed by them</p><p>Contractual Freedom Minimum Standards which may be placed on the freedom to contract</p><p>Social Welfare granting owners power over property which ensures they can obtain resources to satisfy human needs</p><p>encourages productive activity by granting security to those who invest in economic projects</p><p>Justified Expectations To insure that peoples expectations are metalways look at expectations with property</p><p>expectation of deriving certain advantages from propertyand the relation in which one stand in light of that property</p><p>Distributive Justice Idea that property is power and that a redistribution of property is a redistribution of power and wealth</p><p>Property is one of many forms which wealth takes, and involves the right to control tangible assets. Who is helped and who is harmed?</p><p>WHAT IS PROPERTY?: Normative Approaches to Property Law</p><p>1. Indian Conceptions of Property: y Based on communal understanding of law in which the land is considered sacred2. Positivism and Legal Realism:</p><p>(Comes up a lot in the semester)</p><p>y Law is separate from morals; Law is not from the divine but rather the commands of the sovereign promulgated forpublic policy reasons</p><p>y This paradigm conflicts with Natural Law theory3. Rights Theorists/Justice and</p><p>Fairness:y An individual interests that is so important from a moral point of view that it deserves legal protection which</p><p>trumps overriding general considerations of public policy</p><p>y Rights so rooted in the nature of human beings or so rational from a moral point of view that a particular individualinterest is fundamental</p><p>4. Utilitarianism/Social WelfareAdvocates:</p><p>y Looks at consequences of law and chooses that which has the best consequences overall for societyy Seeks that most efficient approach in order to maximize the its positive effects and minimize any negative effectsy Compare the costs and benefits of alternative property rules or institutions with the goal to adopt rules which will</p><p>maximize social utility or welfare</p><p>5. Social Relations: y Property rights are relations between people not possessionsy Maintains that property rights can only be understand in relation to people and how they act interact with one</p><p>another</p><p>y Legal realists: interpret property rights as delegations of power to individuals by the state which therefore should bedefined so as to accommodate conflicting interests</p></li><li><p>8/7/2019 Really Good Prop Outline</p><p> 2/60</p><p>Property Synthesis</p><p>2 | P a g e </p><p>PROPERTY: METHODS OF ACQUISITION</p><p>General Rule:y Generally the right to property is acquired by (1) contract, (2) familial relations, (3) social custom, (4) claim based on possession or labor and investment,</p><p>(5) receipt from the government, or (6) conquest </p><p>y These paradigms usually function as mutually exclusive and competing grounds for claims to the Original Acquisition of Property</p><p>Methods of Acquisition: Conquest and Distribution by the Sovereign</p><p>Doctrine of Discovery:</p><p>I. Rule: Absolute title rest with the discoverer of the land and not the indigenous inhabitants that resided there at the time of the discovery. The rightto transfer is separate from the right of occupancy that is held by the indigenous inhabitants. Therefore, the United States, as the successor to</p><p>English control, is the exclusive sovereign. Titles which descended from transactions with Indian nations do not supersede US title.</p><p>II. Case Application:Johnson v. M'Intosh(pgs. 4-13): Dispute over landpurchased by Johnson from Indians and which MIntosh bought from the United States</p><p>Analysis:</p><p>y BecauseIndians were savages wandering the land and notusing it according to European custom they gained no property interest in theland beyond the right to occupy. Native Am. did not mix their labor with their land and parceled out, so they did not possess their land</p><p>according to European standards.</p><p>y Justice Marshall determines title to the land by looking at the law of the state that governs the dispute (positive law, law that actuallyexists) and NOT abstract justice (natural law, questions of morality, objective fairness).</p><p>y This case is significant because it establishes the theoretical framework for American property law which is a shift from natural law theoryto positive law.</p><p>Holding:</p><p>y Native American retained their right to occupy but NOT transfer land.</p><p>Doctrine of Discovery y Title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily usedto support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.</p><p>Abstract Justice or</p><p>Natural Law</p><p>y There is a law above that which man has created which cannot be changed by manRight to Occupancy y Right to use the land; tribes retained the right of occupancy however the power of transfer and alienability was assumed by the</p><p>Discoverer or Conquestor</p><p>Right to Exclude y Allowed to subject others to the right of the landAboriginal Title y i.e. effectively right of occupancy;Retained right to occupy and exclude after discovery however no right of alienation</p><p>Indian Land / Title y Today, Land is held in trust by the government while tribes retain right to occupy and exclude; tribes may only sell their right ofoccupancy to the discovering sovereign but they cannot transfer and have alienable rights to it.</p><p>Methods of Acquisition: Capture</p><p>Acquisition of Property:</p><p>How do we get property?</p><p>1. Conquest:(Johnson v. Mcintosh-conquering</p><p>another countr )</p><p>5. Government grant:(Johnson v. Mcintosh- indian</p><p>land)</p><p>4. Social Custom:(Pierson v. Post-hunting fox)</p><p>3. Familiar Relation</p><p>6. Transaction/Contract</p><p>2. Labor/Investment:Very strong in American property</p><p>philosophy</p><p>(Johnson v. Mcintosh)</p></li><li><p>8/7/2019 Really Good Prop Outline</p><p> 3/60</p><p>Property Synthesis</p><p>3 | P a g e </p><p>Possession:</p><p>I. General Rule:Possession creates a presumption of ownership which puts others at a disadvantage if they intend to acquire it from the possessory Sub-Rule:Possession requires that the possessor have both (1) physical control overthe item and (2) an intent to control/exclude it from</p><p>others.</p><p>y 3 ways in which Possession Rights can be formed:a. Social Custom: by culturally contingent factors such as social custom, hard law, precedent, formal codified law (many factors may be</p><p>used when there is no rule that governs the circumstances)</p><p>b. Corporal (occupancy) Possession: the clearest form of possession; the actual possession of an itemc. Law of Capture: demonstrate an (1) unequivocal intent to appropriate for ones individual use; (2) through legitimate means (3) to</p><p>bring under certain control the common resource available to the parties.</p><p> Depriving animal of actual liberty; mortal wounding is sufficient to establish certain capture a reality of hunting, immediateremoval may not be possible</p><p> Labor and pursuit is INSUFFICIENT to establish right over property Unreasonable waste of resource from negligence doesnt qualify as capture (Elliff v. Texon)</p><p>EXCEPT: When Trespassing and Capturing.A hunter on anothers land as cannot retain possession of an animal killed on anothers land without</p><p>the consent of the owner if they are a trespasser and the land owner has asserted his right to the property</p><p>POLICY: this is the best rule for sake of certainty and preserving the peace and order of society</p><p>II. Case Application:Pierson v. Post (pgs. 76-79):Occupancy Hunter Chasing Fox Case Pursuit is not sufficient to establish possession. Only if hunter mortally</p><p>wounds an animal with the intent to possess it does possession apply.</p><p>RULE: Property is acquired by occupancy only</p><p>ANALYSIS:There must be a deprivation of the animals natural liberty to establish occupancy which can only come about by awounding (to the point where animal cannot survive on its own or capture is virtually certain) or capturing an animal</p><p> If animal is in the process of being entrapped, and the door has not snapped shut, it has not been capturedMAJORITYS POLICY RATIONALE (Pierson Rule):Possession is given to the person who actually obtains occupancy of animal. This</p><p>rule would create more certainty and preserve peace and order in society with less litigation costs. This is intended to reward the</p><p>effective and successful individual and not just the individual that attempts. (First in Time)</p><p>y Intended to reward results, success, not necessarily the individual that triedDISSENT: (Post Rule) anyone who has a reasonable prospect of taking (capture) should be the possessor.</p><p>y Dissent feels it should have been decided by the social customs of hunters and NOT case law.y Rationale:greater emphasis on fairness Post may have been successful because fox was tired. The benefit should go to the</p><p>individual who acts without a guarantee that their effort will lead to results rather than the free-loader. Because he mixed</p><p>his labor with the activity and this would incentivize fox hunting. (Duty of Sportsmanship)</p><p>POLICY: when arguing for either side concepts to be aware of are the level of certainty and incentive that would be created based on use of</p><p>the rule of capture (versus another-like pre-possessory interest), questions of fairness (first to invest labor, etc.) or moral duty,</p><p>significance of labor investment, etc.</p><p>Equitable Division/Pre-possessory Interest:</p><p>What Does Possession Require??</p><p>i. General Rule: If more than one party has a valid claim to a single piece of property (both innocent parties, neither unlawful) the courtmay recognize that there is an undivided interest in the property in proportion to the strength of the claim. If neither party has a stronger</p><p>claim then equitable division is used.</p><p>y Possession Interrupted by Unlawful Acts: Where an actor undertakes significant but incomplete steps to achieve possession of apiece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-</p><p>possessory interestin the property. (Court has created a property interest for Popov)</p><p>ii. Case Application:Popov v. Hayashi (pgs. 79-82): Baseball hit by Barry Bonds was caught by Popov who was then tackled to the ground where the ball</p><p>was dropped and picked up by Hayashi; Neither men were wrong-doers in the case ANALYSIS: The rule of capture established in Pierson v. Postonly applies to animal cases because it is physically possible for a</p><p>baseball to be controlled vs. a fleeing animal, custom creates an expectation that a person must have complete control before</p><p>claiming full possession. Court rules that P had a legally pre-possessory interest in the property while the D had the</p><p>HOLDING: Both men have a undivided interest (each has a right to the entire ball and it cannot be physically divided) therefore when</p><p>the ball is sold proceeds will be divided equally</p><p>iii. Compare: Pierson v. Post and Popov v. Hayashi; in Post, the was not interrupted by outside unlawful intervening event and thereforehis right of possession based on labor was insufficient to trump the right of actual possession, however in Popov v. Hayashi was</p><p>disturbed inappropriately and therefore his labor granted him a pre-possessory right equivalent to that of actual possession</p><p>Correlative Rights Doctrine-Under the Law of Capture:rights of land owners are correlative to eachother and no liability will exists to the other if the property is</p><p>gained through reasonable and legitimate means.</p></li><li><p>8/7/2019 Really Good Prop Outline</p><p> 4/60</p><p>Property Synthesis</p><p>4 | P a g e </p><p>i. General Rule:If each party has an equal right to acquire or access a resource from in a common source that is able to migrate legalaccessible to all parties, the party that has captured the resource in a reasonable and legitimate manner is the owner. This theory</p><p>rewards actual possession but limits by (1) a prohibition of waste of the resource (reasonable use) and a (2) duty to not harm others. </p><p>a. JUSTIFICATION of Rule: Courts create liability for the wasteful capture of property to an agent with pre-possessory property right in n thatsame property if the property is a limited resource and the interest exists to benefit the greater society.</p><p> Background Rules:o Mineral Rights (Right to Exclude v. Right of Access): Each owner of land has a separate, distinct and exclusive right to all</p><p>the oil and gas under his land because they are considered a part of the realty. Owner has usual remedies against</p><p>trespassers that appropriate minerals or destroy market value </p><p>ii. Case Application:Elliff v. Texon Drilling Co., (pgs. 83-87):Parties had adjoining property on which each operated oil &amp; gas wells; Because oil and gas is</p><p>migratory, move back and forth underneath the earth, it makes it impossible to establish a rule of absolute ownership. Ds well blew</p><p>up destroying resources undernea...</p></li></ul>

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